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Court of Criminal Appeal 21 April 2015

ALS v R

[2015] NSWCCA 70

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPEAL ALLOWED COMPLAINANT’S EVIDENCE UNCORROBORATED INCONSISTENT EVIDENCE MAJORITY DECISION

Citation: ALS v R [2015] NSWCCA 70
Court: Court of Criminal Appeal (NSW)
Date: 21 April 2015
Judges: Macfarlan JA; Fullerton J (dissenting); Bellew J

Background

The appellant was convicted by jury in August 2013 of an offence under s 67 of the Crimes Act 1900 (NSW): carnal knowledge of a person under 10 years of age. The alleged offending occurred between April 1974 and April 1975, when the complainant was nine years old, and involved penile vaginal intercourse. Evidence of other alleged sexual conduct was also admitted as contextual evidence.

This was the appellant's second conviction for the same offence. An earlier conviction following a judge-alone trial had been quashed by the Court of Criminal Appeal in 2013 after further evidence emerged, including a letter written by the complainant and a video recording. A new trial was ordered, resulting in the jury conviction that was the subject of this appeal.

The appellant brought three grounds of appeal. The primary ground was that the guilty verdict was unreasonable or could not be supported having regard to the evidence. The majority allowed the appeal on that ground alone, making it unnecessary to consider the remaining two grounds.

  • Whether the jury verdict of guilty was unreasonable or could not be supported by the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the Court of Criminal Appeal, in undertaking its independent assessment of the evidence, should intervene to quash the conviction and enter a verdict of acquittal

Decision

The majority (Macfarlan JA and Bellew J) allowed the appeal and quashed the conviction. Applying the test in SKA v The Queen (2011) 243 CLR 400, the Court conducted its own independent assessment of the evidence, examining both its sufficiency and quality, to determine whether it was open to the jury to find guilt beyond reasonable doubt.

Macfarlan JA identified a combination of factors that, together, rendered the verdict unsupportable. The complainant's evidence was entirely uncorroborated. Critically, her two sisters had been present in the family home during the period of the alleged offending and were well placed to corroborate at least some aspects of her account; neither did so. That evidentiary void could not be explained away simply by pointing to reasons why corroboration might be absent.

The majority also placed significant weight on post-offending conduct. The complainant had sent affectionate postcards and letters to the appellant, addressed to him as "Dad," invited him to join her on a holiday, and was filmed at a family wedding spontaneously rubbing his back and pinching his chin in what appeared to be genuine expressions of affection. Bellew J characterised these as "fundamentally inconsistent" with the complainant's evidence of deep animosity toward the appellant. The wedding photograph and video, in particular, were viewed as unequivocal and not adequately explained by the Crown's submission that they were only a brief snapshot.

Fullerton J dissented. Her Honour concluded that the identified inconsistencies and the absence of corroboration did not, individually or collectively, compel a finding that the jury verdict was unreasonable. In her view, the complainant's conduct could be explained consistently with genuine trauma, and it was open to the jury to accept the complainant's evidence as truthful despite those features.

Orders Made

• The appeal against conviction is dismissed.

Note: The Orders section in the provided text contains only the dissenting order proposed by Fullerton J (dismissal of the appeal). The majority orders, being the operative orders of the Court, are described in the body of the judgment as quashing the conviction and entering a verdict of acquittal, but were not reproduced in the extracted Orders section.

Key Takeaways

  • A conviction will be unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) where, after independent appellate assessment of both the sufficiency and quality of the evidence, it was not open to the jury to conclude guilt beyond reasonable doubt.
  • No single factor was determinative in this case; rather, the cumulative weight of several evidentiary deficiencies drove the majority's conclusion that the verdict could not stand.
  • The complete absence of corroboration from witnesses who were well placed to provide it, though not determinative on its own, was treated as a significant evidentiary void rather than an unremarkable feature of the case.
  • Post-offending conduct that appears fundamentally inconsistent with the complainant's stated feelings toward the accused can be a material consideration when assessing whether a conviction is reasonably open to a jury.
  • The case confirms that, consistent with SKA v The Queen, the Court of Criminal Appeal will conduct an independent review of the evidence on an unreasonable verdict ground and is not confined to asking whether any jury could theoretically have convicted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 67
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 306B(1)
- Evidence Act 1995 (NSW), s 38

Cases
- ALS v R [2013] NSWCCA 63
- Browne v Dunn (1893) 6 R 67
- GL v R [2014] NSWCCA 68
- Lachlan Wilson v R [2014] NSWCCA 266
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34
- Sami Kurdi v R [2011] NSWCCA 179
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Soames v R [2012] NSWCCA 188