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Court of Criminal Appeal 9 September 2022

Madden v R

[2022] NSWCCA 196

Sexual offences
MISCARRIAGE OF JUSTICE UNREASONABLE VERDICT

Citation: Madden v R [2022] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 9 September 2022
Judges: Ward P (principal judgment); Hulme J; Bellew J (both agreeing)

Background

The appellant was convicted by a jury in the District Court on 54 counts relating to historic sexual offences against three adolescent complainants, alleged to have occurred in the late 1980s and early 1990s. The offences involved contraventions of multiple provisions of the Crimes Act 1900 (NSW). Following conviction, the appellant was sentenced to an aggregate term of 15 years' imprisonment with a non-parole period of 10 years.

The trial was remarkably compressed. The Crown case was presented over three days, defence counsel's cross-examination of all three complainants occupied a combined total of six pages of transcript, and the closing address ran to 36 lines. The entire trial, from commencement of the Crown case to verdict, was concluded within a matter of days.

On appeal, the appellant challenged the convictions on five grounds: statute-bar, unreasonable verdicts, miscarriage of justice arising from the Crown's closing address, erroneous judicial directions on tendency reasoning, and incompetence of trial counsel.

  • Whether the prosecution of certain counts was statute-barred under the now-repealed ss 78 and 78T of the Crimes Act 1900 (NSW), and whether the amending legislation that removed those limitation periods operated retrospectively.
  • Whether the verdicts on a range of counts were unreasonable or unsupported by the evidence, including where time was made an essential element of the offence, where complainant evidence could not be reconciled, and where evidence was said to be insufficiently particular.
  • Whether the Crown Prosecutor's closing address occasioned a miscarriage of justice by conflating tendency and coincidence reasoning.
  • Whether the trial judge's directions on tendency reasoning were erroneous.
  • Whether the incompetence of trial counsel occasioned a miscarriage of justice and deprived the appellant of a fair trial.

Decision

Statute-bar (Ground 1): The Crown conceded that counts 20, 23 and 24 were statute-barred because the repeal of s 78T (which imposed a 12-month limitation period for offences under s 78K) was not made retrospective by the amending legislation. Those convictions were quashed and acquittals substituted. By contrast, the Court found that the language of the legislation repealing s 78 (the equivalent limitation period for offences under s 66C(1)) unambiguously expressed a retrospective legislative intent, displacing the ordinary presumption against retrospectivity of penal statutes. Counts 43 to 45 were therefore not statute-barred.

Unreasonable verdicts (Ground 2): The Court found that time had been made an essential ingredient of counts 1 to 3 by the way the Crown conducted the trial. Because the evidence did not exclude a reasonable doubt that the offending occurred in 1986, outside the dates alleged on the indictment, the verdicts on those counts were unreasonable and acquittals were entered. For counts 20 to 22 and 51 to 53, the Court found that the evidence of two complainants concerning particular incidents was irreconcilable: both versions could not be correct, yet the jury convicted on all relevant counts. The Court held the jury ought to have entertained a reasonable doubt, and acquittals were substituted. For the remaining challenged counts (including 8, 10, 12, 34 to 38, 44, 46, 47 and 54 to 57), inconsistencies in the complainants' accounts were characterised as credibility issues properly within the jury's province, and those verdicts were upheld as reasonable.

Tendency reasoning and Crown address (Grounds 3 and 4): The Court rejected both grounds. The Crown's closing address constituted an acceptable form of tendency reasoning, properly directed to the proposition that, if the jury accepted the tendency, it could make the alleged conduct in relation to each complainant and each count more likely. The trial judge had also specifically emphasised the requirement for proof beyond a reasonable doubt on each individual count. No miscarriage of justice was established.

Incompetence of counsel (Ground 5): The Court upheld this ground in respect of all remaining counts. Defence counsel's cross-examination of three complainants occupied just six pages of transcript, and the closing address was confined to reciting the onus and standard of proof, a matter already addressed by both the Crown and the trial judge. There was no critical analysis of the prosecution evidence at all. The Court found no rational forensic basis for the failure to highlight the significant inconsistencies in the evidence to the jury. This level of inadequacy took the case outside the ordinary conduct of a trial and constituted incompetence that deprived the appellant of a fair trial. Because tendency evidence pervaded every count, all remaining convictions were infected. Those counts were quashed and remitted for retrial.

Orders Made

  • Time for filing the notice of appeal extended to 8 November 2021.
  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on counts 1 to 3, 20 to 24 and 51 to 53 quashed; verdicts of acquittal substituted on those counts.
  • Convictions on the remaining counts quashed and matter remitted to the District Court for retrial.

Key Takeaways

  • Where the Crown makes time an essential element of an offence by the way it conducts the trial, a verdict is unreasonable if the evidence does not exclude a reasonable doubt that the offending occurred outside the alleged date range.
  • Where two complainants give irreconcilable accounts of a particular incident and the jury convicts on counts relating to both, the Court of Criminal Appeal may find that a reasonable doubt ought to have arisen and substitute acquittals.
  • Under the retrospectivity principles applied by the Court, whether a repealing statute removes an existing limitation period for prosecution depends on the specific language of the amending legislation, not merely the general presumption against retrospective operation of penal statutes.
  • A defence counsel's closing address confined entirely to restating the onus and standard of proof, with no critical analysis of the prosecution evidence, was held to be so incompetent as to deprive the accused of a fair trial and to constitute a miscarriage of justice.
  • Where tendency evidence pervades a multi-count trial, the Court found that counsel incompetence affecting the tendency evidence is capable of infecting all counts, even those where the incompetence was less directly felt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 66C(1), 78, 78K, 78L, 78Q, 78T, Sch 11
- Criminal Legislation (Amendment) Act 1992 (NSW)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 16(1)(g), 159(1)
- Evidence Act 1995 (NSW), ss 32, 38, 97, 98, 101, 165B
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Ali v R (2005) 79 ALJR 662; [2005] HCA 8
- Doyle v R [2014] NSWCCA 4
- Hoyle v R (2018) 339 FLR 11; [2018] ACTCA 42
- Hughes v R (2017) 263 CLR 338; [2017] HCA 20
- KJR v R (2007) 173 A Crim R 226; [2007] NSWCCA 165
- KRM v R (2001) 206 CLR 221; [2001] HCA 11
- Libke v R (2007) 239 CLR 599; [2007] HCA 30
- M v R (1994) 181 CLR 487; [1994] HCA 63
- McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52
- MFA v R (2002) 213 CLR 606;