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Court of Criminal Appeal 15 November 2010

RJ v R

[2010] NSWCCA 263

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT EVIDENCE CRIMINAL LAW EVIDENCE COMPETENCE OF PERSON TO TAKE OATH

Citation: RJ v R [2010] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 15 November 2010
Judge(s): Campbell JA, Latham J, Price J

Background

The appellant was convicted in the District Court of four sexual assault offences against a child who was seven years old at the time of the alleged incidents. The complainant was the only witness to give direct evidence of the offending conduct. Her evidence was given on an unsworn basis, as the trial judge formed the view that sworn evidence was not appropriate given her age.

The appellant denied the allegations and gave evidence in his own defence. He also called character witnesses and pointed to evidence that certain items mentioned in the complainant's account, including pyjamas and bunk beds, had been purchased after the dates on which the offences were alleged to have occurred.

On appeal, the appellant raised three grounds: that the unsworn evidence of the complainant was received without following the mandatory procedure set out in the Evidence Act 1995; that the Crown prosecutor's remarks about the appellant's good character evidence were prejudicial; and that the trial judge's directions to the jury on character evidence were inadequate or unfair.

  • Whether the trial judge committed a fundamental procedural error by receiving the complainant's unsworn evidence without first going through the steps required by the Evidence Act 1995, giving rise to a miscarriage of justice
  • Whether leave was required to raise grounds not objected to at trial, and what role the absence of any explanation for that omission plays in the exercise of that discretion
  • Whether the Crown prosecutor's address to the jury on the topic of the appellant's good character evidence was so prejudicial as to constitute a miscarriage of justice
  • Whether the trial judge's directions to the jury on character evidence were inadequate or prejudicial to the appellant

Decision

Ground 1: Receiving unsworn evidence without proper procedure

The Court found that the trial judge had not followed the procedures required by the Evidence Act 1995 before permitting the complainant to give unsworn evidence. The transcript showed the judge formed a view about the complainant's competence based only on comments from the Crown prosecutor, without conducting the proper inquiry the Act requires. The Court held this amounted to a fundamental defect going to the root of the trial, producing a miscarriage of justice. This ground succeeded.

Ground 2: Crown prosecutor's remarks on character evidence

The Court found that, read in its overall context, the prosecutor's address did not produce a miscarriage of justice. The passages relied upon by the appellant's counsel were qualified by the surrounding remarks in the prosecutor's speech. Leave to raise this ground was required under Rule 4 of the Criminal Appeal Rules because no objection had been raised at trial, and no explanation was offered for that omission. Given both the absence of explanation and the absence of any miscarriage, leave was refused.

Ground 3: Trial judge's directions on character evidence

The Court held that the trial judge's direction to the jury that good character evidence was "not determinative of the issue" was accurate. Character evidence does not of itself provide a defence, and the thrust of the judge's directions was that such evidence was a factor to be weighed alongside all the other evidence. No miscarriage of justice arose. Again, leave was required and refused for the same reasons as Ground 2: no objection had been raised at trial and no explanation was put forward for that failure.

Orders Made

  • Appeal allowed
  • Conviction in the court below set aside
  • Matter remitted to the District Court for a new trial

Key Takeaways

  • A fundamental procedural defect in the reception of a child's unsworn evidence, specifically the failure to follow the steps required by the Evidence Act 1995 before admitting such evidence, can constitute a miscarriage of justice sufficient to quash a conviction and order a new trial.
  • Under Rule 4 of the Criminal Appeal Rules, leave is required to raise grounds on appeal that were not objected to at trial. The reason why the matter was not raised at trial is an important consideration in deciding whether to grant leave.
  • Where no explanation is offered for a failure to object at trial, and no miscarriage of justice is established, the Court of Criminal Appeal is unlikely to grant leave to agitate those grounds on appeal.
  • A direction to the jury that good character evidence is "not determinative of the issue" of guilt or innocence is accurate and does not of itself render such a direction inadequate or prejudicial to an accused.
  • The overall context of a Crown prosecutor's closing address is relevant when assessing whether a particular passage was so prejudicial as to cause the trial to miscarry; isolated passages are not assessed in a vacuum.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 12, 13
- Criminal Procedure Act 1986 (NSW), s 291
- Criminal Appeal Rules, Rule 4
- Evidence Amendment Act 2007

Cases
- Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
- Pease v R [2009] NSWCCA 136
- R v Brooks (1998) 44 NSWLR 121
- R v Fitzsimmons (NSWCCA, 15 June 1998, unreported)
- R v JTB [2003] NSWCCA 295
- R v RAG [2006] NSWCCA 343
- R v Trimboli (1979) 1 A Crim R 73
- R v Wedd [2000] WASCA 273
- RA v R [2007] NSWCCA 251
- Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- Tripodina v R; Morabito v R (1988) 35 A Crim R 183