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Court of Criminal Appeal 3 November 2000

R v Wong

[2000] NSWCCA 461

Sexual offences

Citation: Wong v R [2000] NSWCCA 461
Court: Court of Criminal Appeal, New South Wales
Date: 3 November 2000
Judge(s): Beazley JA; Wood CJ at CL; O'Keefe J

Background

The appellant was convicted in the District Court of one count of non-consensual sexual intercourse under s 61J(1) of the Crimes Act 1900 (NSW). The complainant was a 19-year-old woman with a serious intellectual disability, described by an expert as functioning intellectually within the bottom 0.1 percent of the general population, with communication skills roughly equivalent to those of a pre-schooler aged around four years.

The appellant had originally faced two counts under s 61J(1), both alleged to have occurred on the same day at a residential care facility. The first count concerned alleged oral penetration; the second concerned the insertion of a house key into the complainant's vagina. During cross-examination, the complainant resiled from her evidence supporting the first count, which prompted the trial judge to withdraw that count from the jury. The second count proceeded, and the jury returned a guilty verdict.

On appeal, the appellant argued that the verdict on the second count was unsafe and unsatisfactory. He contended that the two alleged incidents were intertwined, and that the complainant's change of evidence, combined with the severity of her intellectual disability, meant the jury could not reasonably have accepted her account on the remaining count.

  • Whether the verdict on the second count was unsafe or unsatisfactory, having regard to the principles governing appellate review of jury verdicts
  • Whether the complainant's change of evidence during cross-examination, which caused the first count to be withdrawn, so tainted her credibility that the jury's acceptance of her evidence on the second count was unreasonable or illogical

Decision

Beazley JA, with Wood CJ at CL and O'Keefe J agreeing, dismissed the appeal. The central question was whether the jury's verdict was one that a reasonable jury, properly instructed, could have reached, or whether the appellate court itself was left with a doubt about the guilt of the accused.

The Court accepted that the complainant's change of evidence during cross-examination required scrutiny. However, Beazley JA identified a significant contextual explanation for that change. During cross-examination, counsel moved between the two alleged incidents without clearly signalling the transition to the complainant. The questions about touching and licking followed immediately from questions about the key, without any marker distinguishing one incident from the other. By contrast, during examination in chief, the Crown had used a clear bridging question to shift from one incident to the other. Given the complainant's cognitive limitations, she could reasonably have understood the cross-examination questions about touching and licking as referring to the key incident rather than a separate act, which would explain her denial.

Throughout the cross-examination, the complainant consistently and firmly maintained her account of the key incident, resisting direct suggestions that it had not occurred. The Court found it was neither unreasonable nor illogical for the jury to accept her evidence on that count. The Court also noted that no application had been made, by the appellant or otherwise, to withdraw the second count from the jury, which was consistent with the view that the evidence on that count remained capable of supporting a conviction.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A verdict is not automatically unsafe where one count is withdrawn from the jury during trial, provided the remaining evidence on other counts can rationally support a conviction.
  • The Court of Criminal Appeal confirmed that the applicable test requires the court to determine whether the jury's acceptance of the complainant's evidence was unreasonable or illogical, not merely whether the evidence had imperfections.
  • Where a vulnerable complainant changes evidence during cross-examination, the manner in which questions were asked may provide a cogent explanation for that change, particularly where transitions between distinct incidents were not clearly flagged.
  • Sufficient evidence existed for the jury to accept the complainant's account on the second count, given her consistent and unequivocal responses on the key incident throughout cross-examination.
  • In dismissing the appeal, the Court observed that the absence of any application to withdraw the second count from the jury was consistent with the prosecution evidence on that count remaining legally adequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1)

Cases:
- R v Jones (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- R v RAT [2000] NSWCCA 77
- R v Chidiac (1991) 171 CLR 432
- R v McKenzie (1996) 190 CLR 348
- R v Stone (unreported, Devlin J, 13 December 1954)