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10
Court of Criminal Appeal 25 July 2001

REGINA v PLV

[2001] NSWCCA 282

Also reported as (2001) 51 NSWLR 736
Sexual offences
CRIMINAL LAW SEXUAL OFFENCE APPEAL AGAINST CONVICTION CRIMINAL LAW SEXUAL OFFENCE APPEAL AGAINST CONVICTION

Citation: Regina v PLV [2001] NSWCCA 282
Court: Court of Criminal Appeal, New South Wales
Date: 25 July 2001
Judges: Spigelman CJ; Simpson J; Smart AJ

Background

The appellant was charged with six counts of sexual offences against his younger sister, with the alleged conduct occurring between 1973 and 1974. At the time of the alleged offences, the complainant was aged eleven to twelve and the appellant was seventeen to eighteen. The complainant did not report the matter to police until December 1996, more than twenty years later, and the trial was not conducted until March 2000.

The jury acquitted the appellant on five counts and convicted him on one count of sexual intercourse. On the five counts resulting in acquittal, the only evidence was that of the complainant herself. On the single count resulting in conviction, the complainant's younger brother gave evidence that corroborated her account.

The appellant sought to challenge the conviction on several grounds and also sought leave to appeal against the sentence of two years' imprisonment with a non-parole period of three months.

  • Whether the single guilty verdict was unreasonable when considered alongside five not-guilty verdicts
  • Whether the trial judge's directions to the jury adequately addressed the dangers arising from a delay of more than twenty-five years between the alleged events and the trial
  • Whether a specific warning about the unreliability of childhood recollection was required under section 165 of the Evidence Act 1995
  • Whether fresh evidence, said to show that the complainant's memory of the events was only recently recovered, should be admitted on appeal
  • Whether the sentence should have been assessed according to sentencing standards prevailing at the time of the offence (the 1970s) rather than at the time of conviction (2000)

Decision

Inconsistent verdicts: The Court held that the guilty verdict on one count was not unreasonable in light of the five acquittals. The presence of corroborating evidence from the younger brother on that single count, and its absence on all other counts, provided a rational and sufficient basis for the jury to differentiate between the charges. The Court distinguished the High Court decision in Jones v The Queen (1997) 191 CLR 439.

Delay in complaint: The Court accepted that the trial judge's directions on delay may not have satisfied the full requirements established in Longman v The Queen (1989) 168 CLR 79 and Crampton v The Queen [2000] HCA 60. However, those authorities address the danger of convicting on the complainant's evidence alone. Because the jury convicted only on the count supported by corroborating evidence, no miscarriage of justice arose from any deficiency in the direction.

Unreliability of childhood recollection: The Court rejected the argument that a specific warning about the fragility of youthful memory was mandatory in every case where a witness gives evidence about events witnessed as a child. The jury had the ages of both the complainant and her brother before it and could draw on ordinary experience regarding the reliability of decades-old childhood recollections. The point was not raised at trial, leave was required under the Criminal Appeal Rules, and leave was refused. The trial judge could properly have given such a direction, but it was not required in the circumstances.

Fresh evidence: The proposed fresh evidence, to the effect that the complainant had indicated her memory of the events was only recently recovered, was rejected on two independent grounds. First, even if admitted, there was no significant possibility that a reasonable jury would have acquitted. Second, the evidence went only to the complainant's credit and was prima facie excluded by the credibility rule in section 102 of the Evidence Act 1995. The exception in section 106(d) did not apply: adopting it would have required the Court to read the words "or recall" into section 104(3)(b), which the legislature had not included. The Court declined to supply words omitted by parliament.

Sentence: Spigelman CJ (with Simpson J agreeing) held that sentences are to be imposed according to sentencing principles applying at the time of conviction, not the time of the offence. Smart AJ took the view that the sentence which would have been imposed at the time of the offence is a relevant consideration but not a decisive one. All three judges agreed that the sentence actually imposed, of two years with a three-month non-parole period, was lenient by any standard, including 1970s standards. The trial judge had correctly weighed the significant delay, the appellant's personal circumstances including caring for a seriously ill wife, and the more severe conditions of protective custody. No error was established.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A guilty verdict on one count is not necessarily inconsistent with acquittals on related counts where the evidence differs materially between counts, such as the presence of corroboration on one count only.
  • Deficiencies in a trial judge's directions on the dangers of convicting on delayed complaint evidence will not produce a miscarriage of justice where the jury in fact convicted only on corroborated evidence.
  • Under section 165 of the Evidence Act 1995, no automatic warning about the unreliability of childhood recollection is required merely because a witness gives evidence about events that occurred when they were a child; the obligation is fact-specific.
  • Fresh evidence on appeal that goes solely to a witness's credit is prima facie excluded by the credibility rule in section 102 of the Evidence Act 1995, and courts will not read words into section 106(d) that the legislature omitted.
  • Sentencing in historical sexual offence cases applies the principles current at the time of conviction; the sentence that would have applied at the time of the offence is a relevant, but not determinative, consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Child Assault) Amendment Act 1985 (NSW)
- Criminal Appeal Rules (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), particularly ss 102, 103, 104, 106(d), 165

Cases
- Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
- Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60
- Gallagher v The Queen (1985) 160 CLR 392
- Inco Europe v First Choice Distribution [2000] 1 WLR 586
- Jones v The Queen (1997) 191 CLR 439
- Kilby v The Queen (1973) 129 CLR 460
- KRM v The Queen (2000) 75 ALJR 550; [2000] HCA 11
- Longman v The Queen (1989) 168 CLR 79
- Mill v The Queen (1988) 166 CLR 59
- R v Davies (1985) 3 NSWLR 276
- R v Holyoak (1995) 82 A Crim R 502
- R v Todd [1982] 2 NSWLR 517
- R v Young (1999) 46 NSWLR 681
- Wentworth Securities v Jones [1980] AC 74