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Court of Criminal Appeal 12 March 1999

Regina -v- Lynch

[1999] NSWCCA 32

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT

Citation: [1999] NSWCCA 32
Court: New South Wales Court of Criminal Appeal
Date: 12 March 1999
Judge(s): McInerney J, Ireland J, Hidden J

Background

The appellant was tried in the District Court before Naughton DCJ and a jury on four counts of sexual intercourse without consent in circumstances of aggravation, contrary to s 61J of the Crimes Act 1900 (NSW). The complainant was a 12-year-old girl who lived behind the appellant's parents' home. The Crown alleged that, in the weeks following her mother's death in July 1995, the appellant committed three sexual assaults against her: twice in his caravan and once in the grounds of a nearby school.

The appellant was convicted on three counts. He was acquitted by direction on the fourth count, which concerned an alleged act involving anal penetration, after the complainant gave inconsistent evidence about whether it had occurred.

The appellant appealed, arguing that the trial miscarried due to inadequate jury directions on complaint evidence and corroboration, impermissible questioning of a medical witness by the trial judge, and errors in the way corroborating evidence was presented to the jury.

  • Whether the trial judge's directions on delayed complaint were adequate to assist the jury in assessing the complainant's credibility
  • Whether the trial judge's directions on corroboration adequately distinguished which evidence was capable of corroborating which counts
  • Whether the trial judge's questioning of the medical witness (Dr Brennan) about the characteristics of child sexual assault victims generally was permissible
  • Whether the cumulative effect of these matters caused the trial to miscarry, even though no objections were raised at trial

Decision

The Court identified several distinct errors that, taken together, rendered the trial unfair and necessitated a new trial.

On the complaint and corroboration directions, the trial judge did not adequately direct the jury on the significance of the complainant's delayed disclosure. The directions failed to properly assist the jury in understanding how to use complaint evidence and did not sufficiently address how delayed reporting might affect credibility without necessarily undermining it.

A further error concerned the way corroborating evidence was presented to the jury. Some evidence was capable of corroborating only the third count (the school grounds incident), yet the directions failed to make clear that such evidence was not generally available as corroboration for all counts. The Court noted that, given the acquittal on count four by direction, the jury may also have been unfairly influenced in its assessment of the remaining counts.

The Court found that the trial judge's questioning of Dr Brennan about the general characteristics and behaviours of child sexual assault victims was impermissible. While observations about children's difficulty in giving consistent and accurate accounts following trauma may reflect common experience, they were not matters properly introduced through Dr Brennan's expert evidence. The trial judge's remarks in the summing-up compounded this error by directing the jury to compare that evidence to the complainant's credibility generally. The Court acknowledged that trial counsel's failure to object at the time was understandable given the source of the questions, but confirmed that the absence of objection did not preclude the appeal ground. The cumulative weight of these errors led the Court to allow the appeal.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that directions on delayed complaint must go beyond acknowledging the delay; they must meaningfully assist the jury in understanding how delayed disclosure is relevant to the complainant's credibility.
  • Where different pieces of evidence are capable of corroborating different counts only, the directions to the jury must clearly identify which evidence is available in relation to which count; a generalised corroboration direction is insufficient.
  • A trial judge's questioning of an expert witness to elicit general propositions about the behaviour of child sexual assault victims constitutes impermissible use of that witness, particularly where those observations are then used in the summing-up to bolster a complainant's credibility.
  • Failure by trial counsel to object to errors does not automatically bar an appeal ground, particularly in sensitive cases involving child complainants where a high risk of miscarriage of justice exists.
  • The cumulative effect of multiple discrete errors, none of which may individually be fatal, can together be sufficient to quash convictions and order a new trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J (sexual intercourse without consent in circumstances of aggravation)

Cases
- Fleming v The Queen (1998) 158 ALR
- M v The Queen (1994) 181 CLR 487
- Graham v The Queen 72 ALJR 1491
- R v R (1989) 18 NSWLR 74
- F (1995) 83 A Crim R 502
- R v Johnston (CCA, unreported, 1 July 1998)
- Doney v The Queen (1990) 171 CLR 207