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17
Court of Criminal Appeal 10 September 2002

R v DBG

[2002] NSWCCA 328

Also reported as (2002) 133 A Crim R 227
Sexual offences
CRIMINAL LAW SEXUAL OFFENCES DELAY IN COMPLAINT VERDICTS UNSAFE.

Citation: DBG v R [2002] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 10 September 2002
Judge(s): Meagher JA, Simpson J, Howie J (Howie J delivered the primary judgment; Meagher JA and Simpson J agreed)

Background

The appellant was convicted in the District Court on two counts of sexual intercourse with a child. The first count related to an alleged incident in 1996, when the complainant was under six years of age and living with her mother and the appellant at Wyong. The second count concerned an alleged incident in September 2000 at Shoalhaven Heads, when the complainant was ten years old and staying with her grandmother, the appellant having separated from the complainant's mother by that time.

The complainant also gave evidence of numerous uncharged sexual assaults occurring between the two incidents that formed the subject of the counts, across multiple locations. The Crown relied on this relationship evidence to provide context for the charged offences rather than as proof of separate crimes. Medical evidence from a paediatrician supported a finding of repeated penetrative injury over an extended period.

The appellant denied all allegations and was sentenced to eight years imprisonment on the first count and six years on the second. He appealed both convictions and sentences.

  • Whether the trial judge gave adequate directions and warnings to the jury about the complainant's evidence, including the general obligation to warn of the dangers of convicting on the uncorroborated evidence of a child complainant
  • Whether the trial judge gave adequate directions about delay in complaint, particularly the complete absence of complaint regarding the first count and the delayed complaint regarding the second
  • Whether the trial judge adequately directed the jury on the permissible use of the post-second-count complaint evidence, including its effect on the complainant's credibility and the appellant's defence across both counts
  • Whether the verdicts were unsafe because the charges lacked sufficient particularity to distinguish the charged offences from the numerous uncharged allegations relied on as relationship evidence

Decision

Howie J, with whom the other judges agreed, found that the trial judge's directions on delay in complaint were inadequate. The absence of any complaint in relation to the first count, and the delayed nature of the complaint in relation to the second, required a clear and careful warning to the jury. The failure to give such a warning in adequate terms meant the jury was not properly directed on a matter that was central to assessing the complainant's credibility and the reliability of her evidence.

The Court also found error in the directions concerning the complaint evidence that emerged after the second alleged offence, including how it could and could not be used by the jury. The complaint evidence was capable of affecting the jury's assessment of both counts, and the jury required clear guidance on its proper use. The directions given did not achieve this.

On the particularity ground, Howie J was not persuaded that the convictions were unsafe for want of specificity. The complainant had described the two charged incidents as the first and last occasions of intercourse, which provided a workable basis for identifying each count distinctly. No application for further particulars had been made before or during the trial, and no actual embarrassment in mounting a defence was demonstrated.

Because of the errors in the directions on delay and the use of complaint evidence, the Court concluded that the verdicts were unsafe and a miscarriage of justice had occurred. The convictions and sentences were quashed.

Orders Made

  • Appeal allowed
  • Convictions and sentences quashed
  • New trial ordered

Key Takeaways

  • Where a child complainant has made no complaint at all about one charged incident, and a delayed complaint about another, the trial judge must give the jury careful and explicit warnings about the significance of that delay and absence of complaint to the reliability of the evidence.
  • Directions on complaint evidence must clearly identify the purposes for which the jury may and may not use that material, particularly where the evidence is capable of affecting the jury's assessment of multiple counts.
  • In dismissing the particularity ground, the Court of Criminal Appeal confirmed that characterising a charged incident as the "first" or "last" in a series can provide sufficient particularity, at least where no application for further particulars was made and no actual prejudice to the conduct of the defence was shown.
  • Failure to object to the form of an indictment or seek further particulars before or during trial weighs against a later appellate challenge on particularity grounds, though it does not automatically foreclose such a ground entirely.
  • A combination of inadequate directions, without any single direction being necessarily fatal on its own, can collectively render convictions unsafe and warrant a new trial.

Legislation and Cases Referenced

Legislation:
- Evidence (Children) Act 1997 (NSW), ss 11, 14, 18, 25
- Evidence Act 1995 (NSW), ss 60, 66(2), 102, 108(3)
- Criminal Procedure Act 1986 (NSW), s 107
- Criminal Appeal Rules, r 4

Cases:
- Longman v The Queen (1989) 168 CLR 79
- R v SJF [2000] NSWCCA 294
- R v Johnston (1998) 45 NSWLR 362
- Doggett v The Queen (2000) 75 ALJR 1290
- R v BWT [2002] NSWCCA 60
- Graham v The Queen (1998) 195 CLR 606
- Pfennig v The Queen (1995) 182 CLR 461
- Papakosmas v The Queen (1999) 196 CLR 267
- R v Lillyman [1896] 2 QB 167
- Kilby v The Queen (1973) 129 CLR 460
- S v The Queen (1989) 168 CLR 266
- R v Baker; ex parte AG (Qld) [2002] 1 Qd R 274