Citation: Regina v AC [1999] NSWCCA 19 revised -10/03/99
Court: NSW Court of Criminal Appeal
Date: 2 March 1999
Judges: Barr J, Abadee J, Adams J
Background
The appellant was convicted in the District Court on six counts of penile-vaginal sexual intercourse with a child aged between 10 and 16 years who was under his authority. He was acquitted on six further counts alleging sexual intercourse of other kinds. The complainant's account was supported at trial by medical evidence from two practitioners, which the court noted likely accounted for the jury's differentiation between the two categories of charges.
The defence case turned entirely on whether the jury accepted the complainant's evidence. Given this, any material raising a reasonable possibility that someone other than the appellant had engaged in penile-vaginal intercourse with the complainant during the relevant period was potentially significant to the defence.
During the trial, evidence from a former schoolteacher unexpectedly emerged suggesting the complainant had told her about sexual relations with another person. Trial counsel moved quickly to use that material. On appeal, however, it came to light that a written witness statement containing similar and potentially more detailed evidence had existed well before trial but had never been included in counsel's brief.
Legal Issues
- Whether the failure to place a witness statement before trial counsel constituted a miscarriage of justice by denying the appellant a real chance of acquittal.
- Whether verdicts returned in those circumstances were unsafe and unsatisfactory.
- Whether evidence not formally "fresh" or "new" could nonetheless be treated as such for appeal purposes where counsel was never briefed on it.
Decision
Barr J, with Abadee J and Adams J agreeing, found that the written statement of the witness Miss Alha had been available since January 1996 but was not included in the brief delivered to trial counsel. A subsequent statement made in 1998, while not in existence at the time of trial, reflected matters Miss Alha could have spoken to during the trial period because she was recounting conversations from 1995. The court considered it inconceivable that trial counsel, given how swiftly he acted on the schoolteacher's unexpected evidence, would have failed to pursue Miss Alha's account had he known of it.
While much of the statements' contents would have been inadmissible, both contained material capable of raising the possibility that the complainant had had sexual intercourse with persons other than the appellant. Barr J characterised this as cogent evidence and concluded that its absence denied the appellant a real chance of acquittal, with the result possibly having been different had counsel been equipped with it.
On the question of novelty, the court accepted that although Miss Alha's evidence was not technically fresh or new, it should be treated as though it were because the failure to include her statement in counsel's brief meant the material was never meaningfully available at trial. Taken together, these circumstances amounted to a miscarriage of justice warranting the setting aside of the convictions.
Adams J added a brief note that, should a new trial proceed, careful attention would need to be given to the proper scope of Crown evidence in light of the counts on which the appellant had already been acquitted.
Orders Made
- Appeal allowed.
- Convictions quashed.
- New trial ordered.
Key Takeaways
- A miscarriage of justice can arise where a document essential to the proper conduct of the defence case is not included in trial counsel's brief, even if that document was in existence and available before trial.
- The Court of Criminal Appeal confirmed that evidence need not be formally "fresh" or "new" to ground an appeal on miscarriage of justice grounds; it is sufficient that counsel was never briefed on it and therefore had no meaningful opportunity to deploy it.
- Where a trial turns on a single factual question, such as the identity of a perpetrator, any cogent evidence capable of raising a reasonable possibility of a different answer to that question carries particular weight in assessing whether its absence caused a real chance of acquittal to be lost.
- Under section 409B of the Crimes Act, evidence of a complainant's prior sexual experience requires a written statement to be admissible; the court's analysis shows that early identification and proper briefing of such witnesses is procedurally significant.
- In ordering a new trial following quashed convictions, the court noted that the scope of Crown evidence at any retrial would need to account for the acquittals already recorded, preserving the defendant's protection against being tried again on matters already determined in his favour.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 409B (admissibility of evidence relating to complainant's sexual experience)
Cases:
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Birks (1990) 19 NSWLR 677