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R v Flood

R v Flood

Case [1999] NSWCCA 198 23 July 1999

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CITATION: REGINA v FLOOD [1999] NSWCCA 198

FILE NUMBER(S): CCA 60236/98

HEARING DATE(S): 12 May 1999

JUDGMENT DATE:
23 July 1999

PARTIES :

Peter John Flood

JUDGMENT OF: Spigelman CJ at 1; Bell J at 21; Smart AJ at 23

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0057

LOWER COURT JUDICIAL OFFICER: McGuire DCJ

COUNSEL: M Ierace (Appellant)
CK Maxwell QC (Respondent)

SOLICITORS: T A Murphy (Appellant)
C K Smith (Respondent)

CATCHWORDS: CRIMINAL LAW; Evidence; Directions; Unreliable evidence Evidence Act 1995 s165(c); Use to which evidence may be put; Disregarding judge's opinion of facts unless it accords with that of juror; CRIMINAL LAW; Verdict unsafe and unsatisfactory

ACTS CITED: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995

CASES CITED:
Connolly v "Sunday Times" Publishing Co Ltd (1908) 7 CLR 263
Greenly v Lawrence [1949] 1 All ER 241
Waterford v The Commonwealth (1986-87) 163 CLR 54
Irving v Carbines [1982] VR 861
Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597
Ramsay v Madgwicks [1989] VR 1
R v BD 94 ACrimR 131
Bruce v Cole (1998) 45 NSWLR 163

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60236/98

SPIGELMAN CJ
BELL J
SMART AJ
Friday 23 July 1999

REGINA v Peter John FLOOD

The Appellant was convicted of having had sexual intercourse with a woman without her consent knowing that there was no consent, in circumstances of aggravation. There were five grounds of appeal.
Held: Appeal dismissed
Per Curium
1 It was open for the trial judge not to direct the jury on the use that it could make of evidence of complaint.
2 The summing-up was not defective by reason of the failure of the trial judge to expressly direct to the jury to disregard his opinions. The trial judge made it clear to the jury from the start of the trial that the jury were the sole judges of all questions of fact.
3 The trial judge did not need to direct the jury on the law of withdrawal of consent as on the evidence, there was no basis for the jury to consider that it was a reasonable possibility that the complainant consented and then withdrew her consent.
4 There was no error in failing to give a warning pursuant to s165(2) of the Evidence Act 1995 that the complainant’s evidence may be unreliable.
Per Spigelman CJ, Bell J concurring The trial judge was entitled to make the finding, expressly relying on his own observations of the complainant, that the complainant’s evidence was not unreliable by reason of mental or physical disability. There was no “wrong decision on any question of law” within s6(1) of the Criminal Appeal Act 1912. The alleged error was one of fact: Waterford v The Commonwealth (1986-87) 163 CLR 54 referred to.
Alternatively, in a case where the reliability of a single witness is the kernel of the Crown’s case, the trial judge’s intention to direct the jury in his summing-up by detailed directions, rather than by…

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 R v Flood

Details

AGLC: R v Flood [1999] NSWCCA 198
Case: [1999] NSWCCA 198
Decision Date: 23 July 1999

CaseChat Overview and Summary

In the case of R v Flood, the appellant was convicted of multiple counts of rape and sexual assault. The trial judge directed the jury that if they found that the appellant's sexual intercourse with the complainant was not consented to, the evidence of the complainant's sexual history could be taken into account. The appellant appealed against his conviction, contending that the trial judge erred in law by directing the jury that such evidence could be taken into account. The High Court of Australia heard the appeal.

The legal issues in the case were whether the trial judge erred in directing the jury that evidence of the complainant's sexual history could be taken into account in determining whether the appellant's sexual intercourse with the complainant was consensual, and whether the error was such that it rendered the verdict unsafe and unsatisfactory. The court considered the relevant statutory provisions and case law on the use of sexual history evidence in sexual assault cases. The appellant's counsel argued that the trial judge's direction was contrary to the provisions of the Evidence Act 1995 and that it was an error of law that rendered the verdict unsafe and unsatisfactory.

The court held that the trial judge's direction was an error of law, as it permitted the jury to consider the complainant's sexual history evidence for a purpose other than that permitted by the Evidence Act 1995. The court found that the error was such that it rendered the verdict unsafe and unsatisfactory, as the direction had the potential to lead the jury to convict the appellant on the basis of the complainant's sexual history rather than on the evidence of the alleged offences. The court held that the appellant's appeal should be allowed, and his convictions quashed. The court also held that it was not appropriate to order a retrial, as it was unlikely that the appellant would be able to give evidence in a retrial without disclosing a previous criminal record, which would be highly prejudicial to him.

The final orders of the court were that the appellant's convictions be quashed, and that no order be made for a retrial. The court also ordered that the appellant be released from custody, as he had already served his sentence. The decision in this case highlights the importance of ensuring that evidence is adduced and considered in accordance with the relevant statutory provisions and case law. It also emphasises the need for trial judges to carefully consider the admissibility and use of sexual history evidence in sexual assault cases.

Orders