Citation: R v Williams [1999] NSWCCA 9 revised; (1999) 104 A Crim R 260
Court: NSW Court of Criminal Appeal
Date: 23 February 1999
Judge(s): Spigelman CJ; Wood CJ at CL; McInerney J
Background
The appellant was convicted after a jury trial of one count of sexual intercourse with a child aged above ten and under sixteen years, under s 66C(1) of the Crimes Act 1900 (NSW). He was sentenced to a minimum term of three years' penal servitude and an additional term of three years. The offence was found to have occurred over a muster weekend in May 1991, when the complainant, then fifteen years old, stayed at the appellant's home.
The complainant was a keen horsewoman who knew the appellant through her father and the local Pony Club. She alleged that during her stay the appellant committed sexual offences against her. She did not make a formal complaint for some years after the events.
The appellant appealed against his conviction and sought leave to appeal against the sentence. Two of the original three counts had been withdrawn at trial, leaving the one count of sexual intercourse on which he was convicted.
Legal Issues
- Whether the trial judge's directions to the jury concerning the complainant's delay in making the complaint were adequate
- Whether the warning given to the jury about the reliability of the complaint evidence was adequate
- Whether the verdict was unsafe and unsatisfactory in light of the complainant's vagueness, lack of corroboration, and the delay
- Whether the overall sentence of six years was manifestly excessive for the offence
Decision
Directions on delay: The Court confirmed that where a s 405B(2) direction is given (informing the jury that delay in making a complaint does not necessarily indicate the allegation is false), it will ordinarily be appropriate to also direct the jury to the balancing consideration, namely the potential effect of delay on the complainant's credibility. The trial judge had done this sufficiently in the present case. However, the Court observed that a judge's invitation to the jury to speculate about reasons for delay beyond those offered by the complainant is inappropriate. In this case, the judge's suggestion that the jury might think of "101 or 1001 reasons" for the delay was criticised, but found not to have caused a miscarriage of justice.
Effect of delay on the appellant: The Court held that the absence of any reference by the trial judge to the possible prejudicial effect of delay on the appellant did not constitute an error. No evidence had emerged at trial to demonstrate actual prejudice to the appellant from the delay. The defence had been able to test the complainant's evidence and call a positive case in reply, which reduced the significance of any such effect.
Warning on reliability: The Court held that the trial judge was not required to direct the jury that the complainant's "evidence" must be proved beyond reasonable doubt. What must be proved to that standard are the elements of the offence. The Court also held that a direction under s 165 of the Evidence Act may be required even without a request from counsel, where the judge considers evidence may be unreliable. A sufficient warning to assess the complainant's evidence with care had been given in this case.
Unsafe verdict and sentence: The Court conducted an independent review of the evidence and was not persuaded that the jury ought to have had a reasonable doubt as to the appellant's guilt. On sentence, the Court noted that a full term of six years fell toward the top of the range disclosed by sentencing statistics, but that "top of the range" is by definition within range and therefore not manifestly excessive. The sentencing judge had properly taken the appellant's favourable subjective circumstances into account in extending the additional term, and had correctly recognised the importance of general deterrence for offences of child sexual assault.
Orders Made
- Leave to appeal against sentence granted
- Appeal against conviction dismissed
- Appeal against sentence dismissed
- Conviction and sentence below confirmed
Key Takeaways
- Where a s 405B(2) direction is given regarding delay in complaint, the Court of Criminal Appeal confirmed it will ordinarily be appropriate to also direct the jury to the potential effect of that delay on the complainant's credibility, providing a balanced picture.
- Inviting a jury to speculate about reasons for a complainant's delay in making a complaint, beyond reasons the complainant herself offered in evidence, is inappropriate, even where such speculation does not in itself cause a miscarriage of justice.
- No error arises from the omission of a direction on the potential prejudice of delay to an accused where no evidence of actual prejudice emerged at trial, particularly where the defence had a full opportunity to test the complainant's account and call evidence in reply.
- A sentence falling at the top of the established sentencing range is, by definition, within that range and cannot be characterised as manifestly excessive, even where the offence was an isolated incident and the offender had strong subjective circumstances.
- Under s 165 of the Evidence Act, a trial judge may be required to warn the jury about potentially unreliable evidence without any request from counsel, depending on the judge's assessment of the evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66C(1), 405B(2)
- Evidence Act 1995 (NSW), s 165
Cases:
- PAH (CCA NSW, 18 December 1998, unreported)
- Crofts (1996) 186 CLR 427
- Johnston (CCA NSW, 31 July 1998, unreported)
- Harvey (CCA NSW, 9 April 1998, unreported)
- Jones (1997) 72 ALJR 78
- Vawdrey (CCA NSW, 16 April 1998, unreported)
- Murray (1987) 11 NSWLR 12
- RJC (CCA NSW, 1 October 1998, unreported)
- Domican (1992) 173 CLR 561
- Condon (1995) 83 ACR 335
- M (1994) 181 CLR 487
- Chidiac (1991) 172 CLR 432
- Fisher (1989) 40 ACR 442
- Baxter (CCA NSW, 26 May 1994, unreported)