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9
Court of Criminal Appeal 5 August 2010

GAR v R (No 1)

[2010] NSWCCA 163

Sexual offences
CRIMINAL LAW APPEAL CONVICTION EVIDENCE FRESH EVIDENCE COGENCY

Citation: GAR v R (No 1) [2010] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 5 August 2010
Judge(s): Tobias JA, Johnson J, Rothman J

Background

The appellant had been convicted by a District Court jury in 2002 of sexually assaulting his former wife (referred to as ER) without her consent. The trial turned on the question of consent, since it was not disputed that sexual intercourse had taken place. At trial, the appellant's and ER's daughter (referred to as E), who was 13 years old at the time, gave corroborating evidence that she had overheard her mother pleading with the appellant not to rape her in the early hours of 14 January 2002.

The appellant's first appeal against conviction was dismissed by the Court of Criminal Appeal in 2003. Some years later, new information emerged suggesting that E had privately admitted on multiple occasions that she had not in fact heard anything that night and had been instructed by her mother to lie.

That fresh material prompted a Supreme Court application under Part 7 of the Crimes (Appeal and Review) Act 2001, which resulted in Barr J referring the whole case back to the Court of Criminal Appeal to be dealt with as an appeal. The present appeal was heard concurrently with two related conviction appeals involving the same appellant.

  • Whether leave to appeal should be granted, given the grounds did not raise a question of law alone
  • Whether the fresh evidence (E's alleged admissions that she had fabricated her trial testimony) was credible, capable of belief, or plausible
  • Whether, even accepting that fresh evidence as credible, it was sufficiently cogent to have likely caused a jury to entertain a reasonable doubt about the appellant's guilt, or to give rise to a significant possibility that a jury acting reasonably would have acquitted him

Decision

The Court granted leave to appeal but ultimately dismissed the appeal. The central question was whether the fresh evidence met the cogency threshold required for a conviction to be overturned on appeal.

The fresh evidence consisted of accounts that E had admitted, in conversations with the appellant, his sister, and a family friend, that she fabricated her trial testimony on her mother's instruction. The Court examined this material carefully but also conducted an independent assessment of the full body of evidence from the original trial.

The Court found that even accepting the fresh evidence as credible and plausible, it did not satisfy either limb of the relevant test. The complainant ER's own evidence at trial was found to have significant probative value and to be entirely credible. Her credibility was reinforced by the manner in which she gave evidence before the Court of Criminal Appeal itself.

Critically, the fresh evidence could not displace the combined weight of the other evidence. E's observation of her mother's physical distress in the early hours of 14 January, the complaint evidence given by the detective who took ER's statement, and the medical report following ER's examination at Westmead Hospital all remained intact. The Court concluded that this body of evidence meant the fresh material was not likely to have caused a jury to entertain a reasonable doubt, nor did it give rise to a significant possibility that a jury acting reasonably would have acquitted.

Orders Made

  • Leave to appeal granted
  • The appellant's appeal against his conviction is dismissed

Key Takeaways

  • Fresh evidence on a criminal appeal must clear a high cogency threshold: it must be likely to have caused a jury to entertain a reasonable doubt, or give rise to a significant possibility that a jury acting reasonably would have acquitted.
  • Where fresh evidence, even if accepted as credible, cannot displace the cumulative weight of the remaining trial evidence (including complaint evidence, medical findings, and direct observations by a witness), the cogency threshold will not be met.
  • Recanted or contradicted evidence from a supporting witness does not automatically undermine a conviction if the primary complainant's evidence stood independently as credible and probative.
  • A referral to the Court of Criminal Appeal by a Supreme Court judge under the Crimes (Appeal and Review) Act 2001 does not bind the appellate court; the Court of Criminal Appeal conducts its own independent assessment of all material.
  • In dismissing the appeal, the Court confirmed that the relevant test is not whether fresh evidence creates any doubt in the abstract, but whether it would have done so in the specific context of the full evidence led at trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 578A (prohibition on identifying complainants in sexual assault proceedings)
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7, ss 78, 79
- Evidence Act 1995 (NSW)

Cases:
- GAR v Regina [2003] NSWCCA 224 (first appeal)
- The Application of GAR, NSWSC, 12 February 2009 (Supreme Court referral)
- JJT v R [2006] NSWCCA 283; (2006) 67 NSWLR 152
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v Abou Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Rasic v R [2009] NSWCCA 202