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Court of Criminal Appeal 24 March 2015

Mansaray v R

[2015] NSWCCA 40

Sexual offences
CRIMINAL LAW CONVICTION APPEAL APPLICANT UNCLE OF VICTIM BOTH FROM SIERRA LEONE IMPORTANCE OF MEDICAL EVIDENCE EARLY COMPLAINT

Citation: Mansaray v R [2015] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 24 March 2015
Judges: Hoeben CJ at CL; Harrison J; R A Hulme J

Background

The appellant was tried in the District Court on two counts arising from events on the night of 15 August 2012. The Crown alleged that he entered the bedroom of his 12-year-old niece at a Bankstown address and sexually assaulted her. The complainant had arrived in Australia from Sierra Leone in 2006 and lived in the same household as the appellant.

The jury convicted the appellant on the first count: sexual intercourse with a person under 16 knowing she was not consenting, contrary to s 61J(1) of the Crimes Act 1900 (NSW). He was sentenced to imprisonment with a non-parole period of three years.

The appellant sought leave to appeal against conviction only. He raised two grounds: that the guilty verdict was unreasonable and unsupported by the evidence, and that a passage in his recorded police interview, which the jury heard as a result of an oversight by defence counsel, caused a miscarriage of justice.

  • Whether the jury's verdict of guilty was unreasonable or could not be supported by the evidence, applying the test in M v The Queen and subsequent High Court authority
  • Whether the failure to edit out a question-and-answer passage (Q/A 633) from the appellant's electronically recorded interview, which was played to the jury, resulted in a miscarriage of justice

Decision

Ground 1: Unreasonable verdict

Hoeben CJ at CL conducted a detailed review of all the evidence. The complainant's account was communicated in stages: through halting disclosures to the school deputy principal, through written notes produced at the deputy principal's prompting, and ultimately in her police statement and trial evidence. The trial judge had expressed reservations about the verdict, but the Court of Criminal Appeal noted that such reservations do not, without more, establish that a verdict is unreasonable.

The court acknowledged real imperfections in the complainant's evidence. These included general rather than specific descriptions of the assault, an absence of complaints of pain, apparent inconsistencies about whether she was asleep or pretending to be asleep, and an aversion to anatomical language. The court gave careful consideration to these matters in the context of the complainant's age, her Sierra Leonean cultural background, and her limited English. Medical evidence also corroborated the complainant's account. Taking all the evidence together, the court was satisfied it was open to the jury to be convinced beyond reasonable doubt of the appellant's guilt. Ground 1 was rejected.

Ground 2: The unedited police interview

The passage in question (Q/A 633) came before the jury because of an oversight by defence counsel rather than any fault on the part of the Crown or the trial judge. The trial judge gave a strong direction to the jury about the passage. The court found that the direction adequately addressed any prejudice, and that no miscarriage of justice resulted. Ground 2 was also rejected.

Additional observations on cultural context

Harrison J, in agreeing with the Chief Judge, made general observations about cases involving child complainants from different cultural backgrounds. His Honour noted that limited English, unfamiliarity with anatomical terminology, and cultural inhibitions around discussing sexual matters can all affect the way such a complainant gives evidence, without undermining the credibility of the account itself. In this case, those factors explained, rather than undermined, the complainant's evidence. The jury's advantage in seeing and hearing her give that evidence was, in the court's view, particularly significant.

Orders Made

  • Application for an extension of time within which to appeal: granted
  • Leave to appeal against conviction: granted
  • Appeal: dismissed

Key Takeaways

  • In applying the M v The Queen test, the Court of Criminal Appeal conducts its own independent assessment of the evidence and asks whether it was open to the jury to be satisfied beyond reasonable doubt, not whether the appellate judges themselves would have reached the same verdict.
  • Reservations expressed by the trial judge about a verdict do not, of themselves, establish that the verdict was unreasonable or unsupported by the evidence.
  • Apparent weaknesses in a child complainant's evidence, such as vague descriptions, reluctance to use anatomical terms, and apparent inconsistencies, may be explicable by age, cultural background, and personal characteristics rather than by a lack of credibility.
  • Where prejudicial material enters evidence through an oversight by defence counsel rather than Crown or judicial error, a strong corrective direction from the trial judge may be sufficient to avoid a miscarriage of justice.
  • Harrison J's observations confirm that courts must approach the evidence of complainants from different cultural backgrounds with sensitivity to how those backgrounds may shape the manner in which evidence is given, without that being treated as a reason to doubt the substance of the account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual intercourse without consent) and s 66C(1) (sexual intercourse with a child aged 10 to 14)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 48 (the test for unreasonable verdict on appeal)
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400