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Court of Criminal Appeal 12 July 2001

R v GWM

[2001] NSWCCA 267

Sexual offences
CRIMINAL LAW COMPLAINANT'S EVIDENCE UNCORROBORATED

Citation: GWM v R [2001] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 12 July 2001
Judge(s): Hodgson JA, Mathews AJA, Studdert J

Background

The appellant, referred to as GWM, was the step-grandfather of the complainant. He was charged on a four-count indictment with two counts of unlawful sexual intercourse (under ss 66A and 66C(2)(a) of the Crimes Act) and two counts of indecent assault (under ss 61M(1) and 61L). The alleged offending spanned a period when the complainant was aged between nine and sixteen years old. No complaint was made until December 1999, some years after the events.

The complainant's evidence was uncorroborated on all four counts. The appellant denied each allegation and gave evidence at trial. Evidence from other witnesses tended to contradict the complainant's account on the second count (the indecent assault at a wedding) and raised inconsistencies regarding the fourth count.

The jury acquitted the appellant on the two indecent assault counts and convicted him on the two sexual intercourse counts. He was sentenced to three years imprisonment with an eighteen-month non-parole period on the first count, and a concurrent fixed term of twelve months on the third count. He appealed both conviction and sentence.

  • Whether the jury's acquittals on the second and fourth counts (indecent assault) were inconsistent with its convictions on the first and third counts (sexual intercourse), such that the convictions could not stand
  • Whether, given that the complainant's evidence was uncorroborated across all counts and the jury rejected it on the counts where it could be tested against other evidence, the convictions on the remaining counts were unsafe and unsatisfactory

Decision

Studdert J, with whom Hodgson JA and Mathews AJA agreed, allowed the appeal. The central question was whether the jury's rejection of the complainant's evidence on the second count, where it could be weighed against other reliable evidence and found wanting, necessarily affected the reliability of her evidence on the remaining counts.

The court drew directly on the High Court's reasoning in Jones v The Queen (1997) 191 CLR 439. In that case, the High Court held that once a jury finds a complainant's evidence lacks sufficient cogency to convict on one count, the Crown's case on the remaining counts takes on a different complexion, particularly where the complainant's evidence is uncorroborated and there has been a lengthy, unexplained delay in complaint. The same reasoning applied here.

Studdert J found no valid basis on which the jury could have regarded the complainant's evidence on the first and third counts as more reliable than her evidence on the second count. The circumstances affecting credibility were consistent across all counts: the evidence was uncorroborated, the delay in complaining was lengthy, and nothing in the complainant's evidence suggested her account was qualitatively stronger in relation to counts one and three than it was in relation to count two.

The court also noted, without directing criticism at the trial judge, that it would have been desirable for the jury to be directed that a reasonable doubt arising from one count's evidence should be brought to bear when assessing the complainant's reliability on the remaining counts. No such direction was sought or given.

Orders Made

  • Appeal allowed
  • Convictions and sentences on the first and third counts quashed
  • Judgment and verdict of acquittal entered on each of those counts

Key Takeaways

  • Where a complainant's evidence is uncorroborated across all counts and a jury acquits on a count where that evidence could be tested against other reliable evidence, the resulting convictions on remaining counts may be unsafe and unsatisfactory.
  • The Court of Criminal Appeal confirmed the application of the High Court's reasoning in Jones v The Queen: an acquittal on one count can change the "complexion" of the Crown's case on other counts where the same complainant's credibility is the critical issue throughout.
  • A direction inviting the jury to carry a reasonable doubt from one count into its assessment of the complainant's evidence on other counts may be desirable in cases of this kind, though the absence of such a direction will not automatically constitute appealable error, particularly where it was not sought by counsel.
  • Delay in complaint and the absence of corroboration, when combined with a jury's own rejection of the complainant's evidence on at least one count, can collectively render remaining convictions unsustainable.
  • In dismissing the convictions, the court entered verdicts of acquittal rather than ordering a retrial, reflecting the conclusion that the evidence could not support conviction on the first and third counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 66A, 66C(2)(a), 61M(1), 61L

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- R v Mills [2001] NSWCCA 48