AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 24 November 2005

L.A.H. v Regina

[2005] NSWCCA 400

Sexual offences

Citation: L.A.H. v Regina [2005] NSWCCA 400
Court: New South Wales Court of Criminal Appeal
Date: 24 November 2005
Judge(s): Sully J, Hulme J, Latham J (majority: Sully J and Latham J; dissent: Hulme J)

Background

The appellant (referred to as LAH) was tried before a judge alone in the District Court at Bega on two counts. Count 1 charged that he had sexual intercourse with the complainant (referred to as K), his sister, knowing she had an intellectual disability and intending to take advantage of her vulnerability for sexual exploitation, contrary to section 66F(3) of the Crimes Act 1900 (NSW). Count 2, charged in the alternative, alleged sexual intercourse with a close family member above the age of 16, contrary to section 78A(1) of the same Act.

The complainant was a 57-year-old woman with a mild intellectual disability who lived with her mother. A local support coordinator and a psychologist both gave evidence regarding her disability. The complainant's account was relayed partly through her support worker and partly through her own evidence at trial, which contained a number of internal contradictions and inconsistencies.

The trial judge found the appellant guilty on Count 1 and sentenced him to three years' non-parole period with a balance of term of two years, backdated to 27 August 2004. The appellant appealed against both the conviction and the sentence.

  • Whether the trial judge erred by misdirecting himself regarding the contradictions in the complainant's evidence
  • Whether the conviction was unreasonable or unsupported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the trial judge erred in applying section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 when sentencing
  • Whether the sentence imposed was manifestly excessive

Decision

The majority (Sully J and Latham J) allowed the appeal on the ground that the conviction was unreasonable and could not be supported having regard to the evidence. Applying the test from M v The Queen, the majority found that the complainant's evidence contained discrepancies and inadequacies that were not adequately explained by the manner in which the evidence was given, and that there was a significant possibility that an innocent person had been convicted.

A notable feature of the trial was the trial judge's decision to exclude relationship evidence that the Crown sought to tender. That evidence would have shown that similar conduct had allegedly occurred on other occasions over many years. The Crown argued this evidence was needed to explain why the complainant appeared to comply with what had occurred. The trial judge rejected it on the basis that its probative value was outweighed by the unfairness to the appellant in meeting such evidence. The majority appears to have treated the absence of this evidence as significant to the assessment of whether the conviction could stand.

Hulme J dissented. His Honour considered that many of the inconsistencies in the complainant's evidence related to matters of little consequence, and that a degree of confusion about detail was not surprising given the circumstances. Hulme J concluded that the lack of credibility in some of the complainant's evidence was explicable by the manner in which it was given, and that there was no significant possibility that an innocent person had been convicted. He would have dismissed the appeal.

Because the appeal against conviction was allowed by the majority, the Court directed a verdict of acquittal on Count 1. The sentence grounds were therefore not separately determined.

Orders Made

  • The appellant be referred to only as LAH, and the complainant only as K, in any report of the judgment or proceedings (non-publication order)
  • Appeal against conviction allowed
  • Conviction on Count 1 quashed
  • Sentence passed pursuant to Count 1 quashed
  • Directed verdict of acquittal on Count 1

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test in M v The Queen (1994) 181 CLR 487 requires the appellate court to set aside a verdict where, even making full allowance for the advantages of the fact-finder, there is a significant possibility that an innocent person has been convicted.
  • A conviction may be quashed as unreasonable where evidence contains discrepancies and inadequacies that are not explained by the manner in which it was given, even in cases involving a complainant with an intellectual disability.
  • Where a trial judge excludes relationship or similar-fact evidence sought by the Crown, that decision can affect the overall picture against which the remaining evidence is assessed on appeal.
  • Hulme J's dissent illustrates that the M v The Queen test can produce genuinely different outcomes among appellate judges applying the same standard to the same record, particularly where inconsistencies in evidence are capable of more than one explanation.
  • A directed verdict of acquittal follows where an appellate court allows a conviction appeal on the basis that no reasonable fact-finder could have been satisfied of guilt beyond reasonable doubt on the evidence presented.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66F(3), 78A(1)
- Evidence Act 1995 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Cases:
- M v The Queen (1994) 181 CLR 487
- Morris v The Queen (1987) 163 CLR 454
- R v AJG, unreported, NSWCCA, 30 October 1997