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Addo v The Queen

Addo v The Queen

Case [2022] NSWCCA 141 30 June 2022

Evidence Law

Jury Instructions

Miscarriage of Justice

Racial Bias

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Addo v R [2022] NSWCCA 141
Hearing dates: 3 June 2022
Date of orders: 30 June 2022
Decision date: 30 June 2022
Before: Beech-Jones CJ at CL
Adamson J
Bellew J
Decision:
(1)   The time for filing of the notice of appeal is extended until 26 October 2021.
(2)   The appeal against conviction is allowed.
(3)   The convictions and sentences imposed on the appellant in the District Court are quashed.
(4)   The matter is remitted to the District Court arraignment list on 15 July 2022 at 9:30am.

Catchwords:
CRIMINAL LAW – Evidence – Tendency and coincidence evidence – Where Appellant charged with multiple counts of sexual offending – Where Crown served co-incidence notice – Where evidence admitted – Where direction by the Trial Judge failed to identify the relevant path of reasoning – Where the direction had the effect of reversing the reasoning process – Where the direction given resembled a direction as to tendency reasoning – Where evidence was admitted in the absence of the jury being given any direction as to how that evidence could be used in reasoning towards a conclusion that relevant aspects of the complainant’s evidence should be accepted
CRIMINAL LAW – Juries – Where individual juror discharged – Where the trial judge rejected an application to discharge the entire jury – Where the jury’s verdicts were returned a short time after the discharge of the juror – Risk of substantial miscarriage of justice
CRIMINAL LAW – Juries – Where individual juror discharged – Where appellant adduced evidence that the discharged juror had the appearance of a “man of black African ancestry” – Where the appellant was described as a “dark-skinned Aboriginal man” – Where it was submitted that the discharged juror would have been supportive of the appellant on the grounds of race – Where it was submitted that the there was a consequent risk of a substantial miscarriage of justice in not discharging the whole jury – Submission firmly rejected – Submission entirely overlooked the direction given by the trial judge to the jury to act impartially

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Evidence Amendment Act 2007 (NSW)
Jury Act 1977 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 215
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
DSJ v The Queen (2012) 84 NSWLR 758; [2012] NSWCCA 9
Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40
Haile v R [2022] NSWCCA 71
Hofer v R (2021) 95 ALJR 937; [2021] HCA 36
House v The King (1936) 55 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Addo v The Queen

Details

AGLC: Addo v The Queen [2022] NSWCCA 141
Case: [2022] NSWCCA 141
Decision Date: 30 June 2022

CaseChat Overview and Summary

The case of Addo v The Queen involved the Appellant, charged with multiple counts of sexual offending. The central issues included the admissibility of coincidence evidence and the potential impact of an individual juror being discharged on the fairness of the trial. The trial judge had provided a direction regarding the coincidence evidence, but the Appellant argued that this direction was insufficient as it did not clearly outline how the jury should use the evidence to determine the credibility of the complainant's testimony. Additionally, the Appellant contended that the discharge of one juror, who appeared to be of African descent, created a risk of a substantial miscarriage of justice, particularly given the Appellant's racial background and the potential for racial bias within the jury. The Appellant argued that the entire jury should have been discharged and replaced.

The legal issues before the court were whether the trial judge's direction on the coincidence evidence was adequate and whether the discharge of one juror necessitated the discharge of the entire jury to prevent a potential miscarriage of justice. The court had to assess the adequacy of the trial judge's direction on the coincidence evidence, considering whether it correctly guided the jury on how to reason about the evidence. Additionally, the court needed to determine if the discharge of a single juror warranted the discharge of the entire jury, especially in light of the Appellant's submission that the discharged juror's racial background could have influenced the verdict. The court's reasoning involved a careful analysis of the trial judge's direction and the impact of discharging one juror on the jury's impartiality.

The court found that the trial judge's direction on the coincidence evidence was insufficient as it failed to adequately guide the jury on the reasoning process. The court noted that the direction resembled a direction for tendency evidence rather than coincidence evidence, which could have confused the jury. Regarding the discharge of the juror, the court held that there was no evidence to suggest that the discharged juror would have been biased in favour of the Appellant, and the submission that the juror's racial background could have influenced the jury was rejected. The court held that the trial judge's direction to the jury to act impartially was sufficient to mitigate any risk of bias, and therefore, the discharge of the entire jury was not warranted. The court concluded that the Appellant's convictions should stand, and the discharge of a single juror did not result in a substantial miscarriage of justice.

Orders