AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 3 May 2017

Thornton v R

[2017] NSWCCA 86

Sexual offences
CRIMINAL LAW CONVICTION APPEAL TRIAL HEARD BY JUDGE ALONE APPEAL DISMISSED

Citation: Thornton v R [2017] NSWCCA 86
Court: Court of Criminal Appeal, NSW
Date: 3 May 2017
Judge(s): Ward JA at [1]; Campbell J at [224]; N Adams J at [225]

Background

The appellant was convicted after a judge alone trial in the District Court of two counts of aggravated indecency on a child under 16, contrary to s 61M(2) of the Crimes Act 1900 (NSW). He was acquitted on a third count of attempted sexual intercourse with a person under 10. The complainant was the young daughter of a woman with whom the appellant had maintained a long-term on-and-off sexual relationship, and whom the appellant believed to be his own biological daughter.

The complainant's mother had also been in a relationship with another man (P), who had died in 2012. Notably, the appellant, the mother, and P had engaged in a sexual relationship together for a period. Tendency evidence was admitted at trial, relating to the appellant's earlier conviction for sexually assaulting his own daughter, who was approximately the same age as the complainant at the time the alleged offences occurred.

The appellant was sentenced to a total of three years' imprisonment with a non-parole period of 12 months. He appealed against his convictions on three grounds.

  • Whether the trial judge failed to consider all of the evidence or failed to properly consider the defence case
  • Whether the trial judge gave adequate reasons for the verdicts
  • Whether the verdicts were unreasonable and could not be supported having regard to the evidence, including whether the possibility that the complainant had conflated the identity of the appellant with that of her mother's former partner (against whom she had made very similar allegations) ought to have given rise to a reasonable doubt

Decision

The Court of Criminal Appeal dismissed all three grounds of appeal.

On the first and second grounds, the Court found that the trial judge had engaged adequately with the defence case and provided sufficient reasons for the verdicts. The obligation to give reasons does not require a trial judge to address every argument or piece of evidence in exhaustive detail; it requires reasons adequate to explain the basis of the findings made. The Court was satisfied that the judge's reasons met that standard.

The most substantive ground concerned the identity conflation argument: the defence contended that the complainant may have confused the appellant with P when making her allegations, given the similar nature of the complaints made against each man. The Court examined this carefully but was not persuaded. Critically, the appellant and P were not strangers to each other; they had regularly engaged in sexual activity together with the complainant's mother, which reduced the inherent improbability that both men would independently behave towards the complainant in a strikingly similar manner. Further, the complainant had not volunteered two separate but identical accounts spontaneously. The similar allegations against P emerged only during cross-examination when propositions were put to her by defence counsel.

The Court also gave weight to the tendency evidence. The appellant had pleaded guilty to sexually assaulting his own daughter at roughly the same time as the alleged offences against the complainant. He also believed the complainant to be his biological daughter. The tendency relied upon was a sexual interest in young girls aged six to eight whom the appellant believed to be biologically related to him. The Court, applying Filippou v The Queen and M v The Queen, noted that the trial judge's advantage in seeing and hearing the complainant's evidence in both her JIRT interview and cross-examination could not be underestimated. The trial judge had described the complainant as honest, accurate, reliable, and compelling. No error in the verdict was established.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge conducting a judge alone trial is not required to address every item of evidence or every defence argument in detail, provided the reasons adequately explain the basis for the verdicts reached.

  • Where a complainant's similar allegations against a second person emerge only in cross-examination in response to propositions put by defence counsel, rather than as a spontaneous parallel account, that circumstance carries less weight as a basis for identity conflation or reasonable doubt.

  • The close social and sexual connection between the appellant and the other man against whom similar allegations were made was treated as diminishing the improbability that both men would independently offend in a strikingly similar manner. The argument would have carried more weight, the Court noted, had the two men been strangers.

  • Tendency evidence concerning the appellant's sexual offending against another child of similar age, whom he also believed to be his biological daughter, was treated as providing further support for the Crown case at trial.

  • Appellate courts applying Filippou v The Queen and M v The Queen will accord significant weight to a trial judge's assessment of a complainant's credibility based on the experience of seeing and hearing that evidence directly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66B
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 133(2)

Cases
- Atai v R [2014] NSWCCA 210
- Cutajar v R [2016] NSWCCA 222
- Director of Public Prosecutions (NSW) v Knight (2006) 162 A Crim R 555; [2006] NSWSC 646
- Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Parton v R [2016] NSWCCA 291
- R v Prasad (1979) 23 SASR 161
- R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293
- Siafakas v R [2016] NSWCCA 100
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- W v R [2014] NSWCCA 110