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Court of Criminal Appeal 18 November 2014

FH v Regina

[2014] NSWCCA 231

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CHARGES OF SEXUAL ASSAULT UPON CHILD DIRECTIONS TO JURY AND SUMMING UP

Citation: FH v Regina [2014] NSWCCA 231
Court: Court of Criminal Appeal, New South Wales
Date: 18 November 2014
Judge(s): Price J; Harrison J; Garling J

Background

The appellant was convicted at a retrial in April 2012 of eight counts of a sexual nature against a child, the daughter of his former partner. The alleged offending occurred between October 2005 and June 2008, when the complainant was aged between 11 and 13 years. The counts included aggravated indecent assault, aggravated sexual intercourse with a child aged between 10 and 14 years, and aggravated acts of indecency, all under the Crimes Act 1900.

The complainant and the appellant's daughter were close friends, and the complainant regularly visited the appellant's home to spend time with her. The appellant's case at trial included that there was no opportunity for the offending to have occurred and that the complainant's evidence was implausible. A key piece of Crown evidence was a series of explicit photographs of the complainant found on the appellant's computer.

The jury, after approximately three days of deliberation and having received a Black direction and a majority verdict direction, returned guilty verdicts on all eight counts. The appellant received an overall sentence of 5 years and 9 months. He appealed against his convictions on multiple grounds.

The Court was asked to resolve the following questions:

  • Whether the trial judge impermissibly bolstered the complainant's credibility by directing the jury that the explicit photographs corroborated her evidence
  • Whether the trial judge erred by directing the jury that it could assume the complainant had given a prior consistent account to police
  • Whether the trial judge failed to adequately warn the jury about the limited use of "context" evidence of other sexual acts
  • Whether the trial judge failed to adequately put the defence case to the jury
  • Whether there was a miscarriage of justice arising from the omission of evidence of the appellant's good character at the retrial
  • Whether the trial judge erred by ruling the appellant could not raise good character at the retrial
  • Whether the guilty verdicts were unreasonable or could not be supported by the evidence

Decision

Grounds 1, 2, 3 and 4: Harrison J found merit in grounds 1(c) and 2, concluding that the trial judge had not adequately warned the jury about the limitations of context evidence and had not sufficiently put the defence case. He noted, however, that these grounds standing alone would have produced a different outcome, given that his conclusion on the unreasonable verdict ground was ultimately determinative.

Ground 5 (unreasonable verdicts): majority view. Harrison J, with Garling J agreeing, held that the jury must have entertained a reasonable doubt about the appellant's guilt on each count. Harrison J accepted that the jury was entitled to find the appellant took the explicit photographs, and that this finding carried significant evidentiary weight. He concluded, however, that the complainant's evidence contained inconsistencies and reliability issues that the force of the photographs was insufficient to overcome. In his assessment, the Crown's own submission at trial that who took the photographs was "the absolute key" to the case meant the Crown had correspondingly failed to grapple with the complainant's unreliability. The majority therefore found it was not open to the jury to be satisfied beyond reasonable doubt of guilt.

Price J dissented on ground 5. His Honour conducted his own independent assessment of the evidence and reached the opposite conclusion. He considered that the finding about the photographs provided independent support for the Crown case, demonstrated the appellant had a sexual interest in the complainant, and showed the appellant had the opportunity and capacity to offend covertly. In his view, the jury was entitled to be satisfied beyond reasonable doubt on each count, and ground 5 should have been dismissed.

The majority view prevailed, and the appeal was allowed on the basis of ground 5.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • Verdicts of acquittal entered

Key Takeaways

  • The Court of Criminal Appeal was divided 2:1 on whether the guilty verdicts were unreasonable, illustrating that the appellate task of assessing whether a jury "must have" had a reasonable doubt (as opposed to "might have") involves genuine evaluative difficulty, particularly where the Crown case rests heavily on circumstantial evidence.
  • Harrison J and Garling J confirmed that even where circumstantial evidence against an accused is substantial (here, the explicit photographs), appellate courts must independently assess whether that evidence could overcome identified deficiencies in the reliability of the complainant's testimony.
  • Where the Crown frames a single piece of evidence as the "absolute key" to its case, the corresponding weakness in other parts of the Crown case may assume greater significance in an appellate assessment of reasonableness of verdict.
  • The majority's conclusions on grounds 1(c) and 2 (failure to warn about context evidence limitations and inadequate putting of the defence case) were sufficient to warrant a different result on those grounds alone, but became moot once the unreasonable verdict ground succeeded.
  • Price J's dissent underscores that a retrial jury's rejection of the appellant's evidence and that of a defence witness on the photographs issue was a finding plainly open on the evidence, and reasonable minds may differ on whether that rejection was sufficient to establish guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 61O(2), 66C(2), 91H(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a) and (b)
- Evidence Act 1995 (NSW)

Cases:
- AP v R [2013] NSWCCA 189
- B v The Queen [1992] HCA 68; (1992) 175 CLR 599
- DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206
- Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
- El-Jalkh v R [2009] NSWCCA 139
- Healey v R [2006] NSWCCA 235
- Ith v R [2012] NSWCCA 70
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397
- Maraache v R [2013] NSWCCA 199
- Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
- Miles v R [2014] NSWCCA 72
- Penza and Di Maria v R [2013] NSWCCA 21
- PGM v R [2006] NSWCCA 310; (2006) 164 A Crim R 426
- PGM (No 2) v R [2012] NSWCCA 261
- Picken v R [2007] NSWCCA 319
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
- R v Abusafiah (1991) 24 NSWLR 531
- R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238