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Court of Criminal Appeal 5 April 2005

R v AMN

[2005] NSWCCA 124

Sexual offencesAssault & violence

Citation: R v AMN [2005] NSWCCA 124
Court: New South Wales Court of Criminal Appeal
Date: 5 April 2005
Judge(s): Spigelman CJ, Studdert J, Howie J

Background

The appellant was convicted in the District Court on one count of assault with an act of indecency on a child under ten years of age, contrary to section 61M(2) of the Crimes Act. The complainant was his stepdaughter, who was eight years old at the time of the offending in August 2001. The appellant had stood trial on five similar counts relating to conduct at the same premises; the jury acquitted him on four counts and convicted him on the fifth.

The complainant did not disclose the conduct until July 2002, approximately eleven months after the offending. Her evidence in chief was given by way of a videotaped police interview, as permitted under the Evidence (Children) Act 1997. The appellant gave evidence denying the allegations and offered an innocent explanation for entering the complainant's room at night, namely assisting her with a bedwetting problem.

The appeal was confined to conviction only. No challenge was made to the sentence, which had already been served.

  • Whether the trial judge adequately directed the jury on delayed complaint and its significance
  • Whether the jury's acquittal on four counts was inconsistent with its conviction on the fifth count
  • Whether the trial judge adequately directed the jury on how to assess the complainant's credibility and the difficulties in testing her evidence
  • Whether the trial judge erred in various evidentiary rulings, including admitting evidence of the appellant masturbating and watching pornographic videos
  • Whether the trial judge's summing up was adequate across a range of additional grounds

Decision

Studdert J, with Spigelman CJ and Howie J agreeing, dismissed all thirteen grounds of appeal. On the delayed complaint grounds, the Court found that the trial judge had given adequate directions. The judge had told the jury that delay does not necessarily indicate fabrication, had identified reasons that might explain the delay, and had carefully outlined the specific disadvantages the delay caused the appellant in mounting his defence.

On the inconsistent verdicts ground, the Court applied the principles from M v The Queen (1994) 181 CLR 487. The acquittals on the first four counts and the conviction on the fifth were not necessarily inconsistent, as the jury was entitled to treat each count separately and to find that the evidence differed as between counts. The different sleeping arrangements at the Kurnell property, where the offending on count five was alleged to have occurred, provided a rational basis for the jury's differentiated verdicts.

On the evidentiary grounds, the Court found no error. Evidence of the appellant masturbating was relevant because the complainant had described hearing a clicking noise during the offending, corroborated by the mother's evidence about the same sound. Evidence of pornographic videos was relevant because the complainant had seen such a video immediately after the first alleged offence, and the defence itself used that material to suggest the complainant had been exposed to sexual content at home.

A number of grounds were also refused under Rule 4 of the Criminal Appeal Rules because no objection had been taken at trial to the matters now complained of. The Court found no miscarriage of justice arising from those issues.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A jury is entitled to return acquittals on some counts and a conviction on another arising from the same course of alleged conduct, provided there is a rational basis for differentiating between them, such as different physical circumstances surrounding each incident.
  • Under the principles in M v The Queen, an appellate court will not set aside a conviction on the basis of inconsistent verdicts unless no reasonable jury could have arrived at the combination of verdicts returned.
  • Delayed complaint directions must both acknowledge that delay does not necessarily indicate fabrication and identify the specific disadvantages the accused faced in defending charges raised long after the alleged events.
  • Where no trial objection is taken to evidence or directions, Rule 4 of the Criminal Appeal Rules applies and leave is required to raise those matters on appeal; the Court will refuse leave where no substantial miscarriage of justice is demonstrated.
  • Evidence of a defendant's sexual behaviour in proximity to an alleged offence may be admissible where it is relevant to corroborate or contextualise the complainant's account of surrounding circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 61M(2)
- Evidence (Children) Act 1997 (NSW), s 9
- Criminal Appeal Rules, Rule 4

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Papakosmos v The Queen (1999) 196 CLR 297