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Court of Criminal Appeal 24 July 2002

R v JJN

[2002] NSWCCA 281

Sexual offences

Citation: JJN v R [2002] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 24 July 2002
Judges: Mason P, Hulme J, Simpson J

Background

The appellant was convicted in the District Court on four counts of indecent assault and four counts of sexual intercourse with his niece, who was aged 10 at the time of the alleged offences. The offences were said to have occurred between August 1998 and January 1999.

For the first six counts, the complainant's evidence stood alone. For the final two counts, additional evidence came through the complainant's mother, who recounted statements made to her by a man named George Christou. Christou had reportedly observed the complainant and the appellant in bed together on 13 January 1999 and had spoken to the appellant. By the time of trial, Christou was deceased, making his account unavailable for direct testing.

The appellant was sentenced to a total non-parole period of six years. He appealed against both his convictions and his sentence, raising two grounds: that the trial judge's hearsay warning was inadequate, and that the direction concerning the complainant's alleged motive to lie was insufficient.

  • Whether the trial judge's warning about the hearsay evidence of Christou's observations complied with section 165(2) of the Evidence Act 1995, which requires a judge to warn the jury that the evidence may be unreliable, to inform the jury of the matters that may cause it to be unreliable, and to warn of the need for caution in accepting it and determining its weight.
  • Whether the framing of the warning diluted its effect by repeatedly emphasising that the direction was given as a legal obligation rather than from any personal concern about the evidence's reliability.
  • Whether the trial judge's direction on the complainant's alleged motive to fabricate was adequate.
  • Whether, if either ground succeeded, the proviso under section 6 of the Criminal Appeal Act 1912 applied to avoid a substantial miscarriage of justice.

Decision

Ground 1: Inadequate hearsay warning

Hulme J, with whom Mason P and Simpson J agreed, held that the trial judge had failed to comply with section 165(2)(b) of the Evidence Act 1995. While his Honour had warned the jury that the evidence may be unreliable and had directed caution, he had not adequately informed the jury of the matters that might actually cause the evidence to be unreliable. The only specific reason his Honour identified was that Christou could not be cross-examined because he was deceased. That fact, Hulme J observed, goes to the ability to detect unreliability, not to its causes.

The true sources of potential unreliability in the hearsay chain included any imperfections in Christou's honesty, his perception of what he saw, and his accuracy in recounting it, as well as the same range of frailties in the complainant's mother's receipt and recounting of the account. The trial judge said nothing about any of these matters.

Hulme J also found that the warning was further undermined by the judge repeatedly stating, three times in effect, that the direction was given only because the law required it and not because of any personal view about the evidence's reliability. The explanation occupied more words than the warning itself. Taken together, the deficiencies and the diluting language meant the warning fell short of what section 165(2) required.

Ground 2: Direction on motive to lie

The second ground, concerning the direction on the complainant's alleged motive to fabricate, was rejected. The Crown had made submissions during address which were arguably inappropriate, but the trial judge had not endorsed them. Hulme J considered it inevitable that a jury would weigh the question of motive regardless, and noted that no request for a re-direction had been made. In these circumstances, no miscarriage of justice was established on this ground.

The Proviso

The Court declined to apply the proviso under section 6 of the Criminal Appeal Act 1912, which would have allowed it to dismiss the appeal despite the identified error on the basis that no substantial miscarriage of justice had occurred. Christou's observations were the only corroboration identified by the trial judge, and although there was arguably other potentially corroborative evidence, the Christou hearsay had been presented as important to the Crown's case across all eight counts, not just the final two. A retrial was ordered.

Orders Made

  • Appeal allowed.
  • All convictions quashed.
  • Appellant to be retried.

Key Takeaways

  • Under section 165(2) of the Evidence Act 1995, a hearsay warning must do more than tell the jury the evidence may be unreliable and to exercise caution. It must specifically identify the matters capable of causing the unreliability, such as deficiencies in the original declarant's perception, honesty, and accuracy, as well as corresponding frailties in the testifying witness.
  • The inability to cross-examine a deceased declarant bears on the capacity to detect unreliability, but the Court of Criminal Appeal confirmed it does not itself identify the causes of unreliability as section 165(2)(b) requires.
  • A judge's repeated emphasis that a statutory warning is given only because the law demands it, and not from any personal doubt about the evidence, can dilute the practical effect of the warning, particularly where the explanation occupies more words than the warning itself.
  • Insufficient directions on a hearsay warning will not automatically be cured by the proviso under section 6 of the Criminal Appeal Act 1912 where the evidence in question was important corroboration relied upon across the trial as a whole.
  • No direction on a complainant's alleged motive to fabricate was required beyond what was given, at least where the Crown submissions were not endorsed by the trial judge, where no re-direction was requested, and where the jury would inevitably consider the question.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), s 6 (the proviso)

Cases
- Palmer v R (1998) 193 CLR 1
- R v Chant (unreported, CCA NSW, 12 June 1998)
- R v E (1996) 39 NSWLR 450
- R v F (1995) 83 A Crim R 502
- R v Jovanovic (1997) 42 NSWLR 520
- R v Smith [2000] NSWCCA 468
- R v Stewart (2001) 52 NSWLR 301
- R v Uhrig (unreported, CCA, 24 October 1996)