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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: NSW Court of Criminal Appeal
Date: 13 December 2017
Judge(s): Payne JA; Johnson J; Adamson J

Background

The appellant, identified by pseudonym to protect the identity of the complainant (his niece), was convicted by a jury of eight counts of indecent assault of a person under 10 years and one count of sexual intercourse with a person under 10 years. The offences were alleged to have occurred between January 1994 and August 1996, when the complainant was between approximately six and eight years old. The appellant was sentenced to nine years' imprisonment with a non-parole period of five years and five months.

The Crown case rested primarily on the complainant's evidence, supplemented by context evidence of other alleged incidents and evidence of admissions the appellant made to a third party. The offences spanned multiple locations in Sydney, including the homes of family members.

The appellant appealed against his convictions on three broad grounds: that the trial judge erred in not putting alternative verdicts to the jury; that the trial judge wrongly restricted cross-examination relevant to his admissions; and that the verdicts were unreasonable and unsupported by the evidence.

  • Whether the trial judge should have left statutory alternative verdicts to the jury in respect of the counts on which the appellant was convicted.
  • Whether the trial judge wrongly prevented defence counsel from asking two questions in cross-examination that the appellant argued were relevant to the context of admissions he had made.
  • Whether the verdicts were unreasonable and could not be supported having regard to the evidence as a whole.

Decision

Alternative verdicts. The judges divided on whether leave to appeal this ground should be granted, but agreed the ground ultimately failed. Payne JA granted leave under s 5(1)(b) of the Criminal Appeal Act 1912 and found no miscarriage of justice arose from the failure to leave alternative verdicts, applying James v The Queen (2014) 253 CLR 475. Adamson J (with Johnson J agreeing) refused leave under r 4 of the Criminal Appeal Rules because counsel at trial had acquiesced in the trial judge's decision not to put alternative verdicts. On either approach, the ground did not succeed.

Restriction on cross-examination. All three judges agreed the trial judge was correct to disallow the two questions defence counsel sought to ask. The court found that the answers to those questions would not have provided relevant context to the appellant's state of mind at the time he made the admissions. Payne JA applied Jackson v R (1962) 108 CLR 591, and Adamson J independently found no error in the trial judge's ruling to stop that line of questioning.

Unreasonable verdict. All three judges dismissed this ground. Payne JA reviewed the evidence in detail and, applying the principles from SKA v The Queen and M v The Queen, found nothing in the complainant's evidence, taken alone or in the context of the whole Crown case, that would cause the Court to entertain a doubt about the appellant's guilt. The court reaffirmed that questions of fact and the weight to be given to evidence were matters for the jury, and that an appellate court must not become a substitute for trial by jury, citing The Queen v Baden-Clay (2016) 258 CLR 308. The jury may have accepted the complainant's evidence independently of any admission evidence, and there was no basis to disturb the verdicts.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the failure to leave an alternative verdict to the jury does not automatically constitute a miscarriage of justice; the appellate court assesses what justice to the accused required in the particular circumstances of the case.
  • Where defence counsel acquiesces in a trial judge's decision not to put alternative verdicts, leave to raise that issue on appeal will ordinarily be refused under r 4 of the Criminal Appeal Rules.
  • A trial judge may properly disallow cross-examination questions where the answers sought would not shed relevant light on the accused's state of mind at the time of making admissions; not every line of questioning about context is permissible.
  • Applying The Queen v Baden-Clay, an appellate court conducting an unreasonable verdict review must approach the assessment on the basis that the jury, as the collective judges of fact, had the advantage of seeing and hearing witnesses at trial.
  • Sufficient evidence can support a conviction for historical child sexual offences where the complainant's testimony, considered in the context of the whole Crown case, leaves no basis for the appellate court to entertain a reasonable doubt about guilt.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules (NSW), r 4

Cases
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Jackson v R (1962) 108 CLR 591; [1962] HCA 49
- 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