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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
Date: 21 April 2015
Judge(s): Macfarlan JA, Fullerton J, Bellew J

Background

The appellant stood convicted, after a jury trial in August 2013, of carnal knowledge of a person under 10 years of age under the then section 67 of the Crimes Act 1900 (NSW). The alleged offence occurred between April 1974 and April 1975, when the complainant was nine years old and living in a household where the appellant was her mother's de facto partner. This was the appellant's second conviction for the same offence: his earlier conviction, entered after a judge-alone trial, had been quashed by the Court of Criminal Appeal in 2013 on fresh evidence grounds, with a new trial ordered.

The fresh evidence that prompted the retrial comprised a letter written by the complainant to the appellant in affectionate terms, and video footage from a family wedding in 1995. Both items were said to contradict the complainant's evidence that she harboured a deep and lasting hatred of the appellant. At the retrial, the complainant's mother and the appellant also gave evidence for the first time.

The appellant appealed against his jury conviction on three grounds: that the verdict was unreasonable and unsupportable on the evidence, and two supplementary grounds concerning an alleged breach of the rule in Browne v Dunn during the Crown's closing address.

Legal Issues

  • Whether the jury's guilty verdict was unreasonable or could not be supported having regard to the evidence, within the meaning of section 6(1) of the Criminal Appeal Act 1912 (NSW), applying the test in SKA v The Queen and M v The Queen
  • Whether the Crown breached the rule in Browne v Dunn by urging the jury to accept that the complainant made an immediate complaint to her mother, without having challenged the mother's denial of that fact by cross-examination or a section 38 application
  • Whether the trial judge should have given corrective directions to the jury to address any unfairness arising from that alleged breach

Decision

Ground 1: Unreasonable verdict (Macfarlan JA, majority)

Macfarlan JA, undertaking an independent assessment of the evidence as required by SKA v The Queen, concluded that there was a reasonable doubt as to the appellant's guilt which the jury ought also to have experienced, and which could not be explained by the jury's advantage of seeing and hearing the witnesses (at [25]). His Honour emphasised that no single factor was decisive; the conclusion rested on the combined weight of several matters (at [26]).

First, the complainant's evidence was entirely uncorroborated. Both sisters who gave evidence were positioned, on the complainant's own account, to have witnessed aspects of the alleged conduct, yet neither provided any supporting evidence. The complainant's mother actively contradicted the complainant on several material points, including denying that any complaint was ever made to her (at [27]-[32]). Second, the affectionate postcards, letters, and wedding video footage were difficult to reconcile with the complainant's evidence of deep-seated hatred for the appellant, and her explanations for that conduct were assessed as "varied and unconvincing" (at [33]-[34]). Third, features of the complainant's account of the charged incident itself, including that it occurred within metres of the appellant's father in an adjoining room with no door between them, and the absence of any reference to pain, raised questions about its veracity (at [36]). Fourth, the appellant's denials were consistent across his police interview, the covertly recorded telephone call, and his sworn evidence, and did not appear on reading the transcript to lack credibility (at [37]). Macfarlan JA concluded there was a "significant possibility that an innocent person has been convicted" and that the verdict was unreasonable (at [39]-[40]). Bellew J agreed with that reasoning and the proposed orders (at [122]-[128]).

Ground 1: Unreasonable verdict (Fullerton J, dissenting)

Fullerton J reached the opposite conclusion after conducting her own independent review of the evidence. Her Honour considered the complainant's explanations for the affectionate correspondence and wedding video to be credible and open to acceptance by a jury, particularly in light of the complainant's evidence that she was trying to secure re-entry into the family and not cause trouble at her sister's wedding (at [65], [70]). Fullerton J also placed weight on significant credibility problems in the evidence of the complainant's mother, including prior inconsistent statements to police, and similarly in the appellant's own evidence (at [81], [91], [104]). Having regard to the passage of almost 40 years since the alleged offences, the absence of corroboration, and the primacy of the jury as fact-finder, Fullerton J concluded it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt, and would have dismissed the first ground (at [43], [56]).

Grounds 2 and 3: Browne v Dunn and corrective directions (Fullerton J only)

Because Macfarlan JA found it unnecessary to address these grounds, they were considered only by Fullerton J. Her Honour concluded that the trial advocate's questioning of the complainant's mother about the complaint, while non-leading, was sufficient to put her credit in issue and afforded defence counsel ample opportunity to cross-examine (at [114]-[115]). The jury could not have been in doubt that the trial advocate was challenging the mother's credibility. The fairness concern underlying Browne v Dunn did not require a section 38 application in these circumstances (at [115], [118]). Fullerton J refused leave on both supplementary grounds and would have dismissed them (at [109]).

Orders Made

  • Appeal allowed
  • The appellant's conviction on the charge in the indictment dated 25 July 2013 quashed
  • Verdict of acquittal entered on that charge

Key Takeaways

  • A majority of the Court of Criminal Appeal held that the cumulative effect of uncorroborated evidence, post-event communications inconsistent with the complainant's claimed feelings, troubling features of the charged incident, and a credible denial by the appellant combined to render the jury's verdict unreasonable under section 6(1) of the Criminal Appeal Act 1912 (NSW), even though no single factor was individually decisive (at [26], [39]-[40]).

  • Where a complainant's siblings were, on her own account, present during alleged incidents of abuse yet provided no supporting evidence at trial, that absence of corroboration constituted a significant evidentiary void that explanations for the absence could not fill (at [27]-[30], [124]).

  • The Court confirmed the established principle from SKA v The Queen and M v The Queen that an appellate court must conduct its own independent assessment of the evidence for both sufficiency and quality, and may allow an appeal where it is left with a significant possibility that an innocent person has been convicted, provided the doubt cannot be explained by the jury's advantage in observing witnesses (at [25], [39]).

  • In a closely contested majority decision, Fullerton J dissented on ground one, illustrating that the same body of evidence, including the same credibility findings about the complainant's mother and the wedding footage, can support diametrically opposed conclusions when the primacy of the jury's fact-finding role is accorded different weight (at [43], [48], [56], [120]).

  • The rule in Browne v Dunn does not necessarily require a party to make a formal section 38 application to cross-examine its own witness as to a disputed matter, provided the questioning in chief is sufficient to put the witness's credit on that matter in issue and affords the opposing party a real opportunity to cross-examine (at [114]-[115]).

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