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Court of Criminal Appeal 4 June 2001

REGINA v. SAW

[2001] NSWCCA 222

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEVEN COUNTS APPELLANT ACQUITTED ON ALL BUT ONE APPELLANT DENIED COMPLAINANT'S ACCOUNT CONVICTION UNREASONABLE.

Citation: Regina v SAW [2001] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 4 June 2001
Judges: Dowd J, Greg James J, Newman AJ

Background

The appellant was tried in the District Court on seven counts of sexual offences against the same complainant, who was his daughter. The alleged offending spanned several occasions and locations. At trial, the appellant denied all allegations.

The jury acquitted the appellant on five counts. A directed acquittal was also entered on a sixth count after the complainant gave no evidence to support it. That left a single conviction, on count five, for sexual intercourse with the complainant when she was 15 years old and under his authority, an offence under s 66C(2) of the Crimes Act 1900.

The appellant was sentenced to three years' imprisonment with a non-parole period of two years and three months. He appealed against both conviction and sentence.

  • Whether the trial judge erred in failing to direct the jury on how to proceed if they were not satisfied beyond reasonable doubt that the complainant was telling the truth on one or more counts
  • Whether the guilty verdict on count five was unreasonable, given the acquittals on the related counts and the state of the complainant's evidence

Decision

The Court allowed the appeal on the ground that the conviction was unreasonable, making it unnecessary to decide the directions ground conclusively.

The court applied the test from M v The Queen (1994) 181 CLR 487, as affirmed in Jones v The Queen (1997) 191 CLR 439. Under that test, an appellate court must ask whether, having regard to the jury's advantage of seeing and hearing witnesses, any doubt experienced by the appellate court is one the jury ought also to have experienced. Only where that advantage could resolve the appellate court's doubt may the court conclude no miscarriage occurred.

Count five, the sole remaining conviction, depended entirely on the complainant's credibility. Counts five, six and seven all related to the same place and the same narrow range of dates. The complainant gave no evidence to support count six, and the jury rejected the Crown's case on count seven. Given those outcomes, the Crown's case on count five could only succeed if the jury was satisfied beyond reasonable doubt of the complainant's credit in relation to that same period and location. The acquittals on directly related counts made that impossible to reconcile.

Greg James J observed that this was not a case requiring over-sophisticated analysis or a broad finding that the complainant had lied. Rather, the question was whether the jury's verdict on count five was attended by a doubt that the other evidence and acquittals could not dispel. The court concluded it was, and that the jury's advantage of seeing and hearing witnesses was not capable of resolving that doubt. An acquittal, rather than a retrial, was the appropriate order.

Orders Made

  • Appeal allowed
  • Acquittal entered on count five

Key Takeaways

  • Where a complainant's evidence on related counts has been rejected, either by jury acquittal or directed acquittal, a conviction on a remaining count that depended solely on that same complainant's credibility may be unreasonable under the M v The Queen test.
  • The Court of Criminal Appeal confirmed that the M test requires it to pay full regard to the jury's advantage in seeing and hearing witnesses, but intervene where its own doubt could not be resolved by that advantage.
  • Counts charged together and said to have occurred at the same place and within the same period of time will be assessed in light of each other when examining the reasonableness of a verdict.
  • No corroboration existed for count five in the traditional legal sense, and the medical evidence could not be attributed specifically to the events alleged in that count, though it was consistent with the complainant's general account.
  • The absence of a direction to the jury about the effect of the complainant's credibility across counts, if they found her unreliable on some, was noted but not resolved as a standalone ground given the outcome on unreasonableness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(2)

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Regina v Baskerville [1916] 2 KB 698