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Court of Criminal Appeal 27 June 2007

SI v R

[2007] NSWCCA 181

Sexual offences
CRIMINAL LAW CHILD COMPLAINANT RELIABILITY OF COMPLAINANT’S EVIDENCE DIRECTIONS ON USE OF VIDEO EVIDENCE

Citation: SI v R [2007] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 27 June 2007
Judge(s): McClellan CJ at CL; Hidden J; Price J

Background

The appellant was tried in the District Court on four counts of sexual intercourse without consent in circumstances of aggravation and one count of aggravated indecent assault. The complainant was an 11-year-old girl. The circumstances alleged to have given rise to the charges centred on an incident on 22 December 2004, when the appellant was alone with the child at her grandmother's home, and on three earlier alleged incidents.

The jury acquitted the appellant on all four sexual intercourse counts but convicted him on the single count of aggravated indecent assault (count 4). He was sentenced to a total term of 2 years and 9 months with a non-parole period of 1 year and 9 months.

The appellant appealed to the Court of Criminal Appeal, arguing that the jury's verdict on count 4 was unreasonable and inconsistent with its acquittals on the remaining counts, and raising additional grounds concerning the admission of hearsay evidence and directions on video evidence.

  • Whether the jury's verdict convicting the appellant on count 4 (aggravated indecent assault) was unreasonable or could not be supported having regard to the evidence, given the acquittals on the remaining counts
  • Whether the evidence of the complainant was sufficiently reliable to sustain the conviction, in light of significant inconsistencies between the accounts of prosecution witnesses and adverse findings on the complainant's credibility
  • Whether there was error in admitting hearsay evidence
  • Whether the jury received adequate directions on the use of the video evidence

Decision

McClellan CJ at CL, with Hidden J and Price J agreeing, upheld the appeal. The central issue was whether it was open to the jury to convict on count 4 while acquitting on count 5, where both counts were alleged to have arisen from the same incident on the same day.

The Court found that the evidence relied upon for counts 4 and 5 was inextricably linked. Count 4 alleged that the appellant touched the complainant's genitalia, and count 5 alleged digital penetration arising from the same episode. By acquitting on count 5, the jury necessarily formed an adverse view of the complainant's credibility. There was no basis in the evidence to accept her account of touching on count 4 while rejecting her evidence of penetration on count 5, as this was not a case where separate and independent evidence supported one count but not the other.

The Court also noted two further significant matters. The complainant had been shown to have made untruthful allegations of sexual misconduct on previous occasions. Critically, the trial judge himself, having observed the complainant give evidence, maintained serious reservations about her credibility and communicated this in a report to the Court of Criminal Appeal, as well as in his remarks on sentence. The Court regarded the trial judge's report as confirming that the verdict was unsafe. Price J specifically noted that the trial judge, a very experienced judge, had expressed the opinion that the verdict on count 4 was unsafe and unsatisfactory.

Because the Court was satisfied that it was not open to the jury to convict on count 4, it considered it unnecessary to address the remaining grounds of appeal concerning hearsay evidence and video directions.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • Verdict of acquittal entered
  • Non-publication order made in relation to the name of the complainant and any matter capable of identifying the complainant

Key Takeaways

  • A conviction cannot stand where the jury's verdict on one count is logically irreconcilable with its acquittals on related counts arising from the same incident, and no independent evidentiary basis exists to distinguish between them.
  • Where a jury acquits on a more serious count, any adverse credibility finding implicit in that acquittal will undermine a conviction on a lesser count if both rest on the same body of evidence.
  • The Court of Criminal Appeal treated the trial judge's post-verdict report expressing serious reservations about the complainant's credibility as a significant consideration in upholding the appeal.
  • Prior demonstrated untruthfulness in related allegations by the complainant was treated as a material factor weighing against the reliability of the evidence underpinning the conviction.
  • Once the Court was satisfied the verdict was unreasonable and could not be supported on the evidence, it entered a verdict of acquittal rather than ordering a retrial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(1)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1958 (Vic)

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Mackenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- R v Markuleski (2001) 52 NSWLR 82
- R v Sloane (2001) 126 A Crim R 188, [2001] NSWCCA 421
- R v Ahmet (1996) 86 A Crim R 316
- R v Habib [2005] NSWCCA 223
- R v Garofalo [1998] VSCA 145
- R v JMV [2001] VSCA 219
- R v Marziale (unreported, VCA, 18 April 1996)