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Court of Criminal Appeal 15 December 2017

Dixon v R

[2017] NSWCCA 299

Sexual offences
CRIME APPEAL AGAINST CONVICTION WHERE ACCUSED DID NOT GIVE EVIDENCE WHETHER MISCARRIAGE OF JUSTICE CRIME APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE

Citation: Dixon v R [2017] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 15 December 2017
Judge(s): Basten JA; McCallum J; Wilson J

Background

The appellant was convicted in October 2015 of two counts of sexual intercourse with a child under the age of ten years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The complainant was a young boy aged seven or eight at the time of the offending. The trial turned almost entirely on the complainant's credibility, as the defence called no evidence.

Before the evidence began, defence counsel opened to the jury by stating that the accused was anticipated to give evidence. The accused ultimately did not testify. Defence counsel addressed this in closing submissions but did not seek a discharge of the jury or a specific judicial direction to deal with the unmet expectation.

The appeal raised concerns about both that sequence of events and the adequacy of the trial judge's summing-up in putting the defence case to the jury.

  • Whether defence counsel's opening statement that the accused would give evidence, followed by the accused not testifying, caused a miscarriage of justice.
  • Whether trial counsel was incompetent in failing to seek a discharge of the jury or a specific direction to address any prejudice from the unmet opening.
  • Whether the trial judge's summing-up adequately put the defence case to the jury, given the sole issue at trial was the complainant's credibility.

Decision

The unmet opening (Grounds 2 and 3): The Court rejected the argument that the failure to call the accused, after counsel had indicated in opening that he would testify, produced a miscarriage of justice. Juries are routinely directed to keep an open mind until all evidence is heard, and standard directions on the prosecution's burden of proof apply whether or not an accused gives evidence. The Court reasoned that raising an expectation of defence evidence that does not ultimately materialise does not, without more, cause a trial to miscarry.

On the incompetence allegation, the Court found no error in defence counsel's approach. Rather than confronting the issue in a way that might have drawn further attention to it, or inviting a judicial direction that would have created the same difficulty, counsel chose to sidestep the point in closing address. The Court considered that a strategically defensible choice, not incompetence.

The summing-up (Ground 1): The Court refused leave under r 4 of the Criminal Appeal Rules to advance this ground, which had not been the subject of any redirection request at trial. Applying the principles in RPS v The Queen and Castle v The Queen, the judge was required to put the defence case fairly before the jury. In this short trial focused on a single issue of credibility, the judge's summing-up addressed that issue in general terms, and the closing address had been delivered shortly before. The absence of any redirection request provided a cogent basis for concluding the summing-up was perceived as adequate in the circumstances.

All three grounds were therefore rejected, with leave to appeal granted on Grounds 2 and 3 but the appeal dismissed.

Orders Made

  • Ground 1: Leave under r 4 of the Criminal Appeal Rules refused.
  • Grounds 2 and 3: Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An unmet defence opening, where counsel foreshadows the accused giving evidence but the accused does not ultimately testify, does not automatically produce a miscarriage of justice. Standard jury directions on the burden of proof and the accused's right not to give evidence are capable of addressing any residual prejudice.
  • Where defence counsel chose not to seek a discharge or specific direction after the accused's change of instructions, the Court of Criminal Appeal found no incompetence. A strategic decision to address the issue briefly in closing, rather than amplify it through a formal application, fell within the range of defensible forensic choices.
  • The adequacy of a summing-up must be assessed in context. In a short trial running on a single credibility issue, a general treatment of the defence case in the summing-up may suffice, particularly where closing addresses were recently delivered and no redirection was sought.
  • Applying RPS v The Queen and Castle v The Queen, the trial judge's obligation is to put the defence case fairly before the jury, but the content of that obligation is calibrated to the nature and length of the trial, the complexity of the issues, and whether the jury could realistically have been left in doubt about the defence position.
  • The absence of a redirection request at trial remains a cogent factor when an appellate court assesses whether a summing-up was inadequate. It supports an inference that those in the courtroom at the time regarded the direction as sufficient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), s 161
- Criminal Appeal Rules, r 4

Cases:
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Domican v R (1992) 173 CLR 555; [1992] HCA 13
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- AP v R [2013] NSWCCA 189
- Maraache v R [2013] NSWCCA 199
- R v Davis [1999] NSWCCA 15
- R v Meher [2004] NSWCCA 355
- RR v R [2011] NSWCCA 235
- Williams v R (1999) 104 A Crim R 260; [1999] NSWCCA 9
- Wong v R [2009] NSWCCA 101