Citation: Regina v Van Dyk [2000] NSWCCA 67
Court: Court of Criminal Appeal, New South Wales
Date: 17 March 2000 (judgment delivered 20 March 2000)
Judge(s): Meagher JA; Simpson J; Smart AJ
Background
The appellant was convicted in the District Court on five counts of sexual intercourse without consent with a complainant (referred to as "C") who was aged 14 to 15 at the time of the alleged offences, and on two counts of carnal knowledge. The events alleged occurred in 1983 and 1984, but the matter was not reported to police until 1996, and the trial did not proceed until October 1998, some 14 to 15 years after the alleged conduct.
The appellant and C had an established connection through horse agistment at a ranch in Kellyville, where the appellant lived and worked. C spent considerable time at the ranch tending her horses, and the Crown alleged the appellant exploited that association to commit the offences. The appellant did not deny that consensual sexual activity had taken place on some occasions but denied committing the specific acts alleged by C.
The jury was unable to reach a verdict on two counts and returned verdicts of carnal knowledge rather than sexual assault on two further counts. Several grounds of appeal were pressed, challenging the conduct of the trial, evidentiary rulings, the adequacy of the judge's directions, and the competence of trial counsel.
Legal Issues
- Whether the contents of a diary (which could not be located at trial) were admissible when they went beyond mere credibility and were relevant to the defence case
- Whether evidence of what C told a third party (Ms Cotter) was admissible under s 66 of the Evidence Act 1995, and whether the jury direction on that evidence was correct
- Whether the trial judge erred in failing to warn the jury that the significant delay between the alleged events and trial prejudiced the appellant's ability to defend himself
- Whether evidence described as a "look of wanting" on the appellant's face was admissible, or should have been excluded in the discretion of the court
- Whether alternative verdicts of carnal knowledge were properly left to the jury and whether the relevant provisions of the Crimes Act 1900 (ss 61D, 61G, 78) were correctly construed
- Whether there was a risk of impermissible tendency reasoning on the part of the jury
- Whether trial counsel's conduct was competent
- Whether sufficient evidence supported the verdicts
Decision
The diary (Ground 1): The Court held that the contents of the diary were admissible. Because the appellant's case included an admission of consensual sexual activity on occasions other than those alleged by C, the jury needed to understand the nature of the relationship between the two. The diary, if accepted as described, was relevant not merely to C's credibility but to the defence case itself. Its exclusion was an error.
The complaint evidence (Ground 4): Simpson J found that the conversation C had with Ms Cotter in around August 1984, concerning events in 1983 and 1984, was admissible under s 66 of the Evidence Act 1995 as a prior representation made when the events were fresh in C's memory. Critically, the direction given to the jury that they could not treat that evidence as proof of the truth of its contents was incorrect. Under s 66, as confirmed in Papakosmas v The Queen, such evidence is admissible as to the truth of the facts asserted, not merely as to consistency.
Failure to warn of prejudice from delay (Ground 5): The Court upheld this ground. Given the extraordinary gap between the alleged events and the trial, the trial judge was required to direct the jury that the delay in reporting and prosecuting the matter created real difficulties for the appellant in mounting his defence. The absence of that direction constituted a significant defect in the trial.
The "look of wanting" evidence (Ground 11): Both Simpson J and Smart AJ agreed that evidence, in the bare form in which it was given, describing the appearance of the appellant as bearing a "look of wanting" should have been excluded in the exercise of the court's discretion. Simpson J noted that a more specific description meeting the necessary evidentiary tests might not necessarily face the same outcome, but the evidence as given was insufficiently grounded and should not have been admitted.
Overall: The Court found that the combination of errors, particularly the wrongly excluded diary evidence, the incorrect jury direction on the complaint evidence, and the failure to warn about the prejudice of delay, meant that the proviso under s 6 of the Criminal Appeal Act 1912 (which allows an appeal to be dismissed despite error if no miscarriage of justice resulted) could not be applied. New trials were ordered on the affected counts.
Orders Made
- Convictions on counts 3, 4, 5, 6, 7, 8 and 9 allowed and quashed
- New trial ordered on counts 3, 4, 5, 7 (alternative verdict), 8 and 9 (alternative verdict)
Key Takeaways
- Where an accused admits consensual sexual activity on occasions other than those charged, documentary evidence going to the nature of the relationship between the accused and the complainant may be admissible for purposes beyond mere credit, and its exclusion can constitute reversible error.
- Under s 66 of the Evidence Act 1995, a prior representation made while the events were fresh in the maker's memory is admissible as evidence of the truth of its contents, not merely as evidence of consistency. A jury direction that restricts the use of such evidence to credibility alone is incorrect, as confirmed in Papakosmas v The Queen.
- A failure to direct the jury about the prejudice to an accused's ability to defend himself arising from a lengthy delay between alleged events and trial can constitute a significant misdirection warranting a new trial, particularly where the gap spans over a decade.
- Lay opinion evidence describing an accused's appearance in vague terms, such as a "look of wanting," is liable to exclusion in the court's discretion where it lacks sufficient specificity or a proper evidentiary foundation.
- Cumulative trial errors, none of which may be independently fatal, can together defeat the application of the proviso under s 6 of the Criminal Appeal Act 1912 and necessitate a new trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61G, 78
- Evidence Act 1995 (NSW), s 66
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- Papakosmas v The Queen (1999) 73 ALJR 274
- R v PKS, CCA, unreported, 1 October 1998
- R v Harvey, CCA, unreported, 11 December 1996
- R v Graham (1998) 102 A Crim R 438