Citation: AB v Regina [2015] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 15 December 2015
Judge(s): Bathurst CJ; Hoeben CJ at CL; Hulme AJ (all agreeing)
Background
The appellant, identified by the pseudonym AB, was a teacher at a northern Sydney high school in the mid-1980s. He was charged on indictment with six counts of drug and sexual offences against a former student, identified as GM, who was between approximately 14 and 16 years of age at the relevant times. The alleged conduct included supplying and administering drugs, performing homosexual intercourse, and committing an act of indecency.
Following a trial in the District Court before Huggett DCJ and a jury, the appellant was convicted on four of the six counts: administering a stupefying drug with intent (Count 2), homosexual intercourse with a person under 18 (Count 3), committing an act of indecency (Count 5), and a further count of homosexual intercourse (Count 6). He was acquitted on the two remaining counts.
The appellant appealed to the Court of Criminal Appeal on three grounds: that the jury verdicts were unreasonable, that Count 6 was brought outside the applicable limitation period, and that the trial judge misdirected the jury regarding the significance of missing police records.
Legal Issues
- Whether the jury's verdicts on Counts 2, 3, 5 and 6 were unreasonable or could not be supported on the evidence
- Whether Count 6 was brought outside the statutory time limit for prosecution and, if so, whether any alternative verdict could be entered
- Whether the trial judge erred in directing the jury about the absence of police records and what inferences could be drawn from that absence
Decision
Ground 1: Unreasonable verdicts. The Court granted leave to appeal on this ground, as it did not raise a pure question of law. After reviewing the trial evidence in detail, including the complainant's account, corroborating witness evidence, and the circumstances of each count, the Court found that the verdicts on Counts 2, 3 and 5 were not unreasonable and could be supported on the evidence. The appeal on this ground was dismissed in relation to those counts.
Ground 2: Statutory time limit for Count 6. The Crown properly conceded that the limitation period for bringing a charge under section 78K of the Crimes Act 1900 had expired by the time Count 6 was laid. The Crown also conceded that it was not appropriate for the Court to exercise its power under section 7(2) of the Criminal Appeal Act 1912 to enter an alternative verdict. On that basis, the Court allowed the appeal on Count 6, quashed the conviction, and entered a verdict of acquittal on that count.
Ground 3: Jury direction on missing police records. The appellant argued that the trial judge effectively directed the jury that it could not use the absence of police records as evidence that a relevant event had not occurred. The Court found that, read in context, the direction warned the jury against speculation about competing explanations for the missing records, while still permitting the jury to take that absence into account when assessing whether the Crown had proved its case. The Court concluded that this direction did not deprive the appellant of a real chance of acquittal, and refused leave to appeal on this ground. The Court also addressed an argument under section 69 of the Evidence Act, finding that the relevant issue was not whether a record had been kept but what significance could be drawn from the absence of any record produced, and that the direction did not distort that analysis.
Because the conviction on Count 6 was quashed, the Court directed the parties to make submissions on resentencing.
Orders Made
- Leave granted to appeal on Ground 1
- Leave to appeal on Ground 3 refused
- Conviction on Count 6 quashed; verdict of acquittal entered on that count
- Appeal against conviction otherwise dismissed
- Appellant directed to make submissions on appropriate sentence within 14 days of 1 February 2016
- Crown directed to make submissions in reply within the following 14 days
Key Takeaways
- A conviction must be quashed where the prosecution was brought after the relevant statutory limitation period had expired and no alternative verdict was available to the appellate court.
- In dismissing the majority of the conviction appeal, the Court of Criminal Appeal confirmed that the complainant's evidence, considered alongside corroborating material from other witnesses, was capable of sustaining the jury's verdicts on Counts 2, 3 and 5.
- A jury direction warning against speculation about competing explanations for absent records is not necessarily a misdirection, provided the jury is still permitted to take the absence of those records into account in assessing the Crown case.
- Where a conviction is quashed on appeal, resentencing becomes necessary even where other convictions are upheld, and the Court may direct a fresh sentencing process.
- Under section 69 of the Evidence Act 1995 (Cth), the question of what inferences a jury may draw from the non-production of records is distinct from whether a record was in fact made; a direction that conflates those questions may, but in this case did not, constitute a reversible error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 38, 61E(2), 78K
- Poisons Act 1966 (NSW), s 21(2A)
- Criminal Appeal Act 1912 (NSW), s 7(2)
- Criminal Appeal Rules (NSW)
- Evidence Act 1995 (Cth), s 69
Cases:
- ARS v R [2011] NSWCCA 266
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- M v R [1994] HCA 63; 181 CLR 487
- MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Osland v The Queen [1998] HCA 75; 197 CLR 316
- Poniris v R [2014] NSWCCA 100
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v TK [2009] NSWCCA 151; 74 NSWLR 299
- SKA v R [2011] HCA 13; 243 CLR 400