Davis v R [2024] NSWCCA 120

Davis v R [2024] NSWCCA 120 · Read the judgment on AustLII

Catchwords: Sexual assault – cross-examination

In this decision the Court of Criminal Appeal (‘CCA’) has considered common arguments which, though they might have currency in non-sexual offending, are of dubious relevance or validity in the context of child sex matters. They have, however, offered some morsels of comfort for practitioners who find themselves, on instructions, obliged to poke holes in only peripheral areas of the case.

A jury convicted the applicant of sexual offences against a child: the applicant, aged 34 to 35, was alleged to have befriended an indigenous boy of 14 or 15 years, and sexually assaulted him on three occasions during visits by the boy to the applicant’s farm. The applicant conceded that he’d taken the boy to the farm to fish, ride motorbikes, and hunt, but denied any sexual contact. The jury acquitted the applicant of two offences of aggravated sexual assault. The complainant’s allegations complaints came out over a number of interactions, first to the complainant’s girlfriend, then over several conversations with police, and finally in evidence. Following the guilty verdicts, the applicant challenged his convictions on grounds including that the complainant’s credibility was so damaged that the verdicts were unreasonable.

In the course of dismissing the appeal, the Court (Adamson AJA, Garling J agreeing; Price AJA also agreeing with short additional reasons) offered commentary on some of the arguments levelled at the complainant’s credibility which were said to be of ‘dubious relevance or validity,’ including assertions that:

• a truthful witness will tell the whole truth at the earliest opportunity and will do so in consistent language, which is capable of being replicated in the witness box;
• if a witness provides more detail at a later time, it is likely to be the product of reconstruction or embellishment, rather than actual recollection; and
• if a witness is mistaken or inconsistent about a matter of detail, such as precise location, colour or weather, this makes the witness’s evidence about substantial matters unreliable.

These arguments were said, by reference to English authority dating back to 1968, to have some currency in areas other than child sexual assault. However, they would appear to have little bearing on the assessment of evidence given by minors about sexual assault. That was particularly so in the present case given that the complainant was a young indigenous man from a rural town who may have felt marginalised and unused to revealing embarrassing or personal information even within his own circle, leave alone to authorities like the police (whom the complainant may have been reluctant to trust), or in a courtroom (at [144]-[145]).

Instead, at [146], the Court set out authorities which supported contrary propositions, and tended to indicate that:

• it is not uncommon for victims to remember specific details about the assaults but not tangential details;
• it is not uncommon for children to be imprecise about time and sequence of events, including sexual offences;
• delay in complaint or provision of further detail after an initial disclosure (for which directions to the jury were given as required by s 293A and s 294(2) of the Criminal Procedure Act) tends to be a common feature of child sexual abuse because of the attendant trauma caused by such abuse and the shame felt by victims; and
• distress in recounting a traumatic experience may be regarded as consistent with the trauma having occurred.

The Court seemingly endorsed earlier authority (Reed v R [2006] NSWCCA 314 – ‘Reed’)) criticising cross-examination of a complainant on their failure to be precise ‘surrounding tangential detail’. Such cross-examination was said in Reed to be rarely appropriate, given that memory about surrounding detail has few if any implications about a person’s reliability on the central details of a traumatic event.

Notably, however, the Court here did not intend to criticise trial counsel for using such means as were available to undermine the complainant’s credibility. Trial counsel was obliged to put the Crown to proof and advance the defence case. Moreover, the Court here also endorsed earlier comments in Reed to the effect that there may be some sexual assault trials in which the only practical means by which an accused can test the evidence of the complainant is precisely by testing in some proper fashion matters of detail that probably meet the description of ‘surrounding tangential detail’ (at [147]-[148]).

For those and other reasons the applicant’s convictions were upheld. There was no challenge to the sentences: two community correction orders.