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6
Court of Criminal Appeal 4 June 2010

LJW v R

[2010] NSWCCA 114

Sexual offences
EVIDENCE CRIMINAL LAW APPEAL AGAINST CONVICTION ALLEGED ERRORS IN DIRECTIONS POINTS NOT TAKEN AT TRIAL WHETHER VERDICT UNREASONABLE.

Citation: LJW v R [2010] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 4 June 2010
Judge(s): Hodgson JA; Johnson J; Rothman J

Background

The appellant was convicted in the District Court of charges relating to sexual offences against a 12-year-old boy. The complainant was the nephew by marriage of the appellant's wife and a close friend of the appellant's stepson. The offences were alleged to have occurred across several occasions in 2006, including during an overnight trip to Muswellbrook, at the complainant's home, and at a friend's house on New Year's Eve.

The charges included attempted anal penetration, fellatio, and two counts of indecent acts towards a child under authority. The jury acquitted on the first charge but found the appellant guilty of the attempt, and guilty on the remaining three charges. The appellant was sentenced to six years imprisonment with a four-year non-parole period.

The appellant appealed against all convictions, arguing errors in the trial judge's directions and that the verdicts were unreasonable. Because the appeal did not rest on a question of law alone, the court was required to first grant leave to appeal.

  • Whether evidence that the appellant masturbated in the car while driving the complainant and another boy to Muswellbrook was admissible, either as part of the res gestae (the surrounding circumstances of the same event) or as evidence of the appellant's state of mind
  • Whether the trial judge erred in directions to the jury on that evidence
  • Whether other alleged errors in the trial judge's directions, which had not been raised at trial, constituted grounds for appeal
  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence

Decision

Admissibility of the car masturbation evidence. Hodgson JA considered whether evidence that the appellant masturbated while driving the boys to Muswellbrook was properly admitted. The court found this evidence was admissible as part of the res gestae, meaning it formed part of the same transaction as the alleged offences occurring later that night, and also as evidence bearing on the appellant's state of mind towards the complainant. There was no appealable error in allowing it.

Directions at trial. The appellant raised several complaints about the trial judge's directions, including in relation to how the jury was directed on the car masturbation evidence and on delay in complaint. The court noted that a number of these points had not been raised at trial, and applied a cautious approach to entertaining them for the first time on appeal. Hodgson JA found no direction was so fundamentally flawed as to require intervention, and that the directions, taken as a whole, were adequate.

Unreasonable verdict. The court examined the evidence closely in considering whether the verdicts could not be supported. It noted that the complainant's account was corroborated in significant respects: both the complainant and the appellant confirmed the complainant was crying that night; the stepson GL gave supporting evidence of waking to see the appellant in a compromising position; and the complainant's immediate complaint to GL was substantially supported. The court also found that a prior verbal dispute between the appellant and the complainant's father did not provide a plausible motive to fabricate, and that concerns about the reliability of one witness (MB) were legitimately open for the jury to resolve. The court concluded this was not a case where the jury ought to have entertained a reasonable doubt.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Evidence of sexual conduct occurring shortly before the alleged principal offence may be admissible as part of the res gestae where it forms part of the same transaction, and separately as evidence of the accused's state of mind.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principle that points not raised at trial face a higher bar on appeal, and found no error in the directions that warranted intervention.
  • A verdict is not unreasonable merely because the accused's account differs from that of the complainant; the question is whether, on the whole of the evidence, the jury ought to have entertained a reasonable doubt.
  • Corroboration by a third-party witness, even where that witness's account is not identical to the complainant's, can legitimately support the reliability of the complainant's evidence.
  • Where a witness's evidence is internally consistent with poor recall, and where that witness had discussed his evidence with others during the trial, a jury is entitled to place little weight on that testimony.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW) s 5(1)(a)
- Criminal Appeal Rules r 4
- Criminal Procedure Act 1986 (NSW) ss 294, 294AA
- Evidence Act 1995 (NSW) ss 97, 101, 137

Cases:
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510
- O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566
- Rasic v R [2009] NSWCCA 202