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Court of Criminal Appeal 29 November 2006

RELC v REGINA

[2006] NSWCCA 383

Also reported as (2006) 167 A Crim R 484
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION ACT OF INDECENCY SEXUAL INTERCOURSE CHILD UNDER TEN YEARS MISCARRIAGE OF JUSTICE

Citation: RELC v REGINA [2006] NSWCCA 383
Court: NSW Court of Criminal Appeal
Date: 29 November 2006
Judge(s): McClellan CJ at CL; Adams J; Howie J

Background

The appellant was convicted in the District Court on three counts arising from an alleged sexual assault of a seven-year-old girl during a sleepover at his home in July 2004. The complainant alleged the appellant incited her to touch his penis, and subsequently digitally and penally penetrated her. The appellant denied the conduct.

Two child witnesses were central to the trial. The complainant gave her evidence-in-chief by pre-recorded video interview, and was cross-examined by CCTV link. The appellant's daughter, LC, gave contradictory accounts: an exculpatory first police interview, an inculpatory second interview, and then evidence at trial supporting her father and explaining her second interview as having been obtained through pressure from the complainant.

The appellant challenged his convictions on several grounds, including errors in how the jury was directed about the reliability of the two children's evidence.

  • Whether the trial judge erred by giving the jury an unreliability warning under section 165 of the Evidence Act 1995 in relation to LC's evidence, when no equivalent warning was given about the complainant's evidence
  • Whether age alone, or the circumstances of LC's evidence, justified a section 165 warning
  • Whether the asymmetric warnings caused a miscarriage of justice
  • Whether there were additional errors in the handling of the video recordings and transcripts, and in the conduct of cross-examination

Decision

McClellan CJ at CL (with whom Adams J and Howie J agreed) held that the trial judge erred in giving an unreliability warning about LC's evidence. Section 165 of the Evidence Act applies to categories of evidence that are, by their nature, prone to unreliability. The features of LC's evidence identified by the trial judge, including her age, her inconsistent accounts, her admitted lies to police, and her evidence under cross-examination, were matters that could lead a jury to doubt her evidence, but they did not bring her evidence within the kind or type of evidence section 165 is designed to address.

The Court accepted that if a section 165 warning was appropriate for one child witness, consistency required that the same warning be given about the other child witness of similar age. No such warning was given about the complainant. The resulting asymmetry placed an additional judicial imprimatur of suspicion on the only evidence that favoured the appellant.

LC's evidence was pivotal: if the jury rejected it, the likelihood of accepting the complainant's account became overwhelming. The Court was satisfied that the unbalanced directions deprived the appellant of a real chance of acquittal, constituting a miscarriage of justice. A new trial was ordered. Given that outcome, the Court did not need to address the sentence appeal.

Orders Made

  • The appeal is allowed.
  • The convictions and sentences are quashed.
  • A new trial is ordered.

Key Takeaways

  • Section 165 of the Evidence Act 1995 does not authorise a judicial warning about a child's evidence merely because that child gave inconsistent accounts, admitted lying, or faced credibility challenges in cross-examination. Those matters go to the jury's general assessment of credibility, not to a recognised category of unreliable evidence under the section.
  • Age alone does not trigger a section 165 unreliability warning for a child witness. The Court of Criminal Appeal confirmed that nothing in these children's evidence, by reason of their age, justified such a warning.
  • Where two witnesses of similar age give competing accounts and a section 165 warning is considered appropriate, consistency requires that any warning apply equally to both. Giving such a warning about one child but not the other risks creating an uneven judicial endorsement of suspicion.
  • A miscarriage of justice can result from misdirections about witness reliability where those directions materially diminish a witness whose evidence was central to the defence. The imbalance here was held to have denied the appellant a real chance of acquittal.
  • Under the Evidence (Children) Act 1997 framework, recordings and CCTV evidence of child witnesses carry procedural requirements. The proper handling of such materials in the jury room was also raised in this appeal, reflecting the broader obligations on trial courts when admitting this form of evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), particularly section 165
- Evidence (Children) Act 1997 (NSW)
- Evidence Legislation Amendment Act 2001 (NSW)

Cases:
- Jones v R [2005] NSWCCA 443
- R v DBG (2002) 133 A Crim R 227
- R v NZ (2005) 63 NSWLR 628
- R v Stewart 52 NSWLR 301
- Wilson v R [2006] NSWCCA 217