AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 22 August 2018

Bandao v R; Bruce v R

[2018] NSWCCA 181

Sexual offences
CRIMINAL LAW CONVICTION APPEAL FIVE COUNTS OF NON CONSENSUAL SEXUAL INTERCOURSE OFFENDER RECORDED CONVERSATION USED IN CROSS

Citation: Bandao v R; Bruce v R [2018] NSWCCA 181
Court: Court of Criminal Appeal, NSW
Date: 22 August 2018
Judge(s): Hoeben CJ at CL (principal judgment); Price J and Wilson J agreeing

Background

Two co-accused stood trial on four counts each of aggravated sexual assault in company, plus one additional count against one of them alone. The counts arose from events at a private residence in Blacktown in June 2015. The Crown alleged that the two applicants, together with a third man, sexually assaulted a heavily intoxicated young woman in a small outdoor toilet room as part of a joint criminal enterprise.

The trial judge directed acquittals on one count before the jury retired. The jury returned not guilty verdicts on three further counts, but found both applicants guilty on the alternative to Count 3, which alleged sexual intercourse without consent while in company. That count related to penile-vaginal intercourse carried out by the third man, with the applicants found liable as parties to a joint criminal enterprise.

Both applicants sought leave to appeal their convictions. Their grounds raised procedural irregularities at trial as well as challenges to the reasonableness of the verdict and the adequacy of the evidence supporting a finding of joint criminal enterprise.

  • Whether the Crown prosecutor's conduct in relation to an unlawfully recorded conversation involving the complainant caused a substantial miscarriage of justice.
  • Whether defence counsel's failure to apply to discharge the jury following that conduct amounted to a substantial miscarriage of justice.
  • Whether the trial judge erred in refusing to grant a permanent stay of proceedings, or alternatively to discharge the jury.
  • Whether the jury's guilty verdict on the alternative to Count 3 was unreasonable or unsupported by the evidence, particularly in light of the acquittals on the surrounding counts.
  • Whether there was sufficient evidence to establish a joint criminal enterprise linking the applicants to the act of penile-vaginal intercourse performed by the third man.

Decision

Recorded conversation and Crown conduct. A witness had unlawfully recorded a conversation with the complainant, and the recording was used during cross-examination. The Crown also provided the complainant with a copy of the transcript during her cross-examination. Hoeben CJ at CL found that while these events raised serious concerns, they did not cause a substantial miscarriage of justice. The trial judge had managed the situation carefully, and the jury was properly directed.

Failure to apply for a discharge. The court found no substantial miscarriage of justice arising from defence counsel's decision not to apply to discharge the jury following the issues with the recorded conversation. The decision was a matter of trial strategy within the range of reasonable forensic choices available to counsel.

Permanent stay. The court held that the threshold for a permanent stay is very high, requiring an abuse of process so serious that no remedy short of a permanent halt would suffice. That threshold was not met here. The trial judge's refusal to grant a stay was not in error, and the alternative of discharging the jury had been adequately considered.

Reasonableness of the verdict and joint criminal enterprise. The court rejected the argument that guilty verdicts on Count 3 were irreconcilable with acquittals on the other counts. The jury was entitled to reason that the applicants participated in or encouraged the sexual assault on Count 3 without being satisfied of the specific acts alleged in other counts. Given the very confined dimensions of the toilet room and the circumstances of the complainant's severe intoxication, it was open to the jury to conclude beyond reasonable doubt that the applicants were in that room for no purpose other than to participate in or encourage the sexual assault being committed by the third man.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed (for each applicant).

Key Takeaways

  • A conviction based on joint criminal enterprise does not require proof that a particular accused personally performed the physical act constituting the offence. The Court of Criminal Appeal confirmed that where an accused is present and participating in or encouraging a jointly agreed criminal purpose, that is sufficient for liability.

  • Acquittals on some counts in a multi-count indictment do not automatically render a guilty verdict on a remaining count unreasonable. The court examined each verdict in its own factual context, looking at whether the specific evidence on each count was capable of supporting the jury's conclusions independently.

  • The threshold for a permanent stay on grounds of abuse of process remains high. Serious prosecutorial irregularities in the conduct of a trial do not automatically justify a permanent stay; the court must be satisfied that no other remedy can cure the unfairness.

  • Where defence counsel makes a deliberate forensic decision not to seek a discharge following a procedural irregularity, that decision will not ordinarily found a ground of appeal. The appellate court assessed the choice against the range of reasonable responses open at the time, not with hindsight.

  • Unlawful recording of a conversation under the Listening Devices Act 1984 (NSW) or Surveillance Devices Act 2007 (NSW) does not automatically produce a substantial miscarriage of justice. The court considered the overall fairness of the trial and the manner in which the trial judge managed the consequences of that unlawful conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61JA
- Evidence Act 1995 (NSW), ss 27, 29, 38, 41, 43, 45, 128, 138, 165
- Listening Devices Act 1984 (NSW), s 5(1)
- Surveillance Devices Act 2007 (NSW), ss 7, 11, 12
- Legal Profession Uniform Conduct (Barristers) Rules 2015

Cases cited:
- Calleija v R [2012] NSWCCA 37
- Dhanhoa v R [2003] HCA 40; 217 CLR 1
- Dickson v R [2017] NSWCCA 78
- Elwood v R [2016] NSWCCA 18
- Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232
- House v The King [1936] HCA 40; 55 CLR 499
- Hughes v R [2015] NSWCCA 330; 93 NSWLR 474
- Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
- Kees Langelaar v R [2016] NSWCCA 143
- Lee v R [1998] HCA 60; 195 CLR 594
- Libke v R [2007] HCA 30; 230 CLR 559
- Matthews v R [2013] NSWCCA 187
- Medich v R [2015] NSWCCA 281
- Nudd v R [2006] HCA 9; 80 ALJR 614
- R v Birks (1990) 19 NSWLR 677
- R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
- R v Dalley [2002] NSWCCA 284; 132 A Crim R 169
- R v Edwards [2009] HCA 20; 83 ALJR 717
- R v MacKenzie [1996] HCA 35; 190 CLR 348
- R v Stewart [2001] NSWCCA 260