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Court of Criminal Appeal 15 May 2012

RGM v R

[2012] NSWCCA 89

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AGGRAVATED SEXUAL INTERCOURSE CREDIBILITY OF COMPLAINANT TENDENCY EVIDENCE

Citation: RGM v R [2012] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 15 May 2012
Judges: McClellan CJ at CL, Johnson J, Fullerton J (judgment by Fullerton J, others agreeing)

Background

The appellant was convicted after trial of two counts of aggravated sexual intercourse with his stepdaughter without her consent, contrary to s 61J(1) of the Crimes Act 1900. The circumstance of aggravation was the complainant's age: she was 14 at the time of the first offence and 14 or 15 at the time of the second. Both incidents occurred in the family home in 2007. The appellant was sentenced to an effective term of 10 years' imprisonment with a non-parole period of 6 years.

At trial, the Crown adduced not only the complainant's direct evidence of the two charged incidents, but also evidence of other alleged misconduct by the appellant, including indecent touching on separate occasions, repeated intrusions into the bathroom while she was showering, comments about her clothing, and threats of violence. The appellant denied all of this and gave evidence that the tensions between them arose from disagreements about bathroom use and his attempts to discipline her over mobile phone use.

The appeal was brought approximately 15 months after sentence, requiring an extension of time. The delay was explained by difficulties in obtaining a complete trial transcript and a missing jury note. The Crown did not submit that the grounds of appeal were without merit.

  • Whether the trial judge erred in directing the jury on how to use relationship or context evidence (the other misconduct evidence)
  • Whether the trial judge's directions concerning the assessment of the complainant's evidence as a child witness exceeded the bounds of permissible judicial comment and improperly usurped the jury's role in assessing credibility
  • Whether the trial judge failed to properly put the defence case to the jury
  • Whether leave to extend the time for bringing the appeal should be granted

Decision

Extension of time: The Court granted leave to extend time. While the 15-month delay was significant, the Court found the explanation adequate given the genuine difficulties in obtaining the complete trial transcript and jury note. The interests of justice, combined with the Crown's concession that the grounds were not without merit, supported allowing the appeal to proceed. The Court acknowledged the legitimate interests of complainants and witnesses in finality, particularly where re-trial would require giving evidence a third time, but concluded those considerations did not outweigh the justice of permitting the appeal.

Directions on child witness evidence and credibility: The Court found that the trial judge's directions about the complainant's evidence crossed the critical line between permissible comment and binding direction. Some observations were expressed in imperative terms that the jury would have understood as directions rather than comment. Most significantly, the jury was effectively directed that if the complainant was telling the truth, she might have difficulty giving evidence because she was reliving the assault. The Court held this impermissibly invited the jury to discount defence submissions about the complainant's demeanour as a basis for doubting her credibility.

Further, the trial judge described the complainant in terms that went beyond comment and amounted to a personal endorsement of her as a reliable witness, characterising her as someone "in control of her emotions" despite inner turmoil. The Court held this far exceeded permissible comment in a case where credibility was a central and contested issue. Drawing on the High Court's analysis in Mahmood v State of Western Australia, the Court emphasised the fundamental distinction between judicial comment (which the jury may ignore) and judicial direction (which the jury must heed), and the importance of maintaining that distinction.

The Court found these errors were sufficient to allow the appeal and ordered a new trial. The convictions on both counts were quashed.

Orders Made

  • Leave granted to extend the time for bringing the appeal
  • Appeal against conviction allowed
  • Convictions on both counts on the indictment quashed
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge must maintain a clear distinction between judicial comment and judicial direction when addressing a jury, particularly on matters of witness credibility.
  • Where a trial judge characterises a complainant's demeanour or reliability in terms that are imperative rather than permissive, there is a real risk that the jury will understand those observations as binding directions, impermissibly removing the credibility assessment from the jury's hands.
  • Directing a jury that a truthful complainant might struggle to give evidence because of the nature of the alleged offending can amount to an impermissible instruction to discount defence submissions about demeanour.
  • In deciding whether to extend time for an appeal, the Court will weigh the explanation for delay against the interests of justice, including the interests of victims and witnesses in finality, but a delay of 15 months caused by genuine difficulties in obtaining transcripts will not necessarily be treated as inordinate.
  • Judicial comment on the evidence of child witnesses is not categorically impermissible, but where credibility is a central issue, personal endorsements of a witness's reliability expressed as matters of fact will exceed the bounds of permissible comment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1)
- Criminal Appeal Rules (NSW), Rule 4
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Mahmood v State of Western Australia [2008] HCA 1; 232 CLR 397
- Crampton v R [2000] HCA 60; 206 CLR 161
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62
- R v Lawrence [1980] 1 NSWLR 122
- CMG v R [2011] VSCA 416
- Germakian v R [2007] NSWCCA 373; 70 NSWLR 467
- KTR v R [2010] NSWCCA 271
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- NJB v R [2010] NTCCA 05
- Peacock v R [2008] NSWCCA 264; 190 A Crim R 454
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
- R v Barker [2010] EWCA Crim 4
- R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
- Wong v R [2009] NSWCCA 101