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Court of Criminal Appeal 23 February 2022

Dries v R

[2022] NSWCCA 33

Sexual offences
CRIME S 293 CRIMINAL PROCEDURE ACT APPEAL DISMISSED

Citation: Dries v R [2022] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 23 February 2022
Judges: Macfarlan JA at [1]; Rothman J at [71]; Dhanji J at [75]

Background

The appellant was charged with sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The complainant was aged 4 or 5 at the time of the alleged offending. A District Court jury returned a unanimous guilty verdict in August 2020.

The difficulty arose during the Crown Prosecutor's closing address. The Prosecutor told the jury that, when assessing the complainant's evidence, they should consider her "physical size, her age, her life experience, her lack of sexual experience and her maturity." No evidence had been led on that topic, and the reference to a lack of sexual experience was accepted by both parties to be contrary to the legislative policy reflected in s 293 of the Criminal Procedure Act 1986 (NSW), which renders evidence disclosing or implying a complainant's lack of sexual experience inadmissible in prescribed sexual offence proceedings.

The defence applied, in the absence of the jury, for the trial judge to discharge the jury. The judge refused the application. Instead, the Crown retracted the statement before the jury and the trial judge directed the jury to disregard it. The appellant sought leave to appeal, arguing that those steps were insufficient to overcome the resulting prejudice.

  • Whether the trial judge erred in refusing to discharge the jury following the Crown Prosecutor's reference to the complainant's lack of sexual experience in closing address.
  • Whether the Crown's retraction and the trial judge's direction to the jury adequately cured any prejudice arising from the impermissible statement.
  • Whether the appellant suffered a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

Decision

Macfarlan JA, with whom Rothman J and Dhanji J agreed, concluded that the trial judge did not err in refusing to discharge the jury and that no miscarriage of justice had occurred. Leave to appeal was granted, but the appeal was dismissed.

The court accepted that the reference to the complainant's lack of sexual experience was contrary to the legislative policy reflected in s 293, even though s 293 is directed at "evidence" rather than submissions by counsel. However, the court found that the combination of the Crown Prosecutor's retraction and the trial judge's clear direction to the jury to disregard the remark was sufficient to overcome any prejudice to the appellant.

Rothman J emphasised that the remedy for an impermissible statement does not automatically require a discharge. The appropriate response depends on whether the prejudice is capable of correction, taking into account the particular circumstances of the trial and the nature of the error. His Honour observed that a correction can sometimes compound unfairness, and that a more general direction may work better in some cases. Here, the trial judge handled the issue commendably.

Dhanji J added that it was troubling a prosecutor in a sexual assault trial had addressed the jury in that manner. However, his Honour was satisfied that, having regard to the steps taken, the appellant had not established a miscarriage of justice within the meaning recently elucidated by the High Court in Edwards v The Queen [2021] HCA 28, Hofer v The Queen [2021] HCA 36, and Orreal v The Queen [2021] HCA 44.

Orders Made

• Leave to appeal granted.
• Appeal dismissed.

Key Takeaways

  • A Crown Prosecutor's reference in closing address to a sexual assault complainant's lack of sexual experience, made without evidentiary foundation, is contrary to the legislative policy reflected in s 293 of the Criminal Procedure Act 1986 (NSW), even though s 293 is framed in terms of "evidence" rather than submissions.
  • Refusal to discharge a jury following such an error does not automatically constitute a miscarriage of justice. The appropriate remedy turns on whether the prejudice is capable of correction in the circumstances.
  • Where a Crown Prosecutor retracts an impermissible statement and the trial judge gives a clear direction to the jury to disregard it, those steps may together be sufficient to overcome the prejudice caused.
  • The Court of Criminal Appeal confirmed that the concept of miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) is to be understood in accordance with the approach recently clarified by the High Court in Edwards, Hofer, and Orreal.
  • Dhanji J declined to accept that every failure to put an arguably inconsistent version to a witness necessarily constitutes a breach of the rule in Browne v Dunn; the unfairness the rule addresses arises primarily from the situation where a party later leads contradictory evidence from another witness without having put that contradiction to the earlier witness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 293

Cases:
- Browne v Dunn (1893) 6 R 67
- Caleo v R [2021] NSWCCA 179
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808
- Greenaway v R [2021] NSWCCA 253
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Maric v The Queen (1978) 52 ALJR 631
- Medich v R [2021] NSWCCA 36
- Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486
- Munn v Regina; Miller v Regina [2006] NSWCCA 61
- Orreal v The Queen [2021] HCA 44
- Rogerson v R [2021] NSWCCA 160
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
- Y v Regina [2009] NSWCCA 287