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Court of Criminal Appeal 6 August 2013

Black v R

[2013] NSWCCA 183

Sexual offences
CRIMINAL LAW APPEAL CONVICTIONS FOR SEXUAL OFFENCES NO QUESTION OF PRINCIPLE

Citation: Black v R [2013] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 6 August 2013
Judges: Basten JA, R A Hulme J, Garling J

Background

The applicant was convicted by a jury in the District Court of Orange in June 2008 on seven sexual offence counts, including four counts of aggravated sexual assault, two counts of indecent assault, and one count of inciting an act of indecency. He was acquitted on a separate larceny count. The offences arose from an alleged home invasion in the early hours of 6 March 2006, in which the complainant was woken by an intruder who threatened her with a knife and sexually assaulted her multiple times.

The applicant and the complainant were mature adults who had developed a friendship after meeting in January 2005. The prosecution case was that the applicant harboured unrequited romantic feelings for the complainant, who had been distancing herself from him in the weeks before the attack. The complainant could not positively identify her assailant by sight because the room was dark, but she believed, based on things the intruder said and other circumstances, that it was the applicant.

The defence case was that the pair had been in a consensual sexual relationship, that no assault occurred, and that the presence of the applicant's DNA in the complainant's bedroom was explained by consensual intercourse on 3 March 2006. The applicant lodged an application for leave to appeal against conviction in September 2011, appearing in person before the Court of Criminal Appeal.

  • Whether the jury's verdicts of guilty on the sexual offence counts were unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether inconsistencies in the complainant's testimony, the absence of definitive DNA evidence, and factual errors in other trial evidence, considered collectively, gave rise to a reasonable doubt about the applicant's guilt

Decision

R A Hulme J (with whom Basten JA and Garling J agreed) characterised the applicant's various grounds as particulars of a single overarching claim: that the jury's verdicts were unreasonable or unsupported by the evidence. His Honour conducted a detailed review of the prosecution and defence cases before concluding that none of the matters raised, even in combination, were sufficient to generate a reasonable doubt about guilt.

The Court identified several strands of circumstantial evidence that strongly supported the conclusion that the applicant was the intruder. These included comments made by the intruder that were consistent with the applicant's knowledge of the complainant's affairs; the intruder's apparent familiarity with the premises (including the location of a sensor light switch); the physical attributes of the intruder; a car arriving at the applicant's home at a time consistent with him having just left the complainant's residence; semen recovered consistent with a post-vasectomy source (the applicant had had a vasectomy); and the presence of the applicant's DNA on an item in the complainant's bedroom.

On the inconsistencies in the complainant's evidence, R A Hulme J found that none undermined the core reliability of her account. The complainant's immediate complaint to her boyfriend, her distress, and the injuries recorded on medical examination made it unrealistic to suggest that no sexual assault by an intruder had occurred. The applicant's acquittal on the larceny count was explicable by the trial judge's direction concerning the absence of proof that the money went missing at the complainant's home rather than elsewhere.

Basten JA noted that the Court also considered a transcript of text messages that was not formally in evidence, consistent with the approach described in Lee, Do Young v Regina [2013] NSWCCA 68. The application was refused as so lacking in merit that leave to appeal was not warranted.

Orders Made

  • Leave to appeal against conviction refused.

Key Takeaways

  • A challenge to a jury verdict as unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW) requires the appellate court to examine all the evidence and determine whether a reasonable jury, properly instructed, could have reached the verdict: the Court applied this standard rigorously across multiple strands of circumstantial evidence.
  • Circumstantial identification evidence can sustain a conviction even where the complainant cannot make a direct visual identification of the assailant, provided the cumulative weight of other circumstances is sufficient.
  • Inconsistencies in a complainant's testimony do not automatically undermine a jury verdict: the court assessed the inconsistencies in context and found they did not affect the core of the complainant's account.
  • In dismissing the application, the Court confirmed that material outside the formal trial record (such as text message transcripts not tendered in evidence) may be considered on an unreasonable verdict ground, consistent with the approach in Lee, Do Young v Regina.
  • An acquittal on one count in a multi-count trial does not, of itself, cast doubt on guilty verdicts on other counts where the acquittal is explicable by a discrete evidential deficiency relating only to that count.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61L, 61N(2), 117
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)

Cases
- Jones v R [1997] HCA 56; 191 CLR 439
- Lee, Do Young v Regina [2013] NSWCCA 68
- M v R (1994) 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- SKA v R [2011] HCA 13; 243 CLR 400