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Court of Criminal Appeal 9 July 2013

RO v R

[2013] NSWCCA 162

Sexual offences
CRIMINAL LAW CONVICTION APPEAL CONVICTION APPEAL SHOULD BE DISMISSED SENTENCE APPEAL APPELLANT STEP FATHER OF COMPLAINANT

Citation: RO v R [2013] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 9 July 2013
Judges: Hoeben CJ at CL, Rothman J, McCallum J

Background

The appellant was the stepfather of the complainant, KJ. He was tried on eight counts of sexual intercourse and indecent assault on a person under 16 years of age, relating to conduct alleged to have occurred between 1994 and 1996 in the Blue Mountains area of NSW. The complainant had a history of drug use during the relevant period and made her first formal complaint to police in 2009, more than a decade after the events.

The jury returned a mixed result: guilty verdicts on counts 1 and 8 (an indecent assault in August 1994 and a digital penetration in 1996), not guilty verdicts on counts 2, 3, 5, 6, and 7, and failed to reach a verdict on count 4. The DPP did not pursue count 4 further.

The appellant was sentenced to a total effective term of six years imprisonment with a non-parole period of four years. He sought leave to appeal against both conviction and sentence.

  • Whether the guilty verdicts on counts 1 and 8 were unreasonable and could not be supported having regard to the evidence, applying the test in M v R, MFA v R, and SKA v The Queen
  • Whether the mixed jury verdicts (guilty on two counts, not guilty on five, deadlocked on one) were inconsistent with the evidence or with each other
  • Whether the sentencing judge erred in finding the complainant suffered "substantial" emotional harm in the absence of medical evidence
  • Whether the level of criminality was properly assessed and whether the sentence was manifestly excessive
  • Whether the extent of accumulation of the two sentences was appropriate

Decision

On the conviction appeal, all three judges applied the established test: an appellate court must itself assess whether, on the whole of the evidence, it has a reasonable doubt about guilt. If it does not, the verdict was open to the jury and the appeal must fail. The court found that counts 1 and 8 were distinguishable from the other counts because the timing of the alleged conduct was more precisely defined and corroborated by independent evidence, including records of the complainant's social security applications and the movements of other household members. The court found no reasonable doubt as to guilt on either count.

All three judges assessed the complainant as a compelling witness despite acknowledged shortcomings. She was frank about the effect of her former drug use on her memory and about inconsistencies between her various statements. McCallum J described her as "an intelligent and compelling witness" who coped well with sustained cross-examination. The appellant's evidence was assessed as comparatively unimpressive. The mixed jury verdicts were explained by the relative weakness of the timing and corroboration for the counts on which the appellant was acquitted.

On the sentence appeal, the court found no demonstrated error in the sentencing judge's assessment of the level of criminality or in the extent of accumulation. McCallum J acknowledged that a quantitative assessment of harm without medical evidence was technically impermissible, but concluded that the nature of the two offences themselves supported a finding of substantial emotional harm to the complainant. Any error in that respect was not considered to be of practical significance to the outcome.

Orders Made

  • Leave to appeal granted on both the conviction and sentence appeals.
  • Both appeals dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, in assessing whether a verdict is unreasonable, the appellate court must consider the whole of the evidence and determine whether it harbours a reasonable doubt, not merely whether there was some evidence capable of supporting a conviction.
  • Mixed jury verdicts are not inherently inconsistent: where a complainant is unreliable as to timing, acquittals on counts that depend on precise timing corroboration and guilty verdicts on counts with stronger corroboration can rationally coexist.
  • A complainant's acknowledged credibility difficulties, including past drug use, delayed reporting, and inconsistencies between statements, do not necessarily defeat a conviction if the overall body of evidence is compelling.
  • In dismissing the sentence appeal, the Court found that the sentencing judge's reliance on substantial emotional harm, where the nature of the offending itself supported that inference, did not constitute a material error affecting the result, even absent formal medical evidence.
  • No error was established in the level of criminality assessed by the sentencing judge or in the degree of accumulation of the two sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(2)(g)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- House v The King [1936] HCA 40; 55 CLR 499
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Couloumbis v R [2012] NSWCCA 264
- Mulato v R [2006] NSWCCA 282
- R v Hayek [2010] NSWCCA 139
- R v RTGS [2005] NSWCCA 293
- R v Morgan (1993) 70 A Crim R 368
- R v Gebrail (NSWCCA, 18 November 1994)