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Court of Criminal Appeal 26 October 2010

Vincent EGAN v R

[2010] NSWCCA 235

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION INDECENT ASSAULT TWO COMPLAINANTS CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Vincent EGAN v R [2010] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 26 October 2010
Judge(s): McClellan CJ at CL, Hall J, Barr AJ (Barr AJ delivered the principal judgment; McClellan CJ at CL and Hall J agreed)

Background

The appellant was the maternal uncle of two sisters, aged 14 and 12 at the time of the alleged offences. While the girls' father was absent from the home, the appellant was left in charge of them. Each sister separately alleged that the appellant took her into her own bedroom and indecently assaulted her.

The appellant stood trial in the District Court before Armitage DCJ on two charges of assault with an act of indecency on a child under 16. The jury returned a verdict of guilty in relation to the younger sister (P) but not guilty in relation to the older sister (C). The appellant was convicted on the charge involving P.

The appellant appealed against that conviction on grounds added by amendment on the morning of the hearing. He argued that the guilty verdict was unreasonable, that the trial judge failed to direct the jury against tendency reasoning, and that the trial judge failed to give a Longman-style warning about convicting on the uncorroborated evidence of a single witness.

  • Whether the guilty verdict in relation to P was unreasonable, having regard to the nature and quality of the evidence and the acquittal in relation to C
  • Whether the trial judge erred by failing to direct the jury not to engage in tendency reasoning, given that two independent charges involving two complainants were tried together
  • Whether the trial judge erred by failing to warn the jury to exercise caution before convicting because the Crown case depended substantially on the evidence of a single complainant

Decision

Unreasonable verdict. The Court dismissed the argument that an acquittal on the charge involving C necessarily cast doubt on the conviction involving P. The jury was entitled to assess the two complainants separately. P gave a clear and consistent account, and the Crown had itself conceded that C's evidence presented difficulties. The differential verdicts reflected careful reasoning by the jury, not inconsistency.

Tendency reasoning. The Court found no error in the trial judge's failure to give an unsolicited tendency direction. The only arguably common feature of the two complaints was that both complainants were young girls, which the Court considered insufficient to attract tendency reasoning. A direction drawing the jury's attention to such reasoning could have undermined the trial judge's firm direction that each complainant's account stood alone. It was also likely that experienced defence counsel made a deliberate tactical choice not to seek the direction, since raising the concept might have done more harm than good to the defence case. The differential verdicts strongly suggested the jury did not in fact engage in tendency reasoning.

Single-witness warning (Longman direction). Section 164 of the Evidence Act 1995 (NSW) removed the obligation to warn juries about the danger of convicting on the uncorroborated evidence of a complainant in sexual assault cases. Although the trial judge had in fact given a general direction requiring the jury to be satisfied beyond reasonable doubt as to the truth of P's account, no specific single-witness caution was required by law. No error was established on this ground.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • A not-guilty verdict on one charge does not automatically undermine a guilty verdict on a separate charge heard in the same trial, particularly where the jury received a clear direction to consider each complainant's evidence independently.
  • Differential verdicts can demonstrate that a jury applied careful, charge-by-charge reasoning rather than acting inconsistently or unreasonably.
  • Where the only common feature of two complaints is the identity of a general class of victim (such as age), no tendency direction is necessarily required, and failing to give one unsolicited does not constitute a misdirection.
  • Under s 164 of the Evidence Act 1995 (NSW), there is no statutory requirement to warn juries about convicting on the uncorroborated evidence of a single complainant in sexual assault proceedings.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the totality of jury directions must be assessed as a whole, rather than by examining the absence of any single direction in isolation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 405C
- Evidence Act 1995 (NSW), s 164

Cases
- Hoch v The Queen (1998) 165 CLR 292
- M v The Queen [1994] HCA 63
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Murray (1987) 11 NSWLR 12
- R v Markuleski [2001] NSWCCA 290