MWL v The Queen [2016] NTCCA 6
PARTIES: MWL
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:21354549
PRONOUNCED: 12 December 2016
DELIVERED: 22 December 2016
HEARING DATE: 15 April 2016
JUDGMENT OF: SOUTHWOOD, BLOKLAND and HILEY JJ
APPEALED FROM: KELLY J
CATCHWORDS:
CRIMINAL LAW – Jury directions – failure to give a direction about lies – failure to direct the jury in accordance with the principles enunciated in Edwards v The Queen and Zoneff v The Queen – real or perceptible danger that the jury may find the appellant’s denials to be lies inconsistent with his innocence – real danger that if the direction were not given, the jury would use the appellant’s lies as evidence of his guilt – direction necessary to avoid perceptible risk of miscarriage of justice – appeal allowed on this ground by Southwood and Blokland JJ, Hiley J dissenting – convictions set aside – retrial ordered
EVIDENCE – Sexual offences – admissibility of evidence about the complainant’s behaviour – failure to give a direction about the use of evidence about the complainant’s behaviour – appeal allowed – convictions set aside – retrial ordered
CRIMINAL LAW – Jury directions – sexual offences – failure to direct the jury about forensic disadvantage due to the delay in the complaint – failure to direct the jury about the unreliability of the complainant’s evidence resulting from such delay and other factors – unreliability direction necessary in relation to count 1 – appeal not allowed on this ground by Blokland and Hiley JJ, Southwood J dissenting as to count 1 on the indictment – Evidence (National Uniform Legislation) Act 2013 (NT) s 165, s 165A, s 165B
CRIMINAL LAW – Jury directions – sexual offences – hard swearing case – complaint evidence – complaint evidence could be used for two purposes – failure to direct the jury how the evidence of complaint could be used – risk that the jury may use the hearsay contained in the complaint evidence to independently support the complainant’s evidence – direction about uses of complaint evidence necessary – appeal allowed on this ground by Southwood and Blokland JJ, Hiley J dissenting – convictions set aside – retrial ordered – Evidence Act (NT) s 26E; Evidence (National Uniform Legislation) Act 2013 (NT) s 66(2)
Evidence (National Uniform Legislation) Act 2013 (NT) s 66, s 135, s 137, s 165, s 165A, s 165B
Evidence Act (NT) s 26E
Dhanhoa v The Queen (2003) 217 CLR 1; Edwards v The Queen (1993) 178 CLR 193; R v Cassebohn (2011) 109 SASR 465; Simic v The Queen (1980) 144 CLR 319; Zoneff v The Queen (2000) 200 CLR 234, applied
Broadhurst v The Queen [1964] AC 441; Flora v The Queen [2013] VSCA 192; Hermanus (A Pseudonym) v The Queen [2015] VSCA 2; Jarrett v The Queen [2014] NSWCCA 140;
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- MWL v The Queen [2016] NTCCA 6
- Case
- [2016] NTCCA 6
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court included whether the trial judge erred by failing to direct the jury in accordance with the principles established in *Edwards v The Queen* and *Zoneff v The Queen* regarding the use of lies told by the appellant as evidence of guilt. Further issues concerned the adequacy of directions relating to the complainant's behaviour, the forensic disadvantage arising from delay in reporting the alleged offences, and the proper use of complaint evidence in a "hard swearing" case.
The majority of the Court, constituted by Southwood and Blokland JJ, allowed the appeal on the grounds relating to the failure to give a direction about lies, the admissibility of evidence about the complainant's behaviour, and the use of complaint evidence. They found a real or perceptible danger that the jury might have used the appellant's denials as evidence of guilt, or that the jury might have used hearsay contained within the complaint evidence to independently support the complainant's testimony. Hiley J dissented on these grounds. Southwood J also dissented from the majority regarding the direction on forensic disadvantage due to delay for count 1.
The Full Court allowed the appeal, set aside the convictions, and ordered a retrial.
Orders
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Background
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Evidence
Evidence Before The Court
Decision
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Ratio Decidendi
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