Citation: DJF v R [2011] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 10 February 2011
Judges: Giles JA, Adams J, RA Hulme J
Background
The appellant was convicted in June 2009 of four counts of sexual intercourse with a child under ten years of age and one count of indecent assault against the same complainant. The offences were alleged to have occurred in 1998 and during a later period. The trial was brief, concluding within two days.
The appellant was sentenced to nine years' imprisonment with a non-parole period of six years for the sexual intercourse offences, with a concurrent two-year fixed term for the indecent assault. He appealed against both his convictions and his sentence.
Two aspects of the Crown Prosecutor's closing address formed the core of the appeal. First, the prosecutor made statements about the appellant's wife not giving evidence. Second, the prosecutor invited the jury to draw inferences from the appellant's behaviour on the morning after one of the alleged incidents, in a way that arguably invited the jury to treat that behaviour as evidence of a guilty conscience.
Legal Issues
- Whether the Crown Prosecutor's comments about the appellant's wife not giving evidence contravened the prohibition on commenting on a spouse's failure to testify under s 20(3) of the Evidence Act 1995
- Whether any such contravening comment caused a miscarriage of justice, and whether any miscarriage was limited to a particular charge
- Whether the Crown Prosecutor's address impermissibly invited the jury to use the appellant's post-incident behaviour as evidence of consciousness of guilt, without the careful directions required by Edwards v The Queen and Zoneff v The Queen
- Whether leave to raise grounds not objected to at trial should be granted under the applicable rule
Decision
Comment on the spouse's failure to give evidence: The Court held that the Crown Prosecutor's remarks amounted to a comment on the failure of the appellant's wife to give evidence, contrary to s 20(3) of the Evidence Act 1995. The prosecutor reminded the jury that the wife had declined to make a statement on legal advice and suggested the jury "may have expected" she would have been called. This framing extended beyond explaining the Crown's own decision not to call her and implicitly pointed to the defence's failure to call her as well. The Court rejected the Crown's argument that the comment was merely a deflection of a Jones v Dunkel inference or was limited to one charge.
The Court further rejected the Crown's submission that any miscarriage of justice was confined to the charge relating to one incident. The wife could potentially have given relevant evidence on other charges, the comment was not restricted to a single incident in its terms, and the complainant's credibility was central to all counts. Illicit support for the Crown's case on one charge could not be cleanly quarantined from the others.
Consciousness of guilt directions: The Court held there was at least a real risk that the jury understood the Crown Prosecutor's address as an invitation to treat the appellant's post-incident behaviour, described by the complainant's mother as odd, as evidence of a guilty conscience. The prosecutor had pointed to the appellant showing the mother where children slept and directing her attention to various features of the property, concluding that he appeared to be trying to preoccupy her. No directions were given, as required by Edwards and Zoneff, to address the need for caution and to identify alternative innocent explanations for the conduct. The Crown itself accepted it was "highly unlikely" the trial judge would have permitted the evidence to be used as consciousness of guilt evidence had the matter been raised. The failure to seek or give appropriate directions amounted to a miscarriage of justice.
Practical note on "why would the complainant lie": Giles JA observed that defence counsel's outline of a submission concerning a "why would the complainant lie" argument was made partly in the jury's presence. His Honour noted that even outlining matters on which further directions are sought should be done in the absence of the jury.
Orders Made
- Time for bringing the appeal extended to 19 August 2010
- Appeal upheld
- Convictions quashed
- New trial ordered
Key Takeaways
- Under s 20(3) of the Evidence Act 1995, a prosecutor must not comment on a failure by an accused person's spouse to give evidence; the Court of Criminal Appeal confirmed that "comment" includes any statement that directly or indirectly suggests the spouse could have given evidence and did not do so, regardless of whether the comment is framed as explaining the Crown's own conduct.
- A contravening comment about an absent spouse cannot necessarily be confined in its effect to one charge where the spouse could have given evidence relevant to multiple charges and where the complainant's credibility is common to all counts.
- Where a prosecutor invites a jury to treat post-incident behaviour as evidence of consciousness of guilt, careful directions are required in accordance with Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234, including directions addressing alternative innocent explanations for the conduct.
- Failure by both prosecution and defence to identify and address the need for such directions does not preclude a miscarriage of justice finding, particularly where neither party appreciated the applicable legal requirements at the time.
- Submissions about matters requiring further directions from the trial judge should be made in the absence of the jury to avoid inadvertently placing matters before them that the judge ultimately declines to direct upon.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 279(1)(d)(i)
- Evidence Act 1995 (NSW), ss 18, 20 and 23
Cases
- Edwards v The Queen (1993) 178 CLR 193
- Jones v Dunkel (1959) 101 CLR 298
- R v Ho (2002) 130 A Crim R 545
- R v Nguyen (2001) 118 A Crim R 479
- R v Villar; R v Zugecic [2004] NSWCCA 302
- Zoneff v The Queen (2000) 200 CLR 234