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Key decisions

  • SB v R [2020] NSWCCA 207
  • R v Stonestreet [2020] NSWCCA 212

SB v R [2020] NSWCCA 207

Complaint evidence – not ‘independent’ evidence of the allegation – evidentiary basis of admitting complaint

In this decision the Court of Criminal Appeal (‘CCA’) has held that evidence of complaint is not ‘independent’ of the complainant. To the extent that the Criminal Trials Bench Book had a recommended direction to that effect, it was wrong. 

The appellant was convicted at trial of a range of sex offences relating to his daughter. About four months after the last allegation (and about three years after the first one), the complainant told her mother and her mother’s new partner about the allegations. Her mother told police, and proceedings were commenced. There was also a body of expert evidence on behalf of the Crown, including from a psychologist to the effect that it is quite common for children to delay before disclosing sexual abuse.

As part of the summing up, the trial judge directed the jury that the complaint evidence was ‘some evidence independent of the evidence given to you of that incident by [the complainant]’. That form of words (that is, including the reference to the ‘independence’ of the complaint) consistent with the suggested directions in the Judicial Commission Criminal Trial Bench Book.

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