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5
Court of Criminal Appeal 14 December 2000

R v Mayberry

[2000] NSWCCA 531

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT INDECENT ASSAULT DIRECTIONS TO THE JURY MULTIPLE COUNTS EVIDENCE OF SEPARATE COMPLAINTS

Citation: R v Mayberry [2000] NSWCCA 531
Court: New South Wales Court of Criminal Appeal
Date: 14 December 2000
Judge(s): Beazley JA; Greg James J; Kirby J

Background

The appellant was the stepfather of two complainants, referred to in the judgment as NRD and JMD. He was convicted in the District Court on eleven counts of sexual assault, indecent assault, attempted homosexual intercourse, and homosexual intercourse, committed against both complainants during the mid-1980s when the boys were aged between approximately seven and twelve years old.

The alleged offences had occurred some twelve to fourteen years before trial. There was no corroborative evidence, and the credit of both complainants was in serious dispute at trial. The appellant had been the primary carer of the children during a period when their mother was largely absent for officer training.

The appellant appealed against all eleven convictions on the grounds that the trial judge's directions to the jury were inadequate, and alternatively that the verdicts were unsafe and unsatisfactory given the quality of the evidence.

  • Whether the trial judge gave adequate directions warning the jury against using evidence relating to one complainant's allegations as proof of guilt in respect of offences involving the other complainant
  • Whether the trial judge was required to give a Longman warning, directing the jury that it was dangerous to convict on the complainants' evidence without careful scrutiny satisfying them of its truth and accuracy
  • Whether the verdicts were unsafe and unsatisfactory and should be set aside on the transcript alone

Decision

On the cross-complainant directions issue, Beazley JA (with whom Greg James J and Kirby J agreed) held that the trial judge's general instruction to consider each charge separately was insufficient. A stronger, specific warning was required directing the jury not to use the evidence relating to one complainant's allegations as proof of guilt on the counts involving the other complainant. The failure to give that warning was a material error.

On the scrutiny warning, the Court held that this was plainly a case requiring a Longman-style direction. Given the significant delay in complaint, the absence of corroboration, and the serious challenge to the complainants' credit, the jury needed to be told expressly that it was dangerous to convict on the complainants' evidence unless, after careful scrutiny, they were satisfied of its truth and accuracy. The trial judge's directions did not meet that standard.

On the unsafe and unsatisfactory ground, the Court declined to interfere with the verdicts on the basis of the transcript alone. The evidence was such that the demeanour of both complainants must have played a significant role in the jury's assessment of their credit, and that assessment was not accessible to an appellate court reading a transcript. Applying R v M, this was not a case where it was apparent from the record that a jury must have had a reasonable doubt.

Because the first two grounds were made out, the convictions could not stand. A new trial was ordered on all counts rather than outright acquittals, reflecting the Court's view that the evidence, assessed by a properly directed jury, could still sustain conviction.

Orders Made

  • Appeal allowed
  • Convictions and sentences on all counts quashed
  • New trial ordered on all counts

Key Takeaways

  • Where multiple complainants give evidence at a single trial, a general direction to consider each count separately is insufficient to guard against cross-contamination; the trial judge must specifically warn the jury not to use the evidence of one complainant as proof of guilt on charges involving another complainant.
  • A Longman warning is required in cases involving serious sexual offences alleged to have occurred many years before trial, where there is no corroboration and the complainants' credibility is genuinely in dispute; a general caution about scrutinising evidence does not satisfy this obligation.
  • Appellate courts will not set aside verdicts as unsafe and unsatisfactory where demeanour evidence played a central role in the jury's assessment of witnesses, since that assessment cannot be replicated from a transcript alone.
  • Inadequate jury directions on distinct but related grounds can together require the quashing of all convictions and the ordering of a new trial, even where the evidence itself is not so weak as to warrant outright acquittal.
  • Under Crampton v The Queen and Longman v The Queen, the requirement for a scrutiny warning in delayed-complaint sexual assault matters reflects the particular dangers of convicting on uncorroborated evidence where the accused's ability to respond has been compromised by the passage of time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61E, 78H, 78I
- Evidence Act 1995 (NSW), ss 137, 165

Cases:
- R v Mitchell (unreported, NSW Court of Criminal Appeal, 5 April 1995)
- Longman v The Queen (1989) 168 CLR 79
- R v Murray (1987) 11 NSWLR 12
- Crampton v The Queen [2000] HCA 60
- R v M (1994) 181 CLR 487
- R v Johnston (1998) 45 NSWLR 362
- R v Jones (1997) 191 CLR 439