Glenn (a pseudonym) v R [2020] NSWCCA 308

Glenn (a pseudonym) v R [2020] NSWCCA 308

Judge Norton did not make a binding ruling on the admissibility of the interim acts, so ground 1 failed. However, the complainant's evidence explaining why she did not complain about the interim acts introduced highly prejudicial bad-character material and ground 2 was upheld. The Crown Prosecutor's cross-examination and closing address went beyond robust advocacy: they dwelt disproportionately on the 1998 incident, included inaccuracies, invited tendency reasoning, required the applicant to comment on the complainant's evidence, unfairly explored a period when the applicant had been in custody, used insulting and sarcastic language, and suggested recent invention. In the unusual...

Jurisdiction
Australia
Judgment Date
25 November 2020
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal to the Court of Criminal Appeal From District Court Convictions
Outcome
Appeal allowed; convictions set aside and new trial ordered.
Legal Topics
['appeal Against Conviction' 'sexual Intercourse Without Consent' 'aggravated Break and Enter' 'context Evidence' 'pre Trial Rulings' 'prosecutorial Conduct' 'cross Examination of Accused' 'post Offence Conduct' 'consciousness of Guilt Direction' 'miscarriage of Justice']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'sexual Intercourse Without Consent' 'aggravated Break and Enter' 'context Evidence' 'pre Trial Rulings' 'prosecutorial Conduct' 'cross Examination of Accused' 'post Offence Conduct' 'consciousness of Guilt Direction' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal to the Court of Criminal Appeal From District Court Convictions

Legal Issues

  1. 1 ['Whether the trial judge erred in admitting additional context evidence of historical acts of maltreatment contrary to an earlier pre-trial ruling and without regard to s 130A of the Criminal Procedure Act 1986 (NSW).' 'Whether the trial judge erred in admitting evidence of the reasons why the complainant did not complain about the interim context evidence.' "Whether the Crown Prosecutor's cross-examination of the applicant and closing address occasioned a miscarriage of justice." "Whether the trial judge erred by failing to give a consciousness of guilt direction concerning the applicant's telephone calls to police after the incident."]

Ratio Decidendi

Judge Norton did not make a binding ruling on the admissibility of the interim acts, so ground 1 failed. However, the complainant's evidence explaining why she did not complain about the interim acts introduced highly prejudicial bad-character material and ground 2 was upheld. The Crown Prosecutor's cross-examination and closing address went beyond robust advocacy: they dwelt disproportionately on the 1998 incident, included inaccuracies, invited tendency reasoning, required the applicant to comment on the complainant's evidence, unfairly explored a period when the applicant had been in custody, used insulting and sarcastic language, and suggested recent invention. In the unusual...

Court Disposition

Appeal allowed; convictions set aside and new trial ordered.

Orders

  • ['To the extent necessary, leave is granted.' 'The appeal is allowed.' 'A new trial is ordered.' 'The matter is listed for arraignment in the District Court in Parramatta on 4 December 2020 at 9:30am.']