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Court of Criminal Appeal 25 July 2014

JG v R

[2014] NSWCCA 138

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPELLANT WAS NOT CROSS EXAMINED CONTRARY TO PALMER V R PRINCIPLES AS TO IMPERMISSIBLE CROSS APPEAL DISMISSED

Citation: JG v R [2014] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 25 July 2014
Judges: Simpson J, Hall J, Schmidt J

Background

The appellant was a brother in a religious order who lived and worked at a Catholic boys' boarding college in Bathurst. He held no teaching role but occupied a position of authority at the college, eventually becoming Vice President. Two former students, referred to in the judgment as GB and TE, made allegations of historical sexual offending against him spanning two distinct periods: offences against GB between 1965 and 1967, and offences against TE in 1989.

The Crown proposed a joint trial on charges relating to GB, TE, and two further complainants. A pre-trial ruling admitted much of the evidence as tendency and coincidence evidence under the Evidence Act 1995 (NSW), though it effectively severed the proceedings relating to the other two complainants. A first jury was empanelled but could not reach verdicts, requiring a retrial.

At the second trial, the appellant sought to re-litigate the pre-trial admissibility rulings under s 130A of the Criminal Procedure Act 1986. The trial judge declined to depart from the earlier rulings. The second jury convicted the appellant on six counts. He was sentenced to an aggregate term of seven years and six months imprisonment, with a non-parole period of four years and six months. The appellant appealed against conviction only.

  • Whether the second trial judge erred under s 130A of the Criminal Procedure Act 1986 in declining to order separate trials on the counts relating to each complainant.
  • Whether the second trial judge erred under s 130A in declining to revisit the admissibility of the tendency and coincidence evidence relied upon by the Crown.
  • Whether the trial judge erred in refusing a permanent stay of the count relating to complainant GB.
  • Whether the Crown's cross-examination of the appellant gave rise to a miscarriage of justice, by reference to the principles in Palmer v The Queen and Gonzales v R.
  • Whether the convictions were unsafe and unsatisfactory in the sense described in M v The Queen.

Decision

Pre-trial rulings under s 130A: The Court of Criminal Appeal found no error in the second trial judge's refusal to revisit either the separate-trials application or the tendency and coincidence evidence rulings. Section 130A of the Criminal Procedure Act gives a later judge power to reconsider pre-trial orders made in earlier proceedings, but the trial judge's adherence to the existing rulings was not shown to be wrong. The appellant had not established that Cogswell DCJ's original determinations were erroneous, nor that anything in the evidence from the first trial warranted a different outcome.

Permanent stay: The application to stay count 1, relating to GB, was also rejected. The Court found no basis on which a permanent stay was warranted, applying the principles from Jago v The District Court of NSW. The refusal of the stay was upheld on appeal.

Cross-examination of the appellant: The appellant argued that the Crown's cross-examination was impermissible under the principles in Palmer v The Queen and Gonzales v R, amounting to a miscarriage of justice. The Court noted that no objection to the Crown's approach had been raised at either the first or second trials. That absence of objection reflected a deliberate forensic choice, given that the defence case was built on the proposition that all complainants and other witnesses had fabricated or embellished their accounts. The Crown's cross-examination responded to that forensic position. Schmidt J emphasised that, in the particular circumstances, the appellant was bound by those forensic decisions, and no miscarriage of justice had been established.

Unsafe and unsatisfactory verdicts: The Court considered the entirety of the evidence, including the inconsistencies and reliability concerns raised by the defence in respect of both complainants' accounts. All three judges concluded that consideration of the evidence did not generate a doubt as to the appellant's guilt on the counts of conviction. The convictions were not unsafe or unsatisfactory.

Orders Made

• The appeal be dismissed

Key Takeaways

  • Under s 130A of the Criminal Procedure Act 1986, a second trial judge has a discretion to reconsider pre-trial orders made in earlier proceedings, but no error arises simply from adhering to those earlier rulings where no sufficient basis for departure is demonstrated.
  • A permanent stay of criminal proceedings remains an exceptional remedy; the refusal of a stay will be upheld on appeal where the applicant fails to meet the demanding threshold from Jago v The District Court of NSW.
  • Where a defendant's trial strategy expressly puts the credibility of all witnesses in issue, the Crown may respond to that case in cross-examination of the accused; an absence of objection at trial, reflecting a deliberate forensic choice, will weigh heavily against establishing a miscarriage of justice on appeal.
  • In dismissing the unsafe-and-unsatisfactory ground, the Court of Criminal Appeal applied the M v The Queen standard and confirmed that inconsistencies in complainants' evidence do not automatically generate the requisite doubt, particularly where a jury has assessed witness credibility in full.
  • The decision illustrates how tendency and coincidence evidence admitted under ss 97 and 98 of the Evidence Act 1995 may operate across counts relating to multiple complainants in a single trial, subject to pre-trial rulings on admissibility and any severance orders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 130, 130A
- Evidence Act 1995 (NSW), ss 97, 98

Cases
- Barton v The Queen [1980] HCA 48; 147 CLR 75
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158
- Gonzales v R [2007] NSWCCA 321; (2007) 178 A Crim R 232
- Hoch v The Queen (1988) 165 CLR 292
- Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Palmer v The Queen [1998] HCA 2; 193 CLR 1
- R v Cook [2004] NSWCCA 52
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451