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Court of Criminal Appeal 13 December 2010

BG v R

[2010] NSWCCA 301

Also reported as (2010) 208 A Crim R 34
Sexual offences
CRIMINAL LAW SEXUAL OFFENCES S 293 CRIMINAL PROCEDURE ACT S 293(4)(A)

Citation: BG v R [2010] NSWCCA 301
Court: Court of Criminal Appeal, New South Wales
Date: 13 December 2010
Judge(s): James J; Hislop J; Price J

Background

The appellant was convicted in the District Court before Freeman DCJ and a jury on nine counts of sexual offences allegedly committed in 1970 and 1971 against a girl who was aged 13 at the time. The offences were charged under provisions of the Crimes Act 1900 that were in force at the time but have since been repealed or substantially amended. The complainant did not make a statement to police until October 2005, more than 30 years after the alleged conduct.

The Crown case rested almost entirely on the complainant's evidence. Her account described a series of offences committed at two suburban addresses, where the appellant was living as the de facto partner of her mother. The alleged offences included carnal knowledge, rape, buggery, indecent assault, detaining with intent, and procuring.

The appellant appealed against his conviction on two grounds: that the trial judge erred in the admission of certain evidence under s 293 of the Criminal Procedure Act 1986, and that the verdicts of the jury were unreasonable and could not be supported by the evidence.

  • Whether the trial judge erred in admitting evidence of the complainant's sexual experience or sexual activity, particularly evidence relating to a connected set of circumstances, under s 293(4)(a) of the Criminal Procedure Act 1986
  • Whether the jury's verdicts were unreasonable and unsupported by the evidence, having regard to the significant delay in complaint, inconsistencies in the complainant's account, and the absence of corroboration

Decision

First Ground: s 293 and the admission of sexual history evidence

Section 293 of the Criminal Procedure Act 1986 generally prohibits the admission of evidence about a complainant's prior sexual experience or activity. Section 293(4)(a) provides an exception for evidence of sexual experience or activity that occurred "at or about the time of the commission of the offence." The question on appeal was whether certain evidence, which described sexual activity involving the complainant's brother A as part of the same episode as one of the charged offences, fell within this exception as part of a connected set of circumstances.

The Court of Criminal Appeal held that the trial judge did not err in admitting the evidence. The evidence in question described events forming part of the same connected circumstances as the charged conduct and therefore fell within the exception in s 293(4)(a). The first ground of appeal was rejected.

Second Ground: Unreasonable verdicts

The appellant pointed to several matters said to undermine the complainant's credibility: the 30-year delay in reporting, the absence of complaint to Child Welfare officers who visited the home, evidence from the complainant's brother A that he had no recollection of the incident charged in count 1, a statement made by the complainant in 1997 that made no mention of the appellant's sexual misconduct, and some inconsistency regarding the timing of events at the second address.

James J conducted an independent examination of the evidence and concluded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on all counts. The Court noted that imprecision in recollection is common when allegations concern events occurring many years earlier, that the complainant's failure to complain as a child was explicable by her fear of the appellant, and that the brother's evidence was not a simple denial. The Court emphasised that it was required to give full weight to the jury's advantage in having seen and heard the complainant give her evidence, and that all matters going to credibility had been squarely placed before the jury. The second ground was also rejected.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • Under s 293(4)(a) of the Criminal Procedure Act 1986, evidence of a complainant's sexual experience or activity that forms part of a connected set of circumstances surrounding the charged offence can fall within the exception permitting its admission "at or about the time of the commission of the offence."
  • A conviction resting almost entirely on the uncorroborated evidence of a complainant is not automatically unreasonable; the absence of corroboration cannot, of itself, render a guilty verdict unsupportable.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that appellate courts must give significant weight to the jury's advantage in assessing the credibility of witnesses they have seen and heard firsthand.
  • Imprecision in recalling detail is recognised as a common feature of sexual offence complaints where the alleged conduct occurred many years before the complaint was made.
  • A significant delay in reporting alleged childhood sexual offences does not necessarily undermine a complainant's evidence where the delay is explicable, such as by a complainant's established fear of the alleged offender.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 293
- Crimes Act 1900 (NSW), ss 63, 71, 76, 79, 89, 91A, 409B
- Listening Devices Act
- Criminal Appeal Act, s 6(1)

Cases
- R v Morgan (1993) 30 NSWLR 543
- HG v The Queen (1999) 197 CLR 414
- Rolfe v The Queen (2007) 173 A Crim R 168
- The Queen v Nguyen (2010) HCA 38
- Rowney v The Queen (2007) 168 A Crim R 579