Date of Hearing: 22 June 2021 Date of Judgment: 3 November 2021
S24/2021
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
H K Dhanji SC with D R Randle for the appellant (instructed by George Sten & Co)
H Baker SC with B K Baker for the respondent (instructed by Office of the Director of Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hamilton (a pseudonym) v The Queen
Criminal practice – Trial – Directions to jury – Where appellant charged with ten counts of aggravated indecent assault against three of his children – Where appellant did not seek that counts be tried separately – Where appellant alleged complainants' evidence was inconsistent and had been concocted – Where appellant did not seek anti‑tendency direction and no anti‑tendency direction given – Where trial judge gave Murray direction requiring jury not to convict on any count unless satisfied that evidence of each child was honest and reliable in relation to that count – Where trial judge directed jury to give separate consideration to each count – Whether trial miscarried because of failure to give anti‑tendency direction.
Words and phrases – "anti‑tendency direction", "concoction of evidence", "counts tried together", "failure of counsel to seek a direction", "forensic advantage", "forensic strategy", "impermissible tendency reasoning", "miscarriage of justice", "multiple complainants", "Murray direction", "separate consideration direction", "stark contest of credibility".
KIEFEL CJ, KEANE AND STEWARD JJ. The appellant was charged with ten counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW). The offences were alleged to have been committed on separate occasions against three of the appellant's five children. The case has proceeded on the footing that, had each count been tried separately, only the evidence of offending bearing on each particular count would have been admissible against the appellant. The defence did not seek to have the counts tried separately. Rather, the defence embraced the opportunity to have all ten counts tried together as part of a strategy of inviting the jury to consider the evidence of all the complainants on all counts and, from a consideration of the totality of the evidence, to conclude that the children fabricated their allegations against him at the urging of their mother, his former wife.
At trial, counsel for the defence did not seek a direction from the trial judge – which the appellant now contends should have been given – that the jury must not reason from a finding that the appellant was guilty of one charged offence to conclude that he was guilty in respect of other charged offences because he was the kind of person who engaged in…
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.
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Details
AGLC
Hamilton (a pseudonym) v The Queen [2021] HCA 33
Case
[2021] HCA 33
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by a man, referred to pseudonymously as Hamilton, against his conviction for ten counts of aggravated indecent assault. The charges involved three of his children. Hamilton did not request that the counts be tried separately, and his defence at trial was that the complainants' evidence was inconsistent and had been fabricated.
The central legal issue before the High Court was whether the trial had miscarried due to the trial judge's failure to give an "anti-tendency" direction to the jury. The appellant argued that such a direction was necessary to prevent the jury from impermissibly using evidence relating to one count to infer guilt on another count, particularly given the multiple complainants and the stark contest of credibility. The trial judge had instead given a "Murray direction," requiring the jury to be satisfied of the honesty and reliability of each child's evidence in relation to each specific count, and had directed the jury to consider each count separately.
The High Court reasoned that the "Murray direction" and the separate consideration direction effectively focused the jury on the honesty and reliability of each complainant's evidence for each count. If the jury were satisfied of the honesty and reliability of each complainant's evidence in accordance with these directions, then convictions would follow directly, and there would be no occasion to resort to tendency reasoning. The Court noted that the failure of the appellant's trial counsel to seek an anti-tendency direction was a deliberate forensic strategy, not an oversight, and that counsel had successfully resisted the Crown's own tendency application. The Court found that this strategic decision, coupled with the directions that were given, meant there was no perceptible risk of a miscarriage of justice.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND STEWARD JJ
(dissent)
EDELMAN AND GLEESON JJ
If the jury were to entertain a doubt as to whether even one of the complainants was a reliable witness, then they might well have been disposed to entertain the possibility that all the complainants' evidence was concocted. On the other hand, if the jury were satisfied beyond reasonable doubt that the evidence of each complainant was honest and reliable in accordance with the separate consideration direction and the Murray direction, then there would simply be no occasion for the jury to resort to tendency reasoning. The Murray direction, which the appellant's counsel had secured, meant that the jury were focussed on whether any of the complainants might not be honest and reliable. If, with that focus, the jury were satisfied that each complainant was honest and reliable, verdicts of guilty would follow directly. But in no case would a conviction on any count follow from reasoning that doubts about the honesty and reliability of any complainant could be resolved in favour of conviction by tendency reasoning.A deliberate decision and its significance Within our system of justice, save for exceptional cases, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue"[38]. While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v The Queen[39]:"[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice",their Honours went on to say:"The absence of an application for a direction may ... tend against finding that that risk was present."[38]Nudd v The Queen (2006) 80 ALJR 614 at 618 [9]; 225 ALR 161 at 164; R v Baden‑Clay (2016) 258 CLR 308 at 324 [48].[39](2019) 268 CLR 57 at 70 [35]. The majority of the Court of Criminal Appeal were right to conclude that the failure of the appellant's counsel at trial to seek an anti-tendency direction was a deliberate decision based on the circumstance "that he did not consider that such a direction was necessary"[40] to ensure a fair trial of the appellant. Indeed, this is clearly the better view.[40]Hamilton (a pseudonym) v The Queen [2020] NSWCCA 80 at [119]. There is no reason to doubt the competence of defence counsel. Indeed, it may be said that he conducted his client's case with considerable success. He resisted, successfully, the Crown's tendency application. And, as has been seen, in the course of the trial judge's summing‑up, when defence counsel was afforded the opportunity to consider whether further directions were required, he did not seek an anti‑tendency direction in respect of the counts on the indictment but rather pressed – again successfully – his application for the Murray direction, which was ultimately given by the trial judge. In these circumstances, the suggestion that defence counsel failed to seek an anti‑tendency direction as a result of oversight on his part is fanciful.