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Court of Criminal Appeal 21 December 2020

Cabot (a pseudonym) v R (No 2)

[2020] NSWCCA 354

Sexual offences
CRIMINAL LAW APPEAL LEAVE TO APPEAL AGAINST CONVICTION CHILD AGED BETWEEN 5 AND 8 YEARS EVIDENCE ACT 1995 (NSW) S 165B

Citation: Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354
Court: NSW Court of Criminal Appeal
Date: 21 December 2020
Judge(s): Gleeson JA; Price J; Wright J

Background

The applicant (referred to by the pseudonym "Cabot" pursuant to a statutory suppression obligation) was convicted at his second trial on six offences involving his stepson, who was aged between five and eight years at the time of the alleged incidents. The offences comprised four counts of committing an act of indecency on a child under 16 years and two counts of sexual intercourse with a child under 10 years, all alleged to have occurred between January 2013 and June 2016. The applicant had also been convicted of two further offences involving the same child at his first trial, and that earlier appeal had been dismissed in 2018.

The child first reported the abuse to his mother in early 2016. He participated in two video-recorded interviews with police (known as JIRT interviews) in July 2016 and May 2017, and gave pre-recorded evidence on two separate occasions. Throughout the proceedings, evidence indicated that the applicant had made threats to the child, including telling him not to tell his mother about the conduct.

At his second trial, the applicant was sentenced to an aggregate term of 14 years' imprisonment with a non-parole period of eight years and six months. He sought leave to appeal against conviction on a single ground.

  • Whether the trial judge erred in declining to give a "forensic disadvantage direction" to the jury under s 165B of the Evidence Act 1995 (NSW)
  • Whether any forensic disadvantage suffered by the accused was a "consequence of delay" within the meaning of s 165B(2), given that the applicant's own threats to the child contributed to that delay
  • Whether the accused's misconduct in making threats was relevant either to the s 165B(2) causation inquiry or as "good reasons" under s 165B(3) for declining to give the direction

Decision

Section 165B of the Evidence Act 1995 (NSW) requires a trial judge to direct the jury about significant forensic disadvantage suffered by an accused as a consequence of delay, but only where the court is satisfied that such disadvantage exists. The provision also contains a discretion under s 165B(3) to decline to give the direction for "good reasons."

Gleeson JA held that the trial judge did not err in refusing to give the direction. A critical aspect of the reasoning concerned causation: s 165B(2) requires that any significant forensic disadvantage be caused by the consequences of the delay. Here, the trial judge found that the applicant's threats to the child significantly contributed to the delay in complaint. Because the delay was itself caused by the accused's misconduct, any resulting forensic disadvantage flowed from those threats rather than from the delay as such. On that basis, the causal element in s 165B(2) was not satisfied.

Gleeson JA further held that even if the accused's misconduct were assumed to be irrelevant under s 165B(2), it remained a relevant consideration under s 165B(3). The finding about the applicant's threats independently constituted "good reasons" to refuse the direction under that sub-section, even though the trial judge had not expressly addressed s 165B(3). Price J and Wright J agreed with the reasons and orders proposed by Gleeson JA.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 3 June 2020
  • Leave to appeal against conviction on ground 1 granted
  • Appeal dismissed

Key Takeaways

  • Under s 165B of the Evidence Act 1995 (NSW), a forensic disadvantage direction is only required where the disadvantage suffered by the accused is caused by the consequences of delay in complaint, not merely associated with that delay.
  • Where an accused's own misconduct, such as making threats to silence a child complainant, substantially caused the delay in reporting, any forensic disadvantage is attributable to that misconduct rather than to the delay itself, and the s 165B(2) causal threshold may not be met.
  • The Court of Criminal Appeal confirmed that accused misconduct contributing to delay is also capable of constituting "good reasons" under s 165B(3) independently justifying a refusal to give the direction, even if the s 165B(2) inquiry were resolved differently.
  • No miscarriage of justice arises from a refusal to give a s 165B direction where the trial judge's reasoning is supported on either the causation ground or the "good reasons" discretion.
  • In dismissing the appeal, the Court endorsed the approach in TO v R [2017] NSWCCA 12 that the causal element in s 165B(2) must be carefully applied and that the sub-section cannot be read without regard to the accused's own role in creating the delay.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61A(1), 61M(2), 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), s 165B
- Criminal Procedure Act 1986 (NSW), Part 6

Cases
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- TO v R [2017] NSWCCA 12; (2017) 265 A Crim R 191
- Binns v R [2017] NSWCCA 280
- Lever (a pseudonym) v R [2018] NSWCCA 107
- Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140
- Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
- PT v The Queen [2011] VSCA 43
- R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60
- R v Arnold (1993) 30 NSWLR 73
- R v Mai (1992) 26 NSWLR 371
- R v Johns (1978) 2 NSWLR 259