AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 15 August 2000

REGINA v BYRNES

[2000] NSWCCA 304

Sexual offences
SEXUAL ASSAULT VERDICTS REASONABLE LONGMAN WARNING ND.

Citation: [2000] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 15 August 2000
Judge(s): Mason P; James J; Sperling J

Background

The appellant was convicted in the District Court on seven charges of sexual abuse of his stepdaughter, committed between 1985 and 1993 when the complainant was between approximately five and thirteen years of age. The trial was conducted before Judge Job DCJ, sitting without a jury. The offences included digital penetration, oral sex, and anal intercourse, and were alleged to have occurred repeatedly over several years at various residences.

The complainant had denied any abuse in a 1994 interview with the Department of Community Services, saying she lied out of fear after the appellant had threatened her. She did not go to police until 1998. The appellant participated in an electronically recorded interview with police (an ERISP) in which some of his responses were assessed by the trial judge as something less than clear denials.

The appellant appealed against conviction on grounds including that the reliability warning given to the jury was inadequate, that the verdicts were unreasonable, and that the trial judge erred in characterising certain ERISP answers as "not really denials."

  • Whether the trial judge gave an adequate warning, consistent with the principle in Longman and the direction required under s 405B of the Crimes Act, as to the danger of convicting on the uncorroborated evidence of the complainant given the lengthy delay in complaint
  • Whether the verdicts were unreasonable or unsupported by the evidence
  • Whether the trial judge erred in concluding that the appellant's answers in the ERISP were "not really denials" of at least some of the alleged sexual conduct

Decision

The Court of Criminal Appeal dismissed the appeal on all three grounds, with James J and Sperling J agreeing with the reasons of Mason P.

On the adequacy of the reliability warning, the Court found that the trial judge had given a sufficient direction under s 405B of the Crimes Act and consistent with Longman. The trial judge was not required to catalogue every inconsistency or error in the complainant's evidence. It was enough that the warning adequately conveyed the danger of convicting on the complainant's evidence in light of the passage of time.

On the reasonableness of the verdicts, the Court found no basis to disturb them. The complainant's evidence was detailed and, on the whole, accepted as reliable by the trial judge. The Court noted that some inconsistencies in a complainant's account across many years do not render verdicts unreasonable.

On the ERISP, the Court held that the trial judge's characterisation of certain answers as "not really denials" was well open on the evidence. The video recording showed the appellant to be extremely unemphatic when responding to many allegations, contrasting sharply with his emphatic denial of the anal intercourse allegation. A further answer near the end of the interview, in which the appellant spoke slowly and said words to the effect that if he had done these things he would have to face up to it, supported the conclusion that he was not squarely denying all sexual touching. The Court found this provided corroboration for the complainant and undermined the credibility of the appellant's firm denials at trial.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A trial judge giving a Longman warning or a direction under s 405B of the Crimes Act is not required to identify each and every inconsistency or unreliability in a complainant's evidence, provided the warning adequately conveys the danger of convicting in light of the delay in complaint.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that verdicts are not rendered unreasonable merely because a complainant's evidence contains inconsistencies across a period of many years.
  • Where a recorded police interview contains answers that are equivocal or notably unemphatic, rather than clear denials, a trial judge is entitled to treat those answers as something less than denials, even where formal denials can also be located elsewhere in the same interview.
  • Sufficient evidence existed in the ERISP, particularly answers that could be read as partial acknowledgements, to support the trial judge's finding that corroboration for the complainant's account could be drawn from the appellant's own recorded responses.
  • The contrast in an accused's demeanour between emphatic denial of one allegation and an unemphatic or equivocal response to others is a matter a fact-finder may legitimately take into account when assessing the overall weight of a recorded interview.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61D(1) (sexual intercourse without consent with person under 16)
- Crimes Act 1900 (NSW), s 61D(1A) (aggravated form, under authority)
- Crimes Act 1900 (NSW), s 61J(2) (aggravated sexual assault)
- Crimes Act 1900 (NSW), s 405B (judicial direction as to reliability of complainant's evidence)

Cases:
- Longman v The Queen (principle requiring a warning to the jury about the danger of convicting on complainant evidence affected by delay, referenced throughout the judgment by name)