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Court of Criminal Appeal 16 July 2010

Morris v R

[2010] NSWCCA 152

Sexual offences
CRIMINAL LAW

Citation: Morris v R [2010] NSWCCA 152
Court: New South Wales Court of Criminal Appeal
Date: 16 July 2010
Judge(s): McClellan CJ at CL, Buddin J, Barr AJ

Background

The appellant was convicted in the District Court of five counts of sexual assault and one count of detaining for advantage, all against a single complainant. A central factual contest emerged during the trial concerning a video recording on a mobile phone, which was relevant to whether one of the alleged sexual acts had in fact been consensual.

The defence cross-examined the complainant about the video and intimated that it would call an expert to address whether the date displayed on the phone recording was reliable. The Crown, relying on that indication, did not object to the tender of the phone and did not call its own expert during its case. When the defence ultimately closed its case without calling an expert, the Crown applied for leave to reopen to call expert evidence on the mobile phone and its date-recording capabilities.

The trial judge granted that application, finding that special and exceptional circumstances justified allowing the Crown to reopen. The defence opposed the application and, after the Crown's expert gave evidence, called its own expert in response. The appellant was convicted on all counts and appealed to the Court of Criminal Appeal on the sole ground that the trial judge erred in allowing the Crown to reopen its case.

  • Whether the trial judge erred by allowing the Crown to reopen its case after the defence had closed, in circumstances where the Crown had not called the relevant expert evidence during its own case.
  • Whether the trial judge misconstrued the applicable common law principles governing an application by the Crown to reopen.
  • Whether, even if there was error, any such error resulted in a substantial miscarriage of justice warranting a new trial.

Decision

The Court of Criminal Appeal accepted that the trial judge had erred in granting the Crown's application to reopen. The applicable principle requires "very special or exceptional" circumstances before a court will allow the prosecution to reopen its case. The Court found that the trial judge had not correctly applied this standard and should not have granted the application in the circumstances.

However, the Court declined to allow the appeal on the basis that no substantial miscarriage of justice had occurred. The appellant himself had accepted that the Crown's expert evidence was relevant and admissible, and that he had been able to call his own expert in response. His counsel did not suggest there had been any practical inability to meet the Crown's expert evidence.

The Court reasoned that even if the matter had proceeded in the correct order, the appellant would have called his expert during the defence case in any event. The sequence in which the expert evidence was ultimately ventilated, at the close of all evidence rather than in the conventional order, did not cause any significant prejudice. The Crown case as a whole was described as compelling.

The Court was satisfied that the evidence proved the appellant's guilt beyond reasonable doubt, and that if a new trial were ordered, the expert evidence would inevitably be admitted. On that basis, all three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the common law test for allowing the Crown to reopen its case requires "very special or exceptional" circumstances, and found that the trial judge erred by granting the application without correctly applying that standard.
  • Finding error in the conduct of a trial does not automatically result in a successful appeal. Under the Criminal Appeal Act 1912, an appeal will not succeed where the Crown satisfies the court that no substantial miscarriage of justice has actually occurred, meaning the appellant did not lose a real chance of acquittal.
  • Where an appellant accepts that impugned evidence was relevant and admissible, and that he was able to and did respond to it effectively at trial, the argument that the irregularity caused material prejudice is significantly weakened.
  • In dismissing the appeal, the Court applied the principle drawn from Weiss v The Queen (2005) 224 CLR 300 and related authorities that a new trial will not be ordered where the court is satisfied the admitted evidence proved guilt beyond reasonable doubt.
  • The timing of expert evidence at trial, specifically that it was heard at the close of all evidence rather than earlier in the conventional sequence, was not found to constitute sufficient prejudice to vitiate the verdict where the jury still had the benefit of counsel's addresses and judicial directions on the point.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)

Cases:
- Kessing v R [2008] NSWCCA 310
- R v Chin (1984-1985) 157 CLR 671
- R v Kanaan [2005] NSWCCA 385
- Rend v R [2006] NSWCCA 41
- Shaw v R (1952) 85 CLR 365
- Weiss v The Queen (2005) 224 CLR 300