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Court of Criminal Appeal 26 September 2012

ROSS, James John v R

[2012] NSWCCA 207

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL AGAINST CONVICTION EVIDENCE ADMISSION OF RECORD OF INTERVIEW EVIDENCE NOT PREJUDICIAL OR IRRELEVANT

Citation: ROSS, James John v R [2012] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 26 September 2012
Judges: Allsop P; Hidden J; Davies J

Background

The appellant was convicted after a jury re-trial on 24 counts of sexual offences against a 13-year-old complainant. The offences were alleged to have occurred across three locations in 2004: Tilbuster near Armidale, Yamba, and Beresfield. The appellant was a truck driver who had a casual sexual relationship with the complainant's mother.

The appellant and the complainant's mother were tried jointly on an indictment containing 34 charges. The offences fell into three episodes and included charges against both the appellant and the mother jointly, as well as charges against each of them individually. A first jury was discharged following alleged impropriety during deliberations, and the matter proceeded to a re-trial before Woods DCJ.

At the re-trial, neither the appellant nor the mother gave fresh evidence. Instead, their evidence from the first trial was tendered by the Crown, and the complainant's prior recorded evidence and police interviews were read to the jury. Both accused were ultimately convicted on 24 counts, acquitted on two (counts 15 and 18), and the trial judge gave detailed directions about the use of the evidence.

  • Whether the joint trial of the appellant and the complainant's mother caused a miscarriage of justice, given that their evidence contained significant inconsistencies that could only be used against each of them individually.
  • Whether the trial judge erred in admitting the appellant's record of police interview, including portions in which he answered "no comment", and in admitting evidence of a medical examination of the complainant.
  • Whether the verdicts were inconsistent, given that the jury acquitted the appellant on two counts but convicted him on 24 others, despite the complainant being the primary witness on all counts.

Decision

Joint trial: Allsop P found no miscarriage of justice arising from the joint trial. Although the mother's and the appellant's evidence contained important inconsistencies (notably regarding events at Yamba), clear directions were given to the jury about the limited use of each accused's evidence. There was no objection at the re-trial to the Crown tendering the prior evidence, and no renewed application for a separate trial. The directions adequately managed the potential for prejudice.

Admission of evidence: The trial judge's decisions to admit the "no comment" portions of the police interview and the medical examination evidence were upheld. The evidence was not shown to be irrelevant or unfairly prejudicial. Clear jury directions addressed the use of that evidence, and the appellant could not demonstrate that any error in admission resulted in a miscarriage of justice.

Inconsistent verdicts: The court rejected the submission that the acquittals on counts 15 and 18 necessarily cast doubt on the complainant's overall credibility and undermined the guilty verdicts on the remaining counts. Allsop P identified sound evidential bases for the jury's approach: the complainant's evidence about a knife (central to count 15) was less compelling in her police interview than at trial, and she had not mentioned the events in count 18 during her initial police interview at all. These factors provided legitimate, independent reasons for the jury to doubt those two counts without rejecting her evidence on the others. The verdicts were not inconsistent.

Orders Made

  • Time extended for the filing of the notice of appeal to the date of actual filing.
  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a joint trial does not produce a miscarriage of justice where clear directions are given about the separate use of each co-accused's evidence, even where that evidence contains significant inconsistencies.
  • Acquittals on some counts in a multi-count sexual offence trial do not automatically render guilty verdicts on other counts inconsistent, provided there are sound evidential reasons capable of explaining the different outcomes.
  • Where a complainant's account of a specific matter was less developed in an initial police interview, or where corroborating detail emerged only at trial, a jury may rationally doubt that count while accepting the complainant's evidence on others.
  • No error was established in admitting "no comment" responses from a police interview or medical examination evidence, where the trial judge gave adequate directions and no unfair prejudice was demonstrated.
  • Hidden J flagged, without deciding, that the line of authority following R v Reeves (concerning the admission of prior interviews) may warrant reconsideration in an appropriate future case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW)

Cases:
- DD v R [2010] NSWCCA 237
- Demirok v R [1977] HCA 21; 137 CLR 20
- Dungay v R [2010] NSWCCA 82
- Gilbert v R [2000] HCA 15; 201 CLR 414
- Jones v R [1997] HCA 56; 191 CLR 439
- MFA v R [2002] HCA 53; 213 CLR 606
- R v Baartman (NSW Court of Criminal Appeal, 6 October 1994, unreported)
- R v Dellapatrona (1993) 31 NSWLR 123
- R v Demirok [1976] VR 244
- R v Fernando [1999] NSWCCA 66
- R v Harbach (1973) 6 SASR 427
- R v Middis (Supreme Court of NSW, 27 March 1991, unreported)
- R v Murray (1987) 11 NSWLR 12
- R v Plevac (1995) 84 A Crim R 570
- R v Reeves (1992) 29 NSWLR 109
- R v Skaf [2004] NSWCCA 74
- TK v R [2009] NSWCCA 151; 74 NSWLR 299
- Webb and Hay v R [1994] HCA 30; 181 CLR 41