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Court of Criminal Appeal 2 September 2005

Grattan v R

[2005] NSWCCA 306

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION UNCHARGED ACTS NOT COMPLAINED OF PRE INCORRECT DIRECTIONS TO JURY MISCARRIAGE OF JUSTICE

Citation: Grattan v R [2005] NSWCCA 306
Court: New South Wales Court of Criminal Appeal
Date: 2 September 2005
Judge(s): McClellan AJA, Simpson J, Rothman J

Background

The appellant was convicted by a jury in the Sydney District Court of ten counts of sexual assault and acts of indecency against a male complainant who was his nephew by marriage. The offending spanned approximately eight years, from 1993 to 2001, and occurred when the complainant was between approximately 10 and 18 years of age. The appellant and the complainant had a close relationship, with the complainant regularly staying overnight at the home of the appellant's relative in Bexley.

The Crown's case rested primarily on the complainant's evidence, supported by corroborating witnesses. The prosecution also relied on evidence of uncharged sexual acts alleged to have occurred in Queensland, two pretext telephone calls, and three email exchanges between the appellant and the complainant. The jury returned guilty verdicts on all but one of the charges, finding the appellant not guilty on Count 1 but guilty of the statutory alternative under the Crimes Act 1900. The trial judge sentenced the appellant to a total term of 11 years' imprisonment with a non-parole period of 8 years and 3 months.

On appeal, the appellant challenged the conduct of the trial on multiple grounds, contending that certain evidence was wrongly admitted, that jury directions were inadequate or incorrect, and that the verdicts were unreasonable having regard to inconsistencies in the evidence.

  • Whether the trial judge erred in admitting evidence of the complainant's distressed condition
  • Whether evidence of uncharged sexual acts (alleged to have occurred in Queensland) was properly admitted and whether appropriate directions were given in relation to it
  • Whether the pretext telephone conversations and email messages were properly admitted
  • Whether the jury directions given at trial were correct and sufficient
  • Whether the verdicts were unreasonable or against the evidence, including in light of forensic evidence relating to DNA and the complainant's semen found on tissues

Decision

The Court of Criminal Appeal dismissed the appeal on all grounds, with Simpson J and Rothman J agreeing with the reasons of McClellan AJA.

On the question of the complainant's distress evidence, the Court found no error in the trial judge's decision to admit it. The evidence of uncharged acts was considered to have been properly received as context for the charged offences, rendering those circumstances more intelligible to the jury. The Court was satisfied that appropriate directions had been given to the jury regarding the limited use of that material.

In relation to the pretext calls and emails, the Court accepted that these communications were properly tendered as evidence of the intimate nature of the relationship between the appellant and the complainant, which was relevant to the Crown case. The Court found no material error in the jury directions that would justify disturbing the verdicts.

The Court also rejected the submission that forensic evidence undermined the complainant's credibility. The presence of the complainant's semen on tissues found with a lubricant bottle, without any DNA from the appellant, did not compel the conclusion that the complainant's account was false. The complainant had stated on multiple occasions that he could not recall how those tissues came to be in the bag. The Court held that the Crown case was strong overall, and that no basis existed for appellate intervention.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that evidence of a complainant's distressed condition can be admissible where it is relevant to and corroborates the account of the charged offences.
  • Evidence of uncharged sexual acts may be admissible at trial where the Crown establishes that it provides context for, or renders more intelligible the circumstances of, the charged offences, provided appropriate limiting directions are given to the jury.
  • Pretext telephone calls and email communications between an accused and a complainant are capable of being tendered as evidence of the nature of their relationship where that relationship is a material issue in the proceedings.
  • Unexplained forensic evidence does not automatically render a complainant's account of events incredible; the absence of an accused's DNA on an item does not mean the complainant's broader evidence must be rejected.
  • A strong Crown case, evaluated across the whole of the evidence, will ordinarily withstand an appeal based on inconsistencies in the complainant's evidence where the jury, properly directed, has had the opportunity to assess credibility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C (sexual intercourse with a child aged between 10 and 16 years, as a statutory alternative verdict)

Cases:
No specific cases were cited in the portions of the judgment provided.