Citation: Regina v Channell [2002] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 14 May 2002
Judge(s): Stein JA, Kirby J, Carruthers AJ
Background
The appellant was convicted in the Sydney District Court on one count of indecent assault of a male person, contrary to s 81 of the Crimes Act 1900 (since repealed). The charges arose from alleged conduct occurring approximately twenty years before trial, involving a complainant who had been a child resident at an institution for disadvantaged children. The appellant was said to have taken the complainant and his brother on weekend outings during which he sexually abused the complainant on several occasions.
The indictment contained four counts, covering alleged incidents at different locations. The trial judge directed a verdict of not guilty on the fourth count mid-trial. The jury acquitted the appellant on the first two counts but returned a guilty verdict on the third count, which alleged indecent assault during a visit to Trangie.
During the trial, the complainant volunteered several allegations of additional sexual misconduct that had not been charged by the Crown and had not been opened or led as part of the Crown case. The trial judge gave no direction to the jury about how to treat those uncharged allegations, and neither party requested one.
Legal Issues
- Whether the guilty verdict on the third count was unreasonable given that the jury acquitted on the first and second counts, applying the principles in Jones v The Queen (1997) 191 CLR 439
- Whether the trial judge erred in failing to direct the jury on how the outcome on one count should inform its assessment of the complainant's credibility on other counts
- Whether the trial judge erred in failing to direct the jury on how to treat evidence of uncharged sexual misconduct volunteered by the complainant
Decision
The Court upheld the first ground of appeal, finding this was a classic Jones v The Queen situation. The quality of the complainant's evidence on the third count was no higher than his evidence on the first and second counts. Once the jury found that evidence on those earlier counts lacked sufficient cogency to convict, the Crown's case on the third count was fundamentally undermined. The Court held it was not open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt on the third count.
On the third ground, the Court found the trial judge erred in giving no direction whatsoever about the uncharged sexual misconduct volunteered by the complainant. Such directions are required in circumstances of this kind, as confirmed by earlier decisions of the Court of Criminal Appeal. The Court noted that the jury may have impermissibly used that material as tendency or coincidence evidence under the Evidence Act 1995, which would have created a manifest injustice.
The Court observed that the difficulties of trying historical sexual offences, where significant delay separates the alleged conduct from the trial, had recently been addressed in R v BWT [2002] NSWCCA 60. That decision set out detailed principles drawn from High Court authority concerning the adequacy of directions in such cases.
Leave to appeal was granted. The upholding of the first ground was itself sufficient to warrant entry of a verdict of acquittal on the third count. The Court noted, for completeness, that the sentence imposed for this conviction had already been served concurrently with other sentences the appellant was then serving.
Orders Made
- Leave to appeal granted
- Appeal against conviction upheld
- Conviction on the third count quashed
- Verdict of acquittal entered on the third count
Key Takeaways
- A guilty verdict on one count cannot stand where the complainant's evidence on that count is of no higher quality than the evidence on counts on which the jury acquitted, as the acquittals necessarily undermine the complainant's credibility across the remaining counts.
- Jones v The Queen (1997) 191 CLR 439 requires careful scrutiny of jury verdicts for internal consistency, particularly in cases that turn substantially on the word of a complainant against the word of an accused.
- Where a complainant volunteers allegations of uncharged sexual misconduct at trial, the trial judge is obliged to direct the jury on how to treat that material, even if neither party requests such a direction.
- Failure to give appropriate jury directions on uncharged misconduct carries the risk that the jury will impermissibly use that evidence as tendency or coincidence evidence, potentially constituting a manifest injustice.
- Longstanding principles concerning directions in historical sexual offence trials, as distilled in R v BWT [2002] NSWCCA 60 from Longman, Bramton, and Doggett, remain applicable where significant delay separates the alleged offending from the trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 81 (since repealed)
- Evidence Act 1995 (NSW), Pt 3.6
Cases
- Jones v The Queen (1997) 191 CLR 439
- Longman v The Queen (1989) 168 CLR 79
- Bramton v The Queen (2000) 176 ALR 369
- Doggett v The Queen (2001) 182 ALR 1
- R v BWT [2002] NSWCCA 60
- R v Markuleski [2001] NSWCCA 290
- R v Beserick (1993) 30 NSWLR 510
- R v AH (1997) 42 NSWLR 702
- R v Greenham [1999] NSWCCA 8
- R v ARD [2000] NSWCCA 443
- R v Robinson [2000] NSWCCA 59