MS v R

Case [2017] NSWCCA 252 27 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: MS v R [2017] NSWCCA 252
Hearing dates: 8 September 2017
Date of orders: 08 September 2017
Decision date: 27 October 2017
Before: Macfarlan JA at [1];
Beech-Jones J at [71];
Wilson J at [73]
Decision:
Order on each appeal:
(1) Quash the appellant’s convictions.
(2) Direct that the appellant be retried.

Catchwords:
CRIMINAL PROCEDURE – unrepresented accused – whether appropriate for Crown Prosecutor to make a closing address – whether trial judge adequately explained aspects of the trial process to the appellant

CRIMINAL PROCEDURE – evidence of child complainants in sexual offence proceedings – whether recording of complainant’s interview should have been tendered as an exhibit and given to the jury – consequences of failure to give warning required by s 306X of the Criminal Procedure Act 1986 (NSW)

CRIMINAL PROCEDURE – evidence of complainants in sexual offence proceedings where accused unrepresented – consequences of failure to give warning required by s 294A(7) of the Criminal Procedure Act 1986 (NSW) – consequences of failure to give the appellant an opportunity to reformulate questions in cross-examination of complainant conducted by court appointed person

CRIMINAL PROCEDURE – sexual offence proceedings – context evidence – jury not directed not to use context evidence to support tendency reasoning – real risk that jury might have used evidence for impermissible purpose – direction should have been given
APPEALS – appeals against conviction – whether it was open to the court to conclude that the appellant did not receive fair trials by reason of the cumulative effect of irregularities at trial – convictions quashed and new trials ordered
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 6
Criminal Appeal Rules r 4
Criminal Procedure Act 1986 (NSW) ss 294A, 306X
Evidence Act 1995 (NSW)
Cases Cited: BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Galvin v R (2006) 161 A Crim R 449; [2006] NSWCCA 66
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
Hamod v State of New South Wales [2011] NSWCA 375
Hughes v The Queen [2017] HCA 20
JWM v The Queen (2014) 245 A Crim R 538; [2014] NSWCCA 248
MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46
R v Anastasiou (1991) 21 NSWLR 394
R v ATM [2000] NSWCCA 475
R v E J Smith [1982] 2 NSWLR 608
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
R v Zorad (1990) 19 NSWLR 91
Roach v R (2011) 242 CLR 610; [2011] HCA 12
The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21
TKWJ v R [2002] HCA 46; 212 CLR 124
Toalepai v The Queen [2009] NSWCCA 270
Wilson v The Queen (1970) 123 CLR 334; [1970] HCA…

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 MS v R

Details

AGLC: MS v The Queen [2017] NSWCCA 252
Case: [2017] NSWCCA 252
Decision Date: 27 October 2017

CaseChat Overview and Summary

The appeal arose from the conviction of MS on charges of sexual assault and indecent assault against two children. The appellant was unrepresented during the trial. The NSW Court of Criminal Appeal considered several issues pertaining to the procedural fairness of the trial and the adequacy of the trial judge's directions to the jury. The court examined whether the trial judge should have allowed the Crown Prosecutor to make a closing address in the absence of representation, and whether the trial judge had sufficiently explained the trial process to the appellant. The court also assessed whether the recording of one complainant’s police interview should have been tendered as an exhibit and provided to the jury, and the consequences of the failure to give the required warnings under sections 306X and 294A(7) of the Criminal Procedure Act 1986 (NSW). Furthermore, the court scrutinised whether the trial judge should have directed the jury not to use context evidence in their tendency reasoning and the impact of not doing so.

The Court of Criminal Appeal determined that the appellant did not receive a fair trial due to multiple procedural errors. The court found that the trial judge should not have permitted the Crown Prosecutor to make a closing address without the appellant being represented. Additionally, the court held that the trial judge failed to adequately explain the trial process to the appellant, did not provide the recording of the complainant’s police interview to the jury, and omitted to give the required warnings under sections 306X and 294A(7) of the Criminal Procedure Act. The court also concluded that the trial judge should have directed the jury not to use context evidence for tendency reasoning, and that the failure to do so created a real risk that the jury might have used the evidence for an impermissible purpose.

In light of these findings, the Court of Criminal Appeal quashed the convictions and ordered new trials. The court found that the cumulative effect of these procedural errors deprived the appellant of a fair trial, and thus the convictions could not stand. The appeal was allowed, and the matter was remitted for a new trial. The court emphasised the importance of procedural fairness in criminal trials, particularly in cases involving unrepresented accused persons and sexual offence proceedings.

Orders