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Court of Criminal Appeal 14 December 2007

Bryan v R

[2007] NSWCCA 351

Sexual offences
CRIMINAL LAW AND PROCEDURE SEXUAL OFFENCES ON MALE AGED UNDER 16 TRIAL

Citation: Bryan v R [2007] NSWCCA 351
Court: NSW Court of Criminal Appeal
Date: 14 December 2007
Judge(s): Grove J, Hulme J, Simpson J

Background

The appellant was a youth pastor who came into contact with a teenage male (referred to as M) through their neighbourhood and later through a church connection. Over a span of approximately six weeks, three separate visits to the appellant's home gave rise to six charges: two counts of sexual intercourse with a child aged between ten and sixteen, two counts of homosexual intercourse with a male aged between ten and eighteen, and two counts of aggravated indecent assault. The appellant was convicted on all counts in the District Court at Penrith before O'Reilly ADCJ.

The central complication at trial was one of timing. The indictment specified that the offences occurred between 9 June 2000 and 28 February 2001, with the later date being M's sixteenth birthday. However, M himself believed the offences took place in 1999, relying on various personal "markers" to fix that year in his memory.

The Crown anticipated M's mistaken dating from the outset and set out to establish the correct time frame through independent evidence, particularly mobile phone records. The trial judge directed the jury that, unless it was satisfied beyond reasonable doubt that the offences occurred within the indictment period, it must return a verdict of not guilty.

  • Whether the jury verdicts on all six counts were unreasonable having regard to the whole of the evidence, particularly given that the complainant's own testimony placed the offences outside the time frame specified in the indictment.
  • Whether the inconsistencies in M's evidence were so significant that his testimony alone was insufficient to establish guilt beyond reasonable doubt.
  • Whether the appellant's good character evidence and denial of the offences raised a reasonable doubt.

Decision

The Court of Criminal Appeal dismissed the appeal, finding that the verdicts were not unreasonable. Grove J (with whom Hulme J and Simpson J agreed) assessed the totality of the evidence available to the jury and concluded there was a sound basis for the jury to find that the offences occurred within the indicted period, notwithstanding M's own erroneous recollection.

The critical independent evidence was M's use of a Nokia mobile phone during the relevant period. Once the jury accepted that M was using that Nokia phone at all material times, it was open to the jury to rely on the extensive telephone records showing large numbers of late-night text messages exchanged between that handset and the appellant's phone. Those records were capable of placing the communications, and thus the offending, within the indictment period.

The Crown also relied on statements made by the appellant to police and a signed letter in which he denied ever having any private relationship with M. The trial judge gave appropriate directions on consciousness of guilt, and the jury was entitled to treat those untruths as further supporting the Crown's case.

The Court acknowledged the good character evidence called on the appellant's behalf and confirmed that the trial judge gave proper directions on its use. However, taken against the whole of the evidence, that evidence did not render the verdicts unreasonable.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • Where a complainant's recollection of dates is anticipated to be mistaken, the prosecution may seek to establish the relevant time frame independently through evidence such as telephone records, rather than relying on the complainant's own dating.
  • A conviction is not rendered unreasonable simply because the complainant places the offending outside the period charged, provided independent evidence is capable of establishing that the offences occurred within the indictment's time frame.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the trial judge's direction making time "of the essence" was properly given and did not lead to an unfair outcome where the Crown had independently established the relevant period.
  • Untruths told by a defendant to police and in a signed written statement may constitute evidence of consciousness of guilt, capable of supporting the prosecution case when considered alongside other evidence.
  • Good character evidence, including the absence of prior convictions, does not automatically require an acquittal; the jury is entitled to weigh it against the full body of evidence once properly directed on its use.

Legislation and Cases Referenced

No specific legislation or cases were cited in the text of the judgment as provided. The catchwords indicate the offences involved sexual offences against a male aged under sixteen, but no specific statutory provisions were identified in the available text.