R v GED

[2003] NSWCCA 296

Reported Decision: 141 A Crim R 135

New South Wales

Court of Criminal Appeal

CITATION:	R v GED [2003] NSWCCA 296
HEARING DATE(S):	13 October 2003
JUDGMENT DATE:	16 October 2003
JUDGMENT OF:	Studdert J at 1; Barr J at 31; Greg James J at 32
DECISION:	Appeal allowed; convictions and sentences quashed; new trial ordered.
CATCHWORDS:	Criminal law - record of interview of accused tendered by Crown - failure of counsel for accused to cross examine Crown witnesses on assertions in interview - jury instructed it might consider such failure a concession assertions untrue - jury not instructed on other possible explanations for failure to cross examine - accused's right to remain silent - whether trial miscarried.
LEGISLATION CITED:	Criminal Appeal Act, s 6
CASES CITED:	Azzopardi v The Queen (2001) 205 CLR 50 Dyers v The Queen [2002] HCA 45 Edwards v The Queen (1993) 178 CLR 193 R v Abdallah (2001) 127 A Crim R 46 R v Birks (1990) 19 NSWLR 677 R v Manunta (1989) 54 SASR 17 R v Markuleski (2001) 52 NSWLR 82 RPS v The Queen (2000) 199 CLR 620
PARTIES :	Regina v GED
FILE NUMBER(S):	CCA 60195/03
COUNSEL:	P.W. Miller (Crown) H. Dhanji (Appellant)
SOLICITORS:	C.K. Smith (Crown) M. Chalmers (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0093
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

60195/03

STUDDERT J
BARR J
GREG JAMES J

Thursday 16 October 2003

REGINA v G E D

Judgment

1 STUDDERT J: The appellant, identified for present purposes as GED, stood trial in the District Court on an indictment containing five counts:

(i) the first count charged the appellant with an aggravated indecent assault at Woolgoolga on 22 March 2002;

(ii) the second count charged the appellant with a further aggravated indecent assault at Woolgoolga, this time on 24 March 2002;

(iii) the third count charged the appellant with aggravated sexual assault without consent at Woolgoolga on 24 March 2002;

(iv) the fourth count charged the appellant with a further offence of aggravated sexual intercourse without consent at Woolgoolga on 24 March 2002;

(v) the fifth count charged the appellant with aggravated indecent assault at Woolgoolga on 24 March 2002.

2 The appellant pleaded not guilty to all counts and after a trial of several days the jury returned with verdicts of guilty on counts 1-4, and a verdict of not guilty in relation to count 5. Following conviction, the appellant was sentenced on 17 December 2002 to imprisonment for a fixed term of twelve months in respect each of counts 1 and 2, and then in respect of count 3 a sentence of imprisonment for two years with a non parole period of eighteen months was imposed. In relation to count 4, the appellant was sentenced to a fixed term of imprisonment of eighteen months. All the sentences were ordered to date from 4 December 2002.

3 No application for leave to appeal against these sentences has been pursued, but the appellant has appealed against his various convictions.

4 Before turning to a consideration of the grounds of appeal, I propose to outline briefly the Crown case.

5 The complainant was, at the time of the alleged offences, a boy fourteen years of age. His age was the feature of aggravation in relation to all charges. The complainant lived with his mother and two younger brothers. The appellant was an acquaintance of the complainant’s mother, and the first and the fifth counts related to events that allegedly occurred at the house where the complainant lived with his mother and which the appellant visited.

6 The first count concerned events which allegedly occurred in the evening. The appellant was one of several adult visitors to the home of the complainant’s mother and a deal of alcohol was consumed. The appellant, the complainant and others engaged in a pillow fight and the appellant is alleged to have taken hold of the complainant when he was lying on a bed in the garage and to have simulated an act of anal intercourse upon him. A number of young children gave evidence as to this, along with the complainant and one of the adults.

7 Two days later the events giving rise to counts 2 to 5 took place. The appellant took the complainant for a drive in the bush where he put his hands down the complainant’s pants and started to touch the complainant’s penis (the second count). The appellant next pulled the complainant’s pants down and sucked his penis (the third count). The complainant next felt, but did not see, something go inside his anus at a time when the complainant was positioned across the car and the appellant was below him (the fourth count). That night when the complainant was in bed the appellant entered his room and lay down next to him. The complainant alleged that the appellant put his hands up the complainant’s pants and started to masturbate him, and thereafter the appellant rubbed his penis against the complainant (the fifth count).

