Citation: Cusack v Regina [2009] NSWCCA 155
Court: New South Wales Court of Criminal Appeal
Date: 4 June 2009
Judge(s): Beazley JA; Blanch J; Howie J
Background
The appellant was convicted by a jury in the District Court of nine counts arising from sexual offending against a 14-to-15-year-old complainant. The offences, which included aggravated indecent assault, sexual intercourse with a child aged between 14 and 16, and attempted sexual intercourse with a child in that age range, occurred between June and September 2004 while the complainant's family and the appellant's family shared a house in which they occupied separate ends connected by a common hallway.
At trial, the Crown called the complainant, two of her friends (one of whom had witnessed events the subject of two counts), her mother, and a cousin, with the latter witnesses' accounts admitted as complaint evidence. The appellant denied any sexual contact with the complainant, and his de facto wife provided limited corroborating evidence on his behalf.
The appellant was sentenced to a total aggregate term of six years' imprisonment with an effective non-parole period of four years and six months. He appealed his conviction on two grounds: that the verdicts were unreasonable and unsupported by the evidence, and that the Crown's closing address improperly reversed the onus of proof.
Legal Issues
- Whether the verdicts on all nine counts were unreasonable and could not be supported having regard to the evidence, given discrepancies in the Crown witnesses' accounts
- Whether the accumulation of inconsistent and unsatisfactory evidence rendered the verdicts unsafe and unsatisfactory
- Whether comments made by Crown counsel in closing address had the effect of reversing the onus of proof by requiring the appellant to disprove the complainant's evidence
Decision
On the unreasonable verdict grounds, the Court found that the discrepancies in the evidence were matters properly left to the jury to weigh when assessing each witness and the Crown case as a whole. Beazley JA acknowledged that an accumulation of inconsistent and unsatisfactory evidence can, in principle, undermine a Crown case to the point where verdicts become unsafe and unsatisfactory. However, that point was not reached here. The jury had been correctly directed on the matters they needed to consider, and the Crown case was characterised as strong.
On the onus of proof ground, the Court confirmed the principle that a trial judge must give a clear direction on the onus of proof where Crown counsel's comments effectively reverse that onus by placing the accused in a position where the complainant's evidence must be accepted unless disproved. The Court then considered whether the Crown's rhetorical question in closing, which drew attention to the detail of the complainant's account (particularly her expressed concern about pregnancy), crossed that line.
The Court concluded it did not. Assessed in the full context of the trial and the trial judge's directions, the Crown's question operated as a suggested analytical tool for the jury to assess the complainant's credibility, rather than as an invitation to accept her evidence unless the appellant could disprove it. The Court noted it would have been better to avoid the rhetorical question, but it did not constitute an improper reversal of the onus. Leave to appeal on this ground was refused.
Orders Made
- The appeal is dismissed.
Key Takeaways
- Discrepancies in the evidence of Crown witnesses in a sexual assault trial are a matter for the jury to assess; their presence alone does not make a verdict unreasonable.
- An accumulation of inconsistent and unsatisfactory evidence can, in principle, render a verdict unsafe and unsatisfactory, but the Court of Criminal Appeal confirmed this threshold was not met on the facts of this case where the Crown case was strong and the jury was properly directed.
- In sexual assault cases, a trial judge is required to give a clear direction on the onus of proof where Crown counsel's comments have the practical effect of requiring an accused to disprove the complainant's evidence in order for it to be rejected.
- Whether a rhetorical question posed by Crown counsel in closing address amounts to an onus-reversing comment must be assessed in the context of the trial as a whole, including how the trial judge treated the matter in directions to the jury.
- Refusing leave to appeal on the onus of proof ground, the Court of Criminal Appeal held that drawing the jury's attention to the detail and internal logic of a complainant's account, as a tool for credibility assessment, does not of itself reverse the onus of proof.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C, 66D
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), s 66
Cases:
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- Palmer v R [1998] HCA 2; (1998) 193 CLR 1
- R v E (1996) 39 NSWLR 450
- R v Markulevski [2001] NSWCCA 290; (2001) 125 A Crim R 186
- R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported)
- Doe v R [2008] NSWCCA 203