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Court of Criminal Appeal 24 February 1999

Regina v DJT

[1999] NSWCCA 22

Sexual offences

Citation: Regina v DJT [1999] NSWCCA 22
Court: Court of Criminal Appeal, New South Wales
Date: 24 February 1999
Judge(s): Spigelman CJ, Wood CJ at CL, McInerney J

Background

The appellant was tried in the District Court before Howie DCJ on five counts arising from alleged sexual offending against a child complainant. The complainant was born in February 1970 and was the daughter of the appellant's domestic partner. The alleged conduct spanned several years during the late 1970s and early 1980s, beginning when the complainant was approximately five years old.

The jury convicted the appellant on counts 1, 2, and 5 (three counts of indecent assault) and acquitted him on counts 3 and 4 (use of an offensive weapon and carnal knowledge). The appellant appealed the convictions, raising two principal grounds: one concerning the limitation period applicable to count 5, and the other concerning the admission of a prior consistent statement and the alleged inconsistency of the jury's verdicts on counts 1 and 2 compared with the acquittals on counts 3 and 4.

  • Whether the conviction on count 5 was sustainable given the limitation period under the then-applicable s 78 of the Crimes Act, which required prosecution for certain offences involving girls aged between fourteen and sixteen to commence within twelve months of the offence.
  • Whether evidence of a prior consistent statement made by the complainant to her husband in 1988 was properly admitted under s 108(3)(b) of the Evidence Act, or should have been excluded under s 137 of that Act.
  • Whether the jury's verdicts were inconsistent, in that convictions on counts 1 and 2 could not rationally coexist with acquittals on counts 3 and 4.

Decision

Count 5 and the limitation period: The Court quashed the conviction on count 5. Section 78 of the Crimes Act, in force at the time of the alleged offence in 1984 and repealed only in 1992, required that prosecutions for relevant indecent assault offences involving girls aged fourteen to sixteen commence within twelve months of the offence. The Director of Public Prosecutions maintained a policy of honouring that limitation period even after the section's repeal. The issue was not identified by the parties or the trial judge until after the verdict, and the Crown conceded the conviction could not stand.

Prior consistent statement: The defence confirmed at the outset of the trial that its case was one of fabrication, which opened the door under s 108(3)(b) of the Evidence Act to the Crown leading the complainant's 1988 statement to her husband as a prior consistent statement. The Court found no error in admitting this evidence in those circumstances, nor any basis for exclusion under s 137.

Inconsistent verdicts: The Court addressed whether the acquittals on counts 3 (offensive weapon) and 4 (carnal knowledge) were irreconcilable with the convictions on counts 1 and 2. The trial judge had directed the jury to consider each count separately, and the Court accepted there were rational explanations for the different outcomes. On count 4 in particular, the jury may have harboured doubt specifically about penetration, which was an element of carnal knowledge. On count 3, the acquittal on the firearm charge was also explicable on the evidence. The Court concluded no inconsistency of the kind that would require intervention was established.

Orders Made

  • The conviction with respect to count 5 is quashed.
  • Otherwise, the appeal is dismissed.

Key Takeaways

  • A statutory limitation period that was repealed after the offence was committed may still govern the validity of a prosecution commenced after its repeal, at least where prosecutorial policy recognises the accused's entitlement to rely on it.
  • Under s 108(3)(b) of the Evidence Act, where the defence confirms at trial that its case is one of fabrication or concoction, the Crown is entitled to lead prior consistent statements in chief.
  • Apparent inconsistency between jury verdicts does not automatically warrant appellate intervention. An appellant must demonstrate there is no rational way to reconcile the verdicts, and where evidence supports different conclusions on individual counts, divergent outcomes may be explicable.
  • In dismissing most of the appeal, the Court of Criminal Appeal confirmed that it will not substitute its own assessment of the facts for one that was open to the jury, provided there is some rational basis to support the verdicts.
  • The absence of corroboration, taken alone, does not require exclusion of evidence under s 137 of the Evidence Act.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 61E(1) (indecent assault)
- Crimes Act (NSW), s 78 (limitation period, since repealed)
- Evidence Act (NSW), s 108(3)(b) (prior consistent statements)
- Evidence Act (NSW), s 137 (exclusion of prejudicial evidence)

Cases:
- R v BD (1997) 94 ACR 131
- Rodway v The Queen (1990) 169 CLR 515
- R v Hunt [1968] 2 QB 433
- McKenzie v The Queen (1996) 71 ALJR 91
- R v Crisologo (unreported, NSW CCA, 12 December 1997)