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Court of Criminal Appeal 21 June 2002

REGINA v McNAMARA

[2002] NSWCCA 248

Also reported as (2002) 131 A Crim R 140
Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SEXUAL INTERCOURSE WITHOUT CONSENT RELATIONSHIP EVIDENCE DISTRESS WARNINGS

Citation: Regina v McNamara [2002] NSWCCA 248
Court: NSW Court of Criminal Appeal
Date: 21 June 2002
Judge(s): Spigelman CJ, Simpson J, Blanch AJ

Background

The appellant and the complainant had a long-term domestic relationship and two children together. The complainant gave evidence of a history of serious violence perpetrated by the appellant, including two incidents that had resulted in criminal charges and a period of imprisonment.

The charges before the District Court arose from events in March and April 1999. The complainant alleged she was detained against her will, physically assaulted at a reserve, and then sexually assaulted at the home of the appellant's mother. On 30 May 2000, the jury acquitted the appellant on the detention count but convicted him on counts of assault and sexual intercourse without consent.

The appellant appealed against both convictions, raising questions about the admissibility and treatment of prior conduct evidence, the adequacy of the trial judge's directions on distress evidence, and the absence of a proper single-witness warning.

  • Whether evidence of the appellant's prior convictions, sentences, and documented violent conduct toward the complainant was admissible as relationship evidence
  • Whether the trial judge's directions adequately addressed the limitations of distress evidence as circumstantial proof of sexual assault
  • Whether the trial judge erred by failing to direct the jury to scrutinise the evidence of a single witness with great care

Decision

The Court of Criminal Appeal accepted that evidence of the prior relationship between the parties, including prior violence, can be admissible in cases of alleged non-consensual intercourse. Such evidence provides context for the complainant's account, particularly where the Crown case depends on demonstrating that the complainant's will was overborne by fear arising from a history of abuse. The admission of relationship evidence was therefore not in itself improper.

However, the Court found that the admission of the prior conviction records, agreed facts and sentencing details raised substantial questions about whether a miscarriage of justice had occurred. The way that material was placed before the jury, combined with the directions given about its use, was problematic.

On distress evidence, the Court held that the trial judge was required to warn the jury about the limitations of distress as proof of sexual assault. Given the long and turbulent history between the parties, including disputed apprehended violence order applications and arguments over children and relationships with others, there were multiple potential causes for the complainant's distress that the jury needed to consider carefully. The trial judge did not give that warning, which the Court found was an error.

On the single-witness direction, the Court noted that while the trial judge correctly identified the Crown case as depending essentially on one witness, he failed to follow through with the established direction that such evidence must be "scrutinised with great care." That omission compounded the trial's deficiencies.

Orders Made

  • Appeal allowed
  • Convictions and sentences on both counts quashed
  • New trial ordered

Key Takeaways

  • Relationship evidence, including prior violence between parties, is capable of being admissible in sexual assault trials where it provides context for an allegation that consent was negated by fear, but its admission must be accompanied by appropriate directions on its proper use.
  • Where distress evidence is relied upon as circumstantial proof that a sexual assault occurred, a warning about its limitations is required, particularly where the circumstances disclose multiple possible causes for the complainant's distress.
  • A trial judge who correctly identifies that the Crown case rests on a single witness must also direct the jury that the evidence of that witness requires scrutiny with great care, consistent with the approach confirmed in R v Murray (1987) 11 NSWLR 12.
  • The failure to give both the distress warning and the single-witness scrutiny direction, in a case with a complex relational background, was sufficient to constitute a miscarriage of justice warranting a retrial.
  • Admissibility of prior conviction records and agreed facts tendered before a jury in this context remains a live question requiring careful judicial management.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 60, 61I, 90A
- Evidence Act 1995 (NSW), ss 135, 137

Cases
- R v Fordham, CCA (NSW), unreported, 2 December 1997
- The Queen v Preston, CCA (NSW), unreported, 9 April 1997
- Attwood v The Queen (1960) 102 CLR 353
- Perry v The Queen (1982) 150 CLR 580
- Makin v Attorney-General (NSW) [1894] AC 57
- R v AN (2000) 117 A Crim R 176
- Regina v Ryan, CCA (NSW), unreported, 15 April 1994
- Regina v Talbot, CCA (NSW), unreported, 29 March 1979
- R v Murray (1987) 11 NSWLR 12