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47
Court of Criminal Appeal 12 March 2004

R v Cook [2004] NSWCCA 52 revised - 18

[2004] NSWCCA 52

Sexual offencesAssault & violencePublic order & justice offences
APPEAL AGAINST CONVICTION LEAVE TO APPEAL AGAINST SENTENCE ADMISSION OF EVIDENCE OF FLIGHT LIES

Citation: R v Cook [2004] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 12 March 2004
Judge(s): Ipp JA, Simpson J, Adams J

Background

The appellant was convicted in the District Court of threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse, contrary to s 61K(b) of the Crimes Act 1900 (NSW). The alleged offence occurred in Port Macquarie in the early hours of 6 April 2001. A seventeen-year-old complainant gave evidence that the appellant followed her into a public toilet, produced a knife, held it to her throat, and demanded sexual intercourse before fleeing when a friend arrived and a police scanner warned that officers were approaching.

Following the incident, the appellant secreted his clothing at the premises of a third party, fled from police through a window when officers attended those premises, and later concealed himself in a ceiling cavity at his former partner's home when police knocked at the door. He was sentenced to twelve years' imprisonment with a non-parole period of nine years.

The appellant appealed against conviction and sought leave to appeal against sentence. The central ground of appeal concerned the admission of evidence of his flight from police and the adequacy of the trial judge's directions regarding consciousness of guilt.

  • Whether evidence of the appellant's flight from police was properly admitted, given that it risked exposing the jury to the appellant's criminal history
  • Whether the trial judge's directions on consciousness of guilt, and on lies told by the appellant, were adequate
  • Whether, if there was error in admitting the flight evidence or in the directions given, the proviso under s 6(1) of the Criminal Appeal Act 1912 should nevertheless be applied to dismiss the appeal on the basis that no substantial miscarriage of justice occurred

Decision

Simpson J (with whom Ipp JA and Adams J agreed) found that the evidence of the appellant's flight from police raised a real risk that the jury would become aware of, or draw inferences about, the appellant's criminal history. This created a prejudice that should have been weighed against the probative value of the evidence under s 137 of the Evidence Act 1995 (NSW). The court found the trial judge erred in admitting the evidence without conducting or recording that balancing exercise.

The court also examined the directions given to the jury about consciousness of guilt and about lies. The evidence of flight was capable of giving rise to a consciousness of guilt inference, and the directions in relation to this needed to properly guide the jury. The combined effect of the errors in admission and direction was sufficient to constitute a ground for allowing the appeal.

The court then considered whether the proviso should be applied. The Crown case, absent the flight evidence, was described as overwhelmingly strong: two witnesses gave detailed descriptions matching the appellant, his clothing matched, he was in the immediate vicinity by his own admission, and he had asked the complainant for sex shortly before the assault. However, the court declined to apply the proviso. The wrongly admitted evidence of flight had placed the appellant's legal representatives in a dilemma about whether to advise him to give evidence, given the risk of cross-examination exposing further criminal history. That constraint meant the appellant could not be said to have received a fair trial, and the proviso was not appropriate in those circumstances.

The sentence appeal became unnecessary to determine once the conviction was set aside.

Orders Made

  • Appeal against conviction allowed
  • Verdict of guilty set aside
  • New trial ordered
  • Leave to appeal against sentence: unnecessary to determine

Key Takeaways

  • Where evidence of flight from police carries a real risk of exposing a jury to an accused's criminal history, the trial court must conduct a balancing exercise under s 137 of the Evidence Act 1995 (NSW) before admitting it; failure to do so may constitute reversible error.
  • The Court of Criminal Appeal confirmed that the proviso under s 6(1) of the Criminal Appeal Act 1912 will not save a conviction where wrongly admitted evidence has constrained an accused's ability to give evidence and thereby undermined the fairness of the trial, even where the remaining Crown case is overwhelmingly strong.
  • Consciousness of guilt directions must be carefully tailored to the evidence; where flight evidence is admitted, the directions given to the jury about the permissible uses of that evidence are subject to close appellate scrutiny.
  • A conviction can be set aside even on an overwhelmingly strong Crown case if a procedural or evidentiary error materially affected the accused's tactical decisions at trial, such as whether to testify.
  • The Court of Criminal Appeal applied the principle from Wilde v The Queen (1988) 164 CLR 365 and Zoneff v The Queen [2000] HCA 23 that no mechanical approach governs the proviso, and each case must be assessed on its own facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61K(b)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 137

Cases:
- Edwards v The Queen (1993) 178 CLR 193
- R v Bridgman (1980) 24 SASR 278
- R v Fowler [2000] NSWCCA 142
- R v Heyde (1990) 20 NSWLR 234
- R v Lucas [1981] 1 QB 720
- R v Melrose [1989] 1 QdR 572; (1987) 30 A Crim R 332
- R v Power (1996) 87 A Crim R 407
- R v Sutton (1986) 5 NSWLR 697
- R v Taranto [1999] NSWCCA 396
- Wilde v The Queen (1988) 164 CLR 365
- Zoneff v The Queen [2000] HCA 23; 200 CLR 234