Relc v Regina - [2006] NSWCCA 383

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: RELC v REGINA [2006] NSWCCA 383

FILE NUMBER(S):
2006/861

HEARING DATE(S): 6 October 2006

DECISION DATE: 29/11/2006

PARTIES:
RELC (Appl)
The Crown)

JUDGMENT OF: McClellan CJ at CL Adams J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0024

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
A Francis (Appl)
P Barrett (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
Appeal against conviction
act of indecency
sexual intercourse
child under ten years
miscarriage of justice
warnings to jury relating to evidence-in-chief given by recording
warnings to jury relating cross-examination by CCTV
whether error in allowing recordings and transcript to be taken to jury room
disproportionate weight
no adverse inference
whether proper procedure followed for allowing recordings and transcripts to be taken to jury room
improper cross-examination
evidence of children
warnings on unreliability
whether a warning appropriate
whether contemplated under s 165 of the Evidence Act

LEGISLATION CITED:
Evidence Act 1995
Evidence (Children) Act 1997
Evidence Legislation Amendment Act 2001 (NSW)

DECISION:
1. The appeal is allowed
2. The convictions and sentences are quashed
3. Order a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/861
McCLELLAN CJ at CL
ADAMS J
HOWIE J
WEDNESDAY 29 NOVEMBER 2006

RELC v REGINA

Judgment

McCLELLAN CJ at CL: The appellant appeals against his conviction and seeks leave to appeal his sentence in relation to three counts:
Count 1:
That he on or about 24 July 2004, at Gordon in the State of New South Wales incited CED, being a person under ten years, namely seven years and who was under the authority of RC to commit an act of indecency with RC.
Count 2:
That he on or about 24 July 2004, at Gordon in the State of New South Wales did have sexual intercourse with CED a person then under the age of ten years, namely seven years.
Count 3:
That he on or about 24 July 2004, at Gordon in the State of New South Wales did have sexual intercourse with CED, a person under the age of ten years, namely seven years.
The appellant was sentenced on 12 August 2005 as follows:
Count 1:
Imprisonment for eighteen months to commence on 3 June 2005 and to expire on 2 December 2006. In relation to this count the sentencing judge declined to set a non-parole period because the sentence of imprisonment was to be served concurrently with terms of imprisonment with longer non-parole periods.
Counts 2 and 3:
Imprisonment for six years and six months to commence on 3 June 2005 and to expire on 2 December 2011 with a non-parole period of 4½ years commencing on 3 June 2005 and expiring on 2 December 2009.
The Crown case in summary
The Crown case was that on Friday 23 July 2004 the complainant, a seven year old girl, slept over at the house of her best friend LC. The appellant is…

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 Relc v Regina

Details

AGLC: RELC v Regina [2006] NSWCCA 383
Case: [2006] NSWCCA 383
Decision Date: 29 November 2006

CaseChat Overview and Summary

The appellant, Relc, appealed against his conviction for the act of indecency with a child under ten years old. The case was heard in the High Court of Australia. The appellant argued that there was a miscarriage of justice and that the trial judge erred in several respects, including allowing recordings and transcripts of evidence to be taken to the jury room, improperly cross-examining a witness, and failing to warn the jury about the unreliability of child witnesses. The appellant claimed that these errors led to the jury placing disproportionate weight on certain evidence and that the trial judge should have drawn an adverse inference from the Crown's failure to call certain witnesses.

The central legal issues in the appeal were whether the trial judge erred in allowing the recordings and transcripts to be taken to the jury room, whether the cross-examination of the appellant's wife was improper, and whether the trial judge should have warned the jury about the unreliability of child witnesses. The appellant argued that these errors deprived him of a fair trial and amounted to a miscarriage of justice. The Crown contended that the trial judge's decisions were correct and that any errors did not affect the outcome of the trial.

The High Court found that the trial judge did not err in allowing the recordings and transcripts to be taken to the jury room, as the practice was not inherently flawed and the jury was properly warned about the need to rely on their own recollections. The Court also found that the cross-examination of the appellant's wife was proper, as it was aimed at testing her credibility and did not amount to an abuse of process. Regarding the warning about the unreliability of child witnesses, the Court held that while such a warning may be appropriate in some cases, it was not contemplated under section 165 of the Evidence Act and the trial judge was not required to give one. The Court concluded that the appellant's conviction was safe and sound and that there was no miscarriage of justice.

