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6
Court of Criminal Appeal 27 November 2017

Binns v R

[2017] NSWCCA 280

Sexual offences
CRIME APPEAL EXTENSION OF TIME TO APPEAL FAILURE TO SEEK ADDITIONAL DIRECTIONS

Citation: Binns v R [2017] NSWCCA 280
Court: Court of Criminal Appeal, NSW
Date: 27 November 2017
Judges: Basten JA at [1]; R A Hulme J at [59]; Garling J at [71]

Background

The applicant was convicted by a jury on 5 August 2015 of one count of sexual intercourse (cunnilingus) with a person under the age of ten years. The complainant was a family friend who had been staying overnight at the home shared by the applicant and his partner. The alleged offence occurred in a bedroom during that stay in late 2008 or early 2009.

No complaint was made to police until 2013, approximately four and a half years after the alleged events. At trial, the defence relied on evidence from the applicant's partner and her daughter to challenge the complainant's account, arguing that aspects of her description of the house and sleeping arrangements were inconsistent with the evidence of those witnesses. The applicant did not give or call evidence himself.

Following conviction, a notice of intention to appeal was filed but lapsed in September 2016. A fresh application for leave to appeal was filed on 23 August 2017, some two years after conviction and with the applicant's non-parole period due to expire in August 2018.

  • Whether the trial judge was obliged under s 165B of the Evidence Act 1995 (NSW) to direct the jury about forensic disadvantage resulting from the delay in complaint, and whether the failure to give that direction constituted an error.
  • Whether the trial judge was required to direct the jury that it must be satisfied beyond reasonable doubt of the truthfulness of the uncorroborated complainant.
  • Whether factual errors in the trial judge's directions to the jury were significant enough to warrant a new trial.
  • Whether the jury's verdict was unreasonable or could not be supported by the evidence.

Decision

Ground 1: Section 165B delay direction

The Court found that the obligation under s 165B(2) to direct the jury about forensic disadvantage arising from delay is conditional: it is triggered only when the trial judge is satisfied that the defendant has in fact suffered a significant forensic disadvantage. On the evidence before the trial judge, including the exchange with defence counsel at trial, the judge was not so satisfied and there was no good reason why he should have been. The Court also cautioned against relying on case law restatements of statutory provisions as a substitute for the language of the statute itself, noting that such summaries may involve paraphrase or may be directed at particular circumstances.

Ground 2: Direction as to beyond reasonable doubt and the uncorroborated complainant

The Court examined whether the judge was required to direct the jury in terms specifically linking the beyond reasonable doubt standard to the truthfulness of the complainant's uncorroborated account. Tracing the evolution of directions in child sexual assault cases from the old common law warning in Longman v The Queen through to the current statutory regime, the Court found no error warranting the grant of leave.

Grounds 3 and 4: Factual errors in summing up and unreasonable verdict

The Court found that any factual errors in the trial judge's directions were not significant and did not cause a miscarriage of justice. On the unreasonable verdict ground, all three judges concluded that the evidence was capable of satisfying a jury beyond reasonable doubt of the applicant's guilt. Notably, the prosecution had called all available witnesses, including those not expected to be favourable to its case, and the defence challenge rested largely on peripheral inconsistencies about surrounding circumstances rather than the event itself.

Leave requirements and procedural matters

The Court declined to grant leave under rule 4 of the Criminal Appeal Rules for grounds 1, 2 and 3, noting that complaints about jury directions should have been raised with the trial judge at the time. The points were not obscure, and the Court was reluctant to grant leave where no miscarriage of justice had been demonstrated and the arguments had not been identified as concerns by trial counsel.

Orders Made

  • Extension of time granted to file the notice of appeal to the date of filing, being 23 August 2017.
  • Leave refused pursuant to rule 4 of the Criminal Appeal Rules with respect to grounds 1, 2 and 3.
  • Leave to appeal refused with respect to ground 4.
  • Application for leave to appeal dismissed.

Key Takeaways

  • Under s 165B(2) of the Evidence Act 1995 (NSW), the obligation to direct the jury about forensic disadvantage caused by delay is not automatic: a trial judge must first be positively satisfied that significant forensic disadvantage has in fact been suffered. Mere delay is insufficient.
  • Relying on judicial restatements or case law summaries of statutory provisions carries risks, because such paraphrases may be directed at particular circumstances and can obscure the precise language and preconditions of the statute itself.
  • Leave under rule 4 of the Criminal Appeal Rules will be refused where complaints about jury directions were not raised at trial, the points were not obscure, and no miscarriage of justice is demonstrated. Post-conviction counsel identifying new arguments that trial counsel did not pursue will not, without more, justify a grant of leave.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal noted the importance of the jury's advantage in assessing witnesses, particularly the complainant, and confirmed that conflicting evidence about peripheral circumstances does not of itself establish that a verdict is unreasonable.
  • Procedural delay in filing an application for leave to appeal is a relevant factor, particularly where a retrial is sought and the public interest in expeditious disposal of criminal proceedings is engaged.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 294, 294AA
- Evidence Act 1995 (NSW), ss 165, 165A, 165B
- Evidence Amendment Act 2008 (NSW)

Cases
- AL v R [2017] NSWCCA 34
- Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60
- Ewen v R [2015] NSWCCA 117; 250 A Crim R 544
- Groundstroem v R [2013] NSWCCA 237
- Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
- Munn v The Queen [2006] NSWCCA 61
- Perez v Regina [2008] NSWCCA 46
- PT v The Queen [2011] VSCA 43
- R v Jovanovic (1997) 42 NSWLR 520
- R v Murray (1987) 11 NSWLR 12
- Regina v King [2000] NSWCCA 507
- Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42
- TO v R [2017] NSWCCA 12