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Court of Criminal Appeal 10 December 2010

CC v Regina

[2010] NSWCCA 337

Sexual offences
CRIMINAL LAW CONSCIOUSNESS OF GUILT

Citation: CC v Regina [2010] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 10 December 2010
Judges: Simpson J, Blanch J, Garling J

Background

The appellant was convicted in the District Court on four counts of aggravated indecent assault and two counts of sexual intercourse with a child under ten years of age. The offences were alleged to have occurred between January and September 2006, when the appellant was in a de facto relationship with the complainant's mother. He was sentenced to a total term of 12 years with a non-parole period of eight years.

Two pieces of evidence were central to the Crown case. First, the complainant sent her mother a text message during one of the alleged incidents, stating the appellant was touching her in places she did not want to be touched. Second, a meeting took place at the home of the appellant's stepsister, during which the appellant was described as upset and crying, nodding or shaking his head, and saying "Yes I know" in response to comments that he needed help.

The appellant was convicted across all counts at trial and appealed out of time. He argued the trial judge's summing up was fundamentally unbalanced and denied him a fair trial.

  • Whether the trial judge adequately put the defence case to the jury in the summing up
  • Whether the trial judge was required to give a "consciousness of guilt" direction (known as an Edwards direction) in relation to the meeting with the appellant's stepsister
  • Whether the combined deficiencies in the summing up rendered the trial unfair

Decision

The Court found that the summing up fell well short of the standard required. While the trial judge summarised the Crown's evidence in full, he addressed the defence case only selectively. On the critical text message, the judge referred to the appellant's account but did so in a manner that disparaged it rather than fairly presenting it to the jury. On the question of the complainant's credibility and the mother's credibility, both central to the defence, there was no reference in the summing up at all.

Regarding the meeting at the stepsister's home, the trial judge admitted that evidence as an admission and the Crown addressed it to the jury as such. However, the actual evidence fell short of a clear admission to any specific act: the appellant had been emotional, had nodded or shaken his head, and had made general comments about needing help. The Court held that a direction under Edwards v R (1993) 178 CLR 193 was warranted. Such a direction would have instructed the jury on the dangers of reasoning from conduct that might suggest guilt without constituting a direct admission. No such direction was given.

The Court applied the principle from R v Veverka (1978) 1 NSWLR 478 that an accused is entitled to have his case presented to the jury in the summing up in terms that enable the jury to comprehend and understand what the defence case actually is. The summing up in this trial did not meet that standard. The Court concluded the appellant was not afforded a fair trial and allowed the appeal.

Orders Made

  • Leave to appeal out of time granted
  • Appeal allowed
  • Conviction quashed
  • New trial ordered
  • Application for leave to appeal against sentence not necessary to determine

Key Takeaways

  • A trial judge who chooses to summarise the Crown's evidence in full is obliged to present the defence case with equivalent fairness; selectively addressing defence evidence, or characterising it dismissively, can render a summing up fatally unbalanced.
  • Under the principle in R v Veverka, an accused is entitled to have the defence case put to the jury through the summing up in terms that allow the jury to genuinely understand what that case is.
  • Where evidence of conduct (such as emotional behaviour at a meeting) could be interpreted as either an admission or merely as consciousness of guilt, a direction conforming with Edwards v R is required to assist the jury in evaluating that evidence safely.
  • The Court of Criminal Appeal found that the absence of any reference in the summing up to credibility challenges against the complainant and her mother was a significant omission, given how central those challenges were to the defence.
  • Quashing a conviction and ordering a new trial is the appropriate remedy where multiple deficiencies in a summing up cumulatively deny the accused a fair trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Criminal Procedure Act 1912 (NSW), s 161(1)

Cases
- Domican v The Queen (1992) 173 CLR 555
- Edwards v R (1993) 178 CLR 193
- Pemble v The Queen (1970) 124 CLR 107
- R v Veverka (1978) 1 NSWLR 478