Regina v Mitchell

[2000] NSWCCA 211

CITATION:	Regina v Mitchell [2000] NSWCCA 211
FILE NUMBER(S):	CCA 60121/99
HEARING DATE(S):	5 June 2000
JUDGMENT DATE:	5 June 2000
PARTIES :	The Crown Steven Joseph Mitchell
JUDGMENT OF:	Spigelman CJ at 36; Newman J at 1; Adams J at 35

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0388
LOWER COURT JUDICIAL OFFICER :	Mitchelmore DCJ

COUNSEL :	D C Frearson (Crown) S J Odgers (Appl)
SOLICITORS:	S E O'Connor (Crown) T A Murphy (Appl)
CATCHWORDS:	Criminal law - sexual assault - identification - discharge of jury - judicial discretion - procedural unfairness
CASES CITED:	R v Crofts (1996) 186 CLR 427 R v M (1994) 181 CLR 487
DECISION:	See para 34

IN THE COURT OF

CRIMINAL APPEAL

60121/99


SPIGELMAN CJ
NEWMAN J
ADAMS J

MONDAY, 5 JUNE 2000

REGINA v Steven Joseph MITCHELL

JUDGMENT

1    NEWMAN J: This is an appeal against the conviction of the appellant of three charges in the District court. On 4 March 1999, following a trial which commenced on 1 March 1999, a jury of eleven convicted the appellant on the following charges:

1. The appellant on 10 April 1998 at Carrington did detain the victim with intent to hold the victim for advantage of himself.

2. The appellant on 10 April 1998 at Carrington did have sexual intercourse with the victim without the consent of the victim knowing that the victim was not consenting.

3. The appellant on 10 April 1998 at Carrington did assault the victim.

2    At the trial an order was made for non publication of the complainant’s name and in my view that order should continue in respect of these proceedings.

3    At the trial it was the Crown case that the events which occurred giving rise to the charges followed an encounter between the appellant and his alleged victim in Maitland Road at Islington in the Newcastle suburban area. The complainant, working as a prostitute at the time, commenced her activities on the evening of Thursday, 9 April 1998.

4    Her evidence at trial was some time between 11 pm and 1.30 am she encountered a person who had driven up beside her in a station wagon which was red in colour with a black or silver stripe down its side.

5    A discussion ensued in which it was agreed between the assailant and the victim that a sexual encounter would take place for a certain price.

6    The complainant described the person driving the vehicle as being in his mid twenties with dark hair and unshaven. He was a bit drunk. He was thick set and about five feet ten inches in height. She described the interior of the vehicle as having upholstery of a light tan/cream colour.

7    The Crown case was then that the two drove to a place at Carrington in the Newcastle area which was isolated. The assailant then advised the victim that he did not have enough money and after discussion drove to Beaumont Street, Hamilton.

8    The victim gave evidence that:

“Q. What happened after that?
A. We drove to an auto bank on Beaumont Street, Hamilton
Q. What bank was it?
A. There’s a couple of auto tellers where we went. I think he used the Commonwealth Bank, but I didn’t see him. I didn’t watch him use the bank.”

9    Following the visit to Beaumont Street, Hamilton the pair returned to the isolated area at Carrington and consensual sex then took place.

10    On the completion of what the victim believed to be a sexual engagement which had been the subject of the agreement, the assailant indicated the desire to continue. The victim declined.

11    A sexual encounter then took place which the victim stated was not in any way consensual. An endeavour which was subsequently made by the victim to escape resulted in her being threatened by her assailant in which attack she suffered injuries.

12    The assailant then blindfolded the victim, and drove her some distance away. She alighted from the vehicle still blindfolded. After the blindfold was removed she found herself in another suburban area in Newcastle at Waratah near Maitland Road. The assailant and the victim then went to a service station where one or other of them rang a taxi. The taxi picked the pair up.

13    In the original encounter at the time after the consensual sexual activity had ceased it was the victim’s allegation that her assailant had taken money from her. During the ride the pair had in the taxi some of that money was returned to her by her assailant.

14    She left the taxi, went to her brother’s house after which subsequently she was medically examined and injuries were discovered which were consistent with the attack she had described.

15    At the trial there was no issue that the victim had in fact been sexually attacked and assaulted in a non sexual manner. The principal issue at the trial was, was it the appellant who was the assailant.

16    Evidence was led at the trial that the victim had been shown a video containing some twenty photographs, one of which was the photograph of the appellant and she had not been able to make an identification from that video.

17    Evidence was also led that at the relevant time the appellant owned a motor vehicle which in many ways, although not precisely, matched the description of the motor vehicle given by the victim.

