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Court of Criminal Appeal 2 May 2013

RRS v R

[2013] NSWCCA 94

Sexual offences
CRIMINAL LAW EVIDENCE OF SEPARATE COMPLAINTS NO ISSUES OF CROSS ADMISSIBILITY RAISED AT TRIAL NO DIRECTION SOUGHT AT TRIAL DIRECTIONS TO THE JURY

Citation: RRS v R [2013] NSWCCA 94
Court: Court of Criminal Appeal, New South Wales
Date: 2 May 2013
Judge(s): Macfarlan JA, Hall J, Campbell J

Background

The appellant, RRS, was the father of two young complainants referred to as A and B. Between 2005 and 2008, he had full-time custody of both boys following family law proceedings. The alleged offences, involving aggravated sexual assault and aggravated indecent assault, were said to have occurred in the appellant's home between December 2006 and April 2008.

The complainants' mother, Ms X, first heard complaints from B during an access visit in April 2008 and contacted police that same day. Police subsequently conducted a series of recorded interviews with both complainants. The defence contended that the allegations were fabricated, suggesting the boys wanted to return to their mother's care and that Ms X had coached them to make false claims out of animosity towards the appellant.

At trial, the appellant was acquitted on two counts and convicted on four: one count of aggravated indecent assault and one of aggravated sexual assault relating to A, and two counts of aggravated indecent assault relating to B. He appealed on two grounds, both alleging errors of law in the trial judge's directions to the jury.

  • Whether the trial judge erred by failing to direct the jury in accordance with R v Mayberry [2000] NSWCCA 531 and R v Mitchell (1995) regarding the cross-admissibility of evidence between counts involving separate complainants.
  • Whether the trial judge erred by not giving a warning under s 165 of the Evidence Act 1995 concerning the reliability of complaint evidence, given the delay between the complaints and the mother's police statement, and the absence of corroboration.

Decision

Ground 1: Cross-Admissibility Direction

The Court rejected the argument that the trial judge was obliged to give a Mayberry-style direction. The Mayberry principle addresses situations where there is no suggestion of collusion between complainants and the trial judge must direct the jury that evidence on one count cannot be used as proof in relation to another. Here, however, the defence positively alleged concoction and collaboration, asserting that both complainants had been coached by their mother to fabricate the allegations together. This made the case distinguishable from the circumstances contemplated by Mayberry and Mitchell. The Court noted that no such direction had been sought at trial, and the trial judge's directions to consider each count separately were adequate in the circumstances.

Ground 2: Section 165 Warning

The Court also rejected the contention that a s 165 warning was required. Section 165 of the Evidence Act 1995 permits a judge to warn the jury about the potential unreliability of certain categories of evidence based on accumulated judicial experience. The three bases advanced for the warning were: the delay between Ms X hearing the complaints and making her police statement, the absence of corroboration, and alleged confusion in the complaint evidence. The Court found none of these, separately or in combination, required a s 165 direction. Because the reliability of Ms X and both complainants was directly and squarely in issue at trial through the concoction defence, the jury was left in no doubt that credibility was central. Those were conventional factual matters for the jury to resolve, addressed adequately through cross-examination and submissions.

Both grounds of appeal were dismissed and the convictions were upheld.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • The Mayberry direction (that evidence on one count cannot be used to prove a separate count involving a different complainant) applies where there is no suggestion of collusion. Where the defence case positively alleges concoction and coaching across complainants, the factual premise for that direction falls away.
  • No error was established merely because a trial judge did not give a cross-admissibility direction in terms specified in R v Mitchell or R v Mayberry, particularly where no such direction was sought at trial and the trial directions were otherwise adequate.
  • Under s 165 of the Evidence Act 1995, a reliability warning is not automatically required whenever complaint evidence involves delay or an absence of corroboration. The judge retains a discretion that is exercised by reference to the whole trial context.
  • Where the defence case directly challenges the credibility of complainants and their parent as alleged concoction, the jury's attention is already focused on reliability. A formal s 165 warning adds little and may not be required.
  • In dismissing both grounds, the Court of Criminal Appeal confirmed that the combined effect of cross-examination, defence submissions, and an instruction to consider each count separately can be sufficient, without additional specialised directions, where the trial's overall context makes the credibility issues plain.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 165
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)
- Family Law Act 1975 (Cth)
- Criminal Appeal Rules, Rule 4

Cases
- R v Mayberry [2000] NSWCCA 531
- R v Mitchell (NSWCCA, 5 April 1995, unreported)
- R v Collins [2001] NSWCCA 386
- R v Baartman [2000] NSWCCA 298
- R v Dennis (2010) 202 A Crim R 453; [2010] SASC 69