Ian JACKSON v REGINA [2005] NSWCCA 411

New South Wales Court of Criminal Appeal

CITATION: Ian JACKSON v REGINA [2005] NSWCCA 411

HEARING DATE(S): 4 November 2005

JUDGMENT DATE: 30 November 2005

JUDGMENT OF: Spigelman CJ at 1; Sully J at 11; Hulme J at 40

DECISION: Appeal against conviction dismissed

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v Williams (1990) 50 A Crim R 213

Ian Jackson PARTIES: Regina

FILE NUMBER(S): CCA 2005/1189

D. Frearson SC - Crown COUNSEL: P. Boulten SC - Appellant

S. Kavanagh - Crown SOLICITORS: S. O'Connor - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0176

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1189

SPIGELMAN CJ SULLY J HULME J

30 November 2005 Ian JACKSON v REGINA Judgment 1 SPIGELMAN CJ: The facts and issues appear in the judgment of Sully J which I have read in draft. None of the points agitated in this Court were raised at the trial. The Appellant requires leave under rule 4 of the Criminal Appeal Rules. In each respect, in my opinion, leave should be refused. 2 With respect to Ground 1 the Appellant contended that the differences exceeded the similarities between the two incidents. Accordingly, it was submitted that each was not admissible against the other on the basis that it was not coincidence evidence within s98 or, alternatively, should have been excluded on the basis that its probative value did not substantially outweigh the prejudicial effect within s101 of the Evidence Act 1995. The latter contention emerged in submissions and was not within Ground 1 as formulated. I would not shut out the Appellant from arguing s101 on that basis, but would refuse leave under rule 4. 3 The direction his Honour proposed to give with respect to coincidence evidence was raised with counsel and approved in advance. No request for any redirection was made. His Honour's direction, set out by Sully J, applied equally to the evidence of each complainant with respect to the use that could be made of that evidence in the charge involving the other complainant. 4 There is no basis, in my opinion, for the submission that there was any risk that the case involving KG was bolstered by the stronger case made in the evidence by JM. I can see no error of law or miscarriage of justice. No explanation is proffered by way of affidavit from trial counsel. It is not the duty of counsel to take every conceivable point in the course of a criminal trial. This Court should do nothing to encourage counsel to do so. On the contrary, this Court should encourage counsel for the accused in a criminal trial to concentrate on their good points. This will generally be in the interests of their clients. Juries sometimes do not take kindly to trial counsel whose conduct leads to continuing interruptions and whose task of persuasion is thereby made more difficult. 5 The issues involved in this ground of appeal are classically matters for judgment. Whether the differences or similarity outweigh similarities in two bodies of evidence is a matter upon which a wide range of views are permissible. That is also the case when it comes to weighing incommensurable matters such as the probative value of evidence against the prejudicial effect of evidence. This Court should be very slow to give leave under rule 4 when trial counsel had formed a perfectly reasonable judgment on matters of this character. 6 In the present case the similarities in the two bodies of evidence were strong and perfectly capable of justifying a conclusion that each was admissible in the other case as coincidence evidence. Similarly, the probative value could perfectly reasonably be seen to subtantially outweigh any prejudicial effect in the context of the overall trial. There was no miscarriage of justice, nor was there any error of law. Leave should be refused. 7 With respect to Ground 2, his Honour directed the jury that the Crown bore the onus of disproving consent beyond reasonable doubt. Nevertheless the principal focus of the case was whether the events had occurred at all. The ground of appeal focused on the directions with respect to consent in respect of the complainant JM. In oral submissions the Appellant sought to extend this ground of complaint to the complainant KG. In neither case was the point taken at the trial. Rule 4 applies. 8 The complaint made is that his Honour did not expressly link the directions on consent to the evidence relating to those matters. Again there is no affidavit from trial counsel explaining why no objection was taken. This is quintessentially a matter for judgment of trial counsel. No one participating in the trial including, relevantly, the judge and trial counsel formed the view that the jury required additional assistance, the absence of which is now said to constitute a miscarriage of justice. 9 The trial was a short one. The evidence was fresh in the minds of the jurors. The submissions of counsel and the summing up proceeded expeditiously. The evidence on consent was tenuous at best. No doubt for that reason, counsel for the accused focused entirely on the case that the incidents did not occur as described. The judgment could well have been made that it could be counter productive to ask the judge to focus on consent, the evidence for which was at best tenuous and at worst ridiculous. This is the kind of case in which rule 4 should be applied. In my opinion leave should be refused. 10 In any event I agree with the reasons of Sully J and in particular his Honour's application of the reasoning of this Court in R v Williams (1990) 50 A Crim R 213.