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7
Court of Criminal Appeal 1 May 2023

JL v R

[2023] NSWCCA 99

Sexual offences

Citation: JL v R [2023] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 1 May 2023
Judges: Adamson JA (principal judgment); Ierace J and Sweeney J (agreeing)

Background

The applicant, the maternal great-uncle of the complainant, was convicted by a jury in the District Court at Dubbo of four child sexual offences against a male complainant who was aged 13 or 14 at the time of the offending. The offences included acts of indecency and three counts of aggravated sexual intercourse. The applicant was sentenced to an aggregate term of 10 years' imprisonment with a non-parole period of 7 years.

The offending arose from three separate incidents in 2014 and early 2015 in which the applicant entered a caravan where the complainant slept and performed various sexual acts including penile-anal intercourse. On one occasion, the applicant threatened to offend against the complainant's younger siblings and to kill the complainant if he spoke out. The complainant did not disclose these more serious offences until 2017, after meeting a friend at a camp for victims of sexual abuse.

Separately, before the trial, the applicant had pleaded guilty in the Local Court to offences of indecent assault involving the complainant and his two older brothers. A statement of agreed facts incorporating those guilty pleas was tendered at trial. The trial judge gave a tendency direction that this material could be used to infer the applicant had a sexual interest in the complainant.

  • Whether the jury's verdicts of guilty were unreasonable or unsupported by the evidence, given inconsistencies in the complainant's evidence and the delay in reporting the anal intercourse
  • Whether the trial judge erred in the form of the Liberato direction given to the jury, specifically by omitting the third component added by Da Silva v The Queen (2019) 268 CLR 57
  • Whether the sentencing judge erred in applying the totality principle, given the applicant had already been sentenced in the Local Court for related offences against the complainant

Decision

Unreasonable verdict. The Court, with all three judges independently assessing the evidence, held it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on all four counts. The complainant's error about the timing of a hospital visit for a shoulder injury did not necessarily undermine his credibility on the core offending conduct. Applying BCM v The Queen [2013] HCA 48, the jury was entitled to accept some parts of a witness's evidence and reject others, and the timing discrepancy did not compel rejection of the complainant's account of the offences.

On the issue of delayed disclosure, the Court accepted that the jury could reasonably attribute the delay to the complainant's youth, vulnerability, and feelings of shame about the anal intercourse. The complainant's eventual disclosure, prompted by a friend at a support camp, was consistent with that explanation.

Liberato direction. The Liberato direction (named after Liberato v The Queen (1985) 159 CLR 507) instructs the jury on how to approach a conflict between the accused's account and that of a prosecution witness. The Court found the trial judge was not required to include the third component from Da Silva v The Queen, which directs the jury to put aside a disbelieved accused's account. The applicant had not provided a competing version of events in his police interview; he had simply denied the allegations. Because the jury was never asked to choose between two competing factual accounts, the additional direction was unnecessary and its absence was not an error.

Totality. The totality principle requires a sentencing court to ensure that the overall sentence reflects the totality of the offending rather than producing a crushing result, particularly where earlier sentences have been imposed for related conduct. The Court found the trial judge's reasons sufficiently demonstrated awareness of, and compliance with, this principle. Although the appeal on this ground was ultimately dismissed, the Court noted that, had error been established, re-sentencing would have been required and no lesser sentence would have been warranted given the gravity and interconnected nature of all the offending.

Orders Made

  • Time for leave to appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A jury is entitled to accept a complainant's evidence of the offending conduct while rejecting a discrete, demonstrably incorrect aspect of that evidence (such as a mistaken timing of a hospital visit), provided the error does not necessarily affect the credibility or reliability of the core account.
  • Delay in reporting sexual offences by a young complainant does not automatically undermine credibility; the jury may consider the complainant's youth, vulnerability, and feelings of shame as a credible explanation for that delay.
  • The third component of the Da Silva refinement to the Liberato direction (directing the jury to put aside a disbelieved accused's account) is only required where the accused has given a positive alternative version of events, not where the accused has simply denied the allegations.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that the totality principle requires sentencing judges to take prior, related sentences into account when imposing a fresh aggregate sentence, but that adequate compliance can be demonstrated through the reasons without requiring a specific formulaic treatment.
  • Where earlier offences, viewed in the context of later convictions, reveal a course of sexually predatory conduct toward related victims, the aggregate sentence imposed at trial may properly reflect an escalating pattern of offending rather than isolated or aberrant acts.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), s 293A
- Evidence Act 1995 (NSW), s 191
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Da Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Z (a pseudonym) v R [2022] NSWCCA 8
- Haak v R [2022] NSWCCA 28
- R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
- Wu v R [2011] NSWCCA 102; 211 A Crim R 88
- Reed v R [2006] NSWCCA 314
- Crickitt v R [2018] NSWCCA 240
- Dang v R [2014] NSWCCA 47