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Court of Criminal Appeal 14 December 2022

RC v R

[2022] NSWCCA 281

Sexual offences
TRIAL ORDERED

Citation: RC v R [2022] NSWCCA 281
Court: Court of Criminal Appeal, NSW
Date: 14 December 2022
Judges: Button J, Fagan J, Yehia J

Background

Following a jury trial in the Albury District Court, the applicant was convicted on nine counts of sexual misconduct against three child complainants (his niece and two nephews). The offences included two counts of sexual intercourse with a child under 10 and multiple counts of aggravated indecent assault. He was sentenced to an aggregate term of 12 years' imprisonment with a non-parole period of 8 years.

The central evidentiary difficulty arose with the niece (CG), who had provided a detailed police statement in 2018 but, by the time of trial, had changed her mind about proceeding. When called to give evidence, she was immediately hostile and uncooperative: she expressed a desire to "drop the charges", became argumentative and upset, and ultimately fell silent or left the audio-visual link (AVL) suite altogether.

The Crown sought to have CG cross-examined as an unfavourable witness under section 38 of the Evidence Act 1995 (NSW), and then to tender her police statement as evidence. The trial judge admitted the statement, finding it was admissible under both section 106 and section 65 of the Evidence Act. The applicant appealed, arguing the statement was wrongly admitted under both provisions.

  • Whether CG's police statement was admissible under section 106 of the Evidence Act, specifically whether her silence or non-responsiveness amounted to a denial of, or failure to admit, the substance of the evidence
  • Whether the statement was admissible under section 65 of the Evidence Act on the basis that CG was an "unavailable witness," and whether the Crown had taken "all reasonable steps" to compel her to give evidence
  • Whether the trial judge's directions to the jury concerning the statement were adequate
  • Whether, if error was established, the appropriate remedy was a retrial or entry of acquittals on counts 1 to 3 (those relating to CG)

Decision

Section 106: silence does not equal denial. The Court held unanimously that the statement was not admissible under section 106. That provision requires the substance of the evidence to have been put to the witness in cross-examination, and then for the witness to have denied it or failed to admit or agree to it. Here, not all crucial portions of the statement were put to CG at all. More significantly, the Court rejected the proposition that CG's silence or non-responsiveness, in the circumstances, was sufficient to constitute a denial or a failure to admit. Her silence did not, without more, permit an inference that she was rejecting the substance of the evidence against the applicant.

Section 65: "unavailable witness" test not met. The Court also held the statement was not admissible under section 65, which applies when a witness is "unavailable." A witness is unavailable only where "all reasonable steps" have been taken without success to compel them to give evidence. The Crown Prosecutor had not demonstrated that such steps were taken. Specifically, there was no evidence that anyone had spoken to CG about her concerns during the luncheon adjournment, warned her of the risk of contempt proceedings, or arranged for her to speak with a Witness Assistance Officer. The trial judge had therefore erred in admitting the statement under this provision, and notably no application had been made under section 65 during the trial at all.

Jury directions. The Court refused leave to appeal on the second ground, concerning the judge's jury directions. The applicant had not raised any objection to the directions at trial and had not sought a redirection. Applying rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), the Court found this failure militated strongly against granting leave.

Remedy: retrial ordered. On the question of remedy, Button and Yehia JJ held that all nine counts should be remitted for retrial, leaving it to the Director of Public Prosecutions to determine whether to proceed (including whether to call CG again, noting the distress she experienced at trial). Fagan J dissented on this point, expressing the view that no further trial should involve CG as a witness and that acquittals should be entered on counts 1 to 3, with the DPP to consider whether counts 4 to 9 were sustainable without her evidence. The majority position prevailed in the orders made.

Orders Made

  • Leave to appeal granted on Ground 1; Ground 1 upheld
  • Convictions on all nine counts (Counts 1 to 9), and the sentence imposed on 8 June 2021, quashed
  • New trial ordered on all nine counts
  • Proceedings remitted to the District Court at Albury on 3 February 2023 for mention to list for retrial
  • Leave to appeal refused on Ground 2 pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Key Takeaways

  • Under section 106(1)(a)(ii) of the Evidence Act, a witness's silence or non-responsiveness does not automatically constitute a denial of, or a failure to admit, the substance of the evidence. Whether silence carries that inference depends on all the circumstances of the particular case.
  • Section 65 of the Evidence Act requires the Crown to establish that "all reasonable steps" were taken to compel the witness before the witness can be treated as "unavailable." Steps beyond attempted cross-examination may be required, such as advising the witness of contempt exposure or providing access to a Witness Assistance Officer.
  • A conviction cannot rest on a prior statement admitted as evidence in chief where the preconditions for admission under either section 106 or section 65 have not been satisfied. The error in admitting the statement here was sufficient to quash all nine convictions.
  • The failure to object to jury directions at trial, or to seek a redirection, is a significant obstacle to raising that issue on appeal. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) reflects that the criminal appeal process is not an avenue to run arguments that could and should have been raised at first instance.
  • Where convictions are quashed due to evidentiary error, a retrial (rather than an acquittal) may still be ordered even where a complainant has been a reluctant and distressed witness. The decision whether to proceed to retrial remains with the Director of Public Prosecutions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66A
- Evidence Act 1995 (NSW), ss 38, 59, 60, 65, 101A, 106
- Criminal Appeal Act 1912 (NSW), s 5
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Col v R [2013] NSWCCA 302
- Lee v The Queen (1998) 195 CLR 594
- R v Rose [2002] NSWCCA 455
- Sio v The Queen (2016) 259 CLR 47
- R v Tarantino [2019] NSWSC 939
- R v Omar [2022] NSWSC 371
- IW v R [2019] NSWCCA 311
- Adam v R (2001) 183 ALR 625
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Suteski [2002] NSWCCA 509
- Mukherjee v WorkCover Authority (NSW) [2008] NSWIRComm 53
- R v Ryan [2020] NSWSC 1394