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Court of Criminal Appeal 3 August 2016

GP v R

[2016] NSWCCA 150

Sexual offences
CRIMINAL LAW APPEAL CONVICTION CRIMINAL LAW APPEAL SENTENCING

Citation: GP v R [2016] NSWCCA 150
Court: Court of Criminal Appeal, New South Wales
Date: 3 August 2016
Judges: Payne JA; McCallum J; Wilson J

Background

The appellant was convicted by a District Court jury of two counts of sexual intercourse with a child under the age of ten, contrary to s 66A of the Crimes Act 1900 (NSW). The complainant was the appellant's paternal niece, and was alleged to have been three or four years old at the time of the offences, which occurred between February 2006 and May 2007. The complainant did not disclose the abuse until 2012, when she made the allegations to family members and was subsequently interviewed by police on three occasions.

At trial, counsel for the appellant sought to cross-examine the complainant about her prior sexual history, specifically to suggest that another family member, and not the appellant, had assaulted her. The trial judge refused that application, ruling that no relevant exception under s 293 of the Criminal Procedure Act 1986 (NSW) applied. That ruling became the central issue on appeal.

The appellant was sentenced to 16 years imprisonment with a non-parole period of 10 years. He appealed both the conviction and the sentence.

  • Whether the trial judge erred in refusing to permit cross-examination of the complainant about prior sexual history under the exception in s 293(4)(c) of the Criminal Procedure Act 1986 (NSW), specifically whether the complainant's emotional distress at the time of disclosure constituted an "injury" attributable to the alleged sexual intercourse
  • Whether the primary judge fell into "Muldrock error" in the sentencing process, by placing undue emphasis on standard non-parole periods
  • Whether the sentence imposed was manifestly excessive

Decision

Conviction appeal: the s 293 question

Section 293(3) of the Criminal Procedure Act renders inadmissible evidence that discloses or implies a complainant's prior sexual experience or sexual activity. Section 293(4)(c) creates an exception where, among other things, an accused can demonstrate that a physical injury suffered by the complainant is attributable to the sexual intercourse alleged. The appellant argued that the complainant's visible emotional distress, including crying when disclosing the allegations, constituted such an "injury."

The Court rejected this argument comprehensively. Payne JA, with whom McCallum J and Wilson J agreed, held that the word "injury" in its ordinary grammatical sense refers to harm or damage, and that the physical expression of temporary emotional distress (tears) does not meet that description. To accept the appellant's construction would not merely stretch the word's meaning but would effectively ignore it. The Court also observed that treating distress as injury would undermine the protective purpose of the section, which is to shield complainants from humiliating and distressing cross-examination. Ground 1 was dismissed, and leave to appeal on ground 2 was refused.

Sentence appeal

The Court granted leave to appeal on grounds 3 to 5, which raised Muldrock error and manifest excess. Having considered the sentencing judge's reasons, the Court found no error in the approach taken and concluded the sentence was not manifestly excessive. All sentence grounds were dismissed.

Orders Made

  • Ground 1 (conviction appeal) dismissed
  • Leave to appeal refused on ground 2
  • Leave to appeal granted on grounds 3 to 5 (sentence appeal)
  • Appeal dismissed on grounds 3 to 5

Key Takeaways

  • Under s 293(4)(c) of the Criminal Procedure Act 1986 (NSW), the "injury" required to enliven the exception to the prohibition on prior sexual history evidence must be a real harm or physical damage, not the transient emotional distress of a complainant when making a disclosure.
  • A complainant's crying or visible distress when recounting an alleged sexual assault may be evidence of conduct consistent with a genuine complaint, but the Court of Criminal Appeal confirmed it does not constitute "injury attributable to the sexual intercourse alleged" for the purposes of s 293(4)(c)(ii).
  • Statutory construction of undefined terms in the Criminal Procedure Act proceeds by reference to the ordinary and grammatical meaning of the word in context, read alongside the purpose and object of the legislation, following the approach confirmed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41.
  • The protective purpose of s 293 (shielding complainants from humiliating cross-examination about sexual history) is a material consideration when courts interpret the scope of exceptions to the general exclusionary rule.
  • No Muldrock error or manifest excess was established in the sentencing of a 16-year term with a 10-year non-parole period for two counts of sexual intercourse with a child under the age of ten.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 66A, 409B, 578A
- Criminal Procedure Act 1986 (NSW) ss 105, 293
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54B
- Criminal Appeal Act 1912 (NSW) s 5
- Evidence Act 1995 (NSW) s 137

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
- Carr v The State of Western Australia [2007] HCA 47; 232 CLR 138
- HG v The Queen [1999] HCA 2; 197 CLR 414
- IMM v The Queen [2016] HCA 14; 90 ALJR 529
- JAD v R [2012] NSWCCA 73
- KG v R [2012] NSWCCA 10
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Melbom v R [2013] NSWCCA 210
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v BA [2014] NSWCCA 148
- R v Dimian (1995) 83 A Crim R 358
- R v Henning & Ors (Court of Criminal Appeal (NSW), 11 May 1990, unreported)
- R v McGarvey (1987) 10 NSWLR 632
- R v Morgan (1993) 30 NSWLR 543
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460