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Court of Criminal Appeal 23 June 2015

Cox v R

[2015] NSWCCA 158

Sexual offences
APPEAL CONVICTION SEXUAL INTERCOURSE WITH A CHILD APPEAL ALLOWED CONVICTION QUASHED VERDICT OF ACQUITTAL ENTERED

Citation: Cox v R [2015] NSWCCA 158
Court: Court of Criminal Appeal, NSW
Date: 23 June 2015
Judges: Simpson JA at [1]; Davies J at [38]; Hamill J at [42]

Background

The appellant was convicted by jury in November 2013 on a single count of sexual intercourse with a child under the age of 10 years. He was sentenced to six years' imprisonment with a four-year non-parole period. The complainant was approximately seven years old at the time of the alleged offending and around nine and a half years old at trial.

The Crown alleged that the appellant took the complainant to a beach, and that after swimming the two walked into a nearby bush where the appellant performed a sexual act on the complainant. The complainant's evidence in chief was given by playing a video recording of a JIRT (Joint Investigation Response Team) interview conducted on 4 January 2012, as permitted under the Criminal Procedure Act 1986 (NSW).

The appellant sought leave to appeal against both conviction and sentence. The conviction appeal rested on a single ground of fact: that the verdict was unreasonable and could not be supported having regard to the evidence.

  • Whether leave to appeal on a question of fact only should be granted under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether the conviction was unreasonable and could not be supported having regard to the whole of the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether, after giving due weight to the jury's advantage in observing witnesses, the Court of Criminal Appeal retained a reasonable doubt about the appellant's guilt

Decision

The Court granted leave and unanimously allowed the appeal. Applying the High Court's framework in M v The Queen, the Court was required to make its own assessment of the whole of the evidence, while giving due weight to the advantages the jury held in observing witnesses firsthand.

Simpson JA's analysis focused on the significant inconsistencies within the complainant's recorded interview and his subsequent evidence. The complainant gave multiple accounts asserting that the appellant had placed his penis in his mouth and had bitten it, but also retracted or contradicted those assertions on several occasions during the same interview. Some of his evidence was demonstrably wrong, including his account of when he had reported the incident to his mother and her partner, and his claim about the location of the beach.

Further undermining the reliability of the complainant's account was the nature of his first complaint. When the complainant first disclosed the incident to his father on Boxing Day 2011, he said only that the appellant had "touched" his penis, a description materially different from the oral sexual act alleged at trial. He repeated a similar, less serious description to his mother after speaking with police. The Court found that the complainant was, at a minimum, confused and unreliable.

All three judges independently reviewed the evidence and reached the same conclusion: it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. Each judge expressed a residual reasonable doubt, even after accounting for the jury's firsthand exposure to the witnesses. The Court adopted the framing from M v The Queen that there was a reasonable possibility an innocent person had been convicted.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal against conviction allowed
  • Conviction quashed
  • Verdict of acquittal entered

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an appeal ground raises a question of fact only, the appellant requires leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
  • Applying M v The Queen, an appellate court must conduct its own independent review of the whole of the evidence, giving appropriate weight to the jury's advantage in observing witnesses, but it is not bound by the jury's verdict where the court retains a reasonable doubt.
  • Significant internal contradictions within a complainant's recorded evidence, combined with demonstrably incorrect factual claims and a materially different initial complaint, can collectively render a conviction unreasonable and unsupportable.
  • Where a child complainant both asserts and retracts key elements of an alleged offence during the same interview, and corroborating circumstances are absent, a jury verdict based on that evidence may not be sustainable on appeal.
  • In dismissing the conviction entirely, the Court entered a verdict of acquittal rather than ordering a retrial, reflecting the Court's conclusion that no reasonable jury properly directed could have been satisfied of guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 306S (admission of recorded interviews as evidence in chief for child complainants)

Cases
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487 (the governing High Court authority on the appellate court's role when assessing whether a conviction is unreasonable)