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Court of Criminal Appeal 17 July 2020

Toohey v R

[2020] NSWCCA 166

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION EXTENSIVE MEDICAL EVIDENCE POST MORTEM FINDINGS

Citation: Toohey v R [2020] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 17 July 2020
Judge(s): Leeming JA and Rothman J (joint judgment); N Adams J (separate judgment)

Background

The appellant was charged with sexual intercourse with a child under the age of 10 years in circumstances of aggravation, contrary to s 66A(2) of the Crimes Act 1900 (NSW). This charge was severed from a separate murder indictment that had been tried in the Court of Criminal Appeal. The appellant elected to be tried by a judge sitting alone in the District Court, and entered a plea of not guilty.

The trial took place across four separate sitting days spread over approximately six weeks in late 2018. The trial judge announced a finding of guilt on 9 November 2018, without providing reasons at that time. Reasons were then delivered on 5 and 7 March 2019, some four months later, during proceedings that had been listed for sentencing.

During the delivery of reasons, the trial judge included a direction on the element of consent, which was not in issue. The Crown corrected this error immediately before an adjournment. The appellant then sought leave to appeal against the conviction.

  • Whether the trial judge's announcement of a guilty finding, unaccompanied by reasons for approximately four months, was consistent with the requirements of s 133 of the Criminal Procedure Act 1986 (NSW).
  • Whether the discontinuous conduct of the judge-alone trial raised procedural concerns.
  • Whether the verdict was unreasonable or could not be supported having regard to the evidence, including contested expert medical evidence.
  • Whether the trial judge's reasons adequately addressed the onus of proof and the applicable legal principles.

Decision

The Court of Criminal Appeal allowed the appeal and ordered a new trial, with all three judges agreeing on that outcome. Leeming JA and Rothman J adopted the detailed reasoning of N Adams J on the background, evidence, and submissions, adding their own observations on the procedural issues arising from the conduct of the trial.

The joint judgment expressed significant concern about the practice of announcing a finding of guilt months before delivering reasons that included directions on applicable legal principles. Under s 133(2) and (3) of the Criminal Procedure Act, a judge conducting a judge-alone trial must include in the judgment the legal principles applied and must take into account any warnings that would have been given to a jury. The court noted that the purpose of s 133(3) is to ensure that a finding is reached, and seen to be reached, in accordance with those warnings. Where the finding precedes the warnings by four months, that purpose is undermined. The court also observed that the correction of the consent direction at the sentencing listing illustrated the artificiality of the process, since the finding had already been made. However, as no formal ground of appeal was advanced on this point, the court did not determine it conclusively.

On the substantive grounds, N Adams J conducted a detailed review of the competing expert medical evidence relating to post-mortem findings and the interpretation of specific injuries. Her Honour disagreed with the Crown's position on ground 3 concerning the rectal haemorrhage, concluding that the trial judge was entitled to find, beyond reasonable doubt, that the injury was intentional and inflicted during a violent assault, without any requirement to identify the precise object used or the appellant's motivation. The court nonetheless found that the verdict could not stand and ordered a new trial, upholding the appeal on other grounds addressed in the full judgment (the detail of which is not reproduced in the available text).

Orders Made

  • Time for appeal extended to the extent necessary.
  • Leave to appeal granted.
  • Appeal allowed.
  • Finding of guilt made by the District Court on 9 November 2018 quashed.
  • New trial ordered.

Key Takeaways

  • Under s 133(2) and (3) of the Criminal Procedure Act 1986 (NSW), a judge conducting a criminal trial without a jury must include in the judgment the legal principles applied and must take required warnings into account before, not after, announcing a finding of guilt. Delivering reasons four months after a guilty finding raises serious questions about compliance with these obligations.
  • Where a judge-alone finding of guilt is announced without contemporaneous reasons, and warnings and directions are addressed only months later at a sentencing listing, the statutory purpose of ensuring that the finding is reached in accordance with jury-equivalent safeguards may be subverted.
  • The discontinuous conduct of a judge-alone trial across multiple sitting days interspersed with other court business is not impermissible in itself, but the Court of Criminal Appeal noted it as a relevant contextual concern distinct from the obligations imposed by s 133.
  • Once expert medical evidence establishes beyond reasonable doubt that an injury was intentionally inflicted, there is no additional obligation on the Crown to prove the specific object used or the accused's motivation.
  • A correction made to a legal direction during sentencing proceedings, after a finding of guilt has already been announced, underscores the procedural difficulties that can arise when reasons are deferred significantly beyond the date of the verdict in a judge-alone trial.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61HA, 66A(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5D
- Criminal Procedure Act 1986 (NSW), ss 131, 132, 133

Cases:
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
- DL v The Queen [2018] HCA 26; 92 ALJR 636
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1999] HCA 68
- Hopgood v R [2019] NSWCCA 246
- R v Toohey [2019] NSWCCA 182
- R v Toohey (No 2) [2017] NSWSC 1217
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43