Citation: R v Dwyer [1999] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 25 March 1999
Judge(s): Meagher JA, Grove J, Dunford J
Background
The appellant was convicted in the District Court on seven counts of sexual and indecent assault involving a complainant who had been a child in his household from the early 1980s. The alleged offences occurred across four separate incidents between approximately 1981 and 1985, when the complainant was between six and ten years old. The appellant had been in a relationship with the complainant's mother and lived with the family during the relevant period.
The complainant did not disclose the abuse until 1990, when she was a teenager, having seen a school video about sexual abuse. She then disclosed progressively to her sister, a boyfriend, her mother, and another sister over the following years, before making a formal police complaint in 1996. The appellant denied any wrongdoing in both a recorded police interview and his sworn trial evidence.
The trial proceeded before Judge Phegan and a jury in the District Court at Sydney, resulting in conviction on all counts. The appellant appealed on multiple grounds concerning the summing-up, the admission of certain evidence, and the conduct of the trial more broadly.
Legal Issues
- Whether the trial judge's summing-up erroneously framed the jury's task as a simple "choice" between two competing versions, rather than directing the jury to be satisfied beyond reasonable doubt of the complainant's account
- Whether the trial judge gave adequate directions on the significance and limitations of delayed (non-recent) complaint evidence
- Whether evidence of the complainant's medical consultation and counselling was properly admitted and explained to the jury
- Whether the Crown's case in reply was properly permitted
- Whether the convictions were unreasonable or could not be supported by the evidence, such that verdicts of acquittal rather than a retrial were appropriate
Decision
On the summing-up grounds, Dunford J (with whom Meagher JA and Grove J agreed) found that the trial judge's isolated use of "choose" and "choice" between competing versions was not, in isolation, necessarily fatal. However, when read together with the overall direction, the summing-up failed to make sufficiently clear that the jury must be satisfied beyond reasonable doubt of the complainant's account. A mere invitation to choose between versions risks misleading the jury on the burden of proof, consistent with principles confirmed in Liberato and Others v The Queen.
On the delayed complaint evidence, the Court found that the trial judge's directions were inadequate. The evidence of complaint to the complainant's sister, boyfriend, mother and another sister was admitted and used narratively, but the jury was not sufficiently directed under s 165 of the Evidence Act 1995 about the considerations relevant to assessing delayed complaint evidence, including the reasons why victims of childhood sexual abuse may not complain promptly.
The Court also expressed concern about the admission of the medical evidence from Dr Rapson and evidence of the complainant's counselling. Neither was objected to at trial, but both were treated by the Court as potentially prejudicial without adequate direction. The accumulation of these matters, even absent individual objection, gave the Court an "uneasy feeling" about the trial as a whole. Regarding the Crown case in reply, the Court found it difficult to see how it should have been permitted, noting that defence counsel's agreement to it appeared to have been based on a misconception about what had already been raised in the Crown case.
On the question of verdicts of acquittal versus a retrial, the Court declined to enter acquittals. Dunford J was satisfied that a properly instructed jury, acting reasonably and with the benefit of seeing the witnesses, could have been satisfied beyond reasonable doubt of the appellant's guilt if they accepted the complainant's evidence. Accordingly, a new trial was ordered.
Orders Made
- Appeal upheld
- Convictions and sentences quashed
- New trial ordered
Key Takeaways
- A summing-up that frames the jury's task as a "choice" between two competing versions risks misrepresenting the burden of proof. Directions must make clear that the jury must be satisfied beyond reasonable doubt of the Crown's case, not merely prefer one account over another.
- Adequate jury directions on delayed complaint evidence are required, particularly in cases of childhood sexual assault where disclosure occurred years after the alleged events.
- Under s 165 of the Evidence Act 1995, the trial judge carried an obligation to warn the jury about the potential limitations of the complaint evidence, given the non-recent nature of the disclosures.
- The Court of Criminal Appeal will not enter verdicts of acquittal where a properly instructed jury, acting reasonably, could still have convicted on the available evidence. In such cases, a new trial is the appropriate remedy.
- An accumulation of evidentiary and directional irregularities, even where individually not objected to at trial, can collectively undermine the safety of a conviction and support an order for retrial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61E
- Evidence Act 1995 (NSW), ss 59, 66, 108(3), 165
Cases:
- Liberato and Others v The Queen (1985) 159 CLR 507
- M v The Queen (1994) 181 CLR 487
- Graham v The Queen (1998) 157 ALR 404
- Fleming v The Queen (1998) 158 ALR 379
- Killick v The Queen (1981) 147 CLR 565
- The Queen v Chin (1985) 157 CLR 671
- R v Birks (1990) 19 NSWLR 510
- R v Murray (1987) 11 NSWLR 12
- R v Beserick (1993) 30 NSWLR 510
- R v E (1995) 89 A Crim R 325
- The Queen v Calides (1983) 34 SASR 355
- R v Gillard [1999] NSWCCA 21
- R v Williams [1999] NSWCCA 9
- R v PAH (CCA, unreported, 18 December 1998)
- R v Maxwell (CCA, unreported, 23 December 1998)