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Court of Criminal Appeal 15 April 2010

GDD v R; NJC v R

[2010] NSWCCA 62

Sexual offencesPublic order & justice offences
CRIMINAL LAW AND PROCEDURE TRIAL ADDRESS BY CROWN PROSECUTOR ALLEGED MISSTATEMENTS OF FACT HELD (GROVE J AND SIMPSON J

Citation: GDD v R; NJC v R [2010] NSWCCA 62
Court: Court of Criminal Appeal, New South Wales
Date: 15 April 2010
Judges: Grove J, Simpson J, RA Hulme J (Grove J and Simpson J in the majority; RA Hulme J dissenting)

Background

The two appellants, a male (GDD) and a female (NJC), were jointly tried and convicted in the District Court of aggravated sexual assault in company under the Crimes Act 1900. NJC was the sister of the complainant. The Crown case was that NJC pressured the complainant to have sex with GDD, using threats involving embarrassing photographs and the safety of the complainant's boyfriend, and that GDD physically overpowered the complainant and had intercourse with her without consent.

Both appellants gave evidence at trial. GDD's evidence was that prior consensual sexual activity had taken place between himself, NJC and the complainant on multiple earlier occasions, and that the events on the night in question were also consensual. The jury convicted both on the aggravated sexual assault count but acquitted them on a more serious charge that included deprivation of liberty.

The central issue on appeal was the conduct of the Crown Prosecutor during her final address to the jury. Both appellants contended that the address contained misstatements of fact, departures from the Crown case as it had been presented, inapt submissions, and assertions of personal opinion that, individually or cumulatively, caused a miscarriage of justice.

  • Whether the Crown Prosecutor's final address to the jury caused a miscarriage of justice through misstatements of fact, departures from the Crown case, inappropriate submissions, and expressions of personal opinion.
  • Whether the trial judge erred in refusing to discharge the jury at the close of the Crown Prosecutor's address.
  • Whether the trial judge's corrective directions to the jury were sufficient to remedy the problems in the Crown Prosecutor's address.
  • Whether the verdicts were unreasonable or unsupported by the evidence.

Decision

The majority (Grove J and Simpson J) found that the Crown Prosecutor's address contained multiple identifiable defects. These included misstatements of the evidence, submissions that departed from the Crown case as actually presented at trial, and assertions of personal opinion. Taken individually, some of these errors might have been capable of correction. Considered cumulatively, however, they created a risk that the jury was misled and that the trial was fundamentally unfair.

The majority further found that the trial judge's attempts to correct the problems, while made in good faith, were insufficient in some instances to repair the damage. The combination of the defects in the address and the inadequacy of some corrective directions meant that a miscarriage of justice had occurred. On that basis, the majority allowed the appeals against conviction.

The majority declined to find that the verdicts were unreasonable or unsupported by the evidence, so grounds based on that argument were not upheld. The sentence appeal brought by NJC was not resolved as a primary basis for the decision, given the outcome on conviction.

RA Hulme J dissented. His Honour considered that, when the prosecutor's address was assessed as a whole and in the context of the trial, the corrective action taken by the trial judge was adequate. He placed weight on the fact that counsel for both appellants did not raise further objection after the judge indicated the corrections he intended to make, treating the absence of complaint as a meaningful indicator that those involved in the trial did not perceive a continuing risk of unfairness.

Orders Made

  • In each appeal, appeal allowed.
  • Conviction and sentence quashed.
  • New trial ordered.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the cumulative effect of a Crown Prosecutor's errors in a closing address can constitute a miscarriage of justice, even where individual errors might not each, standing alone, be fatal to the conviction.
  • A trial judge's corrective directions can remedy problems arising from an improper Crown address, but only where those directions are sufficient in scope and strength; partial or inadequate corrections will not necessarily save the conviction.
  • Crown prosecutors hold a duty to address the jury fairly: misstatements of evidence, departures from the Crown case as presented, and expressions of personal opinion are each recognised categories of impermissible conduct in a closing address.
  • The dissent illustrates that the absence of renewed objection by defence counsel after a judge signals corrective action is a factor an appellate court may consider when assessing the perceived risk of unfairness, although it is not determinative.
  • Appellate courts must exercise caution when assessing the impact of prosecutorial misconduct from the written record alone, given the difficulty of gauging the atmosphere of the trial and the significance of counsel's silence in that setting.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61JA(1)

Cases:
- Causevic v R [2008] NSWCCA 238
- Gonzales v R [2007] NSWCCA 321
- Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309
- Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659
- M v The Queen (1995) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227
- R v Liristis (2004) 146 A Crim R 547
- R v McCullough (1982) 6 A Crim R 274
- R v Roulston [1976] 2 NZLR 644
- R v Rugan (2001) 122 A Crim R 1
- Whitehorn v The Queen (1983) 152 CLR 657