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Court of Criminal Appeal 6 May 1999

R v BDF

[1999] NSWCCA 98

Sexual offences
CONVICTION UNSAFE AND UNSATISFACTORY EXAMINATION OF CROWN WITNESS REFUSAL TO LIMIT EVIDENCE.

Citation: BDF v R [1999] NSWCCA 98
Court: New South Wales Court of Criminal Appeal
Date: 6 May 1999
Judge(s): Sheller JA, Dowd J, Hidden J

Background

The appellant was a stepfather figure convicted in the Campbelltown District Court on six counts relating to sexual offences against his partner's daughter, who was aged between 10 and 12 at the time of the alleged incidents. The offences were said to have occurred over a period of roughly two years within the family home. The complainant gave evidence of repeated attempts at penetration on various occasions, and the jury returned guilty verdicts on all counts on 30 March 1998.

The appellant was sentenced to concurrent terms of penal servitude, with a minimum term of two years and six months and an additional term of one year and six months. He appealed against his convictions on several grounds, including that the verdicts were unsafe and unsatisfactory, that there were errors in the admission of evidence, that directions on complaint evidence were inadequate, and that the trial judge wrongly refused to limit certain evidence.

At the conclusion of oral argument on 1 December 1998, the Court initially ordered a new trial. However, after further deliberation in preparing written reasons, the Court concluded that the convictions could not safely stand and that the appellant was entitled to acquittal rather than a retrial.

  • Whether the verdicts were unsafe and unsatisfactory having regard to the evidence, particularly the complainant's testimony and its inconsistencies
  • Whether it was appropriate for the trial judge to allow cross-examination of a Crown witness in the manner that occurred
  • Whether certain evidence was wrongly admitted
  • Whether the trial judge's directions on complaint evidence were adequate
  • Whether the trial judge erred in refusing to limit the scope of certain evidence

Decision

The central ground of appeal was that the verdicts were unsafe and unsatisfactory. Dowd J conducted a detailed analysis of the complainant's evidence and identified significant discrepancies. Notably, the complainant had alleged penetration on three occasions in her original statement to police but did not give evidence of penetration at trial, which was consequential enough that the Crown itself asked for the counts to be reformulated as attempts. The complainant offered explanations for various inconsistencies, but the Court found those explanations were implausible and appeared contrived to cover the gaps.

Dowd J concluded that the cumulative weight of the deficiencies in the complainant's evidence ought to have raised a reasonable doubt in the minds of the jurors. Applying the principles in Fleming v The Queen (1998) 158 ALR 379, his Honour held it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Sheller JA agreed with Dowd J's analysis and reached the same conclusion that the verdict was unsafe. Hidden J, having initially been satisfied that the trial irregularities alone warranted a new trial, was persuaded on reading Dowd J's analysis that the deficiencies in the complainant's testimony raised a doubt that could not be resolved by reference to the jury's advantage in seeing and hearing witnesses, applying M v The Queen (1994) 181 CLR 487. Hidden J therefore found it unnecessary to reach a conclusion on the remaining grounds of appeal.

Because the Court found the verdicts were unsafe on the evidence as a whole, the appropriate remedy was not a retrial but an acquittal. The Court vacated its earlier order for a new trial and directed verdicts of acquittal on each count.

Orders Made

  • The appeal was allowed
  • The convictions were quashed
  • The earlier order for a new trial was vacated
  • A judgment and verdict of acquittal was directed to be entered on each count

Key Takeaways

  • Where significant and cumulative inconsistencies in a complainant's evidence make it impossible for a jury to be satisfied beyond reasonable doubt, the Court of Criminal Appeal may find the verdict unsafe and unsatisfactory under the principle in Fleming v The Queen.
  • A conviction is not rendered safe simply because a jury had the advantage of seeing and hearing witnesses; where the deficiencies in evidence raise an unresolvable doubt, that advantage cannot cure the problem, applying M v The Queen.
  • When an appellate court determines that the evidence could not have supported a guilty verdict, the appropriate order is an acquittal rather than a new trial, even where trial irregularities might otherwise have warranted a retrial.
  • The Court's initial order of a new trial was reconsidered and vacated during the preparation of written reasons, illustrating that an appellate court may revise its orders before they are formally perfected where further analysis of the evidence compels a different outcome.
  • Discrepancies between a complainant's pre-trial statement and their trial evidence, particularly on a central element such as penetration, can be material to whether a verdict is supportable.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Fleming v The Queen (1998) 158 ALR 379
- M v The Queen (1994) 181 CLR 487
- BD (1997) 94 A Crim R 131
- Graham v R (1998) 157 ALR 404
- Jones v R (1997) 2 ALJR 78
- Longman v R (1989) 168 CLR 79
- R v Papakosmas (NSWCCA, unreported, 10 December 1997)