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Court of Criminal Appeal 14 March 2017

CR v R

[2017] NSWCCA 29

Sexual offences
CRIMINAL LAW CONVICTION APPEAL NO CORROBORATION VERY MUCH A JURY QUESTION APPEAL DISMISSED.

Citation: CR v R [2017] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 14 March 2017
Judges: Hoeben CJ at CL (with Schmidt J and Wilson J agreeing)

Background

The appellant was convicted in March 2015 in the Nowra District Court on two counts of sexual intercourse with a child under the age of ten years in circumstances of aggravation, contrary to s 66A of the Crimes Act 1900 (NSW). The aggravating circumstance was that the complainant was under the appellant's authority at the relevant time. He received an aggregate sentence of 12 years' imprisonment with a non-parole period of 8 years.

The complainant was five years old at the time of the alleged offending (between May and July 2012) and was aged eight at trial. Her evidence in chief was presented through a video recording of a Joint Investigation Response Team (JIRT) interview conducted in August 2012. The interview contained descriptions, in the language of a young child, of acts of sexual intercourse alleged to have occurred at the appellant's home when the complainant visited to play with the appellant's granddaughter.

The appellant sought leave to appeal his conviction to the Court of Criminal Appeal on a single ground: that the jury's verdicts were unreasonable, or could not be supported by the evidence.

  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence, within the meaning of s 5(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether identified inconsistencies in the complainant's testimony, and the absence of corroboration, required the verdicts to be set aside
  • Whether the complainant's account was so implausible that no jury could reasonably have accepted it beyond reasonable doubt

Decision

Hoeben CJ at CL conducted an independent assessment of the evidence, as required by authorities including M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400. His Honour identified that the standard for appellate intervention is a demanding one: the court must be satisfied that the jury, acting reasonably, ought to have had a reasonable doubt about guilt.

His Honour acknowledged several inconsistencies and unusual features in the complainant's evidence, including her referring to the adult appellant as a "boy," some uncertainty in her descriptions of specific events, and the absence of corroborating physical or witness evidence. However, these matters were characterised as going to the weight of the evidence rather than rendering the verdicts unreasonable.

The court placed significant emphasis on the jury's advantaged position. The jury had the benefit of seeing and hearing the complainant give evidence, including her responses under cross-examination, where she firmly maintained that the offending had occurred. The court noted that delays in disclosure and reluctance to complain are common features of child sexual abuse cases and did not, of themselves, undermine the complainant's credibility.

On independent review, Hoeben CJ at CL was satisfied beyond reasonable doubt that the verdicts were not unreasonable and were adequately supported by the evidence. Schmidt J and Wilson J each agreed with his Honour's reasoning.

Orders Made

  • Leave to appeal granted.
  • The appeal against conviction dismissed.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the test for an unreasonable verdict requires the appellate court to be satisfied that a jury acting reasonably ought to have entertained a reasonable doubt about guilt, a threshold that is not met merely because inconsistencies or implausibilities exist in a complainant's evidence.
  • Inconsistencies in a child complainant's testimony, and the absence of corroboration, do not automatically render a verdict unreasonable; they are matters for the jury to weigh, particularly where the jury has directly observed the complainant give evidence and be cross-examined.
  • The Court emphasised the significant forensic advantage held by the jury, noting that an appellate court reviewing a transcript is in an inferior position when assessing the credibility and reliability of a witness, especially a young child.
  • Delayed disclosure and reluctance to report child sexual abuse are recognised by the courts as common features of such cases; the Court treated these features as neither corroborating nor undermining the complainant's account.
  • A conviction resting substantially on the uncorroborated evidence of a child complainant can be sustained on appeal where, upon independent review of the whole evidence, it was open to the jury to find the accused guilty beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A (sexual intercourse with a child under 10)
- Criminal Appeal Act 1912 (NSW), s 5(1) (grounds for conviction appeal)

Cases
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013