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Court of Criminal Appeal 20 October 2023

Van Gestel v R

[2023] NSWCCA 263

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION ALL OFFENDING DECADES OLD APPEALS APPEAL AGAINST CONVICTION

Citation: Van Gestel v R [2023] NSWCCA 263
Court: Court of Criminal Appeal, NSW
Date: 20 October 2023
Judges: Leeming JA (principal judgment); Davies J agreeing; Wilson J agreeing

Background

The appellant was convicted after a jury trial in the District Court on eight counts of indecent assault against three female complainants. All of the alleged offending took place between January 1974 and January 1994, when the complainants were young girls living near the appellant in a residential street in suburban Sydney. The complainants cannot be named by reason of statutory publication restrictions.

The offending described at trial ranged in seriousness. The first five counts involved the first complainant and included digital penetration and the appellant placing her hand on his erect penis. The remaining three counts involved the other two complainants and centred on the appellant kissing them on the lips when they visited his home as young children on errands for their parents.

The appellant sought leave to appeal his convictions on three grounds: that complaint evidence was wrongly admitted, that the trial judge should have directed the jury on a mental element of indecent intention, and that the verdicts were unreasonable.

  • Whether evidence of complaints made by the complainants, in some cases more than four decades after the alleged offending, was admissible as evidence of a representation made when the facts were "fresh in the memory" under s 66 of the Evidence Act 1995 (NSW)
  • Whether such complaint evidence was alternatively admissible under s 108(3) of the Evidence Act as prior consistent statements used to re-establish credibility, where fabrication had been suggested
  • Whether the trial judge had made a ruling at the pre-trial hearing admitting that complaint evidence, and whether defence counsel's subsequent acquiescence affected the position
  • Whether the trial judge was obliged to intervene and direct the jury in the absence of any objection to the complaint evidence at trial
  • Whether the trial judge erred by failing to direct the jury that an "indecent intention" was a required mental element of indecent assault
  • Whether the jury's guilty verdicts were unreasonable given inconsistencies in the evidence, the young ages of the complainants at the time, and the lengthy delay before any complaint was made

Decision

Ground 1: Admissibility of complaint evidence

The Court found that the trial judge had made no ruling at the pre-trial hearing that the complaint evidence was admissible under s 66. The pre-trial debate remained unresolved, and there was no ruling upon which the appellant could rely. Because no objection was raised at trial when the evidence was actually led, the trial judge was not obliged to intervene of her own motion.

Crucially, Leeming JA concluded that even if an objection had been taken, the complaint evidence would in any event have been admissible under s 108(3) of the Evidence Act. That provision permits prior consistent statements to be admitted, with leave, where fabrication or reconstruction has been suggested. The defence case at trial squarely involved such a suggestion, meaning the evidence had an independent pathway to admission regardless of the freshness question under s 66.

Ground 2: Mental element of indecent intention

Leave to appeal on this ground was refused. No direction on any additional mental element of "indecent intention" had been sought at trial, and the relevant authorities bearing on that question were not addressed before the Court of Criminal Appeal. Leeming JA also noted that the sentences for counts 6, 7 and 8 (the counts to which this issue was most relevant) were subsumed within an aggregate sentencing structure, which further weighed against granting leave.

Ground 3: Unreasonable verdicts

The Court rejected the submission that the verdicts could not be supported by the evidence. Inconsistencies in the complainants' accounts were described as inevitable and entirely expected in cases involving events recalled from childhood after long periods of time. The fact that decades passed before complaints were made did not stand in the way of the jury's verdicts. The Court was not persuaded that it was not open to the jury, to the criminal standard, to find the appellant guilty on all eight counts.

Orders Made

  • Leave to appeal granted, confined to proposed grounds 1 and 3; leave otherwise refused
  • Appeal dismissed

Key Takeaways

  • Under s 108(3) of the Evidence Act 1995 (NSW), prior consistent statements are admissible (with leave) to re-establish credibility where fabrication or reconstruction has been suggested, and this pathway to admissibility is independent of the "freshness" requirement in s 66.
  • A trial judge is not obliged to intervene of their own motion to exclude complaint evidence when no objection is taken at trial by the party who had previously raised the issue at a pre-trial hearing.
  • The absence of a formal ruling at a pre-trial hearing means neither party can treat the evidentiary debate as resolved; the question remains live until it is actually determined at trial.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that substantial delay between the alleged offending and the making of complaints, and the expected inconsistencies in accounts given by complainants recalling childhood events, do not of themselves render jury verdicts unreasonable.
  • Leave to appeal on a point of law (here, the mental element for indecent assault) will not readily be granted where no direction was sought at trial and the relevant authorities were not addressed before the appellate court.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 66, 108
- Crimes Act 1900 (NSW), ss 61E(1), 61M(1), 578A, 578C
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Sexual Offences Act 1956 (UK), s 14(1)
- Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
- R v Court [1989] 1 AC 28
- Clay (a Pseudonym) v The Queen (2014) 43 VR 405; [2014] VSCA 269
- Harkin v R (1989) 38 A Crim R 296
- Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42
- Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89
- Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; 396 ALR 545