AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 20 September 2023

LF v R

[2023] NSWCCA 232

Sexual offences

Citation: [2023] NSWCCA 232
Court: Court of Criminal Appeal
Date: 20 September 2023
Judge(s): Meagher JA (at [1]), Wilson J (at [187]), Sweeney J (at [190])

Background

The appellant (referred to as LF) was convicted after a jury trial in the District Court at Newcastle of three sexual offences involving two child complainants, who were his step-granddaughters and cousins of each other. Counts 1 and 2 concerned sexual touching of the first complainant (AH1) on a lounge while she watched television, and count 5 concerned an act of incitement directed at the second complainant (AH2) in which LF allegedly offered to reward her with a phone in exchange for nude photographs and massages, as her younger cousin had allegedly allowed.

A central feature of the prosecution case involving AH1 was an audio-visual recording of her JIRT (Joint Investigation Response Team) interview conducted on 11 November 2019. That interview ran for nearly three hours, included six breaks, and culminated in AH1's first-ever disclosure of the conduct charged as counts 1 and 2. The defence challenged the reliability of those disclosures on the basis that the interviewer's persistent questioning, use of leading questions, and continuation of the interview while AH1 was visibly distressed and requesting to see her mother had created undue pressure on a vulnerable child witness.

Before trial, the applicant sought an order under section 306Y of the Criminal Procedure Act 1986 (NSW) to prevent portions of the JIRT recording from being used as AH1's evidence in chief. That application was rejected. At trial, the applicant also pressed for adequate jury directions about the potential unreliability of AH1's recorded evidence. Both matters, together with a challenge to the reasonableness of the verdicts, formed the grounds of the appeal to the Court of Criminal Appeal.

Legal Issues

  • Whether the pre-trial judge erred in refusing to order under section 306Y of the Criminal Procedure Act that Q&A 275-420 of AH1's JIRT interview not be admitted as part of her evidence in chief, on the basis that it was not in the "interests of justice" to do so (Ground 1)
  • Whether the trial judge's directions and warning to the jury that AH1's evidence might be unreliable were adequate having regard to sections 165 and 165A of the Evidence Act 1995 (NSW), and whether any inadequacy constituted a miscarriage of justice (Ground 2)
  • Whether the guilty verdicts on counts 1, 2 and 5 were unreasonable or could not be supported having regard to the evidence (Ground 3)

Decision

Ground 1: Refusal to exclude JIRT interview under section 306Y

The Court of Criminal Appeal held that the pre-trial judge, Traill DCJ, did not err in declining to make an order under section 306Y (at [80]). The key reasoning was that the issues concerning the accuracy and reliability of AH1's interview evidence were likely to arise in the trial regardless of whether Q&A 275-420 were tendered as evidence in chief or AH1 gave that evidence orally. Had the latter course been adopted, cross-examination would almost certainly have drawn the jury's attention to the JIRT interview and the circumstances of its conduct in any event (at [68]). The Court found it could not therefore be in the interests of justice to require AH1 to give her evidence in chief orally at the pre-recorded evidence hearing and then be cross-examined by reference to the interview given thirteen months earlier (at [68]).

The Court also addressed whether the concerns about questioning techniques raised risks of undue prejudice that a jury could not adequately address. Meagher JA held that assessing the weight of a witness's evidence by reference to the manner in which it was given is the province of the jury, and this remains so whether the evidence is given in person or by audio-visual recording (at [73]). No evidence was led suggesting that specialised knowledge was required for the jury to recognise and assess the likely impact of the questioning on AH1's reliability (at [79]). Any risk of undue prejudice was capable of being addressed by an appropriate warning or direction at trial (at [80]).

Sweeney J agreed with the dismissal of Ground 1, though for reasons that included her own conclusion that the reliability of AH1's evidence was significantly adversely affected by the circumstances of the interview (at [191]-[192]). She agreed that excluding the recording would not have assisted the applicant because the interview circumstances would still have had to be explored in cross-examination (at [192]).

Ground 2: Adequacy of jury directions on reliability of AH1's evidence

The majority (Meagher JA and Wilson J) held that the trial judge's directions were sufficient to avoid any perceptible risk of a miscarriage of justice (at [122], [126]). The trial judge had, following detailed submissions by defence counsel, warned the jury that AH1's evidence might be unreliable due to the manner of the interview, directed the jury to exercise appropriate caution in determining whether to accept that evidence and what weight to give it, and directed that if the jury considered there was a reasonable possibility that AH1 was affected by the conduct of the interview, it would be required to return a verdict of not guilty (at [122]-[125]). Wilson J added that assessing the reliability of AH1's evidence was squarely within the capacity of a jury drawing on ordinary life experience, and the directions given were more than adequate (at [188]).

