Citation: Ussher-Clarke v R [2018] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 13 April 2018
Judges: Beazley ACJ (Walton J and N Adams J agreeing)
Background
The appellant was convicted by jury of recklessly causing grievous bodily harm to his partner, contrary to s 35(2) of the Crimes Act 1900 (NSW). The grievous bodily harm alleged was the loss of an unborn child. The Crown's case was that the appellant kicked his partner in the abdomen on the night of 9 September 2014, when she was approximately 12 weeks pregnant, and that she miscarried the following morning.
The complainant had given two statements to police shortly after the incident describing a forceful kick that caused immediate pain. She subsequently retracted those statements, and her earlier accounts were admitted into evidence under s 38 of the Evidence Act 1995 (NSW). By the time of the appeal, the appellant conceded that he had kicked the complainant and accepted that a conviction for common assault was appropriate, but contested the causation element of the more serious charge.
A number of medical experts gave conflicting evidence at trial about the possible causes of the miscarriage. Proposed alternative causes included genetic abnormality, infection, cervical incompetence, and spontaneous miscarriage. The appellant had separately pleaded guilty to an offence of attempting to induce the complainant to give false evidence or withhold true evidence, contrary to s 323(a) of the Crimes Act. An aggregate sentence of 5 years and 6 months, with a non-parole period of 4 years, had been imposed.
Legal Issues
- Whether the jury's verdict of recklessly causing grievous bodily harm was unreasonable and unsupported by the evidence, given the conflicting expert medical testimony on causation.
- Whether the trial judge erred by failing to give adequate directions to the jury regarding how to approach and evaluate the competing expert evidence on causation.
Decision
On the unreasonable verdict ground, the Court identified the correct question for the jury as whether the Crown had proved beyond reasonable doubt that the kick was a significant cause of the miscarriage and that the other nominated causes had been excluded as reasonable possibilities. Applying that standard, the Court of Criminal Appeal conducted its own review of the evidence and concluded it held no reasonable doubt that the miscarriage was caused by trauma.
The Court assessed each alternative cause in turn. Genetic abnormality was found not to be established on the evidence. Infection and cervical incompetence did not rise above the level of a mere possibility. Spontaneous miscarriage at 12 weeks was statistically so unlikely as to be reasonably dismissed. Accordingly, the verdict was not unreasonable and could not be set aside on this ground.
On the directions ground, the appellant argued that the trial judge should have given a more specific direction about how the jury was to resolve the conflict between the medical experts, including a direction modelled on one given in Velevski v R. The Court refused leave to raise this argument under r 4 of the Criminal Appeal Rules because no objection had been taken to the directions at trial, and no substantial miscarriage of justice arose.
Even if leave had been granted, the Court held the directions were not erroneous. Unlike the circumstances in Velevski, the expert evidence in this case did not divide neatly into two distinct bodies of opinion. The jury's task was to weigh varying expert views on both the trauma hypothesis and the alternatives. A direction in Velevski terms would, in the Court's view, have been likely to confuse rather than assist the jury.
Orders Made
- Leave to appeal against conviction granted.
- Appeal against conviction dismissed.
- Leave to appeal against sentence refused (to the extent necessary).
Key Takeaways
- Where multiple causes of harm are proposed at trial, the jury's task is to determine whether the Crown has proved beyond reasonable doubt that the accused's act was a significant cause, and that other nominated causes have been excluded as reasonable possibilities.
- A verdict will not be set aside as unreasonable merely because alternative causes were raised in evidence. The Court of Criminal Appeal assessed each alternative and found that none reached the threshold of a reasonable possibility requiring the verdict to be disturbed.
- Under r 4 of the Criminal Appeal Rules, leave to argue on appeal that jury directions were inadequate will be refused where no objection was raised at trial and no substantial miscarriage of justice is demonstrated.
- No single model direction is universally required when expert evidence conflicts. The appropriateness of a particular direction, including one modelled on Velevski, depends on the structure of the expert evidence actually given at trial.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a direction in Velevski terms is not suitable where expert opinion does not divide into two clearly opposing camps but instead varies across multiple issues.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 61, 323(a)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 38
Cases:
- ARS v R [2011] NSWCCA 266
- Campbell v The Queen (1980) 2 A Crim R 157
- Chamberlain (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83
- Jubraeel v R [2015] NSWCCA 131
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Poniris v R [2014] NSWCCA 100
- R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174
- R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
- Reynolds v R (2015) 249 A Crim R 208; [2015] NSWCCA 29
- Royall v R (1991) 172 CLR 378; [1991] HCA 27
- Velevski v R (2002) 187 ALR 233; [2002] HCA 4