R v Bamblett - [2000] NSWCCA 464

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Russell Bamblett (Snr) [2000] NSWCCA 464

FILE NUMBER(S):
60032/00

HEARING DATE(S): 26 October 2000

JUDGMENT DATE: 07/11/2000

PARTIES:
Russell Bamblett (Snr) - Appellant
Crown - Respondent

JUDGMENT OF: Sheller JA James J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/61/0170

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

COUNSEL:
Appellant - C B Craigie/S A Benson
Crown - R D Cogswell SC

SOLICITORS:
Appellant - D J Humphreys
Crown - S E O'Connor

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Sexual intercourse with child under 10 - Whether miscarriage of justice - Whether verdict unreasonable - Where no medical evidence because complainant previously sexually abused by another offender - Where inconsistencies in complainant’s evidence - Where trial Judge suggested to jury complainant’s allegations beyond capacities of child her age - Where no objection raised at trial - Whether misdirection - Criminal Appeal Rules, r 4.

LEGISLATION CITED:
Criminal Appeal Rules
Crimes Act 1900

DECISION:
1. Appeal allowed
2. Quash the conviction
3. Substitute a verdict of acquittal.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60032/00
SHELLER JA
JAMES J
DOWD J

REGINA v Russell BAMBLETT

The appellant appealed from his conviction on three counts of having had sexual intercourse with a female child under the age of ten. No medical evidence was tendered at trial as the complainant had previously been abused by another person. The complainant gave evidence which was both internally inconsistent and also inconsistent with evidence previously given in another trial. In his summing up, the trial Judge suggested to the jury that the complainant’s allegations went beyond the capacities of a child her age as to the detail and nature of the sexual activities described. Counsel for the accused made no objection to this.
Held (by Sheller JA, James and Dowd JJ agreeing):-

The trial Judge quite appropriately impressed upon the jury that the directions he gave were not given because of any view he had formed about the evidence but because they were required by law.
However, there was a real danger that the trial Judge might have led the jury to believe that because of her age, the complainant had no capacity to invent the sexual activities described. This would have been dangerous as the complainant had previously been sexually abused and nothing was known of the nature of that abuse.
The inconsistency in the complainant’s evidence must be viewed in the context of an earlier occasion of sexual abuse. The extent and nature of that sexual abuse was unknown and would not be known to a jury if there were to be a new trial. This element of unreliability in the complainant’s evidence added to the significance of the inconsistencies in her evidence and, accordingly, the conduct of the trial resulted in a miscarriage of justice. Any new trial would involve a further miscarriage of justice.

Jones v The Queen (1997) 191 CLR 439, applied; M v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bamblett

Details

AGLC: R v Bamblett [2000] NSWCCA 464
Case: [2000] NSWCCA 464
Decision Date: 7 November 2000

CaseChat Overview and Summary

The case of R v Bamblett involved an appeal against a conviction for sexual intercourse with a child under the age of ten. The appellant contended that the verdict was unreasonable and that a miscarriage of justice had occurred. The appeal was centred on the absence of medical evidence due to the complainant's prior sexual abuse by another individual. Additionally, the appellant argued that there were inconsistencies in the complainant's evidence and that the trial judge's comments to the jury regarding the capacities of a child of the complainant's age constituted a misdirection.

The legal issues before the court were whether the verdict was unreasonable and whether the trial judge's comments to the jury amounted to a misdirection. The court had to consider the impact of the absence of medical evidence due to the complainant's previous abuse and the potential inconsistencies in the complainant's testimony. Moreover, the court had to assess whether the trial judge's comments suggesting the complainant's allegations were beyond the capacities of a child her age could be considered a misdirection, particularly since no objection was raised during the trial.

