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Court of Criminal Appeal 10 December 2008

KAMM, William v Regina

[2008] NSWCCA 290

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES COUNSEL AND WITNESS AT CROSS PURPOSES EXAMINATION BY CROWN PROSECUTOR WAS RELEVANT AND NOT OFFENSIVE HAD SUBSTANTIAL PROBATIVE VALUE

Citation: KAMM, William v Regina [2008] NSWCCA 290
Court: New South Wales Court of Criminal Appeal
Date: 10 December 2008
Judges: Giles JA; Latham J; Mathews AJ

Background

The appellant was convicted in the District Court of a number of sexual offences against a complainant who was aged 14 or 15 at the time of the alleged conduct, in 1994 and 1995. The appellant was the leader of a religious community near Nowra and had claimed spiritual authority over its members, including the complainant's family. The Crown case was that the sexual relationship began when the complainant was selected as one of the appellant's designated "queens," well before she turned 16. The appellant did not give evidence but maintained that the relationship began only after the complainant had reached the age of consent.

The trial turned significantly on documentary evidence, including letters and diary entries that supported the complainant's account. Evidence was given that some potentially incriminating documents had been destroyed. The appellant challenged both the credibility of the destruction evidence and the circumstances in which it was led.

The appellant did not seek leave to appeal against sentence. All three grounds of appeal concerned alleged miscarriages of justice in the conduct of the trial itself.

  • Whether the trial miscarried because defence counsel failed to take any step (such as applying for a discharge of the jury) after a prosecution witness alleged, during cross-examination, that counsel had known about the destruction of documents
  • Whether the way in which the allegation arose truly amounted to a claim of impropriety against defence counsel, and whether any resulting prejudice to the appellant was real
  • Whether the trial miscarried because of certain cross-examination conducted by the Crown Prosecutor, specifically questioning a witness about whether she had withheld relevant records

Decision

On the first ground, the Court found that the exchange in which the witness named counsel as having known about the document destruction arose from a miscommunication during cross-examination rather than a genuine allegation of impropriety. Counsel had been questioning the witness to undermine her credibility by suggesting she had concealed the destruction from the defence. The witness misread the direction of the questioning and responded by asserting that counsel already knew. The Court concluded this was a case of counsel and witness being at cross purposes, not a true claim that counsel had participated in any wrongdoing.

The Court also found that defence counsel made a rational decision not to apply for a discharge of the jury or take other remedial steps. Further cross-examination made it clear that the witness had no genuine or specific basis for the allegation, and continuing to cross-examine on the point was a reasonable forensic choice. No miscarriage of justice resulted from counsel's approach.

On the second ground, the Court upheld the trial judge's ruling under s 103 of the Evidence Act that the Crown's cross-examination of the witness about the completeness of her disclosure of relevant records had substantial probative value. The questions went to whether the witness had withheld material that might have undermined the defence, and were directed at establishing bias or the making of a false representation. The Court found the cross-examination was relevant, not offensive, and that any risk of unfair prejudice to the appellant did not outweigh its probative value.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing all three grounds of appeal, the Court of Criminal Appeal confirmed that a witness allegation of counsel impropriety arising from a cross-examination misunderstanding does not automatically require counsel to seek a jury discharge or take other curative steps.
  • A rational forensic decision by defence counsel not to seek a discharge, where the basis for any alleged prejudice is thin or explicable, will not constitute a miscarriage of justice.
  • Under s 103 of the Evidence Act, cross-examination that questions the completeness of a witness's disclosure of relevant materials may carry substantial probative value where it goes to bias or the making of false representations.
  • The threshold for establishing a miscarriage of justice through counsel's conduct at trial is high; the Court applies an objective assessment of whether the decision was rationally open, not whether it was the only available response.
  • No miscarriage arises simply because an exchange in cross-examination takes an unexpected turn, provided the overall conduct of the trial remains fair and the jury is not left with a materially misleading impression.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61O(1), 66C(2)
- Evidence Act 1995 (NSW), ss 103, 106(a), 137

Cases Cited
- Ali v Regina [2005] HCA 8; (2005) 214 ALR 1
- Nudd v Regina [2006] HCA 9; (2006) 225 ALR 161
- R v VN [2006] VSCA 111
- Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
- Wakeley v The Queen [1990] HCA 23; (1990) 93 ALR 79