Citation: [1999] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 7 June 1999
Judge(s): Spigelman CJ, James J, Bell J
Background
The appellant was convicted in the District Court at Muswellbrook on four counts of sexual assault against his stepdaughter. The offences were alleged to have occurred between 1992 and 1993, when the complainant was aged 14 to 15. The counts included indecent assault and aggravated sexual intercourse without consent.
The complainant delayed reporting the offences. She made an initial disclosure to a school friend in 1994 and did not formally complain to police until around Christmas 1996. Her mother gave evidence that was, in some respects, inconsistent with the complainant's account of what had been disclosed and when.
The appellant appealed his four convictions on several grounds, challenging the admissibility of complaint evidence, the adequacy of the trial judge's directions on delayed complaint, and whether the verdicts on two counts were supported by the evidence given the dates specified in the indictment.
Legal Issues
- Whether recent complaint evidence was admissible under s 108(3) of the Evidence Act 1995 (NSW), and whether the jury was adequately directed about the limited use of that evidence
- Whether the trial judge's directions on delayed complaint were adequate under s 405AA of the Crimes Act 1900 (NSW)
- Whether the convictions on counts 3 and 4 were unreasonable or unsupported by the evidence, given the appellant's evidence that he had not lived at the relevant premises from 14 July 1992 until the end of 1993
- Whether the indictment dates for counts 3 and 4 were essential, and whether the Crown had proved the offences occurred within those specified dates
Decision
Bell J (with whom Spigelman CJ and James J agreed) identified a combination of errors across the grounds of appeal that together caused the trial to miscarry. On the complaint evidence, the court found that errors arose in the admission or use of complaint evidence under s 108(3) of the Evidence Act 1995, and that the jury had not been properly directed on how to treat that evidence.
On the question of delayed complaint, the court found the trial judge's directions were inadequate. Under s 405AA of the Crimes Act 1900, a judge is required to direct the jury on the significance of delay in making a complaint, including that delay does not necessarily indicate a false allegation and that the jury must not draw an adverse inference from delay alone without considering any explanation offered for it.
With respect to counts 3 and 4, the court concluded the verdicts were unreasonable and could not be supported by the evidence. The appellant's defence was effectively that he had not lived at the Muswellbrook home during the period specified in the indictment. The complainant's evidence did not confine the alleged incidents to any date after 14 July 1992, and a jury ought to have entertained a reasonable doubt that the offences occurred within the charged period. An additional difficulty with counts 3 and 4 was that the complainant turned 16 on 29 June 1993, and her evidence did not establish that the offences occurred before that date, which was relevant to the aggravating element pleaded in those counts.
The court did not consider the verdicts on counts 1 and 2 to be unreasonable or unsupported by evidence, describing them as serious matters, particularly count 2. Given the seriousness of those allegations and the likelihood that any sentence on count 2 upon retrial would exceed time already served, the court ordered a new trial on counts 1 and 2 rather than entering acquittals.
Orders Made
- Appeal allowed
- All four convictions quashed
- Verdicts of acquittal entered on counts 3 and 4
- New trial ordered on counts 1 and 2
Key Takeaways
- The Court of Criminal Appeal confirmed that the combined effect of multiple trial errors, even where individual errors might not each be independently decisive, can be sufficient to cause a trial to miscarry and warrant quashing of convictions.
- Under s 405AA of the Crimes Act 1900, a trial judge must direct the jury on the significance of delayed complaint; failure to give an adequate direction on this point constitutes a ground for appeal in sexual assault cases.
- Where an accused leads evidence going to opportunity, specifically challenging whether he was present at the relevant location during the period stated in the indictment, the Crown is bound to prove the offence occurred within the dates specified, and the jury must be directed accordingly.
- A verdict of acquittal, rather than a retrial, is the appropriate order where convictions are found to be unreasonable and unsupported by evidence; where convictions are quashed for other trial errors but the evidence on the underlying counts was sufficient, a new trial may be ordered instead.
- Complaint evidence admitted under s 108(3) of the Evidence Act 1995 requires careful jury direction on its limited permitted use; inadequate direction on this point contributed to the finding that the trial miscarried.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 108(3)
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 405AA
- Criminal Appeal Act 1912 (NSW), s 8(1)
Cases cited:
- Graham v The Queen (1998) 72 ALJR 1491
- Crofts v The Queen (1996) 186 CLR 427
- Longman v The Queen (1989) 168 CLR 79
- Palmer v The Queen (1998) 193 CLR 1
- M v The Queen (1994) 181 CLR 487
- Regina v Davies (1985) 3 NSWLR 276
- Regina v AH (1997) 42 NSWLR 702
- Regina v DJK (1997) 96 A Crim R 443
- Regina v Condon (1995) 83 A Crim R 335
- Regina v Zorad (1990) 19 NSWLR 91
- Regina v Beserick (1993) 30 NSWLR 510
- Regina v Macdonald (1995) 84 A Crim R 508
- Various unreported CCA decisions including Regina v PAH, Regina v Gillard, Regina v Harvey, Regina v Lynch, Regina v Johnston, Regina v Greenham, Regina v Fraser, and Regina v VHP