Citation: Regina v GNK [2004] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 27 April 2004
Judges: Spigelman CJ, Kirby J, Smart AJ
Background
The appellant was tried in the District Court on a nine-count indictment arising from allegations made by a male complainant who was approaching his fifteenth birthday at the time of the alleged offences. The counts concerned conduct said to have occurred at a unit the appellant purchased at Brighton-le-Sands between late June and late August 2001. The appellant had been tutoring the complainant in mathematics, as he had previously tutored the complainant's sister.
The jury acquitted the appellant on five counts and convicted him on counts 7 and 8 (attempted homosexual intercourse and homosexual intercourse respectively). Count 9 did not arise for deliberation given the guilty verdict on count 8. The appellant appealed against his convictions on eight grounds, plus an additional ground relating to an application to recall the complainant for further cross-examination.
Legal Issues
- Whether the jury's verdicts on counts 7 and 8 were unreasonable or could not be supported by the evidence
- Whether the trial judge erred in declining to allow the complainant to be further cross-examined
- Whether the trial judge's directions on complaint evidence were adequate
- Whether the trial judge put the defence case sufficiently and gave adequate directions on the credibility and reliability of the complainant's evidence
Decision
The Court dismissed all grounds of appeal by majority, with Kirby J dissenting on two grounds. Smart AJ (with whom Spigelman CJ agreed) found no substance in any of the eight grounds after considering each in turn, and concluded that the appeal should be dismissed.
On the question of whether the verdicts on counts 7 and 8 were unreasonable, the majority accepted that the quality of the evidence supporting those counts was stronger than the evidence relating to counts 1 to 5. The complainant's evidence on counts 7 and 8 was anchored to a specific and identifiable date, namely Tuesday 14 August 2001, the day before his birthday, which distinguished those counts from others where the timing evidence was less reliable.
Kirby J dissented, taking the view that credibility difficulties in the complainant's account on the acquitted counts were not so easily explained by the time-frame directions alone. His Honour considered that damage to the complainant's credibility on those rejected counts remained relevant to the reliability of his evidence on counts 7 and 8. Despite reaching a different conclusion on the outcome, Kirby J acknowledged that penetration does not need to be full or complete to establish the relevant offence.
The majority held that the trial judge's discretion did not miscarry when he declined to permit further cross-examination of the complainant, that directions on complaint evidence were not inadequate, and that the defence case was put sufficiently with appropriate directions on credibility and reliability.
Orders Made
- Appeals against conviction dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that verdicts may be reasonably supported on some counts even where a jury acquits on related counts in the same indictment, provided the evidence on the convicted counts is of sufficient quality to withstand scrutiny independently.
- A trial judge's discretion to decline further cross-examination of a complainant will not be found to have miscarried unless the appellant can demonstrate a clear error in the exercise of that discretion.
- Credibility difficulties in a complainant's account on acquitted counts remain potentially relevant to reliability assessments on convicted counts, a point on which Kirby J and the majority reached different conclusions, illustrating the fact-specific nature of such assessments.
- Penile anal penetration sufficient to establish homosexual intercourse does not need to be full or complete; even relatively minor penetration may satisfy the legal requirement, consistent with the High Court authorities cited.
- No error in jury directions was established where the trial judge had directed the jury that the time periods specified in each count were an essential ingredient, had adequately put the defence case, and had directed on credibility and reliability of the complainant's evidence.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), including s 7(2) and s 72(2)
- Crimes Act 1900 (NSW)
Cases:
- R v Markuleski (2001) 125 A Crim R 186; (2001) 52 NSWLR 82
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) HCA 53; (2001) 193 ALR 184
- Gipp v The Queen (1998) 194 CLR 106