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9
Court of Criminal Appeal 20 July 2006

KNP v Regina

[2006] NSWCCA 213

Also reported as (2006) 67 NSWLR 227
Sexual offences
CRIMINAL LAW EVIDENCE ACT SEXUAL ASSAULT APPEAL AGAINST CONVICTION INDECENT ASSAULT HOMOSEXUAL INTERCOURSE

Citation: KNP v Regina [2006] NSWCCA 213
Court: New South Wales Court of Criminal Appeal
Date: 20 July 2006
Judge(s): McClellan CJ at CL; James J; Hall J

Background

The appellant was convicted in the District Court on nine counts of sexual offending against his brother's stepson, committed between 1984 and 1990 when the complainant was aged between nine and fifteen. The offences spanned five separate occasions across various locations in New South Wales and included indecent assault, homosexual intercourse, and acts of gross indecency. The appellant was sentenced to a total non-parole period of four years and six months, with a balance of sentence of two years and six months.

The Crown's case rested entirely on the complainant's own evidence. In addition, the trial judge permitted the Crown to call a witness, PS, who gave evidence that the complainant had told him about the abuse, describing the appellant as having sexually molested him. The admissibility of this complaint evidence, the conduct of the Crown Prosecutor during closing address, and the adequacy of the trial judge's warnings to the jury about the complainant's evidence were all contested on appeal.

  • Whether the trial judge erred in admitting the complaint evidence given by PS as a prior consistent statement under s 108(3)(a) of the Evidence Act 1995 (NSW), in circumstances where the prior inconsistency relied upon was conduct (travelling alone with the appellant to Copeton Dam in 1991) rather than a verbal statement
  • Whether comments made by the Crown Prosecutor in closing address were so inappropriate as to have caused a miscarriage of justice, including comments that sought to limit the effect of the judge's warnings, invited the jury to speculate without evidentiary foundation, and expressed personal opinion
  • Whether the trial judge's directions on the statutory warnings regarding delay and lack of corroboration were framed in a way that diminished their force and thereby caused a miscarriage of justice

Decision

Ground 1: Admissibility of complaint evidence

The trial judge initially refused to admit PS's evidence as a prior consistent statement under s 108(3)(a). After the complainant gave evidence that he had travelled alone in the appellant's car to Copeton Dam in October 1991, and was cross-examined on that conduct as being inconsistent with his claimed attempts to avoid the appellant, the trial judge revisited the question and admitted the complaint evidence. The Court of Criminal Appeal upheld this ruling, accepting that an inconsistency for the purposes of s 108(3)(a) can be inferred from conduct, not only from prior verbal statements. The admission of the complaint evidence to rehabilitate the complainant's credit following the cross-examination on his conduct was therefore within the trial judge's discretion.

Ground 2: Crown Prosecutor's closing address

The Court found that several aspects of the Crown Prosecutor's address were inappropriate. These included comments that sought to narrow the practical effect of the trial judge's statutory warnings, invitations for the jury to speculate in the absence of supporting evidence, and expressions of personal opinion. The Court recognised these as failures to present the Crown case with the impartiality and fairness the role requires. However, the Court held that, when considered alongside the defence counsel's own closing address and the trial judge's summing up, the impugned comments did not produce a miscarriage of justice. The jury had received adequate directions from the trial judge that corrected for any prejudicial effect.

Ground 3: Adequacy of delay and corroboration warnings

The appellant argued that the trial judge's habit of prefacing statutory warnings with words to the effect that he was required by law to give them had the practical effect of diminishing those warnings. The Court declined to accept this submission. It held that such introductory language, commonly used by trial judges and reflected in the Supreme Court Bench Book, was likely to underscore rather than undermine the significance of the direction. Whether any introductory framing truly undermines a warning will depend on the full context of the summing up, including the judge's tone and demeanour. No complaint had been made by trial counsel, and the Court declined leave to raise this ground.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Under s 108(3)(a) of the Evidence Act 1995 (NSW), a prior inconsistency capable of justifying the admission of a prior consistent statement may be established by conduct, not only by prior contradictory verbal assertions.
  • Complaint evidence found to be inadmissible at one point during a trial may become admissible later if subsequent evidence creates an inconsistency to which the complaint can respond.
  • Several forms of prosecutorial misconduct in closing address were identified, including limiting the practical effect of judicial warnings, inviting speculation without evidence, and expressing personal opinion. These remain impermissible, though whether they cause a miscarriage of justice depends on the totality of the trial, including defence submissions and the trial judge's directions.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that prefatory language indicating a statutory obligation to give a particular warning does not, without more, diminish the force of that warning. Context, tone, and the whole of the summing up govern that assessment.
  • No error was established in the trial judge's directions on delay and lack of corroboration sufficient to ground appellate intervention, particularly where defence counsel had not objected at trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 108(3)(a) and (b)
- Criminal Procedure Act 1986 (NSW)

Cases
- Graham v The Queen (1998) 195 CLR 606
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Ali [2000] NSWCCA 177
- R v Joseph Attallah [2005] NSWCCA 277
- R v Liristis (2004) 146 A Crim R 547
- R v McCullough (1982) 6 A Crim R 274
- R v MM (2004) 145 A Crim R 148
- R v Roddom [2001] NSWCCA 168
- R v Rugari (2001) 122 A Crim R 1
- R v Selsby [2004] NSWCCA 381
- R v WSP [2005] NSWCCA 427
- Stewart 52 NSWLR 301