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Court of Criminal Appeal 27 October 2017

MS v R

[2017] NSWCCA 252

Sexual offences
CRIMINAL PROCEDURE UNREPRESENTED ACCUSED SEXUAL OFFENCE PROCEEDINGS CONTEXT EVIDENCE APPEALS AGAINST CONVICTION

Citation: MS v R [2017] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 27 October 2017
Judges: Macfarlan JA; Beech-Jones J; Wilson J

Background

The appellant was convicted at two separate District Court trials of multiple sexual and indecent assault offences alleged to have been committed against his former partner's daughters. The same judge presided over both trials, and the same Crown Prosecutor appeared at each. The appellant was unrepresented at both trials and had no prior experience of criminal proceedings.

At the first trial, the jury returned guilty verdicts on five of six counts involving one complainant, including one count of sexual intercourse with a child under 10 years. At the second trial, the jury convicted the appellant on two counts of indecent assault involving a second complainant. He was sentenced to an aggregate term of eight years imprisonment with a five-year non-parole period.

On appeal, the appellant did not contend that any single irregularity was individually decisive. Rather, he argued that the combined effect of multiple procedural and evidentiary irregularities at each trial denied him a fair trial and resulted in substantial miscarriages of justice. The Crown conceded it was open to the Court to accept that contention.

  • Whether the trial judge adequately explained trial procedure to the unrepresented appellant, including his right to object to evidence and the nature of a closing address
  • Whether the trial judge should have considered exercising a discretion to prevent the Crown Prosecutor from making a closing address against an unrepresented accused
  • Whether the failure to give the mandatory warning under s 306X of the Criminal Procedure Act 1986 (NSW) regarding the jury's use of the complainant's recorded interview constituted an irregularity
  • Whether the recorded interview was wrongly tendered as an exhibit and made available to the jury during deliberations
  • Whether the failure to give the mandatory warning under s 294A(7) of the Criminal Procedure Act 1986 (NSW), concerning the court-appointed questioner who cross-examined the complainant on the appellant's behalf, constituted an irregularity
  • Whether the trial judge erred in failing to give the appellant an opportunity to reformulate questions during cross-examination of the complainant
  • Whether the jury should have been directed against using uncharged sexual misconduct evidence (led as context evidence) for tendency reasoning
  • Whether the cumulative effect of these irregularities, considered together, resulted in substantial miscarriages of justice at both trials

Decision

Macfarlan JA (with Wilson J agreeing) found that multiple irregularities had occurred at both trials, each conceded by the Crown. These included the absence of both mandatory statutory warnings (under ss 294A(7) and 306X), the jury having unrestrained access to the complainant's recorded interview as an exhibit, and the absence of any direction to the jury about the permissible use of uncharged misconduct evidence led as context evidence. The Court found a real risk that the jury used that context evidence for impermissible tendency reasoning.

The trial judge's explanations to the unrepresented appellant about trial procedure were also found to have been inadequate. The High Court's observation in Dietrich v The Queen (1992) informed the analysis: unrepresented accused are structurally disadvantaged, and a trial judge must provide such information as is necessary to ensure a fair trial. The appellant had not received sufficient guidance to effectively participate in the proceedings.

On the question of the Crown's closing address, Macfarlan JA concluded that the trial judge erred by failing to consider whether to exercise a discretion to limit or prevent it, given the accused was unrepresented. Beech-Jones J differed on this point alone. His Honour held that such a failure could only contribute to a miscarriage of justice if a proper exercise of that discretion would actually have led to the address being disallowed, and that he was not satisfied of that on the facts. On all other irregularities, Beech-Jones J agreed with Macfarlan JA.

The Court unanimously held that, while no single irregularity may have been fatal in isolation, their cumulative effect at each trial meant the appellant did not receive a fair trial. A substantial miscarriage of justice had occurred at both proceedings. The convictions were quashed and new trials ordered.

Orders Made

  • The appellant's convictions arising from both the first and second trials were quashed.
  • New trials were directed in respect of both matters.

Key Takeaways

  • Multiple procedural and evidentiary irregularities, each insufficient alone to mandate a remedy, may together constitute a substantial miscarriage of justice requiring convictions to be quashed.
  • Under ss 294A(7) and 306X of the Criminal Procedure Act 1986 (NSW), the mandatory warnings relating to court-appointed questioners and recorded evidence-in-chief are not merely technical requirements: their absence can contribute to an unfair trial, particularly where the accused is unrepresented.
  • A trial judge presiding over a case involving an unrepresented accused bears an obligation to provide sufficient information about trial procedure to allow effective participation, consistent with MacPherson v The Queen (1981) and Dietrich v The Queen (1992).
  • Where the Crown leads uncharged sexual misconduct as context evidence, the trial judge must direct the jury not to use that evidence for tendency reasoning; failing to do so creates a real risk that the jury will apply it for an impermissible purpose.
  • Beech-Jones J's separate observation clarifies the limits of the Crown closing address ground: the failure to consider the relevant discretion only contributes to a miscarriage of justice where it can be shown that a proper exercise of that discretion would have resulted in the address being disallowed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW) s 6
- Criminal Appeal Rules r 4
- Criminal Procedure Act 1986 (NSW) ss 294A, 306X
- Evidence Act 1995 (NSW)

Cases:
- BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Galvin v R (2006) 161 A Crim R 449; [2006] NSWCCA 66
- Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
- Hughes v The Queen [2017] HCA 20
- JWM v The Queen (2014) 245 A Crim R 538; [2014] NSWCCA 248
- MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46
- R v Anastasiou (1991) 21 NSWLR 394
- R v E J Smith [1982] 2 NSWLR 608
- R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
- R v Zorad (1990) 19 NSWLR 91
- Roach v R (2011) 242 CLR 610; [2011] HCA 12
- TKWJ v R [2002] HCA 46; 212 CLR 124
- The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21
- Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17