AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 28 April 1999

R v RGG

[1999] NSWCCA 81

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION MATTERS TAKEN INTO ACCOUNT

Citation: RGG v R [1999] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 28 April 1999
Judge(s): Wood CJ at CL; Hidden J; Smart AJ

Background

The appellant was convicted in the District Court at Newcastle on two counts of sexual intercourse with a girl under the age of sixteen, without consent, contrary to s 61D(1) of the Crimes Act 1900 (NSW). He was sentenced to concurrent terms of twelve months penal servitude with additional terms of four months penal servitude on each count.

The complainant alleged the offences occurred on a single afternoon at the appellant's home in late 1982, when she was approximately five years old. She gave evidence of these events some thirteen years after they were said to have taken place. Several other persons alleged to have been present at the time denied any such events occurred.

On appeal, the appellant argued the verdicts were unsafe and unsatisfactory, contending they were unreasonable or could not be supported having regard to the evidence. He sought the substitution of verdicts of acquittal.

  • Whether the verdicts of the jury were unreasonable or could not be supported having regard to the evidence as a whole
  • Whether, even where sufficient evidence exists to entitle a jury to convict, a reasonable jury ought nevertheless to have entertained a reasonable doubt
  • Whether verdicts of acquittal should be substituted in place of the convictions

Decision

The Court of Criminal Appeal identified the applicable test as requiring it to independently examine the nature and quality of all the evidence to determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The Court noted that the mere existence of evidence sufficient to ground a conviction does not foreclose intervention: a verdict can be unsafe or unsatisfactory even where there is technically sufficient evidence.

The Court accepted that it must give appropriate weight to the jury's advantage in seeing and hearing witnesses. However, it concluded that the weaknesses in the complainant's evidence could not be satisfactorily explained by reference to the manner in which the evidence was given, and that the jury's apparent acceptance of her credibility did not resolve those weaknesses.

The Court identified a combination of eight factors that, taken together, led it to conclude the jury ought to have entertained a reasonable doubt. These included the complainant's very young age at the time and the extent of her claimed recall thirteen years later; the absence of physical injury or observed distress; uncertainty about the year the conduct occurred; denials from not only the appellant but three other alleged witnesses; the improbability of the events occurring with others in the immediate vicinity; the lengthy delay in making a complaint; a significant and somewhat unexplained correction to the account she initially gave police; and her inaccurate description of the layout of the appellant's house, which was contradicted by both physical evidence and other witnesses.

The Court emphasised that its intervention did not constitute a finding that the complainant was lying. Rather, the cumulative nature of the evidentiary weaknesses, assessed against the criminal standard of proof, led to the conclusion that a reasonable jury ought to have had a reasonable doubt.

Orders Made

  • Appeal allowed
  • Convictions and sentences set aside
  • Verdicts of acquittal substituted

Key Takeaways

  • The NSW Court of Criminal Appeal confirmed that it must undertake an independent examination of the nature and quality of all evidence, not merely ask whether there was sufficient evidence for the jury to convict.
  • A verdict can be unsafe or unsatisfactory even where technically sufficient evidence exists: the critical question is whether the jury ought to have entertained a reasonable doubt, not simply whether it was entitled to convict.
  • Where evidentiary weaknesses cannot be explained by the manner in which evidence was given, the advantage held by the jury in seeing and hearing witnesses does not prevent the Court of Criminal Appeal from intervening.
  • Cumulative weaknesses in a complainant's account, considered together rather than in isolation, can collectively compel the conclusion that no reasonable jury should have been satisfied of guilt beyond reasonable doubt.
  • Substituting a verdict of acquittal on this basis does not constitute a finding that the complainant was untruthful; it reflects the requirements of the criminal standard of proof applied to the evidence as a whole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61D(1)

Cases:
- Morris (1987) 163 CLR 454
- Chidiac (1991) 171 CLR 432
- M (1994) 181 CLR 487
- Jones (1997) 191 CLR 439
- RJC (NSWCCA, 1 October 1998)
- Williams (NSWCCA, 23 February 1999)
- Harvey (NSWCCA, 9 April 1998)