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Court of Criminal Appeal 16 March 2012

Christian v R

[2012] NSWCCA 34

Also reported as (2012) 223 A Crim R 370
Sexual offences
CRIMINAL LAW APPEAL CONVICTION EVIDENCE NO ERROR DEMONSTRATED. CRIMINAL LAW APPEAL

Citation: Christian v R [2012] NSWCCA 34
Court: Court of Criminal Appeal, New South Wales
Date: 16 March 2012
Judges: McClellan CJ at CL, Latham J, Harrison J

Background

The appellant was convicted after a jury trial on seven counts of sexual assault of a child. The complainant alleged that the appellant had sexually abused him on multiple occasions spanning from when he was approximately five or six years old through to his early teenage years. The appellant denied the offences, maintaining through his ERISP interview that he had not met the complainant until the complainant was around fourteen or fifteen, and that any sexual contact occurred only when the complainant was an adult.

A central feature of the prosecution case was a series of recorded telephone and in-person conversations, known as "pretext conversations," arranged by police. In those conversations, the complainant raised specific allegations of sexual abuse with the appellant. The appellant's responses were often indirect, and on several occasions he made remarks such as "there really wasn't that much happened" or offered an apology without directly denying the conduct alleged.

The appellant also faced evidence from the complainant's mother, who testified that when she confronted the appellant with allegations of abuse, he responded with an ambiguous gesture and expression rather than a clear denial. The appellant did not give evidence at trial.

  • Whether the trial judge erred by refusing to permit cross-examination of a witness on a relevance basis, where the evidence may have been relevant in a manner not articulated by trial counsel.
  • Whether the trial judge failed to adequately direct the jury on how to use evidence of the appellant's conduct, demeanour, and failure to deny accusations as alleged admissions.
  • Whether the trial judge failed to adequately direct the jury on how to use the complainant's own statements made in the recorded pretext conversations, particularly the complainant's first-hand assertions of abuse contained in those recordings.

Decision

Cross-examination ground: The Court of Criminal Appeal found no error in the trial judge's decision to disallow a particular line of cross-examination. Although there was some argument that the evidence might have been relevant in a way not advanced by trial counsel at the time, the Court was not satisfied that any error was demonstrated on this ground.

Directions on alleged admissions: The Court accepted that directions were required regarding the appellant's conduct and demeanour during the confrontation with the complainant's mother and the pretext conversations, given that these were relied upon as evidence of guilt. Some concern was expressed about the adequacy of the directions given, particularly in connecting that evidence to specific counts on the indictment. However, the Court ultimately regarded the directions on the confrontation as being of limited consequence to the overall verdict.

Directions on the pretext conversations: This was the ground that proved decisive. The pretext conversations contained not only the appellant's responses but also the complainant's own assertions about the abuse. Those assertions by the complainant were not admissible as direct proof of the facts alleged, yet the conversations were tendered as a whole. Without proper jury directions explaining how the complainant's statements within those conversations could and could not be used, there was a real risk that the jury relied on those statements in an inappropriate way.

The Court found that the directions given at trial were inadequate in this respect. Because the prosecution case rested almost entirely on the complainant's evidence, the pretext conversations carried significant weight in the jury's assessment of credibility. McClellan CJ at CL was satisfied there was a real chance the verdict may have been different had the jury received proper directions. The proviso under s 6(1) of the Criminal Appeal Act 1912 was therefore inapplicable, and a substantial miscarriage of justice had occurred. Leave to appeal out of time was granted, given the delay was attributable to the appellant's solicitor's ignorance of the filing requirements and the appeal was lodged promptly once the trial transcript was available.

Orders Made

  • Leave to appeal granted (including leave to appeal out of time).
  • Appeal allowed.
  • Convictions quashed.
  • New trial ordered.

Key Takeaways

  • Where a jury trial involves recorded "pretext conversations" that contain both the accused's responses and the complainant's own allegations, the trial judge must give clear directions explaining how the complainant's statements within those conversations can be used and the limits on their use.
  • A failure to give adequate directions on contested evidence is not automatically cured by the proviso in s 6(1) of the Criminal Appeal Act 1912: where the evidence goes to the central question of credibility in a case that depends almost entirely on the complainant's account, a real chance of a different verdict can be established.
  • Evidence of an accused's conduct, demeanour, and failure to deny accusations may be relied upon as implied admissions, but the jury must be directed on how to apply such evidence, including its connection to particular counts on the indictment.
  • No error was established on the cross-examination ground, with the Court declining to find fault where trial counsel had not articulated the basis for relevance that the appellant later sought to rely upon on appeal.
  • The Court of Criminal Appeal granted leave to appeal out of time where the delay arose from a solicitor's ignorance of procedural requirements, and where the appeal was pursued promptly once counsel could properly assess its prospects after the transcript became available.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules

Cases:
- AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
- DJF v The Queen [2011] NSWCCA 6
- Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
- HM v The Queen [2008] HCA 16; (2008) 235 CLR 334
- McGuiness v State of New South Wales [2009] NSWSC 40; (2009) 73 NSWLR 104
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463
- R v Barrett [2007] VSCA 95; (2007) 171 A Crim R 315
- R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501
- R v ON [2009] QCA 62
- Rolfe v The Queen [2007] NSWCCA 155; (2007) 173 A Crim R 168
- Wakeley v The Queen [1990] HCA 23; (1990) 93 ALR 79
- Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300