Citation: Regina v Tillman [1999] NSWCCA 164
Court: Court of Criminal Appeal, New South Wales
Date: 30 June 1999
Judge(s): Wood CJ at CL, Hidden J, Smart AJ
Background
The appellant was convicted in the District Court on two counts of sexual intercourse with a child and one count of attempted sexual intercourse with the same child. The offences were alleged to have occurred in July 1996 in Goonellabah while the complainant's mother, the appellant's partner, was hospitalised. The complainant was nine years old at the time.
The complainant first disclosed the conduct to a friend living with the family, then to her mother, who contacted police. The appellant denied all allegations in his police interview and at trial. A number of inconsistencies emerged during cross-examination of the complainant, though her accounts of the core conduct across counts one and two remained substantially consistent.
On the third count, the jury acquitted the appellant of the substantive offence of sexual intercourse but convicted him of the lesser alternative of attempted sexual intercourse. This outcome followed paediatric evidence about the extent of penetration. The appellant appealed all three convictions and sought leave to appeal against sentence.
Legal Issues
- Whether medical evidence was disclosed and used appropriately at trial
- Whether the trial judge was correct to leave the alternative count of attempted sexual intercourse to the jury without it appearing as a separate count on the indictment
- Whether the trial judge's warnings to the jury were adequate, correctly timed, and required repetition in the summing-up
- Whether the verdicts were unsafe or involved a miscarriage of justice
Decision
On the medical evidence ground, the Court held that a medical practitioner is entitled to explain statements and conclusions contained in a statement served prior to trial. The paediatric evidence ultimately assisted the appellant on the substantive charge of sexual intercourse in count three, contributing to his acquittal on that count, while remaining supportive of the conviction for attempt.
On the alternative verdict ground, the Court confirmed that a separate court need not be included in the indictment in order to ground an alternative statutory verdict of attempt. The trial judge had correctly explained the alternative verdict to the jury, and the jury's approach to that count disclosed no error.
The Court addressed the jury directions ground by finding that the warnings given by the trial judge were extensive. They were delivered at the appropriate stage of the trial and did not need to be repeated in the summing-up. Hidden J noted some reservation about the trial judge directing the jury to "scrutinise carefully" the appellant's evidence, observing that such language risks conveying that the accused is a suspect witness. However, his Honour concluded that the directions taken as a whole left the jury in no doubt about the proper approach to their deliberations.
Having reviewed the evidence, Smart AJ concluded it was well open to the jury to reach guilty verdicts on all three counts. The complainant's core allegations remained substantially consistent across her police statements and trial evidence. The verdicts were neither unsafe nor unsatisfactory, and no miscarriage of justice occurred.
Orders Made
- Appeals against conviction dismissed
- Leave to appeal against sentence refused
Key Takeaways
- A medical practitioner may explain statements and conclusions from a pre-trial statement when giving evidence at trial, even where that evidence affects the outcome on individual counts.
- An alternative statutory verdict of attempt does not require the alternative count to be separately included in the indictment before a jury can return that verdict.
- Jury warnings need not be repeated in the summing-up where they have already been given at the correct and appropriate stage of the trial.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that inconsistencies and discrepancies in a complainant's evidence do not automatically render a conviction unsafe, particularly where the core allegations remain substantially consistent.
- The use of "scrutinise carefully" language in relation to an accused's evidence was flagged as undesirable, as it may suggest the accused is inherently a suspect witness, though no miscarriage arose on the facts given the overall direction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Robinson v The Queen (1991) 180 CLR 531