TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 5 of 2022 (22113686)
DELIVERED: 22 May 2023
HEARING DATE: 21 September 2022
JUDGMENT OF: Grant CJ, Barr & Brownhill JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict
Whether verdicts unreasonable and not supported by evidence at trial due to inconsistencies and ambiguity in complainant’s evidence – The purported inconsistencies, discrepancies and other inadequacies identified by the appellant did not lead to a satisfaction that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Incompetence of counsel
Whether miscarriage of justice by counsel’s failure to adduce evidence about complainant’s Fetal Alcohol Spectrum Disorder and its effects – Not established that admissible evidence available – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Point not raised below
Whether trial judge erred in not giving unreliable evidence warning – No basis in evidence for warning – Direction not sought by defence counsel at trial – No error of law and no miscarriage of justice – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether trial judge erred in not giving Murray direction – Review of evidence by trial judge and direction given in summing up sufficient to alert jury that it had to be satisfied beyond reasonable doubt of the truth and accuracy of complainant’s evidence to return finding of guilt – No miscarriage of justice – Appeal dismissed.
[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 Foster v The King
Sign in free to access the full text
Details
AGLC
Foster v The King [2023] NTCCA 5
Case
[2023] NTCCA 5
Decision Date
CaseChat Overview and Summary
The appellant, Foster, appealed his conviction for an indecent assault on an 11-year-old complainant. The appeal was heard by Grant CJ, Barr and Brownhill JJ. The dispute centred on whether a substantial miscarriage of justice had occurred during the trial due to the non-adduction of certain evidence and the trial judge's directions to the jury.
The legal issues before the Court of Appeal included whether a substantial miscarriage of justice had occurred because evidence regarding the complainant's Fetal Alcohol Spectrum Disorder (FASD) and its effects was not fully presented at trial. Additionally, the court considered whether the trial judge erred by failing to warn the jury about the complainant's potential unreliability and by not giving a *Murray* direction, which cautions juries when the prosecution relies heavily on a single witness.
The Court of Appeal found that the ground of appeal concerning the non-adduction of FASD evidence was not made out. While the complainant's aunt had given general evidence about the complainant's FASD and ADHD, the defence's attempt to tender a paediatric registrar's report detailing specific cognitive deficits was unsuccessful because the author was not available for cross-examination. The court accepted the trial judge's ruling that expert opinion evidence required the author's presence. The Court held that the appellant bore a heavy burden to demonstrate a fundamental failure in the trial process leading to an unjust conviction, and this burden was not met. The court also noted that the inquiry was objective, focusing on whether a miscarriage of justice occurred, not on counsel's specific actions or thoughts.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The appellant also obtained leave at the hearing of the appeal to add the following additional grounds of appeal: (a)A substantial miscarriage of justice occurred because, although available, evidence about the complainant’s Fetal Alcohol Spectrum Disorder and its effects was not adduced at trial, except in general terms from one witness.(b)A substantial miscarriage of justice occurred because the trial judge did not warn the jury about the complainant’s potential unreliability and against too readily accepting her evidence.(c)A substantial miscarriage of justice occurred because the trial judge failed to give a Murray direction[1] to the effect that:(i)where the prosecution relies largely or exclusively on the reliability of a single witness to invite a guilty verdict it is important that they exercise caution; and(ii)before arriving at a guilty verdict, they had to examine the complainant’s evidence very carefully in order to satisfy themselves that they could safely act upon it to the criminal standard.Background At the time of the alleged offending, the complainant was 11 years old and the appellant was 21 years old. They were known to each other through extended family ties. The appellant was the complainant’s ‘uncle’ in the Aboriginal way. The appellant and his girlfriend were living with the complainant’s grandmother at a house in Tennant Creek. The prosecution case was that on 11 June 2020 the complainant was also staying at her grandmother’s house in Tennant Creek. In the evening on that day, the complainant fell asleep on a mattress in the lounge room. Later in the evening, the appellant arrived at the house and asked the complainant’s grandmother if he could sleep on a mattress in the lounge room. The grandmother said ‘no’, because the complainant was already sleeping there. At some later time, the appellant walked into the lounge room and