R v Slack

Case [2003] NSWCCA 93

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v SLACK [2003]  NSWCCA 93

FILE NUMBER(S):
60486/02
60500/00

HEARING DATE(S):               21 March 2003

JUDGMENT DATE: 07/04/2003

PARTIES:
Shane Robert Slack - Appellant
Crown - Respondent

JUDGMENT OF:       Sheller JA Wood CJ at CL Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/21/1118

LOWER COURT JUDICIAL OFFICER:     Viney QC DCJ

COUNSEL:
P J O'Donnell - Appellant
L  M B Lamprati - Crown

SOLICITORS:
John Taylor - Appellant
S E O'Connor - Crown

CATCHWORDS:
Criminal law - Evidence - Cross-examination of accused - Matters collateral to facts in issue - Where beyond bounds of legitimate cross-examination to credit

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence (Children) Act 1997
Evidence Act 1995

DECISION:
1  Appeal allowed
2  Quash the convictions and direct a judgment and verdicts of acquittal to be entered
3  Crown appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60486/02
60500/02

SHELLER JA
WOOD CJ at CL
SMART AJ

Regina v Shane Robert SLACK

The appellant was convicted on two charges of aggravated sexual assault of a girl then aged eleven.  At trial, the cross-examination of the appellant by the Crown Prosecution focussed extensively on the appropriateness of attempting to hypnotise young girls without the knowledge of their parents and the appropriateness of accepting the assurances of girls under the age of 15 that they were not permitted to watch 15+ movies.  The hypnosis in question had taken place on a prior occasion and had allegedly formed part of a game.  There had been significant in complaint.

HELD (Per Sheller JA, Wood CJ at CL and Smart AJ agreeing):

1.Cross-examination of a matter merely collateral to facts in issue is restricted to questions which legitimately go to credit: Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 cons; Harris v Tippet (1811) 2 Camp 637; (1811) 170 ER 1277 cons; Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 foll; Wentworth v Rogers(No 10) (1987) 8 NSWLR 398 foll.

2.The cross-examination was designed to prejudice the jury against the appellant and went beyond the bounds of legitimate cross-examination on credit.

3.The jury may have been diverted by this evidence from an objective consideration of the evidence and this led to a substantial miscarriage of justice.

Legislation:

Crimes Act 1900
Criminal Appeal Act 1912
Evidence (Children) Act 1997
Evidence Act 1995

Cases cited:

Bickel v John Fairfax & Sons Ltd  (1981) 2 NSWLR 474
Harris v Tippett (1811) 2 Camp 637;  (1811) 170 ER 1277
M v The Queen (1994) 181 CLR 487
R v Dent (unreported) CCA 14 March 1991
R v Evans (unreported) CCA 24 March 1988
R v Eyles (1963) 47 Cr App R 260
R v Johnston (1998) 45 NSWLR 362
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213

ORDERS

1.            Appeal allowed;

2.Quash the convictions and direct a judgment and verdicts of acquittal…

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R v Slack [2003] NSWCCA 93
Case
[2003] NSWCCA 93
Decision Date

CaseChat Overview and Summary

The case of R v Slack dealt with an appeal against conviction brought by the appellant, focusing on the admissibility and impact of certain cross-examination during the trial. The trial involved allegations of sexual offences against the appellant by the complainant, a matter that was ultimately decided by a jury. The primary issue before the court was whether the cross-examination conducted during the trial overstepped the bounds of what is considered legitimate for assessing the credibility of the accused, and if so, whether this warranted the setting aside of the jury’s verdict.

The court examined whether the cross-examination of the appellant on matters collateral to the facts in issue was permissible and if it had any bearing on the jury's assessment of the appellant's guilt. It was noted that the trial judge did not direct the jury to disregard the cross-examination, and the appellant’s counsel did not object during the trial. However, the court found that the cross-examination went beyond what is considered legitimate in assessing the accused's credibility, citing authority that the judge has a duty to restrain such examinations. The court held that the cross-examination should have been curtailed by the trial judge even in the absence of an objection from the defence.

In reaching its decision, the court considered the overall evidence presented, including the uncorroborated testimony of the complainant and the discrepancies in her statements regarding the hiring of a video film. The court concluded that the inconsistencies in the complainant’s evidence were significant enough to cast doubt on her reliability. Given the nature of the case, which relied heavily on the credibility of the complainant’s testimony, the court found that the improper cross-examination had the potential to unduly influence the jury’s verdict. Consequently, the court allowed the appeal and set aside the verdict, finding that a miscarriage of justice had occurred.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WOOD CJ
No direction was sought or given on the summing up that all this material should be ignored when the jury came to consider whether the appellant was guilty of the offences charged. The appellant’s counsel took no objection to the cross-examination to which I have referred and no point has been raised about it in the arguments in this Court. It is difficult for defence counsel to object to such cross-examination. That in itself may be seen to suggest a lack of confidence in the accused’s ability to deal with the cross-examination. In my opinion, the cross-examination should have been restrained by the trial Judge without objection being taken. “[The judge] has a right on all occasions to exercise the power … of stopping examinations which are not necessary for any legitimate purpose”; Stephen, History of the Criminal Law of England Vol 1 at 436 cited in Cross, 3rd Australian edition at 17510. To my mind, the cross-examination here went beyond the bounds of legitimate cross-examination on credit.Conclusion Section 6(1) of the Criminal Appeal Act provides that this Court on any appeal under s5(1) against conviction shall allow the appeal if it is of the opinion amongst other things that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence or that on any other ground whatsoever there was a miscarriage of justice. In any other case the Court shall dismiss the appeal. The allowance of the appeal is subject to a proviso that the Court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. A question posed for this Court was whether it thought, upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations; M v The Queen (1994) 181 CLR 487 at 493. This case was, in essence, one of word against word with the jury knowing that the onus was on the Crown. The complainant’s evidence was uncorroborated. The appellant’s daughter, who was in the bed apparently asleep next to the complainant at the time, was not called by either side. Her mother refused to allow police to interview her. The case depended upon careful scrutiny of the complainant’s evidence. That included the video recording of the complainant’s interview admitted under the Evidence (Children) Act. In answer to question 183 the complainant said as part of her answer “it was just me and Rebecca, Melanie and Shane and we hired out a movie”. This was, it was said, consistent with the appellant’s case and the document produced from the video shop. It was inconsistent with the answer to question 221 in the interview where the complainant asserted that she did not know where the video film was hired because “they had it there before”. In her evidence at trial on 3 September 2002 the complainant denied that she had accompanied the appellant to the video store and maintained her assertion that the video films were already at the house before her arrival on the Friday afternoon. The complainant had arrived at the house well before 6.41 pm when the video films were hired out. The appellant submitted that the contradictions in the evidence of the hiring of the video film provided a vital yardstick by which to assess the truthfulness and reliability of the complainant. It was submitted accordingly that it was more likely that the conversation between the appellant and the complainant about sexual scenes in movies occurred at the video store and not when the complainant said it did.

Ratio Decidendi

Legal Principle Established

Established by: WOOD CJ

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