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Court of Criminal Appeal 26 March 2021

Mortimer v R

[2021] NSWCCA 47

Sexual offences
CRIME APPEAL AGAINST CONVICTION [2019] HCA 5 APPEAL ALLOWED CONVICTION S QUASHED NEW TRIAL ORDERED

Citation: Mortimer v R [2021] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 26 March 2021
Judge(s): Johnson J (with Garling J and Wright J agreeing)

Background

The applicant (identified by the pseudonym David Mortimer) was convicted in February 2018 at the Newcastle District Court on six counts of child sexual offences against two complainants, referred to in the judgment as Donna and Gail (both pseudonyms). The offences involved sexual abuse of the two girls, who were cousins, over periods spanning from 2009 to 2015, when each was aged between approximately seven and twelve years. The applicant was sentenced to an aggregate term of twelve years and three months imprisonment with a non-parole period of eight years.

The trial proceeded under the Child Sexual Offence Evidence Program, meaning the recorded evidence of both complainants was taken separately before trial with the assistance of a child witness intermediary. Verdicts were returned on 23 February 2018, with the applicant convicted on six of the ten counts on the indictment.

The applicant appealed against conviction on a single ground directed at the trial judge's summing up to the jury. Notably, no complaint had been raised at trial by senior counsel then appearing for the applicant, which required the Court to consider whether leave should be granted to raise the ground under Rule 4 of the Criminal Appeal Rules.

  • Whether the trial judge's directions and comments in the summing up concerning the evidence of child witnesses exceeded the limits on permissible judicial comment, as established in McKell v The Queen (2019) 264 CLR 307 and RGM v R [2012] NSWCCA 89.
  • Specifically, whether the trial judge impermissibly directed the jury to assess the complainants' credibility by reference to: (a) generalisations about children's capacity to retain, recall and recount sexual abuse; (b) observations about how witnesses generally respond to cross-examination; and (c) arguments not advanced by the Crown and not supported by the evidence.
  • Whether leave should be granted under Rule 4 of the Criminal Appeal Rules, given no objection was taken at trial.
  • Whether, if the appeal succeeded, a new trial should be ordered on all counts or whether acquittals should be directed on the counts relating to Gail (Counts 7 and 8).

Decision

The Court of Criminal Appeal upheld the ground of appeal, finding that the cumulative effect of the trial judge's statements during the summing up gave rise to a miscarriage of justice. The judge had gone beyond permissible comment by volunteering generalisations about children's memory and recollection of sexual abuse, and by offering observations about how witnesses typically respond to cross-examination, neither of which had a proper basis in the evidence or in the Crown's submissions.

Johnson J noted that the trial predated the High Court's decision in McKell v The Queen (delivered in February 2019, about a year after the trial), and this context was relevant to the absence of objection at trial. That absence did not prevent the Court from granting leave under Rule 4, particularly given the seriousness of the impugned comments and their potential effect on the jury's assessment of the complainants' credibility.

Leave was granted under Rule 4. The convictions on all six counts were quashed, along with the aggregate sentence. The errors were located in the summing up rather than in the nature or quality of the underlying evidence, which supported ordering a new trial rather than directing acquittals.

On the question of the Gail counts specifically (Counts 7 and 8), the applicant submitted that acquittals should be directed rather than a new trial ordered. The Court rejected this submission. Johnson J identified the public interest in having serious charges determined at trial, and the importance of not usurping the role of the Director of Public Prosecutions or the jury. A new trial was ordered on all six counts.

Orders Made

  • Leave granted under Rule 4 of the Criminal Appeal Rules to rely on the ground of appeal.
  • Leave to appeal against conviction granted.
  • Appeal allowed; convictions at Newcastle District Court (23 February 2018) quashed.
  • Aggregate sentence passed on 10 August 2018 quashed.
  • New trial ordered on Counts 1, 2, 3, 4, 7 and 8 of the indictment dated 5 February 2018.
  • Matter listed in the Arraignments List at the Sydney District Court on 9 April 2021.

Key Takeaways

  • The Court of Criminal Appeal confirmed that McKell v The Queen (2019) 264 CLR 307 sets binding limits on the extent to which a trial judge may volunteer comments to a jury about the evidence of child witnesses, particularly generalisations about children's memory for and recollection of sexual abuse.
  • A miscarriage of justice can arise from the cumulative effect of impermissible judicial comment, even where individual statements might not each independently constitute error, and even where no objection was raised at trial.
  • Where errors are confined to the summing up and do not go to the nature or quality of the evidence itself, a new trial is generally the appropriate remedy rather than a directed acquittal.
  • The absence of trial objection did not bar the appeal: the Court granted leave under Rule 4 of the Criminal Appeal Rules, taking into account that the trial predated the relevant High Court authority in McKell.
  • In determining whether to direct acquittals or order a new trial following quashed convictions, the public interest in having serious charges resolved at trial, and the institutional roles of both the Director of Public Prosecutions and the jury, are powerful considerations favouring a new trial.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 61J, 61M, 61N, 66A, 578A
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, Rule 4
- Criminal Procedure Act 1986 (NSW), Part 29 of Schedule 2
- Evidence Act 1995 (NSW)

Key Cases:
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- RGM v R [2012] NSWCCA 89 (referred to in catchwords as the relevant CCA authority)
- OKS v State of Western Australia (2019) 265 CLR 268; [2019] HCA 10
- ABR (a pseudonym) v R [2020] NSWCCA 33
- AL v R (2017) 266 A Crim R 1; [2017] NSWCCA 34
- Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
- McKell v R [2017] NSWCCA 291
- R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
- Galea v Galea (1990) 19 NSWLR 263
- Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
- R v Murray (1987) 11 NSWLR 12