Citation: CLC v R [2015] NSWCCA 248
Court: Court of Criminal Appeal, New South Wales
Date: 11 September 2015
Judge(s): Basten JA; Wilson J; R S Hulme AJ
Background
The appellant was the step-grandfather of the complainant, who was eight years old at the time of the alleged offending. He was charged with sexual offences arising from two separate incidents said to have occurred between January and September 2009, during which he was alleged to have digitally touched and performed oral contact on the complainant's vagina.
The complainant gave her evidence in chief through two video-recorded police interviews conducted in 2009 and 2010. She was cross-examined at trial in November 2013, by which point she was in her fourteenth year. The jury acquitted the appellant on one count (relating to a third alleged incident) and convicted him by majority verdict on four counts arising from the two remaining incidents.
The convictions followed an earlier trial that had been set aside by consent on appeal, resulting in a retrial. The sole ground of the appeal to the Court of Criminal Appeal was that the jury's verdicts were unreasonable and could not be supported by the evidence.
Legal Issues
- Whether the verdicts were unreasonable or unsupportable on the evidence, given that the convictions rested on the evidence of the child complainant alone
- Whether alleged inconsistencies within and between the two police interviews, and between those interviews and the complainant's trial evidence, were sufficient to establish that no reasonable jury could have accepted her account
- Whether the Court of Criminal Appeal should view the video recordings of the police interviews when assessing whether the verdicts were unreasonable, rather than relying on transcripts alone
Decision
Unreasonable verdict ground: The Court acknowledged that charges of this kind, resting solely on a young child's evidence, raise genuine questions about whether guilt has been established to the criminal standard. The appellant's submissions catalogued seven categories of alleged inconsistency: internal inconsistencies within the first interview, the general and non-specific nature of answers in that interview, discrepancies between the first and second interviews, the complainant's apparent inability to recall the alleged incidents in the second interview, concerns about her reliability at trial, claims shown to be inaccurate, and inconsistencies between her account and that of her mother and a neighbour.
The Court worked through each category carefully. It accepted that the complainant's failure to mention the alleged incidents in the second interview was the most significant point for the appellant. However, her explanation that she had "forgot" was not inherently implausible given her youth, and her evidence at trial (given some four years after the events, when she was a teenager) was characterised by a degree of care and maturity. The jury had the advantage of seeing and hearing all of this evidence in context. While the Court confirmed its obligation to make its own independent assessment of whether a reasonable doubt should have existed, it concluded that the inconsistencies did not compel the conclusion that no reasonable jury could have accepted the complainant's account.
Viewing the video recordings: A procedural question arose during the hearing as to whether the Court should view the video recordings rather than rely on transcripts. Ultimately, both parties submitted that the appeal could be resolved on the transcripts alone. Basten JA indicated some reservation about foreclosing on the question entirely, noting the earlier discussion of this issue in SKA v The Queen. Wilson J, however, concluded after reviewing the transcripts that viewing the recordings was unnecessary and expressed reservations about doing so in circumstances where both parties urged against it and no miscarriage of justice was evident.
The appeal was dismissed.
Orders Made
• Agree with the orders proposed by Basten JA
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction resting solely on a child complainant's evidence is not inherently unreasonable, provided the jury had a proper basis to accept that evidence in context.
- The standard for appellate intervention on an unreasonable verdict ground requires the appellate court to make its own assessment of the evidence, but the threshold remains high: inconsistencies and implausibilities in a child's account do not automatically compel a reasonable doubt where explanations such as youth and the passage of time are available.
- A complainant's failure to repeat allegations in a second police interview, while potentially significant, is not conclusive; juries are entitled to weigh the witness's explanation for such an omission.
- Where both parties agree that video-recorded police interviews need not be viewed by the appellate court, and no miscarriage of justice is apparent, proceeding on the transcripts alone may be appropriate, though the Court left open the question of principle in other circumstances, referencing the competing considerations discussed in SKA v The Queen in the New South Wales Court of Criminal Appeal and the High Court.
- Majority jury verdicts on sexual offence charges against children will survive an unreasonable verdict challenge where the appellate court, applying the M v The Queen and MFA v R framework, cannot identify a reasonable doubt that the jury was obliged to entertain.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66EA (persistent sexual abuse of a child)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Act 1986 (NSW), ss 306U, 306V
Cases:
- M v The Queen (1994) 181 CLR 487 (standard for appellate intervention on unreasonable verdict)
- MFA v R (2002) 213 CLR 606 (appellate assessment of evidence)
- SKA v The Queen [2009] NSWCCA 186 (viewing video recordings on appeal)
- SKA v The Queen (2011) 243 CLR 400 (High Court consideration of the same issue)