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Court of Criminal Appeal 26 November 2014

MK v R

[2014] NSWCCA 274

Sexual offences
CRIMINAL LAW CONVICTION APPEAL EVIDENCE COMPETENCE OF CHILD TO TAKE OATH UNSWORN EVIDENCE BY CHILD APPEAL ALLOWED

Citation: MK v R [2014] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 26 November 2014
Judge(s): Hoeben CJ at CL; Fullerton J; Hamill J

Background

The applicant was convicted in the District Court of three offences: taking a person without consent with intent to commit an indecent assault (under s 86(1)(b) of the Crimes Act 1900), and two counts of indecent assault on a child under 16 (under s 61M(2)). The offences were alleged to have occurred on 6 February 2011 when the applicant, described as a stranger, took a six-year-old girl into a darkened car park beneath a residential unit block and sexually assaulted her.

The Crown case was largely circumstantial. It relied on identification evidence from two six-year-old child witnesses, including the complainant herself and her playmate, who had been present at the scene. A notable feature of the evidence was that the complainant described her assailant as having three pieces of facial jewellery, resembling earrings, on his cheek. The applicant had such an adornment. A vehicle registered to the applicant was also present at the scene at the relevant time.

The applicant was sentenced to imprisonment, with the non-parole period and balance of term having fully expired by the time the appeal was heard. He appealed on three grounds: that the child witnesses were not competent to give unsworn evidence; that the verdict was unreasonable; and that the Crown's address and trial judge's directions gave rise to a miscarriage of justice.

  • Whether the complainant and the other child witness (CL) were competent to give unsworn evidence under s 13 of the Evidence Act 1995 (NSW), and whether any failure to properly assess competence constituted a fundamental defect in the trial.
  • Whether the guilty verdict was unreasonable and unsupported by the evidence, given inconsistencies in the child witnesses' descriptions of the assailant.
  • Whether submissions made by the Crown during its address, and certain directions given by the trial judge, had the effect of reversing the onus of proof or misstating the identification evidence in a way that caused a miscarriage of justice.

Decision

Ground 1: Competence to give unsworn evidence (upheld)

The Court of Criminal Appeal upheld this ground. Section 13 of the Evidence Act 1995 requires a court to assess whether a witness understands the difference between truth and lies before allowing unsworn evidence. The Court found that the required inquiry was not properly conducted in relation to either child witness, and that this constituted a fundamental defect in the conduct of the trial. This ground alone was sufficient to quash the convictions.

Ground 2: Unreasonable verdict (dismissed)

Despite the serious inconsistencies in the children's descriptions of the assailant, the Court held the verdict was not unreasonable. The distinctive facial piercings described by the complainant were a compelling detail, and the presence of the applicant's vehicle at the scene formed part of a powerful, if circumstantial, case. The jury, having observed the child witnesses give evidence, was in a far better position than the appellate court to assess credibility and weigh the inconsistencies. The Court applied the principles from SKA v The Queen and M v The Queen and was satisfied it was open to a properly instructed jury to be satisfied beyond reasonable doubt of the applicant's guilt.

Ground 3: Crown address and trial judge's directions (dismissed)

The Court found that neither the Crown Prosecutor's address nor the trial judge's summing up caused the trial to miscarry. While certain language used during the summing up was described as "infelicitous," the trial judge had otherwise given clear and firm directions on the burden and standard of proof throughout. Those overall directions would have left the jury in no doubt that the prosecution bore the onus of excluding all reasonable hypotheses consistent with innocence. The Court declined to invoke rule 4 of the Criminal Appeal Rules against the applicant, noting that defence counsel had raised the issue at trial.

Retrial, not acquittal

The Court considered whether the appropriate order, given that the applicant had fully served his sentence, was an acquittal rather than a retrial. It declined to order an acquittal. Applying Dyers v The Queen, the Court ordered the matter remitted to the District Court for retrial, noting it was a matter for the Director of Public Prosecutions to determine whether to proceed in the circumstances.

Orders Made

  • Leave to appeal granted to the extent necessary.
  • Ground of Appeal 1 upheld; Grounds of Appeal 2 and 3 dismissed.
  • Convictions recorded on 4 October 2012 quashed.
  • Matter remitted to the District Court for retrial.

Key Takeaways

  • A failure to conduct the inquiry required by s 13 of the Evidence Act 1995 before receiving unsworn evidence from a child witness constitutes a fundamental defect in the trial, sufficient on its own to quash a conviction.
  • Inconsistencies in a child witness's description of an assailant do not automatically render a verdict unreasonable. Where a distinctive identifying feature, such as unusual facial piercings, is consistently identified, and a circumstantial case otherwise supports guilt, a jury may remain entitled to convict.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal reaffirmed that appellate courts must apply restraint when reviewing findings made by a jury that had the advantage of observing witnesses, particularly child witnesses, give evidence at trial.
  • "Infelicitous" language in a trial judge's summing up will not necessarily cause a miscarriage of justice where the overall directions on onus and standard of proof were clear and correct.
  • A fully served sentence does not automatically entitle an appellant to an acquittal rather than a retrial where convictions are quashed on a procedural ground. Under Dyers v The Queen, the appropriateness of a retrial remains a matter for the Court's discretion, with the decision to proceed left to the Director of Public Prosecutions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 86(1)(b)
- Evidence Act 1995 (NSW), s 13
- Criminal Appeal Rules, r 4

Cases
- Dyers v The Queen [2002] HCA 45; 210 CLR 285
- FP v R [2012] NSWCCA 182
- Knight v Queen (1992) 175 CLR 495
- M v The Queen (1994) 181 CLR 487
- Pease v R [2009] NSWCCA 136
- R v RAG [2006] NSWCCA 343
- RJ v R [2010] NSWCCA 263
- Sami Kurdi v Regina [2011] NSWCCA 179
- SH v Regina [2012] NSWCCA 79; 83 NSWLR 258
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Warren v Coombs (1979) 142 CLR 531