Cox v R

Case [2022] NSWCCA 66 1 April 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cox v R [2022] NSWCCA 66
Hearing dates: 25 February 2022
Date of orders: 1 April 2022
Decision date: 01 April 2022
Before: Beech-Jones CJ at CL at [1]
Hamill J at [64]
Cavanagh J at [65]
Decision:
(1) The Applicant be granted leave to raise ground 1 of the appeal.
(2) The Appeal be dismissed.

Catchwords:
CRIMINAL LAW -appeal against conviction on sexual offences – Crown witness – said to accused in presence of jury “Don’t worry. We’ll get you off…” – Judge gave jury direction that did not repeat the words as addressed – possibility that jury might hold statement against applicant – other types of prejudice raised on appeal but not at trial – no miscarriage of justice – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912
Supreme Court (Criminal Appeal) Rules 2021

Cases Cited:
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
Hamilton v The Queen (2021) 95 ALJR 894; [2021] HCA 33
Hofer v R [2021] HCA 36; (2021) 95 ALJR 937
Medich v R [2021] NSWCCA 36
Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206
Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160
Tomlinson v R [2022] NSWCCA 16
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Category: Principal judgment
Parties: Gregory David Lennox Cox (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Lewer (Applicant)
B Baker (Crown)
Solicitors:

File Number(s): 2018/237888
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 December 2019

Before:

Ellis DCJ

File Number(s):

2018/237888

Judgment

BEECH-JONES CJ at CL: This is an appeal under s 5(1) of the Criminal Appeal Act 1912 against seven convictions for six offences of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 and one offence of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act.
The essence of the complaint on appeal is that the integrity of the trial was affected by statements said to have been made by a Crown witness in the vicinity of the jury after he finished giving evidence. For the reasons that follow, I am satisfied that, when that event is considered in the context of the trial as a whole, no miscarriage of justice was occasioned (Criminal Appeal Act, s 6(1)). I would dismiss the appeal.

The Crown and Defence Case

On 9 September 2019, the applicant was arraigned in the District Court before a jury…

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 Cox v R

Details

AGLC: Cox v R [2022] NSWCCA 66
Case: [2022] NSWCCA 66
Decision Date: 01 April 2022

CaseChat Overview and Summary

Cox appealed against his conviction for sexual offences, arguing that the trial judge erred in not directing the jury to disregard a statement made by a Crown witness. The witness told Cox, in the presence of the jury, "Don’t worry. We’ll get you off..." The trial judge provided a direction to the jury but did not repeat the exact words as addressed. Cox contended that the statement was prejudicial and could have influenced the jury against him. The appeal also raised other potential sources of prejudice but did not include these in the trial arguments.

The court had to determine whether the trial judge's direction adequately addressed the potential prejudice from the statement made by the witness. The court examined whether the direction given was sufficient to mitigate any prejudice that might have arisen from the statement, considering whether it could have affected the fairness of the trial. The court also considered other potential sources of prejudice mentioned on appeal but not at the trial, assessing whether these contributed to a miscarriage of justice.

The court concluded that the trial judge's direction was sufficient to address the potential prejudice from the statement, and no miscarriage of justice occurred. The court recognised the possibility of prejudice but found that the overall direction given to the jury was adequate. While the appeal raised other potential sources of prejudice, these were not considered to have affected the fairness of the trial. The court dismissed the appeal, upholding Cox's conviction.

No further orders were made by the court. The decision emphasised the importance of ensuring that any prejudicial statements are adequately addressed in trial directions, while also highlighting that the overall fairness of the trial must be assessed in the context of all the evidence and circumstances.

Orders