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Court of Criminal Appeal 31 October 2014

JWM v R

[2014] NSWCCA 248

Also reported as (2014) 245 A Crim R 538
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL DISMISSED

Citation: JWM v R [2014] NSWCCA 248
Court: Court of Criminal Appeal, New South Wales
Date: 31 October 2014
Judges: Hall J (primary judgment); R A Hulme J and Davies J agreeing

Background

The appellant was the stepfather of the complainant. He was tried in the District Court before Judge Ellis and a jury on eleven counts of historical child sexual offending alleged to have occurred in the mid-1980s and late 1980s, when the complainant was between approximately eight and fourteen years of age.

The jury acquitted the appellant on three counts and convicted him on eight: four counts of indecent assault on a child under sixteen years and four counts of aggravated sexual assault on a child between ten and sixteen years. The aggravating circumstance alleged in each sexual assault count was that the complainant was under the appellant's authority at the time. He was sentenced to an effective head sentence of five years and eight months with a non-parole period of two years and two months.

The appellant did not challenge his sentence. He appealed against his convictions only, raising five grounds directed at evidentiary rulings and directions given by the trial judge.

  • Whether the trial judge erred in refusing to admit, under s 293 of the Criminal Procedure Act 1986, evidence of a statement made by the complainant after the offences (to the effect that she was then a virgin), which the defence sought to use as a prior inconsistent statement.
  • Whether the trial judge erred in declining to grant leave to cross-examine the complainant about the contents of her counselling consultations, pursuant to ss 299D and 300 of the Criminal Procedure Act 1986.
  • Whether the trial judge erred in failing to warn the jury that the complainant's stated "pretext" for initiating a recorded conversation with the appellant could not be used as tendency evidence.
  • Whether the trial judge failed to adequately direct the jury that sexual references in the pretext conversation were to be treated only as context evidence and not as tendency evidence.
  • Whether the guilty verdicts on Counts 10 and 11 should be set aside on the basis that the trial judge inaccurately described the facts and circumstances of those offences to the jury.

Decision

Ground 1 (the "virginity" statement): Hall J examined whether s 293 of the Criminal Procedure Act 1986, which restricts the use of evidence about a complainant's sexual experience, applied to bar the admission of the complainant's statement that she was a virgin. The Court rejected the appellant's contention that the statement fell within a permissible exception allowing its use as a prior inconsistent statement, finding no error in the trial judge's ruling on this point.

Ground 2 (counselling records cross-examination): The appellant argued he was denied the opportunity to cross-examine the complainant about her counselling sessions, particularly a passage in which the complainant recounted a therapist's apparent expression of doubt. The Court found no error in the trial judge's exercise of the discretion under ss 299D and 300 of the Criminal Procedure Act 1986 to refuse that leave.

Ground 3 (pretext conversation and tendency evidence): The complainant had initiated a recorded telephone conversation with the appellant under a pretext relating to her concern that what had happened to her might happen to her children. The appellant contended the trial judge failed to warn the jury that this pretext could not be used as tendency evidence and failed to adequately link other sexual references in the conversation to context evidence directions. The Court found the trial judge's directions were sufficient to address the risk of impermissible use, and the grounds were rejected.

Grounds 4 and 5 (misdirection on Counts 10 and 11): The appellant argued the trial judge's description of the facts underlying Counts 10 and 11 was inaccurate. On Count 11, the Court found the ground rested on a misconception: the evidence established only one episode of penile-vaginal intercourse at the relevant location (an Ampol Service Station), and the summing up was consistent with the Crown's case. Leave to rely on both grounds was refused. All grounds being without merit, the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that all five grounds were without merit, none of the trial judge's evidentiary rulings or directions rising to the level of appealable error.
  • Under s 293 of the Criminal Procedure Act 1986, a complainant's post-offence statement about virginity did not necessarily fall within the exception permitting such evidence to be led as a prior inconsistent statement; the provision's restrictions on sexual experience evidence were given effect.
  • Refusal of leave under ss 299D and 300 to cross-examine a complainant on counselling records involves a judicial discretion, and no error was established in how that discretion was exercised at trial.
  • Where a pretext conversation contains references to uncharged sexual conduct, adequate context evidence directions from the trial judge may be sufficient to prevent impermissible use of that material as tendency evidence; the absence of an express tendency warning does not automatically produce error.
  • A ground of appeal based on misdirection about the facts of a specific count will fail where it rests on a misconception about the evidence actually adduced at trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 61E(2), 66C(2)
- Criminal Procedure Act 1986 (NSW), ss 293, 299D, 300

Cases:
- BG v R [2010] NSWCCA 301
- Bin Sulaeman v R [2013] NSWCCA 283
- Christian v R [2012] NSWCCA 34
- Clark v R [2008] NSWCCA 122
- Doyle v R [2014] NSWCCA 4
- Edwards v R (1993) 178 CLR 193
- GEH v R [2012] NSWCCA 150
- Gregory v R (1983) 151 CLR 566
- NAR v PPC1 [2013] NSWCCA 25
- R v ITA [2003] NSWCCA 174
- R v M (1993) 67 A Crim R 549
- R v Morgan (1993) 30 NSWLR 543
- R v Picken [2007] NSWCCA 319
- R v Poniris [2014] NSWCCA 100
- R v White (1989) 18 NSWLR 332
- Rolfe v R [2007] NSWCCA 155
- Spratt v DPP [2010] NSWSC 355
- Taylor v R [2009] NSWCCA 180
- Toalepai v R [2009] NSWCCA 270