Citation: Regina v MSK and MAK [2004] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 6 September 2004
Judge(s): Mason P; Wood CJ at CL; Barr J
Background
Two brothers were convicted after a jury trial before Sully J on five counts of aggravated sexual assault in company, contrary to s 61JA of the Crimes Act 1900. The victims were two school girls aged 16 and 17. The circumstances of aggravation included the threatened use of a knife and deprivation of the victims' liberty before the offences were committed.
Although both appellants had access to State-funded legal representation (consistent with the principles in Dietrich v The Queen), they chose to represent themselves at trial and on appeal. Because they were self-represented and charged with sexual assault offences, s 294A of the Criminal Procedure Act 1986 applied. That provision prohibits a self-represented defendant from personally cross-examining a complainant in a sexual assault trial. The court may instead appoint a person to conduct that cross-examination on the defendant's behalf. Both appellants declined that option and proceeded to trial without cross-examining the complainants at all.
On appeal, the appellants advanced 15 grounds against conviction. All essentially argued that s 294A was invalid and that its application had rendered their trial unfair and caused a miscarriage of justice.
Legal Issues
- Whether s 294A of the Criminal Procedure Act 1986 was constitutionally invalid because it vested functions in the Supreme Court incompatible with the exercise of Chapter III federal judicial power, contrary to the principle in Kable v DPP (1996) 189 CLR 51
- Whether s 294A was invalid for uncertainty in how it was to be applied
- Whether s 294A operated in a discriminatory manner, given that it applied only to self-represented defendants
- Whether the application of s 294A caused the trial to be unfair and to miscarry
- Whether principles of international law (including Articles 14(3)(d) and (e) of the International Covenant on Civil and Political Rights) could override s 294A
Decision
The Court of Criminal Appeal dismissed the appeal unanimously, upholding the constitutional validity of s 294A and finding no unfairness in the trial.
On the Kable challenge, Mason P (with whom Wood CJ at CL and Barr J agreed) held that the facts were far removed from those in Kable v DPP. Section 294A did not confer functions on the Supreme Court that undermined public confidence in the impartial administration of justice. The provision was not conceived to bring about the conviction of these particular appellants, and it carried no taint of racial, religious, or other improper discrimination.
On fairness, the court emphasised that the High Court has never held that any departure from the common law of criminal procedure is necessarily unfair, let alone unfair in a constitutionally relevant sense. What is required is a "fair trial according to law" (following Jago v District Court (NSW)). Section 294A does not remove the right to cross-examine; it restricts who may conduct that cross-examination. The appellants' decision to decline the court-appointed examiner option was their own choice, and the trial judge gave detailed directions to the jury on the operation of the section.
On discrimination and uncertainty, the court found that the different treatment of self-represented defendants compared to legally represented ones had no constitutional significance. Complaints about uncertainty were characterised as criticisms of legislative policy rather than grounds of invalidity. On the international law point, the court confirmed that principles of international law cannot override clearly expressed and constitutionally valid domestic statutes.
Wood CJ at CL added that s 294A reflects sound policy, having been developed following consideration by the NSW Law Reform Commission and Parliament. The provision responds to the well-documented trauma experienced by sexual assault complainants when giving evidence, particularly when personally cross-examined by a defendant.
Orders Made
- Non-publication order as to the appellants' names continued; the victims to be referred to as "S" and "G"
- Appeals against conviction dismissed
- Application for leave to appeal against sentence to be heard and determined at a later date
Key Takeaways
- Section 294A of the Criminal Procedure Act 1986, which prevents a self-represented defendant from personally cross-examining a complainant in a sexual assault trial, is constitutionally valid.
- A departure from a common law procedural right does not, without more, render a criminal trial unfair in a constitutionally significant sense. The applicable standard remains a "fair trial according to law."
- In dismissing the Kable challenge, the Court of Criminal Appeal confirmed that the relevant question is whether the impugned provision undermines public confidence in the impartial administration of justice, and s 294A plainly did not meet that threshold.
- Principles of international law, including those in the ICCPR, cannot override the operation of clearly expressed and constitutionally valid Australian statutes.
- Uncertainty in the application of novel legislation, and differential treatment between self-represented and legally represented defendants, are matters of legislative policy and do not, on their own, constitute grounds for constitutional invalidity.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 294A
- Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003 (NSW)
- Crimes Act 1900 (NSW), s 61JA
- Constitution Act 1902 (NSW), s 5
- Australia Acts 1986, s 2
- International Covenant on Civil and Political Rights, Articles 14(3)(d) and (e)
Cases
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
- Jago v District Court (NSW) (1989) 168 CLR 23
- Dietrich v The Queen (1992) 177 CLR 272
- Minister for Immigration & Multicultural & Indigenous Affairs v B [2004] HCA 20
- Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399
- McKinney v The Queen (1991) 171 CLR 468
- R v Whyte (2002) 55 NSWLR 252
- John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81
- Doorson v The Netherlands (App No 20524/92, 26 March 1996)
- Foster v The Queen (1993) 67 ALJR 550