positioned himself next to the complainant. She was lying on her back under a blanket. He then put his hand in the vicinity of her vagina in a sweeping motion. The complainant woke up and was able to identify the appellant because a toilet light was on. The appellant then got up and walked to the bedroom in which he usually slept. The complainant started crying. She spoke to her grandmother, who by that stage had also been asleep in the lounge room, and told her that the appellant was ‘getting funny for her’, that he tried to ‘get her naughty’ and that she got scared. The grandmother then spoke to the appellant and said, ‘You’re getting funny for my granddaughter. You’ve got to go’. The appellant then left and travelled to Adelaide. The complainant made a further complaint to another family member the next day. The family member drove the complainant to the police station where she spoke to police about the matter. The appellant was subsequently arrested, charged and remanded in custody. The trial ran between 21 and 24 March 2022. In her opening to the jury,[2] the prosecutor explained the elements of the charge in simple terms: that on 11 June 2020 at Tennant Creek the appellant touched the complainant; that he meant to touch the complainant; that the touching was indecent; and that the complainant was under 16 years of age when she was touched. The defence position during the course of the trial, and in the closing address to the jury, was that the complainant was mistaken as to the accused’s intentions and what caused her to wake up on the night in question, and that it was reasonably possible that she was woken by the accused falling on her while he was playing with the family dog.
Evidence
Evidence Before The Court
This ground of appeal is not made out.Evidence of Fetal Alcohol Spectrum Disorder The second ground of appeal is that evidence about the complainant’s Fetal Alcohol Spectrum Disorder and its effects was not adduced at trial, except from one witness in general terms. It is necessary to put the appellant’s contention in this respect into context. During the course of the trial the complainant’s aunt gave evidence of the complaint which the complainant had made to her on the morning after the incident. During the course of cross-examination, the aunt gave evidence that the complainant did not concentrate very well and got into a lot of trouble; that she was born with a brain injury in the nature of Fetal Alcohol Spectrum Disorder; and that she had an Attention Deficit Hyperactivity Disorder.[23] At the conclusion of the aunt’s evidence, the prosecutor made a pre-emptive submission to the effect that it would be inappropriate for defence counsel to make submissions to the jury to the effect that the complainant’s Fetal Alcohol Spectrum Disorder bore upon her reliability as a witness in the absence of expert evidence concerning that matter. Defence counsel indicated in response that the defence might be relying on a medical report for that purpose.[24] Following the close of the Crown case, defence counsel sought to tender a report by a paediatric registrar which stated that the complainant suffered some neural developmental deficits including, so far as is relevant for these purposes, ‘difficulty remembering matters learned’, ‘a marked inefficiency in memory’ and a ‘very reduced sense of cause and effect’.[25] The tender of the document was pressed pursuant to the exception to the hearsay rule provided for business records.[26] The Crown objected to the tender on the basis that the author of the document had not made any specific assessment of the extent to which the complainant’s deficits bore on the reliability of her account in the subject case, and without the author being made available for cross-examination.[27] The trial judge ruled that because the document expressed expert opinion it could not be received into evidence unless the defence produced the author of that opinion for cross-examination. Defence counsel advised that he was not in a position to do so and the matter was not pursued.[28] The appellant accepts that ruling was correct. However, the appellant’s contention now is that defence counsel erred in not calling, or not being in a position to call, evidence in relation to the effect of the complainant’s deficits on her reliability as a witness and her ability to interpret correctly the nature of the appellant’s interaction with her on the night in question. The inquiry required under this ground of appeal is an objective one.[29] The relevant question is whether the act or omission resulted in a miscarriage of justice, not whether the act or omission itself was the result of significant fault, flagrant incompetence or egregious error.[30] The inquiry is also not an examination of what counsel did not know or did not think about; but of what did or did not happen during the course of the proceedings and whether a miscarriage of justice was thereby occasioned.[31] Where the assertion is that the incompetence of counsel has caused a criminal trial to miscarry, the appellant carries a heavy burden of establishing that matter.[32] It is necessary to show that there was a fundamental failure in the trial process leading to an unjust conviction.