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7
Court of Criminal Appeal 24 June 2014

Lyndon v R

[2014] NSWCCA 112

Sexual offences
CRIMINAL LAW APPEAL CONDUCT OF PROSECUTION CLOSING ADDRESS TO JURY PREJUDICIAL EFFECT CONSIDERED FAILURE BY DEFENCE TO OBJECT AT TRIAL

Citation: Lyndon v R [2014] NSWCCA 112
Court: Court of Criminal Appeal, NSW
Date: 24 June 2014
Judge(s): Basten JA; Button J; RS Hulme AJ

Background

The applicant lived next door to the grandmother of seven-year-old twin girls, TG and SG. On 26 December 2010, he offered to care for the children after their grandmother became distressed. The following day, both girls told their grandmother that the applicant had removed SG's pants and licked her genitals. Further allegations emerged that the applicant had touched SG's breasts and removed TG's pants and touched her genitals.

Five charges were laid: two counts of indecent assault involving TG, and two counts of indecent assault plus a charge of sexual intercourse with a child under ten involving SG. The jury convicted the applicant of one indecent assault charge (removing SG's pants) and the sexual intercourse charge, but acquitted him on the remaining three counts. He was sentenced to an effective term of six years with a three-year non-parole period.

The applicant sought leave to appeal his convictions on four grounds, alleging prosecutorial misconduct in closing address, failure to direct the jury on tendency evidence, unreasonable verdicts, and a miscarriage of justice caused by defence counsel's failure to call medical evidence about the applicant's ability to kneel.

  • Whether the prosecutor's closing address, which included references to his own experience assessing the credibility of child witnesses and implications that the accused had lied, caused a miscarriage of justice
  • Whether the trial judge erred by failing to warn the jury against using evidence of alleged acts against one child as tendency evidence regarding the other child
  • Whether the jury's verdicts were unreasonable or unsupported by the evidence, particularly given the possibility of concoction by the twins and the mixed pattern of acquittals and convictions
  • Whether defence counsel's failure to call available medical evidence about the applicant's back condition (relevant to his ability to kneel during intercourse, as described by the complainants) caused the trial to miscarry

Decision

Ground 1: Prosecutor's closing address. Basten JA, with Button J agreeing, found that while the prosecutor's references to personal experience with children giving evidence were inappropriate and capable of causing prejudice, no realistic possibility of prejudice arose when the address was read as a whole and in the context of the trial. Any suggestion that the accused had lied was too unclear to demonstrate a miscarriage of justice. RS Hulme AJ went further, describing the statements as "grossly improper" in putting before the jury what amounted to additional evidence and inadmissible opinion. Hulme AJ nonetheless agreed there was no miscarriage, noting that the absence of any objection from defence counsel at trial suggested the statements did not loom large in the address.

Ground 3: Tendency evidence direction. The Court refused leave to appeal on this ground. The prosecution had not sought to rely on the applicant's alleged acts involving one child as demonstrating a tendency to commit acts against the other. The trial judge had directed the jury to consider each offence separately and to be satisfied beyond reasonable doubt on each individual allegation. No direction about tendency evidence had been sought at trial.

Ground 4: Unreasonable verdicts. The Court dismissed this ground. The proposition that the twins' evidence was too unreliable to support convictions due to possible concoction was not maintainable, because the issue had not been raised at trial and no plausible explanation for concoction had been offered. The Court found the prosecution case provided a sufficient basis for conviction on the counts on which the jury found the applicant guilty, and that the verdicts were neither unreasonable nor unsupportable.

Ground 5: Failure to call medical evidence. The Court held that determining whether counsel's conduct produces a miscarriage of justice is an objective inquiry; accordingly, an affidavit from trial counsel explaining his reasons for not calling the medical evidence was inadmissible. Even on an objective assessment, the available medical evidence would only have confirmed that the applicant had a back injury in general terms. It would not have demonstrated that he was physically incapable of doing what the complainants described. No miscarriage of justice was established.

The applicant's post-hearing application to tender an audio recording of the prosecutor's closing address was also refused, given that no steps had been taken to obtain it until shortly before the hearing despite instructions having been given months earlier.

Orders Made

  • Leave to appeal refused on ground 3 (pursuant to Criminal Appeal Rules, r 4)
  • Ground 2 abandoned
  • Leave to appeal granted on grounds 1, 4, and 5
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a prosecutor's improper references to personal expertise in assessing child witnesses will not automatically cause a miscarriage of justice; the address must be evaluated as a whole, in the context of the entire trial.
  • Where defence counsel fails to object to problematic statements during a prosecutor's closing address, that omission is relevant evidence that the statements did not carry significant weight within the overall address.
  • The objective test governs whether counsel's conduct at trial amounts to a miscarriage of justice; evidence from trial counsel about the subjective reasons for their forensic decisions is inadmissible on appeal.
  • Medical evidence that confirms only a general physical limitation, without demonstrating that an accused was physically incapable of the specific acts alleged, is insufficient to establish that its absence caused the trial to miscarry.
  • A failure to direct the jury on tendency evidence will not constitute error where the prosecution never sought to rely on tendency reasoning and the judge separately directed the jury to consider each charge individually on its own evidence.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 61M
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 97, 165A

Cases
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Jiang v R [2010] NSWCCA 277
- KNP v Regina [2006] NSWCCA 213; (2006) 67 NSWLR 227
- KRM v The Queen [2001] HCA 11; 206 CLR 221
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Livermore [2006] NSWCCA 334; 67 NSWLR 659
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Toalepai v R [2009] NSWCCA 270
- Versi v R [2013] NSWCCA 206