Citation: WC v R [2012] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 25 October 2012
Judge(s): McClellan CJ at CL
Background
The applicant was being tried in the District Court on three counts of indecent assault against a single complainant. As is common in such proceedings, the complainant's evidence was drawn from a Joint Investigation Response Team interview, which included references to alleged sexual conduct by the applicant on occasions beyond those charged.
The Crown sought to tender that additional material as context evidence. The prosecution's purpose was to explain why the complainant had not rebuffed the applicant during the charged incidents. The trial judge accepted the evidence was relevant for that purpose but excluded it, finding its probative value was limited and that the risk of the jury using it on an improper or emotional basis was real and considerable.
The trial continued to the defence closing address. Defence counsel then submitted to the jury that the complainant's failure to say anything during the alleged assaults was "bizarre" or "unusual," inviting the jury to doubt her credibility on that basis. After the lunch adjournment, the trial judge raised whether the trial remained fair in those circumstances and ultimately discharged the jury.
Legal Issues
- Whether the trial judge erred in discharging the jury after defence counsel's closing address exploited the absence of the excluded context evidence
- Whether the trial could instead have been saved by judicial directions to the jury
Decision
McClellan CJ at CL dismissed the application for leave to appeal, finding the trial judge was fully entitled to discharge the jury. The judge reasoned that when the Crown sought to tender the context evidence at an early stage, it was doing precisely what the defence closing address later demonstrated was necessary: providing an explanation for the complainant's conduct. The trial judge, in excluding the evidence, would not have contemplated that defence counsel would then build a credibility attack on the very absence of that explanation.
The court was unpersuaded by the applicant's submission that both sides were simply entitled to address on whatever evidence remained after the exclusion ruling. That submission was rejected without hesitation. The difficulty was that defence counsel had placed the complainant's silence during the alleged assaults squarely before the jury as something they should find implausible, while the jury lacked any means of assessing that submission properly.
The court also rejected the suggestion that appropriate judicial directions could have remedied the problem. The only effective response to the defence submission was for the jury to have a full understanding of the broader relationship between the parties, enabling them to evaluate the "bizarre behaviour" argument in proper context. No direction short of that could have adequately addressed the unfairness that had arisen.
Orders Made
• Application for leave to appeal rejected
Key Takeaways
- A trial judge retains the power to revisit a prior evidentiary ruling and discharge a jury where, as the trial unfolds, the exclusion of evidence has created an unfairness that could not have been anticipated at the time of the ruling.
- Where context evidence is excluded but the opposing party then mounts a credibility attack premised on the absence of that context, the trial may become fundamentally unfair.
- Judicial directions are not always a sufficient remedy for unfairness arising mid-trial. In this case, the Court of Criminal Appeal was satisfied that no direction could substitute for the jury's full understanding of the relationship context.
- Refusing the application for leave to appeal, the Court affirmed that the trial judge's decision to discharge the jury was a proper exercise of the court's inherent responsibility to ensure a fair trial.
- An accused's successful objection to Crown evidence does not create an unqualified entitlement to exploit the resulting evidentiary gap in submissions to the jury.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5G (application for leave to appeal to the Court of Criminal Appeal)
Cases cited: None identified in the provided judgment text.