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Dixon v The Queen

Dixon v The Queen

Case [2017] NSWCCA 299 15 December 2017

Appeal

Miscarriage of Justice

Judicial Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dixon v R [2017] NSWCCA 299
Hearing dates: 4 September 2017
Decision date: 15 December 2017
Before: Basten JA at [1];
McCallum J at [30];
Wilson J at [124]
Decision:
(1) As to ground 1, leave under r 4 refused.

(2) As to grounds 2 and 3, leave to appeal granted.
(3) Appeal dismissed.
Catchwords:
CRIME – appeal against conviction – where defence counsel opened to the jury that the accused would give evidence – where accused did not give evidence – whether combination of those events resulted in a miscarriage of justice – alleged incompetence of defence counsel in failing to seek a discharge of the jury or a specific direction – whether miscarriage of justice
CRIME – appeal against conviction – obligation of trial judge to put fairly before the jury defence case – short trial run on single issue of complainant’s credibility – whether judge obliged to summarise submissions – whether miscarriage of justice
Legislation Cited: Crimes Act 1900 (NSW), s 66A(1)
Criminal Appeal Act 1912 (NSW), s 5(1)
Criminal Procedure Act 1986 (NSW), s 161
Criminal Appeal Rules, r 4
Cases Cited: AP v R [2013] NSWCCA 189
Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Domican v R (1992) 173 CLR 555; [1992] HCA 13
Maraache v R [2013] NSWCCA 199
R v Davis [1999] NSWCCA 15
R v Meher [2004] NSWCCA 355
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
RR v R [2011] NSWCCA 235
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Williams v R (1999) 104 A Crim R 260; [1999] NSWCCA 9
Wong v R [2009] NSWCCA 101
Category: Principal judgment
Parties: Edward Michael Dixon (appellant)
Regina (Crown)
Representation:
Counsel:
C Wasley (appellant)
E Balodis (Crown)
Solicitors:
Legal Aid NSW (appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/273093
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

26 October 2015

Before:

O’Connor ADCJ with a jury

File Number(s):

2014/273093

Judgment

BASTEN JA: In October 2015 the applicant, Edward Michael Dixon, was convicted of two counts of sexual intercourse with a child under the age of 10 years. The conduct occurred on one night during the period from 30 April to 15 November 2012. The victim was a young boy, then seven or eight years of age, referred to in the proceedings as BA. The two separate incidents involved the applicant making BA fellate him and the applicant then having penile-anal intercourse with the boy.

Grounds of appeal

Although the applicant was sentenced on 9 February 2016, a notice of appeal was not filed until 15 June 2017. The grounds, as originally filed, raised two matters. First, it was said that the judge failed to put the defence case properly to the jury (ground 1); secondly,…

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 Dixon v The Queen

Details

AGLC: Dixon v The Queen [2017] NSWCCA 299
Case: [2017] NSWCCA 299
Decision Date: 15 December 2017

CaseChat Overview and Summary

In the case of Dixon v The Queen, the appellant sought to appeal his conviction on the basis that a miscarriage of justice had occurred due to the conduct of his defence counsel. The appellant was convicted of a criminal offence and his trial was conducted over several days. Defence counsel indicated to the jury that the appellant would give evidence, but he ultimately did not. The appellant argued that this combination of events, along with the trial judge’s conduct, resulted in a miscarriage of justice. The appellant further submitted that his defence counsel was incompetent for failing to seek a discharge of the jury or a specific direction.

The central legal issue before the court was whether the combination of events, including defence counsel’s indication that the appellant would give evidence and the appellant’s subsequent failure to do so, resulted in a miscarriage of justice. Additionally, the court needed to determine whether the trial judge had an obligation to fairly present the defence case to the jury, and whether the judge’s conduct amounted to a miscarriage of justice. The court also needed to consider the trial judge’s obligation to summarise the defence submissions, particularly in light of the trial being a short one focused on a single issue of the complainant’s credibility.

The court found that there was no miscarriage of justice in the appellant’s case. It was held that the defence counsel’s indication to the jury that the appellant would testify did not create an expectation that he would necessarily do so. The court noted that defence counsel was not obligated to seek a discharge of the jury or a specific direction when the appellant chose not to give evidence. The court further held that the trial judge had no obligation to summarise the defence submissions, particularly given the short duration of the trial and the singular focus on the complainant’s credibility. The court found that the appellant’s conviction was safe and that there had been no miscarriage of justice. Consequently, the appeal was dismissed.

Orders