AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 5 March 2015

ML v R

[2015] NSWCCA 27

Sexual offences
CRIMINAL LAW CONVICTION APPEAL NO MISCARRIAGE OF JUSTICE.

Citation: ML v R [2015] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 5 March 2015
Judges: Hoeben CJ at CL, Johnson J, Davies J

Background

The appellant was tried in the Tamworth District Court on three counts arising from alleged offending on Mothers Day, 8 May 2011. The Crown alleged he sexually assaulted his girlfriend's four-year-old daughter while babysitting her alone, by attempting to penetrate her vaginal/anal area with his penis and by placing his penis in her mouth. The appellant denied all wrongdoing.

The child complainant, who was four years and three months old at the time of the alleged offending, gave evidence primarily through a video-recorded interview conducted on 18 May 2011. By the time of trial in October 2013 she was aged six years and nine months, and her memory of events was poor.

The jury acquitted the appellant on count 1 (sexual intercourse with a child under 10) but convicted him on count 2 (attempted sexual intercourse with a child under 10). He was sentenced to a non-parole period of four years and nine months. He appealed against conviction on two grounds.

  • Whether the jury's verdicts were factually inconsistent and unreasonable, given the acquittal on the sexual intercourse count and the conviction on the attempted sexual intercourse count
  • Whether the trial judge erred by failing to give an "unreliable evidence" warning under section 165 of the Evidence Act 1995 in relation to the complainant's evidence

Decision

Ground 1: Inconsistent and unreasonable verdicts

Hoeben CJ at CL rejected the argument that the two verdicts were irreconcilable. The count of attempted sexual intercourse related to the allegation of penile penetration of the complainant's vaginal/anal area. The count of sexual intercourse related to the oral penetration allegation. The jury was entitled to accept one allegation and reject the other, or to find that penetration was attempted but not achieved in respect of the first count while having a reasonable doubt about the oral intercourse count. The verdicts disclosed a rational basis consistent with the evidence.

Ground 2: Failure to give unreliable evidence warning

Leave was required, and granted, for the appellant to rely on this ground as it had not been raised at trial. The defence argued that the trial judge should have warned the jury under section 165 of the Evidence Act that the complainant's evidence may be unreliable because she could not recall her original statement and had given inconsistent answers. Hoeben CJ at CL held that section 165 was directed at specific categories of evidence carrying recognised forensic risks, such as evidence affected by the passage of time or identification evidence. The complainant's difficulties with memory did not fall within that provision.

The court also rejected the argument by analogy with cases involving delay in complaint. In delay cases, an accused may be unable to recall their own circumstances at the time and is therefore forensically disadvantaged. Here, the appellant was fully aware of all surrounding circumstances and was able to meet the complainant's account through his own evidence and cross-examination. The trial judge had given a strong direction to the jury about the need to scrutinise the complainant's reliability, and that issue had been squarely placed before the jury by both the Crown and defence. No miscarriage of justice had occurred.

Orders Made

  • Leave granted to the appellant to rely upon Ground 2 of the appeal
  • Appeal dismissed

Key Takeaways

  • Acquittal on one count and conviction on another arising from the same alleged incident are not necessarily factually inconsistent where the counts involve distinct alleged acts; the jury is entitled to differentiate between them.
  • A "factual inconsistency" argument under the test in MFA v The Queen requires the verdicts to be irreconcilable on any rational view of the evidence; differing levels of satisfaction as to different alleged acts can provide a rational basis for split verdicts.
  • Under section 165 of the Evidence Act 1995, unreliable evidence warnings are directed at recognised categories of forensic risk. A young complainant's poor memory at trial does not automatically bring the evidence within that provision.
  • The disadvantage from a complainant's inability to recall a prior statement at trial is materially different from the forensic disadvantage arising in delayed-complaint cases, particularly where contemporaneous complaint material is available and the accused can give direct evidence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a fair trial does not require a perfect one; a forceful judicial direction on credibility and reliability, combined with the parties' own emphasis on the issue, may suffice without a further statutory warning.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), sections 66A(2), 66B, 61M(2)
- Evidence Act 1995 (NSW), section 165
- Criminal Procedure Act 1986 (NSW), section 306U
- Criminal Appeal Act 1912 (NSW), rule 4

Cases
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v DBG [2002] NSWCCA 328; 133 A Crim R 227
- R v TK [2009] NSWCCA 151; 74 NSWLR 299