The court concluded that while the absence of medical evidence due to the complainant's prior abuse and the inconsistencies in her evidence were significant factors, they did not render the verdict unreasonable. The court found that the trial judge's comments to the jury were appropriately directed at ensuring that the jury did not speculate on the existence or content of any unadmitted evidence. The court held that the comments did not constitute a misdirection, especially given that no objection was raised at the trial. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Miss Carr, Mrs Fuller and Mrs Fay Kearney, the appellant’s sister, gave evidence to confirm that the appellant had spent time in Gilgandra during February 1997.No medical evidence At the trial Mr Wilson appeared for the appellant. Before the Crown prosecutor opened to the jury, the following is noted in the transcript:“IN THE ABSENCE OF THE JURY(Crown Prosecutor indicates there will be no medical evidence in this trial due to the fact that the alleged victim [complainant] had been previously assaulted by another person, therefore it renders the medical evidence equivocal).” During a short adjournment, after the evidence was complete but before the addresses, the trial Judge received a note from the jury and asked to discuss the questions with counsel in the absence of the jury. The transcript continues as follows:“IN THE ABSENCE OF THE JURYMFI #2 QUESTIONS FROM THE JURYHIS HONOUR: Question, ‘What happened, for [the complainant] to tell her mother, what has brought this up? Is there any medical evidence for [the complainant], did mother take her to doctor? Did [the complainant’s] behaviour change, ask both parents? When was this reported to the police, what date?’ As to the first, what happened to [the complainant] to tell her mother, what’s brought this up, there is simply no evidence. Is there any medical evidence for [the complainant], did her mother take her to the doctor, same answer. Did [the complainant’s] behaviour change ask both parents, same answer. When was this reported to the police, what date?CROWN PROSECUTOR: Your Honour, I think there was evidence that that occurred on 15 April--WILSON: We would allow that your Honour because that was the day the complaint - and the statement was made on the 22nd but Mrs Fuller did go to the police so I don’t know whether that was clearly put into evidence but she got the complaint --HIS HONOUR: Yes, she did mention 15 April, didn’t she?CROWN PROSECUTOR: There was mention of --WILSON: I certainly got her to - because she said twelve days after baby was born and I asked her, well, if you’ll accept that the 15th, is the day she was told.HIS HONOUR: That’s alright. Now, what - apart from saying there is no evidence, you have to put those matters out of your mind, concentrate on what material you do have, what other answer is there available for the first three?WILSON: That has to be the answer, your Honour.HIS HONOUR: Mr Crown seems lost in thought.CROWN PROSECUTOR: Your Honour, I accept that that has to be the answer but I was wondering in particular circumstances of this whether there should be some gloss put on to that because the question of medical evidence is clearly important and it clearly falls into the category of evidence that anyone would expect that if there was evidence or if there was not evidence, then that would be placed before the jury but in the particular circumstances of this case, the view that I formed and indeed the view that was formed at the earlier trial was that that evidence --HIS HONOUR: Is simply inadmissible under 409B. [s409B of the Crimes Act 1900 since repealed and transferred to the Criminal Procedure Act 1986 s105].CROWN PROSECUTOR: Not necessarily that your Honour, that the problem was that there was, the medical evidence when [the complainant] was examined and that occurred on 8 April prior to the complaint in relation to this matter, was that there was scarring on the hymen. And your Honour, that could only have - being prejudicial and misleading perhaps because of 409B because the jury couldn’t have been told the full story. But your Honour, I’m just wondering whether or not it’s possible for your Honour to say in relation to the medical evidence that clearly they shouldn’t speculate and in the normal course of events they might expect to be told one way or the other but that they should accept that there is no evidence and it’s very, very important that they should not speculate. I think it should be brought home to them, I’m sorry if I’m not explaining this very well but that in the normal course of events either from the defence point of view or from the Crown point of view they would expect that there would be medical evidence, that they might therefore accept or expect that there is a particular reason or good reason why there is no such evidence but even that there is that good reason, they should not speculate or seem to guess at what it might be. And your Honour, the other aspect of the medical evidence is that that may be coupled with an explanation in relation to what it is that the Crown has to prove and that is that the Crown does not have to prove penetration of the vagina but merely the slightest degree of penetration of the genitalia. Your Honour, that’s the only submission that I can make in relation to it.HIS HONOUR: What do you say about it Mr Wilson, is there anything wrong with saying we might expect that sort of evidence would be forthcoming. You might therefore reach the conclusion that there’s a very good reason for it not forthcoming, simply do not try and guess what that reason is and certainly do not speculate about what the evidence might do and might not be.WILSON: In a sense that may actually invite them to speculate to some extent your Honour because we’re not saying there was never a medical examination and they’ll be in effect and we can’t say that but to actually alert their minds to the possible existence of some material that they haven’t received for whatever good reason that might be, in a sense, alerts them that there may be something in existence but we’re not getting it.HIS HONOUR: It’s a matter of simple logic that they would understand there is something in existence, which they’re not getting. The Crown’s suggestion is really only to try and strengthen the admonition to them not to -- WILSON: Not to speculate, yes, I know, I understand.HIS HONOUR: -- start guessing.CROWN PROSECUTOR: And your Honour similarly and I suppose this should be recorded from the Crown position as to why there is no evidence in relation to what happened immediately prior to [the complainant] telling her mother again, that may