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Court of Criminal Appeal 7 November 2005

MDB v R

[2005] NSWCCA 354

Sexual offences
AGGRAVATED INDECENT ASSAULT APPEAL AGAINST CONVICTION ADMISSIBILITY OF EVIDENCE EVIDENCE ACT CREDIBILITY RULE CIRCUMSTANCES LEADING TO STATEMENT DIRECTIONS ON COMPLAINT AND DELAY

Citation: MDB v R [2005] NSWCCA 354
Court: NSW Court of Criminal Appeal
Date: 7 November 2005
Judge(s): Simpson J (with Adams J and Johnson J agreeing)

Background

The appellant was convicted in the District Court of one count of aggravated indecent assault under s 61M(1) of the Crimes Act 1900, following a jury trial. The offending was alleged to have occurred in March 2001, during a camping trip, when the appellant allegedly fondled the penis of an eleven-year-old boy. The complainant did not disclose the conduct at the time.

Six months later, in September 2001, the complainant told two school friends and then his mother about the alleged assault. The timing was connected to plans for another camping trip with the appellant's family, which the complainant was reluctant to attend. The appellant denied the allegations and gave detailed evidence of the evening in question, supported by his son's evidence.

The appellant was sentenced to two years and three months imprisonment with a non-parole period of one year and three months. He appealed against conviction only.

  • Whether the trial judge erred in admitting evidence of the complainant's complaints to his two school friends and his mother in September 2001, as prior consistent statements under s 108(3)(b) of the Evidence Act 1995
  • Whether the trial judge gave inadequate or erroneous directions to the jury on complaint and delay

Decision

Ground 1: Admissibility of prior consistent statement evidence

The credibility rule in s 102 of the Evidence Act 1995 generally excludes evidence relevant only to a witness's credibility. However, s 108(3)(b) creates an exception where it is suggested (expressly or by implication) that the witness's evidence has been fabricated, reconstructed, or is the result of suggestion. The trial judge admitted the complaint evidence under this exception, limiting its use under s 136 to the question of the complainant's credibility.

The Court found the trial judge's reasoning was sound. The defence case, through cross-examination and its own evidence, clearly implied that the complainant had fabricated the account or that it was the product of suggestion. In those circumstances, the prior consistent statements were properly admitted with leave under s 108(3)(b). The timing of the complaint and the circumstances that prompted it, including the upcoming camping trip, were relevant to the jury's assessment of whether the exception applied, and the trial judge correctly considered those circumstances.

Ground 2: Directions on complaint and delay

The Court accepted that the direction on delay was somewhat cursory. However, it found no miscarriage of justice resulted. The complainant's delay was only six months, not the kind of lengthy delay that demands a Longman warning. The appellant was himself able to give detailed evidence of the relevant events and called his son to corroborate it, meaning the delay had not materially prejudiced the defence's ability to respond to the allegations. The trial judge's directions, while capable of being more expansive, did not render the trial unfair.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Under s 108(3)(b) of the Evidence Act 1995, prior consistent statements become admissible (with leave) where the defence, through cross-examination or its own evidence, expressly or implicitly suggests fabrication, reconstruction, or suggestion, even without an explicit allegation.
  • The circumstances surrounding a complaint, including what prompted the disclosure, form part of the factual matrix relevant to whether the s 108(3)(b) exception is engaged and to the weight the jury may attach to the prior consistent statement.
  • A court may limit the use of admitted prior consistent statement evidence under s 136 to the issue of credibility, with appropriate jury directions reflecting that limitation.
  • A Longman warning addresses the fairness risk created by prolonged delay in prosecutions; where delay is only six months and the accused retains a full capacity to give evidence and call witnesses, such a warning is not necessarily required.
  • In dismissing the appeal, the Court confirmed that a direction on delay may be criticised as superficial without that criticism alone establishing a miscarriage of justice, provided the overall trial remained fair.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(1)
- Criminal Procedure Act 1986 (NSW), s 294B
- Evidence Act 1995 (NSW), ss 66, 102, 108(3)(b), 136, 192

Cases
- Crampton v The Queen [2000] HCA 60; 206 CLR 161
- Doggett v The Queen [2001] HCA 46; 208 CLR 343
- Graham v The Queen [1998] HCA 61; 195 CLR 606
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- R v DBG [2002] NSW 328; 133 A Crim R 227
- R v Esho [2001] NSWCCA 415
- R v Folli [2001] NSWCCA 531
- R v KJ [2005] VSCA 153
- R v Reardon, Michaels and Taylor [2002] NSWCCA 203
- R v Stevens [2001] NSWCCA 330
- Stanoevski v The Queen [2001] HCA 4; 202 CLR 115