Citation: Hilton John Cawthray v R [2013] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 9 May 2013
Judges: Hoeben CJ at CL, Adams J, Beech-Jones J
Background
Following a judge-alone trial, the appellant was convicted of one count of aggravated indecent assault and one count of common assault. Both offences were alleged to have been committed against his granddaughter when she was aged six or seven, between May 2005 and September 2006. The prosecution alleged the appellant had touched the complainant on the outside of her vagina and squeezed her wrist when she tried to resist him.
The appellant was sentenced to a fixed term of six months for the common assault and a non-parole period of two years with a one-year balance of term for the indecent assault. He sought leave to appeal against his convictions only, not his sentences. By the time the appeal was determined, he had served his entire non-parole period and a substantial part of the balance of his term.
Legal Issues
- Whether the trial judge erred in his procedural approach by making positive findings about the complainant's credibility before applying the required scrutiny, thereby impermissibly reversing the onus of proof.
- Whether the trial judge's findings of guilt were unreasonable or unsupported by the evidence, having regard to: the significance of dates in the indictment; the adequacy of the unreliable evidence warning under s 165A of the Evidence Act 1995; the adequacy of the Crofts direction on delayed complaint; and the adequacy of the Murray direction on scrutiny of single-witness evidence.
- Whether the trial judge failed to assess the reliability of the complainant's evidence as distinct from her honesty, as required by Douglass v R [2012] HCA 34.
- Whether the appropriate remedy was an acquittal or a retrial.
Decision
The Court unanimously allowed the appeal on the reliability grounds contained in Ground 2. All three judges agreed that the trial judge had assessed the complainant's evidence by reference to her honesty as a witness, but had failed to separately and distinctly assess its reliability. This distinction, confirmed by the High Court in Douglass v R, was a required step in the reasoning process. The failure to undertake that assessment amounted to a significant error.
Ground 1, which alleged procedural error and apparent reversal of the onus of proof, was dismissed by all members of the Court. Adams J and Beech-Jones J, with Hoeben CJ at CL agreeing, concluded that while the trial judge's approach raised concerns, it did not establish the kind of error that would independently warrant the conviction being set aside.
On the question of whether the verdict was unreasonable under s 6(1) of the Criminal Appeal Act 1912, the members of the Court expressed different views. Adams J concluded the verdict was unreasonable; Beech-Jones J was not satisfied it was unreasonable. Hoeben CJ at CL declined to express any opinion on that question, finding it unnecessary given the other grounds had been made out.
On remedy, all three judges agreed that a retrial was not in the interests of justice. Adams J and Beech-Jones J gave somewhat different reasons for reaching that conclusion, but both pointed to the fact that the appellant had by then served the entirety of his non-parole period and a substantial part of the balance of his term. Applying principles from Jiminez v The Queen and Haoui v Regina, the Court held that the interests of justice required an acquittal rather than a new trial.
Orders Made
• Leave to raise the balance of ground 2 granted, but ground 2 rejected
• Appeal allowed
• Verdict of acquittal entered pursuant to s 6(2) of the Criminal Appeal Act 1912
Key Takeaways
- The Court of Criminal Appeal confirmed, applying Douglass v R [2012] HCA 34, that a trial judge in a judge-alone trial must assess the reliability of a complainant's evidence as a distinct exercise from assessing her honesty. Conflating those two inquiries is a material error warranting the quashing of a conviction.
- A Murray direction requires the tribunal of fact to scrutinise single-witness evidence with great care; framing the inquiry solely in terms of whether the witness is believed or disbelieved, without adequate scrutiny of reliability, does not satisfy that requirement.
- Under the Crofts principle, the relevant direction on delayed complaint must address the credibility and reliability of the complainant, not merely the truthfulness of the allegation. A direction framed too narrowly may be inadequate.
- Where an appellant has served the entirety of a non-parole period and a substantial part of the balance of term by the time an appeal is determined, the interests of justice may weigh against ordering a retrial even where the conviction is quashed.
- The three judges reached different conclusions on whether the verdict was itself unreasonable under s 6(1) of the Criminal Appeal Act 1912, illustrating that courts may quash a conviction on direction errors without needing to resolve the unreasonable verdict ground.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(2), 8(1)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 165A
Cases:
- Douglass v R [2012] HCA 34; 290 ALR 699
- Crofts v The Queen (1996) 186 CLR 427
- R v Murray (1987) 11 NSWLR 12
- Jiminez v The Queen [1992] HCA 14; 173 CLR 572
- Haoui v Regina [2008] NSWCCA 209
- M v R [1994] HCA 63; 181 CLR 487
- Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
- Kilby v R (1973) 129 CLR 460
- Fleming v R [1998] HCA 68; 197 CLR 250
- Murray v R [2002] HCA 26; 189 ALR 40
- R v Markuleski (2001) 52 NSWLR 82
- R v NZ [2005] NSWCCA 278
- R v LTP [2004] NSWCCA 109
- Keir v The Queen [2007] NSWCCA 149
- Arun v R [2010] NSWCCA 214