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Court of Criminal Appeal 21 June 2021

R v WS

[2021] NSWCCA 124

Sexual offences

Citation: WS v R [2021] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 21 June 2021
Judge(s): Hoeben CJ at CL, Price J, Ierace J

Background

The appellant, a dentist who practised in Armidale and surrounding country towns during the 1980s, was tried in the District Court on a 26-count indictment alleging sexual offences against four male complainants, all of whom had been teenagers or younger at the time of the alleged conduct. The Crown case was that the appellant used hypnotherapy techniques, offered during both dental and standalone relaxation sessions, to gain access to and sexually abuse the complainants.

After a seven-week trial before Syme DCJ and a jury, the appellant was convicted on multiple counts relating to three of the four complainants. He was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 8 years.

The appellant appealed to the Court of Criminal Appeal on two grounds: first, that the trial miscarried because of how the prosecutor used a recorded conversation between the appellant and one complainant (PW) in the closing address, and because of inadequate directions from the trial judge on that material; and second, that the verdicts on certain counts were unreasonable and could not be supported by the evidence.

  • Whether the prosecutor's use, in closing address, of out-of-court statements made by the appellant to complainant PW in a recorded 2014 conversation gave rise to a miscarriage of justice, either by itself or in combination with an absence of adequate jury directions on that material.
  • Whether the failure to object at trial or to seek further directions amounted to a forensic choice by defence counsel that precluded the ground of appeal, or whether leave should nonetheless be granted under rule 4 of the Criminal Appeal Rules.
  • Whether the verdicts on counts relating to PW and JW were unreasonable or could not be supported having regard to the evidence.

Decision

Ground 1: The recorded conversation and closing address

The Crown's closing address made use of statements from a recorded conversation between the appellant and PW that took place in 2014. The Court found that the way this material was deployed in the prosecutor's address caused the trial to miscarry. Because no objection was raised at trial and no further directions were sought, the Court was required to consider whether leave should be granted under rule 4 of the Criminal Appeal Rules, which ordinarily requires such objection to have been taken at first instance.

The Court acknowledged the general principle that the failure to object may reflect a deliberate forensic choice by defence counsel, which courts are generally reluctant to disturb on appeal. However, the Court concluded that the manner in which the prosecutor used the recorded conversation, and the absence of adequate corrective directions from the trial judge, produced a miscarriage of justice sufficient to warrant the grant of leave and the allowance of the appeal on Ground 1.

Ground 2: Unreasonable verdicts

The Court's reasoning on Ground 2, concerning whether the verdicts relating to PW and JW were unreasonable, is not reproduced in the portions of the judgment available for this summary. The ultimate orders made indicate that the appeal was allowed on the basis of Ground 1, with all convictions quashed and a retrial ordered.

Orders Made

  • Leave to appeal granted under rule 4 of the Criminal Appeal Rules in respect of Ground 1.
  • Appeal allowed.
  • All convictions and the sentence quashed.
  • Retrial of the appellant ordered.
  • Matter remitted for mention at the District Court at Sydney at 9:30am on 2 July 2021.

Key Takeaways

  • A prosecutor's closing address that misuses out-of-court statements made by an accused can give rise to a miscarriage of justice warranting appellate intervention, even where no objection was taken at trial.
  • Rule 4 of the Criminal Appeal Rules (NSW) requires that an objection be raised at trial before an appellate ground can be relied upon, but the Court of Criminal Appeal retains the power to grant leave where a miscarriage of justice is established despite the absence of objection.
  • The absence of an objection at trial does not automatically constitute a forensic choice that forecloses an appeal; the court will examine whether a genuine miscarriage of justice has occurred.
  • Where a trial judge fails to give adequate directions to remedy a prejudicial element in the prosecutor's closing address, that omission may itself contribute to a miscarriage of justice.
  • Quashing convictions and ordering a retrial, rather than entering acquittals, reflects the Court's assessment that the error was procedural in nature and did not require a finding that the evidence was incapable of supporting conviction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D(1), 81
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW), s 97
- Criminal Code Act 1899 (Qld), s 23(1)(b)

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- IW v R [2019] NSWCCA 311
- DC v R [2019] NSWCCA 234
- Roos v R [2019] NSWCCA 67
- Pillay v R (2014) 43 VR 327; [2014] VSCA 249
- R v Dal [2005] QCA 281