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7
Court of Criminal Appeal 5 March 1999

Regina v Gillard

[1999] NSWCCA 21

Also reported as (1999) 105 A Crim R 479
Sexual offences
CRIMINAL LAW ACT OF INDECENCY TOWARDS COMPLAINANT CRIMINAL LAW SEXUAL ASSAULT LONG DELAY IN COMPLAINT ADMISSIBILITY

Citation: Regina v Gillard [1999] NSWCCA 21
Court: Court of Criminal Appeal, New South Wales
Date: 5 March 1999
Judge(s): Ireland J, Dunford J, Bruce J

Background

A husband and wife were convicted at a joint trial in the District Court, Sydney, in May 1997 on multiple counts arising from alleged sexual offending against two young sisters in the period from March 1989 to June 1990. The complainants were children at the time, aged approximately 12 to 14 years, and had come to spend time at the appellants' home in circumstances where their own family environment was difficult. The offending alleged against the husband included sexual intercourse with both complainants and acts of indecency; the wife faced counts of sexual intercourse with one complainant and acts of indecency against both.

The complaints were made some years after the alleged events. Both appellants appealed against their convictions, and the husband also sought leave to appeal against the severity of his sentence.

  • Whether the trial judge erred in the way delayed-complaint evidence was admitted or left to the jury, including issues arising under ss 66 and 108(3) of the Evidence Act 1995
  • Whether consensual sexual intercourse between husband and wife, performed in the presence of a young person with an invitation and encouragement for that person to watch, constituted an "act of indecency towards" a young person within the meaning of s 61E(2A) of the Crimes Act 1900 (now s 61N)

Decision

The Court of Criminal Appeal allowed both conviction appeals and ordered new trials, quashing the convictions and sentences. Because the conviction appeals succeeded, the husband's separate application for leave to appeal against sentence was not addressed.

On the question of delayed complaints and admissibility, the court identified error in the way the evidence was handled at trial, engaging the provisions of ss 66 and 108(3) of the Evidence Act 1995. The precise grounds are not fully reproduced in the available text, but the court found these errors sufficient to warrant the quashing of the convictions.

On the meaning of s 61E(2A), the court held that consensual sexual intercourse between a married couple is not in itself an indecent act. However, the character of the conduct changes when it is carried out in the presence of a young person, accompanied by an invitation and encouragement directed at that young person to watch, or to join in. In those circumstances, the act becomes an "act of indecency towards" the young person within the statute. The court drew support from the English decision in R v Francis (1988), where masturbation in the knowing presence of watching children was found capable of constituting gross indecency towards them.

The court distinguished the High Court decision in Saraswati v The Queen (1991) on the basis that it concerned acts of indecency "with" a person under the then s 61E(2), not acts "towards" a person under s 61E(2A), and therefore provided no guidance on the latter question.

Orders Made

  • Appeal allowed (each appellant)
  • Conviction and sentence quashed (each appellant)
  • New trial ordered (each appellant)

Key Takeaways

  • Under s 61E(2A) of the Crimes Act 1900 (now s 61N), an "act of indecency towards" a young person is not confined to inherently indecent acts: conduct that is not indecent in itself can become so when performed in the presence of a young person with an invitation or encouragement to watch or participate.
  • Consensual marital intercourse is not intrinsically an indecent act, but the surrounding circumstances, including how it is directed at or presented to a young person present, are legally relevant to whether the statutory offence is made out.
  • A conviction will not necessarily stand where the trial court mishandles the admission or treatment of delayed-complaint evidence under ss 66 and 108(3) of the Evidence Act 1995.
  • The High Court's analysis in Saraswati v The Queen of acts of indecency "with" a young person does not govern the meaning of acts of indecency "towards" a young person: the Court of Criminal Appeal treated these as distinct statutory concepts requiring separate analysis.
  • Appellate courts will not deal with sentence appeals where the underlying conviction has already been quashed on other grounds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61E(2A) (now s 61N); s 405B(2)
- Evidence Act 1995 (NSW), ss 59(1), 66(1) and (2), 102, 108(1) and (3)(b)
- Indecency With Children Act 1990 (UK)

Cases
- Graham v The Queen (1998) 72 ALJR 1491
- R v PAH (NSWCCA, 18 December 1998)
- R v Harvey (NSWCCA, 9 April 1998)
- Longman v The Queen (1989) 168 CLR 79
- Crofts v The Queen (1996) 186 CLR 427
- R v BL Johnston (NSWCCA, unreported, 31 July 1998)
- R v K (NSWCCA, unreported, 8 October 1997)
- M v The Queen (1994) 181 CLR 487
- Saraswati v The Queen (1991) 172 CLR 1
- R v Francis (1988) 88 Cr App R 127