R v JJN [2002] NSWCCA 281

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v JJN [2002] NSWCCA 281 Hearing dates: 3 July 2002 Decision date: 24 July 2002 Before: Mason P at 1; Hulme J at 2; Simpson J at 35 Decision: Appeal allowed. All convictions of the Appellant on the charges, the subject of this appeal are quashed. The Appellant be retried. Legislation Cited: Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: Palmer v R (1998) 193 CLR 1 R v Chant (unreported, CCA NSW, 12 June 1998) R v E (1996) 39 NSWLR 450 R v F (1995) 83 A Crim R 502 R v Jovanovic (1997) 42 NSWLR 520 R v Smith [2000] NSWCCA 468 R v Uhrig (unreported, CCA, 24 October 1996) Category: Principal judgment Parties: Regina JJN Representation: Counsel: Crown: WG Dawe QC Appellant: PG Berman

Solicitors: Crown: SE O'Connor Appellant: DJ Humphreys File Number(s): CCA 60591/01 Decision under appeal Court or tribunal: District Court Date of Decision: 24 August 2001 Before: Solomon DCJ File Number(s): 00/21/1096

Judgment 1. MASON P: I agree with Hulme J. 2. HULME J: On 30 April 2001 the Appellant was convicted on four counts of indecent assault and four counts of sexual intercourse with his niece. The events, the subject of all charges were alleged to have taken place between 1 August 1998 and 12 January 1999 when the complainant was aged 10. 3. On 24 August 2001, Solomon DCJ sentenced the Appellant on the indecent assault charges to concurrent fixed terms of 2 years and 6 months and on the sexual intercourse charges to imprisonment for concurrent terms of 6 years and 3 months. The sentences on the sexual intercourse charges were made cumulative on those imposed in respect of the indecent assaults. A non-parole period of 6 years was set. 4. In respect of the first six counts, the only evidence relied on was that of the complainant. The offences, the subject of the seventh and eighth counts were said to have occurred while the complainant and Appellant were in his bed on 12 January 1999. Evidence additional to that of the complainant relating to these charges was provided by some hearsay statements of the complainant's mother who purported to recount statements made to her by a George Christou who had either been living at the same premises or was at least there fairly often. The complainant's mother's evidence was to the effect that in early January the complainant had told her that the Appellant had been touching her. She, that is the mother, asked Mr Christou to watch the complainant and on 13 January Mr Christou had reported that he was walking quietly on a balcony towards the relevant bedroom and he saw the complainant and Appellant in the bed. Mr Christou said he saw the blanket moving. The complainant saw him and he went "ssh". Mr Christou then sneaked back downstairs and came up again, this time walking into the room and saying "what am I missing out on" to which the Appellant replied "nothing much, we are just watching TV." 5. At the time of the trial, Mr Christou was deceased. 6. The first ground of appeal is that:- "The trial judge's direction concerning the hearsay evidence as to what Mr Christou said to the complainant's mother was inadequate and failed to comply with Section 165 of the Evidence Act." 1. There are two aspects to the complaint. It is submitted that His Honour failed to direct the jury regarding essential matters. Secondly it is said that His Honour inappropriately diluted the force of the warning he gave. The matters said to have been essential were taken from the Australian Law Reform Commission report which led to the passing of the Evidence Act, viz:- (a) The potential compounding of weakness of perception, memory, narration skills and sincerity when evidence of the fact is given second hand. (b) The statement to the witness not be testable by cross examination. (c) The statement made to the witness not being made in a court environment and thus potentially more susceptible to pressures which might result in a false account. (d) The statement made to the witness not being made on oath or affirmation in the solemn context of proceedings in court. 1. What His Honour said was this:- "In relation to the seventh and eighth counts, that is the alleged indecent assault and the alleged sexual intercourse which occurred on (12 January 1999) the Crown submits that this is corroboration regarding those counts… So the first thing you have to decide is whether you accept that material. The material is evidence given by (the complainant's mother) that she was told by George Christou that he observed the complainant, and the accused, in bed under the blankets and he saw the blankets move. So the first thing you have to decide is do you accept that evidence. The evidence was not given directly by George Christou because as you have heard George Christou is dead. The evidence is hearsay evidence and I am going to say something more about hearsay evidence later but you have to decide whether you accept the evidence given by (the mother). It is a matter for you in assessing (the mother), whether you do accept the evidence and I remind you that the evidence is hearsay evidence, it was not given by George Christou, the evidence could not be tested by the accused because Mr George Christou is dead. However the evidence was permitted to be given and I am going to say something about that evidence at some later stage. The evidence I remind you is that George Christou, so says (the mother), told her that he observed the complainant and the accused in bed under the blankets, he saw the blankets move. He then came into the bedroom and spoke to the complainant and the accused. The evidence is hearsay evidence and I am required to, by law, to warn you that the evidence may be unreliable by virtue of the fact that it is hearsay evidence given by a witness concerning something said by a deceased person. I warn you of the need for caution in determining whether to accept the evidence of (the mother) and in your determining what weight is to be given to the evidence. Now I give you that direction, not because of any view which I have formed about the quality or weight of the evidence, I give that direction because I am required to give that direction to you by virtue of the Evidence Act so please do not believe I have given that direction because of any view I have formed about the reliability of the evidence, it is a direction which I am required to give as a matter of law to you." 1. The fact that the evidence of Mr Christou's observations was hearsay meant that, in the circumstances of the case a warning was required if requested. A request was made. Section 165(2) of Evidence Act obliged the judge to:- (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. 1. His Honour clearly complied with paragraphs (a) and (c). However he did not comply with paragraph (b). All he said in that connection was "the evidence could not be tested by the accused because Mr George Christou is dead." While that circumstance may tend to prevent any unreliability in the evidence being ascertained and was properly mentioned by his Honour, the absence of testing of Mr Christou was not the primary cause of any unreliability in the hearsay evidence. Rather do the causes of any unreliability lie in, for example, any imperfection in Mr Christou's honesty, perception of the event, and accuracy of recounting of it together with any imperfections in the complainant's mother's honesty, perception of what Mr Christie told her, memory of that and accuracy of recounting. Nor was there any reference to the fact that sometimes memory of what is heard is not as reliable as memory of what is seen. 2. It may well be that, as counsel for the Appellant submitted, mention should also have been made of other of the matters referred to in paragraph 6 above but I do not need to decide that. The wholesale failure of his Honour to refer to the matters mentioned in the immediately preceding paragraph means that s165(2) was not complied with. 3. I am also of the view that, in the context of what he did say, his Honour's remarks did tend to dilute the effect of the warning he did give. While no objection could legitimately be taken to his Honour saying that he gave the warning because he was required by law to do so and not because he had any personal concerns or views as to the reliability of the evidence, the statement that he was required by law to give the warning was made 3 times. As the reasons for judgment of Howie J in R v Stewart (2001) 52 NSWLR 301 (at [140]), with which in this respect I agreed (at [35]), demonstrate, that is not the end of the matter and the context must be considered. However here, if one puts aside other matters not relevant to the comparison, his Honour's statement as to why he was and was not giving the warning occupy more words than the whole of the warning itself. When one has regard also to the deficiencies to which I have referred above, that is certainly to dilute its effect.