Citation: Regina v WJW [2004] NSWCCA 360
Court: New South Wales Court of Criminal Appeal
Date: 8 November 2004
Judge(s): James J (principal judgment), Adams J, Bell J (agreeing)
Background
The appellant was convicted in the District Court by jury on four counts arising from offences committed against his natural son, referred to throughout as "the complainant," who was eight years old at the time of the alleged offences and ten at trial. The counts included committing an act of indecency toward a child under ten, indecent assault, common assault, and sexual intercourse with a child under ten. The jury acquitted the appellant on two further counts of sexual intercourse with a child under ten.
The complainant and the appellant had lived apart since the complainant was five months old, following the separation of his parents. The complainant lived with his mother, and the appellant had access arrangements that were subject to ongoing disputes.
The complainant disclosed the alleged offences progressively across four separate police interviews conducted between July and November 2001. Those interviews were audio-recorded but not video-recorded, a circumstance that became relevant at trial. The complainant gave evidence at trial via closed-circuit television rather than in the courtroom.
Legal Issues
- Whether the jury's verdicts were unreasonable or unsupported by the evidence, having regard to the progressive and incremental nature of the complainant's disclosures
- Whether the verdicts were inconsistent with the jury's acquittals on the two remaining counts of sexual intercourse
Decision
On the first ground, James J examined the complainant's evidence in detail, noting that the disclosures emerged across four police interviews and that the complainant offered explanations for the delay in making each successive disclosure, including fear of the appellant and embarrassment. The Court found these explanations were available to the jury as reasonable and credible accounts of why a child victim might not disclose the full extent of alleged abuse immediately or at once.
The Court also considered evidence from the defence, including testimony from the appellant's mother and an expert witness (Mr Knoerles) who suggested that the language used by the complainant mirrored that of his mother, raising a question of coaching. James J identified significant bases on which the jury could have discounted or rejected each of those witnesses. The appellant's mother's evidence about the complainant's access visits was potentially contradicted by diary entries, and Mr Knoerles' notes revealed no record of the careful comparison he claimed to have made.
On the second ground, the Court held that the verdicts were not inconsistent. The acquittals on counts four and five and the conviction on count six all related to separate alleged incidents, and the jury was entitled to assess them individually. The Court found it was open to the jury to be satisfied beyond reasonable doubt on count six while having a reasonable doubt about the other two.
The appeal against conviction was unanimously dismissed. The application for leave to appeal against sentence was not pressed by the appellant and was therefore not determined.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- Progressive disclosure by a child complainant across multiple police interviews does not, of itself, render a jury's verdict unreasonable, where the complainant provides plausible explanations for the incremental nature of the disclosures.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury is entitled to reject defence witness evidence where credibility concerns are apparent from the record, including internal inconsistencies between oral testimony and contemporaneous notes.
- Mixed verdicts, including acquittals and convictions on related but distinct counts, are not necessarily inconsistent; a jury may properly distinguish between separate incidents and apply different assessments of proof to each.
- Sufficient evidence existed on each convicted count for the jury to be satisfied beyond reasonable doubt, notwithstanding the absence of video recording of the complainant's police interviews.
- Where an applicant does not press an application for leave to appeal against sentence at the hearing, the Court will take no further steps in respect of that application.
Legislation and Cases Referenced
Cases Cited:
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- R v Carbone [2000] NSWCCA 387
- R v Courtney-Smith (1990) 48 A Crim R 49
Legislation: No specific legislation was identified in the provided text, though the charges arose under New South Wales criminal law provisions relating to sexual and indecency offences against children.