Citation: LB v R [2014] NSWCCA 295
Court: Court of Criminal Appeal, NSW
Date: 5 December 2014
Judge(s): Simpson J (leading judgment); Adams J (agreeing); R A Hulme J (agreeing)
Background
The appellant was tried in the District Court at Griffith on a charge of sexual intercourse without consent with a person under the age of 10 years, with an alternative count of attempted sexual intercourse. The alleged offending occurred at a family birthday party in September or October 2008, when the complainant was seven years old and the appellant was approximately 15. A jury acquitted the appellant on the principal count but found him guilty on the alternative count. He was sentenced to two years' imprisonment with a six-month non-parole period.
The complainant and his younger sister were interviewed by police in November 2011, approximately three years after the alleged incident. Both were classified as vulnerable witnesses. Their evidence in chief was presented to the jury by way of video-recorded police interviews, with cross-examination conducted via closed-circuit television, as permitted under the Criminal Procedure Act 1986 (NSW).
The appellant challenged his conviction on three grounds. Before the appeal was heard, he abandoned the first ground, which concerned the refusal to order a judge-alone trial. The remaining grounds challenged the admission and continued use of the complainant's evidence, and the overall reasonableness of the jury's verdict.
Legal Issues
- Whether the jury's guilty verdict on the alternative count was unreasonable or insupportable having regard to the evidence (Ground 3)
- Whether the trial judge erred by failing to reverse his earlier ruling admitting the complainant's video-recorded evidence in chief, and by not directing a verdict of not guilty (Ground 2)
- Whether the probative value of the complainant's evidence was outweighed by the danger of unfair prejudice, pursuant to s 137 of the Evidence Act 1995 (NSW)
Decision
Ground 3: Unreasonable verdict. Simpson J undertook a close examination of the complainant's evidence. The complainant was initially reluctant to describe what had occurred, using indirect language such as describing the appellant as "yucky" and "rude." Over the course of the police interview, he became more forthcoming, eventually describing being dragged onto a bed. The evidence contained some inconsistencies, including a passage in which the complainant appeared to suggest his account derived from what his sister had told him. Simpson J concluded, however, that the jury's verdict was not unreasonable or insupportable. The inconsistencies were matters for the jury to evaluate, and the verdict was within its province.
The jury's advantage in assessing child witnesses. Adams J added a notable observation about the weight properly given to jury verdicts in cases involving child complainants. While the transcript, read alone, gave rise to some concern about reliability, his Honour noted that inconsistencies in a child's account may be more apparent than real when tone and expression are taken into account. The jury's advantage in seeing and hearing a twelve-year-old witness, as opposed to the Court reading a cold transcript, was substantially greater than it would be for an adult witness. That advantage allayed his Honour's concern.
Ground 2: Admission of the complainant's evidence. The Court treated this ground as dependent on Ground 3. No application had been made at trial to revisit the admissibility ruling, which engaged Rule 4 of the Criminal Appeal Rules, requiring leave to raise the point. Simpson J found that any such application would have lacked merit. The question of the complainant's reliability was properly characterised as a matter of credibility for the jury, not a question of admissibility under the s 137 balancing exercise. Leave was refused, and the ground was rejected.
Orders Made
- Appeal against conviction dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that assessing the credibility and reliability of a witness is quintessentially a function of the jury, not an appellate court reviewing a written transcript.
- A conviction will not be set aside as unreasonable merely because a complainant's evidence contains inconsistencies, where those inconsistencies were before the jury and within its province to weigh.
- Adams J's concurrence highlights that the jury's advantage over an appellate court is especially pronounced when the witness is a child: tone, manner, and expression carry particular weight in evaluating the testimony of a young witness.
- Under s 137 of the Evidence Act 1995 (NSW), the question of whether probative value is outweighed by unfair prejudice is an admissibility question separate from the jury's assessment of credibility; conflating the two will not support a ground of appeal.
- Where no application is made at trial to revisit an admissibility ruling, Rule 4 of the Criminal Appeal Rules requires leave before that point can be agitated on appeal, and leave will be refused where the proposed challenge lacks merit.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
- Criminal Procedure Act 1986 (NSW), ss 306U, 306ZB, Ch 6 Pt 6
- Criminal Appeal Rules, Rule 4
Cases:
- Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
- Douglass v The Queen [2012] HCA 34; 290 ALR 699
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Chamberlain v The Queen [No 2] [1984] HCA 7; 153 CLR 521
- R v Prasad (1979) 23 SASR 101