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Court of Criminal Appeal 25 March 2013

ALS v R

[2013] NSWCCA 63

Sexual offences
CONVICTION APPEAL FORMER S 67 OF THE CRIMES ACT 1900 JUDGE SITTING ALONE FRESH EVIDENCE UNREASONABLE VERDICT APPROPRIATE ORDER

Citation: ALS v R [2013] NSWCCA 63
Court: Court of Criminal Appeal, New South Wales
Date: 25 March 2013
Judges: Hoeben JA, Adams J, Beech-Jones J (unanimous)

Background

The appellant, ALS, was convicted on 17 November 2011 in the District Court of carnal knowledge of his stepdaughter TW, then under ten years of age, contrary to the former s 67 of the Crimes Act 1900. The alleged offence occurred between April 1974 and April 1975 at a residential property in Merewether, NSW. The trial was conducted before a judge sitting alone, without a jury, pursuant to s 132 of the Criminal Procedure Act 1986.

Immediately before this trial (referred to in the judgment as "the second trial"), the same judge had presided over a separate trial of the appellant involving a similar charge brought by TW's sister, K (the "first trial"). The judge acquitted the appellant in the first trial and then commenced the second trial the following day. Neither party objected to this arrangement at the time.

The appellant was sentenced to a total of four years and six months imprisonment, with a non-parole period of two years. He appealed on three grounds: unfairness arising from the trial judge's adverse credit findings in the first trial; the existence of fresh evidence that could have led to an acquittal; and the unreasonableness of the verdict.

  • Whether the trial judge's adverse findings about the appellant's credibility in the first trial, carried over into the second trial, rendered the second trial unfair.
  • Whether fresh evidence had emerged that gave rise to a significant possibility the appellant would have been acquitted had it been available at trial.
  • Whether the verdict of guilty was unreasonable or unsupported by the evidence.
  • Whether, if the conviction were quashed, the appropriate order was an acquittal or a new trial.

Decision

Ground 1: Unfairness from the first trial findings
The Court rejected the argument that the trial judge's adverse credit findings in the first judgment infected the second trial in a way that rendered it unfair. The judge had acquitted the appellant in the first trial, and the appellant had not objected to the same judge presiding over the second. The Court found no demonstrated unfairness from this procedural sequence.

Ground 2: Fresh evidence
The Court accepted this ground. Fresh evidence had emerged that had not been available at trial and that, in combination with the trial evidence, gave rise to a significant possibility the appellant would have been acquitted had it been presented. Critically, the fresh evidence had not yet been fully tested against TW's account, and she had not been examined on it. This was the basis on which the appeal succeeded.

Ground 3: Unreasonable verdict
The Court rejected the unreasonable verdict ground. The trial judge had found TW to be an honest and reliable witness, and the Court held that her evidence was sufficiently cogent to support the conviction. The advantages the trial judge held in observing the witness directly weighed in favour of upholding that assessment. The verdict was not unreasonable on the evidence presented at trial.

Appropriate order: New trial, not acquittal
Although the appellant pressed for an outright acquittal, pointing to the age of the alleged events and the fact he had served more than half of his non-parole period, the Court ordered a new trial instead. The case rested on the evidence of a complainant found to be credible, and the appeal succeeded only because of fresh evidence that had not yet been properly examined. There was no fault on the prosecution's part in the conduct of the trial, and the Court considered it inappropriate to foreclose the prosecution's own assessment of whether to proceed with a retrial.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Where an appeal against conviction succeeds on the basis of fresh evidence alone, rather than a finding that the original evidence was insufficient to support a conviction, the Court of Criminal Appeal will ordinarily order a new trial rather than enter an acquittal.
  • Fresh evidence capable of undermining a complainant's account may meet the threshold for appellate intervention even where the trial judge made a positive credibility finding in the complainant's favour, particularly if the complainant has not yet been examined on that evidence.
  • An order for a new trial does not compel the prosecution to proceed; the Court expressly noted that whether to conduct a retrial remains a matter for the prosecution's own assessment.
  • Conducting consecutive trials before the same judge, on similar charges involving related complainants, does not automatically constitute an unfair trial, particularly where no objection was raised at the time and the judge acquitted the accused in the first proceeding.
  • Under s 6(2) of the Criminal Appeal Act 1912, the "interests of justice" test for entering an acquittal rather than ordering a retrial is a high bar. Time elapsed and partial completion of a custodial sentence, without more, were insufficient to satisfy that test here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 67 (former provision)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 6(1), 6(2), 8(1)
- Criminal Procedure Act 1986 (NSW), s 132

Cases:
- Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
- Gallagher v R [1986] HCA 26; 160 CLR 392
- Gilham v R [2012] NSWCCA 131
- Jiminez v R [1992] HCA 14; 173 CLR 572
- Keir v R [2007] NSWCCA 149
- M v R [1994] HCA 63; 181 CLR 487
- Mickelberg v R [1989] HCA 35; 167 CLR 259
- Morris v R [1987] HCA 50; 163 CLR 454
- MRW v R [2011] NSWCCA 260
- Ratten v R [1974] HCA 35; 131 CLR 510
- R v Ion (1996) 89 A Crim R 81
- R v Saleam (1989) 16 NSWLR 14
- R v Thomas (No 3) [2006] VSCA 300; 181 A Crim R 323
- SKA v R [2011] HCA 13; 243 CLR 400
- Spies v R [2000] HCA 43; 201 CLR 603
- Steadman v R (No 1) [2013] NSWCCA 55