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Court of Criminal Appeal 13 December 2017

GM v R

[2017] NSWCCA 298

Sexual offences
CRIME APPEAL CONVICTION

Citation: GM v R [2017] NSWCCA 298
Court: Court of Criminal Appeal
Date: 13 December 2017
Judge(s): Payne JA; Johnson J; Adamson J

Background

The appellant was convicted on 30 August 2016 of eight counts of indecent assault and one count of sexual intercourse with a person under the age of 10 years. The offences were alleged to have been committed against his niece (the complainant) between January 1994 and August 1996, when she was approximately six to eight years old. He was sentenced to nine years imprisonment with a non-parole period of five years and five months.

The complainant did not disclose the abuse until 2012, when she first told her boyfriend and then her mother before formally reporting the matter to police. The Crown led evidence of the charged incidents and several context incidents said to have occurred before and after the indictment period. The appellant's then wife, the complainant's aunt, gave evidence of two conversations in March 2012 in which the appellant initially denied the allegations and later said he had "decayed on the inside" and was a "monster."

The appellant appealed against conviction on three grounds: that the trial judge erred in failing to leave alternative verdicts to the jury; that the trial judge improperly foreclosed cross-examination about the context of the alleged admissions; and that the verdicts were unreasonable having regard to the evidence.

Legal Issues

  • Whether the trial judge erred in failing to leave statutory alternative verdicts to the jury where the complainant's age at the time of the offences was a live issue
  • Whether the trial judge improperly prevented defence counsel from cross-examining the complainant's aunt about what the complainant's mother had told her, as context for the appellant's alleged admissions
  • Whether the verdicts were unreasonable or unsafe, having regard to the evidence of the complainant's age, the alleged admissions, and the sufficiency of the Crown case generally

Decision

Ground 1: Failure to leave alternative verdicts

The Crimes Act 1900 (NSW) provides for alternative verdicts in relation to the charged offences. The question of whether such verdicts should be left to the jury is governed by the High Court's approach in James v The Queen, which requires consideration of whether the alternative count accords with the real issues at trial and the forensic choices of counsel (at [37]-[38]). Here, it was the Crown, not the defence, that raised the prospect of alternative verdicts before addresses. Defence counsel made no application for alternative verdicts and instead embraced an all-or-nothing approach, submitting in closing that if the jury was not satisfied the complainant was under 10, it must acquit (at [44]-[46]).

The Court held that this was a clear forensic decision by experienced defence counsel and that no miscarriage of justice arose from the trial judge's decision not to leave alternative verdicts. The trial judge was also concerned that putting the alternatives might suggest to the jury that conviction was simply a matter of the complainant's precise age, which could prejudice the appellant (at [42]-[49]). Adamson J agreed, treating counsel's silence during the exchange about alternative verdicts as acquiescence in the course adopted, and refusing leave under r 4 of the Criminal Appeal Rules (at [136]-[137]).

Ground 2: Foreclosure of cross-examination about alleged admissions

The Crown led evidence that the appellant, in a conversation with his then wife on 25 March 2012, made statements the jury could treat as admissions. Defence counsel sought to cross-examine the complainant's aunt about what the complainant's mother had told her in an earlier conversation on 29 February 2012, said to provide context for the admissions (at [58]-[60]).

The Court held that the trial judge correctly rejected those questions. The contents of a conversation between the complainant's mother and the complainant's aunt to which the appellant was not a party could not bear upon his state of mind during the later conversation of 25 March 2012 (at [76]). The relevant context for an admission is what the appellant was told, not what two other people said to each other weeks earlier. Additionally, the complainant had not been challenged about any prior inconsistent statement, so there was no proper foundation for using that route to adduce the evidence from the aunt (at [70]-[71]). Ground 2 was rejected (at [77]).

Ground 5: Unreasonable verdict

The Court applied the principles from SKA v The Queen and The Queen v Baden-Clay, which require an appellate court to make an independent assessment of the evidence while recognising the jury's advantage in seeing and hearing the witnesses (at [85], [152]). The complainant's evidence about her age at the time of the offences was clear and credible (at [88]). The letter postmarked 26 April 1998, used by defence to suggest she was over 10 at the time of the Casula incidents, did not compel the conclusion that the visit described in that letter was the only overnight stay at Casula. The complainant's aunt gave clear evidence of multiple overnight stays, and the complainant's mother's contrary evidence was qualified and uncertain (at [109]-[111]).

The Court also held that the evidence of the appellant's alleged admissions on 25 March 2012 was capable of being regarded as probative, despite the statements being recorded in a later written statement rather than contemporaneously (at [117], [120]). The complainant's initial bare-bones disclosures to her boyfriend and mother did not undermine the verdict, as the detail of early accounts of child sexual assault may vary depending on circumstance (at [127]). All three judges were independently satisfied that on the whole of the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt on all counts (at [128], [131], [153]).

Orders Made

  • Leave to appeal on Ground 1 refused
  • Leave to appeal on Grounds 2 and 5 granted
  • Appeal dismissed

Key Takeaways

  • A trial judge does not err in declining to leave alternative verdicts when defence counsel has made a deliberate forensic decision to pursue an all-or-nothing acquittal strategy; under the principles in James v The Queen, the forensic choices of counsel are a central consideration, though not determinative, in that assessment (at [37]-[38], [44]-[49]).

  • Cross-examination directed at the context of an accused's alleged admissions is properly confined to evidence capable of affecting the accused's own state of mind at the relevant time; uncommunicated conversations between third parties, to which the accused was not a party, do not meet that threshold (at [75]-[76]).

  • The Court of Criminal Appeal confirmed that, in child sexual assault proceedings, convictions resting substantially on the complainant's testimony are not inherently unreasonable; the complainant's evidence here was described as "clear and compelling," and credibility assessments remained primarily a matter for the jury (at [88], [124], [152]).

  • Bare-bones initial disclosures of childhood sexual abuse, lacking detail, do not of themselves support a conclusion that a subsequent jury verdict is unreasonable, given the range of circumstances that may affect the form of early complaints (at [127]).

  • Where a defence raises an age-based challenge by reference to a document in cross-examination without putting the underlying proposition squarely to the complainant, the jury is entitled to weigh that evidence alongside other unchallenged evidence, including evidence of multiple visits inconsistent with the single-occasion theory (at [143]-[149]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules (NSW)

Cases
- Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51
- Jackson v R (1962) 108 CLR 591; [1962] HCA 49
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- James v The Queen (2014) 253 CLR 475; [2014] HCA 6
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MC v R [2017] NSWCCA 274
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- R v DRF [2015] NSWCCA 181
- R v Elfar (2000) 115 A Crim R 64; [2000] NSWCCA 255
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46