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Court of Criminal Appeal 10 March 2023

Valentine v R

[2023] NSWCCA 43

Sexual offences
CRIMINAL PROCEDURE APPEAL FILED MONTHS LATE APPLICATION FOR EXTENSION OF TIME 21 PROPOSED GROUNDS OF APPEAL CRIME APPEAL GROUND

Citation: Valentine v R [2023] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 10 March 2023
Judges: Basten AJA; Button J; Wilson J

Background

The appellant was a former employee of the NSW Department of Child Welfare and Social Welfare who worked at two juvenile detention institutions in the early 1970s. He was convicted in the District Court on 21 counts of sexual and indecent assault involving five female complainants and one male complainant, all of whom were teenagers in his care at the time. He was sentenced to an aggregate term of 22 years' imprisonment with a non-parole period of 13 years.

The appellant filed a notice of appeal in May 2022, more than three years after his sentence was imposed in May 2019. The Court granted an extension of time and leave to appeal. The appeal raised 21 proposed grounds covering evidentiary and unreasonable verdict issues.

The complainants gave evidence of offending spanning April 1971 to January 1974 at the Parramatta Girls' Training School and the Daruk Boys' Training School. The appellant denied the offending, and his case included a misattribution defence on one charge, asserting that another officer, not he, had raped the relevant complainant.

  • Whether a complainant's out-of-court statement to her sister, made less than a year after the offending, was admissible as to the truth of its contents under s 66 of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in disallowing cross-examination of a complainant about alleged sexual activity involving another officer, under s 293 of the Criminal Procedure Act 1986 (NSW)
  • Whether, and how, tendency evidence could be used by an appellate court when assessing whether verdicts were unreasonable
  • Whether the verdict on count 24 (one indecent assault charge) was unreasonable, given evidence that the appellant was on recreational leave at the relevant time

Decision

Admissibility of historic complaint (Issue 1): The Court held that the complainant's conversation with her sister was admissible as to the truth of its contents. Events of sufficient consequence and gravity can remain memorable despite the passage of time. The complaint also served to rebut any suggestion of recent invention. The Court found that the requirements of s 66(2)(b) and (2A) of the Evidence Act were satisfied, and that the statement's variation from the complainant's trial evidence did not undermine its admissibility.

Cross-examination about other sexual activity (Issue 2): The trial judge initially dismissed the proposed cross-examination as irrelevant, which the Court found to be an error. Because the defence was that another officer had raped the complainant (not that no offence occurred), questions designed to elicit evidence of that other person's conduct were plainly relevant. However, the Court held that the exclusionary rule in s 293 of the Criminal Procedure Act was engaged. The exception in s 293(4)(a) did not apply because the alleged assaults by the other officer did not occur "at or about the time" of the charged offences and did not form part of a connected set of circumstances. The trial judge's ruling to exclude the cross-examination was therefore correct in outcome, even if the initial reasoning was flawed.

Tendency evidence on appeal (Issue 3): Drawing on Dansie v The Queen [2022] HCA 25, the Court confirmed that an appellate court assessing the reasonableness of verdicts may give such weight to properly admitted evidence, including tendency evidence, as it thinks appropriate. The majority treated tendency evidence as a basis for rejecting any inclination to dismiss the complainants' accounts as inherently implausible. Button J separately noted the substantial significance of six adult witnesses having each sworn on oath that the appellant had sexually assaulted them during their teenage years in his care.

Count 24 (Issue 4): The majority (Basten AJA and Button J) upheld the appeal on this count. Records showed the appellant was on three weeks' recreational leave during the period nominated by the complainant for the offence. While the trial judge was entitled to consider evidence that the appellant had attended Parramatta on days when not required to work, those records should have generated a reasonable doubt that he was present on the specific day described. Wilson J dissented, taking the view that the trial judge's advantage in assessing the complainant's credibility, combined with the persuasive tendency evidence, meant the Court should not entertain a reasonable doubt.

Orders Made

  • Leave to appeal from the District Court convictions granted
  • Appeal upheld on count 24: conviction quashed and verdict of acquittal entered on that count
  • Appellant granted leave to file written submissions on any possible reduction of the aggregate sentence within four weeks
  • Director of Public Prosecutions granted leave to file submissions in reply within six weeks
  • Any party wishing to be heard orally on a variation of sentence to apply within 14 days of the Director's response
  • Appeal otherwise dismissed

Key Takeaways

  • Under s 66 of the Evidence Act 1995 (NSW), an out-of-court complaint about a serious sexual offence can be admissible as to the truth of its contents even decades later, provided the circumstances of its making satisfy the requirements of the section; minor variations from the complainant's trial evidence do not necessarily defeat admissibility.
  • A trial judge's erroneous characterisation of cross-examination as irrelevant will not result in appellate intervention where the exclusionary provisions of s 293 of the Criminal Procedure Act 1986 (NSW) independently require the questioning to be excluded and no exception applies.
  • Following Dansie v The Queen [2022] HCA 25, an appellate court conducting a reasonableness review of a conviction may weigh properly admitted tendency evidence, treating it at minimum as a reason not to dismiss complainants' accounts as inherently implausible.
  • In a judge-alone trial, an appellate court does not simply defer to the trial judge's findings on credibility when assessing whether a reasonable doubt should have been entertained; where documentary records create a significant factual doubt, that doubt may displace the trial judge's advantage in assessing demeanour.
  • The dissent of Wilson J on count 24 illustrates that the weight to be given to tendency evidence and a trial judge's credibility assessment remains a matter of legitimate judicial disagreement, even within a single appellate bench.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 66, 116
- Criminal Procedure Act 1986 (NSW), s 293
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes Act 1900 (NSW), ss 61, 63, 76
- Child Welfare Act 1939 (NSW), s 72

Cases:
- Dansie v The Queen [2022] HCA 25; 96 ALJR 728
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
- R v Morgan (1993) 30 NSWLR 543
- GS v R [2022] NSWCCA 225
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
- Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
- R v Ford [2009] NSWCCA 306; 201 A Crim R 451