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Court of Criminal Appeal 22 December 2009

DGB v R

[2009] NSWCCA 307

Sexual offences

Citation: DGB v R [2009] NSWCCA 307
Court: NSW Court of Criminal Appeal
Date: 22 December 2009
Judge(s): James J, RS Hulme J, Hidden J

Background

The appellant was convicted on one count of aggravated indecent assault against his stepdaughter (the complainant), who was 15 years old at the time of the alleged offence. The conviction arose from an incident on 16 January 2007 in a swimming pool at a friend's home, during which a friend of the complainant (AKR) claimed to have witnessed the appellant pull down the complainant's bikini top and touch her breast. AKR also recorded video footage of the pair in the pool, though the footage was not conclusive.

The appellant stood trial on six counts in total, all involving the complainant. He was acquitted on the other five counts. The fourth count was the only one supported by independent evidence beyond the complainant's own testimony, specifically AKR's eyewitness account.

The sole ground of appeal concerned the trial judge's directions to the jury about how they should approach the complainant's evidence, and whether those directions were misleading with respect to count four.

  • Whether the trial judge's "Murray direction" (a warning about scrutinising the evidence of a complainant who is the sole witness to an offence) was misleading when applied to the counts without supporting evidence, in a way that undermined the jury's approach to count four, where independent supporting evidence existed.
  • Whether the trial judge's use of the word "truthfulness" in directing the jury was likely to have been misunderstood by the jury as referring only to honesty rather than actual accuracy and reliability.

Decision

James J (with Hulme J and Hidden J agreeing) identified the relevant portion of the summing-up in which the trial judge distinguished between counts where the complainant was the sole witness and count four, where AKR's evidence provided independent support. The judge noted that the direction drew a clear distinction, applying the heightened scrutiny warning specifically to the counts without supporting evidence, while acknowledging the additional evidence on count four.

The court considered the appellant's argument that the word "truthfulness" in the summing-up was ambiguous, as it might be understood to mean honest intention rather than factual accuracy. James J acknowledged that in some contexts these two meanings are distinguished, but concluded that in the context of this summing-up, and as the jury used the word in their question during retirement, the term was naturally understood to mean whether the evidence was in fact true.

The jury's question during retirement asked whether a verdict could be based on the complainant's evidence alone if they believed she was "truthful," which confirmed the jury understood the concept in the factual sense rather than the narrower honest-but-unreliable sense. The trial judge's answer to that question was confined appropriately to the counts without corroborating evidence and did not disturb the direction on count four.

The court also noted that trial counsel for the appellant did not seek any redirection after the summing-up, from which it could reasonably be inferred that no problem with the directions was perceived at the time.

Orders Made

  • Leave under r 4 of the Criminal Appeal Rules refused.
  • Appeal dismissed.

Key Takeaways

  • A Murray direction, which requires the jury to scrutinise a complainant's uncorroborated evidence with great care, applies to counts where the complainant is the sole witness. Where independent supporting evidence exists on a separate count, the trial judge may appropriately distinguish between counts in directing the jury.
  • No error was established in the trial judge's summing-up where the language used drew a clear distinction between counts with and without corroborating evidence.
  • Where a jury uses a particular word in its question during retirement, and the trial judge adopts the same word in response, that consistency can assist an appellate court in assessing how the jury understood the directions.
  • The Court of Criminal Appeal confirmed that "truthfulness," in context, was properly understood by the jury as meaning whether evidence was in fact true, not merely whether it was honestly given.
  • The absence of any application for redirection by trial counsel following the summing-up was treated as a relevant, though not determinative, indicator that the directions did not cause apparent unfairness.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), including s 61M(1) (aggravated indecent assault)
- Criminal Appeal Rules, r 4

Cases:
- R v Murray (1987) 11 NSWLR 12 (the source of the "Murray direction" on scrutinising uncorroborated complainant evidence)