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Court of Criminal Appeal 12 April 2000

R. v. AJL

[2000] NSWCCA 104

Sexual offences
CRIMINAL LAW AND PROCEDURE APPEAL VERDICT CRIMINAL LAW AND PROCEDURE SEXUAL OFFENCES EVIDENCE

Citation: R v AJL [2000] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 12 April 2000
Judges: Powell JA, Hulme J, Dowd J

Background

The appellant, an ordained minister and long-serving teacher at a private school in western Sydney, was convicted in the District Court of three counts of indecent assault on a 16-year-old male student. The alleged offences occurred on 6 December 1995 at a school awards dinner, when the appellant was said to have taken the complainant to the school chapel and later to the Year 12 block, where he kissed the complainant and engaged in sexual touching without consent.

The appellant pleaded not guilty and was tried before Backhouse DCJ and a jury. On 24 August 1998, the jury returned guilty verdicts on all three counts. The trial judge sentenced the appellant to 400 hours of community service on each charge, to be served concurrently.

On appeal, the appellant challenged both the reasonableness of the verdicts and the admissibility of complaint evidence that had been admitted at trial and placed before the jury as evidence of the truth of its contents.

  • Whether the verdicts were unreasonable or could not be supported by the evidence
  • Whether a complaint made approximately six years after the alleged offences was admissible as a "recent complaint" under the relevant provisions of the Evidence Act 1995 (NSW)
  • Whether the complaint evidence was properly admitted under s 66 of the Evidence Act 1995, which permits use of prior representations as evidence of the facts asserted, or under s 108(3)(b), which concerns rehabilitation of a witness's credibility
  • Whether the trial judge's direction to the jury, treating the complaint as evidence of the truth of its contents, gave rise to a miscarriage of justice

Decision

The Court of Criminal Appeal, with all three judges in agreement, allowed the appeal on the ground relating to the admission and use of complaint evidence at trial.

The central difficulty was the significant delay between the alleged offences (December 1995) and the making of the complaint (1994 is referenced in the judgment, though the chronology appears to relate to a separate complainant context). The court examined whether the complaint could properly be regarded as "fresh in the memory" of the complainant, a requirement for admission under s 66 of the Evidence Act 1995. A complaint made after such a long delay does not satisfy that threshold, and the evidence was therefore not admissible under s 66.

The court also considered whether the complaint evidence was admissible under s 108(3)(b) to rehabilitate the complainant's credibility after it had been challenged. Powell JA noted, however, that the admission of complaint evidence for that purpose is not automatic, and a court may decline to admit it where doing so would cause unfair prejudice to the accused. The court observed that, in the circumstances of this case, it was not clear that the six-year-old complaint meaningfully assisted the jury in assessing fabrication, and that its probative value for credibility rehabilitation purposes was doubtful.

The critical problem was the direction Backhouse DCJ gave to the jury: her Honour instructed the jury that the complaint evidence was evidence of the truth of what the complainant told the witness. Because the complaint had not been properly admitted under s 66, and its admission under s 108(3)(b) was not justified, that direction was wrong in law. Powell JA concluded the appellant had lost a significant chance of acquittal as a result, and the convictions could not stand.

Orders Made

  • The appeal was allowed
  • The convictions and sentences were quashed
  • A new trial was ordered

Key Takeaways

  • Section 66 of the Evidence Act 1995 requires that a prior representation be made when the events were "fresh in the memory" of the maker; a complaint made approximately six years after the alleged offences does not satisfy this requirement and is not admissible under that provision to prove the truth of its contents.
  • Complaint evidence admitted for the purpose of rehabilitating a witness's credibility under s 108(3)(b) is not admitted as of right; a court retains a discretion to exclude it where admission would cause unfair prejudice to the accused.
  • A misdirection instructing the jury to treat complaint evidence as proof of the facts asserted, where that evidence was not properly admitted as truth-evidence under s 66, is a material error capable of resulting in a substantial miscarriage of justice.
  • The Court of Criminal Appeal confirmed that a new trial is the appropriate remedy where convictions have been tainted by the wrongful admission of complaint evidence combined with an erroneous jury direction as to its use.
  • Where fabrication is only a minor feature of the defence at trial and no clear evidence identifies when alleged fabrication occurred, a long-delayed complaint may add little probative weight to credibility rehabilitation, further undermining the basis for its admission.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1), (3)(c)
- Evidence Act 1995 (NSW), ss 60, 66, 108(3)(b)

Cases:
- Graham v The Queen (cited in the judgment for the proposition, left open by Gaudron, Gummow and Hayne JJ, regarding the joint operation of ss 60 and 66 of the Evidence Act 1995)