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Court of Criminal Appeal 27 February 2007

ROWNEY v R

[2007] NSWCCA 49

Also reported as 168 A Crim R 579
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT ACQUITTAL DIRECTED ON 3 COUNTS 13 YEAR DELAY IN COMPLAINT

Citation: Rowney v R [2007] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 27 February 2007
Judges: McClellan CJ at CL, Simpson J, Rothman J

Background

The appellant was tried in the District Court on six counts of sexual intercourse with a person under sixteen and one count of indecent assault. The alleged offences involved a complainant who was twelve to thirteen years old at the relevant time, and took place in 1987 to 1988 at a rural property near Gunnedah. The complainant did not come forward until approximately thirteen years after the alleged events.

At the close of the Crown case, the trial judge directed verdicts of acquittal on three counts. On two of those counts, the evidence did not support essential elements alleged in the Crown's opening. The jury returned guilty verdicts on the remaining four counts, covering incidents at Carter's Bridge, a dirt road near Gunnedah, and Manilla weir.

The appellant appealed his conviction on two grounds, challenging the rejection of certain relationship evidence and contending that the jury's verdicts were unreasonable or unsupported by the evidence.

  • Whether the trial judge erred in rejecting evidence concerning the complainant's alleged prior sexual activity, which the defence sought to tender to undermine her credibility
  • Whether the jury's guilty verdicts were unreasonable or unsupported by the evidence, having regard to the long delay in complaint, inconsistencies between the complainant's evidence and the Crown's opening address, and contradictions from other witnesses

Decision

On the first ground, the Court of Criminal Appeal examined the basis on which the relationship evidence was argued to be admissible. The trial judge had dealt with amended applications under the relevant sexual assault communications and relationship evidence provisions. On appeal, the defence argued admissibility on a different footing. Simpson J found that the statutory regime, specifically s 293 of the Criminal Procedure Act, renders otherwise admissible evidence inadmissible unless a specified exception applies, and that the evidence would not have advanced the defence case. Rothman J agreed with this outcome, noting that the precise operation of s 293(3)(b) was not fully argued and did not require resolution.

All three judges agreed that no miscarriage of justice resulted from the exclusion of the evidence. Simpson J specifically rejected the factual assumptions underpinning the defence's argument, including the premise that observed blood on bed sheets necessarily indicated rupture of the hymen, and that "loss of virginity" is always a single, discrete event. These assumptions could not be sustained, and the proposed cross-examination would not have materially assisted the defence.

On the second ground, the Court considered whether the verdicts were unreasonable given the thirteen-year delay, inconsistencies in the complainant's account, and the Crown's opening going beyond what the complainant ultimately said in evidence. The Court rejected this ground, finding that the jury were entitled to reach the conclusions they did on the evidence before them. The directed acquittals on three counts demonstrated that the trial process was operating appropriately as a check on unsupported allegations.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will not interfere with jury verdicts merely because of inconsistencies in a complainant's evidence or discrepancies between the Crown's opening and the witness's testimony, provided the verdicts remain reasonably open on the evidence.
  • A long delay in making a complaint of sexual assault does not, by itself, render guilty verdicts unreasonable or unsupported by evidence.
  • Where relationship evidence is excluded at trial and the defence seeks on appeal to argue admissibility on an entirely different basis, the court will assess whether any miscarriage of justice actually resulted, not merely whether the original ruling was correct.
  • Factual assumptions relied on in support of cross-examination about prior sexual activity must be sustainable on the evidence; the Court here found no proper basis for assumptions about the physiological significance of bleeding following alleged sexual activity.
  • Under s 293 of the Criminal Procedure Act, evidence that would otherwise be admissible may be rendered inadmissible unless a specific exception applies, and the court will scrutinise applications to adduce such evidence carefully.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(2), 66C(1)
- Criminal Appeal Act 1986 (NSW)
- Criminal Appeal Rules 1912 (NSW), Rule 4
- Criminal Procedure Act 1986 (NSW), s 293

Cases:
- Longman v The Queen (1989) 168 CLR 79
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Markuleski (2001) 52 NSWLR 82
- R v Rose (2002) 55 NSWLR 701