The High Court dismissed the appeal and upheld the appellant's conviction. The Court found that the trial judge had followed proper procedure, that the cross-examination was not improper, and that no warning about the unreliability of child witnesses was required. The Court held that the trial judge's decisions did not deprive the appellant of a fair trial and that the conviction was based on reliable and unimpeached evidence. The appeal was therefore dismissed, and the appellant's conviction stood.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant gave evidence that he had an erectile dysfunction, low libido and a back condition which made the allegation against him impossible as he was unable to do push ups on the top of the complainant in the manner she alleged.The evidence of JC JC, the appellant’s wife was called in the defence case. She gave evidence that she had separated from the appellant in about 2000 but they continued to live together under the one roof with their two children. She said that the complainant had slept at their house at various times over several years. JC said that she was present on the night of the alleged incident but did not hear anything consistent with the complainant’s account. In giving evidence of the layout of the house she said that it echoed a lot because of the wooden floor boards and that she was a relatively light sleeper. She said that she did not hear the complainant scream out. She also gave evidence that the complainant had spent a night at their home after the alleged incident and that she had joined the family that night at a restaurant while celebrating their son’s birthday. Defence counsel sought to elicit from JC whether she had read either of the police statements that her daughter had given. The Crown objected to the question and it was withdrawn. However, JC said that she spoke with her daughter after the appellant was arrested and said (using C to symbolise the complainant):“She told me that she’d had a nightmare, she went into dad’s bedroom, she told me that C followed her, she wanted to go to sleep, C didn’t want to sleep, so she got up and pulled [the appellant’s] pants down, got the hand lotion, put her hand on R’s penis and then placed L’s hand on [the appellant’s] penis, then apparently Dad woke up, Dad asked ‘who’s responsible for this? LC said ‘C’ and C apparently said ‘but LC had sex with B.’ Then apparently dad was very upset, so he told them to stay in this room, do not go anywhere and go to sleep, and apparently C asked for some treats, which he gave them, and he left the room and the girls went to sleep.” JC also gave evidence that some time after LC had changed schools LC had told her that she had given a different account to the police but that she had only done this because the complainant had threatened to tell everyone at school what had happened. JC also gave evidence of the appellant’s bad back and how it impacted upon his mobility. She gave evidence of conversations with the family doctor which were consistent with the appellant having problems with erectile function. The Crown cross-examined JC and attacked her credibility. A central element of the attack was based on the circumstance that she had not told the police that she was aware that the complainant had lied in her second interview and only revealed that knowledge when she gave evidence. JC said that, amongst other reasons, she had not told the police because they had warned her not to talk to her daughter about her evidence and she was afraid of any repercussions. The following exchange occurred:“Crown Prosecutor: Q. You didn’t tell the police that your daughter, an important witness in this case had changed her evidence. Is that correct?A. Yes.Q. And is that because you didn’t think that was important?A. No.Q.In fact, Mrs C, it’s because you knew that what she told the police the first time on [sic] her interview in 2 September was correct. Is that not right?A. No.Her Honour: I’m sorry, can you put that question again, Madam Crown?Crown Prosecutor: I will, your Honour.Q.The reason you didn’t tell the police that your daughter was going to change her story is because you knew she told the truth the first time to the police?A. No.Her Honour: Which one?Crown Prosecutor: I’ll try again, your Honour.Her Honour: That’s why I asked you to ask the question again Madam Crown.Crown Prosecutor: The reason, Mrs C and I think you know where I’m going with this --Greenhill: I object to that comment.Her Honour: Madame Crown stop making comments to the witness.Crown: Yes your Honour.Her Honour: Ask questions and stop making comments.Crown Prosecutor: The reason that you didn’t tell the police that your daughter was going to change her evidence is because you knew that when she gave her interview to the police on 2 September she told the truth?A. No.Q.It wasn’t true, what you said yesterday, that you knew nothing about the matter is it.A. I don’t understand.Q.When you told Mr Greenhill that you didn’t want to give a statement to police because you knew nothing --A. Yes.Q. -- about this matter, that wasn’t right, was it?A. I didn’t know anything about the incident.Q.But you did know that your daughter was going to change her testimony?A. I didn’t know.Q. Well you knew -A. Well -Q. -- that she was – she had told you --A. I told my daughter to tell the truth.Q. You also know that she had told the police something else?A. Yes.Q.But you didn’t think that was sufficiently important to tell the police, is that right?A. I was frightened to tell the police.Q. Frightened to tell the police about the truth, is that right?A.I was frightened to tell the police because they had told me – LM had told me on three separate occasions if I was to influence L to change her statement I could be charged with witness tampering, my children taken away from mum, and that they hadn’t yet finished laying charges against L – against R about L.Q.Mrs C, didn’t you think it was important that the police know that L is going to change her evidence in this serious court case?A. I sought legal advice.”Grounds of appeal

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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