Citation: Neto v R [2020] NSWCCA 128
Court: Court of Criminal Appeal, NSW
Date: 18 June 2020
Judges: Basten JA, Fagan J, Hidden AJ
Background
The applicant was convicted in the District Court of four counts of sexual intercourse without consent and one count of common assault, arising from an alleged episode in the early hours of 12 February 2017 at a house at Church Point. The complainant, who had a pre-existing social connection with the applicant through a mutual friend, alleged that the applicant entered her bedroom while she slept and committed the offences. The applicant denied the conduct was non-consensual.
The complainant reported the matter to police the following day. She had also, in the immediate aftermath, sought an apology from the applicant and told mutual friends that he had raped her. The defence raised inconsistencies in her account and suggested her complaint was a subsequent fabrication.
The applicant sought leave to appeal against conviction only. He raised three grounds: that the trial judge failed to give a "Murray direction" (a close-scrutiny warning regarding a single-witness Crown case), that the direction actually given was inadequate, and that the verdicts were unreasonable.
Legal Issues
- Whether the trial judge was required to give a "Murray direction" instructing the jury to scrutinise the complainant's evidence with great care, given that she was effectively the sole witness to the alleged offences
- Whether the direction actually given on the sufficiency of the complainant's evidence was adequate
- Whether the guilty verdicts were unreasonable or unsupported by the evidence, applying the test from M v The Queen (1994) and Pell v The Queen [2020]
Decision
Grounds 1 and 2: The Murray direction
Basten JA delivered detailed observations on the so-called "Murray direction," emphasising that the label is misleading because it ignores significant statutory changes since R v Murray (1987). Section 294AA of the Criminal Procedure Act 1986 (NSW) now expressly prohibits a judge from warning a jury, or making any suggestion to a jury, that complainants as a class are unreliable witnesses. This prohibition extends to warnings about the danger of convicting on uncorroborated complainant evidence.
Basten JA, drawing on his earlier reasoning in Ewen v R, stressed that the prohibition cannot be avoided by substituting one form of words (such as "dangerous to convict") for another (such as "scrutinise with great care"). Even a direction that a case depends on a single witness risks implying unreliability, which is precisely what s 294AA prohibits. His Honour noted that in most sexual assault prosecutions other corroborating evidence typically exists, so a general "single witness" direction can itself mislead. Hidden AJ's summary of the trial judge's actual directions was accepted as sufficient; requiring more would risk infringing the statutory prohibitions. Leave to appeal on grounds 1 and 2 was refused.
Ground 3: Unreasonable verdicts
Hidden AJ applied the standard from M v The Queen and Pell v The Queen: whether it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt. The court examined the complainant's evidence in detail, noting she gave a detailed and consistent account, made a prompt complaint maintained through communications with others, and reported the matter to police the next day. The defence pointed to various inconsistencies, the absence of physical injury, her delay in calling police, and her seeking an apology rather than immediately reporting the matter. Hidden AJ found these features were equally consistent with her truthful account of a frightening and unexpected assault. Leave to appeal on ground 3 was granted, but the ground was rejected on the merits.
Orders Made
- Leave to appeal refused on grounds 1 and 2
- Leave to appeal granted on ground 3
- Appeal dismissed
Key Takeaways
- Section 294AA of the Criminal Procedure Act 1986 (NSW) prohibits not just the traditional "dangerous to convict on uncorroborated evidence" warning but also its functional equivalents, including any direction that invites the jury to scrutinise a complainant's evidence with special care on account of her being an unreliable class of witness.
- The Court of Criminal Appeal confirmed that linguistic reformulations of a prohibited warning do not cure the statutory prohibition; substance, not form, determines whether a direction contravenes s 294AA.
- A direction that the Crown case rests on the evidence of a single witness may itself mislead in sexual assault trials, where other evidence such as DNA, medical findings, or complaint evidence frequently exists alongside the complainant's testimony.
- In assessing whether a verdict is unreasonable, a complainant's delayed report to police, her seeking an apology from the alleged offender, and post-incident communications with friends are not necessarily inconsistent with a truthful account of sexual assault.
- No error was established in the trial judge's directions on the evidence; requiring adoption of the specific language from R v Murray (1987) would be both unnecessary and potentially contrary to the statutory scheme as it now stands.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 405C (repealed)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 294AA
- Evidence Act 1995 (NSW), ss 164, 165
Cases
- R v Murray (1987) 11 NSWLR 12
- Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen [2020] HCA 12
- AL v R [2017] NSWCCA 34
- Day v R [2017] NSWCCA 192
- DH v R [2020] NSWCCA 2
- Libke v The Queen (2007) 230 CLR 559
- MFA v The Queen (2002) 213 CLR 606
- R v GW (2016) 258 CLR 108
- Longman v The Queen (1989) 168 CLR 79
- Robinson v The Queen (1999) 197 CLR 162
- Fleming v The Queen (1998) 197 CLR 250
- Tully v The Queen (2006) 230 CLR 234
- R v Markuleski (2001) 52 NSWLR 83
- Tonari v R [2013] NSWCCA 232
- Aravena v R [2015] NSWCCA 288
- Hawi v R [2014] NSWCCA 83