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17
Court of Criminal Appeal 22 March 2017

AL v Regina

[2017] NSWCCA 34

Also reported as (2017) 266 A Crim R 1
Sexual offences
CRIMINAL LAW CONVICTION APPEAL COMPLAINANT AGED 4 TO 5 DELAY IN BRINGING PROSECUTION S 165 EVIDENCE ACT DIRECTION MURRAY DIRECTION

Citation: AL v Regina [2017] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 22 March 2017
Judges: Leeming JA, Schmidt J, Wilson J

Background

The appellant (identified only as "AL") was convicted by a jury in March 2016 on three counts of sexual intercourse with a child under the age of 10, contrary to s 66A of the Crimes Act 1900 (NSW). The offences were alleged to have occurred between September 2003 and February 2005, when the complainant was aged 4 to 5 years old. At the time of the alleged offending, AL was aged between approximately 12 and 13 years.

The complainant did not disclose the abuse until 2013, when he first raised it with a psychiatrist. He subsequently participated in two recorded interviews with investigators from the Joint Investigation Response Team (JIRT), the second of which provided the more detailed account of three specific incidents that formed the basis of the charges. The complainant was 16 years old when he gave evidence at trial, approximately a decade after the alleged events occurred.

AL sought leave to appeal his convictions on four grounds, arguing deficiencies in the trial judge's directions to the jury and contending that the verdicts were unreasonable or unsupported by the evidence.

  • Whether the trial judge failed to give an adequate warning to the jury about the reliability of the complainant's evidence, given the complainant's age at the time of the alleged events and the significant delay in disclosure (the "Longman" or "Murray" direction and s 165 of the Evidence Act 1995).
  • Whether the trial judge failed to adequately direct the jury on the burden and standard of proof, particularly in relation to AL's own evidence as a witness (the "Liberato" direction).
  • Whether the jury's verdicts were unreasonable or could not be supported by the evidence.
  • Whether the trial judge failed to adequately direct the jury on the doctrine of doli incapax (the common law presumption that a child under 14 lacks criminal capacity, which must be rebutted by the Crown).

Decision

Ground 1 (Warning as to complainant's evidence): Leave to appeal was granted on this ground. The Court considered whether the trial judge's directions adequately addressed the unreliability concerns arising from the complainant's very young age at the time of the alleged events and the lengthy delay before disclosure. The Court ultimately found no error warranting the setting aside of the convictions and dismissed this ground.

Ground 2 (Burden and standard of proof, accused's evidence): Leave to appeal was refused on this ground. The Court was not satisfied that any inadequacy in the direction regarding AL's evidence as a witness gave rise to a viable ground of appeal. The applicable principle from Liberato v The Queen (1985) 159 CLR 507 requires a jury to be directed that, even if it rejects the accused's evidence, it must still be satisfied beyond reasonable doubt of guilt on the whole of the evidence. The Court found no basis to grant leave to pursue this ground.

Ground 3 (Unreasonable verdict): Leave to appeal was granted on this ground. The Court examined the evidence in detail, including the complainant's accounts across both JIRT interviews and the cross-examination concerning inconsistencies, the resurgence of memory through nightmares, and details of the layout and occupants of AL's home that the complainant could not recall. The Court concluded that it was open to the jury to be satisfied beyond reasonable doubt of AL's guilt, and that the verdicts were not unreasonable and were supported by the evidence.

Ground 4 (Doli incapax): This ground was added by leave at the hearing. Doli incapax is the common law presumption that a child aged between 10 and 14 is incapable of criminal responsibility unless the Crown proves the child knew the conduct was seriously wrong, not merely naughty. The Court considered this ground in light of the High Court's decision in RP v The Queen [2016] HCA 53, but refused leave to appeal on this ground.

Orders Made

  • Leave granted to appeal on grounds 1 and 3.
  • Leave to appeal on grounds 2 and 4 refused.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that juries are not required to accept every detail of a Crown case to return a guilty verdict; inconsistencies and gaps in a complainant's account are matters for the jury to weigh alongside all the evidence.
  • A delayed disclosure of child sexual abuse, and the complainant's very young age at the time of the events, are factors that may trigger obligations on a trial judge to warn the jury about the potential unreliability of evidence (drawing on Longman v The Queen (1989) 168 CLR 79 and R v Murray (1987) 11 NSWLR 12), although no error was found on the facts here.
  • Where an accused is aged between 10 and 14 at the time of the alleged offending, the doli incapax presumption is potentially engaged, requiring the Crown to rebut it by proving the accused knew the conduct was seriously wrong. The Court considered this issue in light of RP v The Queen [2016] HCA 53 but declined to grant leave on that ground in the circumstances of this case.
  • Under the rule in Browne v Dunn, the Crown is not required to put every detail of its case to an accused in cross-examination; what is required is that the accused be given a fair opportunity to comment on the broad propositions relied upon against them.
  • In assessing an unreasonable verdict ground, the appellate court examines whether it was open to the jury, on the whole of the evidence including its strength and quality, to be satisfied beyond reasonable doubt. No error was established on that basis here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 306S
- Evidence Act 1995 (NSW), s 165

Cases:
- RP v The Queen [2016] HCA 53
- Liberato v The Queen (1985) 159 CLR 507
- Longman v The Queen (1989) 168 CLR 79
- R v Murray (1987) 11 NSWLR 12
- M v The Queen [1994] HCA 63; 181 CLR 487
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Browne v Dunn (1893) 6 R 67
- R v Markuleski (2001) 52 NSWLR 82
- AP v R [2013] NSWCCA 189
- DRE v R [2006] NSWCCA 280; (2006) 164 A Crim R 400
- Llewellyn v R [2011] NSWCCA 66
- Hong v The Queen [2009] NSWCCA 242
- Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
- JJB v R [2006] NSWCCA 126; (2006) 161 A Crim R 187