Citation: GL v Regina [2014] NSWCCA 68
Court: Court of Criminal Appeal, New South Wales
Date: 9 May 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J
Background
The appellant was convicted by a jury of 11 on two counts of aggravated sexual assault and two counts of indecent assault of a child under 16 years, following a trial in the Newcastle District Court before Judge Maiden SC in May and June 2013. The complainant was 12 years old at the time of the first alleged offences and was a close family friend and goddaughter of the appellant. The appellant and his wife had periodically cared for the complainant and her siblings during school holidays.
The offences were alleged to have occurred at the appellant's home during holiday periods. A central factual dispute at trial concerned the precise dates of the alleged incidents. The complainant initially nominated January 2011 as the date of the first group of offences, but the charges were ultimately laid on the basis that those events occurred in April 2011. The appellant and his wife maintained they had been interstate in January 2011, and the police interview had proceeded on the January dates rather than the April dates that appeared on the indictment.
The appellant was sentenced to an overall term of three years with a non-parole period of 21 months. He was granted bail by the Court of Criminal Appeal pending his conviction appeal.
Legal Issues
- Whether the trial judge's summing up adequately put the defence case to the jury
- Whether the trial judge erred in failing to direct an acquittal on counts 1 to 5 at the close of the Crown case
- Whether a specific passage in the summing up misdirected the jury on how to approach the defence evidence
- Whether the summing up was so lacking in structure as to be confusing
- Whether the trial judge erred in failing to discharge the full jury, and in failing to give appropriate directions, after one juror was excused
- Whether the trial judge's warnings under ss 294B(7) and 306X of the Criminal Procedure Act 1986 were adequate
- Whether the verdicts were unreasonable and unsupported by the evidence
Decision
The Court of Criminal Appeal allowed the appeal and quashed the convictions. The central basis for the decision was that the summing up was so deficient in structure and substance that it deprived the appellant of a fair trial. All three judges agreed on the outcome.
Hoeben CJ at CL (with Adamson J agreeing) found that the defence case was not adequately put to the jury. Critically, the date discrepancy between the police investigation (which proceeded on the basis of January 2011) and the charges as laid (April 2011) was a significant issue at trial. The trial judge failed to identify this clearly or to place before the jury the competing cases in any coherent or structured way. The failure to put the accused's challenge to the Crown's evidence with appropriate clarity amounted to a miscarriage of justice.
Fullerton J, in separate concurring reasons, emphasised that while the trial judge was not required to give lengthy or discursive commentary on the evidence, basic clarity was essential. The respective cases of Crown and defence needed to be identified with sufficient precision that the jury could properly appreciate the significance of the date dispute and assess the competing evidence against it. The failure to meet this requirement constituted a departure from the trial judge's fundamental obligations in summing up.
Adamson J added that the summing up is a critical safeguard for an accused person in a jury trial. Drawing on RPS v R [2000] HCA 3, her Honour described the trial judge's obligation to put the defence case fairly before the jury as essential to the system of trial by jury. The summing up in this case fell so far short of the required standard that it could not be said the appellant received a fair trial.
On the question of whether the verdicts were unreasonable, however, all three judges found it was open on the whole of the evidence for the jury to have been satisfied beyond reasonable doubt of the appellant's guilt. This ground of appeal was therefore rejected.
Orders Made
• Convictions are set aside
• New trial ordered on counts 1, 3, 5 and 6
Key Takeaways
- A trial judge's summing up must put the defence case to the jury clearly and with sufficient structure; failure to do so can constitute a miscarriage of justice warranting the quashing of convictions.
- The Court of Criminal Appeal confirmed that the obligation to fairly identify the accused's case in a summing up is a fundamental requirement of trial by jury, consistent with the High Court's reasoning in RPS v R [2000] HCA 3.
- Where a significant factual discrepancy existed between the dates put to the accused during police interview and the dates charged on the indictment, the trial judge was required to ensure the jury understood that issue and the challenge it presented to the Crown case.
- Insufficient structure or clarity in a summing up can disadvantage an accused independently of any single misdirection, particularly where competing evidentiary issues are left unidentified.
- Rejecting a ground of unreasonable verdict does not preclude the Court from quashing a conviction on other grounds; the Court of Criminal Appeal found the evidence capable of supporting the jury's findings while still determining the convictions could not stand due to the deficient summing up.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M(2)
- Criminal Procedure Act 1986 (NSW), ss 294B(7), 306X
- Jury Act 1977 (NSW), s 53C
Cases:
- RPS v R [2000] HCA 3; 199 CLR 620
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Papakosmos v R [1999] HCA 37; 196 CLR 297
- May v O'Sullivan [1955] HCA 38; 92 CLR 654
- AP v R [2013] NSWCCA 189
- BG v R [2012] NSWCCA 139
- FP v R [2012] NSWCCA 182
- R v Germakian [2007] NSWCCA 373; 70 NSWLR 467
- R v Meher [2004] NSWCCA 355
- R v Ward [2012] NSWCCA 46
- R v Condon (1995) 83 A Crim R 335
- Wong v R [2009] NSWCCA 101
- Sami Kurdi v R [2011] NSWCCA 179