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Court of Criminal Appeal 20 December 2019

IW v R

[2019] NSWCCA 311

Sexual offences
CRIMINAL LAW EVIDENCE WHERE CROWN THEN CROSS EXAMINATION WERE WHOLLY INCONSISTENT CROWN’S CROSS SUMMING UP BY TRIAL JUDGE

Citation: IW v R [2019] NSWCCA 311
Court: NSW Court of Criminal Appeal
Date: 20 December 2019
Judges: Bathurst CJ, Fullerton J, Bellew J

Background

The appellant was a registered foster carer who, together with his wife, had taken in two children in late 2007. The complainant, who was aged six or seven at the time, alleged that the appellant had sexually assaulted her on two separate occasions during the period she was in foster care. The offences were charged under s 66A of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 25 years imprisonment.

At trial in the District Court, the appellant denied the allegations and relied substantially on evidence of his unblemished good character. A jury found him guilty on both counts on 7 August 2018, and he was sentenced to a total term of 13 years imprisonment with a non-parole period of 8 years and 8 months.

The appellant appealed his convictions on multiple grounds, including improper Crown cross-examination, erroneous directions by the trial judge, mishandling of the replaying of complainant evidence during jury deliberations, and the unreasonableness of the verdicts.

  • Whether the Crown's cross-examination of the appellant on matters previously excluded by agreement was permissible under the Evidence Act 1995 (NSW) and, if not, whether it caused a miscarriage of justice
  • Whether the trial judge's summing-up contained material errors, including erroneous references to bad character evidence, incorrect directions on good character evidence, and incorrect directions on complaint evidence
  • Whether the trial judge failed to give adequate directions when the complainant's recorded evidence was replayed to the jury during deliberations, in the absence of any reminder about the cross-examination of the complainant or the appellant's own evidence
  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the totality of the evidence

Decision

The Court found that the Crown's cross-examination of the appellant was entirely impermissible. Defence counsel had raised certain matters in the appellant's evidence in chief that had previously been excluded by agreement, and the Crown then cross-examined on those matters without obtaining leave as required under the Evidence Act 1995 (NSW). The Crown's stated justifications for the cross-examination were found to be wholly inconsistent with one another, and the Court held the cross-examination was grossly unfair to the appellant.

The summing-up was found to contain multiple material errors. The trial judge repeated an erroneous characterisation by the Crown of certain evidence as "bad character" evidence, gave incorrect directions on the use the jury could make of the appellant's good character evidence, and gave erroneous directions in relation to complaint evidence.

When the jury, during deliberations, requested that portions of the complainant's recorded evidence in chief be replayed, this occurred without the trial judge reminding the jury of the cross-examination of the complainant or the appellant's evidence. No direction was given warning the jury against giving disproportionate weight to evidence heard for a second time, and no direction reminded the jury of the need to consider all of the evidence in the trial. The Court held this failure amounted to a miscarriage of justice.

On the question of unreasonable verdicts, all three judges independently assessed the evidence and were each left with a reasonable doubt as to the appellant's guilt. The Court noted concerns about the reliability of the complainant's account of the circumstances and timing of the alleged offending, the lack of cogency in her explanation for not disclosing Facebook communications with the appellant's wife to police, and her evidence that she had no recollection of that Facebook exchange at all. Fullerton J expressly noted that reaching a state of reasonable doubt did not amount to a positive finding that the complainant gave a false account.

Orders Made

  • All grounds of appeal established (except leave to argue ground 6 refused)
  • Convictions quashed
  • Verdicts of acquittal entered

Key Takeaways

  • Where a jury requests that recorded evidence be replayed during deliberations, the trial judge must give directions warning against placing disproportionate weight on that evidence and reminding the jury to consider all of the evidence in the trial; failure to do so can constitute a miscarriage of justice.
  • The Court of Criminal Appeal confirmed that the Crown may not cross-examine an accused on credibility matters without first obtaining leave under the Evidence Act 1995 (NSW), and that internally inconsistent justifications for such cross-examination will not remedy the breach.
  • A trial judge's summing-up must accurately direct the jury on the use of good character evidence; erroneous directions on this point, particularly where good character forms a significant part of the defence, can contribute to a finding of miscarriage of justice.
  • Unreasonable verdict findings in historical sexual assault cases require independent appellate assessment of the whole of the evidence, including the credibility and reliability of the complainant, while giving appropriate weight to the jury's advantage in observing witnesses.
  • Reaching a state of reasonable doubt on appeal does not carry with it any positive finding that a complainant fabricated allegations; the Court of Criminal Appeal took care to make this distinction explicit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Evidence Act 1995 (NSW)

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Libke v The Queen (2007) 230 CLR 559
- Liberato v The Queen (1985) 159 CLR 507
- Demirok v The Queen (1977) 137 CLR 20
- Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
- Jarrett v R [2014] NSWCCA 140; (2014) 86 NSWLR 623
- ARS v R [2011] NSWCCA 266
- Greenhalgh v R [2017] NSWCCA 94
- Moore v R [2016] NSWCCA 185
- Popovic and ors v R [2016] NSWCCA 202
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- R v El-Azzi [2004] NSWCCA 455
- R v Meher [2004] NSWCCA 355
- Hill v R [2017] NSWCCA 136
- R v Castaneda (No.2) [2015] NSWSC 979
- R v Melville (1956) 73 WN (NSW) 579