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Court of Criminal Appeal 25 September 2024

Wallace v R

[2024] NSWCCA 176

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE APPEAL UPHELD CONVICTION QUASHED

Citation: Wallace v R [2024] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 25 September 2024
Judges: Harrison CJ at CL, Davies J, Rigg J

Background

The appellant was charged with one count of aggravated sexual intercourse without consent with a person under the age of 16 years who was under his authority, contrary to s 61J(1) of the Crimes Act 1900 (NSW). He pleaded not guilty and stood trial in the District Court at Coffs Harbour in March 2023, appearing without legal representation. The jury returned a guilty verdict on 5 April 2023, and he was sentenced to 4 years and 6 months imprisonment with a non-parole period of 2 years and 6 months.

The offending, as alleged by the complainant, occurred during a trip to Jindabyne in around September 2011. The complainant, then aged 15, was the niece of the appellant's wife. She alleged she woke during the night to find the appellant on top of her and his penis inside her vagina. The complainant did not report the assault immediately, disclosing it to friends and family over subsequent months and eventually making a formal complaint to police in late 2018 or early 2019.

The appellant sought leave to appeal his conviction on three grounds, including that the trial miscarried because he was denied the benefit of a good character direction. The Crown conceded that ground, making it unnecessary for the Court to examine the other two grounds.

  • Whether the trial miscarried because no good character direction, or at minimum a limited good character direction, was given to the jury
  • Whether the trial judge was obliged to inform himself of the appellant's criminal record so as to advise the appellant on the availability and benefit of a character direction
  • Whether the failure to give any character direction constituted a miscarriage of justice in circumstances where the trial's outcome turned substantially on acceptance of the complainant's evidence

Decision

The Court of Criminal Appeal found that no character direction of any kind had been given at the trial. The appellant's criminal history, which was placed before the Court of Criminal Appeal for the first time on appeal, revealed only minor offences from 1991 (stealing, resulting in a recognisance) and 1998 (drug-related offences resulting in small fines). Critically, he had no prior convictions for offences involving sex or violence.

Davies J held that the trial judge should have informed himself of the appellant's criminal record in order to explain to the appellant the benefit of eliciting evidence from the officer in charge that he had no prior convictions for sexual or violent offences, and the consequent availability of a limited good character direction. The transcript showed the trial judge had raised the topic of good character with the unrepresented appellant on more than one occasion, but without taking the step of finding out what the record actually showed, the issue was never resolved and no direction was given.

The Court noted that a trial judge retains a discretion whether to give a good character direction, but that where such a direction is warranted, it is wise to give it. The Court observed that evidence of good character in a sexual assault trial can play a significant role in the outcome, particularly where, as here, the verdict depended very largely on the jury's acceptance of the complainant's evidence, including tendency evidence. A direction that the appellant had never been convicted of a sexual or violent offence was a matter of potential importance to the jury.

Notwithstanding the trial judge's considerable assistance to the unrepresented appellant throughout a difficult trial, the Court concluded that the failure to give at least a limited good character direction constituted a miscarriage of justice. The Crown properly conceded as much. Ground 3 was upheld, the conviction was quashed, and a new trial was ordered.

Orders Made

  • Leave to appeal granted
  • Ground 3 of the appeal upheld
  • Conviction quashed
  • New trial ordered
  • Matter stood into the arraignments list in the District Court on 11 October 2024

Key Takeaways

  • A trial miscarries where an unrepresented accused is denied the benefit of at least a limited good character direction, and no character direction of any kind is given, in circumstances where the accused has no prior convictions for sexual or violent offences.
  • Where an accused is unrepresented, the trial judge bears a heightened responsibility to inform himself of the accused's criminal record so that the accused can be properly advised about the availability and potential benefit of a good character direction.
  • Good character evidence in a sexual assault trial can play a significant role in the outcome, particularly where the verdict depends substantially on acceptance of the complainant's evidence (JV v R [2017] NSWCCA 49).
  • A trial judge retains discretion whether to give a good character direction (Melbourne v The Queen (1999) 198 CLR 1), but it is wise to give such a direction where it is asked for and the facts support it.
  • Prior convictions for minor, unrelated offences do not necessarily preclude a limited good character direction, at least in the form that the accused has no prior convictions for offences involving sex or violence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 558

Cases
- JV v R [2017] NSWCCA 49
- Kanbut v R [2022] NSWCCA 259
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25