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Court of Criminal Appeal 14 June 2000

Regina v Leslie Harold Lawson

[2000] NSWCCA 214

Sexual offences
APPEAL AGAINST CONVICTION COMPLAINT EVIDENCE SEXUAL ASSAULT HISTORY TAKEN BY DOCTOR EVIDENCE AS TO TRUTH OF HISTORY DISCUSSION OF R V WELSH RESTRICTION OF CROSS

Citation: Regina v Leslie Harold Lawson [2000] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 14 June 2000
Judges: Stein JA, Dunford J, Sperling J

Background

The appellant was convicted in the District Court of a sexual offence against a complainant, tried before Williams DCJ. The prosecution case relied significantly on complaint evidence given by two witnesses: a person to whom the complainant had first disclosed the alleged abuse, and a doctor who had taken a sexual assault history from the complainant and examined her.

The doctor's examination revealed a scar that she attributed to sexual abuse, which she estimated had occurred within approximately six months of her examination in June 1997. The alleged offence was said to have occurred in April 1997. The appellant did not concede that any sexual intercourse had taken place, and defence counsel at trial sought to raise the possibility that any injury had been caused by a different person.

The appellant challenged his conviction on multiple grounds, including the admission and use of complaint evidence, restrictions on cross-examination, and the overall competence of trial counsel.

  • Whether the trial judge erred in failing to direct the jury on the use of complaint evidence given to the first disclosure witness, or in failing to limit that evidence to credibility only under s 136 of the Evidence Act 1995
  • Whether the trial judge erred in directing the jury that the history given to the doctor could be used as evidence of the truth of the matters stated, rather than merely as a basis for the doctor's opinion
  • Whether the decision in R v Welsh (that s 60 of the Evidence Act 1995 renders prior out-of-court statements evidence of their truth once admitted for another purpose) was correctly decided
  • Whether the trial judge erred in restricting cross-examination under s 409B(3)(c) of the Crimes Act 1900
  • Whether defence counsel's conduct at trial was so incompetent as to have caused a miscarriage of justice

Decision

Complaint evidence and jury directions (Grounds 1 to 3): The Court dismissed these grounds. The complainant's evidence was found to have conveyed, in substance, that what she told the first disclosure witness reflected what the appellant had actually done to her. No error in the admission or the directions relating to that evidence was established.

The doctor's complaint evidence and R v Welsh (Grounds 4 and 5): Section 60 of the Evidence Act 1995 operates to make an out-of-court statement evidence of its truth once it has been admitted for another purpose. Applying Welsh, the trial judge's direction that the jury could use the doctor's evidence of the sexual assault history as proof of the facts stated was not in error. The appellant belatedly submitted that Welsh was wrongly decided, but the Court declined to depart from it without the benefit of full argument. The Court also found no unfair prejudice requiring the evidence to be limited under s 136, and in any event applied the proviso in s 6(1) of the Criminal Appeal Act 1912, noting the appellant was not denied a fair trial.

Restriction of cross-examination (Ground 6): The trial judge permitted limited cross-examination under s 409B(3)(c), which allowed evidence relevant to whether an observed injury was attributable to the sexual intercourse alleged. The Court found the limitation to the six months before the alleged offence was consistent with the doctor's own evidence on timing, and no error was established in the rulings.

Incompetence of counsel: Sperling J identified a lengthy catalogue of specific failures by trial counsel, including failures in the cross-examination of the doctor and complainant, failure to object to the jury direction on the doctor's evidence, and failure to seek certain directions. However, having initially drafted a conclusion upholding this ground, Sperling J was ultimately persuaded by Stein JA's reasoning and agreed that no miscarriage of justice had resulted. The ground therefore failed.

Orders Made

The decision contains an apparent internal inconsistency. Sperling J's conclusion at paragraph 117 proposes that Ground 4 be upheld, with orders allowing the appeal, quashing the conviction and ordering a new trial. However, the decision metadata records the overall outcome as "Appeal against conviction dismissed." Readers should refer to the full judgment to confirm the operative orders.

Key Takeaways

  • Under s 60 of the Evidence Act 1995, an out-of-court statement admitted for a non-truth purpose (such as founding a medical opinion) becomes evidence of its truth, and a jury may be directed accordingly. The Court of Criminal Appeal applied this principle from R v Welsh without finally determining whether that decision was correct, given the absence of full argument on the point.
  • A challenge to the correctness of an established line of authority raised belatedly at hearing, without detailed submissions from either party, will not be resolved by the Court of Criminal Appeal. Full argument is required before such a departure will be considered.
  • Where a doctor's evidence limits the likely timeframe of an injury to approximately six months before the alleged offence, restricting cross-examination about prior sexual experience to that same period under s 409B(3)(c) of the Crimes Act 1900 is consistent with the statutory exception.
  • Incompetent conduct by defence counsel does not automatically result in a finding of miscarriage of justice. The conduct must be shown to have actually deprived the accused of a fair trial or a real chance of acquittal.
  • Section 136 of the Evidence Act 1995 permits a court to limit the use of evidence that would otherwise be unfairly prejudicial, but such a limitation is not mandatory simply because complaint evidence was not spontaneous or was gathered in a clinical or investigative context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 409B(3)(c)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 105
- Evidence Act 1995 (NSW), ss 60, 66, 135, 136, 137

Cases:
- R v Welsh (1996) 90 A Crim R 364
- Lee v The Queen (1998) 195 CLR 594
- Graham v The Queen (1998) 195 CLR 606
- Papakosmas v The Queen (1999) 196 CLR 297
- Eastman v The Queen (1997) 76 FCR 9
- Quick v Stoland Pty Ltd (1998) 157 ALR 615
- R v BD (1997) 94 A Crim R 131
- R v H (1997) 92 A Crim R 168
- R v Singh-Bal (1997) 92 A Crim R 397
- R v Hilder (1997) 97 A Crim R 70
- R v Birks (1990) 19 NSWLR 677
- R v Sandford (1994) 33 NSWLR 172
- R v Ignjatic (1993) 68 A Crim R 333
- R v Scott (1996) 137 ALR 347
- R v Hunter and Sara [1999] NSWCCA 5
- Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1190