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Court of Criminal Appeal 13 April 2017

ND v R

[2017] NSWCCA 70

Sexual offences
CRIMINAL LAW CONVICTION APPEAL INCONSISTENCIES IN PERIPHERAL MATTERS POSITION OF ADVANTAGE OF JURY

Citation: ND v R [2017] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 13 April 2017
Judge(s): Hoeben CJ at CL, Walton J, R A Hulme J

Background

The applicant was convicted by a jury in the District Court of one count of sexual intercourse with a child under 10 years of age, contrary to s 66A of the Crimes Act 1900 (NSW). The complainant was aged five years and ten months at the time of the alleged offence in September 2004, and was 16 years old when she gave evidence at trial. The applicant was a relative by marriage whose family had regular social contact with the complainant's family.

The Crown alleged that the applicant digitally penetrated the complainant while she was left alone with him at his home. The complainant disclosed the matter to a cousin several years after the event, and the matter came to police attention in 2012 after the complainant's mother discovered a diary entry referring to the incident. The applicant denied the offence in a recorded police interview and, through his wife, advanced an alibi based on a regular Tuesday evening baseball commitment.

The applicant's sentence had previously been the subject of a successful Crown appeal, with the Court of Criminal Appeal re-sentencing him in June 2016 to a non-parole period of four years. This appeal concerned only the conviction.

  • Whether the jury's verdict was unreasonable or could not be supported having regard to the evidence, under s 5(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether identified inconsistencies in the complainant's evidence were sufficient to undermine the conviction
  • Whether leave to appeal was required, given the ground did not raise a question of law

Decision

Because the sole ground of appeal did not involve a question of law, the applicant required leave to appeal under the principles established in Rasic v R [2009] NSWCCA 202. The Court granted leave but ultimately dismissed the appeal.

Hoeben CJ at CL examined the inconsistencies the applicant identified in the complainant's evidence. These included discrepancies about how long the adults were absent, whether it was day or night when the offence occurred, the basis for believing it was a Tuesday, details about which relatives were pregnant at the time, and the complainant's level of confidence about the television program she was watching. His Honour found that these were inconsistencies in peripheral matters and that no meaningful challenge had been made to the complainant's account of the offending itself.

Applying the test in SKA v The Queen [2011] HCA 13, the Court emphasised the significant advantage held by the jury, who saw and heard the witnesses firsthand. The Court noted that assessing the complainant's responses during cross-examination, including how she understood questions and her level of fatigue, was a task the jury was far better placed to perform than the appellate court. Those inconsistencies that existed were readily explicable as the kind of inaccuracies that do not go to the truthfulness and reliability of a witness on the central facts.

All three judges agreed that the matters raised, whether considered individually or collectively, did not lead to the conclusion that the verdict was unreasonable or unsupportable. It remained open to the jury to find the applicant guilty beyond reasonable doubt.

Orders Made

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

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that inconsistencies in a complainant's evidence about peripheral or background details do not necessarily render a verdict unreasonable, particularly where the core account of the offending remains intact.
  • A conviction appeal on the ground that a verdict is unreasonable requires the applicant to do more than show evidence that might have caused the jury to harbour doubt; the test is whether it was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence.
  • Where credibility and reliability are central, appellate courts give considerable weight to the jury's advantage in observing witnesses directly, including nuances such as comprehension of questions and demeanour under cross-examination.
  • An appeal ground asserting an unreasonable verdict does not raise a question of law, and the applicant therefore requires leave to appeal under Rasic v R [2009] NSWCCA 202.
  • No error was established in the jury's assessment of a child complainant who gave evidence about events that occurred approximately eight years before trial, despite some inconsistencies between her diary, police interview, and trial testimony.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- R v ND [2016] NSWCCA 103
- Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202
- SKA v Regina [2012] NSWCCA 205
- SKA v The Queen [2011] HCA 13; 243 CLR 400