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Court of Criminal Appeal 16 August 2017

PH v R

[2017] NSWCCA 194

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION AGGRAVATED INDECENT ASSAULT OF CHILD UNCLE OF 11 YEAR OLD COMPLAINANT UNCLE INSTIGATES TICKLING GAME

Citation: PH v R [2017] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 16 August 2017
Judge(s): Johnson J, Davies J, Lonergan J

Background

The applicant, an uncle in his mid-fifties, was convicted by a jury of two counts of aggravated indecent assault of his eleven-year-old niece. The offences were alleged to have occurred on a single occasion between June and September 2013, at the home he shared with his wife in Yagoona, while the complainant was staying overnight and his wife had left for work.

The complainant gave evidence that the applicant initiated a tickling game and then deliberately touched her breasts (under her clothing) and her groin area (under her pyjama pants and underpants). The applicant did not deny the physical contact, but maintained throughout that it was entirely accidental, occurring when his hands slipped during playful lifting and tickling.

Following conviction, Judge Baly SC sentenced the applicant to 18 months' imprisonment on each count, both suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those sentences had already expired by the time the appeal was heard. The applicant sought leave to appeal on the sole ground that the jury's verdicts were unreasonable or could not be supported by the evidence.

  • Whether the jury's verdicts of guilty were unreasonable, or could not be supported having regard to the evidence, within the meaning of the applicable appellate standard
  • Whether the evidence of the complainant's cousin (the first person to whom she disclosed) supported the applicant's account that the contact may have been accidental
  • Whether inconsistencies in the complainant's evidence, including changes in the order of the alleged touching and conduct said to be implausible, were sufficient to render the verdicts unreasonable
  • Whether the absence of immediate complaint, and the complainant's continued contact with the applicant after the events, undermined the reliability of her account

Decision

Davies J, with Johnson J and Lonergan J in agreement, dismissed the appeal. The court found it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of both offences.

The applicant placed significant weight on evidence from the complainant's cousin, who was the first person she told. The cousin recounted that the complainant had expressed uncertainty about whether the touching was accidental. Davies J considered that this evidence did not compel a reasonable doubt. The cousin's account also captured the complainant's distress and her statements to the effect that she could not believe her uncle had done this to her. The court treated the cousin's account as a whole, rather than isolating the passages most favourable to the applicant.

The inconsistencies in the complainant's account, including the reversal of the order of the touching between her police interview and her trial evidence, were acknowledged by the court. However, these were matters that defence counsel had squarely put to the jury, and the jury remained entitled to accept the complainant's evidence despite those inconsistencies. The court also addressed the explanations given for the delayed disclosure: the complainant had troubled family circumstances, did not know her way home from the applicant's flat, and was fearful of the consequences of telling her mother.

The applicant's good character and consistent denial were noted, but the court found those considerations subsidiary given the strength of the overall Crown case. The court concluded that the applicant's accidental-contact explanation was properly considered and rejected by the jury.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a verdict is not unreasonable merely because inconsistencies exist in a complainant's evidence, particularly where those inconsistencies were ventilated before the jury at trial.
  • A complainant's disclosure to a third party that she was uncertain whether the touching was accidental did not, when the disclosure is read as a whole, compel an inference that the touching was in fact accidental.
  • Delayed complaint and continued contact with an alleged perpetrator do not necessarily undermine a complainant's credibility, especially where the surrounding circumstances provide a plausible explanation.
  • Good character evidence and a consistent denial by an accused person carry less weight when the court finds there is otherwise abundant evidence supporting the jury's verdict.
  • The appellate standard for an unreasonable verdict requires the court to assess whether it was open to the jury to convict beyond reasonable doubt; the existence of a competing innocent explanation does not automatically satisfy that threshold.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13
- W v R [2014] NSWCCA 110