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Court of Criminal Appeal 20 November 2000

R v Connors

[2000] NSWCCA 470

Sexual offences
CRIMINAL LAW EVIDENCE ACT S165 CORROBORATION MOTIVE IN COMPLAINANT TO LIE.

Citation: Connors v R [2000] NSWCCA 470
Court: New South Wales Court of Criminal Appeal
Date: 20 November 2000
Judge(s): Giles JA; Wood CJ at CL; James J

Background

The appellant was a church minister in Sydney who was convicted in the District Court on one count of aggravated indecent assault and four counts of homosexual intercourse with a male person aged between ten and eighteen years. The offences were committed against a complainant who was thirteen or fourteen years old at the relevant times, during periods when the complainant and his younger brother stayed at the appellant's home.

The trial proceeded solely on the charges relating to the complainant, following a pre-trial ruling that the charges involving the younger brother would be tried separately and that evidence of any alleged offences against him would not be admitted. The jury acquitted the appellant on one count of aggravated indecent assault and convicted him on the remaining five counts.

Following conviction, the trial judge sentenced the appellant to a total effective term comprising fixed terms and a minimum term of three years' penal servitude or imprisonment, plus an additional term of three years. The appellant sought to appeal against both conviction and sentence.

  • Whether the trial judge erred in the direction given under section 165 of the Evidence Act concerning the need for caution when relying on the complainant's evidence, particularly in relation to an alleged motive to lie.
  • Whether the trial judge's approach to corroboration warnings was legally adequate.
  • Whether the jury's verdict of not guilty on the first count undermined the complainant's overall credibility and rendered the remaining guilty verdicts unreasonable.
  • Whether leave to appeal against sentence should be granted.

Decision

The Court of Criminal Appeal, in reasons delivered by James J (with Giles JA and Wood CJ at CL agreeing), dismissed all grounds of appeal against conviction. The court found that the trial judge had properly directed the jury in accordance with section 165 of the Evidence Act regarding the need for caution when considering the complainant's evidence, including on the question of whether the complainant had any motive to lie.

On the question of the acquittal on the first count, the court accepted that this outcome was explicable on a basis that did not undermine the complainant's credibility. The trial judge had specifically directed the jury that an acquittal was required on that count unless the conduct was proven to have occurred within the precise time frame alleged in the indictment. The jury could reasonably have accepted the complainant's account of the conduct while remaining uncertain whether the first visit fell within the charged dates.

The court noted that counsel for the appellant was able to identify very little in the way of discrepancies or inconsistencies in the complainant's evidence overall. The complainant's account was substantially consistent across examination, and the documentary evidence, including a diary entry, was consistent with the Crown's case.

On sentence, no submissions were advanced in support of the application for leave to appeal. The court observed that the offences were very serious and involved a significant breach of trust. James J expressed the view that the sentences imposed were, if anything, lenient, and that they did not exceed a proper exercise of the sentencing discretion. Leave to appeal against sentence was refused.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • A jury acquittal on one count does not automatically undermine the complainant's credibility on related counts, particularly where the acquittal is explicable by reference to a specific element of the offence, such as the time frame alleged in the indictment.
  • Under section 165 of the Evidence Act, a trial judge must give an appropriate warning to the jury about the need for caution when considering evidence that may carry particular risks, including where a witness may have a motive to lie. Whether the direction is adequate will depend on the specific circumstances of the trial.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that corroboration directions in cases of this nature are governed by the Evidence Act framework rather than the older common law rules requiring a formal corroboration warning.
  • Sufficient consistency in a complainant's evidence, combined with corroborating documentary material such as a diary, can support a finding that the evidence was reliable notwithstanding the absence of independent eyewitness testimony.
  • Where no submissions are advanced in support of an application for leave to appeal against sentence, and the sentences imposed were not shown to exceed a proper exercise of discretion, leave will be refused.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), section 165 (warning to jury about unreliable evidence)
- Crimes Act 1900 (NSW), section 61M (aggravated indecent assault)
- Crimes Act 1900 (NSW), section 78K (homosexual intercourse with a male person aged between ten and eighteen years)

Cases cited: No cases were cited in the portions of the judgment provided.