8 The complainant complained to his mother about what had occurred the day after the events to which counts two to five related, but he did not mention the events in bed on 24 March 2002 (the fifth count). The complainant complained to his brother also about what had occurred in the bush (counts 2-4) but not about the last assault.

9 The appellant was subsequently interviewed by the police and denied having committed any of the offences. He did not give evidence at the trial.

THE GROUNDS OF APPEAL

10 Seven grounds of appeal were addressed in the appellant’s written submissions and the first of the grounds argued orally was ground six. It is appropriate to consider this ground first.

Ground 6: There was a miscarriage of justice as a result of the trial judge’s directions in relation to the relevance of the appellant’s counsel’s failure to put matters to the complainant

11 According to the complainant, when he was with the appellant in the car on the bush track where the offences the subject of counts 2-4 were committed, the appellant had told him that he had “done a lot of crazy things in his life” and that he had shot someone and gone to gaol for seven years. A second witness called by the Crown had given evidence that the appellant had made a similar statement in her presence. The Crown introduced into evidence a record of interview conducted by the police with the appellant in which the appellant denied making the statement attributed to him by the complainant and the second witness, and in which he also denied having spent time in gaol.

12 The learned judge gave the jury the following instruction (SU 44):

“[The complainant] and this lady were never cross-examined to suggest that this conversation did not take place, and as the Crown, I think, said to you – I tell you, whether the Crown said to you or not – that could, if you so regard it, constitute a concession by the accused, or an acceptance anyway, that in fact that conversation took place, not only between [the complainant] and he out on the Bucca track, but also between he and somebody else in the presence of this lady, who gave evidence of it. Which would mean, I perceive, that you might find that portion of his record of interview, that is the denial that the conversation took place, and that it was rubbish and that he never said such a thing to [the complainant], you might find that that was less than a frank response to the question put by the police officer, and indeed was a lie. And you would need to look at that if you found it was a lie, you would need to look at it along with the lies that the Crown say indisputably were told by the accused to Officer Langan.”

(The reference to the lies told to Officer Langan is a reference to the appellant’s pretence that he was somebody else when he was approached by police after the police were informed as to what the complainant said GED had done to him.)

13 His Honour, having told the jury (SU 48):

“…if you find that the accused told some lies, (a) about his identity the day that he was taken into the police station, or (b), in his denial in the record of interview that he had ever told [the complainant] that he had served seven years for shooting somebody”,

proceeded to instruct the jury as to the circumstances in which those lies might be taken into account as evidence of guilt, plainly considering Edwards v The Queen (1993) 178 CLR 193 in so doing.

14 His Honour then gave this direction (SU 50):

“If you are satisfied, however, that he told these lies and that they related to a material aspect of this particular offence, then you can use that finding, if that is the finding you make, in aid of other evidence. Not sitting on itself alone, in aid of other evidence as pointing to guilt, because standing alone, that is the lie standing by itself, could never of itself prove guilt, and I do not think that needs to be said really, it is a matter of commonsense. But it can be used in aid of other evidence as pointing to, or indicating guilt.”

15 It was submitted by Mr Dhanji, counsel for the appellant, that this chain of reasoning, dependent as it was upon the conduct of trial counsel in the manner in which he cross examined witnesses called by the Crown, was fraught with danger. R v Abdallah (2001) 127 A Crim R 46 was cited in support of this submission. In Abdallah Sheller JA, with whose judgment the other members of the court agreed, referred to the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 where the Chief Justice adopted what King CJ said in R v Manunta (1989) 54 SASR 17 at 23:

“’It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds.’
[21] Gleeson CJ added his own caution (at 691-692; 398):
‘I would add that one particular matter which makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles ... relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of “mouthpiece” for the client, conducting the case in close conformity with the client's directions. For reasons that have already been explained, this is far from the truth.’”

16 Sheller JA proceeded to say this (para 24):

“…The point made in Birks and Manunta is that in such a situation, it is necessary for the trial judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story.”

17 Unhappily, the trial judge in the present case did not instruct the jury that there may have been possible explanations for the failure to cross examine other than that to which his Honour’s instruction to the jury invited attention. Some possible explanations were adverted to by King CJ in Manunta in the passage cited by Gleeson CJ in Birks (supra).

