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Court of Criminal Appeal 8 November 2021

Franklin v Regina

[2021] NSWCCA 260

Sexual offencesAssault & violenceDomestic & family violence
CRIME APPEAL DOMESTIC VIOLENCE AND SEX OFFENCES FRESH EVIDENCE WHETHER “FRESH EVIDENCE” ALLEGATIONS OF POLICE MISCONDUCT

Citation: Franklin v Regina [2021] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 8 November 2021
Judges: McCallum JA; Beech-Jones J; Hamill J

Background

The applicant, a barrister, was convicted by a jury in February 2009 of three domestic violence and sex offences against his then-girlfriend, committed on 9 April 2007 at a hotel in the Canberra region. He had separately pleaded guilty to assault occasioning actual bodily harm (punching the complainant in the face). The jury found him guilty of common assault, detaining a person with intent to obtain sexual gratification, and aggravated sexual intercourse without consent.

He was sentenced to a total of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months. By the time the appeal was commenced, his sentences had already expired.

The applicant filed a notice of appeal almost 10 years out of time, in September 2020. Because the appeal raised no pure questions of law, he required both an extension of time and leave to appeal. The Court assessed the full merits of the appeal in order to determine whether the extension should be granted.

  • Whether the trial judge erred in admitting DNA evidence at trial, including questions about the proper application of the Evidence Act 1995 (NSW), ss 135, 136, and 137
  • Whether the trial judge erred in declining to discharge a juror or the entire jury during the trial
  • Whether fresh evidence, including expert reports said to undermine the complainant's credibility, ought to be admitted and whether it gave rise to doubt about the convictions
  • Whether a post-trial diagnosis of Autistic Spectrum Disorder (ASD) in the applicant, and accompanying expert evidence about its implications, constituted a miscarriage of justice
  • Whether allegations of police misconduct warranted intervention
  • Whether the verdicts were unreasonable in light of the whole of the evidence

Decision

The Court granted the extension of time given the seriousness of the charges and the detail of submissions, but ultimately dismissed the appeal on all grounds.

On the DNA evidence, the Court found no error in the trial judge's admission of that evidence. The DNA evidence corroborated the complainant's account and was appropriately before the jury.

On the juror issue, the Court was not persuaded that the trial judge erred in declining to discharge the juror or jury. No miscarriage of justice arose from that decision.

Regarding fresh evidence, the Court admitted the report and oral evidence of Professor Young (a psychologist who addressed the implications of the applicant's post-trial ASD diagnosis) but rejected the remainder of the applicant's affidavit and its annexures, including other expert reports said to undermine the complainant's credibility. The Court found that the ASD diagnosis and Professor Young's evidence did not give rise to any doubt about the convictions. The other purported fresh evidence did not meet the required threshold either.

On the question of unreasonable verdict, the Court conducted an independent review of the trial record and found the Crown case to be extremely strong. The complainant presented at a McDonald's restaurant in distress, made contemporaneous complaints of physical and sexual abuse, and her account was substantially supported by her physical injuries, the timing of her departure from the hotel, and the DNA evidence. The applicant's own account contained inconsistencies, and his concession that he had punched the complainant was, in the Court's words, a weak starting point for his defence. The Court found that no rational basis existed for a reasonable doubt as to guilt, and independently entertained no such doubt itself. Leave to raise the ground concerning alleged police misconduct was refused, as it involved unwarranted allegations and further attempts to adduce inadmissible fresh evidence.

Orders Made

  • Time extended until 1 September 2020 for the applicant to seek leave to appeal against his conviction
  • Leave granted to raise ground 2(c) only; leave refused for grounds 2 (otherwise) and 3
  • The applicant's affidavit sworn 3 September 2020 and its annexures rejected, except for the report of Professor Young dated 3 September 2020
  • The report of Professor Young (except the first two lines on page 4) and her oral evidence of 10 May 2021 admitted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a very lengthy delay in filing a notice of appeal does not automatically preclude an extension of time; the court must consider the interests of justice, including the prospects of success, and may need to assess the full merits to do so.
  • A post-trial diagnosis of Autistic Spectrum Disorder in an accused person does not automatically constitute a miscarriage of justice. Expert evidence about such a diagnosis may be admitted as fresh evidence, but it must actually give rise to doubt about the convictions to warrant intervention.
  • Sufficient evidence can support a finding of no unreasonable verdict even where contested; here, contemporaneous distress, consistent physical injuries, timing evidence, and DNA findings collectively presented a case that the Court found left no rational basis for reasonable doubt.
  • Fresh evidence tendered on appeal is subject to strict assessment. Reports said to undermine a complainant's credibility will be rejected if they do not meet the necessary threshold for admissibility or do not genuinely give rise to doubt.
  • Allegations of police misconduct raised on appeal will not readily secure leave to appeal, particularly where they are characterised as unwarranted and are accompanied by further attempts to place inadmissible material before the Court.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 293
- Crimes Act 1900 (NSW), ss 61, 61J(1), 86(2)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 6(1), 12(1)
- Evidence Act 1995 (NSW), ss 135, 136, 137
- Jury Act 1977 (NSW), s 53B(d)

Cases
- Caleo v R [2021] NSWCCA 179
- Festa v The Queen (2001) 208 CLR 593
- GBF v The Queen (2020) 384 ALR 569
- Kentwell v The Queen (2014) 252 CLR 601
- MRW v R [2011] NSWCCA 260
- Norman v R [2012] NSWCCA 230
- Pell v The Queen (2020) 268 CLR 123
- R v Bauer (2018) 266 CLR 56
- R v Thompson [2014] EWCA 836
- Ratten v The Queen (1974) 131 CLR 510
- RD (a pseudonym) v R [2021] NSWCCA 94
- S v R [2008] EWCA Crim 6
- TKWJ v The Queen (2002) 212 CLR 124
- Xie v R [2021] NSWCCA 1