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Court of Criminal Appeal 24 August 1999

Regina v D W H

[1999] NSWCCA 255

Sexual offences
SEXUAL OFFENCE COMPLAINT PRIOR CONSISTENT STATEMENT WHEN ADMISSIBLE ON CREDIBILITY WHEN LEAVE NECESSARY LEAVE NOT CONSIDERED

Citation: Regina v D W H [1999] NSWCCA 255
Court: Court of Criminal Appeal, New South Wales
Date: 24 August 1999
Judge(s): Newman J, Sperling J, Greg James J (Greg James J delivered the principal judgment; Newman and Sperling JJ agreed)

Background

The appellant was the natural father of the complainant, who was 12 years old at the time of the alleged offences. Following the appellant's separation from the complainant's mother in 1995, the complainant and her siblings would visit the appellant at a flat he shared with his de facto partner. Five charges arose from incidents alleged to have occurred during those visits between January and October 1996, including three counts of sexual intercourse without consent, one count of common assault, and one count of indecent assault.

The appellant was convicted of all five counts in the District Court at Newcastle before Judge Nader DCJ and sentenced to a total effective term of penal servitude culminating in a minimum term expiring in January 2005 with an additional term extending to July 2008.

At trial, the Crown relied heavily on complaint evidence given by the complainant, her grandmother, and her aunt. The complaint was made on 30 October 1996, the same date as the events alleged in count five. However, the events underlying the other counts had occurred weeks or months earlier, meaning the temporal proximity between those events and the complaint varied significantly from charge to charge.

  • Whether complaint evidence was admissible as an exception to the hearsay rule, or only on the question of credibility, or both
  • Whether, where complaint evidence is tendered solely on credibility, leave is required under the Evidence Act 1995 before it may be used, and what criteria govern the grant of that leave
  • Whether the "freshness" of a complaint must be assessed separately for each individual count where the charges relate to separate events occurring at different times
  • Whether, if procedural error was established, the proviso under section 6(1) of the Criminal Appeal Act 1912 (that there was no substantial miscarriage of justice) could be applied to preserve the convictions

Decision

Greg James J, with whom Newman J and Sperling J agreed, upheld the appeal primarily on the basis that the trial miscarried because the question of whether leave was required before the complaint evidence could be used on credibility was never properly considered.

The court confirmed the approach taken in its earlier decisions in Whitmore and Gillard: where complaint evidence is tendered solely or partly to bolster credibility under the Evidence Act 1995, the credibility provisions of the Act are engaged, and the court must consider whether leave is required and, if so, whether to grant it. The Crown's argument, that the potential admissibility of complaint evidence on any basis other than credibility renders the credibility provisions entirely inapplicable, was rejected as inconsistent with the policy of the Act.

A further difficulty arose from the fact that the counts related to separate events spread across a period of many months. The complaint was made on 30 October 1996, which was effectively contemporaneous with the events in count five, but was remote in time from the events underlying the earlier counts. The court held that the freshness of a complaint, and its admissibility in relation to each particular count, had to be assessed individually for each charge. The evidence of complaint could not simply be applied uniformly across all counts without that charge-by-charge analysis.

On the question of the proviso, the court declined to apply it. Credibility was central to the entire case, the complaint evidence was highly significant, and it was not possible to conclude that guilty verdicts on all counts were inevitable even accounting for other corroborating evidence such as the brother's observations and the medical evidence. Accordingly, a new trial was ordered.

Orders Made

  • Appeal upheld
  • New trial ordered

Key Takeaways

  • Where complaint evidence in a sexual offence trial is used solely or partly on credibility, the credibility provisions of the Evidence Act 1995 apply, and the question of whether leave is required must be addressed before the evidence is used for that purpose.
  • A Crown argument that the potential admissibility of complaint evidence on any basis beyond credibility displaces the need to consider leave was rejected by the Court of Criminal Appeal as contrary to the Act's policy framework.
  • Where an indictment contains multiple counts relating to separate incidents occurring at different times, the freshness of a complaint must be assessed individually for each count rather than applied globally across all charges.
  • Declining to apply the proviso, the court found that because the case turned substantially on the complainant's credibility and the complaint evidence was central to that question, the possibility of inevitable conviction on all counts could not be sustained.
  • In cases turning on complainant credibility, errors in admitting or directing on complaint evidence will not be readily cured by the proviso where that evidence permeates the jury's assessment of all counts.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), including sections 102, 108, 136, and 137
- Criminal Appeal Act 1912 (NSW), section 6(1)

Cases:
- Graham (1998) 157 ALR 404
- Gillard [1999] NSWCCA 21
- Whitmore [1999] NSWCCA 247
- RNS [1999] NSWCCA 122
- Papakosmos [1999] HCA 37