AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 25 November 2020

Glenn (a pseudonym) v R

[2020] NSWCCA 308

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT PRE TRIAL RULING ADDITIONAL CONTEXT EVIDENCE

Citation: Glenn (a pseudonym) v R [2020] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 25 November 2020
Judge(s): Hoeben CJ at CL, Button J, N Adams J

Background

The applicant was convicted by a jury in 2017 of two offences against his former partner: aggravated break and enter of a dwelling house to commit a serious indictable offence (attempted sexual intercourse), and sexual intercourse without consent. The Crown's case was that he drove four hours, arrived intoxicated at the complainant's home at 5am, and sexually assaulted her. The complainant did not physically resist, later explaining she submitted out of fear of serious violence based on a prior incident in 1998 in which the applicant had abducted her at gunpoint, led police on a chase, and caused her to sustain fractured vertebrae in the ensuing crash.

The defence position was that the complainant had invited him over, that the sexual intercourse was consensual, and that he had been set up. After the events, the complainant left to go shopping and made a triple-0 call to police in which she referenced the 1998 incident and her fear of the applicant. The applicant was sentenced to an aggregate term of 11 years imprisonment with a non-parole period of 7 years.

  • Whether the trial judge erred in admitting additional "context evidence" of historical acts of maltreatment beyond what was permitted in a pre-trial ruling, and without regard to s 130A of the Criminal Procedure Act 1986 (NSW)
  • Whether the trial judge erred in admitting evidence of the reasons the complainant did not complain about prior incidents referred to in that context evidence
  • Whether prosecutorial conduct during cross-examination of the applicant and in the Crown's closing address occasioned a miscarriage of justice
  • Whether the trial judge erred by failing to give a "consciousness of guilt" direction (also known as an Edwards direction) in relation to the applicant's act of contacting police after the incident

Decision

Ground 1 (additional context evidence): The Court found the trial judge had admitted context evidence going beyond what the pre-trial ruling had permitted, and had done so without the procedural safeguards required under s 130A of the Criminal Procedure Act. Button J observed that the context evidence, which included the 1998 incident and five other incidents, had an obvious potential to "swamp" the trial unless presented in a tightly controlled manner. In the event, it did precisely that.

Ground 2 (reasons for non-complaint): Button J would have applied Criminal Appeal Rules r 4 to this ground because the evidence was not objected to at trial. N Adams J addressed the ground on its merits. The Court found that while some of this evidence may have been admissible as context, the manner in which it was led contributed to the overall trial miscarriage when considered cumulatively with the other identified errors.

Ground 3 (prosecutorial conduct): This ground attracted significant criticism from all three judges. The Court found that the Crown Prosecutor's cross-examination of the applicant and the closing address fell below the standard required of a Minister of Justice. Hoeben CJ at CL confirmed he had listened to the audio recording of the cross-examination and agreed entirely with N Adams J's conclusions. Button J specifically condemned the use of the phrase "not give a rat's arse" in the closing address, stating it detracted from the solemnity of the proceedings, risked belittling the opposing evidence, and exemplified what had gone wrong in the trial.

Ground 4 (consciousness of guilt direction): The Court found the trial judge should have given an Edwards direction in relation to the applicant's act of telephoning police after the incident. Under Edwards v The Queen (1993) 178 CLR 193, where post-offence conduct is relied upon as evidence of consciousness of guilt, the jury should be directed that such conduct is only capable of bearing that inference if there is no innocent explanation reasonably available. While the failure to give this direction alone did not establish a lost real chance of acquittal, the Court was satisfied that when taken together with the matters under Ground 3, it contributed to the trial miscarrying. Leave to appeal was granted and the appeal was allowed.

Orders Made

  • Leave to appeal granted (to the extent necessary)
  • Appeal allowed
  • New trial ordered
  • Matter listed for arraignment in the District Court at Parramatta on 4 December 2020 at 9:30am

Key Takeaways

  • Context evidence admitted in a criminal trial must be confined to what is permitted by any pre-trial ruling; departing from that ruling without observing the procedures under s 130A of the Criminal Procedure Act 1986 (NSW) can constitute error.
  • Where multiple items of background or relationship evidence are admitted together, courts are required to manage their presentation carefully; evidence with a strong potential to prejudice the accused can overwhelm rather than merely contextualise a trial.
  • A Crown Prosecutor acts as a Minister of Justice, not merely as a partisan advocate; conduct in cross-examination and address that departs from the required standard of fairness and decorum can constitute a miscarriage of justice.
  • Under the Edwards principle, where post-offence conduct is relied upon as evidence of a consciousness of guilt, a jury direction is required to guard against the jury drawing that inference where an innocent explanation is reasonably available.
  • Cumulative errors, none of which may be sufficient alone to ground a successful appeal, can together establish that a trial has miscarried so as to warrant a new trial under the Criminal Appeal Act.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 112(2)
- Criminal Appeal Act (NSW), s 6(3)
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW), ss 41, 137

Cases:
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Pell v The Queen [2020] HCA 12
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Curran v R [2020] NSWCCA 171
- Roos v R [2019] NSWCCA 67
- Hughes v R (2015) NSWLR 474; [2015] NSWCCA 330
- Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321
- KNP v R [2006] NSWCCA 213
- Vickers v R [2006] NSWCCA 60
- Causevic v R [2008] NSWCCA 238
- Patterson v R (Cth) [2001] NSWCCA 316
- R v Liristis [2004] NSWCCA 287
- R v Rugari [2001] NSWCCA 64
- R v Fordham (1997) 98 A Crim R 359
- R v Obeid (No. 4) [2015] NSWSC 1442