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Court of Criminal Appeal 13 December 2021

McGuire v R

[2021] NSWCCA 287

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER CROSS RULE 4.15

Citation: [2021] NSWCCA 287
Court: Court of Criminal Appeal (NSW)
Date: 13 December 2021
Judge(s): Harrison J (at [1]), Davies J (at [64]), Dhanji J (at [65])

Background

The appellant, a 19-year-old man at the time of the alleged offences, was tried in the District Court at Lismore on two counts of aggravated sexual intercourse without consent (the complainant being 15 years old). He was acquitted of the aggravated counts but convicted of two alternative counts of sexual intercourse without consent. He received an aggregate sentence of 5 years and 9 months imprisonment with a non-parole period of 3 years and 6 months.

The Crown case was that on Easter Sunday 2018, the appellant and the complainant met through mutual acquaintances and went back to the appellant's family home, where the appellant forced the complainant to perform oral sex and digitally penetrated her without consent. The appellant's case at trial was that the sexual activity occurred but was consensual. Critically, the appellant had lied to police when initially questioned, denying any knowledge of the complainant. He admitted at trial that those statements were lies, attributing them to fear and panic.

The appeal raised two conviction grounds. The first concerned the Crown Prosecutor's cross-examination and address asserting, without an adequate factual basis, that the appellant had "tailored" his evidence after reading the prosecution brief. The second alleged that the trial judge's good character direction was deficient, particularly in relation to whether the jury could use good character when assessing the appellant's explanation for lying to police.

  • Whether the Crown Prosecutor's cross-examination and jury address alleging the appellant had "tailored" his evidence to match the prosecution brief lacked a proper factual foundation and was improperly conducted without leave under s 104(2) of the Evidence Act 1995.
  • Whether the suggestion of tailored evidence, without appropriate judicial directions, deprived the appellant of a chance of acquittal that was fairly open.
  • Whether the trial judge's good character direction was deficient in failing to direct the jury that good character was relevant to assessing the reliability of the appellant's explanation for lying to police.
  • Whether any established errors, individually or cumulatively, occasioned a miscarriage of justice.

Decision

Harrison J (with whom Davies J and Dhanji J agreed) found that the Crown's tailoring cross-examination lacked a proper evidentiary foundation. Every accused person receives the prosecution brief. There was no material to support the suggestion that the appellant had fabricated his account of consensual activity only after reading the Crown's evidence. The cross-examination carried the impermissible implication that the appellant's trial evidence was a recent invention crafted from the brief, amounting to an assertion of consciousness of guilt without a proper basis.

The court held that the tailoring allegation was particularly damaging because the case turned entirely on the appellant's credibility. The appellant's admitted lies to police already posed a significant obstacle for the defence. Layering the unfounded tailoring allegation on top of that, and having the Crown repeat it in closing address, compounded the prejudice. The trial judge repeated the Crown's submission without comment or corrective direction, further entrenching its effect. There was no discussion between counsel and the judge about directions addressing the tailoring allegation.

On the good character direction, the court found it was inadequate. While the trial judge directed the jury that good character was relevant to assessing the appellant's credibility generally, the direction did not specifically instruct the jury that good character was relevant to their assessment of the appellant's explanation for why he lied to police. Given that the lies to police were central to the Crown's attack on credibility, and the appellant's explanation for those lies (fear and panic) was a critical part of his defence, the omission was significant.

The court concluded that the combination of the unfounded tailoring cross-examination (without corrective directions) and the deficient good character direction deprived the appellant of a chance of acquittal that was fairly open, and that a miscarriage of justice had occurred. The appeal against conviction was allowed. Given the outcome on the conviction appeal, it was unnecessary to determine the sentence appeal grounds.

Orders Made

  • Leave to appeal granted.
  • Appeal against conviction allowed.
  • Convictions and sentence quashed.
  • New trial ordered.

Key Takeaways

  • Cross-examining an accused about "tailoring" evidence to match the prosecution brief requires an adequate evidentiary foundation beyond the mere fact that the accused received the brief, which every accused person is entitled to receive.
  • The Court of Criminal Appeal held that an unfounded tailoring allegation can carry the impermissible implication of recent fabrication and consciousness of guilt, and that its prejudicial effect is amplified when no corrective judicial direction is given.
  • A good character direction must be sufficiently specific to cover the particular credibility issues in a case, including whether good character is relevant to assessing an accused's explanation for prior lies to police.
  • In allowing the appeal, the Court found that the cumulative effect of the improper tailoring cross-examination and the deficient good character direction deprived the appellant of a fair chance of acquittal in a case that turned entirely on credibility.
  • Applying the principle from Melbourne v The Queen (1999) 198 CLR 1 and related authorities, the decision illustrates the stringent requirements for a fair trial where the accused's credibility is the central issue.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 104

Cases:
- Gage v R [2021] NSWCCA 222
- GBF v The Queen [2020] HCA 40
- Hofer v The Queen [2021] HCA 46
- McKey v R (2012) A Crim R 227; [2012] NSWCCA 1
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- R v ARS [2011] NSWCCA 266
- R v RJC (Court of Criminal Appeal (NSW), 18 August 1998, unrep)
- Tieu v R [2016] NSWCCA 111
- Wood v R [2012] NSWCCA 21