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Court of Criminal Appeal 29 March 2000

REGINA v WATKINS

[2000] NSWCCA 76

Sexual offences
CRIMINAL LAW MISCARRIAGE OF JUSTICE

Citation: [2000] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 29 March 2000
Judge(s): Sheller JA, Hulme J, Dowd J

Background

The appellant was convicted at Mudgee District Court on six counts of sexual intercourse with a person under 16 years without consent, contrary to section 61D of the Crimes Act 1900. The complainant alleged the offences occurred between May 1983 and October 1984, when she was aged between 10 and 12. The trial judge, Latham DCJ, sentenced the appellant to concurrent terms of two years penal servitude, with a minimum term of 18 months commencing 23 July 1999.

The complainant described a series of overnight stays at the appellant's home, where she alleged he entered the bedroom she shared with his daughter on multiple occasions and committed the charged offences. Her account linked the timing of the alleged incidents to specific events, particularly weekends involving soccer and a goldpanning trip to Hill End.

The appellant, his wife, and his daughter all gave evidence denying the allegations. The appellant appealed all six convictions on the ground that the verdicts were unreasonable and could not be supported by the evidence.

  • Whether the verdicts of guilty on all six counts were unreasonable and unsupported by the evidence, applying the test from M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439.
  • Whether significant factual errors in the complainant's evidence, particularly regarding the timing of the offences and the surrounding circumstances, undermined the reliability of the Crown case to the point that no properly instructed jury could have been satisfied of guilt beyond reasonable doubt.
  • Whether the trial judge's directions adequately guided the jury in assessing the complainant's evidence and the individual counts on the indictment.

Decision

Sheller JA (with whom Hulme J and Dowd J agreed) applied the established High Court test: whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. That test requires the appellate court to give full weight to the jury's advantage in seeing and hearing witnesses, but also requires the court to act where the evidence contains discrepancies or lacks probative force such that there is a significant possibility an innocent person has been convicted.

The Court identified critical problems with the complainant's evidence. School records proved beyond doubt that she first attended Mudgee Public School on 15 August 1983, not in May as she had suggested. Her account of the offences was tightly connected to three soccer weekends, yet objective evidence demonstrated that the relevant soccer season could not have accommodated the sequence of events she described. The Court found these were not minor peripheral errors but went directly to the timeframe within which all six alleged offences were said to have occurred.

Further, the complainant's description of the goldpanning trip to Hill End as occurring on a Sunday was contradicted by evidence that the trip took place on a public holiday. The trial judge acknowledged the complainant was wrong about this significant feature but directed the jury that because the defence was a general denial, the timing of the offences was not a matter of great moment. Sheller JA found this direction came close to impermissibly shifting the onus of proof, when the burden remained with the prosecution throughout.

An additional concern arose from the trial judge's direction that the jury should return the same verdict on every count, without any instruction that each count could only relate to one event. This created a real possibility that convictions were returned for matters not properly charged. Taking all these matters together, the Court concluded that a miscarriage of justice had occurred and that it was not open to a properly instructed jury to be satisfied beyond reasonable doubt of guilt on any of the six counts.

Orders Made

  • Appeal allowed.
  • Sentences quashed.
  • Verdicts of acquittal entered in respect of each count on the indictment.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a complainant's evidence contains significant factual errors directly tied to the timeframe and circumstances of alleged offences, those errors can be sufficient to render the resulting verdicts unreasonable and unsupported by evidence.
  • A trial judge's suggestion that timing of alleged offences is immaterial where the defence is a general denial risks impermissibly undermining the prosecution's onus of proof, which remains throughout.
  • Where a judge directs a jury to return the same verdict on every count without instructing that each count must relate to a distinct charged event, there is a risk of convictions being entered for matters not properly before the court.
  • Applying M v The Queen and Jones v The Queen, an appellate court is bound to set aside verdicts where the evidence, even accounting for the jury's advantage in assessing witnesses, discloses a significant possibility that an innocent person has been convicted.
  • The combination of a 13-year delay between alleged offences and complaint, the inherent circumstances of the alleged offending, and the evidentiary inconsistencies collectively reinforced the Court's conclusion that the convictions could not stand.

Legislation and Cases Referenced

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

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439