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Court of Criminal Appeal 20 December 2024

WHS v R

[2024] NSWCCA 242

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITH A CHILD RECORDED EVIDENCE APPEAL ALLOWED

Citation: WHS v R [2024] NSWCCA 242
Court: Court of Criminal Appeal, NSW
Date: 20 December 2024
Judges: Fagan J (principal judgment); Chen J and Sweeney J (agreeing)

Background

The appellant was convicted at a re-trial in the District Court at Newcastle on four counts of sexual offending against a girl who was aged between six and nine years at the time of the alleged offending. The appellant had been married to the complainant's foster carer and had at various times minded the complainant, either at his wife's home or his own residence. He was sentenced to an aggregate term of 12 years and 6 months with a non-parole period of 6 years and 3 months.

Before the re-trial, the court excluded documents from the Department of Family and Community Services (FACS) under s 293 of the Criminal Procedure Act 1986 (NSW), which restricts evidence and cross-examination about a complainant's prior sexual experience or activity. An application for a permanent stay of the proceedings was also refused.

A significant complication arose from a change in the complainant's account. In her Joint Investigation Response Team (JIRT) interviews conducted approximately ten years earlier, she had alleged anal penetration in relation to counts 1 and 4. However, when she gave pre-recorded evidence before the re-trial, she said the appellant had attempted only vaginal intercourse on those occasions. The Crown pressed counts 1 and 4 based on the later particulars.

  • Whether the trial judge erred in excluding evidence of the complainant's prior sexual experience under s 293 of the Criminal Procedure Act
  • Whether a miscarriage of justice resulted from that exclusion
  • Whether the trial judge erred in refusing a permanent stay of proceedings
  • Whether a miscarriage of justice resulted from the refusal to stay
  • Whether the Crown Prosecutor's final address occasioned a miscarriage of justice
  • Whether the guilty verdicts on counts 1 and 4 were unreasonable in light of the material change in the complainant's evidence

Decision

Grounds 1 and 1A: Exclusion of evidence of prior sexual experience

The Court found no error or miscarriage of justice in excluding the FACS records and refusing leave to cross-examine on prior sexual experience. The exception in s 293(6), which permits such cross-examination where the Crown case has disclosed or implied a lack of prior sexual experience, was not engaged here. The mere fact that a nine-year-old complainant gave JIRT interviews did not imply she lacked prior sexual experience. Further, the Court noted that in order to counter any Crown inference that the complainant's graphic description of the alleged acts demonstrated they must have occurred, the appellant needed only to raise a reasonable possibility of an alternative explanation, which would not require adducing evidence of actual prior sexual experience.

Grounds 2 and 3: Permanent stay

The Court upheld the refusal of a permanent stay. Although the Court acknowledged that s 293 can in some cases cause unfairness, it was satisfied that the appellant could have obtained relevant answers in cross-examination without disclosing or implying prior sexual experience, and therefore no miscarriage of justice arose from the limits the section imposed.

Ground 4: Crown Prosecutor's closing address

The Crown submitted to the jury that it would have been difficult for the complainant to disclose the offending earlier. This submission was made without the jury having seen FACS records that recorded earlier complaints by the complainant of inappropriate conduct by others. Sweeney J considered the submission unfair in those circumstances. However, all three judges agreed that because defence counsel raised no objection at trial and made comprehensive submissions to the jury on the absence of complaint, no miscarriage of justice had occurred.

Ground 5: Unreasonable verdicts on counts 1 and 4

The Court upheld this ground in respect of counts 1 and 4. The complainant's evidence on those counts changed materially between her JIRT interviews and her pre-recorded evidence, shifting from anal penetration to attempted vaginal intercourse. The Crown's closing address provided no reasonably acceptable explanation for that change. The Court found it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 1 and 4, and those convictions were quashed. The convictions on counts 2 and 5 were not disturbed, as the jury was entitled to accept the complainant's evidence on those counts independently.

Orders Made

  • Leave to appeal granted to the extent necessary for grounds not limited to questions of law alone
  • Appeal upheld on ground 5 only
  • Convictions on counts 1 and 4 quashed
  • Aggregate sentence set aside in respect of all four counts (1, 2, 4 and 5)
  • Proceedings listed in the District Court on 24 January 2025 for mention to fix a date for re-sentence on counts 2 and 5

Key Takeaways

  • Under s 293(6) of the Criminal Procedure Act 1986 (NSW), the exception permitting cross-examination on a complainant's prior sexual experience is not triggered simply because the complainant gave JIRT interviews as a child; the Crown case must affirmatively disclose or imply a lack of such experience.
  • Where a Crown inference rests on the complainant's ability to describe alleged acts graphically, the defence need only raise a reasonable possibility of an alternative explanation; sustaining that possibility does not require adducing evidence of actual prior sexual experience.
  • A permanent stay will not be ordered merely because s 293 restricts cross-examination, provided the accused can still obtain answers responsive to the issues without breaching the section's prohibition.
  • A material and unexplained change between a complainant's account in an earlier JIRT interview and later pre-recorded evidence can render a conviction on the counts affected unreasonable, even where other counts based on consistent evidence are properly sustained.
  • In dismissing the Crown address ground, the Court of Criminal Appeal treated the absence of any objection by defence counsel at trial as a significant factor weighing against a finding of miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(2), 66B, 61M(2)
- Criminal Procedure Act 1986 (NSW), s 293 (now s 294CB)
- Evidence Act 1995 (NSW), s 192

Cases
- Barca v The Queen (1975) 133 CLR 82
- Cook (a pseudonym) v The King [2024] HCA 26
- GEH v R [2012] NSWCCA 150
- HG v The Queen (1999) 197 CLR 414
- Jackmain (a pseudonym) v R (2020) 102 NSWLR 847
- Koschier v R [2024] NSWCCA 24
- Munn v R; Thomas Miller v R [2006] NSWCCA 61
- R v Tubou [2001] NSWCCA 243
- Spratt v Director of Public Prosecutions [2010] NSWSC 355
- Taleb v R [2015] NSWCCA 105
- Uddin v R [2020] NSWCCA 115
- WHS v R [2020] NSWCCA 31