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Court of Criminal Appeal 3 July 2023

AB v R

[2023] NSWCCA 165

Sexual offences

Citation: AB v R [2023] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 3 July 2023
Judge(s): Beech-Jones CJ at CL; N Adams J; Yehia J

Background

The applicant, identified by the pseudonym AB, was 13 years old at the time of the alleged offending and 17 when he stood trial. A jury convicted him of one count of sexual intercourse with a child under 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). He was sentenced to a three-year community correction order. Publication of any information identifying the applicant or the victim is prohibited by statute.

The alleged offence occurred during Easter 2018 at a rented house in the Hunter Valley, where several families were staying. The victim, CD, was five years old. The central factual dispute turned on what happened in a tent where AB and CD were briefly alone. The victim's father gave evidence that he heard AB say words to the effect of "don't tell anybody, you'll get me in trouble," before AB then called out, after a period of silence, that CD had pulled his pants down while he was asleep. The defence relied on this account as the truth, and also led evidence that AB had an auditory processing disorder and a moderate expressive language delay.

The conviction was returned as a majority verdict after the jury twice told the trial judge it could not reach a unanimous decision. AB sought leave to appeal, raising concerns about the Crown Prosecutor's closing address, the adequacy of the trial judge's directions, and the procedural steps taken before accepting the majority verdict.

  • Whether the trial judge's failure to give a "lies direction" (also known as a Zoneff direction or Edwards direction) about how the jury could use AB's silence and alleged lie constituted a miscarriage of justice.
  • Whether the Crown Prosecutor's closing address impermissibly relied on consciousness of guilt reasoning, particularly in rebutting the presumption of doli incapax (the legal presumption that a child under 14 does not know their conduct is seriously wrong).
  • Whether the trial judge was entitled to conclude that the statutory preconditions for accepting a majority verdict under s 55F(2)(b) of the Jury Act 1977 (NSW) had been satisfied.
  • Whether the appropriate remedy, if the appeal succeeded, was a retrial or an acquittal.

Decision

The silence and alleged lie issue

The Crown Prosecutor's closing address identified the applicant's silence and subsequent statement as part of a list of reasons why the jury should find that AB knew his conduct was "seriously wrong," which was required to rebut doli incapax. The Court found this reasoning was an emphatic appeal to consciousness of guilt: it implied that AB was silent because he knew truthfully answering the father's question would implicate him in the offence. The chain of reasoning therefore assumed both that AB knew what he had done was wrong, and that he had in fact committed the offence.

An Edwards direction (derived from Edwards v The Queen (1993) 178 CLR 193) requires the jury to be satisfied, before drawing an adverse inference from a lie, that the accused lied because he knew the truth would implicate him, and that the lie was not told for some other reason. The Court found that such a direction was necessary in this case, particularly because the Crown had initially told the jury it was not relying on consciousness of guilt reasoning, and then emphatically did so when addressing doli incapax. The failure to give an Edwards or Zoneff direction had a real chance of affecting the verdict and constituted a miscarriage of justice.

The majority verdict issue

The Court held that s 55F(2)(b) of the Jury Act 1977 (NSW) does not expressly require a trial judge to ask the foreperson whether it is unlikely the jury will reach a unanimous verdict before giving a majority verdict direction. The trial was short, the issues were not especially complex, and the jury twice confirmed it could not reach a unanimous verdict. By the time of the second note, five hours had elapsed since the trial judge gave a Black direction (a direction encouraging the jury to continue deliberating). In those circumstances, it was open to the trial judge to be satisfied the preconditions for a majority verdict were met.

The appropriate order

Notwithstanding that the Crown's case was described as reasonably strong, the Court entered an acquittal rather than ordering a retrial. The deciding factor was the cause of the error: the Crown Prosecutor had explicitly told the jury it was not relying on consciousness of guilt reasoning, and then did precisely that when addressing doli incapax. The Court held the Crown should not receive a further opportunity to prosecute the matter. The applicant's age (he had since turned 19) and the fact that he had nearly served two-thirds of his community correction order were also noted, though the delay was attributed primarily to his legal representatives.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Verdict of acquittal entered.

Key Takeaways

  • Where a Crown Prosecutor relies on an accused's silence or a lie as consciousness of guilt reasoning, especially after initially disavowing such reliance, a trial judge must give an Edwards or Zoneff direction; failure to do so constitutes a miscarriage of justice where there is a real chance it affected the verdict.
  • The doli incapax presumption (that a child under 14 does not know their conduct is seriously wrong) can only be rebutted by proper evidence and reasoning; using an accused child's silence and alleged lie as consciousness of guilt evidence to rebut doli incapax is subject to the same requirements as any other consciousness of guilt reasoning.
  • Under s 55F(2)(b) of the Jury Act 1977 (NSW), a trial judge is not expressly required to ask the foreperson whether unanimous agreement is unlikely before giving a majority verdict direction; compliance with the provision is assessed by reference to the overall circumstances, including the length of deliberations and the jury's own communications.
  • In determining whether to order a retrial or enter an acquittal following a successful appeal, the cause of the error is a weighty consideration; where the error is squarely attributable to Crown conduct that departed from representations made to the jury, that factor may favour acquittal even where the Crown's underlying case is reasonably strong.
  • The Court of Criminal Appeal confirmed that Dhanhoa v The Queen (2003) 217 CLR 1 was distinguishable on the facts, and applied Edwards, Zoneff, and Hofer v The Queen [2021] HCA 36 to the consciousness of guilt analysis.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A(1), s 578A
- Jury Act 1977 (NSW), s 55F(2)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
- WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142
- Anderson v The Queen (1991) 53 A Crim R 421
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66