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Court of Criminal Appeal 8 December 2000

Regina v Bond [2000] NSWCCA 518 revised - 14

[2000] NSWCCA 518 revised - 14

Sexual offences
CRIMINAL LAW MATTER LEFT TO JURY ON INCORRECT BASES.

Citation: Regina v Bond [2000] NSWCCA 518 revised - 14/12/2000
Court: NSW Court of Criminal Appeal
Date: 8 December 2000
Judge(s): Stein JA; Smart AJ; Ireland AJ

Background

The appellant was convicted in the District Court on eight counts of carnally knowing his daughter, contrary to s 73 of the Crimes Act 1900, over a period spanning 1973 to 1979 when the complainant was aged between 11 and 15. The offences carried a maximum penalty of 14 years penal servitude. The appellant received sentences of between three years nine months and five years three months minimum term across the various counts, all commencing 20 August 1999.

The appellant denied all acts of intercourse alleged against him. At trial, the Crown case rested substantially on the complainant's testimony, as there was no direct corroborating evidence of intercourse on any individual count. Evidence of two pregnancies and terminations provided circumstantial support for the complainant's account of ongoing sexual activity.

On appeal, the appellant raised a range of grounds, including erroneous jury directions, inconsistent and unreasonable verdicts, and the existence of fresh or new evidence. The fresh evidence ground centred on material that had not been provided to the defence, and which the prosecution was also unaware of at trial.

  • Whether fresh evidence, specifically the complainant's victim compensation claim and credibility concerns about a prosecution witness, gave rise to a reasonable possibility that the jury's verdict could have been different had that material been before them.
  • Whether the trial judge gave the jury incorrect directions on certain counts, including errors regarding the relevant dates in the amended indictment.
  • Whether the verdicts were unreasonable or insufficiently supported by the evidence.

Decision

The Court of Criminal Appeal allowed the appeal on the fresh evidence ground. Smart AJ (with Stein JA and Ireland AJ agreeing) concluded that the undisclosed material, comprising the complainant's victim compensation claim and credibility issues relating to prosecution witness Mr Eric Whitfield, carried a reasonable possibility of affecting the jury's verdict. This was sufficient to warrant a new trial.

On the question of whether the verdicts were unreasonable, Smart AJ examined the evidence in detail and concluded that it was well open to a jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 2 to 9. The absence of direct corroboration did not render the verdicts unreasonable, particularly given circumstantial evidence including the two pregnancies, the appellant's own concessions, and evidence of a practice of isolating the complainant from her siblings.

The Court also identified that the trial judge had misdirected the jury in relation to the dates relevant to count 7 (the tent incident), referring to the unamended indictment dates rather than the corrected dates, although the jury had a copy of the amended indictment. This error, combined with the fresh evidence concerns, contributed to the view that the trial had miscarried.

The Court expressed regret at the outcome, given the seriousness of the charges, but held that the interests of justice required the convictions to be quashed and a new trial ordered.

Orders Made

  • Appeal allowed.
  • Convictions and sentences quashed.
  • New trial ordered.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where fresh evidence bears on the credibility of the complainant or a prosecution witness, the relevant question is whether there is a reasonable possibility the jury's verdict could have been different had that material been available at trial.
  • A victim compensation claim made by a complainant constitutes the kind of material that may be relevant to credibility, and its non-disclosure to the defence can provide grounds for overturning a conviction on appeal.
  • Credibility concerns about a prosecution witness, even where the prosecution was itself unaware of that material, can form part of the basis for allowing a fresh evidence appeal.
  • In quashing the convictions, the Court did not find the verdicts were unreasonable: its examination of the evidence indicated the counts were well open to a properly directed jury, which is why a new trial (rather than acquittal) was ordered.
  • Incorrect jury directions referencing superseded indictment dates, even where the jury held a copy of the amended indictment, can contribute to a finding that the matter was left to the jury on an incorrect basis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 73 (carnal knowledge of a daughter)

Cases cited:
- Lewis-Hamilton (1997) 92 A Crim R 532
- CPK (NSW CCA, unreported, 21 June 1995)
- K (1991) 161 LSJS (SA CCA)