Citation: R v Rugari [2001] NSWCCA 64
Court: New South Wales Court of Criminal Appeal
Date: 9 March 2001
Judge(s): Spigelman CJ, Sperling J, Carruthers AJ
Background
The appellant was convicted in the District Court of maliciously wounding a woman at Miranda on 31 October 1997, contrary to section 35(a) of the Crimes Act 1900. The Crown case was that the appellant stabbed the complainant with a kitchen knife following an argument after a night out, fuelled by jealousy over her dancing with a former boyfriend. The complainant's friend, who was waiting outside the home, witnessed the immediate aftermath and gave corroborating evidence.
The appellant denied the relationship was romantic and claimed the complainant had stabbed herself in an attempt to seek revenge after he rejected her. His teenage son also gave evidence supporting that account. The appellant was sentenced to four years imprisonment with a non-parole period of three years.
The appeal was confined to the conduct of the Crown Prosecutor during closing address. The appellant argued the Prosecutor made a series of improper and prejudicial comments that infected the trial, and that the trial judge erred in refusing to discharge the jury and in failing to give corrective directions.
Legal Issues
- Whether the Crown Prosecutor's closing address contained inappropriate and prejudicial comments that departed from proper prosecutorial conduct.
- Whether the trial judge erred in refusing to discharge the jury following those comments.
- Whether the trial judge's failure to give corrective directions to the jury compounded any resulting prejudice.
- Whether the possibility that the jury's verdict was influenced by those improper remarks warranted the conviction being quashed and a new trial ordered.
Decision
The Court of Criminal Appeal found that the Crown Prosecutor committed several distinct departures from proper conduct during his closing address. One significant category involved improperly inviting the jury to draw inferences about the consistency of the complainant's and her friend's accounts, by suggesting their statements were confirmed by independent police records, without those statements having been tendered in evidence. The Prosecutor thereby invited the jury to treat untested material as corroboration.
A further impropriety arose when the Prosecutor expressed his own personal view of the evidence, remarking "sounds like a girlfriend to me" in reference to the appellant's account of his relationship with the complainant. The court noted that it is not appropriate for counsel, whether Crown or defence, to substitute their own opinion for the jury's assessment of the evidence. That function belongs exclusively to the tribunal of fact.
Carruthers AJ concluded that no directions the trial judge could have given would have been sufficient to cure the harm those remarks may have caused. The court was unable to exclude the possibility that the jury's decision to convict was actuated, at least in part, by the improper and prejudicial conduct of the Prosecutor. On that basis, the conviction could not stand.
The court acknowledged the Crown's submission that Prosecutors face practical difficulty in preparing a closing address immediately after the defence case closes, and took that into account. Nevertheless, the seriousness of the departures from proper conduct left no alternative but to allow the appeal. Although the appellant had already served two years of his sentence and the misconduct was entirely the Prosecutor's, the court determined that the interests of justice required a new trial rather than a simple acquittal.
Orders Made
- The appeal against conviction was allowed.
- The conviction was quashed.
- A new trial was ordered.
Key Takeaways
- A Crown Prosecutor's closing address must not invite the jury to draw inferences from material, such as police statements, that has not been formally tendered in evidence and therefore not tested before the jury.
- Expressing a personal opinion about the quality or meaning of evidence is improper for any counsel; that assessment belongs to the jury alone.
- Where improper prosecutorial remarks are sufficiently serious, no corrective direction from the trial judge may be adequate to remedy the resulting prejudice, meaning the trial itself may miscarry.
- The fact that the misconduct was attributable solely to the Crown Prosecutor, rather than any fault of the accused, was noted as a relevant consideration when determining whether to order a new trial, though it did not prevent one being ordered in these circumstances.
- Practical pressures on Crown Prosecutors, such as having to address immediately after the defence case, may be taken into account by an appellate court when evaluating prosecutorial conduct, but they do not excuse departures from proper standards.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 35(a)
Cases
- Browne v Dunn (1894) 6 The Reports 67
- Moss v Brown [1979] 1 NSWLR
- Ratten v The Queen (1974) 131 CLR 510
- R v Birks (1990) 19 NSWLR 677
- R v Kennedy [2000] NSWCCA 487
- R v Kneebone (1998-1999) 47 NSWLR 450
- R v McCullough (1982) 6 A Crim R 274
- R v MRW (1999) 113 A Crim R 308
- R v Roulston [1976] 2 NZLR 644
- R v Walton [1999] NSWCCA 452