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Court of Criminal Appeal 8 March 1999

R v Greenham

[1999] NSWCCA 8

Sexual offences
CRIMINAL LAW AGGRAVATED INDECENT ASSAULT

Citation: [1999] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 8 March 1999
Judge(s): Sheller JA, Dowd J, Hidden J

Background

The appellant was convicted in the Newcastle District Court on three counts of aggravated indecent assault against a girl aged thirteen to fourteen. The alleged conduct occurred in 1994 and 1995 at a neighbouring household the complainant regularly visited. The appellant was in a relationship with the sister of the household's occupant.

The prosecution case rested primarily on the complainant's evidence, supported in part by two school friends, Tina Nicholas and Danny Evans. Importantly, Tina Nicholas gave evidence that was significantly at variance with the complainant's account on key details, both in relation to what she witnessed during the third incident and in relation to the timing and content of the complaint the complainant made to her.

The police investigation was notably delayed. The appellant was not approached until almost two years after the matter was reported to police, and statements from key witnesses were gathered late. By the time of trial, two potentially relevant witnesses could no longer be located.

  • Whether the trial judge's directions to the jury about evidence of sexual conduct other than that charged in the indictment were adequate
  • Whether the trial judge was required to warn the jury about the dangers of acting on the complainant's evidence, given discrepancies between her account and that of Tina Nicholas
  • Whether the directions concerning the delayed complaint were adequate, including the risk of misdirection as to how complaint evidence could be used
  • Whether, if grounds of appeal succeeded, a new trial should be ordered or acquittals entered instead

Decision

The Court of Criminal Appeal, in a judgment delivered by Hidden J (with Sheller JA and Dowd J agreeing), upheld the appeal on two principal grounds.

First, the trial judge's directions concerning the uncharged sexual conduct (admitted as context for the charged offences) were found to be inadequate. The jury was not directed with sufficient care about the limited purpose for which that evidence could be used, creating a real risk of prejudice to the appellant.

Second, the Court found that a warning about the risks of relying on the complainant's evidence was required in the circumstances. The complainant's account was materially contradicted on significant points by Tina Nicholas, a prosecution witness. The Court found the trial judge's failure to give such a warning amounted to a further error.

On the complaint evidence directions, the Court noted a potential misdirection as to whether the jury could use complaint evidence as proof of the matters complained of, rather than solely on the question of the complainant's credibility. However, because a related question of statutory interpretation under the Evidence Act 1995 was then pending before the High Court in another matter, the Court declined to decide that ground.

Orders Made

  • Appeal allowed
  • On each count: conviction quashed and verdict and judgment of acquittal entered

Key Takeaways

  • Where a prosecution witness gives an account materially at variance with the complainant's evidence, a warning about the dangers of relying on the complainant's evidence may be required, and a failure to give such a warning can constitute a ground of appeal.
  • Directions to the jury about evidence of uncharged sexual conduct must clearly identify the limited purpose for which that evidence is admitted; a generalised direction is insufficient.
  • The Court of Criminal Appeal has a discretion under s 8(1) of the Criminal Appeal Act 1912 to decline to order a new trial even where a conviction is quashed, particularly where the Crown case is not strong and the investigation was dilatory or improper.
  • A prolonged and defective police investigation, including near-complete inaction for almost two years, was treated as a significant factor weighing against granting the prosecution a further opportunity to retry the charges.
  • Where a contested question of statutory interpretation under the Evidence Act 1995 is pending before the High Court in another matter, the Court of Criminal Appeal may decline to resolve that question if it is not necessary for the disposition of the appeal before it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW), including s 66(1)
- Criminal Appeal Act 1912 (NSW), s 8(1)

Cases:
- M v The Queen (1994) 181 CLR 487
- Crofts v The Queen (1996) 186 CLR 427
- R v AH (1997) 42 NSWLR 702
- R v Beattie (1996) 40 NSWLR 155
- R v Beserick (1993) 30 NSWLR 510
- Graham v The Queen (1998) 157 ALR 404
- Fleming v The Queen (1998) 158 ALR 379
- R v Fraser (CCA, unreported, 10 August 1998)
- R v Wickham (CCA, unreported, 17 December 1991)
- R v Stanton (CCA, unreported, 24 July 1998)
- R v Johnston (CCA, unreported, 31 July 1998)