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Court of Criminal Appeal 1 December 2020

Clement v R

[2020] NSWCCA 312

Sexual offences
CRIMINAL PROCEDURE TRIAL LIES WHERE NO DIRECTION TO JURY GIVEN

Citation: Clement v R [2020] NSWCCA 312
Court: NSW Court of Criminal Appeal
Date: 1 December 2020
Judge(s): Payne JA (with Bellew J and Wright J agreeing)

Background

The applicant was tried in the NSW District Court in September 2019 on five counts of aggravated sexual assault and indecency against a complainant who was aged between 8 and 10 at the time of the alleged offending. The applicant was a family acquaintance the complainant referred to as "uncle." The jury returned guilty verdicts on all five counts, and the applicant was sentenced to an aggregate term of 4 years and 9 months' imprisonment.

As part of the police investigation, the complainant made two lawfully recorded telephone calls (known as pretext calls) to the applicant in March and April 2018. Both recordings were admitted into evidence at trial. In the first call, the applicant denied remembering any offending but made statements including "I'm sorry if I did" and "I'm gobsmacked," without explicitly admitting the alleged conduct.

Before final addresses, the Crown Prosecutor told the trial judge that the Crown was not relying on the first pretext call as containing admissions, and was not relying on consciousness of guilt reasoning. Despite that concession, the Crown's closing address then submitted to the jury that the applicant had made truthful admissions in the first call, and that those admissions showed his evidence in court was a lie. The trial judge directed the jury accordingly, and no corrective direction was sought by defence counsel at trial.

  • Whether the trial judge erred by directing the jury that the first pretext call contained admissions by the applicant and that it was open to conclude he had lied in his evidence, in circumstances where the Crown had earlier disclaimed any such reliance.
  • Whether the absence of a direction (of the kind described in Edwards v The Queen or Zoneff v The Queen) regarding the use of lies evidence occasioned a miscarriage of justice.
  • Whether leave to appeal should be granted under r 4 of the Criminal Appeal Rules (NSW), which requires an applicant to demonstrate that a miscarriage of justice occurred, where no direction had been requested at trial.

Decision

The Court of Criminal Appeal held that the applicant made no admissions in the first pretext call. Despite that, the Crown invited the jury to find admissions had been made, and the trial judge directed the jury that it was open to reason from those alleged admissions that the applicant had revealed "the truth" and had lied in his evidence. Payne JA found this direction was an error.

The trial judge should have recognised the inconsistency between the Crown's initial concession and its subsequent closing submissions. His Honour should have enquired whether the Crown was withdrawing its concession, and if lies reasoning was to be relied upon, required the Crown to identify precisely what admissions had been made and what lies were said to have been told. That step was not taken.

Where lies reasoning is to be relied upon, the principles in Zoneff v The Queen require appropriate jury directions to guard against improper reasoning. Because no such direction was given, there was a real risk the jury misunderstood the permissible use of the first pretext call evidence, including whether it could support an inference that the applicant had been dishonest in his evidence to the jury. That confusion was central to the very issues the jury had to decide.

The Court granted leave to appeal under r 4 and allowed the appeal, setting aside the convictions and ordering a new trial. The Court noted it was unnecessary to determine whether the High Court's decision in GBF v The Queen [2020] HCA 40 had altered the test for establishing a miscarriage of justice, as the applicant succeeded under the existing authority.

Orders Made

  • Leave to appeal under r 4 of the Criminal Appeal Rules granted
  • Appeal allowed
  • Convictions set aside
  • Matter remitted for retrial to the District Court arraignment list on 4 December 2020

Key Takeaways

  • Where the Crown has disclaimed reliance on a pretext call as containing admissions, a trial judge errs by subsequently directing the jury that the call reveals admissions capable of supporting an inference that the accused lied in their evidence at trial.
  • A trial judge has an obligation to identify and address the inconsistency when a Crown Prosecutor's closing address departs from a concession made before final addresses, particularly where lies reasoning is being introduced without prior notice.
  • Under the principles in Zoneff v The Queen (2000) 200 CLR 234, appropriate directions must be given to a jury where lies evidence is relied upon; the absence of such a direction can constitute a miscarriage of justice even where defence counsel made no request for one at trial.
  • Leave under r 4 of the Criminal Appeal Rules (NSW) will be granted where an applicant demonstrates a real risk that the jury misused evidence central to the issues they were required to decide.
  • In dismissing the need to resolve the GBF v The Queen question, the Court confirmed that existing miscarriage of justice principles were sufficient to determine the appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Criminal Appeal Rules (NSW), r 4

Cases
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- ARS v R [2011] NSWCCA 266
- Christian v R [2012] NSWCCA 34; (2012) 223 A Crim R 370
- Palmer v R [2018] NSWCCA 205
- GBF v The Queen [2020] HCA 40