Citation: RSW v R [2012] NSWCCA 13
Court: Court of Criminal Appeal, NSW
Date: 27 February 2012
Judge(s): Whealy JA, Simpson J, Hislop J
Background
The appellant, the stepfather of a young complainant, was convicted by jury of two counts of aggravated sexual intercourse without consent (cunnilingus) and one count of aggravated indecent assault, contrary to ss 61J and 61M(1) of the Crimes Act 1900 (NSW). The offences were alleged to have occurred between September 2003 and July 2004, when the complainant was aged between nine and ten. The appellant and the complainant's mother had since divorced in acrimonious circumstances.
The complainant's evidence was given partly through a pre-recorded police interview, played to the jury, and partly through oral testimony. She described the appellant entering her bedroom early in the mornings before others were awake. On the primary occasion, she identified him by his work routine and by glimpsing him at the door as he left. On a second occasion, she kept her eyes closed throughout.
The appellant denied the allegations consistently, both in a covertly recorded telephone call with the complainant and in a later call with her mother. He was sentenced to an effective term of nine years with a non-parole period of six years. He appealed against conviction and sought leave to appeal against sentence.
Legal Issues
- Whether the jury's verdicts of guilty were unreasonable or could not be supported by the evidence, applying the test in SKA v R [2011] HCA 13
- Whether the sentencing judge erred in imposing a sentence that was manifestly excessive, including questions about the proper use of sentencing statistics
Decision
On the conviction appeal, the Court applied the SKA v R standard, which requires the appellate court to conduct an independent review of the evidence to determine whether it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt. The Court acknowledged several features of the evidence that were favourable to the appellant, including the delay in reporting (approximately four years), the complainant's vagueness about timing, her admission that she had not seen the appellant on the second occasion, and the circumstances of the bitter divorce that gave the appellant reason to suspect the mother had instigated the complaint.
The Court also noted that the appellant's responses in the telephone calls were not those one would ordinarily expect from a guilty person: he denied the allegations clearly, encouraged the complainant to speak to her mother, and openly suggested the matter be reported to police. However, the Court held that these features had to be weighed against the jury's assessment of the complainant's reliability and the appellant's evidence as a whole. Taking all matters favourable to the appellant at their highest, the Court was not persuaded that a reasonable doubt arose. The verdict was open to the jury and the conviction appeal was dismissed.
On sentence, the Court granted leave to appeal but dismissed the appeal, finding no manifest excess in the overall sentence of nine years with a six-year non-parole period for offences of this nature committed against a child by a person in a position of authority.
Orders Made
• Dismiss the appeal against conviction
• Grant leave to appeal against sentence but dismiss the appeal
Key Takeaways
- The Court of Criminal Appeal confirmed that the SKA v R standard requires an independent appellate review of the evidence, not merely an assessment of whether the jury could theoretically have convicted.
- A complainant's failure to visually identify the offender on one occasion does not necessarily render a conviction unreasonable, where other circumstantial evidence supports identification.
- Delayed reporting and acrimonious family circumstances are factors the jury is entitled to weigh, but they do not automatically generate a reasonable doubt sufficient to set aside a verdict.
- Responses by an accused that might appear inconsistent with guilt, such as encouraging the complainant to involve police, are not determinative when assessed alongside the full body of evidence.
- In dismissing the sentence appeal, the Court reinforced that sentencing statistics have limited utility and that manifest excess must be established against the full sentencing discretion, not simply by comparison with statistical ranges.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- SKA v R [2011] HCA 13; 85 ALJR 571
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- M v R [1994] HCA 63; (1994) 181 CLR 487
- Muldrock v The Queen [2011] HCA 39
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v King (1936) 55 CLR 499