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Court of Criminal Appeal 28 June 2017

Abbott (a pseudonym) v R

[2017] NSWCCA 149

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CROSS NATURE OF CONTEXT EVIDENCE APPEAL AGAINST CONVICTION WHETHER APPELLANT DENIED A FAIR TRIAL

Citation: Abbott (a pseudonym) v R [2017] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 28 June 2017
Judges: Basten JA at [1]; McCallum J at [29]; Fagan J at [30]

Background

The appellant (referred to by pseudonym throughout) was convicted on 25 May 2016 of six counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 (NSW). All six convictions related to a child complainant referred to as Pamela, who was aged 7 or 8 at the time of the alleged offending. The offending was alleged to have occurred at the appellant's home, where Pamela and her younger sister Rachel (aged 4 or 5) attended day care provided by the appellant's wife.

The original indictment contained ten counts, four of which related to Rachel. The trial judge directed verdicts of not guilty on two of Rachel's counts, and the jury acquitted the appellant on the remaining two. The six convictions rested entirely on the jury's acceptance of Pamela's evidence.

The appellant sought leave to appeal on grounds including: that the trial should have been severed into separate trials for each complainant; that the trial judge should have discharged the jury after Pamela repeatedly declined to answer questions in cross-examination; that impermissible communications between the DPP solicitor and Pamela during cross-examination warranted a discharge; and that the verdicts were unreasonable or unsupported by the evidence.

  • Whether the trial judge erred in refusing to order separate trials in respect of each complainant, given the risk of prejudice from cross-admissible tendency and context evidence
  • Whether the trial judge erred in refusing to discharge the jury after Pamela declined to answer questions on approximately 80 occasions during cross-examination
  • Whether communications between the DPP solicitor and Pamela while she was under cross-examination constituted impermissible interference warranting a jury discharge
  • Whether the convictions were unreasonable, inconsistent, or unsupported by the evidence

Decision

Separate trials. The Court found no error in the trial judge's refusal to order separate trials. The evidence of both complainants was cross-admissible as tendency and context evidence: independent allegations by two complainants against the same person, absent collaboration, could rationally support the veracity of each complainant. Although a complaint by Rachel referring to serious uncharged conduct (digital penetration) had been admitted as "context" evidence, the Court expressed some doubt about that characterisation, noting it was difficult to understand the evidence's probative value other than as tendency evidence. However, because the jury acquitted on all charges relating to Rachel, and because the trial judge gave comprehensive directions against tendency use, the Court was not persuaded that the joint trial produced a miscarriage of justice.

Complainant's silence in cross-examination. The Court accepted that Pamela's failure to answer approximately 80 questions during cross-examination was a serious matter deserving scrutiny. However, the Court observed that many of those questions did not adequately account for answers Pamela had already given. The trial judge had available a range of remedies short of discharge, and the Court was not satisfied that the refusal to discharge the jury denied the appellant a fair trial.

Communications with the complainant during cross-examination. The Court examined whether contact between the DPP solicitor and Pamela while she remained under cross-examination was calculated to, or did, corrupt her testimony. The Court found the communications did not meet that threshold and did not constitute the kind of improper interference that would require discharge of the jury.

Unreasonable verdicts. Fagan J conducted a detailed review of the evidence, examining multiple points raised by the appellant, including alleged inconsistencies in Pamela's accounts, the possibility of communication between the sisters, leading questions in police interviews, and the appellant's emphatic denials and clean record. Fagan J concluded that none of these matters, individually or cumulatively, produced a reasonable doubt about the appellant's guilt, and that the jury were entitled to reach the verdicts they did.

Orders Made

  • Leave to appeal granted in respect of all grounds
  • The appeal is dismissed

Key Takeaways

  • Cross-admissibility of evidence between multiple complainants in a joint trial does not automatically require separate trials: independent allegations by different complainants can rationally support each complainant's credibility absent evidence of collaboration, suggestion, or concoction.
  • A complainant's repeated silence during cross-examination does not necessarily entitle an accused to a jury discharge; the court must assess whether the refusal to answer caused actual unfairness, particularly where questions failed to engage with the complainant's prior answers.
  • Where evidence is admitted as "context" evidence but relates to serious uncharged conduct, the Court of Criminal Appeal signalled uncertainty about whether such evidence could properly serve that purpose rather than operating as tendency evidence, though the issue was not determinative given the jury directions given at trial.
  • In assessing whether verdicts are unreasonable under s 5 of the Criminal Appeal Act 1912, the appellate court conducts an independent review of the evidence but does not substitute its view unless the jury's conclusions fall outside the range of reasonable findings.
  • Acquittals on related counts do not, without more, render convictions on the remaining counts inconsistent or unreasonable; the jury's differentiated findings reflected their assessment of the evidence relating to each complainant separately.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 29, 306U
- Evidence Act 1995 (NSW), ss 11, 13, 55, 97, 137

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Hoch v The Queen (1988) 165 CLR 292
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- SKA v The Queen (2011) 243 CLR 400
- Libke v The Queen (2007) 230 CLR 559
- Nudd v The Queen [2006] HCA 9
- Versi v R [2013] NSWCCA 206
- Potier v R [2015] NSWCCA 130
- Qualtieri v Regina [2006] NSWCCA 95
- DJV v R [2008] NSWCCA 272
- R v Barton [2004] NSWCCA 229
- DeVries v The Queen [2013] VSCA 210
- R v Belford & Bound [2011] QCA 43