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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: Court of Criminal Appeal
Date: 3 September 2021
Judge(s): Basten JA, Adamson J, Campbell J

Background

The applicant (referred to by pseudonym) was convicted in the District Court following a jury trial of seven sexual offences committed against two young girls, Kate and Nettie, who had been placed in foster care with his parents. The offending occurred between September 2012 and October 2016, when the applicant was between 14 and 17 years of age and the victims were between approximately four and eleven years old. Both girls gave their evidence in chief by way of pre-recorded police interviews, and were cross-examined by audio-visual link.

The applicant sought leave to appeal against his convictions on seven grounds and against his aggregate sentence of eight years and six months' imprisonment (with a non-parole period of four years and six months) on the ground of manifest excess. The defence case at trial was that the offences were fabricated and that the applicant had no opportunity to commit them, as he was never left alone with the children.

Legal Issues

  • Whether the statutory warnings required under ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW), concerning evidence given by pre-recorded interview and audio-visual link, were adequate when given in opening remarks rather than immediately before each witness's evidence
  • Whether the trial judge erred in directing the jury that complaint evidence could be used as "independent" evidence supportive of the complainants' claims
  • Whether the trial judge erred in replaying the recorded interviews when the jury requested "video transcripts"
  • Whether the trial judge's direction on the meaning of "appropriate concessions" was adequate
  • Whether the jury's acquittal on count 4 (alleged anal intercourse with Kate) while convicting on counts 1 to 3 constituted an inconsistent verdict
  • Whether the verdicts of guilty on the remaining counts were unreasonable and not supported by the evidence
  • Whether the aggregate sentence was manifestly excessive having regard to the applicant's youth

Decision

Grounds 1 and 2: Timing of statutory warnings for vulnerable witness evidence

The court noted that ss 306X and 306ZI require the specified warnings to be given but do not prescribe when they must be given. That timing falls within the trial judge's discretion. While the Court of Criminal Appeal had previously expressed a preference for warnings to be given immediately before or after the evidence (at [7]), there is no rule to that effect. Repetition of such warnings carries its own risks, including drawing undue attention to the difference in the form of evidence. In this case, the warnings given in opening remarks were adequate in substance, they were at least partially repeated in the summing up and immediately before the recordings were replayed, and no miscarriage of justice arose (at [6]-[8], [73]-[75]).

Ground 3: Use of the word "independent" in the complaint evidence direction

The trial judge used the word "independent" when directing the jury that it could use complaint evidence as something separate from the complainant's trial evidence. While lawyers may read technical significance into that word, recalling the common law rule that corroborative evidence must come from an independent source, the court found that the jury would have understood "independent" in the ordinary sense of "separate from" (at [9]-[11]). Although the word has since been removed from the standard Bench Book direction following the decision in SB v R [2020] NSWCCA 207, the court held that its use here was not capable of having any real bearing on the jury's understanding of the directions and did not constitute error warranting leave to appeal (at [12]-[14], [76]-[80]).

Ground 4: Replaying of recorded interviews

The jury's note requesting "video transcripts" was ambiguous. Trial counsel understood it to refer to transcripts; the trial judge construed it as a request to re-watch the videos. The trial judge proceeded to replay the recordings in court with appropriate directions and provided transcripts of both the recorded evidence and the cross-examination. Trial counsel did not object to the replaying of the videos once in court. His conduct in that regard was binding on the applicant. No error was established in the trial judge's approach (at [81]-[84]).

Ground 5: Direction on "appropriate concessions"

The jury sent notes during deliberations asking about the concept of "appropriate concessions" used by the trial judge in summing up. After consulting with counsel, the trial judge redirected the jury on the onus and standard of proof and the distinction between inference and speculation. The applicant's trial solicitor endorsed this approach. The court was not persuaded that the trial judge should have done more (at [85]-[88]). Leave under r 4.15 was refused.

