Citation: Y v Regina [2009] NSWCCA 287
Court: New South Wales Court of Criminal Appeal
Date: 9 December 2009
Judges: Allsop P, Howie J, Hislop J
Background
A jury in the District Court convicted the appellant on 10 counts of sexual intercourse and indecent assault against three young girls, including his stepdaughter, her cousin, and the daughter of family friends. The offences were alleged to have occurred between January 2001 and September 2006, when the complainants were aged between 8 and 13 years. The trial judge imposed an effective total sentence of 26 years with a non-parole period of 19 years and 6 months.
The appellant challenged his convictions on three grounds. Two grounds concerned the trial judge's refusal to permit cross-examination of two complainants about prior sexual experience under section 293 of the Criminal Procedure Act 1986 (NSW). The third ground concerned the fairness of the trial itself, arising from the Crown's address to the jury.
Critically, it was common ground at trial that the stepdaughter had had a consensual sexual relationship with another person during the final year of the alleged abuse, and that the cousin had been sexually abused by her stepfather. Despite this, the Crown addressed the jury in terms that implied the complainants had limited sexual knowledge, an inference that was in direct tension with that known but excluded evidence.
Legal Issues
- Whether the trial judge erred in refusing the application to cross-examine the stepdaughter about her prior sexual activity under section 293(4)(a) of the Criminal Procedure Act 1986 (NSW), on the basis that it formed a "connected set of circumstances" with the charged offences or gave rise to a motive to fabricate.
- Whether the trial judge erred in refusing the application to cross-examine the cousin about sexual abuse by her stepfather under section 293(4)(a), including whether the temporal requirement ("at or about the time") was a question of fact for the jury or a threshold finding for the judge.
- Whether the Crown's address to the jury, which implied the complainants had limited sexual knowledge, rendered the trial unfair given that excluded evidence contradicted those very implications.
Decision
Grounds 1 and 2: Refusal to permit cross-examination under section 293
The Court upheld the trial judge's rulings on both cross-examination applications. On Ground 1, the Court found no miscarriage of discretion in refusing to allow cross-examination of the stepdaughter about her consensual sexual relationship. Although the defence argued the relationship formed a "connected set of circumstances" or supported a motive to fabricate, the Court noted the issue had not been argued in those precise terms below, and the corroborative character of the excluded evidence created real prejudice concerns.
On Ground 2, the Court held that the temporal requirement in section 293(4)(a), namely whether the sexual activity occurred "at or about the time" of the charged offences, is a threshold question of fact to be assessed and determined by the judge, not a matter to be left to the jury. The trial judge's finding on that question disclosed no miscarriage of discretion, and the ground failed.
Ground 3: Unfairness arising from the Crown's address
The Court allowed the appeal on Ground 3. The Crown had addressed the jury in terms suggesting the complainants would have had little sexual understanding, an inference central to its case, yet this directly contradicted the known sexual histories of at least two complainants, evidence that had been excluded under section 293 and was therefore unavailable to the defence to rebut. The Court held that section 293 rulings must not be deployed, even inadvertently, to construct a misleading factual and evidentiary framework before the jury. The resulting prejudice to the appellant was substantial and could not be cured by the trial judge's summing-up, which was otherwise unimpeachable.
The Court also rejected the Crown's submission that the convictions relating to the third complainant (the family friend's daughter) should be allowed to stand. Because credibility was at the heart of the entire trial and the allegations were tried jointly, the Court declined to dissect the verdict. All convictions were quashed and a new trial was ordered on all counts.
Orders Made
- Appeal allowed.
- All convictions quashed.
- New trial ordered on all counts of which the appellant was convicted.
Key Takeaways
- The Court of Criminal Appeal confirmed that a trial judge assessing an application under section 293(4)(a) of the Criminal Procedure Act 1986 (NSW) must make a positive finding on the temporal requirement ("at or about the time") as a threshold matter; it is not a question to be submitted to the jury.
- A substantial miscarriage of justice arises where the Crown addresses the jury on the basis of factual inferences that are directly contradicted by evidence excluded under section 293, leaving the defence unable to respond.
- Section 293 rulings, though made to protect complainants, do not entitle the Crown to build a case on the absence of the excluded material; the rules of exclusion cannot be used to create a misleading evidentiary landscape for the jury.
- Where credibility is central to a joint trial involving multiple complainants, quashing some convictions while preserving others may be inappropriate; the Court declined to isolate the convictions relating to one complainant because the truthfulness of all witnesses was inseparable.
- No error was established in refusing cross-examination of the stepdaughter, even where a prior consensual relationship was known, because the matter had not been fully argued below on the relevant statutory basis and the prejudice from the corroborative character of that evidence was significant.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), section 293 (restrictions on cross-examination and evidence about a complainant's sexual experience)
Cases
- Morgan (1993) 30 NSWLR 543
- Munn and Miller [2006] NSWCCA 61