have been or probably would have been precluded by 409B because she had returned from a counselling session in relation to another offence and it was in the course of that conversation concerning that counselling session that the allegation concerning this matter emerged and again your Honour, that’s why that area was left alone and particularly because this is a retrial.HIS HONOUR: They probably would have had difficulties after Graham (?) [Graham v The Queen (1998) 195 CLR 606] anyway.CROWN PROSECUTOR: Indeed, your Honour. That was the other aspect of it that because of the dates of the offence is uncertain it was clearly not within days of the complaint that Graham’s case probably would have excluded it. So your Honour, I would simply make the same submission your Honour that they’d be given a very strong direction of not to speculate.HIS HONOUR: Having voiced your uncertainties about what the effect of this is, Mr Wilson, what do you suggest ought to be said? I didn’t quite understand whether in the end you came down to submitting that no such directions should be given or what?WILSON: If the hypothesis that the jury will in their minds suspect at least that there is in existence something, perhaps it’s best to tell them that the Crown has led all the evidence that he is able to lead in this matter and--HIS HONOUR: What, as a matter of law?WILSON: As a matter of law. As a fact and as a matter of law, yes. Not quite as a fact, that’s right, as a matter of law, yes. And it has led all the evidence it is able to lead in this matter and they should not speculate any further about that. I don’t know how you can ever explain in a way - in any other way your Honour because if your Honour mentions the very existence of medical examinations or certificates and then says, don’t speculate why you haven’t got one--CROWN PROSECUTOR: Your Honour, could I suggest this that if it’s framed in the way my friend suggests then, that the Crown has done all it could, the inference is well, if there was something better the Crown would have done it.HIS HONOUR: Yes, that’s right. I think that really operates against the accused.CROWN PROSECUTOR: If it’s done in the way that I suggested that --HIS HONOUR: Both sides have done as much as they could.CROWN PROSECUTOR: Well, it may--WILSON: No onus on me, your Honour.CROWN PROSECUTOR: It may have some impact there, your Honour, perhaps a neutral way of doing it would be simply to tell the jury that they would understand, that there are very strict rules governing the way in which evidence is adduced and what evidence can be adduced that all those rules had been complied with and that the materials that are not before them they should not in any way speculate as to why that is so and just assure them that all parties have complied with the various evidentiary rules that they are obliged to follow.WILSON: Just with reference to the materials that are not before, that worries me, your Honour. It alerts them to the fact that there--HIS HONOUR: Any material that they might think should be before them but isn’t--WILSON: Yes.HIS HONOUR: Perhaps put it in that sort of frame.WILSON: Yes, that’s the way, thank you, your Honour.CROWN PROSECUTOR: Whether it exists or not.WILSON: Yes, that’s right. Certainly. And that yes, the last question can be answered as to the date. Because - and your Honour could say that you know in evidence that on 22 April the statement was given to Constable Chapman (?) [Constable Tony Chapman who took the complainant’s statement on 22 April 1997 but did not give evidence]. Whether or not - the other part about the behaviour is not a matter that is probably admissible without expert evidence. It’s just inadmissible your Honour. So there is simply just no evidence about that, the behaviour change.HIS HONOUR: The note I’ve made is to this effect, let’s see if this is in accordance with your joint submissions. I would propose to tell them there are very strict rules about evidence, what can be led and how. Both parties have complied with those rules in this trial. You might think that there could be other material in existence which is not being presented to you. You must not speculate as to whether such other material does exist or not and you certainly must not speculate as to what that material might establish if it existed. You should leave aside any other queries you may have or hopes or expectations in relation to the evidence and concentrate solely on the material which has in fact been put before you.CROWN PROSECUTOR: Yes, your Honour.WILSON: Yes, thank you.HIS HONOUR: Does that suit you both?WILSON: Yes, your Honour.CROWN PROSECUTOR: Certainly, your Honour, yes. And your Honour, there is the answer to the one question.HIS HONOUR: Yes, the one question of 15th of AprilIN THE PRESENCE OF THE JURYHIS HONOUR: Members of the jury, thank you, for your note which for the record I read as follows: ‘What happened for [the complainant] to tell her mother, what has brought this up, is there any medical evidence for [the complainant], did mother take her to doctor, did [the complainant’s] behaviour change, ask both parents, when was this reported to the police, what date?’Now I can remind you of the evidence which has been led in relation to the last of those queries. The evidence is the 15th of April 1997. And you know that the statement was in fact taken in detail from [the complainant] on 22 April. So the police were contacted on the 15th and the full statement was taken on the 22nd and that’s part of the evidence.Your other queries however, caused me to give you these directions as a matter of law, reminding you of something I said when I was dealing with the way in which you can ask questions, directing them to me because I said then there are rules about what can be asked, sometimes on how it can be asked and so on. There are very strict rules about evidence in the way of what can be led and how. Both parties to this trial have complied with those rules. You might think that there could be other material in existence, which has not been presented to you. You must not however speculate as to whether such other material does in fact exist or not. You most certainly must not speculate about what that other material might establish if it in fact existed. You should leave aside any other questions which are not covered by the evidence or any hopes that you might have or any expectations that you might have. You must concentrate only on the material that has in fact been presented to you.”Counsel then addressed and the trial Judge summed up to the jury.Summing Up

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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