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10
Court of Criminal Appeal 28 June 2001

R v Tubou [2001] NSWCCA 243 revised - 09

[2001] NSWCCA 243

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT WHETHER CONVICTION UNREASONABLE WHETHER MISCARRIAGE OF JUSTICE SUFFICIENCY OF CORROBORATION

Citation: R v Tubou [2001] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 28 June 2001
Judge(s): Heydon JA; Wood CJ at CL; Sully J

Background

The appellant was convicted in the District Court before Phegan DCJ and a jury of sexual intercourse without consent in circumstances of aggravation, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The aggravating circumstance was the malicious infliction of actual bodily harm immediately before the intercourse.

The complainant and the appellant met at a rugby club. Approximately one month later, they spent an evening at the club before the appellant drove the complainant to his home in the early hours of the morning, during which time she fell asleep in the back seat. What happened at the appellant's home was sharply disputed: the complainant said the appellant made unwanted advances, physically attacked her, and then sexually assaulted her without consent; the appellant said intercourse was consensual and that he physically attacked her only afterwards, when she insulted him and his family.

It was uncontested that the appellant then drove the complainant back to the rugby club. Witnesses there observed her distress and she complained of assault. During a subsequent hospital examination, she disclosed that she had engaged in consensual intercourse with another man approximately two days before that examination.

  • Whether the conviction was unreasonable or could not be supported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW), having regard to inconsistencies in the complainant's testimony and the absence of corroboration
  • Whether the trial judge erred in excluding evidence of the complainant's prior sexual activity with a man other than the accused under s 105 of the Criminal Procedure Act 1986 (NSW), and whether that exclusion caused a miscarriage of justice
  • Whether the trial judge's directions to the jury on the delay in complaint were adequate, and whether leave to raise that ground should be granted under r 4 of the Criminal Appeal Rules (NSW)

Decision

Unreasonable verdict. The Court dismissed the first ground of appeal. Following the abolition of common law corroboration requirements by s 164 of the Evidence Act 1995 (NSW), the central question was whether the physical evidence supported the complainant's version of a sexual assault following a physical attack, or the appellant's version of a physical attack following consensual intercourse. Independent evidence of the complainant's injuries pointed to injuries greater than those consistent with the appellant's own account of the attack. The complainant's distress was compelling and she had little opportunity to fabricate her account. The jury was entitled to accept the complainant's version despite some inconsistencies, which were explicable by her level of intoxication and fatigue. The complainant's drunkenness, the condition of her clothing, and her post-incident conduct were all capable of supporting either party's account and were therefore inconclusive.

Exclusion of prior sexual activity evidence. The Court held that the trial judge did not err in excluding evidence of the complainant's sexual activity with another man approximately 34 hours before the alleged assault. Under s 105(4)(c) of the Criminal Procedure Act 1986, the "tailpiece" inclusion test was not satisfied: the probative value of the evidence was not shown to outweigh the distress, humiliation and embarrassment that admission would cause the complainant. The Court also found that s 105(6)(b) was not satisfied, as the appellant had not demonstrated unfair prejudice from any implied suggestion that recent activity with another man might have explained the complainant's vaginal tenderness. The evidence's limited probative value and the absence of unfair prejudice meant its exclusion did not prevent a fair trial.

Jury directions on delay. The Court found no miscarriage of justice arising from the trial judge's directions on the delay in complaint. The delay was explicable: the first persons the complainant encountered after the alleged assault were men of a different ethnic background, she slept for some hours before speaking to a woman, and her reluctance to contact relatives was understandable. The appellant's counsel had not requested any further or different direction at trial, so leave under r 4 of the Criminal Appeal Rules was required and was refused. Even if there had been a technical error, the Court found it was minor and incapable of producing a miscarriage of justice, given the numerous other directions the trial judge gave about assessing the complainant's credibility and reliability.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that since the enactment of s 164 of the Evidence Act 1995 (NSW), corroboration requirements in sexual assault matters have generally been abolished; the focus shifts to whether the totality of independent evidence supports the complainant's account.
  • Under s 105(4) of the Criminal Procedure Act 1986 (NSW), evidence of a complainant's prior sexual activity with a person other than the accused will not be admitted unless, among other requirements, its probative value is shown to outweigh the potential distress, humiliation and embarrassment to the complainant from its admission.
  • A finding that excluded evidence lacked probative value and caused no unfair prejudice to the accused is sufficient to conclude that its exclusion did not deprive the accused of a fair trial.
  • Where no objection is taken to a jury direction at trial, leave is required under r 4 of the Criminal Appeal Rules to raise that direction as a ground of appeal; leave will ordinarily be refused where any error was minor and incapable of producing a miscarriage of justice.
  • Inconsistencies in a complainant's testimony in a sexual assault trial do not automatically render a conviction unreasonable; a jury may accept the complainant's account where an explanation for those inconsistencies, such as intoxication or fatigue, is available on the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 105
- Evidence Act 1995 (NSW), s 164

Cases
- Berrigan v R (unreported, 23 November 1995, High Court of Australia)
- Browne v Dunn (1893) 6 R 67
- M v R (1994) 184 CLR 487
- R v Flannery [1969] VR 586
- R v DJK (1997) 96 A Crim R 443
- R v Kalajzich (1989) 39 A Crim R 415
- R v Wayne (1984) 14 A Crim R 391
- R v Zorad (1990) 47 A Crim R 211