18    Evidence was led from the official of the Commonwealth Bank which indicated that at 2.31 am on the morning of 10 April 1998 a transaction was recorded at the Beaumont Street, Hamilton branch of the Commonwealth Bank, a withdrawal of $100, the sum nominated by the victim in her evidence, on a key card the number of which coincided exactly with the key card held by the appellant at the Commonwealth Bank.

19    It was on the description given by the victim at the trial, which description there is no issue was a reasonable description of the appellant, the evidence relating to the colour and other features of the car in question and the evidence relating to the withdrawal of $100 from the Hamilton branch of the Commonwealth Bank which constituted the basis of case founded upon circumstantial evidence brought by the Crown against the appellant.

20    It is plain from the narrative I have just given of the Crown case that there was no positive identification made by the victim of her assailant.

21    At the trial, following an opening in which the learned Crown Prosecutor had told the jury:

“it all happened commencing in the early hours of the morning of Friday 10 April 1998. I anticipate the plaintiff’s evidence will be that at the time she was actually working in the Newcastle area as a prostitute and that she was in effect picked up by the accused for the purposes of prostitution.”

22    Shortly after the opening was completed the victim was called by the Crown. Having described the original conversation in which the question of payment for whatever services the complainant was prepared to deliver to the assailant, the following exchange occurred. The car having pulled up at the kerb:

“Q. Then what happened when that car pulled up as you said?
A. He asked me what my prices were and I told him.
Q. Who is he, who are you referring to?
A. You want me to point him out or just ..”

23    There is an indication in the transcript that the prosecutor then cut the victim off:

“Q. No, was there somebody in that car?
A. Yes, there was somebody in that car.”

24    While there was no immediate application for a discharge for reasons which would seem to me to be forensically correct, counsel for the defence shortly thereafter sought to have the jury discharged on the basis that the statement made in the previous non responsive answer given by the victim to the Crown amounted to a form of dock identification.

25    A written submission was handed to the court, and oral argument was received from both the defence counsel and Crown Prosecutor. His Honour declined the application stating:

“I am satisfied that the matters set out in the Crown’s submissions to me have considerable merit. The question to the witness was capable of an interpretation ‘are you asking me to point him out’. It is a great quantum leap to then say that is evidence of a visual identification or dock identification. Bluntly, it is not a dock identification. I am not rejecting evidence of identification in court because there has been no identification in court.”

26    The submission made on behalf of the appellant this morning is not that the statement made by the victim in her evidence amounted to a dock identification but that the jury might have assumed without proper foundation that the victim could have identified the appellant in court but was prevented from so doing because of a legal technicality.

27    In other words what is submitted on behalf of the appellant is that a failure of his Honour to accede to the application made by counsel for the defence that the jury ought to have been discharged amounted to a situation where a fair trial could not have occurred for the reasons stated.

28    In R v Crofts (1996) 186 CLR 427 at 440-441 the High Court examined the question of whether an appellant court should interfere in a case where a judge had declined to refuse a discharge. Having at p 440 set out the discretionary nature of the judge’s power to discharge, at p 441 the High Court observed:

“The appellant court must also decide for itself whether in those circumstances the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellant court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable.”

29    In the instant case the submission is that the victim having made the statement which she did, to allow the trial to continue in a case where there was no positive identification evidence - and it was possible from the tenor of the Crown opening to indicate that the victim could in fact identify her assailant - that to allow the trial to continue following her response constituted a basic unfairness and carried a risk that the jury may have made the assumption which I have referred to earlier in these reasons.

30    In my view following what had fallen from the High Court in Crofts I am of the view the jury may well have made the assumption referred to and accordingly a situation of significant unfairness has occurred and I believe that a miscarriage of justice has in fact occurred and this Court should interfere and quash the conviction.

31    A second ground of appeal was advanced on the basis that the convictions were unreasonable and cannot be supported.

32    All I wish to say on that ground is this, that in the absence of the unfair admission of the passage I have adverted to I am of the view that a jury could have convicted in terms of M v R (1994) 181 CLR 41.

33    Accordingly, I would not be of the view that while, as I have already said, the conviction should be quashed, I do not believe that a verdict of acquittal should be entered. I thus do not propose to go into the reasons advanced on the second ground in detail.

34    I am of the view that the following orders should be made:

1. Appeal should be upheld.

2. The conviction and sentence should be quashed.

3. The appellant should have a new trial.

35    ADAMS J: I agree with the orders proposed by Newman J and his Honour’s reasons for them. I should point out to the Crown that it will need to consider the effect of s 409B on the evidence of the complainant.

36    SPIGELMAN CJ: I agree with the reasons of Newman J and his Honour’s orders. The orders are as his Honour has indicated.