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7
Court of Criminal Appeal 15 September 2000

R v DH

[2000] NSWCCA 360

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT FAILURE OF JUDGE TO SUM UP ON FACTS DUPLICITY RELATIONSHIP EVIDENCE

Citation: DH v R [2000] NSWCCA 360
Court: NSW Court of Criminal Appeal
Date: 15 September 2000
Judge(s): Stein JA; Smart AJ; Ireland AJ

Background

The appellant, DH, was convicted in the District Court at Dubbo on two counts of homosexual intercourse with a male person aged 15 years, contrary to s 78N of the Crimes Act 1900. The complainant was the appellant's son, referred to as DHJ. The offences were alleged to have occurred at caravan parks and rural properties in the Parkes and Forbes areas in late 1994 and early 1995.

The Crown case rested primarily on the complainant's account of repeated sexual abuse by his father from a young age, with the two counts on which he was convicted relating to specific incidents in November 1994 and May 1995. Medical evidence from a doctor who examined the complainant in June 1995 was also adduced, with findings described as consistent with the complainant's account of anal intercourse.

The appellant denied all allegations and gave evidence at trial. The jury returned directed acquittals on two counts and guilty verdicts on the remaining two. The appellant was sentenced to eight years penal servitude with a minimum term of six years.

The appeal raised the following grounds:

  • Whether the trial judge failed to adequately sum up the facts to the jury
  • Whether the counts in the indictment were duplicitous (that is, each count alleged more than one distinct offence)
  • Whether the trial judge erred in admitting and directing on evidence of uncharged sexual assaults as "relationship evidence"
  • Whether the directions on delay in complaint were adequate
  • Whether the complaint direction was adequate
  • Whether the corroboration warning was adequate
  • Whether the verdicts were unreasonable and not supported by the evidence

Decision

The Court rejected the ground that the trial judge had failed to sum up adequately on the facts. Although directions could have been fuller in certain respects, the Court found no error that warranted overturning the verdicts. The unusual circumstances of the trial, including the complainant's evident reluctance and poor communication, were acknowledged.

On duplicity, the Court examined whether the first count, covering a date range rather than a single occasion, was impermissibly duplicitous. The Court found the count was not duplicitous in the relevant sense, accepting that the evidence identified a single specific incident as the basis for that count.

The Court addressed the use of relationship evidence, being the complainant's evidence of uncharged sexual conduct between the parties going back to early childhood. The trial judge had directed the jury on how this evidence could be used. The Court found the admission and direction on this evidence did not constitute error.

On the remaining grounds concerning delay in complaint, the adequacy of complaint directions, the corroboration warning, and the contention that the verdicts were unreasonable, the Court found no substantial miscarriage of justice. The directed acquittals on counts two and three did not indicate the jury disbelieved the complainant generally. The medical evidence provided support for the complainant's account, and the jury had observed both the complainant and the appellant giving evidence and being cross-examined at length.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that directed acquittals on some counts do not, of themselves, indicate that a jury disbelieved a complainant across all remaining counts.
  • Relationship evidence, covering uncharged sexual conduct between an accused and a complainant with an established prior relationship, may be admitted at trial provided appropriate directions are given to the jury on its permitted use.
  • A count framed over a date range is not necessarily duplicitous where the evidence at trial identifies a single specific incident as the foundation for that count.
  • Medical findings described as consistent with a complainant's account of the manner and physical effects of an assault can form part of the evidentiary basis supporting a conviction, even in the absence of direct corroboration.
  • Where inconsistencies exist in a complainant's evidence and prior statements, those inconsistencies do not automatically undermine the jury's verdict if, considered as a whole, the evidence was capable of supporting a guilty finding beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 78N, 405AA, 405B
- Criminal Procedure Act 1986 (NSW), s 99

Cases:
- BRS v The Queen (1997) ALJR 1512
- Domican v The Queen (1991-1992) 173 CLR 555
- Jones v The Queen (1997) 191 CLR 439
- R v AH (1997) 42 NSWLR 702
- R v Ali Ali (1981) 6 A Crim R 161
- R v Beserick (1993) 30 NSWLR 510
- R v Condon (1995) 83 A Crim R 335
- R v Davis [1999] NSWCCA 15
- R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported)
- R v Khouzame and Saliba [1999] NSWCCA 173
- R v RNS [1999] NSWCCA 122
- R v Vinh Le [2000] NSWCCA 49
- R v Williams (1999) 104 A Crim R 260
- R v Zorad (1990) 19 NSWLR 91
- RPS v The Queen [2000] HCA 3
- S v The Queen (1989) 168 CLR 266
- Walsh v Tattersall (1996) 188 CLR 77