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Court of Criminal Appeal 3 September 2021

Long (a pseudonym) v R

[2021] NSWCCA 212

Sexual offences

Citation: Long (a pseudonym) v R [2021] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 3 September 2021
Judges: Basten JA, Adamson J, Campbell J

Background

The applicant, given the pseudonym "Long," was convicted of seven sexual offences against two young girls, referred to as "Kate" and "Nettie," who had been placed in foster care with the applicant's parents. The applicant was related to the victims through family ties. The offending occurred in the shared family home over approximately four years, commencing in 2012 when Nettie was around seven years old and Kate was around four to five years old.

The applicant was a child himself for part of the offending period, having been born in December 1997. He was convicted of three counts of indecently assaulting Kate, one indecent assault on Nettie, and three counts of sexual intercourse with Nettie. He was acquitted on one count involving Kate.

The applicant sought leave to appeal both his convictions and his aggregate sentence, raising seven grounds relating to the convictions and one ground challenging the sentence as manifestly excessive.

  • Whether the trial judge gave adequate warnings under ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) regarding evidence given via pre-recorded police interviews and audio visual link, in circumstances where those warnings were not given immediately before the evidence was presented to the jury.
  • Whether the trial judge erred in directing the jury that complaint evidence could be used as evidence "independent of" the complainants' trial evidence, given concerns about that word's connotations in the law of corroboration.
  • Whether the trial judge erred in replaying pre-recorded interview footage when the jury requested "video transcripts."
  • Whether the direction regarding "appropriate concessions" was appropriate.
  • Whether the acquittal on one count was inconsistent with the guilty verdicts on the remaining counts.
  • Whether any of the guilty verdicts were unreasonable or unsupported by the evidence.
  • Whether the aggregate sentence was manifestly excessive, having regard to the applicant's youth and immaturity at the time of the offending.

Decision

Warnings under ss 306X and 306ZI: The Court rejected the argument that warnings must be given immediately before or after the relevant evidence is received. The statute does not specify timing, and the matter is left to the trial judge's discretion. The Court noted that a warning had been given and repeated when the jury viewed the audio visual evidence a second time. It also observed that over-repeating such warnings can be counterproductive, potentially inviting the jury to speculate about what might give rise to adverse inferences. Leave to appeal was refused on these grounds.

Use of the word "independent" in complaint directions: The trial judge's summing up on complaint evidence ran to approximately 16 pages and was, overall, clear and detailed. The Court found that in context, the jury would have understood "independent" to mean "separate from," rather than in the technical legal sense used in the former law of corroboration. While the Court acknowledged that the term is better avoided (consistent with the Criminal Trial Bench Book following SB v R), its use here was not capable of having any real bearing on the jury's understanding of how complaint evidence could be used. No error was established on this ground.

Replaying the recorded interviews: When the jury requested "video transcripts," the trial judge replayed the recorded interviews and provided written transcripts of other witnesses' evidence. Appropriate directions were given before the replay. The applicant's trial counsel did not object to the replay, and the Court found no error in this course.

Inconsistent verdicts: The acquittal on the one count involving Kate was not inconsistent with the convictions on the other counts. The Court found that the evidence on that count was qualitatively more limited, and it was open to the jury to conclude that the complainant may have misunderstood what occurred and that the count had not been proved beyond reasonable doubt. The difference in evidence, not logical inconsistency, explained the divergent verdicts.

Unreasonable verdicts: On the whole of the evidence, the Court was satisfied that it was open to the jury to be convinced beyond reasonable doubt on the remaining counts. The jury's resolution of the conflicts in the evidence, including accepting the complainants and rejecting the applicant, disclosed no misapplication of the legal directions.

Sentence: The Court rejected the submission that the sentence was manifestly excessive. Although the applicant's youth and immaturity were relevant mitigating factors, the sentencing judge found the applicant knew his conduct was wrong. The offending was characterised by exploitation, opportunism, a sense of entitlement, and increasing severity over time.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW), there is no fixed rule requiring warnings about vulnerable witness evidence to be given immediately before or after that evidence is received. The timing lies within the trial judge's discretion, and the adequacy of warnings is assessed against all the circumstances of the particular case.

  • The Court of Criminal Appeal confirmed that using the word "independent" in a complaint evidence direction is better avoided, consistent with the standard Criminal Trial Bench Book direction and the earlier decision in SB v R, but its use does not automatically constitute a reversible error. The question is whether it could have had a real bearing on the jury's understanding in context.

  • Acquittal on one count in a multi-count trial is not necessarily inconsistent with convictions on other counts where the evidence on the acquitted count was qualitatively more limited, rather than fundamentally contradictory.

  • A replaying of pre-recorded evidence in response to a jury request, accompanied by appropriate directions, does not constitute error, particularly where trial counsel did not object to the course taken.

  • Youth and immaturity at the time of offending are relevant sentencing considerations, but they do not, of themselves, render a sentence manifestly excessive where the offending involved exploitation of very young children, escalating severity, and the offender's awareness that the conduct was wrong.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 15A
- Crimes Act 1900 (NSW), ss 61HA, 61M, 66A, 66C, 578A
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 306M, 306X, 306Z, 306ZI
- Evidence Act 1995 (NSW), s 164
- Jury Act 1977 (NSW), s 55C

Cases:
- AB v R [2019] NSWCCA 82
- DBG v R [2002] NSWCCA 328; 133 A Crim R 227
- Dinsdale v The Queen (2000) 202 CLR 321
- Gatley v The Queen (2007) 232 CLR 208
- Jarrett v R [2014] NSWCCA 140
- M v The Queen (1994) 181 CLR 487
- McKell v The Queen (2019) 264 CLR 307
- MFA v The Queen (2002) 213 CLR 606
- Nguyen v R [2017] NSWCCA 145
- Palmer v The Queen (1998) 193 CLR 1
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Markuleski (2001) 52 NSWLR 82
- R v NZ (2005) 63 NSWLR 628
- SB v R [2020] NSWCCA 207
- SKA v The Queen (2011) 243 CLR 400