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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
Date: 3 May 2017
Judges: Ward JA (principal judgment); Campbell J; N Adams J (both agreeing)

Background

The appellant was tried by judge alone in the District Court on charges relating to sexual offending against a child, M, who was his first cousin's daughter. The appellant believed himself to be M's biological father and had maintained a long-term sexual relationship with M's mother, N. The appellant, N, and N's partner P had also engaged in a sexual relationship together at the relevant time.

The trial judge found the appellant guilty of two counts of aggravated indecency under s 61M(2) of the Crimes Act 1900 (NSW) and not guilty of one count of attempted sexual intercourse with a person under 10. M was aged between approximately five and seven years old during the period relevant to the charges.

The appellant appealed his convictions on three grounds: that the trial judge failed to properly consider the defence case; that the reasons for verdict were inadequate; and that the verdicts were unreasonable and unsupported by the evidence. A central feature of the defence case was that M had conflated or comingled the appellant in her mind with P, against whom she made almost identical allegations, and that the appellant lacked opportunity to commit the offences during the indictment period.

Legal Issues

  • Whether the trial judge failed to consider, or properly consider, the defence case
  • Whether the trial judge gave adequate reasons for the verdicts, as required under s 133(2) of the Criminal Procedure Act 1986 (NSW)
  • Whether the verdicts were unreasonable or unsupported by the evidence, having particular regard to: (a) whether the appellant had the opportunity to commit the offences within the indictment period; and (b) whether the reasonable possibility that M had conflated the appellant with P should have given rise to a reasonable doubt

Decision

Grounds 1 and 2: Consideration of the defence case and adequacy of reasons

The Court found no basis for the complaint that the trial judge excluded or failed to consider the defence evidence (at [128]). The trial judge expressly addressed the conflation argument and resolved it by reference to the evidence, including M's ability to differentiate between the two men (at [114]-[115]). While some findings, such as the presence of M's brother D at the time of the offences, were stated as conclusions without full reasoning, this did not render the reasons overall inadequate (at [165]). The Court confirmed that the obligation to give reasons does not require a judge to set out every item of evidence or to exhaustively rehearse competing accounts where credibility is the central issue, citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at [157]-[158]).

The Court distinguished Douglass v The Queen [2012] HCA 34, where the High Court found error in a judge treating a sexual assault trial as purely "word against word." Here, the trial judge did not fall into that error. Instead, her Honour considered M's evidence in light of the whole of the evidence, and gave reasons for rejecting the conflation argument rather than simply preferring one account over another (at [165]).

Ground 3: Unreasonable verdict

On the opportunity issue, the Court accepted that N was an unreliable witness as to dates, partly due to drug use and confusion about stages of the criminal justice process. Taking the evidence as a whole, including W's account that N stayed with her in Minto for "a couple of months," the available opportunity period was not necessarily as confined as the appellant contended (at [213]). The Court also noted that the occurrence of the offences within the precise indictment period was not properly characterised as an element of the offence in the circumstances of this case (at [214]).

On the conflation argument, the Court accepted there was some force in the submission that it was unlikely two men would independently abuse M in almost identical ways (at [220]). However, the Court considered that this concern was substantially reduced by the fact that P and the appellant had regularly engaged in sexual activity together and were both familiar to M from an early age (at [220], [222]). Critically, M consistently identified the appellant, and not P, as the person who showed her pornographic videos, a distinction she maintained under cross-examination (at [218]-[219]). The Court found it implausible that M, who lived with P and knew the appellant separately, would be unable to distinguish between them (at [216]). The tendency evidence, relating to the appellant's guilty plea for sexually assaulting his daughter H in similar circumstances, added further support to the Crown case (at [203], [222]). The trial judge's advantage in seeing and hearing M's evidence could not be underestimated, and the Court was not persuaded that the trial judge must have entertained a reasonable doubt (at [210], [222]).

Orders Made

  • Leave to appeal granted (insofar as required for Ground 3)
  • Appeal dismissed

Key Takeaways

  • In a judge-alone trial, the obligation to give reasons under s 133(2) of the Criminal Procedure Act 1986 (NSW) requires the judge to expose the reasoning process and explain the basis for findings of fact, but does not require exhaustive recitation of all evidence or detailed analysis of every item the defence relies upon, particularly where credibility is the central issue (at [163]-[165]).

  • A conviction will not be disturbed on unreasonableness grounds merely because an appellate court experiences some discomfort with a finding; it is only where a doubt experienced by the appellate court, making full allowance for the trial judge's advantage, is one the trial judge ought also to have experienced that intervention is warranted, following M v The Queen (1994) 181 CLR 487 (at [205], [222]).

  • Where a complainant makes substantially similar allegations against two different known individuals, an argument that the complainant conflated the two carries less weight when the complainant lived with one accused, was familiar with both, and consistently identified a differentiating feature of the conduct attributed to each (at [216], [218]-[219]).

  • Tendency evidence of prior sexual offending against a child of similar age, admitted following a guilty plea, can provide significant additional support for a complainant's account where the tendency is closely analogous to the charged conduct (at [203], [231]).

  • Where a complainant can describe only one specific incident in detail but also makes general statements about repeated conduct, this is not necessarily inconsistent or insufficient; courts have recognised that child complainants frequently give detailed accounts of only one representative incident even where offending was persistent (at [177]-[180]).

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