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Court of Criminal Appeal 8 October 2001

R v WJT

[2001] NSWCCA 405

Sexual offences
APPEAL AGAINST CONVICTION BUGGERY ADMISSIBILITY OF COMPLAINT EVIDENCE DIRECTIONS TO JURY RELATIONSHIP EVIDENCE SECTION 409B CRIMES ACT

Citation: WJT v R [2001] NSWCCA 405
Court: New South Wales Court of Criminal Appeal
Date: 8 October 2001
Judges: Mason P, Sully J, Dowd J

Background

The appellant, WJT, was convicted in September 1999 in the District Court at Campbelltown of two counts of serious sexual offending against his natural daughter, KT. The first count related to buggery alleged to have occurred between October 1982 and December 1983 at Bondi Junction. The second count concerned sexual intercourse with KT when she was between 13 and 14 years of age, alleged to have occurred between April 1986 and January 1987 at Kogarah.

The complainant did not disclose the abuse to her mother until 1996, approximately 13 to 14 years after the earliest alleged conduct. Police investigations commenced in 1997, and the appellant was arrested in July of that year. The appellant denied all allegations at trial.

The appellant challenged both convictions on multiple grounds, including delay, the admissibility of complaint and relationship evidence, the adequacy of jury directions, and whether the verdicts were unsafe and unsatisfactory.

  • Whether the trial judge erred in refusing to permanently stay the indictment, given the delay and the vagueness and uncertainty in the complainant's allegations
  • Whether complaint evidence was properly admitted and whether the jury was correctly directed about it
  • Whether relationship evidence was properly admitted under s 409B of the Crimes Act 1900 and whether the jury directions on that evidence were adequate
  • Whether the trial judge should have discharged the jury following the inadvertent admission of inadmissible evidence
  • Whether evidence concerning the financial circumstances of the complainant and her mother was wrongly admitted
  • Whether the verdicts were unsafe, unsatisfactory and unsupported by the evidence

Decision

Stay of proceedings: The Court applied the principles established in Jago v District Court of New South Wales (1989) 168 CLR 23 and confirmed that a permanent stay should be ordered only in an extreme case. Delay alone, even combined with vagueness in the allegations, did not meet that high threshold. The trial judge's refusal of the stay application was not in error, particularly given that directions to the jury on the topic of delay were available as a safeguard.

Complaint and relationship evidence: The Court found no error in the admission of complaint evidence or in the directions given to the jury concerning it. The relationship evidence, admitted to contextualise the complainant's account and the nature of the relationship between the parties, was also properly received and the jury was appropriately directed as to its limited use.

Discharge of jury: The Court rejected the argument that the jury should have been discharged following the inadvertent led of inadmissible evidence. The trial judge's handling of the matter, including any corrective directions, was found to be adequate in the circumstances.

Financial circumstances evidence and unsafe verdict: The Court held that evidence about the complainant's financial circumstances lacked substantial probative value, since any prospect of monetary compensation flowing from a conviction was entirely speculative. However, this did not affect the outcome of the appeal. Applying the test in M v The Queen (1994) 181 CLR 487, the Court assessed the whole of the trial record and concluded that there was no significant possibility that an innocent person had been convicted.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • A permanent stay of proceedings based on delay and vagueness in historical sexual assault allegations requires an extreme case; those factors alone, even in combination, will rarely meet that standard.
  • The Court of Criminal Appeal confirmed that appropriate jury directions on delay and the difficulties it creates for an accused can be a sufficient safeguard short of a permanent stay.
  • Relationship evidence admitted under s 409B of the Crimes Act 1900 to explain the context of an alleged offending relationship remains a legitimate evidentiary tool, provided the jury receives proper limiting directions.
  • In assessing an unsafe and unsatisfactory verdict ground, the M v The Queen standard requires the appellate court to conclude there is a significant possibility that an innocent person was convicted before it intervenes. No such conclusion was reached here.
  • Evidence bearing only on a complainant's potential financial benefit from a conviction will lack substantial probative value under s 103(1) of the Evidence Act 1995 where the prospect of any such benefit is speculative and contingent on numerous uncertain steps.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 409B
- Evidence Act 1995 (NSW), including s 103(1)

Cases:
- Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23
- M v The Queen (1994) 181 CLR 487
- Barton v The Queen (1980) 147 CLR 75
- R v AH (1997) 98 A Crim R 71
- R v BD (1997) 94 A Crim R 131
- R v MM (2000) 112 A Crim R 519
- R v McGarvey (1987) 10 NSWLR 632
- Re Cooney (1987) 31 A Crim R 256