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Court of Criminal Appeal 2 March 2010

Conway v R

[2010] NSWCCA 31

Sexual offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Conway v R [2010] NSWCCA 31
Court: Court of Criminal Appeal, New South Wales
Date: 2 March 2010
Judge(s): Grove J, Simpson J, RA Hulme J

Background

The appellant was convicted in the District Court at Campbelltown in February 2008 on two counts: indecent assault in circumstances of aggravation and sexual intercourse without consent in circumstances of aggravation, both under the Crimes Act 1900. The complainant was a 12-year-old girl with a mild to moderate intellectual disability, whose mother had been in a relationship with the appellant during the relevant period in late 2006. The aggravating circumstance for both offences was that the complainant was under 16 years of age.

The two offences were alleged to have occurred between November and December 2006. The first involved the appellant digitally penetrating the complainant's vagina while she was in the bath. The second involved the appellant touching and squeezing her breast. The complainant gave her evidence in chief through audio-recorded police interviews conducted by a JIRT officer, and was cross-examined via closed-circuit television from a remote location.

Following conviction, the appellant was sentenced to an aggregate term of seven years imprisonment with a non-parole period of two and a half years. He appealed against the conviction only, not the sentence.

  • Whether the jury's verdicts of guilty on both counts were unreasonable or could not be supported having regard to the evidence, applying the test in M v The Queen (1994) 181 CLR 487.

Decision

The sole ground of appeal was that the verdicts were unreasonable and unsupported by the evidence. The Court applied the well-established test from M v The Queen, asking whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. The Court also had regard to the High Court's emphasis in MFA v The Queen on the "special respect and legitimacy" afforded to jury verdicts.

Simpson J, with whom Grove J and RA Hulme J agreed, closely examined the complainant's evidence. Her evidence was given in two audio-recorded police interviews and through cross-examination. The Court acknowledged the real difficulties in extracting reliable answers from the complainant, given her intellectual disability. In particular, several of the answers that appeared to favour the appellant arose in response to complex, multi-part questions that the complainant may not have fully understood. The Court noted that apparent concessions during cross-examination became unreliable when examined in context.

The Court emphasised that assessing the complainant's credibility and the reliability of her answers was the jury's function, not the Court of Criminal Appeal's. Critically, the jury had the advantage of directly observing the complainant, an advantage the Court noted was more than usually significant in this case. The jury demonstrated careful deliberation, spending approximately four hours and forty minutes in consideration and asking pertinent questions early in the process.

Simpson J concluded that the verdicts of guilty were well open to the jury, and that no doubt as to the appellant's guilt arose that should have been shared by the jury. All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the test for an unreasonable verdict requires the appellate court to ask whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt (applying M v The Queen).
  • Apparent concessions extracted during cross-examination do not carry their face value when they arose from questions too complex for a witness with an intellectual disability to meaningfully comprehend.
  • Assessing witness credibility, including the reliability of answers given by a complainant with an intellectual disability, remains squarely within the jury's domain, not that of an appellate court.
  • The jury's direct observation of the complainant was treated as a particularly significant advantage in this case, reinforcing the appellate court's reluctance to disturb the verdict.
  • Careful jury deliberation, including the asking of pertinent questions and an extended period of consideration, was noted as consistent with the verdicts being properly reached.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Evidence (Children) Act 1997 (NSW), s 9 (substantially re-enacted as s 306U of the Criminal Procedure Act 1986 (NSW))

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606