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Court of Criminal Appeal 26 November 2001

R v WRW

[2001] NSWCCA 466

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT EVIDENCE COMPLAINT EVIDENCE 'CREDIBILITY RULE' LAW

Citation: WRW v R [2001] NSWCCA 466
Court: NSW Court of Criminal Appeal
Date: 26 November 2001
Judge(s): Heydon JA, Simpson J, Smart AJ

Background

The appellant was convicted by a jury in the District Court, presided over by Tupman DCJ, on one count of rape and one count of indecent assault. The charges arose from alleged sexual offences committed against his stepdaughter at Nulkaba in the early 1970s, when the complainant was between approximately 10 and 12 years of age.

The indictment contained four counts of rape (each charged in the alternative as unlawful carnal knowledge) and one count of indecent assault. The jury failed to reach a verdict on count one, acquitted on counts two and three, and convicted on count four (rape) and count five (indecent assault).

The appellant appealed against conviction on several grounds, contesting evidentiary rulings, a factual error made during cross-examination, the reasonableness of the verdicts, and the adequacy of the trial judge's directions to the jury on credibility.

  • Whether the trial judge erred in permitting re-examination of the complainant about her reasons for delaying her complaint to her mother and aunt
  • Whether the trial judge erred in failing to exclude the complainant's evidence that she believed the appellant was having an affair with her aunt (relevant to explaining the delay in complaint)
  • Whether a factual error made by the Crown Prosecutor during cross-examination of the appellant caused a miscarriage of justice
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence, given a mixed verdict outcome across the counts
  • Whether the trial judge was required to direct the jury that any reasonable doubt about the complainant's credibility on one or more counts must be taken into account when assessing her credibility generally

Decision

The Court rejected all grounds of appeal and dismissed the appeal against conviction, with all three judges agreeing with the reasons delivered by Heydon JA.

On the evidentiary grounds (grounds one and two), the Court found no error in the trial judge's rulings. The re-examination of the complainant about her delay in complaining, and her belief about an affair between the appellant and her aunt, were either properly admitted or did not result in any demonstrated unfairness. The Court was not persuaded that the admission of this material was contrary to the credibility rule under the Evidence Act 1995 or that any residual discretion to exclude should have been exercised.

On ground three, the Court accepted that the Crown Prosecutor had made a factual error during cross-examination regarding the birth date of the aunt's child, a matter relevant to the timing of the alleged offences. However, the Court was not satisfied that this error was sufficiently misleading or prejudicial to have caused a miscarriage of justice, particularly given the context in which it arose and the overall conduct of the trial.

On grounds five and six, the Court found the convictions were not unreasonable. The complainant's evidence on timing was more capable of rational acceptance in relation to counts four and five, where it was supported by other evidence or circumstances, than in relation to counts one, two and three. As for the direction on credibility across counts, the Court applied the framework from R v Markuleski and concluded this case fell into the category where no specific direction was necessary. The complainant's evidence on the counts resulting in conviction was not shown to have been "seriously undermined" in a way that required the jury to be directed to carry doubts from one count across to others. The Court also noted that trial counsel had not requested such a direction before or after the summing up.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a factual error by a Crown Prosecutor during cross-examination does not automatically produce a miscarriage of justice; the error must be shown to have been sufficiently misleading and prejudicial in the circumstances of the trial.
  • A mixed verdict (acquittals on some counts, convictions on others) does not, without more, render the guilty verdicts unreasonable; the Court assessed each count's evidentiary basis independently.
  • Under the framework established in R v Markuleski, there is no universal obligation to direct a jury that doubts about a complainant's credibility on one count must affect their assessment on all counts. The nature and appropriateness of any such direction depends on the facts, and in some cases no direction at all is required.
  • Complaint evidence admitted to explain a delay in reporting an alleged sexual assault, including evidence about the complainant's subjective reasons for the delay, may be properly admitted under the Evidence Act 1995 where it is relevant and no applicable exclusionary rule or discretion requires its rejection.
  • The absence of any objection or request by trial counsel at the relevant time can be a relevant circumstance when an appellate court considers whether an alleged error caused actual unfairness or miscarriage.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 102, 108, 135

Cases:
- R v Carbone [2000] NSWCCA 387
- Jones v R (1997) 191 CLR 439
- R v Markuleski [2001] NSWCCA 290