Citation: Mark McKey v Regina [2012] NSWCCA 1
Court: Court of Criminal Appeal, NSW
Date: 1 February 2012
Judges: Whealy JA, Hislop J, Latham J
Background
The appellant was convicted after a jury trial on one count of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C of the Crimes Act 1900. He received a three-year sentence but did not appeal against sentence. The alleged offending occurred at a private residence in Moree, where both the appellant and the complainant were staying ahead of a wedding at which the appellant served as best man.
After the complainant disclosed the allegation to her sister and brother-in-law, those family members attempted to contact the appellant for an explanation. The appellant's responses were limited: he deferred the initial call, later sent a text message indicating he would not be believed, and made no further contact with the family. At trial, the appellant denied any sexual activity had occurred and explained his silence on the advice of his police officer sister.
The jury's verdict reflected acceptance of the complainant's account, though the jury was not satisfied beyond reasonable doubt that the complainant had not consented or that the appellant knew she was not consenting. As a result, the conviction was on the alternative, lesser charge. All three grounds of appeal concerned the trial judge's directions regarding the appellant's post-offence conduct.
Legal Issues
- Whether the trial judge erred in failing to adequately direct the jury on the significance of the appellant's silence or inaction when allegations were put to him
- Whether the trial judge erred in failing to adequately direct the jury on the circumstances in which that silence or inaction could be used as evidence of consciousness of guilt
- Whether the trial judge erred in failing to adequately direct the jury regarding the prosecutor's submission that the appellant's silence should lead the jury to discount his evidence entirely
Decision
The Court of Criminal Appeal, in a judgment delivered by Latham J (with Whealy JA and Hislop J agreeing), allowed the appeal on grounds 1 and 2 without needing to address ground 3. The central question was whether the Crown's cross-examination and closing address had invited the jury to treat the appellant's post-offence silence as evidence of consciousness of guilt. The Court concluded they had, and that this required specific directions from the trial judge.
The Crown had argued that the post-offence conduct evidence was used only to attack the appellant's credibility, not to establish consciousness of guilt. The Court rejected that characterisation. The structure of the cross-examination, and in particular the final question to the appellant during that sequence ("You did nothing about it sir because the allegations are true"), made clear that the jury was being invited to draw an inference of guilt from the appellant's failure to protest his innocence more forcefully.
Once that inference was in play, the trial judge was obliged to direct the jury carefully. At minimum, the jury needed to be told that before drawing an inference of consciousness of guilt from the appellant's conduct, they had to consider whether that inference was reasonable and justified, and had to exclude any alternative inference inconsistent with guilt. The most obvious such alternative was that the appellant acted on his sister's advice to say nothing.
The Court noted that, applying the principles in Edwards v The Queen (1993) 178 CLR 193, the conduct relied upon had not been precisely identified, and it was not adequately explained how the failure to categorically deny the offence to the family members revealed the appellant's knowledge of, or guilt for, the offence. Given the absence of appropriate directions, the Court found a reasonable possibility that the verdict was affected by impermissible use of the silence evidence. Because the appellant had already served the non-parole period, no new trial was ordered.
Orders Made
- Appeal against conviction allowed
- Conviction quashed and sentence imposed on 8 October 2009 set aside
- Verdict of acquittal entered
Key Takeaways
- Where cross-examination and closing address invite the jury to treat a defendant's post-offence silence as evidence of consciousness of guilt, the trial judge is obliged to give specific directions on how that inference may be drawn and what limits apply to it.
- A conviction will be quashed where there is a reasonable possibility the jury's verdict was affected by the absence of such directions, even if the Crown characterised the silence evidence as going only to credibility.
- Before a jury may infer consciousness of guilt from a defendant's silence or inaction, the jury must be directed to exclude any alternative inference inconsistent with guilt, including explanations for the silence grounded in advice received or other circumstances.
- Under the principles affirmed in Edwards v The Queen, conduct relied on as an implied admission must be precisely identified, along with the circumstances said to give it that significance; it is insufficient to invite the jury to treat vague or ambiguous inaction as acknowledgment of guilt.
- Where an appellant has already served the non-parole period of a sentence that is subsequently quashed, the Court of Criminal Appeal may enter a verdict of acquittal rather than order a new trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66C
Cases
- Edwards v The Queen (1993) 178 CLR 193
- R v MMJ [2006] VSCA 226
- R v Nguyen [2001] VSCA 1