AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 2 September 2015

Stevens v R

[2015] NSWCCA 235

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION EIGHT CONVICTIONS FOR SEXUAL OFFENCES

Citation: Stevens v R [2015] NSWCCA 235
Court: Court of Criminal Appeal, NSW
Date: 2 September 2015
Judge(s): Simpson JA, Button J (with whom Simpson JA and Fagan J agreed), Fagan J

Background

The appellant was convicted after a jury trial in the District Court of eight sexual offences arising from a series of assaults alleged to have occurred in late 1978. The complainant gave evidence that, when she was 17 years old, she was sexually assaulted by a group of men in the back of a panel van following a social gathering in Sydney's suburbs. She identified the appellant as one of the perpetrators.

The case had a complicated procedural history involving three separate trials. A first trial involving the appellant and two co-accused ended with the jury discharged without verdict. A second trial, conducted before Judge Yehia SC in the District Court, proceeded with the appellant alone. The jury in that trial found him guilty on eight of nine counts. A third trial, involving the two co-accused, resulted in acquittals.

The appellant applied to the Court of Criminal Appeal for leave to appeal against his eight convictions, relying on two grounds. Both grounds were factual in nature, requiring leave to appeal.

  • Whether the eight convictions were unreasonable or unable to be supported by the evidence at trial (the unreasonable verdict ground)
  • Whether evidence the complainant gave in the subsequent third trial, after the appellant's own trial had concluded, constituted fresh evidence warranting the quashing of his convictions and the entry of verdicts of acquittal

Decision

On the first ground, Button J conducted a detailed review of the evidence from the second trial and was satisfied the jury's verdicts were reasonably open. He identified twelve considerations bearing on the strength and credibility of the prosecution case, including the passage of more than three decades between the events and the trial, inconsistencies in the complainant's account across multiple proceedings, a period of postnatal depression, and the acquittals of the co-accused in the third trial. Critically, however, Button J found that the evidence of a witness, Ms Thomas, directly corroborated the complainant's account of the first assault in the panel van, and indirectly corroborated the subsequent offences.

Button J expressed himself satisfied beyond reasonable doubt of the appellant's guilt on the offences for which he was convicted. He concluded that, notwithstanding valid criticisms of the Crown evidence, none of the factors relied upon individually or in combination displaced the jury's verdicts. The first ground was rejected.

On the second ground, the court considered whether the complainant's evidence in the third trial amounted to fresh evidence that could ground a successful appeal. Having examined the relevant portions of that testimony, Button J concluded that the evidence did not meet the requirements for fresh evidence capable of affecting the outcome. The second ground was also rejected.

Leave to appeal was granted but the appeal was dismissed. Simpson JA and Fagan J both agreed with Button J's reasons.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, where both proposed grounds of appeal are founded on questions of fact, leave to appeal is required before the merits can be considered.
  • A conviction is not unreasonable simply because the Crown case was subject to valid criticisms: the relevant question is whether it was open to the jury, on the whole of the evidence, to return a verdict of guilty.
  • Corroborating witness evidence can sustain jury verdicts even where the complainant's account contains inconsistencies, where delays in reporting occurred, and where co-accused in related proceedings were acquitted.
  • Evidence given by a complainant in a subsequent trial involving different accused persons does not automatically constitute fresh evidence capable of displacing convictions entered in an earlier trial; it must meet the applicable threshold for fresh evidence.
  • In dismissing the appeal, the Court applied the standard from M v The Queen (1994) 181 CLR 487, under which an appellate court may conclude that verdicts are not unreasonable even where the evidence was subject to criticism, provided the court itself is satisfied of the appellant's guilt on the whole of the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 63, 65, 76, 89
- Criminal Procedure Act 1986 (NSW), s 306I

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Aoun v R [2011] NSWCCA 284
- Filippou v The Queen [2015] HCA 29
- Hay v R [2013] NSWCCA 22
- Kidd v R [2014] NSWCCA 319
- Miller v R [2014] NSWCCA 34
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417