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Court of Criminal Appeal 28 August 2017

Bell v Regina

[2017] NSWCCA 207

Sexual offences
CRIMINAL LAW APPEAL AND NEW TRIAL CONSIDERATION OF THE COURSE OF TRIAL

Citation: Bell v Regina [2017] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 28 August 2017
Judge(s): Bathurst CJ, McCallum J, N Adams J

Background

The appellant had been in an ongoing relationship with the complainant, which ended but left both parties on friendly terms. On 28 April 2013, the appellant visited the complainant's home and gave her a massage. The complainant alleged that during the massage the appellant digitally penetrated her without consent, kissed and touched her breasts without consent, and attempted penile penetration without consent.

The appellant had suffered a traumatic brain injury while in custody on remand, initially rendering him unfit to stand trial. After his condition improved, his cognitive impairment prompted an application for a trial by judge alone, to which the Crown consented. The trial judge convicted the appellant of assault with an act of indecency, sexual intercourse without consent, and attempted sexual intercourse without consent.

On appeal, the sole ground was whether the verdicts were unreasonable or could not be supported by the evidence, under s 6(1) of the Criminal Appeal Act 1912.

  • Whether the trial judge's verdicts were unreasonable or insupportable having regard to the evidence as a whole
  • Whether significant inconsistencies in the complainant's evidence were given sufficient scrutiny by the trial judge
  • Whether the trial judge's treatment of the appellant's credibility was consistent and fair, particularly regarding the ongoing post-offence relationship and the cunnilingus evidence
  • Whether phone calls made from gaol constituted admissions under s 81(1) of the Evidence Act 1995 (NSW)
  • Whether the trial judge's conduct during the proceedings resulted in unfairness to the appellant

Decision

The Court of Criminal Appeal allowed the appeal and entered verdicts of acquittal across all three offences. The Court found that the complainant's evidence contained significant and numerous inconsistencies, including inconsistencies between prior statements and her trial evidence, and within her trial evidence itself. The trial judge failed to give those inconsistencies the degree of scrutiny necessary to satisfy herself beyond reasonable doubt that the offences were committed.

The Court identified several additional errors in the trial judge's reasoning. The trial judge accepted the complainant's neighbour's evidence of complaint but, without explanation, rejected the same neighbour's evidence that the complainant had later expressed uncertainty about whether the offences occurred. The Court noted the neighbour had no apparent motive to lie and was a friend of the complainant. The Court also found that the trial judge applied the allegations inconsistently: describing them as insufficiently serious to expect the complainant to have avoided the appellant after the events, while simultaneously describing them as "heinous" when drawing adverse inferences against the appellant for maintaining contact with the complainant after his release on bail.

The Court found that cross-examination of the complainant about the ongoing post-offence relationship had been wrongly curtailed by reference to s 293 of the Criminal Procedure Act 1986, a provision protecting complainants from evidence of sexual experience that was largely inapplicable to the conduct in question. It also found that an adverse credibility finding against the appellant for raising a consensual act of cunnilingus for the first time at trial was unfair, because the trial judge had prevented counsel from informing the court that it had been a joint forensic decision at the outset not to adduce the complainant's earlier account to a nurse, which had itself referenced cunnilingus.

On the gaol phone calls, the Court held that they did not constitute admissions. In three of the four calls, the appellant was plainly describing the charges against him rather than admitting guilt. The fourth was more ambiguous, but viewed in the context of the other three calls, made close in time and using similar language, it could not be concluded that it contained an admission. The Court also noted that the trial, taken as a whole, had been conducted on a basis unfavourable to the appellant, which reinforced the Court's willingness to depart from the primary judge's advantage of having seen and heard the witnesses.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions quashed
  • Verdicts of acquittal entered

Key Takeaways

  • A trial judge conducting a judge-alone trial must scrutinise a complainant's evidence with particular care where that evidence contains numerous, material inconsistencies across prior statements and trial testimony; failing to do so may render a verdict unreasonable.
  • Where a trial judge accepts one part of a witness's evidence but rejects another part, the reasons for that differential treatment must be adequately explained, especially when the rejected evidence has potential exculpatory force and the witness has no apparent motive to lie.
  • Section 293 of the Criminal Procedure Act 1986, which restricts evidence of a complainant's sexual experience, does not apply broadly to all evidence of post-offence contact between a complainant and an accused; the Court of Criminal Appeal confirmed that most of the excluded cross-examination in this case did not engage the provision.
  • Statements made from custody describing the charges against an accused will not constitute admissions under s 81(1) of the Evidence Act 1995 merely because of their content; the proper inquiry is whether the utterance amounts to an acknowledgment of guilt rather than a recitation of the allegation.
  • Cumulative trial unfairness, including uneven credibility findings, wrongly curtailed cross-examination, and the improper silencing of counsel, can fortify an appellate court's doubt about a verdict and support a departure from the primary judge's advantage in assessing witness credibility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61I, 61L, 344A(1)
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Criminal Procedure Act 1986 (NSW) ss 133(1), 159, 293
- Evidence Act 1995 (NSW) ss 38, 39, 42, 81(1)

Cases
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30