Citation: KH v R [2014] NSWCCA 294
Court: Court of Criminal Appeal, NSW
Date: 1 December 2014
Judge(s): Leeming JA (principal judgment); McCallum J and R A Hulme J agreeing
Background
The appellant was convicted after a six-day jury trial of one count of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW). The aggravating circumstance was that he was in the company of others at the time of the offence. The alleged assault occurred in February 2012; the complainant was 13 years old at the time, though she had allowed others present to believe she was 16.
The Crown called several witnesses who were considered likely to give unfavourable evidence. Two were central to this appeal: a man named on the indictment who had not himself been charged (referred to here as the co-named witness), and the appellant's younger sister. Before trial, the Crown obtained an advance ruling under s 192A of the Evidence Act 1995 (NSW) granting leave to cross-examine both as unfavourable witnesses under s 38. Each cross-examination was brief and focused largely on prior statements each had made to police the day after the alleged assault.
The appellant did not appeal his sentence of six years imprisonment with a three-year non-parole period. His appeal was directed entirely at the conduct of the trial, specifically the grant of leave to cross-examine and a particular exchange between the trial judge and the co-named witness in front of the jury concerning the privilege against self-incrimination.
Legal Issues
- Whether the trial judge erred in granting the Crown leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine the co-named witness and the appellant's sister as unfavourable witnesses, in circumstances where the co-named witness was named on the indictment but had not been charged.
- Whether a miscarriage of justice occurred when the trial judge informed the jury, in the presence of the co-named witness, about the privilege against self-incrimination in connection with the grant of leave to cross-examine that witness.
Decision
Ground 1: Grant of leave to cross-examine under s 38
The Court of Criminal Appeal found no error in the trial judge's decision to grant leave. The judge's reasoning was that the Crown is entitled to present its case based on the elements it chooses to prove, and that evidence running contrary to those elements qualifies as "unfavourable" within the broad meaning of s 38. The Court confirmed that "unfavourable" under s 38 is wider than the common law concept of hostility, consistent with the approach taken in Doyle v R; R v Doyle [2014] NSWCCA 4. The fact that the co-named witness appeared on the indictment but had not been charged did not, of itself, preclude the Crown from calling and cross-examining him as an unfavourable witness.
The defence argued that granting leave in these circumstances fundamentally altered the adversarial nature of criminal proceedings. The Court rejected that submission. The cross-examination was narrow in scope, directed to prior inconsistent statements, and leave was subject to conditions that allowed the defence to object if the questioning strayed beyond its terms.
Ground 2: Self-incrimination exchange in the jury's presence
Before the co-named witness was cross-examined, the trial judge asked him, in the presence of the jury, whether he was aware of his right to object to giving self-incriminating evidence. The appellant argued this was prejudicial and caused a miscarriage of justice. The Court dismissed this ground. Under s 132 of the Evidence Act 1995 (NSW), a court is obliged to satisfy itself that a witness who may have grounds to invoke a privilege is aware of that right. The exchange was a necessary step in complying with that obligation.
The Court acknowledged that it will ordinarily be preferable for such questions to be asked in the absence of the jury. However, it found no appellable error on the facts. The Crown had flagged only a small chance that self-incrimination issues would arise, that chance did not eventuate, and the defence had not objected at the time. The Court also noted that the trial judge had been careful to protect both the witness and the appellant throughout.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Under s 38 of the Evidence Act 1995 (NSW), "unfavourable" is broader than the common law concept of hostility. Evidence that contradicts the elements the Crown seeks to prove can satisfy the threshold for leave to cross-examine.
- The fact that a witness is named on an indictment but has not been charged does not automatically bar the Crown from calling that person and obtaining leave to cross-examine them as an unfavourable witness.
- Section 192A of the Evidence Act 1995 (NSW) permits advance rulings on the grant of leave under s 38, and such rulings are available before the jury is empanelled.
- Under s 132 of the Evidence Act 1995 (NSW), a court must ensure that a witness who may have grounds to invoke a privilege is made aware of it. While this inquiry should ordinarily occur in the jury's absence, conducting it in the jury's presence will not necessarily constitute appellable error where no unfair prejudice results.
- No miscarriage of justice was established where the defence failed to object at trial to the impugned exchange, the self-incrimination issue did not in fact arise during cross-examination, and the trial judge had limited the scope of leave and preserved the defence's right to object.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 38, 128, 132, 135, 137, 192A
Cases
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Lee v R [2009] NSWCCA 259
- R v Le [2002] NSWCCA 186; 54 NSWLR 474