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Court of Criminal Appeal 20 September 2023

LF v R

[2023] NSWCCA 232

Sexual offences

Citation: LF v R [2023] NSWCCA 232
Court: Court of Criminal Appeal, NSW
Date: 20 September 2023
Judges: Meagher JA (principal judgment); Wilson J (agreeing); Sweeney J (partly dissenting)

Background

The applicant, identified by the pseudonym LF, was convicted by jury in the District Court at Newcastle of three sexual offences against two child complainants, AH1 and AH2, who were his step-granddaughters and cousins to each other. The convictions were for intentional sexual touching of AH1 (count 1), sexual intercourse with AH1 in circumstances of aggravation (count 2), and inciting AH2 to commit a sexual offence (count 5). He was acquitted on a fourth count relating to AH1 and the jury was not required to return a verdict on an alternative charge.

AH1's evidence in chief was given by tendering an audio-visual recording of a Joint Investigation Response Team (JIRT) interview conducted on 11 November 2019, when she was nearly 11 years old. The applicant had objected to this recording being admitted before trial. At issue was the manner in which the interview was conducted: it was lengthy, involved persistent questioning, and included multiple occasions where AH1 expressed reluctance or wished to speak with her mother before ultimately disclosing the alleged offending.

LF sought leave to appeal his convictions on three grounds: that the pre-trial judge erred by admitting the JIRT recording; that the trial judge failed to give an adequate reliability warning to the jury about AH1's evidence; and that the verdicts were unreasonable. The Court granted leave to appeal on all three grounds.

  • Whether the pre-trial judge (Traill DCJ) erred in declining to exclude the JIRT recording of AH1 under s 306Y of the Criminal Procedure Act 1986 (NSW) on "interests of justice" grounds.
  • Whether the trial judge (Bennett SC DCJ) gave adequate directions and warnings to the jury, as required by ss 165 and 165A of the Evidence Act 1995 (NSW), about the potential unreliability of AH1's evidence arising from how the JIRT interview was conducted.
  • Whether the guilty verdicts on counts 1, 2 and 5 were unreasonable or unsupported by the evidence.

Decision

Ground 1 (Admission of JIRT recording): The majority dismissed this ground. Meagher JA found no error in Traill DCJ's conclusion that it was not contrary to the interests of justice to allow AH1's evidence to be given by way of the recorded interview. Sweeney J agreed with this outcome, noting that excluding the recording would not have assisted the applicant, because the circumstances of the interview would have had to be elicited in cross-examination regardless.

Ground 2 (Adequacy of jury warning): The majority also dismissed this ground. Meagher JA concluded that, read in context, the trial judge's summing up adequately drew the jury's attention to the features of the interview that might affect AH1's reliability and warned them to exercise caution. Sweeney J dissented on this ground, finding that the trial judge had merely reminded the jury of counsel's submissions rather than directing them with the weight and authority of the court, which in her Honour's view was insufficient to avoid the risk of a miscarriage of justice.

Ground 3 (Unreasonable verdicts): The majority dismissed this ground as well. Meagher JA found that the jury's verdicts on counts 1, 2 and 5 were open on the evidence, having regard to the totality of what each complainant said and how they gave their evidence. Sweeney J again dissented, expressing a reasonable doubt about the applicant's guilt on counts 1 and 2 having regard to AH1's interview circumstances and the absence of any prior complaint. All three judges agreed that the verdict on count 5, relating to AH2, was sound.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 306Y of the Criminal Procedure Act 1986 (NSW), a pre-recorded JIRT interview of a child complainant may be excluded only where the court is satisfied it is not in the interests of justice for that evidence to be given in that form; a contested interview process does not automatically satisfy that threshold.
  • A trial judge's obligation under ss 165 and 165A of the Evidence Act 1995 (NSW) to warn the jury about potentially unreliable evidence requires the judge to draw the jury's attention to the specific features of the evidence that may affect reliability and to direct caution with the authority of the court, not merely to remind the jury of what counsel submitted.
  • The majority and Sweeney J diverged on whether a summing up that referenced counsel's submissions about interview pressure, without a more authoritative judicial direction, was sufficient to avoid a miscarriage of justice in the circumstances of a lengthy and persistent JIRT interview of a young child.
  • In assessing whether a verdict is unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW), the appellate court must consider the totality of the evidence and give appropriate weight to the jury's advantage in observing witnesses; the mere existence of reliability concerns does not make a verdict unreasonable.
  • Where a child's disclosure is obtained after persistent questioning in a formal interview, and in the absence of any prior complaint to family members, those circumstances are plainly relevant to the reliability warning analysis, even if they do not necessarily warrant exclusion of the recording itself.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 294AA, 306O, 306U, 306V, 306Y, Sch 2
- Evidence Act 1995 (NSW), ss 37, 135, 137, 138, 165, 165A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Crimes Act 1900 (NSW), ss 66C(2), 66DB(a), 80G, 91A(2), 578A(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)
- Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW)

Cases:
- Pell v The Queen (2020) 268 CLR 123
- M v The Queen (1994) 181 CLR 487
- Domican v The Queen (1992) 173 CLR 555
- Papakosmas v The Queen (1999) 196 CLR 297
- Hofer v The Queen (2021) 274 CLR 351
- Edwards v The Queen (2021) 273 CLR 585
- Dansie v The Queen [2022] HCA 25
- Bektasovski v R [2022] NSWCCA 246
- AK v R [2022] NSWCCA 175
- AL v R [2017] NSWCCA 34
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- PJ v R [2023] NSWCCA 105
- Burns-Dederer v R [2023] NSWCCA 191
- House v The King (1936) 55 CLR 499
- Filippou v The Queen (2015) 256 CLR 47