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10
Court of Criminal Appeal 28 July 2014

Jarrett v R

[2014] NSWCCA 140

Also reported as (2014) 86 NSWLR 623
Sexual offences
CRIMINAL LAW APPEAL CONVICTION DIRECTIONS TO JURY APPEAL SENTENCE

Citation: Jarrett v R [2014] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 28 July 2014
Judges: Basten JA (principal judgment); R A Hulme J (agreeing); Campbell J (separate concurring judgment)

Background

The applicant was convicted by a jury in November 2012 on four counts of sexual assault against a 12-year-old complainant, with offences occurring in June 2007. The trial did not proceed until more than five years after the offences. The principal prosecution evidence was a video recording of the complainant's police interview and admissions made by the applicant when he was hospitalised in October 2007, after the complainant indicated she could no longer remain silent.

The complainant had not reported the offences immediately. She told her sister and friends shortly after the events, but did not give a full account to police until January 2009. The applicant had threatened to commit suicide if she told anyone, and he was admitted to hospital when he believed police had been contacted. During that admission, he made statements to hospital staff that were capable of being understood as admissions of sexual assault.

The applicant was sentenced to concurrent terms, with the two more serious offences each carrying eight years with a five-year non-parole period. He sought leave to appeal both his convictions and his sentence.

  • Whether the jury should have been given a further warning when they were allowed to access the complainant's video evidence in the jury room, beyond the standard direction already given under s 306X of the Criminal Procedure Act 1986 (NSW)
  • Whether the trial judge should have directed the jury that the applicant's admissions might have referred to a person other than the complainant
  • Whether the trial judge erred by declining to give a warning under s 165B of the Evidence Act 1995 (NSW) that delay in complaint had caused the applicant a "significant forensic disadvantage"
  • Whether the trial judge erred by not directing the jury that delay in complaint could be taken into account in assessing the complainant's credibility, pursuant to s 294(2)(c) of the Criminal Procedure Act 1986 (NSW)
  • Whether the sentencing judge failed to take account of the applicant's mental health condition

Decision

Video in the jury room (Ground 1): The majority (Basten JA, R A Hulme J) held that no miscarriage of justice arose from the jury having access to the video in the jury room. The warning already given under s 306X was sufficient, and the manner of the jury's request, asking for the video alongside other exhibits, indicated it was unlikely to be misused. Campbell J agreed there was no miscarriage, but characterised allowing unsupervised jury access to the recording as an irregularity. His Honour endorsed the approach in Gately v The Queen (2007) 232 CLR 208 and expressed the view that, in NSW, requests to review such recordings should ordinarily be met by replaying them in open court in the presence of the judge, counsel and the accused, rather than by providing the jury with unrestrained access.

Direction on admissions (Ground 2): All three judges agreed that the proposed direction, that the applicant's admissions might have referred to someone other than the complainant, would have been actively harmful rather than beneficial. Such a direction would have implied the applicant may have committed similar offences against a different victim, creating a risk of serious prejudice far outweighing any forensic benefit.

Forensic disadvantage from delay (Ground 3): The Court granted leave to appeal on this ground but dismissed it. The Court found that no significant forensic disadvantage was established on the facts. The applicant had been aware, well before the formal complaint was made, that a complaint was being contemplated, and his own conduct in threatening suicide had arguably contributed to the delay. Even assuming a disadvantage could be made out, the applicant's threat provided good reason not to give such a warning to the jury under s 165B.

Delay and complainant credibility (Ground 4): The Court held that the evidence did not reach the threshold of "sufficient evidence" required by s 294(2)(c) to justify a warning that delay in complaint was relevant to the complainant's credibility. While there were some inconsistencies in the complainant's evidence bearing on credibility, those inconsistencies did not, of themselves, provide the basis for a direction specifically linked to the fact of delay.

Sentence appeal (Ground 5): All three judges were satisfied that the sentencing judge had given careful attention to the applicant's mental health. Even on the hypothesis that the reasons were insufficiently explicit, the Court was not satisfied that a less severe sentence was warranted in law.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 294(2)(c) of the Criminal Procedure Act 1986 (NSW), a delay-in-complaint warning directed at a complainant's credibility is only required when there is "sufficient evidence" to justify it; inconsistencies in testimony do not, without more, satisfy that threshold.

  • A direction that an accused's admissions may have referred to an unidentified third party can be more prejudicial than helpful, as it risks suggesting the accused committed similar offences against another person.

  • Where an accused's own conduct contributed to a complainant's delay in reporting, that conduct may constitute a "good reason" under s 165B of the Evidence Act 1995 (NSW) for declining to give a forensic-disadvantage warning to the jury.

  • Campbell J, applying Gately v The Queen (2007) 232 CLR 208, expressed the view that unsupervised jury access to a video recording of a vulnerable complainant's evidence is an irregularity in NSW practice; such requests should ordinarily be met by replaying the recording in court before the judge, counsel and the accused.

  • No miscarriage of justice arose from the irregularity in this case, given the warning already given to the jury and the nature of the jury's request.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 294, 294AA, 306X
- Evidence Act 1995 (NSW), s 165B
- Crimes Act 1900 (NSW), ss 61J, 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases:
- Gately v The Queen [2007] HCA 55; 232 CLR 208
- R v NZ [2005] NSWCCA 278; 63 NSWLR 628
- Gavin v R [2006] NSWCCA 66
- Shepherd v The Queen [1990] HCA 56; 170 CLR 573
- Kilby v The Queen [1973] HCA 30; 129 CLR 460
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- Suresh v The Queen [1998] HCA 23; 72 ALJR 769
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- M v The Queen [1994] HCA 63; 181 CLR 487
- Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453
- Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24
- R v LTP [2004] NSWCCA 109
- Hristovski v R [2010] NSWCCA 129
- Collier v R [2012] NSWCCA 213
- R v Hemsley [2004] NSWCCA 228
- JJB v The Queen [2006] NSWCCA 126; 161 A Crim R 187