Sweeney J dissented on this ground. In her Honour's view, the trial judge had not directed the jury that AH1's account may be unreliable with the weight and authority of the court, but had only reminded the jury of counsel's submissions. That, in the circumstances of this case, was insufficient to avoid the risk of a miscarriage of justice (at [193]).

Ground 3: Unreasonable verdicts on counts 1, 2 and 5

The majority dismissed Ground 3. In relation to counts 1 and 2, Meagher JA conducted a detailed review of the whole of the JIRT interview, finding that the questioning which produced AH1's disclosures followed her time with her mother and occurred after she was no longer upset. From Q&A 261 onwards, the questioning was directed by AH1's own answers rather than by subjects introduced by the interviewer. Her descriptions of feeling "uncomfortable" and "wrong" were unprompted, and her answers were cogent and believable as describing events she had actually experienced (at [155]-[156]). The majority concluded it was open to the jury to be satisfied beyond reasonable doubt of LF's guilt on counts 1 and 2 (at [161]).

In relation to count 5, the majority found AH2's initial lies to her mother about the phone were plausibly explained as attempts to deflect inquiry that would require her to disclose what she believed was happening to her cousin, rather than as evidence of fabrication (at [177]-[178]). The evidence of AH2, corroborated by RL and AH2's mother, supported the jury's verdict (at [183]-[184]). Sweeney J dissented on counts 1 and 2, concluding that her own review of AH1's evidence, the circumstances of the interview, and the lack of prior complaint left her with a reasonable doubt about the applicant's guilt on those counts (at [194]). Sweeney J agreed with the majority on count 5 (at [195]).

Orders Made

  • Leave granted to the applicant, LF, to appeal against his convictions on grounds 1, 2 and 3.
  • Appeal against conviction dismissed on each of grounds 1, 2 and 3.

Key Takeaways

  • Under section 306Y of the Criminal Procedure Act, a court will not be satisfied that it is "not in the interests of justice" for a child complainant to give evidence in chief by tendered JIRT recording where any concerns about the reliability of that evidence are likely to arise at trial regardless of the form in which the evidence is given, and where the risk of undue prejudice to the accused can be adequately addressed by a jury warning or direction (at [68], [80]).

  • A jury is presumed capable of assessing the weight and reliability of a witness's evidence by reference to the manner in which it was given, including the effects of leading questions and persistent interviewing techniques on a child witness, without requiring expert guidance or extensive judicial direction, unless the matters fall genuinely outside ordinary lay experience (at [73]-[76], [121]).

  • Where a trial judge warns a jury that a witness's evidence might be unreliable due to the conduct of a JIRT interview, comprehensively describes the features of the interview process that raise that concern, and directs the jury to exercise caution in deciding whether to accept that evidence, those directions may be adequate even if framed partly by reference to matters raised in defence counsel's final address, provided the directions carry the authority of the court (at [122]-[125]).

  • Sweeney J dissented on both grounds 2 and 3 in relation to AH1, finding that the trial judge's directions did not convey the unreliability warning with sufficient judicial authority, and that the circumstances of the interview left a reasonable doubt as to the applicant's guilt on counts 1 and 2 (at [193]-[194]). This disagreement within the Court of Criminal Appeal illustrates that the adequacy of jury directions on JIRT interview reliability can be a genuinely contested question on similar facts.

  • In assessing whether a verdict on a count involving an incitement of a child complainant (AH2) was unreasonable, the Court examined the complainant's initial dishonesty to her mother in context. The majority found that early lies designed to conceal the source of a borrowed phone were more plausibly explained by the complainant's reluctance to implicate her grandfather than by fabrication, particularly where her subsequent disclosure was consistent with evidence from two independent witnesses (at [176]-[183]).

Legislation and Cases Referenced

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

Cases
- AK v R [2022] NSWCCA 175
- AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125
- Burns-Dederer v R [2023] NSWCCA 191
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; (2010) 220 A Crim R 19
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- MJK v R (Court of Criminal Appeal (NSW), 21 April 1995, unrep)
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- PJ v R [2023] NSWCCA 105
- R v A2 ; R v KM; R v Vaziri (No 20) [2016] NSWSC 23
- R v A2; R v KM; R v Vaziri (No 21) [2016] NSWSC 24
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- R v Lewis [1991] 1 NZLR 409; (1990) 6 CRNZ 350
- R v LF (District Court (NSW), Traill DCJ, 17 December 2020, unrep)
- R v LF (No 2) [2022] NSWDC 465
- R v TJF [2001] NSWCCA 127; (2001) 120 A Crim R 209
- Raad v R [2012] NSWCCA 268
- RGM v R [2012] NSWCCA 89
- Su v R [2023] NSWCCA 21
- The Queen v Ellis (1994) 1 NZCrimC 592; (1994) 12 CRNZ 172
- The Queen v GW (2016) 258 CLR 108; [2016] HCA 6
- Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56
- Wade v R [2006] NSWCCA 295; (2006) 164 A Crim R 583
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81