AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 21 December 2007

FOGGO v REGINA

[2007] NSWCCA 364

Sexual offences
CRIMINAL LAW APPEAL MISCARRIAGE OF JUSTICE IMPROPER REJECTION OF EVIDENCE WITNESSES CROSS

Citation: FOGGO v REGINA [2007] NSWCCA 364
Court: New South Wales Court of Criminal Appeal
Date: 21 December 2007
Judges: Mason P, Adams J, Smart AJ

Background

The appellant was convicted in the District Court before Finnane DCJ and a jury on two counts: sexual intercourse without consent and indecent assault. The complainant was a 17-year-old factory worker employed at a business controlled by the appellant, who was 54 years old at the time of the alleged offences. The incidents occurred after a Christmas drinks outing at which the complainant consumed significant quantities of alcohol.

The complainant gave evidence that the appellant massaged him and then performed sexual acts upon him while he repeatedly said "no" and resisted physically. The appellant did not dispute that the sexual acts occurred but maintained the complainant had invited or consented to them, or that he at least believed the complainant was consenting.

On appeal, the appellant challenged his convictions on several grounds, including that the trial judge had improperly disallowed certain cross-examination of the complainant, permitted improper cross-examination by the Crown, and that the verdicts were unreasonable or unsupportable.

  • Whether the trial judge erred in disallowing cross-examination of the complainant about his actual response to a question put to him in an intercepted (secretly taped) conversation, and whether this constituted a substantial miscarriage of justice.
  • Whether permitting certain improper cross-examination of the appellant by the Crown amounted to a substantial miscarriage of justice.
  • Whether the verdicts were unreasonable or insupportable on the evidence.

Decision

The Court was divided on the cross-examination issue. Mason P (with whom Smart AJ agreed) held that the complainant should have been cross-examined on his actual response in the intercepted conversation. The prohibited cross-examination went directly to the central issue of consent and was based on reasonable grounds. Mason P found the Crown had not discharged the burden of demonstrating that the error was harmless, noting that cross-examination can produce unpredictable results and that the Crown case rested almost entirely on the complainant's credibility.

Adams J took a different view, concluding that while the cross-examination should have been permitted, the error did not amount to a substantial miscarriage of justice on the facts. Adams J acknowledged the significance of the complainant's demeanour but ultimately was not persuaded that permitting the cross-examination would have produced a different outcome.

On the improper Crown cross-examination ground, the Court found that some questions were improperly framed, including commentary dressed as questions, but that taken as a whole the questioning did not produce a substantial miscarriage of justice.

The Court, by majority, dismissed the unreasonable verdict ground. On the outcome of the appeal overall, the majority (Mason P and Smart AJ) would have allowed the appeal, quashed the convictions, and ordered a new trial. However, the Court ultimately dismissed the appeal, suggesting Adams J's position was determinative of that result.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that cross-examination is not only an accused's right but a matter of public interest, forming a fundamental element of a fair trial, particularly where it goes to the central issue in the case.
  • A majority of the Court found that disallowing cross-examination of the complainant on his actual response in an intercepted conversation was an error, given the questions were grounded on reasonable foundations and directly relevant to the issue of consent.
  • Where a Crown case depends almost entirely on the credibility of a single witness, a majority held the Crown faces a very difficult task in establishing that wrongly disallowed cross-examination would have had only innocuous results.
  • The dismissal of the appeal on the cross-examination ground reflected a split in the court: Mason P and Smart AJ considered the error a serious miscarriage of justice warranting a new trial, while Adams J, accepting the error, did not find it substantial enough to affect the outcome.
  • Improperly framed Crown questioning, including commentary or irrelevant material packaged as questions, will not necessarily give rise to a substantial miscarriage of justice where the questioning considered as a whole did not undermine the fairness of the trial.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12

Cases:
- Libke v The Queen [2007] HCA 30, 235 ALR 517