R v Knight

In this case the Court of Appeal considered two notable issues which arose from how the trial judge dealt with the complainant not “coming up to proof” in relation to one of the counts on the indictment. First, the application of s 572 Criminal Code 1899 (“the Code”) which governs the power of a trial judge to order the amendment of an indictment where, relevantly, there is a variance between the indictment and the evidence. The Court considered that s 572 of the Code had no application in this case, as the prosecutor only sought to amend the notes recorded in the margin, which did not form a substantive part of the indictment. Secondly, whether the trial judge erred in “urging” the parties to make a joint admission referring to the fact that an out-of-court statement was made to police containing the original allegation and then failing to direct the jury on how they could use the joint admission. The Court held that the circumstances in which the joint admission came about and the failure of the trial judge to direct the jury how to use it, caused a miscarriage of justice. The appeal was allowed, the convictions were set aside, and a retrial was ordered.

Fraser and Morrison and McMurdo JJA

11 March 2022

Background

The appellant had been indicted in relation to 13 sexual offences concerning one complainant (the “indictment”). [2]. The jury returned a verdict of acquittal in relation to one count. [7]. The Crown entered a nolle prosequi which had the effect of discontinuing two counts. [7]. The appellant was otherwise convicted by the jury in relation to the remaining ten counts on the indictment. [7].

Count 10 charged the appellant with rape. [6], [10]. It was particularised as carnal knowledge or penetration of the complainant with the appellant’s penis (the “original allegation”), however, the complainant’s evidence-in-chief was that they had been digitally penetrated. [10]–[11]. It was “apparent” from both the particulars tendered by the Crown and the opening address given on its behalf that the complainant did not “come up to proof” in their evidence-in-chief. [18]–[22].

The appellant appealed against conviction on a number of grounds. [8]–[9]. The primary ground of appeal was that there was a cumulation of errors in relation to how the trial judge had dealt with the complainant not “coming up to proof” in relation to Count 10. [8].

Amendment of an indictment under s 572 Criminal Code 1899

The “margin notes” to Count 10 relevantly recorded “Section 349(1) & (2)(a)” which was a reference to the two “components” of s 349(2) Criminal Code 1899 (“the Code”) which draws a distinction between types of penetration constituting the crime of rape, and relevantly for disposition of the appeal, whether the penetration alleged by the Crown was “penile” or “digital”. [39].

The prosecutor sought to amend the particulars, as well as the notes recorded in the margin of the indictment so as to remove the reference to “(2)(a)” and replace it with “(2)(b)”. [39], [51]. This was sought on the basis that the complainant’s evidence departed from the original allegation and the Crown case was more consistent with an allegation of digital rape. [42]. This was not opposed. [41]–[42]. Whilst the trial judge had correctly observed that the particulars did not form part of the indictment, his Honour purported to apply s 572 of the Code in relation to amendment of the notes recorded in the margin of the indictment. [42], [59], [66].

Justice Morrison (with whom Fraser and McMurdo JJA agreed) held that the notes recorded in the margin of the indictment were “an aid to, but not part of, the indictment”. [55]. Therefore, s 572 did not apply, nor did it apply to amendment of the particulars – neither of which – form part of the substantive indictment. [58]–[64]. Though, contrary to his conclusion and assuming the trial judge was correct in purporting to apply s 572 of the Code, Morrison JA (with whom Fraser and McMurdo JJA agreed) made a number of comments in obiter concerning the trial judge’s purported application of s 572 of the Code. [66]–[77].

The “joint admission” in relation to Count 10

The joint admission was brought about by a jury note which recorded a number of questions including relevantly: “How did [Count 10] come about when penetration was never listed in a statement?” [87]. This question arose as a consequence of the complainant’s evidence under cross-examination. [108]. The complainant had not been challenged as to whether they had made a statement to police consistent with the original allegation, and his answers “seemed to accept” that he had never made an allegation of digital penetration to police consistent with his evidence-in-chief. [108].

The trial judge suggested that the complainant ought to have been re-examined on this topic and “urged” the parties to consider a “joint admission” to avoid practical consequences associated with potentially recalling the complainant to explain that they had made the original allegation. [99]–[100], [108]. However, there was no basis for recalling the complainant, nor was there a basis for the prosecutor to re-examine, as the topic did not arise in cross-examination. [108], [110]. These errors were then “compounded” by the parties producing the following joint admission:

“That in a statement … [the complainant] made an allegation of penile penetration, by the defendant, at his house.” [105], [111].

The joint admission was premised on an “incorrect view” of the evidence that the original allegation was relevant having proper regard to evidence of the complainant. [111]. The “pressure” imposed on defence counsel that there would be “unacceptable delay” if the joint admission was not made was also an error. [111].

In the course of the summing-up the trial judge referred to the joint admission in “several ways” but “nowhere” did his Honour instruct the jury on how they could use the joint admission, nor was the jury directed that it could not be relied on for the truth of its contents and was limited to considering the complainant’s credibility and reliability. [117].

The failure to direct the jury in this way meant there was a “real risk” that the jury would reason that the allegation which was contained in the joint admission was true, and as such, it could have potentially influenced their consideration of the complainant’s account in relation to Count 10. [117]. The joint admission was “plainly prejudicial” to the appellant. [118].

If there was doubt in the minds of the jury as to the credibility and reliability of the complainant in relation to Count 10, it also followed that it would potentially impact the jury’s assessment of this issue more generally in relation to the other counts. [120]. Therefore, the circumstances in which the joint admission was made and the failure to direct the jury as to its use, caused a miscarriage of justice. [122].

Disposition

The appeal was allowed, the convictions were set aside, and a retrial was ordered. [175]–[176].

D Kerr