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Court of Criminal Appeal 27 March 2009

JDK v R R v JDK

[2009] NSWCCA 76

Also reported as 194 A Crim R 333
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT DIRECTION TO JURY CONVICTIONS QUASHED

Citation: JDK v R; R v JDK [2009] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 27 March 2009
Judge(s): McClellan CJ at CL; James J; Adams J

Background

The appellant was a close friend of the complainant's older brother and frequently visited and stayed overnight at the complainant's family home. He was tried on five counts of sexual assault involving the complainant, who was a child at the relevant times. The alleged offending spanned 2002 and 2003 and included acts of sexual intercourse and indecent assault.

The appellant himself admitted to conduct that formed the backdrop to the charges, including regular "open mouth kissing" with the complainant from around the age of nine, and that the complainant would regularly sit on his lap. He maintained this was the extent of any physical contact between them.

The jury acquitted the appellant on the first three counts but convicted him on counts four and five. Those convictions related to an indecent assault involving kissing the complainant's breasts in the computer room, and a further act of sexual intercourse (fellatio) at the end of Year 6. The appellant sought leave to appeal out of time, which the Crown did not oppose.

  • Whether the convictions on counts four and five were unreasonable or factually inconsistent with the acquittals on counts one, two and three, given that all counts depended substantially on the credibility of the same complainant.
  • Whether the trial judge gave adequate and appropriate directions to the jury regarding "relationship evidence" or "context evidence," being evidence of the broader pattern of conduct between the appellant and the complainant beyond the specific charged acts.
  • Whether an inadequate warning under the Evidence Act 1995 was given to the jury about the hearsay evidence of a complaint made by the complainant to a third party (Miss P).

Decision

On the first ground, the Court accepted that the acquittals on counts one and two could be explained by the jury's uncertainty about the complainant's age at the time of the alleged acts, since she turned ten during 2002 and both counts depended on resolving that question. The Court did not find that the verdicts were fatally inconsistent in a way that required acquittals to be entered. This ground was not upheld.

On the second ground, concerning the directions given in relation to relationship or context evidence, the Court found the trial judge's directions were inappropriate. The evidence of the broader relationship between the appellant and the complainant, including the admitted kissing and physical contact, carried significant capacity to distort the jury's reasoning if not properly directed. The trial judge had not given adequate guidance on the proper, limited purpose for which that evidence could be used.

The Court acknowledged that trial counsel had not objected to the admission of the relationship evidence at trial. Nonetheless, the Court found it had an obligation to ensure a conviction was reached by fair process according to law. Given the centrality of the complainant's credibility to all counts, the misdirection on relationship evidence could not be treated as harmless.

On the third ground concerning the warning about complaint evidence, the Court found no error. The trial judge was not required to use any particular form of words under the Evidence Act 1995, and the caution given was adequate in circumstances where the third party witness had not been challenged in cross-examination and her reliability was not in issue.

Orders Made

  • Convictions on counts four and five quashed.
  • New trial ordered.
  • Application for leave to appeal against sentence not considered.

Key Takeaways

  • The Court of Criminal Appeal confirmed that even where trial counsel does not object to the admission of relationship or context evidence, the trial judge must still give the jury appropriate directions on the limited purpose for which that evidence can be used.
  • Where relationship evidence has a capacity to distort the jury's reasoning in a sexual assault trial, the absence of proper limiting directions constitutes a ground for quashing convictions, regardless of whether an objection was made at trial.
  • A conviction will not automatically be quashed as unreasonable merely because a jury returns mixed verdicts on related counts, provided a rational explanation exists for the differing outcomes (here, uncertainty about the complainant's age at the time of the alleged offence).
  • Under section 165 of the Evidence Act 1995, no particular form of words is required when warning a jury about potentially unreliable evidence, provided the warning is adequate in the circumstances of the trial.
  • In dismissing the appeal against the adequacy of the complaint evidence warning, the Court noted the absence of any challenge to the third party witness in cross-examination was a relevant circumstance in assessing whether the warning given was sufficient.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- DJV v R [2008] NSWCCA 272
- HML v R (2008) 245 ALR 204
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- Norris v R [2007] NSWCCA 235; 176 A Crim R 42
- Oldfield v The Queen 163 A Crim R 242
- Qualtieri v The Queen 171 A Crim R 463
- R v Markuleski (2001) 52 NSWLR 82