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Court of Criminal Appeal 2 October 2019

DC v R

[2019] NSWCCA 234

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTIONS SEXUAL ASSAULT FORENSIC CHOICE BY APPELLANT’S COUNSEL APPELLANT GIVES EVIDENCE AT TRIAL

Citation: DC v R [2019] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 2 October 2019
Judge(s): Bathurst CJ; Price J; N Adams J

Background

The appellant was convicted in the District Court of three counts of sexual offences against two young children, aged four and six or seven years respectively, following a jury trial before Noman SC DCJ. The offending was alleged to have occurred in 2016 at a residential unit complex where the appellant was a neighbour of the children's grandmother. The appellant was sentenced to an aggregate term of twelve years' imprisonment with a non-parole period of eight years.

At trial, the appellant participated in a police ERISP (Electronically Recorded Interview with a Suspected Person) in relation to the allegations involving one of the children. During that interview, he gave answers indicating he could not recall or remember the relevant events. The appellant gave evidence at trial, and his interview answers became relevant to questions of consistency and admissibility.

No objection was raised at trial to the admission of the interview, no objection was taken to the Crown Prosecutor's closing address, and defence counsel expressly declined to seek a jury direction concerning lies or consciousness of guilt. All three grounds of appeal therefore required leave under rule 4 of the Criminal Appeal Rules, which governs grounds not raised at trial.

  • Whether the reception into evidence of the appellant's answers in the ERISP, in which he said he could not recall the alleged offending, constituted a miscarriage of justice
  • Whether the Crown Prosecutor's closing address, which characterised those answers as lies revealing guilt, amounted to a miscarriage of justice
  • Whether the trial judge's failure to give the jury a direction on lies or consciousness of guilt constituted a miscarriage of justice, notwithstanding that defence counsel had expressly declined to request such a direction

Decision

On the first ground, the Court found no miscarriage of justice in the admission of the ERISP answers. Defence counsel made a deliberate forensic choice not to object to their admission. The appellant then gave evidence at trial, which meant the interview answers were in any event admissible as prior inconsistent statements under the Evidence Act 1995 (NSW) and as admissions. The absence of an objection at trial was consistent with a considered forensic strategy, and the Court declined to treat the admission as an error.

On the second and third grounds, the Court reached a different conclusion. The Crown Prosecutor's closing address characterised the appellant's inability to recall events as "ridiculous" answers that "reveal his guilt," describing them as "the answers of a guilty man" and asserting "of course he was lying." The Court found this language clearly invited the jury to reason that the appellant lied out of a consciousness of guilt.

The Court accepted that defence counsel's forensic choice not to seek a direction on lies placed the trial judge in a difficult position. However, all three members of the Court concluded that, given the terms of the Crown's address, fairness to the appellant required a direction regardless of that choice. Without a direction, there was a real risk the jury would treat the lies as affirmative evidence of guilt without the necessary caution required by Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234.

The failure to give a direction warning the jury that a lie does not itself constitute evidence of guilt constituted a miscarriage of justice. The Court allowed the appeal on that basis.

Orders Made

• Grant leave to appeal under r 4 of the Criminal Appeal Rules in respect of ground 3
• Allow the appeal
• Quash the convictions and sentences
• Order that there be a re-trial of the appellant
• Remit the matter for mention at the District Court at Sydney on 11 October 2019 at 9.30am

The judgment records that the Court remitted the matter for mention at the District Court at Sydney on 11 October 2019. The appeal was allowed, but the full set of consequential orders (including any retrial order) was not reproduced in the text provided.

Key Takeaways

  • A deliberate forensic choice by trial counsel not to object to evidence or seek a jury direction will ordinarily bind the accused on appeal, but this principle has limits where the fairness of the trial is at stake.
  • Where a Crown Prosecutor's closing address expressly invites the jury to treat a defendant's lies as evidence of guilt through consciousness of guilt reasoning, a direction on lies may be required even if defence counsel has specifically declined to request one.
  • Under the principles in Zoneff v The Queen, a jury must be warned that it cannot reason simply from proof of a lie to an inference of guilt; that reasoning requires a specific direction, particularly where consciousness of guilt is the implied pathway.
  • The Court of Criminal Appeal confirmed that the strength of the Crown's closing address on lies is a critical factor in determining whether the absence of a direction constitutes a miscarriage of justice, regardless of what trial counsel requested.
  • Rule 4 of the Criminal Appeal Rules does not preclude appellate review of matters not raised at trial, but it does require the appellant to obtain leave, and the courts will scrutinise whether a genuine miscarriage of justice occurred rather than simply an unfavourable forensic outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61M
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), ss 43, 55, 56, 81, 137

Cases:
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Dhanoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- R v Cameron (1983) 2 NSWLR 66
- Roos v R [2019] NSWCCA 67
- Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
- The Queen v Taufahema (2007) 228 CLR 232; [2007] HCA 11
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46