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Court of Criminal Appeal 27 April 2012

JAD v R

[2012] NSWCCA 73

Sexual offences
CRIMINAL LAW APPEAL SEXUAL OFFENCES APPEAL AGAINST CONVICTION CRIMINAL PROCEDURE ACT, S 293 PRESENCE OF DISEASE

Citation: JAD v R [2012] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 27 April 2012
Judges: Whealy JA, Simpson J, Hoeben J

Background

The appellant was convicted by a jury in the Orange District Court on six counts of sexual offences committed against the daughter of his de facto partner. The complainant was the appellant's partner's child, not his biological daughter, and the couple had never married. The appellant had lived with the complainant's mother since the complainant was nine years old.

Two of the six counts (counts 5 and 6) were brought under s 73(1) of the Crimes Act 1900 (NSW), which criminalises sexual intercourse with a person under the offender's "special care." The indictment originally characterised the appellant as the complainant's "stepfather." When it became apparent at the close of evidence that the appellant and the complainant's mother had never married, the trial judge allowed an amendment to substitute the word "foster-parent" for "stepfather."

A separate issue arose concerning a ruling the trial judge made under s 293 of the Criminal Procedure Act 1986 (NSW), which governs the admissibility of evidence about a complainant's sexual experience. The trial judge excluded evidence about a separate alleged sexual assault on the complainant by a school acquaintance, evidence that could have provided an alternative explanation for the complainant's psychological symptoms relied upon by the Crown.

  • Whether the appellant, as the de facto partner of the complainant's mother, could properly be characterised as the complainant's "foster-parent" under s 73 of the Crimes Act 1900, so as to support the charges on counts 5 and 6.
  • Whether the trial judge erred in excluding evidence of the complainant's separate assault allegation under s 293 of the Criminal Procedure Act 1986, and whether the correct subsection was applied.
  • Whether various other alleged failures at trial (relating to tendency evidence, unreliability warnings, and delayed complaint directions) constituted miscarriages of justice warranting a new trial.

Decision

On the "foster-parent" question (Ground 1): The majority (Simpson and Hoeben JJ) rejected the appellant's argument, albeit after considerable analysis. While a literal reading of "foster-parent" might suggest a formal arrangement in which neither natural parent is present, the majority preferred a purposive approach to statutory interpretation. Simpson J traced the legislative history of the sexual offences provisions at length and concluded that the term "foster parent" in s 73 is capable of including a de facto partner of a natural parent, provided that person can be shown to play an actual role in raising the child. Whether any particular de facto qualifies is a question of fact, to be determined by evidence of matters such as financial support, emotional involvement, discipline, and participation in family life. Whealy JA would have allowed Ground 1, accepting that "foster-parent" does not ordinarily encompass a de facto partner without more, but his Honour was in the minority on this point.

On the s 293 ruling (Ground 2(b)): All three judges agreed that the trial judge applied the wrong subsection of s 293. The Crown conceded this ground. The trial judge excluded evidence of the separate assault under s 293(4)(a), which concerns evidence of the complainant's sexual experience with other persons. The correct provision was s 293(4)(c)(ii), which specifically addresses evidence relevant to the presence of a disease, injury, or condition. The complainant's psychological symptoms had been tendered by the Crown as evidence of injury caused by the appellant. Evidence of the alternative cause (the prior assault) was directly relevant to that condition and should have been considered for admission under s 293(4)(c)(ii). Its exclusion deprived the defence of a potentially significant line of cross-examination, constituting a miscarriage of justice.

On the remaining grounds: Because the court allowed the appeal on Ground 2(b) and ordered a new trial on all counts, it was unnecessary to resolve the remaining grounds concerning tendency evidence, unreliability warnings, and delayed complaint directions. Those matters were left for determination at any retrial.

Legislative concern: Both Whealy JA and Hoeben J noted that s 73 of the Crimes Act 1900 requires urgent legislative attention. The court recommended that the Registrar forward a copy of the decision to the Attorney-General for urgent consideration.

Orders Made

  • Appeal against conviction allowed; convictions quashed.
  • New trial ordered on all counts in the indictment.

Key Takeaways

  • Under s 73 of the Crimes Act 1900, the term "foster parent" is capable of extending to a de facto partner of a child's natural parent, but that characterisation is not automatic. It requires evidence that the de facto partner actually participated in raising the child.
  • A conviction quashed on the basis of an erroneous s 293 ruling illustrates the practical importance of identifying the correct subsection of that provision. Section 293(4)(c)(ii), which concerns evidence relevant to a disease, injury, or psychological condition, is distinct from s 293(4)(a), which concerns evidence of sexual experience with other persons.
  • Where the Crown relies on a complainant's psychological condition as evidence of injury caused by the accused, evidence of an alternative cause of that condition may be admissible under s 293(4)(c)(ii) and its exclusion can constitute a miscarriage of justice.
  • The Court of Criminal Appeal confirmed that "stepfather" in s 73 does not include the de facto partner of a parent, following the earlier decision in R v Miller [2001] NSWCCA 209. The amendment to substitute "foster-parent" during trial was the source of the statutory interpretation dispute on appeal.
  • Both Whealy JA and Hoeben J identified a legislative gap in s 73 and formally recommended that the Attorney-General give the provision urgent attention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 73
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW), ss 97, 165, 165B
- Adoption Act 2000 (NSW)
- Children and Young Persons (Care and Protection) Act 1998 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Interpretation Act 1987 (NSW)
- Crimes (Child Assault) Amendment Act 1985
- Crimes Amendment (Sexual Offences) Bill 2003

Cases:
- R v Miller [2001] NSWCCA 209; (2001) 127 A Crim R 344
- Project Blue Sky Inc. & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Beckwith v The Queen [1976] HCA 55; 135 CLR 569
- Murphy v Farmer [1988] HCA 31; 165 CLR 19
- Krakouer v The Queen [1998] HCA 43; 194 CLR 202
- Jones v Wrotham Park Settled Estate [1980] AC 74
- Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292