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Court of Criminal Appeal 9 May 2000

R v ACK

[2000] NSWCCA 180

Sexual offences

Citation: R v ACK [2000] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 9 May 2000
Judge(s): Spigelman CJ, James J, Ireland J

Background

The appellant was convicted in the District Court before Judge O'Reilly and a jury on two counts of aggravated indecent assault against his daughter, who was 14 years old at the time of the alleged offences in January 1993. The aggravating circumstance relied upon by the Crown was that the complainant was under 16 years of age. The appellant was acquitted on a separate count of sexual intercourse without consent.

The case had an extensive procedural history. An earlier conviction in 1994 had been quashed by the Court of Criminal Appeal in 1996, and two subsequent trials were aborted before the trial before Judge O'Reilly in June 1997 resulted in the convictions the subject of this appeal. The appellant was sentenced on each count to three and a half years imprisonment, comprising a six-month minimum term and a three-year additional term, with 19 months of pre-sentence custody taken into account.

The Crown case rested almost entirely on the complainant's evidence. The only other oral evidence came from a friend of the complainant who testified about a complaint made to her, and a police officer who gave evidence of the appellant's denial during interview. Medical evidence, read from a prior trial transcript by consent, did not advance the Crown case and was arguably inconsistent with some of the complainant's account.

  • Whether the verdicts of guilty were unsafe and unsatisfactory within the meaning of s 6 of the Criminal Appeal Act, applying the test established by the High Court
  • Whether, in the absence of any submission from the appellant's counsel, leave to appeal against sentence should be granted

Decision

The sole pressed ground of appeal against conviction was that the verdicts were unsafe and unsatisfactory. James J noted that, following the High Court's decision in Fleming v The Queen and subsequent Court of Criminal Appeal authority, the proper formulation should follow the terms of s 6 of the Criminal Appeal Act rather than the "unsafe and unsatisfactory" expression, but the substance of the inquiry remained the same: whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

James J reviewed the complainant's evidence in detail and found that, despite cross-examination, it remained credible and cogent. The complainant had provided a consistent account, had made an early complaint in 1992 and a prior complaint in 1989, and there was no sufficient basis to conclude that those complaints had been improperly induced. The jury were entitled to accept her evidence and to give weight to the supporting medical evidence on relevant points.

The Court noted the appellant had exercised his right to make an unsworn statement, declining to give sworn evidence or call witnesses in his defence. Taking the evidence as a whole, the Court concluded the verdicts were open to the jury and the appeal against conviction was dismissed. Spigelman CJ and Ireland J both agreed with James J's reasons.

On sentence, the appellant's counsel put no submission in support of the application for leave. James J declined to grant leave, finding the sentences were not manifestly excessive. The Court also observed that a comparison with the sentences imposed at the 1994 trial was of limited utility, as that sentencing had proceeded before the High Court's decision in Pearce v The Queen and had included a conviction for the more serious charge of sexual intercourse without consent.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the appropriate test on an "unsafe and unsatisfactory" ground is whether the evidence, taken as a whole, was sufficient to allow the jury to be satisfied beyond reasonable doubt, consistent with the High Court's approach in Fleming v The Queen.
  • A conviction resting almost entirely on a complainant's evidence is not thereby rendered unsafe, provided that evidence is credible, cogent, and consistent.
  • Early complaint evidence, including a prior complaint made in 1989, was capable of being given weight by the jury in assessing the complainant's credibility.
  • Where a defendant elects to make only an unsworn statement and calls no evidence, the jury are entitled to take that into account when assessing the overall case.
  • Comparing sentences imposed at different trials requires caution where the earlier sentence was passed under a different legal framework for cumulative sentencing, particularly prior to the High Court's decision in Pearce v The Queen.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M (aggravated indecent assault)
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Fleming v The Queen (High Court)
- Pearce v The Queen (High Court)