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Court of Criminal Appeal 10 December 2012

PGM (No 2) v R

[2012] NSWCCA 261

Sexual offences
CRIMINAL LAW APPEAL CONVICTION DIRECTIONS

Citation: PGM (No 2) v R [2012] NSWCCA 261
Court: New South Wales Court of Criminal Appeal
Date: 10 December 2012
Judge(s): McClellan CJ at CL; Garling J; McCallum J

Background

The applicant was convicted at a 2007 retrial of three counts of sexual intercourse with a person under 10 years and three counts of indecent assault of a person under 10 years, contrary to the Crimes Act 1900. The offences were alleged to have occurred between October 2003 and May 2004, when the complainant was aged six or seven. The applicant lived in the same street as the complainant and her family and had forged a relationship with the child through neighbourhood activities.

A first conviction had been quashed by the Court of Criminal Appeal in 2006 following a miscarriage of justice arising from the improper admission of pornographic photographs found on the applicant's computer. A retrial resulted in a fresh guilty verdict in June 2007. After further proceedings regarding sentence, the applicant ultimately sought leave to appeal his conviction, well outside the ordinary time limit.

The complainant did not appear at the retrial. Her earlier recorded evidence was played to the jury, and her absence arose from procedural legislative provisions. The applicant raised several grounds challenging the fairness of the trial, including the adequacy of the trial judge's directions.

  • Whether the verdict was unreasonable or unsupported by the evidence, particularly given that the complainant had been shown to have given false evidence about witnessing a sexual assault on another child
  • Whether the trial judge properly directed the jury about the significance of the complainant's proven lies
  • Whether the trial judge's directions about the complainant's absence from the retrial were in error, including whether the trial judge should have warned the jury about the dangers of convicting on the evidence of an absent complainant, and whether the directions were unfair in characterising forensic disadvantage as falling only on the Crown

Decision

Unreasonable verdict: McClellan CJ at CL (with whom Garling J and McCallum J agreed) conducted a thorough review of the evidence and concluded that the verdicts were not unreasonable. The fact that the complainant had demonstrably given false evidence about witnessing a sexual assault on another child was a significant matter, but the Chief Judge found the jury was entitled to accept the balance of her evidence about the offences committed against her. The court held that lies told by a witness on one aspect of their evidence do not automatically render the entirety of their account unacceptable.

Directions on lies: The court examined whether the trial judge had adequately directed the jury on how to treat the complainant's false statements. The Chief Judge was satisfied that the directions given were adequate in the circumstances and did not constitute error warranting intervention.

Directions on the absent complainant: The court considered the trial judge's handling of the complainant's absence at some length. The trial judge had explained that the complainant's absence resulted from parliamentary legislation, and identified forensic disadvantage flowing from her absence as falling on the Crown. The court accepted that this was a balanced and fair approach. No specific warning about the dangers of convicting on absent complainant evidence was required in the circumstances, and the trial judge's directions did not misrepresent the reason for the complainant's absence or create any unfairness.

Pornographic image directions: On a further ground concerning a pornographic image on the applicant's computer and the absence of evidence as to when it was accessed, the court found no error. The trial judge had directed the jury appropriately, telling them that the absence of the image from evidence resulted from a legal ruling and that they should not draw any adverse inference from that absence.

Orders Made

  • Leave to appeal granted on the first ground of appeal
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury may accept a complainant's evidence about offending against them even where another portion of that complainant's evidence has been shown to be false, provided appropriate directions are given.
  • A trial judge's directions about an absent complainant are not necessarily in error because they identify forensic disadvantage flowing to the Crown from that absence, provided the overall approach is balanced and fair.
  • No rigid rule requires a specific warning to the jury about the dangers of convicting on the evidence of a complainant who did not appear at trial, at least where the circumstances of the absence are properly explained.
  • Significant delay in bringing a conviction appeal does not automatically defeat an extension of time application where there is no identifiable fault on the part of the applicant personally, although the court acknowledged the public interest in finality and the impact on complainants of reopening proceedings.
  • Where a trial judge directs a jury that evidence is absent due to a legal ruling and no adverse inference should be drawn, a subsequent challenge to those directions on appeal faces a high bar.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 578B(2)
- Criminal Appeal Rules
- Criminal Procedure Act 1986 (NSW)

Cases:
- Healey v R [2006] NSWCCA 235
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426
- R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
- RR v R [2011] NSWCCA 235
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400