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10
Court of Criminal Appeal 2 September 2008

DOE v R

[2008] NSWCCA 203

Sexual offences
CONVICTION APPEAL SEXUAL ASSAULT OFFENCES

Citation: DOE v R [2008] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 2 September 2008
Judge(s): Spigelman CJ, Hidden J, Latham J

Background

The appellant was convicted in the District Court on four counts of sexual intercourse without consent and one count of indecent assault, following a trial before Conlon DCJ. The Crown case on the identity of the offender was circumstantial. A key witness, an acquaintance of the appellant, gave evidence that the appellant had made an admission to him some weeks after the offence, saying he had "just touched the girl." The appellant denied both being in the witness's company on the night in question and making any such admission.

The witness and the appellant were both of African origin and had met at a hotel in Wollongong. Their acquaintance was relatively brief. Police traced the appellant through a mobile number the appellant had given the witness, which ultimately connected police to the appellant as a person of interest.

No appeal was brought against sentence. The appeal focused entirely on whether a comment made by the Crown prosecutor during closing address, and the trial judge's reference to it in the summing up, constituted a miscarriage of justice.

  • Whether the prosecutor's comment that the witness had "no axe to grind" with the accused was equivalent to the impermissible "Why would he lie?" form of reasoning, and therefore constituted an error at trial.
  • Whether the trial judge's summing up compounded any such error by repeating or reinforcing the comment.
  • Whether, given that trial counsel raised no objection at the time, leave was required to run the ground on appeal, and whether the interests of justice warranted granting that leave.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Latham J delivering the substantive judgment and Spigelman CJ and Hidden J agreeing.

On the central question of whether the prosecutor's remark amounted to impermissible "Why would he lie?" reasoning, Latham J found it did not. The comment was made in general terms and did not direct the jury's attention to any failure by the defence to cross-examine the witness about his motive for giving evidence. Critically, the prosecutor did not frame the remark as "there is no suggestion by the accused," which would have more clearly invited that inference.

The trial judge's handling of the comment in the summing up also did not repeat it verbatim. Instead, the judge cast the Crown's submission in terms of how the witness appeared as a witness, which amounted to nothing more than encouraging the jury to assess credibility by the impression the witness made upon them. This was consistent with directions given at the outset of the summing up emphasising that acceptance of the witness's evidence required proof beyond reasonable doubt of his honesty and accuracy, and that the accused bore no onus of proof.

Because trial counsel, described as very experienced, took no objection to the comment at the time and did not seek any re-direction on this point, Rule 4 applied and leave was required to raise the ground on appeal. The Court declined to grant leave. The Court observed that trial counsel's failure to object reflected a contemporaneous assessment that nothing in the address or summing up had prejudiced the appellant, and that isolating the comment for close scrutiny on appeal ignored its place within a succinct address followed by a more lengthy defence address and a full summing up.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A prosecutor's comment that a witness had "no axe to grind" with the accused does not automatically constitute the impermissible "Why would he lie?" direction condemned in cases such as F (1995) 83 A Crim R 502 and South v R [2007] NSWCCA 117. The Court of Criminal Appeal found the characterisation depends on the precise words used and the context in which they appear.
  • Where a trial judge's summing up qualifies rather than repeats a prosecutor's comment verbatim, and does so by directing the jury to assess credibility through the impression the witness made upon them, no compounding error arises.
  • A comment cast in wholly general terms, without reference to any failure by the accused to put a motive to lie, carries less risk of conveying impermissible reasoning to a jury.
  • In dismissing the appeal, the Court applied Rule 4 strictly: trial counsel's failure to object to the comment or seek re-direction at trial required the appellant to obtain leave, and the experienced trial counsel's contemporaneous silence weighed against a finding of miscarriage of justice.
  • Sufficient directions elsewhere in the summing up, emphasising the beyond-reasonable-doubt standard for accepting the key witness and the absence of any onus on the accused, can be relevant to whether an isolated comment in closing address caused prejudice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L

Cases:
- F (1995) 83 A Crim R 502
- R v Uhrig, NSWCCA 24 October 1996
- South v R [2007] NSWCCA 117
- R v Davies, NSWCCA 8 December 1994
- E (1996) 39 NSWLR 450
- R v Graham, NSWCCA 2 September 1997
- Guirguis, NSWCCA 29 November 1996
- Jovanovic (1997) 98 A Crim R 1
- R v AH (1997) 98 A Crim R 71
- Palmer v The Queen (1998) 193 CLR 1
- Robinson v The Queen (1991) 180 CLR 531
- R v Smith [2000] NSWCCA 468
- R v Fuge (2001) 123 A Crim R 310
- R v Ray (2003) 57 NSWLR 616
- Wilson v R [2006] NSWCCA 217
- Boulattouf v R [2007] NSWCCA 102
- R v El-azzi [2004] NSWCCA 455
- R v Keir [2004] NSWSC 964
- R v Walters [2002] NSWCCA 291
- R v Brotherton (1993) 29 NSWLR 95
- R v Coe [2002] NSWCCA 385
- R v Colby [1999] NSWCCA 261
- BRS v R (1997) 191 CLR 275
- R v WRW [2001] NSWCCA 466