AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 22 August 2003

REGINA v SBD

[2003] NSWCCA 235

Sexual offences
APPEAL AGAINST CONVICTION WHETHER VERDICTS INCONSISTENT WHETHER VERDICTS UNREASONABLE VERDICTS OF GUILT NOT OPEN ON EVIDENCE CONVICTIONS QUASHED

Citation: REGINA v SBD [2003] NSWCCA 235
Court: Court of Criminal Appeal, New South Wales
Date: 22 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J

Background

The appellant was tried in the District Court on six counts of indecent or sexual assault alleged to have occurred over a period spanning approximately ten years. The complainant was the appellant's younger neighbour, and the alleged offending began when the complainant was five or six years old. The charges related to three separate time periods: 1986 (counts 1 and 2), 1991 (counts 3 and 4), and 1995 to 1996 (counts 5 and 6).

The complainant did not disclose the alleged abuse until he was approximately 17 years old, telling a woman with whom he was then living. That woman later contacted police, and statements were taken from the complainant in 1999 and 2000. By the time of trial, the complainant was 22 years old and was giving evidence about events alleged to have occurred up to 16 or 17 years earlier.

The jury acquitted the appellant on the first four counts and convicted him on counts 5 and 6, both relating to alleged sexual intercourse without consent at different locations when the complainant was 15. The appellant appealed on the ground that those convictions were unreasonable or could not be supported having regard to the evidence.

  • Whether the verdicts of guilty on counts 5 and 6 were unreasonable or could not be supported having regard to the evidence, under section 6(1) of the Criminal Appeal Act 1912
  • Whether the verdicts of guilty were inconsistent with the verdicts of acquittal on counts 1 to 4, given that all counts depended substantially on the same complainant's credibility
  • Whether significant contradictions between the complainant's initial disclosures and his trial evidence fatally undermined the prosecution case on the remaining counts

Decision

Adams J (with Wood CJ at CL and Simpson J agreeing) identified a series of significant contradictions between the complainant's initial disclosures to police and his evidence at trial. These included discrepancies regarding the frequency of alleged assaults, the locations where they occurred, and details about the appellant's alleged use of rope and chemicals during the offending. The Court found these inconsistencies went to the heart of the complainant's credibility on the counts for which the appellant was convicted.

Adams J also noted that the complainant had introduced an account at trial, not mentioned in his police statements, that he feared the appellant because of a connection to Scientology and a belief that the appellant's spirit could follow him. This explanation, which was apparently central to why the complainant did not resist or report the conduct, had no prior foundation in the complainant's complaints to police or to D.

On the question of consent, the Court observed that the appellant's guilt on counts 5 and 6 required proof beyond reasonable doubt that he knew the complainant was not consenting or was reckless as to that fact. The Court found that the complainant's own evidence described compliance without physical force, and that the complainant had continued to seek out or accept the company of the appellant throughout the alleged period of abuse. The Court found it difficult to reconcile that conduct with an absence of consent.

Applying the requirement articulated in R v Murray that a complainant's evidence in the absence of corroboration must be scrutinised with great care, Adams J concluded that no jury could reasonably have failed to entertain a reasonable doubt about the appellant's guilt. The convictions were therefore not open on the evidence.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • No new trial ordered

Key Takeaways

  • A conviction will be quashed under section 6(1) of the Criminal Appeal Act 1912 where the Court of Criminal Appeal, making full allowance for the jury's advantage in observing witnesses, concludes that no reasonable jury could have excluded a reasonable doubt on the evidence.
  • Significant contradictions between a complainant's initial disclosures and their trial evidence can undermine the reliability of that evidence to a degree that renders a guilty verdict unreasonable, even where the complainant's demeanour may have been persuasive.
  • Where a conviction for sexual assault without consent requires proof that the accused knew of, or was reckless as to, the absence of consent, evidence of the complainant's own conduct that is difficult to reconcile with non-consent is a relevant consideration in assessing whether the verdict can be sustained.
  • The Court of Criminal Appeal declined to order a retrial, having regard to the reasons for quashing the convictions, namely that the evidence as a whole could not sustain a verdict of guilt rather than any procedural irregularity.
  • In cases involving historical allegations resting solely on a complainant's evidence, the absence of any supporting evidence on the crucial issues requires that evidence to be scrutinised with particular care, consistent with the principle in R v Murray.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1984) 181 CLR 487
- MFA v The Queen [2002] HCA 53, (2002) 193 ALR 184
- R v Markuleski [2001] NSWCCA 290, (2001) 125 A Crim R 1
- R v Murray (1987) 11 NSWLR 12