Citation: R v Dawson, Glen Michael [2001] NSWCCA 11 revised - 20/03/2001
Court: NSW Court of Criminal Appeal
Date: 5 February 2001
Judges: Giles JA, James J, Hulme J
Background
The appellant was convicted in the District Court on two counts of aggravated sexual assault following a trial before Dodd DCJ in November and December 1998. The complainant was his former de facto wife and later spouse, from whom he had separated about 16 months before the offending. The Crown alleged the appellant held a Stanley knife to the complainant's throat and forced her to engage in oral and vaginal intercourse. The defence case was that the intercourse had been consensual.
The appellant was sentenced to a minimum term of four years imprisonment with an additional term of two years. He appealed against both conviction and sentence, appearing unrepresented before the Court of Criminal Appeal.
His written submissions advanced fifteen grounds of appeal. Because he was unrepresented, the grounds were not framed in conventional legal form, but the Court treated them as a vehicle for examining whether any basis existed to quash the convictions.
Legal Issues
- Whether the trial was affected by a miscarriage of justice arising from the failure to provide the appellant's counsel with Police Integrity Commission materials relating to the investigating detective
- Whether the appellant's ERISP interview was improperly admitted, and whether his explanation for lying in that interview should have been given greater weight
- Whether various alleged errors or irregularities in the conduct of the trial, taken individually or cumulatively, warranted quashing the convictions
- Whether a question asked by Crown counsel during cross-examination (concerning why the complainant would lie) caused a substantial miscarriage of justice
Decision
On the first ground, the appellant argued that because the investigating detective, Detective Sergeant Yeomans, was the subject of a Police Integrity Commission inquiry into the murder of Leigh Leigh, relevant transcripts should have been made available to his counsel at trial. The Court found that, at the time of trial, most of those materials did not yet exist. Detective Sergeant Yeomans was found by the Commission to have been a junior officer during the relevant earlier investigation, and neither admitted to nor was found to have engaged in misconduct. The Court held there was no established basis for finding that available materials would have assisted the appellant in opposing admission of the ERISP interview or in supporting his account of why he lied during it.
On the ERISP interview, the video was admitted without objection at trial. The appellant had acknowledged under cross-examination that he lied during the interview, attributing this to intimidation and fear of police. The trial judge gave appropriate directions about how the jury should treat the lies. The Court found no error in the admission of the interview or in the directions given.
The Court examined the remaining grounds, including the Crown's impugned cross-examination question suggesting the complainant had no reason to lie. That question was promptly objected to and disallowed by the trial judge, who directed the jury that questions from counsel are not evidence. The Court noted the appellant's trial counsel made no application at the time, apparently recognising the question fell away without effect. Even accepting the question should not have been asked, the Court found no substantial miscarriage of justice resulted.
Having considered all fifteen grounds individually and collectively, the Court concluded the verdicts were not unreasonable and were supported by the evidence. The appeal against conviction was dismissed. The appeal against sentence was reserved for separate decision.
Orders Made
- Conviction appeal dismissed
- Decision on the sentence appeal reserved
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a claimed miscarriage based on police misconduct materials requires the appellant to establish that those materials actually existed at the time of trial and would have provided meaningful assistance.
- Where fresh evidence is sought to be relied upon, the operative question is whether there is a significant possibility that the jury, acting reasonably, would have acquitted had the evidence been available, consistent with the approach in Mickelberg v The Queen (1989) 167 CLR 259.
- An appellant's self-serving explanation for lying in a police interview does not, without more, render admission of that interview a miscarriage of justice, particularly where the interview was admitted without objection and the jury was properly directed.
- A disallowed Crown question, accompanied by a judicial direction that counsel's questions are not evidence, will not ordinarily constitute a substantial miscarriage of justice, especially where trial counsel made no application in response.
- No error of substance was established across the fifteen grounds advanced, reinforcing that a multiplicity of grounds does not itself demonstrate cumulative unfairness where each ground individually lacks merit.
Legislation and Cases Referenced
Cases:
- Mickelberg v The Queen (1989) 167 CLR 259
- Palmer v The Queen (referenced in the judgment in relation to the "why would the complainant lie" question)
Legislation: No specific legislation was identified in the available text or metadata.