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Court of Criminal Appeal 26 September 2001

R v Fuller

[2001] NSWCCA 390

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES CRIMINAL PRACTICE AND PROCEDURE JUDICIAL DIRECTIONS SEXUAL OFFENCES "KILBY DIRECTION"

Citation: Fuller v R [2001] NSWCCA 390
Court: NSW Court of Criminal Appeal
Date: 26 September 2001
Judges: Heydon JA, Wood CJ at CL, Carruthers AJ

Background

The appellant stood trial in the District Court before Garling DCJ on thirteen counts arising from allegations of sexual offending against a complainant who regarded him as her uncle. The counts included allegations of sexual intercourse without consent and alternative counts of carnal knowledge of a person under 16 years. The jury acquitted the appellant on all counts except Count 6A, a charge of carnal knowledge of the complainant in June or July 1986 when she was aged 14 or 15.

Count 6A was the alternative to Count 6, which alleged the same act of sexual intercourse but included the element of non-consent. The jury acquitted on Count 6 and convicted on Count 6A. The appellant challenged both the consistency of those verdicts and the adequacy of the trial judge's directions on the complainant's credibility.

The complainant's evidence described an occasion when she woke to find the appellant on top of her. Her aunt, Mrs Donnelly, entered the room while the offending was occurring, witnessed the appellant in that position, confronted him angrily, and left the house. That eyewitness presence was a significant feature of the evidence.

  • Whether the conviction on Count 6A was inconsistent and unreasonable given the acquittal on Count 6, the corresponding count alleging the same act of sexual intercourse without consent.
  • Whether the trial judge's direction on the complainant's credibility, in light of the delay in reporting the offence (the so-called "Kilby direction"), was inadequate.

Decision

Ground 1: Inconsistent verdict

The Court rejected the argument that the acquittal on Count 6 (sexual intercourse without consent) was irreconcilable with the conviction on Count 6A (carnal knowledge of a person under 16). The two counts shared factual overlap but were legally distinct. Count 6 required proof that the complainant did not consent and that the appellant knew she was not consenting. Count 6A required only proof that sexual intercourse occurred and that the complainant was under 16. A jury could rationally have entertained doubt about the non-consent element while still being satisfied beyond reasonable doubt that sexual intercourse had occurred with an underage complainant. The verdicts were reconcilable.

Ground 2: Adequacy of the Kilby direction

The Kilby direction (named after the relevant authority on delayed complaint in sexual offence cases) requires a trial judge to direct the jury that delay in reporting may be relevant to assessing a complainant's credibility. The appellant argued the direction given was insufficiently firm and impermissibly diluted. The Court disagreed. The trial judge had instructed the jury to scrutinise the complainant's evidence carefully and had explained that absence of complaint may indicate fabrication, while acknowledging there may be good reasons for delayed reporting. That formulation did not impermissibly weaken the direction.

The Court also noted the particular significance of the eyewitness evidence from Mrs Donnelly. Her presence and reaction during the offence substantially reduced the weight that delay in complaint could carry as a credibility factor. The appellant's trial counsel had not sought a redirection, which the Court observed was almost certainly a deliberate forensic decision reflecting no perceived deficiency in the direction actually given. Both grounds of appeal were dismissed.

Orders Made

  • Grounds 1 and 2 of the appeal dismissed.
  • Directions made for the filing of affidavits and any amended notice of appeal by 26 October 2001 in relation to a separate issue (the possible reliance on further evidence) raised at the start of the hearing.
  • Crown to file any answering affidavits by 11 November 2001, with liberty to apply for an extension if not reasonably practicable.
  • Matter listed before the Registrar on 12 November 2001.

Key Takeaways

  • A conviction on an alternative count is not necessarily inconsistent with an acquittal on the principal count where the two charges have distinct elements. Where the alternative count requires proof of fewer elements, a jury can rationally acquit on the principal charge while convicting on the alternative.
  • The Kilby direction does not require a trial judge to direct the jury in unqualified terms that delayed complaint points to fabrication. A direction that absence of complaint "may indicate fabrication" but "does not necessarily do so" was found to be adequate on the facts of this case.
  • Where a third party witnessed circumstances closely pointing to the occurrence of an offence, the forensic significance of a complainant's delay in reporting is reduced. The Court treated the aunt's eyewitness intervention as a factor that diminished the credibility impact of delayed complaint.
  • In assessing the adequacy of a judicial direction, the absence of any application by trial counsel for a redirection is a relevant consideration. The Court drew an inference that experienced defence counsel saw no vice in the direction given.
  • Reconcilability of verdicts turns on whether a rational jury, applying the law correctly, could have reached the different verdicts on the evidence. The test is not whether the verdicts are surprising but whether they are logically irreconcilable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- Jones v R (1997) 191 CLR 439
- R v Markuleski [2001] NSWCCA 290
- MacKenzie v R (1996) 190 CLR 348
- R v Doney (1988) 37 A Crim R 288
- Donley v R (1990) 171 CLR 207