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Court of Criminal Appeal 9 May 2014

Miles v R

[2014] NSWCCA 72

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPLICABLE PRINCIPLES CRIMINAL APPEAL ACT 1912 (NSW) S 6

Citation: Miles v R [2014] NSWCCA 72
Court: Court of Criminal Appeal, New South Wales
Date: 9 May 2014
Judge(s): Simpson J, Harrison J, Button J (judgment of Button J)

Background

The applicant had been convicted at trial of sexual offences, including charges under s 61I of the Crimes Act 1900 (NSW) relating to events on two separate dates. Several years after the convictions were entered, the applicant sought an extension of time in which to appeal, well outside the ordinary appeal period.

The applicant raised five grounds of appeal. Two of the more significant grounds concerned: the trial judge's directions to the jury about complaint evidence (ground 3), and the admission of and directions about evidence that the applicant had fled after the offences (grounds 4 and 5). A further ground alleged error in the judge's directions on the absence of complaint in relation to an earlier count.

Because the application was brought many years late, the Court was required to consider both the explanation for the delay and the prospects of success of each ground before deciding whether to grant the extension.

  • Whether an extension of time to appeal should be granted, given the lengthy delay and the applicant's partial responsibility for it
  • Whether the trial judge's directions about complaint evidence contravened the principle in Palmer v The Queen (1998) 193 CLR 1, by impermissibly inviting the jury to reason that the complainant had no motive to lie
  • Whether evidence of flight was admissible at trial, and whether the trial judge misdirected the jury in relation to it
  • Whether, even if errors were established in grounds 3 and 4, the convictions would be quashed or whether the equivalent of the proviso would apply to preserve them

Decision

Extension of time: governing principles

The Court confirmed that, on an application to appeal out of time, the strength of the proposed grounds is a central consideration. The longer the delay and the greater the applicant's responsibility for it, the more clearly the applicant must demonstrate that a substantial injustice would result from refusal. Here, the delay was close to six years, and much of it was attributed to the applicant.

Ground 3: complaint directions and Palmer

The direction in question arose from the trial judge asking the jury, in effect, why the complainant would have made a complaint following the July 5 events if the sexual activity had been consensual throughout a lengthy prior relationship. The principle in Palmer prohibits inviting the jury to reason that, because the accused cannot identify a motive for the complainant to lie, the complainant must be telling the truth. The Court scrutinised the impugned passage closely, noting that trial counsel did not seek a correcting direction at the time and expressed the view that little damage had been done. Simpson J and Button J both concluded that ground 3 lacked sufficient substance to support the appeal, though their precise reasoning differed at the margins.

Grounds 4 and 5: evidence of flight

The evidence in question showed that, on the day of the alleged offences, the applicant abruptly and permanently left his home, having attempted to wash bedding and his shirt. The Court found this evidence was admissible and highly probative. Some concern was expressed about whether the trial judge's directions on flight evidence were in all respects technically correct, but the Court did not find that any error was established with sufficient clarity to support the grounds.

Application of the proviso

Most significantly, the Court considered the overall state of the evidence. Two independent witnesses had heard sounds from the bedroom where the sexual contact occurred, including sounds consistent with force being applied to the complainant's body, and words from her that were powerfully probative of non-consent. Button J was affirmatively satisfied that, even assuming errors in the complaint directions and flight directions were made out, no substantial miscarriage of justice had occurred and any appeal against conviction would have been doomed to fail. The maintenance of the convictions did not occasion a substantial injustice, and it would be futile to grant the extension.

Orders Made

  • Leave to appeal out of time refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on an out-of-time appeal application, a lengthy delay for which the applicant bears significant responsibility weighs heavily against the grant of an extension, particularly where the public interest in finality is engaged by serious criminal convictions.
  • The principle in Palmer v The Queen prohibits directing a jury to reason from an accused's inability to identify a motive for false complaint to a conclusion of guilt; however, directions going to a complainant's credibility through evidence of consistent complaint behaviour occupy different territory.
  • Where trial counsel expressly declined a correcting direction and expressed the view that any error was minor, this forms part of the Court's assessment of whether the direction constituted a ground of genuine substance.
  • Evidence that an accused abruptly left his home on the day of the alleged offences, having attempted to wash items of physical evidence, was treated as admissible and highly probative conduct consistent with consciousness of guilt.
  • Applying reasoning analogous to the proviso under the Criminal Appeal Act 1912 (NSW), the Court will refuse an extension of time where the evidence as a whole is so strong that, even if trial errors were established, no substantial miscarriage of justice would result and a quashing of the convictions would be unwarranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), ss 6, 10
- Evidence Act 1995 (NSW), ss 110, 137

Cases
- Palmer v The Queen [1998] HCA 2; 193 CLR 1
- R v F (1995) 83 A Crim R 502
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
- R v Birks (1990) 19 NSWLR 677
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- Darwiche v R [2011] NSWCCA 62
- Abdul v R [2013] NSWCCA 247
- Alpha v R [2013] NSWCCA 292
- Outram v R [2013] NSWCCA 329
- Etchell v R [2010] NSWCCA 262; 205 A Crim R 138
- McCall v R [2010] NSWCCA 174
- Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270
- R v Beattie [2000] NSWCCA 201
- R v Cook [2004] NSWCCA 52
- R v Lane [2011] NSWCCA 157
- R v Unger [1977] NSWLR 990