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Court of Criminal Appeal 12 August 2020

Antouny v R

[2020] NSWCCA 203

Sexual offences

Citation: Antouny v R [2020] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 12 August 2020
Judges: Hoeben CJ at CL, Fagan J, Cavanagh J (judgment delivered by Cavanagh J)

Background

The applicant was convicted by a jury in the District Court on three counts of sexual intercourse with a person under the age of 10, contrary to s 66A of the Crimes Act 1900 (NSW). The offending was alleged to have occurred between December 1990 and December 1992, when the victim, the applicant's niece, was aged between seven and eight. The applicant was sentenced to an aggregate term of eight years' imprisonment with a non-parole period of four years.

The victim gave evidence as an adult, recounting three specific incidents of penetrative sexual intercourse occurring in the applicant's family home, as well as a broader pattern of inappropriate physical contact. The matter was first reported in March 1993 after the victim told a school friend, prompting involvement from the Department of Community Services and a referral to a hospital sexual assault unit. The victim did not approach police directly until 2013.

The applicant sought leave to appeal against conviction on two grounds, raising concerns about the trial judge's jury direction and the Crown Prosecutor's cross-examination of a defence witness.

  • Whether the trial judge erred in directing the jury that the applicant's answers in his record of interview were "not evidence in the same way as the witnesses have given evidence," without also directing the jury that the weight to be given to that evidence was entirely a matter for the jury.
  • Whether the Crown Prosecutor's cross-examination of the defence witness, the victim's mother, contravened s 44 of the Evidence Act 1995 (NSW) by using a document the witness had not been shown, and whether any such breach occasioned a miscarriage of justice.

Decision

Ground 1: Jury direction on record of interview evidence

The applicant argued the trial judge's direction was incomplete and potentially deflated the weight the jury would give to his record of interview. The Court rejected this ground. Having examined the direction in full context, Cavanagh J found the trial judge had not told the jury to give less weight to the record of interview and had not misdirected them on the question of weight. The direction, read as a whole, was adequate, and leave was required under the Criminal Appeal Rules because no objection had been taken at trial.

Ground 2: Cross-examination and s 44 of the Evidence Act

Section 44 of the Evidence Act 1995 (NSW) restricts cross-examination of a witness on a document unless the document has first been shown to that witness (or they have been made aware of its contents). The Crown conceded that one portion of the cross-examination of the victim's mother, involving a Westmead Hospital intake record, breached s 44. However, the Court found this concession covered only a limited part of the cross-examination, and the remaining portions were conducted in compliance with the section.

On the question of miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court found none was established. No objection had been taken at trial to the third part of the impugned cross-examination, meaning the trial judge made no error in failing to intervene. Critically, the Court accepted the Crown's submission that the limited non-compliant questioning concerned a topic that could not have surprised the witness and would have produced the same answers even if the section had been properly observed. The Court also noted that Ground 1 had not been established, so the applicant's cumulative argument, that the two grounds together demonstrated miscarriage, also fell away.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A jury direction concerning the nature of record of interview evidence will not be treated as erroneous merely because it does not explicitly address the jury's role in weighing that evidence, provided the direction as a whole is not misleading and does not deflate the weight of the evidence.
  • Under s 44 of the Evidence Act 1995 (NSW), cross-examination using a document is restricted unless the witness has first been shown the document or made aware of its contents; this rule applies to all witnesses, including defence witnesses cross-examined by the Crown.
  • Where a breach of s 44 is conceded, a miscarriage of justice will not automatically follow. The Court of Criminal Appeal examined whether the non-compliant questioning could have produced different answers or caused actual prejudice to the applicant's case before concluding no miscarriage occurred.
  • No objection at trial to a particular line of cross-examination is a material factor in an appellate court's assessment of whether any error occurred at the trial level.
  • In dismissing the appeal, the Court treated the two grounds as analytically distinct; the failure to establish the jury direction ground meant the applicant's combined-error miscarriage argument could not succeed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 44

Cases
- ARS v R [2011] NSWCCA 266
- ASIC v Rich [2006] NSWSC 643; 201 FLR 207
- Azzopardi v R (2001) 205 CLR 50; [2001] HCA 25
- Burke (a pseudonym) v R (2013) 40 VR 161; [2013] VSCA 351
- Mule v The Queen [2005] HCA 49; 221 ALR 85
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v S [2003] NSWCCA 122
- R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20