AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 7 February 2018

SY v R

[2018] NSWCCA 6

Sexual offences
CRIMINAL LAW INDECENT ASSAULT APPEAL AGAINST CONVICTION TRIAL JUDGE’S DIRECTIONS TO JURY RULE IN BROWNE V DUNN EXAMINATION

Citation: SY v R [2018] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 7 February 2018
Judge(s): Hoeben CJ at CL, Davies J, Bellew J

Background

The appellant was a Deacon at a Maronite church in Sydney. The complainant, aged 15 at the time of the alleged offending, served as an altar boy at the same church. The alleged offence occurred in October 2005, during an overnight vigil connected with a tour of Holy Relics.

The complainant alleged that, in the early hours of the morning following an all-night vigil, the appellant offered to take him for breakfast before driving him home. According to the complainant, the appellant stopped the car near the church and sexually assaulted him while he feigned sleep. The complainant did not report the incident to police until 2014, though he had disclosed it to friends shortly after the events.

The appellant denied the entire incident, including any recollection of seeing the complainant during the vigil. He was convicted by a jury in May 2016 and sentenced to two years' imprisonment. He appealed against conviction on three grounds: misdirection on onus of proof, misdirection arising from the trial judge's references to matters never having been "suggested," and that the verdict was unreasonable.

  • Whether the trial judge's directions to the jury regarding evidence of the complainant's presence at the church implied an onus on the accused to prove a matter, thereby reversing the burden of proof
  • Whether the trial judge's repeated references to certain matters never having been "suggested" wrongly implied a burden on the accused to raise alternative possibilities, or improperly excluded those possibilities from the jury's consideration
  • Whether the rule in Browne v Dunn applies in criminal proceedings, and whether it was misapplied here
  • Whether the jury's verdict was unreasonable or unsupportable having regard to the evidence
  • Whether any misdirection was cured by later directions, and whether the jury's advantageous position (as fact-finders who observed witnesses) remained relevant where the misdirection touched on the onus of proof

Decision

Ground 1 and Ground 2: Misdirections on onus of proof

Davies J found that the trial judge's directions were productive of a miscarriage of justice. Passages in the summing-up suggesting that certain matters had never been "suggested" by the defence carried the risk of implying that the accused bore some obligation to raise alternative explanations, or that possibilities not put to witnesses could not be considered by the jury. These directions were apt to deflect the jury from their proper task of assessing whether the Crown had proved guilt beyond reasonable doubt.

The Court considered whether later, corrective directions cured the misdirection. It concluded that they did not. Where a misdirection has the effect of shifting or obscuring the burden of proof, subsequent generic directions about the standard of proof do not necessarily remedy the error. Furthermore, the ordinary principle that an appellate court should defer to the jury's advantageous position in assessing witnesses carries reduced force where the misdirection itself may have distorted the jury's approach to that assessment.

Ground 3: Unreasonable verdict

Davies J also upheld the unreasonable verdict ground. The Court identified several features of the evidence that raised a reasonable doubt: the significant improbability of the alleged offending occurring in a well-lit, residential street very close to the church and the homes of congregation members; the complainant's continued close involvement with the church, the youth group, and the appellant in the years following the alleged offence; and inconsistencies in the accounts of the incident. The Court found that these matters, considered together, should have caused the jury to scrutinise the complainant's evidence with care. The misdirections were likely to have prevented that scrutiny from occurring. The Court concluded that a reasonable doubt existed as to the appellant's guilt, and that the jury ought to have had such a doubt.

Orders Made

  • The appeal was allowed
  • The conviction was quashed
  • A verdict of acquittal was entered
  • The appellant was ordered to be released forthwith

Key Takeaways

  • Repeated references in a trial judge's summing-up to matters that were never "suggested" by the defence risk implying a burden on the accused to raise alternative scenarios, which constitutes a misdirection capable of producing a miscarriage of justice
  • Where a misdirection touches on the onus or standard of proof, generic corrective directions later in a summing-up will not necessarily cure the error; the Court of Criminal Appeal will assess whether the misdirection as a whole deflected the jury from its proper task
  • The ordinary deference afforded to a jury's advantageous position as observers of witnesses is reduced where the misdirection itself may have distorted how the jury approached the evidence
  • A verdict may be unreasonable where the cumulative effect of improbability of the offending, inconsistencies in the complainant's account, and the complainant's ongoing conduct toward the accused, leaves a reasonable doubt that the jury ought to have entertained
  • In determining whether a verdict is unreasonable, an appellate court is not limited to the sufficiency of the complainant's evidence in isolation; it must consider all of the evidence, including matters bearing on the probability or improbability of the alleged events

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules 1952 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Browne v Dunn (the rule referenced in the catchwords and submissions)
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- SKA v The Queen (2011) 243 CLR 400
- SKA v Regina [2012] NSWCCA 205
- R v Baden-Clay (2016) 258 CLR 308
- Filippou v The Queen (2015) 256 CLR 47
- Liberato v The Queen (1985) 159 CLR 507
- MWJ v The Queen [2005] HCA 74
- Moore v R [2016] NSWCCA 185
- Day v R [2017] NSWCCA 192
- Tonari v R (2013) 237 A Crim R 490
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- R v Whitmore [1999] NSWCCA 247
- Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1