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Court of Criminal Appeal 18 December 2007

Timbery v Regina

[2007] NSWCCA 355

Also reported as 180 A Crim R 232
Sexual offencesAssault & violence

Citation: Timbery v Regina [2007] NSWCCA 355
Court: New South Wales Court of Criminal Appeal
Date: 18 December 2007
Judges: Mason P, Adams J, Smart AJ

Background

The appellant was the former boyfriend of the complainant. He faced 23 charges arising from a series of alleged offences between April and December 2000, when the complainant was living at the appellant's family home at La Perouse. The charges included malicious wounding, grievous bodily harm, assault occasioning actual bodily harm, and multiple counts of aggravated sexual intercourse without consent.

At trial in the District Court before Donovan DCJ, the appellant was convicted of 12 offences and acquitted of 11. The total effective sentence imposed was 33 years with a non-parole period of 24 years. The appellant appealed against both conviction and sentence.

The appellant denied ever having sexual intercourse with the complainant without her consent, and denied using a number of implements the complainant alleged he had used to assault her. Family members gave evidence that they had neither seen those implements nor heard disturbances from the relevant bedroom.

  • Whether the trial judge effectively withdrew from the jury the question of whether sexual intercourse had occurred in the circumstances alleged, thereby improperly limiting the factual inquiry to consent alone.
  • Whether the directions given by the judge on corroboration and supporting evidence were legally adequate.
  • Whether the judge's directions urging the jury to reach agreement exceeded what is permissible (known as Murray directions).
  • Whether the Crown prosecutor engaged in impermissible conduct and, if so, whether that conduct caused a miscarriage of justice.
  • Whether counsel for the appellant at trial failed to perform adequately, and whether any such failure caused a miscarriage of justice.

Decision

The Court of Criminal Appeal allowed the appeal on five grounds (Grounds 1, 2, 3, 4 and 6), finding cumulative errors that required a new trial on all 12 counts on which the appellant had been convicted.

On the first and most significant ground, the Court found that the trial judge had incorrectly and effectively withdrawn from the jury the issue of whether sexual intercourse had in fact occurred in the circumstances alleged by the complainant. By doing so, the judge improperly narrowed the jury's task to the question of consent, removing from consideration a matter that was genuinely in dispute on some counts.

The Court further identified faulty directions on corroboration and supporting evidence. These directions did not correctly explain the law, and the errors were material to how the jury would assess the complainant's evidence. The directions urging the jury to reach agreement also exceeded permissible bounds under the principles governing such communications.

As to the Crown prosecutor's conduct, the Court found it impermissible but concluded it had not caused a miscarriage of justice. Similarly, the alleged failure of the appellant's trial counsel was not established to the required standard. The Court declined to apply the proviso (the rule allowing a conviction to stand despite error if the outcome was inevitable on the evidence), noting the substantial credibility disputes and the complex factual issues on all counts. A new trial was ordered. Given that outcome, the application for leave to appeal against sentence was not considered.

Orders Made

  • Appeals against conviction allowed on Counts 1, 2, 4, 6, 7, 8, 9, 10, 11, 12, 15 and 23.
  • All 12 convictions quashed.
  • New trial ordered on all quashed counts.

Key Takeaways

  • A trial judge's directions that effectively withdraw a live factual issue from the jury constitute a material misdirection, even where the primary dispute concerns a different element such as consent.
  • Faulty directions on corroboration and supporting evidence, particularly in sexual assault trials, can be sufficient ground to quash convictions where credibility is centrally contested.
  • Murray directions (directions encouraging a jury to reach agreement) must stay within defined permissible limits; directions that go beyond those limits constitute error.
  • Impermissible conduct by a Crown prosecutor does not automatically result in a miscarriage of justice; the Court assessed the impact of that conduct on the trial's fairness before determining whether it vitiated the convictions.
  • The proviso will not be applied where there are substantial factual disputes and genuine credibility issues across multiple counts, even where independent supporting evidence existed on some charges.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW)

Cases:
- Black v The Queen (1993) 179 CLR 44
- Conway v The Queen (2002) 209 CLR 203
- Crampton v R (2000) 206 CLR 161
- Donney v The Queen (1990) 171 CLR 207
- Kaifoti v R [2006] NSWCCA 186
- Libke v The Queen (2007) HCA 30
- Longman v The Queen (1980) 168 CLR 79
- MFA v The Queen (2002) 213 CLR 606
- Mackenzie v The Queen (1996) 190 CLR 348
- Palmer v The Queen (1998) 193 CLR 1
- Pavitt v R [2007] NSWCCA 88
- R v Baskerville [1916] 2 KB 658
- R v Jovanic (1997) 42 NSWLR 520
- R v Livermore [2006] NSWCCA 334
- R v Markuleski (2001) 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- Tully v The Queen (2007) ALJR 391
- McKechnie v R [2006] NSWCCA 13
- R v Li (2003) 140 A Crim R 386
- R v Zorad (1990) 19 NSWLR 91