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Court of Criminal Appeal 24 November 2017

R v JT

[2017] NSWCCA 272

Sexual offences
INTERLOCUTORY APPEAL

Citation: R v JT [2017] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 24 November 2017
Judges: Hoeben CJ at CL, Latham J, N Adams J

Background

The respondent, who was 14 years old at the time of the alleged offences in 2012, faced an indictment of six counts of sexual offending against three child siblings whose family had stayed with his family for approximately six months. Four of those counts related to a single complainant, KM, who was seven years old at the time of the alleged conduct. The complainant had given two video-recorded police interviews, which were to be played as her evidence in chief at trial under the Criminal Procedure Act 1986 (NSW).

Before the trial commenced, the trial judge (Bennett SC DCJ in the District Court) stayed the indictment on Counts 1 to 4, finding that those counts suffered from latent ambiguity and that further particulars were required before the trial could proceed. The DPP brought an interlocutory appeal to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW) to challenge that stay.

The four stayed counts covered a range of alleged conduct, including fellatio (s 66A(1) of the Crimes Act 1900 (NSW)), digital penetration (s 66A(1)), and two counts of indecent assault by frottage (s 61M(2)), one involving the respondent on top of KM and one involving KM on top of the respondent. The particulars underpinning each count were drawn from KM's two recorded interviews.

  • Whether the trial judge erred in finding that Counts 1 to 4 suffered from latent ambiguity requiring the provision of further particulars before the trial could proceed.
  • Whether the particulars already provided, derived from KM's two recorded interviews, were sufficient for the respondent to understand the charges brought against him.
  • Whether the potential for a complainant to become less specific or to conflate incidents under cross-examination is a valid basis for staying an indictment.

Decision

The Court of Criminal Appeal, in reasons delivered by N Adams J (with Hoeben CJ at CL and Latham J agreeing), allowed the Crown's appeal and set aside the stay. The court found that the trial judge had erred in concluding that the four counts suffered from latent ambiguity. The particulars already available from KM's two recorded interviews were sufficient to identify each alleged offence as a discrete incident with its own characteristics.

The court examined the particulars for each count in turn. Each count was supported by details going to location, the nature of the alleged act, the surrounding circumstances, and in some instances the presence or absence of other people. While the particulars were not exhaustive, the court was satisfied that the respondent could understand the case he was required to meet.

N Adams J drew a clear distinction between the sufficiency of particulars for the purposes of identifying a charge, and the adequacy of the evidence available to challenge a complainant's account at trial. The fact that KM might, under cross-examination, become confused between the charged incidents and other contextual or non-specific conduct was characterised as a question relevant to proof beyond reasonable doubt at trial, not a basis for staying the indictment. The court noted that the alleged offences occurred over a short and fixed period while the families shared a home, and alibi evidence was not in issue.

The court also acknowledged the genuine complexity of the trial ahead, including the use of the complainants' evidence as tendency evidence and the presence of considerable non-specific context evidence. However, those complexities did not elevate the risk of confusion under cross-examination into a reason to require further particulars at this pre-trial stage.

Orders Made

  • The appeal was allowed.
  • The stay of the indictment ordered by the primary judge on 10 July 2017 was set aside.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for whether further particulars are required turns on whether the accused can understand the charges brought against him, not on whether the evidence supporting those charges is ideally precise or immune from challenge under cross-examination.
  • A distinction exists between having sufficient particulars to identify the charge and having material capable of undermining a complainant's credibility or reliability at trial. Those are separate questions addressed at different stages of proceedings.
  • Where alleged sexual offences are said to have occurred during a short, identifiable period in a shared domestic setting, that context bears on the assessment of whether existing particulars are adequate.
  • Potential confusion by a complainant between specific charged conduct and non-specific context evidence during cross-examination is a matter going to whether the Crown can prove its case beyond reasonable doubt. It is not, of itself, a ground on which to stay an indictment.
  • Under s 5F(2) of the Criminal Appeal Act 1912 (NSW), the Crown may appeal interlocutory orders of this kind, and the Court of Criminal Appeal will assess whether the primary judge's characterisation of the counts as latently ambiguous was legally correct.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Criminal Procedure Act 1986 (NSW), ss 130A, 306V
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- RG v R [2010] NSWCCA 173
- S v The Queen (1989) 168 CLR 266
- Yildiz v R [2006] NSWCCA 97