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Court of Criminal Appeal 12 May 1999

Regina v KCW

[1999] NSWCCA 112

Sexual offences
CRIMINAL LAW DIRECTION TO JURY CORROBORATION CRIMINAL LAW DIRECTION TO JURY ONUS OF PROOF

Citation: Regina v KCW [1999] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 12 May 1999
Judges: Spigelman CJ, James J, Bell J

Background

The appellant (KCW) was tried in the District Court before Judge Kinchington and a jury on four counts of sexual offending against his niece. The counts spanned several decades: the first alleged indecent assault in 1963 when the complainant was four years old, the second alleged indecent assault in approximately 1967 when she was between seven and nine, the third alleged rape in 1979, and the fourth alleged indecent assault in 1994.

The jury acquitted the appellant on the two more recent counts (rape in 1979 and indecent assault in 1994) but convicted him on the two earliest counts. Judge Kinchington sentenced the appellant to penal servitude of three years on the first count, with an additional concurrent fixed term of fifteen months on the second.

The appellant appealed against his convictions, raising grounds including that the verdicts were unreasonable and unsupported by the evidence, errors in jury directions on corroboration and motive to lie, and improper cross-examination of the accused.

  • Whether the verdicts of guilty on counts one and two were unreasonable or could not be supported by the evidence, particularly given that the jury acquitted on counts three and four
  • Whether the trial judge gave inadequate or erroneous directions to the jury on corroboration
  • Whether the trial judge gave inadequate or erroneous directions regarding the onus of proof, motive to lie, and falsification of evidence
  • Whether there were improper questions put to the accused in cross-examination
  • Whether, on the assumption that the verdicts were unreasonable, the Court should order acquittals or a new trial

Decision

The Court of Criminal Appeal upheld the fourth ground of appeal, finding that the verdict on count one was unreasonable and could not be supported by the evidence. The complainant was giving evidence at trial of events she said occurred on her fourth birthday, more than thirty-five years earlier. On count one, her evidence was supported only by her mother's evidence, and the Court held the appellant could not have been convicted on the complainant's mother's evidence alone.

In relation to count two, James J acknowledged that the evidence was stronger, with corroboration from multiple family members and a higher degree of specificity. However, taking into account the full circumstances of the case, the appellant's acquittal on the most serious count, the age and nature of the alleged offending, and the fact that the appellant had already served approximately twelve months of an eighteen-month minimum term, the Court concluded it would be unjust to order a new trial on that count.

On the question of remedy, the Court considered whether to remit count two for retrial or to enter an acquittal directly. Referring to principles discussed in R v Giam, the Court determined that in the particular circumstances, directing verdicts of acquittal on both counts was the appropriate course rather than ordering a new trial.

The Court did not publish detailed reasoning on all grounds of appeal in the text available, but the outcome was driven primarily by the conclusion that the conviction on count one was unreasonable, combined with the specific circumstances bearing on count two.

Orders Made

  • Appeal allowed
  • Verdict of guilty on count one quashed
  • Verdict of guilty on count two quashed
  • Verdict of acquittal directed on each of counts one and two

Key Takeaways

  • A conviction based on an adult complainant's recollection of events alleged to have occurred when the complainant was four years old, supported only by a parent's corroborating evidence, may be unreasonable and unsupported on the evidence in the circumstances of a particular case.
  • Where a jury acquits an accused on more serious counts and convicts on lesser historical counts involving the same complainant, that pattern of verdicts may be relevant to assessing whether guilty verdicts on the lesser counts are reasonably open.
  • The Court of Criminal Appeal confirmed that when a conviction is quashed as unreasonable, the choice between ordering a new trial and directing an acquittal depends on the specific circumstances, including the seriousness of the charges, the age of the alleged offending, and the sentence already served.
  • Evidence of childhood sexual offending given by an adult complainant after a long delay is not inadmissible, but the remoteness of events is a relevant consideration when assessing whether a guilty verdict is properly supported by the evidence.
  • No error was identified in the trial judge's approach of putting to the jury, through counsel's arguments, that acquittal on some counts might affect the complainant's credibility on others; a separate formal direction on that issue was not required in the circumstances.

Legislation and Cases Referenced

Cases cited:
- Hoch v The Queen (1988) 165 CLR 292
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- R v Dennis (NSW CCA, unreported, 25 February 1999)
- R v Giam (NSW CCA, unreported, 10 March 1999)
- R v H [1995] 2 WLR 754
- R v JB (NSW CCA, unreported, 7 March 1996)
- R v Rich (NSW CCA, unreported, 10 December 1998)
- R v Uhrig (NSW CCA, unreported, 24 October 1996)

Legislation: No specific legislation was cited in the text of the decision.