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Court of Criminal Appeal 8 March 2017

SB v R

[2017] NSWCCA 30

Sexual offences
APPEAL CRIME PRACTICE AND PROCEDURE MISCARRIAGE OF JUSTICE CRIME PRACTICE AND PROCEDURE

Citation: SB v R [2017] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 8 March 2017
Judges: Basten JA, Button J, N Adams J

Background

The applicant was arrested in June 2013 and faced ten counts relating to serious sexual offences against children, including aggravated indecent assault and sexual intercourse with children under 10 and under 14 years of age. He pleaded not guilty to all counts and, following a trial in May 2015, was found guilty on all ten counts by a jury. He was subsequently sentenced to a total term of 12 years' imprisonment, comprising a non-parole period of 7 years and 6 months.

The applicant filed a notice of appeal against conviction in August 2016. An amended notice of grounds was filed in January 2017, with the decisive ground being that a miscarriage of justice had occurred during the trial due to a procedural error involving the jury's access to inadmissible material.

  • Whether a miscarriage of justice occurred when an unredacted transcript of a police interview with the complainant was mistakenly provided to the jury, contrary to a pre-trial agreement that only a redacted version would be tendered
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) applied, that is, whether any substantial miscarriage of justice had actually occurred despite the error
  • Whether leave to appeal was required under s 5(1)(b) of the Criminal Appeal Act, given the ground involved a procedural error rather than a question of law alone

Decision

The Director of Public Prosecutions conceded that the jury had received the unedited version of a police interview with the complainant, marked as exhibit MFI 6 and later tendered as part of Exhibit K. This occurred despite a pre-trial agreement that only a redacted version would be placed before the jury. Neither party was aware of the mistake during the trial.

The Director further accepted that the proviso under s 6(1) of the Criminal Appeal Act could not be applied. The unredacted material contained allegations of physical abuse and other sexual conduct that was not the subject of any charge. Because the error went undetected, no corrective directions were given to the jury to disregard the extraneous material, meaning the prejudice to the applicant was unaddressed.

The Court reviewed the unedited material and its context within the broader trial evidence and was satisfied that a miscarriage of justice had occurred. Because the error was a procedural mistake rather than a pure question of law, the applicant required leave to appeal under s 5(1)(b) of the Criminal Appeal Act. The Court granted that leave and upheld the appeal.

Orders Made

  • Leave granted to appeal against the convictions arising from the jury verdict of 22 May 2015
  • Appeal allowed; convictions on each count set aside
  • Aggregate sentence imposed on 4 August 2015 set aside
  • Retrial directed, at the discretion of the Director of Public Prosecutions having considered any further relevant material
  • Non-publication order made prohibiting publication of the names of, or any information identifying, the complainant, including the family name of the applicant

Key Takeaways

  • A miscarriage of justice arose where an unredacted police interview containing uncharged allegations was provided to the jury contrary to a pre-trial agreement, and neither party noticed the error during the trial.
  • Where inadmissible prejudicial material reaches a jury without any corrective direction being given, the Court of Criminal Appeal confirmed it is inappropriate to apply the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW), which would otherwise allow a conviction to stand despite a trial error.
  • An appeal ground based on a procedural mistake made during a trial involves a mixed question of law and fact, meaning leave to appeal under s 5(1)(b) of the Criminal Appeal Act is required before the appeal can be allowed.
  • The Court of Criminal Appeal treated the consent of both parties to quash the convictions as a significant factor, but independently reviewed the relevant material before making its orders.
  • Under s 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW), non-publication orders protecting the identity of complainants in sexual offence proceedings extend to suppressing the family name of the accused where that name could identify the complainant.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

Cases cited: No cases were cited in the judgment.