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Court of Criminal Appeal 26 October 2009

LEE v R

[2009] NSWCCA 259

Sexual offences
CRIMINAL LAW AND PROCEDURE CONVICTIONS FOR SEXUAL OFFENCES LEAVE TO CROSS EXAMINE DIRECTION BY TRIAL JUDGE ABSENCE OF OBJECTION AT TRIAL

Citation: Lee v R [2009] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 26 October 2009
Judges: Spigelman CJ; McClellan CJ at CL; Grove J

Background

The appellant was convicted in the District Court at Penrith on two counts of indecent assault and one count of sexual intercourse without consent, all arising from a single incident on the night of 1 to 2 July 2007. The complainant was the partner of the appellant's son and had been living in a granny flat at the rear of the family home. The appellant denied the allegations in a police interview, claiming he had been drinking heavily and was in the granny flat only briefly earlier in the day to retrieve engine oil.

The Crown called the appellant's de facto wife, Leanne Montgomery, as a witness. Her evidence included an account of the appellant coming to bed at around 11.30 pm that night and being unable to achieve an erection, which the defence relied upon as consistent with his denial of the sexual offences. Because parts of her evidence were unfavourable to the Crown's case, the trial judge granted the prosecutor leave to cross-examine her under s 38 of the Evidence Act 1995.

The appeal was confined to conviction and centred entirely on the reception and handling of Ms Montgomery's evidence at trial.

  • Whether the trial judge erred in granting the Crown leave to cross-examine Ms Montgomery as an unfavourable witness under s 38 of the Evidence Act 1995
  • Whether the trial judge erred by informing the jury that he had found Ms Montgomery's evidence to be "unfavourable" to the Crown
  • Whether the trial judge was required to give the jury a warning about evidence adduced following a grant of leave to cross-examine under s 38
  • Whether the absence of a trial objection to the judge's direction to the jury engaged r 4 of the Criminal Appeal Rules

Decision

Ground 1: Grant of leave to cross-examine. Grove J, with whom the other judges agreed, held that the trial judge's ruling granting leave under s 38 was not erroneous. The relevant portions of Ms Montgomery's evidence were, on any proper assessment, unfavourable to the Crown, and the preconditions for granting leave were satisfied.

Ground 2: Informing the jury of the "unfavourable" finding. The trial judge told the jury that he had found Ms Montgomery's evidence unfavourable to the Crown in a particular respect and that leave had therefore been granted to cross-examine her on certain limited areas. Grove J held there was neither error of law nor unfairness in that explanation. The Court added a note of caution, however: where a ruling is made under s 38, there is no obligation to inform the jury of the detail, and if a judge does choose to comment, care must be taken to avoid any suggestion that the mere making of the ruling reflects adversely on the witness's creditworthiness.

Ground 3: No warning about cross-examination evidence. The Court held there is no legal requirement to warn the jury about evidence adduced following a grant of leave to cross-examine under s 38. The fact that a witness is cross-examined does not, of itself, render that witness's evidence potentially unreliable. The trial judge had clearly directed the jury that they were the sole determiners of fact and that it was for them to decide what evidence they accepted, rejected, or acted upon.

Rule 4 of the Criminal Appeal Rules. Spigelman CJ added observations on the scope of r 4, which ordinarily precludes a ground of appeal based on a direction or omission to direct where no objection was taken at trial. No objection had been taken to the judge's comments to the jury on the s 38 ruling. The Chief Justice confirmed that the word "direction" in r 4 is not limited to formal jury instructions given during a summing-up. It encompasses any formal explanation by the judge to the jury about the course of the trial, and should be construed broadly.

Orders Made

  • Extension of time for lodging the appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 38 of the Evidence Act 1995, leave to cross-examine a party's own witness is properly granted where parts of that witness's evidence are unfavourable to the party who called them; the Court of Criminal Appeal confirmed that the trial judge's assessment in this case was not erroneous.
  • Where a trial judge elects to explain to the jury that leave has been granted under s 38, there is no obligation to provide that explanation, and any comment should be framed carefully to avoid implying that the grant of leave is itself a reflection on the witness's credibility.
  • No legal requirement exists for a judge to warn the jury about evidence given by a witness who has been cross-examined by the party who called them; cross-examination alone does not make evidence potentially unreliable within the meaning of s 165 of the Evidence Act 1995.
  • The word "direction" in r 4 of the Criminal Appeal Rules extends beyond formal summing-up instructions to include any formal explanation given by a judge to the jury about the conduct of the trial; a failure to object to such an explanation at trial may therefore engage the rule.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed the significance of r 4 for the proper administration of criminal justice, citing the body of authority summarised in R v Button & Griffen (2002) 129 A Crim R 242.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 38 (unfavourable witnesses), s 165 (unreliable evidence warnings)
- Criminal Appeal Rules, r 4

Cases
- R v Button & Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242