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Court of Criminal Appeal 29 August 2012

Soames v R

[2012] NSWCCA 188

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER UNREASONABLE VERDICT

Citation: Soames v R [2012] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 29 August 2012
Judges: Allsop P, Latham J, Davies J

Background

The appellant was convicted by a jury in the District Court of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. The events arose from an encounter in October 2008, when the appellant and a friend offered two young women a lift home from a Penrith nightclub. Instead of driving the women home, the driver took the group to a house in South Penrith.

The Crown's case was that the complainant entered a bedroom intending to sleep, and that the appellant followed her and had sexual intercourse with her without her consent. The appellant challenged the conviction on appeal; there was no appeal against sentence.

The defence relied on a number of inconsistencies in the complainant's evidence, including her account of what occurred in the car on the way to the house, her knowledge of the destination, and aspects of her police statement that she later conceded were untrue.

  • Whether the jury's verdict was unreasonable and could not be supported by the evidence, applying the test in SKA v The Queen and M v R
  • Whether the trial miscarried due to a denial of procedural fairness, arising from Crown counsel's submission to the jury that two Crown witnesses (Gavin Duncan and Scott Buckley) had given evidence calculated to assist the appellant, when that proposition had not been put to those witnesses in cross-examination

Decision

Unreasonable verdict ground: All three judges were satisfied that no doubt arose from the evidence sufficient to disturb the jury's verdict. The Court emphasised that the critical question was what occurred inside the house, and that the complainant's distress upon leaving the bedroom was both uncontested and observed by multiple witnesses. That distress was, in the words of Allsop P, not only consistent with but emblematic of the complainant's account.

All inconsistencies in the complainant's evidence, including her concession that a portion of her police statement was untrue, had been placed before the jury by defence counsel. The jury had the benefit of directly assessing all witnesses, and the Court applied appropriate deference to that advantage. Davies J confirmed that none of the matters said to undermine the complainant's evidence involved incontrovertible facts or undisputed testimony, meaning they were quintessentially matters for the jury.

Procedural fairness ground: The Court refused leave to rely on this ground. Latham J found it was entirely proper for the Crown to submit to the jury that there may be reasons why witnesses in the Crown case were unreliable, provided a basis in evidence existed for that submission. Significantly, the appellant's own trial counsel had seen no unfairness in the Crown's submissions at the time they were made. The Court found no merit in the complaint.

Orders Made

• The appeal is dismissed
• Leave to rely on the ground regarding cross-examination is refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that inconsistencies in a complainant's evidence, including a concession that part of a police statement was untrue, do not automatically render a guilty verdict unreasonable where those matters were before the jury and the jury's findings depended on credibility and reliability assessments.
  • Where no aspect of a video recording of a witness's evidence was specifically said to give rise to doubt, the caution expressed in SKA v The Queen [2011] HCA 13 about appellate courts placing weight on such recordings is warranted.
  • A Crown advocate may properly submit to a jury that witnesses in the Crown case gave evidence calculated to assist the accused, provided there is a basis in the evidence for that submission.
  • The uncontested distress of a complainant observed by multiple witnesses immediately after an alleged assault can be treated as significant corroborating circumstantial evidence, open to the jury to weigh heavily.
  • Where trial counsel raised no objection to a Crown submission at the time it was made, that factor weighs against a later claim that the trial miscarried through procedural unfairness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8
- State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
- R v GAR (No 3) [2010] NSWCCA 165
- R v Teasdale [2004] NSWCCA 91; 145 A Crim R 345
- Livermore v R [2006] NSWCCA 334; 67 NSWLR 659
- KNP v R [2006] NSWCCA 213
- MWJ v The Queen [2005] HCA 74; 222 ALR 436