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Court of Criminal Appeal 9 December 2016

Parton v R

[2016] NSWCCA 291

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SEXUAL INTERCOURSE WITH CHILD UNDER 10 JUDGE ALONE TRIAL

Citation: Parton v R [2016] NSWCCA 291
Court: Court of Criminal Appeal, New South Wales
Date: 9 December 2016
Judge(s): Ward JA (principal judgment); Harrison J; RA Hulme J

Background

The applicant was the step-grandfather of the complainant (KW), who was 14 years old at the time of trial. Following a judge-alone trial in the District Court, the applicant was convicted of one count of sexual intercourse with a child under 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The offence was particularised as having occurred at Yeoval between September 2007 and May 2010. The applicant was sentenced to 9 years' imprisonment with a non-parole period of 5 years and 8 months.

A complicating feature of the case was that an earlier complaint had been made against the applicant in relation to KW at the end of 2006. That earlier matter had been dismissed in the Orange Local Court in September 2007, and by the time of the 2014 District Court trial, the relevant records had been destroyed in accordance with Local Court practice. No evidence was available at trial as to what the earlier complaint had specifically alleged.

The applicant sought leave to appeal his conviction on the sole ground that the trial judge's verdict was unreasonable and not supported by the evidence to the requisite standard of proof. The Crown did not oppose the grant of leave.

  • Whether the trial judge's verdict was unreasonable or unsupported by the evidence, within the meaning of s 5(1)(a) of the Criminal Appeal Act 1912 (NSW)
  • Whether a reasonable doubt arose as to whether the conduct the subject of the charge was distinct from the conduct the subject of the earlier (dismissed) complaint
  • Whether the lack of specificity in KW's complaint gave rise to a reasonable doubt as to the applicant's guilt

Decision

Ward JA (with whom Harrison J and RA Hulme J agreed) granted leave to appeal but dismissed the appeal. The central issue was whether, having regard to the chronology of events and the evidence about the earlier complaint, there was a significant possibility that an innocent person had been convicted.

The applicant placed considerable emphasis on the chronology, arguing that uncertainty about when KW moved to Yeoval, where the family lived when various events occurred, and the sleeping arrangements at Yeoval all gave rise to a reasonable doubt. Ward JA examined the evidence in detail, including the evidence of KW, her mother (RW), LP (the applicant's wife), and Mr Wykes. While inconsistencies existed, her Honour found that, taking the evidence as a whole, it was open to the trial judge to be satisfied beyond reasonable doubt of the applicant's guilt.

A significant feature of the appeal was the trial judge's advantage in having seen and heard KW give evidence, including in cross-examination. Both Harrison J and RA Hulme J emphasised this point. RA Hulme J noted candidly that, if confined solely to reviewing the transcript and exhibits, he would have had misgivings. However, applying the principle from Filippou v The Queen and M v The Queen, his Honour concluded that the trial judge's advantage in assessing KW's evidence was capable of resolving any doubt experienced by the appellate court. No basis existed to find a significant possibility that an innocent person had been convicted.

The Court confirmed that the trial judge had properly excluded from his deliberations the evidence about the earlier complaint that had been received on the stay application. That earlier complaint had not been proved to relate to the same conduct as the charge before the court, and the Crown was not required to prove that the incidents were distinct beyond reasonable doubt.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An appellate court reviewing a judge-alone verdict applies the same standard as when reviewing a jury verdict: the conviction must be set aside only where there is a significant possibility that an innocent person has been convicted, taking full account of the trial judge's advantage in seeing and hearing witnesses.
  • Where a prior complaint against an accused has been dismissed and the records have been destroyed, a trial court is not automatically required to treat the prior complaint and the charge before it as relating to the same conduct. The Crown need not prove the incidents were distinct before a conviction can stand.
  • RA Hulme J's concurrence demonstrates that an appellate judge's personal misgivings about the written record are not, of themselves, sufficient to establish that a verdict was unreasonable. The principle from Filippou v The Queen requires the court to assess whether the trial judge's advantage over the appellate court could resolve the doubt.
  • Inconsistencies and imprecision in the evidence of a child complainant, and in the supporting evidence of other witnesses, do not automatically generate a reasonable doubt sufficient to render a verdict unreasonable, particularly where the trial judge had the benefit of observing the complainant's demeanour directly.
  • In dismissing this appeal, the Court of Criminal Appeal reaffirmed that the threshold for interfering with a verdict on the ground of unreasonableness remains high, and that mixed grounds of fact and law require leave under s 5(1)(a) of the Criminal Appeal Act 1912 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)

Cases
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Ryan v R [2009] NSWCCA 183