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Court of Criminal Appeal 24 September 2021

Hewitt v R

[2021] NSWCCA 227

Sexual offences

Citation: Hewitt v R [2021] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 24 September 2021
Judges: Payne JA; Garling J; Wright J

Background

The appellant was tried in the District Court before Wilson SC DCJ and a jury on two counts of indecent assault and one count of sexual intercourse without consent. The charges arose from events at a birthday party held at Pearl Beach in November 2016, where the appellant and the complainant were both members of the same close friendship group.

The Crown alleged that the appellant had sexually touched the complainant while they were in a spa (count 1), digitally penetrated her while she slept on a couch (count 2), and kissed the back of her neck (count 3). The appellant denied any non-consensual conduct, contending that the complainant had invited him to lie next to her and that he placed his hand in her waistband only in response to her "grinding" against him.

The jury acquitted the appellant on counts 1 and 3 but returned a guilty verdict on count 2. The appellant was sentenced to a three-year community correction order, including 450 hours of community service. He then sought leave to appeal against his conviction on three grounds.

  • Whether the trial judge erred in failing to direct the jury on how to use a text message and a recorded telephone call as admissions of guilt (ground 1)
  • Whether a miscarriage of justice occurred because the trial judge failed to put the appellant's defence case fairly before the jury (ground 2)
  • Whether a miscarriage of justice occurred because the trial judge failed to give a full Liberato direction (ground 3)

Decision

Ground 2: Failure to put the defence case fairly. Payne JA (with Garling and Wright JJ agreeing) held that a trial judge is required to analyse the main evidential matters adduced at trial and accurately and fairly summarise both parties' arguments for the jury. That obligation is not displaced by s 161 of the Criminal Procedure Act 1986 (NSW). In this case, the trial judge did not, in any real or meaningful way, summarise the appellant's case. The judge also gave a clear and material misdirection about the use the jury could make of certain context evidence. Both failures produced a miscarriage of justice.

The Court confirmed that the duty to put both cases fairly is not confined to complex or lengthy trials. Although the Crown case appeared strong, it would have been inappropriate to apply the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) where the defence case was never properly placed before the jury. Leave to appeal on this ground was granted and the appeal was allowed.

Ground 3: Incomplete Liberato direction. A Liberato direction (drawn from Liberato v The Queen (1985) 159 CLR 507) requires a trial judge to instruct the jury that, even if they do not positively believe the accused, they must acquit if his evidence causes or might cause them to have reasonable doubt. The trial judge did not give a complete direction in those terms, and this further miscarriage of justice independently supported quashing the conviction.

Ground 1: Failure to direct on admissions. The Court refused leave on this ground. No such direction had been requested by the appellant's experienced senior counsel at trial, no specific direction was formulated on appeal, and there was a plausible tactical reason why counsel may have deliberately avoided seeking the direction, given it might have emphasised the statements as confessions. The absence of a request at trial was a significant indicator that no miscarriage of justice had been occasioned in the atmosphere of the trial.

Orders Made

  • Leave to appeal on ground 1 refused
  • Leave to appeal on ground 2 granted
  • Appeal allowed
  • Conviction on count 2 quashed
  • Proceedings remitted to the District Court arraignment list at Gosford on 30 September 2021

Key Takeaways

  • A trial judge's duty to analyse the evidence and fairly summarise the cases for both prosecution and accused applies to all criminal trials, not only lengthy or complex ones, and is not overridden by s 161 of the Criminal Procedure Act 1986 (NSW).
  • Where a defence case is not put fairly before the jury, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) will ordinarily be unavailable, even where the Crown case appears strong on its merits.
  • An incomplete Liberato direction constitutes a miscarriage of justice independently capable of grounding a successful conviction appeal.
  • The absence of a request for a particular jury direction by experienced trial counsel is a significant factor weighing against a finding of miscarriage of justice on that ground when the issue is raised for the first time on appeal.
  • In dismissing ground 1, the Court of Criminal Appeal reinforced that an appellant must at minimum formulate the specific direction said to have been required before an appellate court can assess whether its absence caused a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), s 161
- Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Key Cases:
- Liberato v The Queen (1985) 159 CLR 507
- De Silva v The Queen (2019) 268 CLR 57
- Castle v The Queen (2016) 259 CLR 449
- Hargraves v The Queen (2011) 245 CLR 257
- Domican v The Queen (1992) 173 CLR 555
- The Queen v Getachew (2012) 248 CLR 22
- RPS v The Queen (2000) 199 CLR 620
- Burns v The Queen (1975) 132 CLR 258
- The Queen v Dookheea (2017) 262 CLR 402
- OKS v Western Australia (2019) 265 CLR 268
- Kalbasi v Western Australia (2018) 264 CLR 62
- ARS v R [2011] NSWCCA 266
- Greenhalgh v R [2017] NSWCCA 94
- Flood-Smith v R [2018] NSWCCA 103
- R v Davis [1999] NSWCCA 15