Citation: PFC v R [2011] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 15 December 2011
Judge(s): Giles JA, Hoeben J, Hall J
Background
The appellant was tried before Norrish DCJ in the District Court on an indictment containing 29 counts spanning conduct between 1997 and 2009. The counts included 19 charges of sexual assault or acts of indecency against six young male complainants, three counts relating to child pornography, and seven counts of doing acts with intent to pervert the course of justice. The trial ran for 27 days, and the jury returned guilty verdicts on 23 of the 28 remaining counts. The appellant was subsequently sentenced to a total term with a non-parole period of 10 years and 9 months.
The appellant, who was unrepresented on the conviction appeal, had met the complainants through family connections or his son's social circle. The Crown's case at trial was that he had groomed the complainants over extended periods, in some instances taking on mentoring or guardianship roles within their families. Several counts of perverting justice related to alleged attempts by the appellant to induce complainants to give false evidence in earlier related proceedings.
The conviction appeal was heard on 14 and 24 October 2011. It raised nine distinct grounds, including challenges to trial counsel's competence, the admissibility and effect of fresh evidence, alleged prosecutorial misconduct, errors in the trial judge's summing-up, inconsistency of verdicts, and a contention that the verdicts were unsafe or unsatisfactory.
Legal Issues
- Whether trial counsel's conduct was so deficient as to amount to a miscarriage of justice
- Whether fresh evidence, if admitted, would have affected the trial's outcome
- Whether the appellant suffered a miscarriage due to duress or medication affecting his ability to give proper instructions during trial
- Whether errors by the Crown Prosecutor in closing address caused a miscarriage of justice
- Whether misdirections in the trial judge's summing-up miscarried justice
- Whether the guilty verdicts were inconsistent with the not-guilty verdicts returned by the jury
- Whether the verdicts were unsafe or unsatisfactory, in that no reasonable jury could have returned them
Decision
The Court of Criminal Appeal rejected each of the nine grounds of appeal in turn and dismissed the appeal.
On the competence of trial counsel, the Court examined specific decisions made during the trial and found no departure from the standard required. The relevant standard requires that counsel's conduct not result in the accused being deprived of a real chance of acquittal. The Court concluded that the decisions made, including tactical choices about which witnesses to call and how to conduct cross-examination, fell within the range of reasonable professional judgment. No miscarriage arose from counsel's conduct.
On the fresh evidence ground, the Court applied the established test that fresh evidence must be credible, directly relevant, and, if accepted, capable of producing a different result. The proposed fresh evidence did not meet that threshold, and the application to adduce it was refused. On the duress and medication ground, the Court found no sufficient factual basis for concluding that the appellant's capacity to give instructions had been materially compromised during the trial.
Regarding the Crown Prosecutor's closing address and the trial judge's summing-up, the Court found that, while some aspects attracted criticism, no errors were of a kind or degree that would have occasioned a miscarriage of justice. On the inconsistency argument, the Court noted that acquittals on some counts do not of themselves render guilty verdicts on other counts inconsistent: different complainants' evidence raised different factual questions for the jury. Finally, on the unsafe and unsatisfactory verdicts ground, the Court reviewed the evidence and held that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on each count on which he was convicted.
Orders Made
- The appeal is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that trial counsel's tactical decisions will not amount to a miscarriage of justice unless the conduct deprived the accused of a real chance of acquittal, a high threshold that was not met here.
- Fresh evidence applications require the proposed evidence to be credible, directly relevant, and capable of producing a different verdict; evidence that does not satisfy all limbs of that test will not be admitted.
- Acquittals on some counts within a multi-complainant trial do not automatically render guilty verdicts on other counts legally inconsistent, because each complainant's evidence raises discrete factual issues for the jury to assess.
- Where a jury has seen and heard the complainants give their evidence, an appellate court will be slow to substitute its own assessment; the Court found the convictions were open on the evidence as a whole.
- Alleged errors in a Crown Prosecutor's address or in a trial judge's summing-up will only warrant intervention if they are of sufficient gravity to have caused a miscarriage of justice, not merely because they are imperfect.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M(1), 66C, 66D, 91G, 319
- Criminal Appeal Act 1912 (NSW)
Cases:
- M v The Queen (1994) 181 CLR 487
- R v Apostilides (1984) 154 CLR 563
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Gallagher (1986) 160 CLR 392
- Craig v The King (1933) 49 CLR 429
- Richardson v The Queen (1974) 131 CLR 116
- SKA v The Queen [2011] HCA 13
- R v Presser [1958] VR 45
- R v Abusafiah (1991) 24 NSWLR 531
- Monteiro v R [2011] NSWCCA 113
- GAR v R (No 1) [2010] NSWCCA 163
- Dungay v R [2010] NSWCCA 82
- Jovanovski v Director of Public Prosecutions (NSW) [2009] NSWCCA 284
- Clarkson v R (2007) 171 A Crim R 1
- R v Abu-Chabake [2004] 149 A Crim R 417
- Ignjatic v R (1993) 68 A Crim R 333