Citation: R v RLP; RLP v R [2009] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 8 April 2009
Judge(s): Grove J, Blanch J, Price J
Background
The appellant was the stepfather of the complainant, who was aged between eleven and thirteen at the time of the alleged offences. The complainant ordinarily lived with her maternal grandparents but visited her mother, who had married the appellant, on a number of occasions. The charges arose from alleged sexual offences committed between 2003 and late 2004.
The appellant was tried in the Orange District Court before Nield DCJ and a jury. He was acquitted on two counts but convicted on six counts, including attempted sexual intercourse, aggravated indecent assault, and aggravated and non-aggravated sexual intercourse with a child aged between ten and fourteen years.
The appeal to the Court of Criminal Appeal challenged the convictions on several grounds relating to evidentiary rulings and judicial directions at trial. The Crown also cross-appealed on the basis that the sentences imposed were manifestly inadequate.
Legal Issues
- Whether the trial judge erred in admitting complaint evidence under s 66(2) of the Evidence Act 1995, given that the complaint was made more than three months after the last alleged offence, and whether the judge gave sufficient reasons for finding the occurrence was "fresh in the memory" of the complainant
- Whether a statement the appellant made to a medical practitioner was properly admitted into evidence
- Whether trial counsel's failure to put contradicting material to witnesses when cross-examining them, pursuant to the rule in Brown v Dunn, created unfairness at trial
- Whether the trial judge's direction to the jury about the appellant's credibility was appropriate
- Whether, after the Crown called evidence explaining why a particular witness had not been called, the trial judge was required to give a warning against the jury drawing impermissible adverse inferences about the appellant for not calling that witness
Decision
The Court found that the trial judge's reasons for admitting the complaint evidence were insufficient. The Evidence Act 1995 requires a representation to have been made when the occurrence was "fresh in the memory" of the maker. Applying Graham v The Queen (1998) 195 CLR 606, the Court confirmed that "fresh" describes the temporal relationship between the event and the complaint, with the required interval typically measured in hours or days. A complaint made more than three months after the last alleged offence demanded more than the brief and conclusory reasoning the trial judge offered, and the inadequacy of that reasoning was itself a ground for error.
The Court rejected the challenge to the admissibility of the appellant's statement to the medical practitioner, finding no error in that ruling.
More significantly, the Court found two connected errors concerning a witness the Crown had called evidence to explain away. The Crown led evidence explaining why a particular witness had not been called, which effectively invited the jury to consider that omission. No warning was given to prevent the jury from reasoning adversely against the appellant on the basis that he had not called that witness himself. The Court held that, in those circumstances, a direction was required to guard against impermissible speculation, and its absence was a material error.
The Court also identified an error in the trial judge's credibility direction concerning the appellant. Taken together, the errors on the complaint evidence admissibility, the credibility direction, and the absent witness warning led the Court to allow the appeal and order a new trial. Because the convictions were quashed, the Crown's sentence appeal was dismissed without any determination on the merits.
Orders Made
- Appeal against conviction allowed
- Convictions and sentences imposed in the District Court quashed
- New trial ordered
- Crown appeal against sentence dismissed (not determined on the merits)
Key Takeaways
- Under s 66(2) of the Evidence Act 1995, complaint evidence is only admissible where the relevant occurrence was "fresh in the memory" of the complainant at the time of the complaint. Following Graham v The Queen, the temporal gap will ordinarily be measured in hours or days, and a gap of over three months requires detailed and adequate judicial reasoning to justify admission.
- Insufficient reasons for admitting evidence, not merely a wrong outcome, can themselves constitute a ground of appeal.
- Where the Crown calls evidence specifically to explain the absence of a witness, that evidence may invite the jury to reason adversely against the accused for not calling the same witness. In such circumstances, a judicial warning against impermissible inference is required.
- Failure to put contradictory material to a witness in cross-examination, as required by the rule in Brown v Dunn, was also identified as a source of unfairness at trial.
- When the Court of Criminal Appeal quashes convictions and sentences to facilitate a new trial, any Crown sentence appeal is dismissed without a merits determination, leaving the sentencing question open if a conviction results from the retrial.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 66(2)
- Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases
- Graham v The Queen (1998) 195 CLR 606
- Papakosmas v The Queen (1999) 196 CLR 297
- Azzopardi v The Queen (2001) 205 CLR 50
- Dyers v The Queen (2002) 210 CLR 285
- RPS v The Queen (2000) 199 CLR 620
- Mahmood v Western Australia (2008) 232 CLR 397
- Jones v Dunkel (1959) 101 CLR 298
- Brown v Dunn (1892) 6R 67
- Gordon-King v R [2008] NSWCCA 335
- Louizas v R [2009] NSWCCA 71
- R v Adam (1999) 47 NSWLR 267; (2001) 207 CLR 96
- DBG v R [2002] 133 A Crim R 227
- Pavitt v R [2007] 169 A Crim R 52