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Court of Criminal Appeal 21 February 2018

GD v R

[2018] NSWCCA 18

Sexual offences
CRIME APPEAL AGAINST CONVICTION RELEVANCE OF DELAY IN COMPLAINT

Citation: GD v R [2018] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 21 February 2018
Judge(s): Macfarlan JA; Hoeben CJ at CL; Garling J

Background

The applicant, GD, was tried in the District Court in March 2017 on four charges arising from alleged conduct against his daughter. The first three counts charged indecent assault committed in the presence of a person under 10 years of age, under s 61M(2) of the Crimes Act 1900 (NSW). The fourth count charged sexual intercourse with a person under 10 years of age, under s 66A of the same Act. The alleged offending occurred between 2005 and late 2007, when the complainant was aged between seven and ten.

The complainant described a pattern of conduct beginning at the family's first home and continuing after the family relocated. Her account of Count 4 concerned a single incident in winter 2007, when she alleged the applicant penetrated her with his finger. The applicant gave evidence denying any misconduct.

The jury acquitted the applicant on the three indecent assault counts but convicted him on Count 4. He sought leave to appeal, arguing that the guilty verdict was unreasonable and could not be supported by the evidence, particularly when considered alongside the acquittals on the related counts.

  • Whether the jury's verdict of guilty on Count 4 was unreasonable or unsupported by the evidence, having regard to the acquittals on Counts 1 to 3 and the totality of the evidence at trial.
  • Whether leave to appeal should be granted under s 5 of the Criminal Appeal Act 1912 (NSW), given that the ground did not involve a question of law alone.

Decision

Macfarlan JA granted leave to appeal and allowed it, with Hoeben CJ at CL and Garling J each independently agreeing. The court applied the established test: each judge was required to make an independent assessment of the whole of the evidence and determine whether a reasonable jury, properly instructed, could have been satisfied of guilt beyond reasonable doubt.

Macfarlan JA identified several features of the evidence that caused concern. The complainant's evidence about the events constituting Count 4 rested significantly on contextual details, including a change in bedding from light to dark purple, said to mark the transition to a "wintry" setting. His Honour found aspects of the evidence difficult to accept, particularly the complainant's account of emails she sent in 2007 and her explanations for the delay in making complaints. While acknowledging the complainant's young age at the time of both the alleged events and the police interviews, including that she was only 10 when the most significant interview took place, Macfarlan JA concluded the Crown had not proved its case on Count 4 beyond reasonable doubt.

Hoeben CJ at CL confirmed that his own independent assessment of the trial proceedings left him with a reasonable doubt as to guilt on Count 4. He added that this doubt was not one that could be attributed to the jury's advantage of having seen and heard the evidence given in person.

Garling J, also conducting an independent review, stated that even setting aside the issue of the complainant's delay in complaining, the complainant's evidence about the events in Count 4 was "quite unsatisfactory." In particular, her evidence about the terms of emails she had sent in 2007 was unpersuasive, and that deficiency was not one that could be explained by the jury's opportunity to observe her demeanour. All three judges agreed that the conviction could not stand.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction on Count 4 quashed.
  • Verdict and judgment of acquittal entered on Count 4.
  • Applicant released from custody forthwith.

Key Takeaways

  • Each judge on the Court of Criminal Appeal is required to conduct an independent assessment of all trial evidence when the ground of appeal is that a verdict is unreasonable or unsupported by the evidence.
  • A verdict of guilty following acquittals on closely related counts can, depending on the evidence, raise a basis for finding the conviction unreasonable, particularly where the same body of evidence underpins all counts.
  • Delay in complaint is a relevant consideration when assessing the reasonableness of a verdict, though courts must weigh this alongside the complainant's age at the time of the alleged events and at the time of police interviews.
  • Where weaknesses in evidence cannot be attributed to the jury's advantage of observing witness demeanour, an appellate court is not precluded from finding that a reasonable doubt exists notwithstanding the jury's verdict.
  • The Court of Criminal Appeal confirmed its power under s 5 of the Criminal Appeal Act 1912 (NSW) to quash a conviction and direct a verdict of acquittal where the guilty verdict is found to be unreasonable.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 294(2)(c)
- Evidence Act 1995 (NSW), s 66(1)

Cases:
- Dickson v R [2017] NSWCCA 78
- Jarrett v The Queen (2014) 86 NSWLR 623; [2014] NSWCCA 140
- Kilby v The Queen (1973) 129 CLR 490; [1973] HCA 30
- M v The Queen (1994) 181 CLR; [1994] HCA 63
- Nguyen v R [2017] NSWCCA 145
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Romolo v R [2018] NSWCCA 3
- Suresh v The Queen [1998] HCA 23; 72 ALJR 769
- The Queen v Lillyman [1896] 2 QB 167