Ground 6: Alleged inconsistent verdicts

The applicant argued that the jury's acquittal on count 4 (penile-anal intercourse with Kate) was inconsistent with its guilty verdicts on counts 1 to 3 concerning the same complainant. The court rejected this ground. Kate's evidence in respect of count 4 was qualitatively more limited than her evidence on counts 1 to 3, and she said in cross-examination that she felt nothing when the act occurred. The jury was entitled to conclude that penetration sufficient to constitute sexual intercourse had not been proved beyond reasonable doubt, possibly because it accepted that Kate had misunderstood or misinterpreted what occurred (at [15]-[18], [89]-[99]). The verdicts were rationally explicable.

Ground 7: Unreasonable verdicts

The court reviewed the whole of the evidence. It found the jury was entitled to accept the complainants' evidence and reject the evidence of the applicant and his family. Particularly significant was the applicant's admission in his electronically recorded interview that he had sometimes been left alone with the children, which contradicted the defence case that he was never alone with them (at [116]). The court was also satisfied that the jury was entitled to reject the suggestion that the complainants had a motive to fabricate, given the timing of their disclosures and their circumstances (at [126]-[130]). The verdicts were not unreasonable.

Sentence appeal: Manifest excess

Leave to appeal against sentence was granted given the applicant's age and the length of the sentence, but the appeal was dismissed. The sentencing judge expressly and carefully considered the applicant's youth and potential immaturity as mitigating factors (at [22]-[23]). However, the nature of the offending, its duration of approximately three years, its escalating severity, and the extreme vulnerability of the victims outweighed those considerations. The sentencing judge found that the applicant knew his conduct was wrong. The offending was characterised by exploitation, opportunism, a sense of entitlement, and increasing severity (at [27]-[29], [134]-[142]). The aggregate sentence was not manifestly excessive.

Orders Made

  • Leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) refused in respect of grounds 1, 2 and 5
  • Leave to appeal refused in respect of ground 6
  • Leave to appeal otherwise granted
  • Appeal dismissed

Key Takeaways

  • The timing of statutory warnings under ss 306X and 306ZI of the Criminal Procedure Act 1986 (NSW) for evidence given by pre-recorded interview or audio-visual link remains within the trial judge's discretion. There is no rule requiring those warnings to be given immediately before or after each vulnerable witness gives evidence, and repetition of the warnings carries its own risks (at [7], [73]-[74]).

  • Describing complaint evidence as "independent" in a jury direction is erroneous in the technical legal sense, because complaint evidence cannot be corroborative as it is not independent of the complainant. However, the Court of Criminal Appeal confirmed that the relevant question is the direction's effect on the jury, not on a punctilious lawyer, and that the word used in an ordinary sense was not capable of distorting the jury's understanding (at [77]-[79]).

  • Inconsistent verdicts across counts concerning the same complainant do not automatically establish a miscarriage of justice. Where the evidence on one count is qualitatively more limited or less clear than on others, a rational explanation for the differential verdicts may exist without any inference of jury compromise (at [15]-[18], [89]-[96]).

  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that youth and immaturity are proper mitigating factors in sentencing, but they do not automatically render a substantial custodial term manifestly excessive where the offending is serious, prolonged, escalating, and directed at very young and vulnerable victims (at [22]-[29], [141]-[142]).

  • An applicant is bound by the conduct of trial counsel. Where counsel did not object to the replaying of recorded interviews in court, and in fact accepted the procedure proposed by the trial judge, that position could not be resiled from on appeal (at [83]).

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
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

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; [2000] HCA 54
- Gatley v The Queen (2007) 232 CLR 208; [2007] HCA 55
- Jarrett v R [2014] NSWCCA 140
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Nguyen v R [2017] NSWCCA 145
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v ACK [2000] NSWCCA 180
- R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 29
- R v Murray (1987) 11 NSWLR 12
- R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
- R v Osborne [1905] 1 KB 551
- SB v R [2020] NSWCCA 207
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13