Citation: AP v R [2013] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 16 August 2013
Judge(s): Leeming JA; RA Hulme J; Button J
Background
The appellant was convicted by a jury in August 2011 on three counts of sexual intercourse with a child under ten, contrary to s 66A of the Crimes Act 1900. He was acquitted on a number of other charges arising from the same indictment. A head sentence of three years' imprisonment with an 18-month non-parole period was imposed on each conviction, with staggered commencement dates. By the time the appeal was heard, the appellant had already been admitted to parole.
The charges arose from alleged conduct in 2006 when the appellant was fifteen to sixteen years old and the complainant was four to five years old. At trial, the Crown relied heavily on the complainant's evidence and DNA evidence linking the appellant to the complainant's clothing. The appellant denied the allegations, gave evidence in his own defence, called a DNA expert, and challenged both the reliability of the complainant's evidence and the methodology underlying the Crown's DNA analysis.
At the close of the trial judge's summing up, defence counsel was asked whether he wanted a summing up on the facts. He declined. No objection was raised at any point concerning the adequacy of the summing up.
Legal Issues
- Whether the trial judge failed to put the defence case to the jury in the summing up.
- Whether leave to appeal was required where no objection had been taken at trial, and whether leave should be granted in the circumstances.
Decision
Leave to appeal was required on two grounds. First, there were questions about the timeliness of the notice of appeal, though the Crown did not oppose a short extension and the Court treated this as a minor issue. Second, and more significantly, r 4 of the Criminal Appeal Rules requires leave where no objection to the summing up was raised at trial. That requirement was directly engaged here, given that defence counsel had explicitly declined an invitation to address the facts and made no complaint about the summing up at the time.
Leeming JA (with whom Hulme and Button JJ agreed) examined the summing up in detail. His Honour found that the three essential elements of the defence case had in fact been put to the jury: the denial of the Crown case by the appellant and his sister; the caution required before relying on a single witness's evidence; and the significant doubts raised by the defence's DNA evidence. The trial judge had directed the jury on innocent transfer of DNA, on the need to consider the defence expert's evidence, and on the requirement that inferences be the only rational inference available. These were the very planks of the defence case.
The Court distinguished this case from Wong v R [2009] NSWCCA 101, where there had been no attempt at all to put the defence case to the jury. Here, the substance of the defence case had been conveyed in large measure. The failure to object at trial was treated as a reliable indicator that the summing up had been fair and adequate, consistent with established authority. No error going to the root of the trial was identified, and no convincing basis was shown for why a complaint had not been made at the time.
Orders Made
• Leave to appeal be refused
Key Takeaways
- Leave to appeal is required under r 4 of the Criminal Appeal Rules where no objection to the adequacy of a summing up was raised at trial, and that requirement carries real procedural weight.
- A failure to object at the close of a summing up is treated in NSW as a generally reliable indicator of its fairness and adequacy, following ITA [2003] NSWCCA 174, Tekely v R [2007] NSWCCA 75, and ARS v R [2011] NSWCCA 266.
- Refusing leave, the Court of Criminal Appeal confirmed that the Wong principle applies only where there was no attempt at all to put the defence case; a summing up that covers the substance of the defence case in large measure will not be set aside on this ground.
- No error going to the root of the trial was established, and no real possibility of injustice was demonstrated on the material before the Court.
- The practical consequence of delayed appeals is illustrated here: because the appeal process took until after the appellant had completed his non-parole period and been released on parole, even a successful challenge to conviction would have had limited practical effect on his liberty.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66EA, 61M(2)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Rules, r 4
Cases:
- ARS v R [2011] NSWCCA 266
- Condon (1995) 83 A Crim R 335
- FP v R [2012] NSWCCA 182
- ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- R v Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467
- R v Meher [2004] NSWCCA 355
- RPS v R [2000] HCA 3; (2000) 199 CLR 620
- Tekely v R; Nagle v R [2007] NSWCCA 75
- Wong v R [2009] NSWCCA 101