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3
Court of Criminal Appeal 23 June 1999

R v JGW

[1999] NSWCCA 116

Sexual offences
CRIMINAL LAW OFFENCES HOMOSEXUAL INTERCOURSE ATTEMPTED HOMOSEXUAL INTERCOURSE INDECENT ASSAULT CRIMINAL LAW

Citation: JGW v R [1999] NSWCCA 116
Court: New South Wales Court of Criminal Appeal
Date: 23 June 1999
Judge(s): Wood CJ at CL; Barr J; Greg James J

Background

The appellant was convicted in the District Court before Coleman DCJ on multiple counts involving sexual offences against male minors. The counts included three charges of homosexual intercourse with a male person under ten, one count of attempted homosexual intercourse, one count of homosexual intercourse with a male person aged between ten and eighteen, and one count of indecent assault of a person under sixteen.

The appellant appealed both his convictions and his sentence on several grounds. Those grounds raised questions about the amendment of the indictment, the admission of a recorded interview in video form (an ERISP, being an Electronic Record of Interview with Suspected Persons), jury directions on complaint evidence and delay, directions on lies, and whether the verdicts were unsafe and unsatisfactory.

The Crown was represented by P G Berman and the appellant by A Haesler of Legal Aid.

  • Whether the trial judge erred in allowing amendments to the indictment as to the times particularised in certain counts
  • Whether the Crown should have been required to accept bare admissions in lieu of tendering the ERISP video interview, and whether its admission was unfairly prejudicial
  • Whether the jury directions on complaint evidence, delay in complaint, and the unreliability of that evidence were adequate
  • Whether the directions on lies as evidence of consciousness of guilt were appropriate
  • Whether any of the convictions were unsafe and unsatisfactory and should be set aside
  • Whether, on count 4, the conviction was correct given uncertainty about the complainant's age at the time of the offence

Decision

Amendment of indictment: The Court held that the trial judge did not err in permitting amendments to the dates particularised in counts 2 and 3, nor in directing acquittals on the two counts where amendment was refused. For those acquitted counts, objective evidence existed that could have shown the offences could not have occurred within the charged period, making the timing vital to the defence. For the remaining counts, the complainant's inability to identify precise dates was typical of sexual assault matters where the details of the assault were clear but the timing was not, and this did not result in unfairness to the appellant.

Admission of the ERISP: The Court found no error in the trial judge admitting the ERISP video. The Crown was not obliged to accept bare admissions in place of evidence that was independently relevant. The video revealed the appellant as polite, cooperative, and articulate, and his denials of the specific allegations were explicit. Editing out the denials, as the defence suggested, would have produced a distorted interview and operated unfairly against the accused.

Jury directions on complaint, delay and lies: The Court was satisfied that, read as a whole, the summing-up adequately addressed the effect of delay in complaint on the complainant's credibility in accordance with the principles in Crofts and Longman. The absence of a request by experienced trial counsel for a stronger warning was a significant consideration. Directions on lies, directed to consciousness of guilt, were also found to be appropriate.

Count 4 and unsafe verdict grounds: The Court was not persuaded that any established error caused a miscarriage of justice, and declined to interfere with the remaining convictions after independently reviewing the evidence. However, on count 4, the evidence showed only that the complainant was "about ten" when the offence occurred. The jury convicted on a count framed on the basis the complainant was in his ninth year (under ten), but the evidence could not establish that with certainty. The Court substituted a conviction for the lesser offence of homosexual intercourse with a male aged between ten and eighteen years, on the basis that the age element was a matter of aggravation rather than a definitional element of the underlying offence. An eighteen-month fixed term of penal servitude was substituted for that count. The principle of totality was considered but the overall sentencing structure was otherwise left undisturbed, with the Court observing the difference in objective criminality between the original and substituted offence was not sufficient to require a reduction in the total sentence.

Orders Made

  • Appeal in respect of count 4 allowed; conviction for that count quashed
  • Conviction for homosexual intercourse with a male person aged ten years or above but under eighteen years substituted in respect of count 4
  • Leave granted to appeal against sentence on count 4
  • Sentence in respect of count 4 quashed; fixed term of penal servitude of eighteen months substituted, dated from 22 October 1997 and expiring 21 April 1999
  • Appeal against conviction and sentence otherwise dismissed

Key Takeaways

  • A trial judge retains a discretion to allow amendments to dates particularised in an indictment; where the timing of an alleged offence is not critical to the defence on a given count, amendment will not necessarily result in unfairness even where the complainant cannot specify precise dates.
  • The Crown is not required to accept formal admissions as a substitute for tendering an ERISP recording where the interview contains independently relevant evidence; admission of the video does not become unfairly prejudicial merely because the accused offered to admit certain facts.
  • Where a complainant's evidence establishes an offence occurred but leaves genuine uncertainty as to the age of the complainant, and that age operates as an aggravating factor rather than a definitional element, a conviction may be substituted for the lesser offence that does not carry the aggravation.
  • Jury directions on delay in complaint are to be assessed in the context of the summing-up as a whole; the absence of a request by trial counsel for a stronger direction is a relevant factor in assessing whether the directions were adequate.
  • The Court of Criminal Appeal discouraged the practice of accumulating numerous weak grounds of appeal and then asserting that they collectively establish a miscarriage of justice, describing this tendency as one to be actively discouraged.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 78H, 78I, 78J, 78K, 61M(1), 61M(2), 365
- Evidence Act 1995 (NSW), ss 55, 56, 90, 102, 135, 136, 137

Cases
- Westerman (1991) 55 A Crim R 353
- MacDonald (1995) 84 A Crim R 508
- Pfizner (1976) 15 SASR 171
- S (1989) 168 CLR 267
- Smith (1981) 1 NSWLR 193
- Plevac (1995) 84 A Crim R 570
- Graham (1998) 72 ALJR 1491; [1998] HC 56
- Papakosmos (NSWCCA, 10 December 1997)
- BD (1997) 94 A Crim R 131
- Crofts (1996) 186 CLR 427
- Longman (1989) 168 CLR 79
- Edwards (1993) 178 CLR 193
- Fleming (1998) 158 ALR 379
- M (1994) 181 CLR 487
- Chidiac (1991) 171 CLR 432
- Clough (1992) 28 NSWLR 396
- Wilde (1988) 164 CLR 365
- Green [1999] HCA 13
- Bromley (1986) 161 CLR 315