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Court of Criminal Appeal 4 July 2014

CH v R

[2014] NSWCCA 119

Sexual offences
CRIMINAL CONVICTION EVIDENCE ADMISSIBILITY

Citation: CH v R [2014] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 4 July 2014
Judge(s): Bathurst CJ; Hoeben CJ at CL; Adams J

Background

The appellant, CH, was tried before a jury on one principal charge under s 66EA(1) of the Crimes Act 1900 (NSW), a "persistent sexual abuse" offence, and seven alternative charges. All charges related to alleged sexual offences committed against DH, a child who was between approximately two and six years old during the relevant period.

The central evidence came from the complainant herself, primarily through three video-recorded police interviews conducted when she was aged six and seven, and from her live testimony at trial when she was eight. Additional objective evidence included DNA analysis of a towel connected to the alleged conduct.

The jury acquitted the appellant on six counts but returned guilty verdicts on Counts 4 and 5, which involved acts of indecency committed between December 2009 and January 2010, when the complainant was four years old. The appellant challenged those convictions on appeal.

  • Whether the guilty verdicts on Counts 4 and 5 were inconsistent with the not-guilty verdicts returned on the remaining six counts, such that the convictions could not stand.
  • Whether the guilty verdicts on Counts 4 and 5 were unreasonable or unsupported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and subsequent authority.
  • Whether the Court of Criminal Appeal should view the video-recorded interviews, which had been played to the jury at trial but were not formally in evidence on appeal.

Decision

Bathurst CJ (with whom Hoeben CJ at CL and Adams J agreed) dismissed the appeal on both grounds. The Court applied the well-established principle that a jury may return apparently inconsistent verdicts across multiple counts, and that such verdicts are not necessarily inconsistent in law. The proper question is not whether the verdicts can be reconciled, but whether the guilty verdicts are unreasonable or cannot be supported having regard to the evidence.

The Court found that Counts 4 and 5 carried distinguishing features absent from the other counts. Specifically, the complainant described those incidents with relative precision, identifying a timeframe connected to particular circumstances, and DNA evidence from a towel provided objective corroboration that was not available for the other counts. These features meant the jury could rationally accept the complainant's evidence on Counts 4 and 5 while declining to be satisfied beyond reasonable doubt on the remaining counts.

Bathurst CJ emphasised the significant advantage the jury held by seeing and hearing the complainant and other witnesses directly. Taking that advantage into account, and having reviewed the evidence on the record, his Honour concluded the verdicts were not an affront to logic and reasonableness and that no error had been established.

On the question of the video recordings, the Court declined to view them. The tapes were marked for identification at trial but were not formally tendered into evidence. Bathurst CJ held that reviewing them on appeal would usurp the jury's function, that an appeal is a review of the evidence on the papers rather than a retrial, and that viewing only the interviews while having no access to the balance of the evidence risked distorting any assessment. The Court noted the High Court had endorsed this approach in SKA v The Queen (2011) 243 CLR 400.

Orders Made

• The appeal should be dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that apparently inconsistent verdicts across multiple counts do not automatically invalidate a conviction. The operative test is whether the guilty verdicts are unreasonable or unsupported by the evidence, not whether they are logically reconcilable with the acquittals.
  • Where some counts carry distinguishing evidentiary features, including objective corroborating evidence such as DNA, a jury may rationally accept a complainant's evidence on those counts while remaining unpersuaded on others.
  • The advantage possessed by the jury in observing witnesses give evidence remains a significant factor when an appellate court assesses whether a verdict was unreasonable. Appellate courts must give proper weight to that advantage.
  • Video-recorded police interviews played to a jury but not formally tendered into evidence are not part of the evidence on appeal. Declining to view such recordings on appeal is consistent with the supervisory, rather than retrial, function of an appellate court, as confirmed by the High Court in SKA v The Queen.
  • A child complainant's capacity to identify the timing of particular incidents with relative precision can constitute a distinguishing feature capable of supporting conviction on specific counts, even where broader or less precisely defined allegations are not proved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A, 66EA(1)
- Criminal Appeal Act 1912 (NSW), s 6
- Jury Act 1977 (NSW), s 55F

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- Dungay v R; R v Dungay [2010] NSWCCA 82
- Still v R [2010] NSWCCA 131