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12
Court of Criminal Appeal 5 April 2002

Regina v RTB

[2002] NSWCCA 104

Sexual offences
CRIMINAL LAW APEAL AGAINST CONVICTION AND SENTENCE EVIDENCE NEW TRIAL OR ACQUITTAL NO REFERENCE TO S192

Citation: Regina v RTB [2002] NSWCCA 104
Court: Court of Criminal Appeal (NSW)
Date: 5 April 2002
Judge(s): Spigelman CJ; Wood CJ at CL; Kirby J

Background

The appellant, RTB, was a sixteen-year-old who babysat for two families in Dubbo. Two sisters, referred to in the judgment as Jennifer (aged eight) and Elizabeth (aged five), made separate allegations of sexual offences against him. The charges included sexual intercourse and acts of indecency with a person under the age of ten years under the Crimes Act 1900.

Separate trials were ordered in respect of each complainant, both conducted by Knight DCJ in the District Court. In the first trial, RTB was convicted on one of three counts relating to Jennifer. In the second trial, he was convicted on both counts relating to Elizabeth.

RTB appealed against conviction in both trials, raising multiple grounds across each.

  • Whether the trial judge erred in admitting the medical history given by the complainant to the examining paediatrician, Dr Geraghty
  • Whether the trial judge was required to direct the jury on the limited use to which that medical history could be put (including whether relevance should have been limited under s 136 of the Evidence Act 1995)
  • Whether the trial judge ought to have directed the jury on the inference available from the Crown's failure to call the complainant's six-year-old sister as a witness
  • Whether the trial judge's comments on certain evidence, and on the directed verdict for count two, constituted error where credibility was the central issue
  • Whether the verdicts were inconsistent
  • Whether leave was properly granted in the second trial for the Crown to cross-examine on, or adduce evidence of, Elizabeth's prior consistent statement to police

Decision

On grounds 2 and 3 (the admission of Dr Geraghty's evidence of the history given by Jennifer), the Court considered whether its earlier decision in R v Welsh required reconsideration by a bench of five. It ultimately found it unnecessary to take that course, addressing the grounds without overruling Welsh.

On the question of judicial comment, the Court examined whether the trial judge's observations about particular evidence, and about the directed verdict on count two, were inappropriate in circumstances where the jury's assessment of the complainant's credibility was central. The Court's analysis proceeded ground by ground through both trials.

In the second trial, the Court found no error in the trial judge granting leave under s 108(3) of the Evidence Act 1995 for the Crown to adduce Elizabeth's prior consistent statement to police. The prior statement had been made close in time to the alleged events and closely mirrored Elizabeth's evidence at trial. The Court also found no procedural unfairness in the manner in which the statement was placed before the jury: the police officer read paragraphs 12 to 84 of the statement after counsel for the appellant expressly consented to that course. The Court held that, having adopted that position at trial, the appellant could not complain on appeal that a different approach should have been followed.

The Court's orders are set out below. The appeal in respect of the first trial was dealt with separately from the second, with the reasoning addressing each ground in sequence.

Orders Made

  • Appeal in respect of the second trial dismissed (paragraph 99)
  • [Orders in respect of the first trial not fully reproduced in the provided text; refer to paragraph 69 of the judgment]

Key Takeaways

  • The Court of Criminal Appeal found no error in the trial judge granting leave under s 108(3) of the Evidence Act 1995 to adduce a complainant's prior consistent statement to police, where the statement was proximate in time to the alleged events and closely consistent with the complainant's trial evidence.
  • Where a party expressly consents to a particular course for adducing evidence at trial, that party is generally precluded from raising a complaint about that course on appeal (Rule 4, Criminal Appeal Rules).
  • Judicial comment during a trial where credibility is the central issue was examined closely, reflecting the Court's concern that such comments may impermissibly influence a jury's assessment of a complainant's evidence.
  • The decision confirmed that questions about limiting the relevance of history given to a medical examiner engage s 136 of the Evidence Act 1995, and that directions to the jury on the use of such evidence may be required in appropriate cases.
  • The Court considered whether the Jones v Dunkel inference was available from the Crown's failure to call a child witness, illustrating that the circumstances of a witness's non-attendance remain relevant to whether such an inference should be the subject of a jury direction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 61O(2)
- Evidence Act 1995 (NSW), ss 108(3), 136
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, Rule 4

Cases
- R v Welsh (1996) 98 A Crim R 364
- R v Dann (CCA, 19 May 2000)
- Jones v Dunkel (1959) 101 CLR 298
- Ghazal v GIO (1992) 29 NSWLR 336
- R v Heuston (1995) 81 A Crim R 387
- Stanoevski v R 177 ALR 285
- R v Esho [2001] NSWCCA 415
- Papakosmas v The Queen (1999) 196 CLR 297