Citation: CJG v Regina [2007] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 4 July 2007
Judge(s): Hodgson JA, Grove J, Simpson J
Background
The appellant was tried before Maguire DCJ and a jury in the Campbelltown District Court in August 2004. The charges arose from alleged sexual offences against a nine-year-old complainant during a period in 2003, when the appellant, a cousin of the complainant's mother, lived in the same residential premises as the complainant's family. The alleged offences occurred both in the complainant's bedroom and in the appellant's bedroom on the lower floor of the property.
The indictment contained eleven counts, including counts of sexual intercourse with a child under ten and aggravated indecent assault. The jury acquitted the appellant on the majority of counts but found him guilty on three counts of aggravated indecent assault. Sentences imposed at first instance had already expired by the time the appeal was heard, meaning only the convictions themselves were in issue.
A significant feature of the appeal was that the complainant's evidence in chief had been presented largely through a video interview conducted by a Department of Community Services officer shortly after the alleged events. By the time of the appeal, that video was no longer available. The Court of Criminal Appeal therefore relied solely on a transcript of the interview rather than the recording itself.
Legal Issues
- Whether the three guilty verdicts were unreasonable and could not be supported having regard to the evidence, applying the principles in M v The Queen (1994) 181 CLR 487
- Whether the guilty verdicts were irreconcilably inconsistent with the not guilty verdicts on other counts, applying MacKenzie v The Queen (1996) 196 CLR 348
- Whether the credibility of the child complainant was so fundamentally damaged that reliance on her evidence was unsafe
- Whether the alleged admission by the appellant to the complainant's mother was reliable
Decision
The Court unanimously dismissed the appeal, with Grove J delivering the principal judgment and Hodgson JA and Simpson J each agreeing with his reasons. The single ground of appeal, that the verdicts were unreasonable and could not be supported by the evidence, was rejected.
Grove J acknowledged that the Court was at a disadvantage compared with the jury. The jury had viewed the original video recording of the child's interview, had inspected the premises (including the bathroom and adjoining bedrooms) at their own request, and had assessed the complainant's demeanour directly. The appellate court was limited to reading a transcript. Those advantages, Grove J noted, were relevant to the weight the jury could properly accord the evidence.
On the question of alleged inconsistency between the guilty and not guilty verdicts, the Court found no demonstrated inconsistency. The jury appeared to have convicted on counts reflecting the complainant's more spontaneous and unprompted descriptions of conduct, specifically rubbing and licking, while maintaining a reasonable doubt on counts requiring proof of penetration. A jury note during deliberations had asked whether touching the vagina constituted sexual intercourse or whether penetration was required, which the Court treated as consistent with the jury carefully distinguishing between the counts on a principled basis.
The Court also rejected the submission that the complainant's credibility was so fatally damaged as to render the convictions unsafe. Although discrepancies in detail were acknowledged, Grove J noted that the complainant's mother's evidence of an admission by the appellant, combined with the appellant's prompt departure from the premises without protest when confronted, provided additional grounds for accepting the reliability of the complainant's account on the three counts resulting in conviction.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal reinforced that an appellate court reviewing a verdict as unreasonable must give significant weight to the advantages the jury held, including direct observation of a child witness on video and a view of the premises, particularly where the video recording is no longer available for appellate review.
- Apparent inconsistency between guilty and not guilty verdicts on related counts does not automatically establish error; a jury may rationally convict on some counts while acquitting on others where the evidence supporting each count differs in quality or specificity.
- A child complainant's spontaneous, unprompted descriptions of alleged conduct carry particular evidential weight, and a jury's application of a higher standard of proof to counts requiring penetration is a coherent basis for differentiating verdicts.
- Concession by appellant's counsel that there was, as a matter of law, sufficient evidence to sustain the guilty counts effectively confined the appeal to a question of the reasonableness of the jury's assessment, a high threshold to meet on appeal.
- Conduct consistent with consciousness of guilt, such as the appellant's immediate departure from the premises without protest after being confronted with the allegations, formed part of the evidentiary basis the Court considered in upholding the convictions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66B
Cases:
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 196 CLR 348
- R v Markuleski (2001) 52 NSWLR 82
- Regina v NZ (2005) 63 NSWLR 628