CATCHWORDS: Criminal Law - Verdicts - whether verdicts of co-accused inconsistent - whether reasonable basis upon which the jury could distinguish the Crown case against each of the co-accused - Evidence - sexual offences - child complainant - evidence in chief of juvenile Crown witnesses given by videotape - videotapes given to jury for replaying in jury room during deliberations - no warning to jury against giving videotaped evidence disproportionate weight - jury asked for and received complainant's cross-examination - whether fundamental procedural irregularity - Evidence (Children) Act 1997 - Rule of comity - applicability of rule of comity to issues of practice and procedure - applicability of rule of comity between jurisdictions with and without Uniform Evidence Act.
SPIGELMAN CJ WOOD CJ at CL HUNT AJA HOWIE J JOHNSON J
WEDNESDAY 17 AUGUST 2005
REGINA v NZ
HEADNOTE
The accused and a co-accused, both juveniles, were each charged with offences against s 61J of the Crimes Act and in the alternative offences against s 66C of the Crimes Act. All of the charges related to the same complainant who was also a juvenile at the time of the incident giving rise to the charges.
During the trial the evidence in chief of the complainant and several other Crown witnesses was given substantially by way of videotaped interviews with police officers. Transcripts of the videotapes were given to the jury and remained with them. Further examination in chief and cross-examination was conducted by way of video-link between the courtroom and a remote location in which the witness was present. The videotapes were given to the jury without objection along with the other exhibits when they retired to consider their verdict.
The jury found the…
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
R v NZ [2005] NSWCCA 278
Case
[2005] NSWCCA 278
Decision Date
CaseChat Overview and Summary
The case of R v NZ involved the appeal of the appellant against his conviction for the sexual assault of a child complainant. The trial judge, when sentencing the co-accused, found that the jury was likely satisfied beyond reasonable doubt that the complainant’s evidence was reliable, but had reasonable doubt as to whether the co-accused knew the complainant was not consenting. The appellant argued that the jury's verdicts were inconsistent as the complainant's account of her reactions to the assaults by both accused were similar, suggesting there was no reasonable basis upon which the jury could distinguish the Crown's case against each of the co-accused. The appeal also raised issues about the handling of evidence, including the use of videotaped evidence and cross-examination of the complainant.
The court had to determine whether the verdicts of the co-accused were inconsistent and if there was a reasonable basis for the jury to distinguish the Crown's case against each accused. The court also had to consider whether the procedures followed in the trial, particularly the handling of the complainant's evidence, were procedurally fair and if the jury was adequately warned about the potential disproportionate weight of videotaped evidence.
The court found that the jury's verdicts, though seemingly inconsistent, could be reasonably based on the evidence presented. The court held that there was a rational basis for the jury to distinguish between the states of mind of the accused, even if their actions appeared similar. The court emphasised that the jury had the benefit of hearing the complainant's evidence in person, including her cross-examination, which provided a fuller context than just the videotaped evidence. The court also found that while the procedures followed in handling the videotaped evidence could have been improved, they did not constitute a fundamental procedural irregularity that would necessitate a retrial.
The court dismissed the appeal, upholding the appellant's conviction. It found that the jury had a reasonable basis to convict the appellant based on the complainant's testimony, despite the acquittal of the co-accused on a related charge. The court concluded that the handling of the videotaped evidence, while not ideal, did not prejudice the fairness of the trial to the extent that a retrial was necessary.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The verdicts of the jury must be taken to mean that the they were satisfied beyond reasonable doubt that the complainant’s evidence was reliable insofar as her allegation was that both MSS and the appellant had intercourse with her. The Judge, when sentencing MSS, explained his acquittal of the s 61J offence on the basis that, although the complainant was not consenting to his assault upon her, the jury had a doubt that MSS knew she was not consenting. That finding was consistent with the basis upon which the Crown explained the presence of the alternative count to the jury: that they may have been left with a doubt on the s 61J offence of either lack of consent or the accused’s belief that the complainant was not consenting.The complainant’s evidence However, Mr Haesler has argued that the different verdicts cannot be explained upon any rational conclusion based upon a difference between the two accused on the issue of belief in consent, as this was not the basis upon which the trial was conducted by the Crown or the defence. He submitted that it was clear that the complainant’s account was that she was not consenting to the actions of either of the accused and made this clear to each of them both by what she said and what she did at the time that each was assaulting her. In respect of MSS the complainant’s evidence was that she had told him “no” more than once when he was assaulting her. She said it in an angry tone and while trying to push him away. She also told him “to get off”. Mr Haesler relied upon the similarity of the accounts given by the complainant as to her reaction to the acts of each of the accused as negativing any suggestion that the jury could have reached different verdicts based upon her conduct alone. Mr Haesler submitted that, notwithstanding the finding made by the Judge when sentencing MSS, there was no reasonable basis upon which the jury could distinguish between the states of mind of the two accused when they were allegedly assaulting the complainant, particularly as neither accused had given any account of the incident either to the police or in evidence at that trial. As has already been noted, MSS did not give evidence. On his behalf counsel appearing for him at the trial put to the complainant that MSS did not sexually assault her as she alleged and it was suggested in cross-examination of her that in effect the complainant had made up the allegation because she was indignant that MSS had rebuffed her attentions toward him during the evening. Counsel appearing for MSS stressed to the jury those matters that might undermine the reliability of the complainant including her intoxicated state and its affect upon her perceptions of what was occurring. One of the particular matters relied upon by counsel for MSS to suggest to the jury that the complainant was unreliable was her account of the removal of her pants and underpants by MSS in the rear of the vehicle. Counsel in his address quoted a passage of the cross-examination of the complainant about this particular issue. He submitted to the jury that they “might find it hard to see how her pants could be removed in the manner described if she were conscious and without her consent”. Of course the removal of the complainant’s clothing was a matter distinctly relevant to the charge against MSS because on the complainant’s account the appellant was driving the vehicle at this time.