Citation: Russell Bamblett (Snr) v R [2000] NSWCCA 464
Court: NSW Court of Criminal Appeal
Date: 7 November 2000
Judge(s): Sheller JA, James J, Dowd J
Background
The appellant was convicted in the District Court at Dubbo on three counts of having sexual intercourse with a female child under the age of ten, on a single occasion between December 1996 and March 1997. The complainant alleged the offences occurred while the appellant was babysitting her and her siblings. The appellant denied all allegations and gave evidence of an alibi.
No medical evidence was tendered at trial. The reason for its absence was significant: the complainant had previously been sexually abused by another person, meaning any physical findings could not be attributed solely to the alleged conduct of the appellant. The extent and nature of that prior abuse were not established at trial.
The complainant's evidence contained internal inconsistencies and was also inconsistent with evidence she had given in a separate earlier proceeding. In his summing-up, the trial judge suggested to the jury that the detail and nature of the sexual activities described by the complainant went beyond the capacities of a child her age. No objection was raised by defence counsel at the time.
Legal Issues
- Whether the trial judge's directions to the jury about the complainant's capacity to fabricate the allegations constituted a misdirection, even though no objection was raised at trial.
- Whether the verdict was unreasonable in light of the inconsistencies in the complainant's evidence and the absence of medical evidence.
- Whether, if the conviction were quashed, a verdict of acquittal should be substituted rather than a new trial ordered.
Decision
The Court of Criminal Appeal allowed the appeal unanimously, with James J and Dowd J agreeing with the reasons of Sheller JA.
The court accepted that the trial judge had appropriately told the jury that any directions were required by law and did not reflect his personal views on the evidence. However, the court found there was a real danger that the jury had been led to believe the complainant could not have invented the sexual activities she described, simply because of her age. That reasoning was dangerous in the specific circumstances of this case: the complainant had previously been sexually abused by another person, and the nature and extent of that prior abuse were entirely unknown.
The inconsistencies in the complainant's evidence, while regarded as peripheral when considered in isolation, took on greater significance once placed in the context of the prior abuse. Because the full circumstances of that earlier abuse were unknown and would remain unknown to any future jury, the court concluded the inconsistencies could not be adequately assessed for reliability. The combination of the potentially misleading direction and this irreducible unreliability in the evidence meant the trial had resulted in a miscarriage of justice.
The court further found that ordering a retrial would itself produce a further miscarriage of justice, for the same reasons. Accordingly, a verdict of acquittal was substituted rather than a new trial directed.
Orders Made
- Appeal allowed.
- Conviction quashed.
- Verdict of acquittal substituted.
Key Takeaways
- A trial judge's observations during a summing-up about the capacities of a child complainant can constitute a misdirection capable of causing a miscarriage of justice, even where no objection was raised at trial.
- Where a complainant has a prior history of sexual abuse by another person, the unknown extent of that abuse can make it impossible to properly assess the reliability of the complainant's evidence, adding weight to other inconsistencies.
- The Court of Criminal Appeal confirmed that inconsistencies in a complainant's evidence, while potentially peripheral on their own, may become more significant when considered against an unresolvable evidentiary gap, such as unknown prior abuse.
- Substitution of a verdict of acquittal, rather than an order for retrial, is appropriate where a further trial would itself involve a miscarriage of justice because the same evidentiary deficiency would persist.
- Absence of a trial objection does not necessarily preclude an appellate court from finding a miscarriage of justice arising from a direction given to the jury.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Rules (NSW), r 4
- Supreme Court Rules
Cases:
- BRS v The Queen (1997) 191 CLR 275
- Davies and Cody v The King (1937) 57 CLR 170
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- R v Abusafiah (1991) 24 NSWLR 531
- R v McKnoulty (1995) 77 A Crim R 333
- R v RMM [1996] NSWCCA (Butterworths Unreported Decisions)
- R v Zammit [1999] NSWCCA 65