18 Nor did the instruction given to the jury address the caution expressed by Gleeson CJ in Birks (supra).

19 In my opinion, this ground of appeal has been made good. Indeed, the Crown conceded that the trial judge should have directed the jury as to there being other possible reasons for the failure to put matters to the complainant, and the other relevant Crown witness, apart from the concession by the appellant suggested in the directions given to the jury.

20 Unlike the successful appellant in Abdallah, this appellant gave no evidence at his trial. The Crown tendered the evidence of the interview conducted by the police with the appellant, and by reason of the instruction given in the summing up, the jury was invited to consider whether the appellant had lied to the police, simply because his counsel had not cross examined Crown witnesses on the substance of their evidence to the contrary of the appellant’s denial in the police interview.

21 Early in the summing up the jury had been reminded in an entirely appropriate manner of the appellant’s right to remain silent. In this regard the jury was instructed (SU 9):

“He [the appellant] need not even address a single question to a single Crown witness because that is his right to silence…”

22 Doubtless, his Honour was mindful when giving that direction of the statements of principle in RPS v The Queen (2000) 199 CLR 620 esp at para 26-28; Azzopardi v The Queen (2001) 205 CLR 50 at para 34 and following; and Dyers v The Queen [2002] HCA 45 at para 5.

23 In my opinion the instruction the jury was later given as to the way in which the failure to cross examine might lead to a conclusion that the appellant had lied to the police invited the jury to stray along an altogether impermissible path that may have led them towards their “guilty” verdicts.

24 I do not understand the Crown to be arguing that the operation of r 4 of the Criminal Appeal Rules has been enlivened in relation to ground 6, and it seems to me from a consideration of the transcript that sufficient relevant concern was expressed by counsel for the appellant at the trial to avoid the operation of the rule in respect of ground 6.

25 The Crown however submitted that this is a case for the operation of the proviso to s 6 of the Criminal Appeal Act in respect of the convictions on all of the counts 1-4, and that at the very least the proviso should be applied in respect of the conviction for the offence charged in the first count where there were a number of witnesses who claimed to have seen what the appellant did. I do not agree that this is a case for the operation of the proviso. It is not for this Court to speculate as to the order in which the jury considered the various counts in the indictment. Whilst it is true that there were witnesses who supported the complainant’s evidence as to the offence charged in the first count, it may be that the jury moved from findings of guilt first made in respect of the offences charged in counts 2-4 to a finding of guilt in respect of count 1. It does not seem to me that the real risk of miscarriage because of the erroneous direction can be limited in its possible application.

26 In my opinion none of the convictions can be allowed to stand. The appellant has served a period approaching two-thirds of the non parole period under the sentences that were imposed, but, in my opinion, a new trial should be ordered. In Markuleski (2001) 52 NSWLR 82 Spigelman CJ said (at 200):

“The public vindication of the claims of a victim of offences of this character is significant.”

27 There, of course, the appellant was convicted of offences concerning a younger child than the complainant here but nonetheless the concept of public vindication is a relevant consideration in the present case.

28 The other grounds of appeal raised by the appellant were these:

(i) that there was a miscarriage of justice as a result of the failure of the trial judge to direct the jury they must consider each count against the appellant separately;

(ii) that there was a miscarriage of justice as a result of the failure of the trial judge to direct the jury as to the manner in which any reasonable doubt they had in relation to one count might affect any other count;

(iii) that there was a miscarriage of justice as a result of the trial judge’s directions to the jury which invited the jury to engage in tendency reasoning to find counts 2, 3 and 4 proved in the event that count 1 was proved;

(iv) that there was a miscarriage of justice as a result of the Crown Prosecutor’s address to the jury inviting the jury to engage in tendency reasoning to find counts 2, 3 and 4 proved in the event that count 1 was proved;

(v) that there was a miscarriage of justice as a result of the failure of the trial judge to properly direct the jury as to the significance of an absence of immediate complaint;

(vii) that there was a miscarriage of justice as a result of a lack of balance in the trial judge’s directions to the jury.

29 No useful purpose would be served by a detailed consideration of any one of the above grounds. Each of them, if made good, would result in precisely the same orders as are to be made in consequence of ground six having been established.

30 The orders which I propose then are the following:

(1) that the appeal be allowed;

(2) that the convictions and sentences be quashed;

(3) that a new trial be ordered.

31 BARR J: I agree with Studdert J.

32 GREG JAMES J: I agree.

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Last Modified: 10/17/2003