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Court of Criminal Appeal 1 April 2022

Cox v R

[2022] NSWCCA 66

Sexual offencesAssault & violence
CRIMINAL LAW CROWN WITNESS NO MISCARRIAGE OF JUSTICE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Cox v R [2022] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 1 April 2022
Judges: Beech-Jones CJ at CL; Hamill J; Cavanagh J

Background

The applicant was convicted in the District Court of six counts of sexual intercourse without consent and one count of assault occasioning actual bodily harm, all against the same complainant. The offences were alleged to have occurred over a period of weeks in mid-2018 in the Kempsey region. The applicant was sentenced to an aggregate term of 9 years and 6 months, with a non-parole period of 6 years and 6 months.

The sole ground of appeal concerned an incident during the trial. After finishing his evidence, a Crown witness, Scott Cambourne, was in the vicinity of the jury and said words to the effect of "Don't worry. We'll get you off..." directed at the applicant. This statement was made in the presence of at least some members of the jury. The trial judge declined to discharge the jury and instead gave a direction instructing jurors who had heard the remark to ignore it and not to hold it against the applicant.

On appeal, the applicant argued that the incident, and the trial judge's response to it, had compromised the integrity of the trial and occasioned a miscarriage of justice.

  • Whether the Crown witness's statement, made in the presence of the jury, occasioned a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912
  • Whether the trial judge's direction adequately addressed the risk of prejudice to the applicant
  • Whether forms of prejudice raised for the first time on appeal, but not at trial, were sufficient to establish a miscarriage

Decision

The Court unanimously dismissed the appeal, granting leave to raise the ground but finding no miscarriage of justice when the incident was viewed in the context of the trial as a whole.

The applicant identified four forms of potential prejudice. The primary concern was that some jurors who heard the comment might view it as evidence of a conspiracy between the witness and the applicant, thereby holding the remark against the applicant. The trial judge's direction addressed this directly by telling jurors who had heard the remark to ignore it, focus on the evidence, and not hold it against the applicant. Beech-Jones CJ at CL found the direction was more than sufficient to address any prejudice to those jurors who actually heard the comment.

The Court rejected the argument that the direction itself created new prejudice. The direction deliberately avoided repeating or describing what Cambourne had said, and did not imply that the trial judge had undertaken any investigatory exercise into a potential conspiracy. The Court was satisfied that jurors who had not heard the remark would not have been informed of its content or effect by the direction.

The remaining forms of prejudice raised on appeal had not been raised at trial. The Court found those arguments carried little weight in that context and, in any event, the risks they identified did not materialise. No miscarriage of justice was established.

Orders Made

  • Leave granted to the applicant to raise ground 1 of the appeal
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an irregularity during a trial does not automatically constitute a miscarriage of justice; the incident must be assessed in the context of the trial as a whole under s 6(1) of the Criminal Appeal Act 1912.
  • A carefully worded judicial direction can be sufficient to address prejudice arising from an improper statement made by a Crown witness in the presence of the jury, provided the direction does not itself reveal or amplify the content of the statement.
  • Where potential forms of prejudice are not raised at trial, significant weight is not given to those arguments on appeal; parties are generally expected to identify and articulate prejudice at the time it arises.
  • Jurors are presumed to follow judicial directions, consistent with the principle affirmed in Gilbert v R (2000) 201 CLR 414, though the Court acknowledged that assumption has limits depending on the gravity of the irregularity.
  • No miscarriage of justice was established even though some jurors may have heard an improper comment, where the direction adequately instructed them to disregard it and the comment was not directly probative of guilt or innocence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61I
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Supreme Court (Criminal Appeal) Rules 2021

Cases:
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
- GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Hamilton v The Queen (2021) 95 ALJR 894; [2021] HCA 33
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Hofer v R [2021] HCA 36; (2021) 95 ALJR 937
- Medich v R [2021] NSWCCA 36
- Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206
- Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160
- Tomlinson v R [2022] NSWCCA 16
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81