Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: WC v R [2012] NSWCCA 231 Hearing dates: 25 October 2012 Decision date: 25 October 2012 Before: McClellan CJ at CL Decision: Application for leave to appeal rejected Catchwords: CRIMINAL LAW - application for leave to appeal - s 6G - application for leave to appeal against decision of trial judge to discharge jury - application heard by single judge of Court of Criminal Appeal - where Crown sought to adduce context evidence relevant to explain complainant's response to sexual advances of accused - where evidence found to be relevant but excluded for unfair prejudice - where defence counsel then addressed the jury about "bizarre" nature of complainant's response to sexual advances of accused - where address of defence counsel occasioned the trial to be unfair - leave to appeal refused. Category: Interlocutory applications Parties: WC (applicant) Crown Representation: Counsel: R Wilson (Applicant) M Cinque (Crown) Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/268820 Decision under appeal Date of Decision: 2012-10-23 00:00:00 Before: Letherbarrow DCJ File Number(s): 2011/268820 Judgment 1HIS HONOUR: This is an application for leave to appeal to the Court of Criminal Appeal pursuant to s 5G of the Criminal Appeal Act 1912. The circumstances of the matter require the Court to deal with it as a matter of urgency. The Chief Justice has directed me, as a Judge of the Court of Criminal Appeal, to deal with the application for leave. 2The circumstances are that the applicant in this Court is being prosecuted in the District Court in relation to three counts, being the indecent assault of the one victim. As is usual in these cases, the evidence of the alleged victim is contained in the interview which was conducted with her by the Joint Investigation Response Team. In the course of that interview the complainant spoke of what she alleged to be the applicant's sexual behaviour towards her on many occasions other than the acts with which the applicant has been charged and for which he is being tried. 3At the hearing before the trial judge the Crown indicated that it proposed to tender that material in order to provide the jury with the context in which the particular charged acts occurred. In particular, the prosecution submitted to the trial judge that the evidence would provide an explanation for why the complainant had not rebuffed the applicant in relation to the particular acts with which he had been charged. 4The trial judge heard argument about the matter and, in a judgment given on 16 October 2012, determined that the evidence should be rejected. His Honour said: "Although I accept it is relevant to explain why she may not have rebuffed the accused and to place the charges in context thereby arguably making them more plausible. Nevertheless, I am of the view that the probative value of the proposed evidence is limited, and if it is admitted that there is a real and considerable risk that the jury may use it on an improper and perhaps emotional basis despite any direction that I may give them." 5The trial has proceeded to the point where defence counsel was addressing the jury. In the course of that address defence counsel has raised with the jury the circumstances of the alleged offences and the behaviour of the complainant. Emphasis has been placed on the fact that the complainant did not say anything to the applicant at the time of the alleged offences, the submission being made that the jury might think that the behaviour of the complainant was a bit "bizarre" or "unusual." "She wouldn't say, 'No, stop, what are you doing?' Nothing like that is suggested to have been said. Not, 'Stop, leave me alone, I'm going to tell my mum.' None of that's suggested to have been said." 6Later counsel said this: "Again, interestingly, and this goes back to show - back to how she gave her evidence and how her demeanour was and whether her behaviour was bizarre. She's asked, 'When this is all happening did you say anything at that time?' Answer, 'No.' So on 18 August she's being grabbed on, if you accept Sophie's version, she's being grabbed on the vagina in the morning, not said anything about it, and in the afternoon she's again being accosted by the accused, and rubbed his penis and grabbed her breast and grabbed her vagina and she doesn't say anything. Not, 'Stop, leave me alone, don't touch me, you are hurting me', nothing. You might think that justifies common sense that a young girl wouldn't attempt to say no." 7Shortly after this submission was made the Court adjourned for lunch. After lunch when the Court resumed, the trial judge raised a question of whether or not the trial was now being conducted fairly in the circumstance where counsel had successfully objected to evidence which the Crown asserted, and which his Honour found, would explain or have the potential to explain the fact that the complainant didn't rebuff the applicant in circumstances where the applicant's counsel now has put to the jury that the complainant should not be believed because she failed to rebuff the applicant. His Honour said that it appeared to him that as a consequence of the way in which defence counsel had addressed the jury, and effectively had taken advantage of the fact that that evidence which might explain the circumstances had been excluded, that the trial was not fair. 8The issue was discussed with counsel, and it is accepted by both the counsel for the applicant and counsel for the Crown before me, that his Honour made a decision that the jury should in these circumstances be discharged, and that that decision is amenable to an application for leave to appeal to this Court. As I understand the position, his Honour has indicated that the jury will be kept until some time tomorrow awaiting a decision from this Court. 9It was submitted on behalf of the applicant that his Honour has erred in the decision he has made. It was submitted that the course of the trial was determined by the ruling which his Honour had previously made to reject the evidence and that in those circumstances both the Crown and the applicant were entitled to make submissions having regard to the evidence which his Honour had determined should be admitted in the trial. I have no doubt that that submission should be rejected. The fact is that the Crown, at an early stage of the trial, sought to meet the possibility that a submission would be made that the jury may not believe the complainant because they might find her behaviour to be odd without the full context of the relationship between the applicant and the complainant. His Honour having determined, having regard to the material before him, that the evidence should be rejected would not have had in contemplation that counsel would seek to make a submission which was founded upon the absence of the evidence which the Crown had sought to tender. 10In those circumstances I am completely satisfied his Honour was entitled to revisit the issue and ultimately rule that in the circumstances as they have unfolded this trial would be unfair. It was submitted to me that his Honour could have remedied the situation by appropriate directions. I do not believe that to be the case. Counsel no doubt felt justified in making a submission that the complainant's behaviour would be found by the jury to have been bizarre in the circumstances as the jury understood them. The only effective response to that submission would be if the jury were given a full understanding of the relationship and if they were then able to assess that submission in light of that understanding. I am not satisfied that a judge could have given directions which would have adequately dealt with the problem which arose. 11For those reasons I reject the application for leave to appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2013