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Court of Criminal Appeal 12 June 2024

Hayne v R

[2024] NSWCCA 97

Sexual offences

Citation: Hayne v R [2024] NSWCCA 97
Court: Court of Criminal Appeal, NSW
Date: 12 June 2024
Judges: Meagher JA, Rothman J, Sweeney J

Background

The appellant was convicted by a jury in April 2023 on two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The charges arose from events on 30 September 2018 at the complainant's home in Newcastle, and alleged cunnilingus and digital vaginal penetration. This was the appellant's third trial on charges arising from the same conduct: the first jury was unable to reach a verdict, and the second trial's convictions were quashed by the Court of Criminal Appeal in 2022 due to erroneous jury directions.

The central factual dispute at all three trials was not whether the relevant sexual acts had occurred, but whether the complainant had consented and whether the appellant knew she had not. The Crown case was that the complainant resisted and said "no" and "stop" during the activity. The defence challenged the complainant's credibility and consistency.

Before and during the third trial, the appellant sought leave under the Criminal Procedure Act 1986 (NSW) to recall the complainant for further cross-examination about her interactions with two people, Ms Monique Smiles and Mr Stephen Page, following the alleged offences. The trial judge refused that application. The fairness of that refusal, and its consequences for the jury directions that followed, formed the core of the appeal.

  • Whether the jury's guilty verdicts were unreasonable or unsupported by the evidence (Ground 1)
  • Whether the trial judge erred in refusing leave under s 306D of the Criminal Procedure Act 1986 (NSW) to compel the complainant to give further evidence about her post-offence interactions with Ms Smiles and Mr Page (Ground 2)
  • Whether a miscarriage of justice resulted from the trial judge's refusal to allow the complainant to give further evidence about her interactions with Ms Smiles, particularly where that refusal was combined with a jury direction on "lies" that effectively undermined the defence's closing submissions (Ground 3)

Decision

Ground 1: Unreasonable verdict

The Court granted leave to appeal on all three grounds, finding each raised a sufficiently arguable case. On Ground 1, the Court (by majority) dismissed the appeal, concluding the verdicts were not unreasonable or unsupported by the evidence. The complainant's evidence, assessed in the context of the whole of the trial record, was capable of supporting the jury's findings beyond reasonable doubt. Sweeney J dissented on this ground and would have ordered acquittal.

Ground 2: Refusal to grant leave for further evidence

The Court upheld Ground 2. The trial judge had treated the application as one under s 306D(2) (which requires a finding that further evidence is "necessary in the interests of justice") rather than under s 306J (which deals with compellability of a complainant). The Court found the trial judge erred in refusing leave, as the further cross-examination was directed at matters genuinely relevant to the complainant's credibility, including her communications with Ms Smiles and Mr Page after the alleged offences.

Ground 3: Miscarriage of justice from jury direction on "lies"

The Court upheld Ground 3. Having prevented defence counsel from cross-examining the complainant about her interactions with Ms Smiles, the trial judge then gave a jury direction that effectively told the jury it was unfair for counsel to make submissions about the complainant's dishonesty on topics that had not been "put" to the complainant in cross-examination. The Court found this created a serious unfairness: the defence had applied to put precisely those matters to the complainant and had been refused. The combined effect of blocking the cross-examination and then directing the jury against the resulting submissions caused a miscarriage of justice.

Sweeney J, writing separately, expressed the view that in the circumstances of this case, a fourth trial would not be in the interests of justice, though she acknowledged that decision ultimately rests with the Director of Public Prosecutions.

Orders Made

  • Leave to appeal granted
  • Ground 1 dismissed; Grounds 2 and 3 upheld
  • The appellant's two convictions quashed
  • New trial ordered

Key Takeaways

  • A trial judge's refusal to allow recalled cross-examination of a complainant under s 306D of the Criminal Procedure Act 1986 (NSW) can constitute a miscarriage of justice where the excluded evidence was genuinely relevant to the complainant's credibility.
  • Where a trial judge prevents defence counsel from cross-examining a complainant on a topic and then directs the jury that submissions on that topic were unfairly made because they were not "put" to the complainant, the combined effect can render the trial procedurally unfair.
  • The principle from Browne v Dunn (the rule that a party must put matters to a witness before relying on them) cannot operate to disadvantage a party who sought to put those very matters to the witness but was refused leave to do so.
  • Upholding grounds of appeal relating to procedural fairness does not automatically lead to acquittal: the Court ordered a new trial, leaving the decision whether to proceed to a fourth trial to the discretion of the Director of Public Prosecutions.
  • An unreasonable verdict ground requires the appellate court to assess whether the jury, acting on the whole of the evidence, could not reasonably have been satisfied of guilt beyond reasonable doubt; the Court of Criminal Appeal here found that threshold was not met on the evidence presented at the third trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H, 61HA, 61I, 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 8(1)
- Criminal Procedure Act 1986 (NSW), ss 306B, 306C, 306D, 306I, 306J
- Evidence Act 1995 (NSW), s 97
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Cases
- Hayne v R [2022] NSWCCA 11 (second trial appeal)
- Pell v The Queen (2020) 268 CLR 123
- M v The Queen (1994) 181 CLR 487
- Dansie v The Queen (2022) 274 CLR 651
- De Silva v The Queen (2019) 268 CLR 57
- Hofer v The Queen (2021) 274 CLR 351
- Lang v The Queen [2023] HCA 29
- Libke v The Queen (2007) 230 CLR 559
- MFA v The Queen (2002) 213 CLR 606
- R v Bauer (a pseudonym) (2018) 266 CLR 56
- Browne v Dunn (1893) 6 R 67
- Chidiac v The Queen (1991) 171 CLR 432
- RPS v The Queen (2000) 199 CLR 620