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10
Court of Criminal Appeal 28 November 2018

Cabot (a pseudonym) v R

[2018] NSWCCA 265

Sexual offences
APPEAL APPEAL AGAINST CONVICTION APPEAL APPEAL AGAINST CONVICTION ACQUITTALS ON OTHER COUNTS WHETHER GUILTY VERDICTS UNREASONABLE

Citation: Cabot (a pseudonym) v R [2018] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 28 November 2018
Judges: Leeming JA (with McCallum J and Bellew J agreeing)

Background

The applicant (referred to by the pseudonym "Cabot" under a statutory suppression obligation) stood trial in the District Court on an 11-count indictment. Nine counts alleged acts of indecency on a child under 16 years, and two counts alleged sexual intercourse with a child under 10. The complainant was the applicant's stepson, who was aged between five and eight at the time of the alleged conduct.

At trial in August and September 2017, the jury returned not guilty verdicts on three counts, guilty verdicts on two counts (counts 3 and 5), and was unable to reach verdicts on the remaining counts. The two guilty verdicts related to acts of indecency: one involving the touching of the child's penis, and the other involving the applicant placing the child's hand on his own penis. No conviction was formally entered following the verdicts, as sentencing was deferred pending retrial on the undetermined counts.

The applicant sought leave to appeal against the guilty verdicts, challenging them principally on the basis that the child's evidence was so inconsistent and unreliable that no reasonable jury could have been satisfied of guilt beyond reasonable doubt.

  • Whether a guilty verdict on which no conviction has yet been formally entered is amenable to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether the guilty verdicts on counts 3 and 5 were unreasonable, applying the test in M v The Queen (1994) 181 CLR 487, given inconsistencies and gaps in the child's evidence.
  • Whether a direction to the jury on unanimity as to the factual basis for the verdicts (referred to as a "Markuleski direction") was required, and whether the trial judge's failure to give one amounted to a miscarriage of justice.

Decision

Jurisdiction to appeal. Leeming JA first addressed whether the court had jurisdiction to hear an appeal where guilty verdicts had been returned but no conviction formally entered. His Honour concluded that the words "convicted on indictment" in s 5(1) of the Criminal Appeal Act 1912 encompass the situation where a jury returns a guilty verdict, even before formal entry of conviction. The applicant therefore had standing to bring the appeal.

Unreasonableness of the verdicts. The court acknowledged that the child's evidence contained inconsistencies, including variations across two recorded JIRT (Joint Investigation Response Team) interviews, pre-recorded evidence given months apart, and in-court cross-examination. These inconsistencies related to peripheral matters such as the time of day, the presence of a sibling in the house, and whether the child reported the conduct to his mother. Critically, however, the court found that the core account of the offending conduct remained consistent across those different accounts, and the inconsistencies were squarely placed before the jury by experienced defence counsel. Applying the standard in M v The Queen, the court was not persuaded that the verdicts were unreasonable or that no reasonable jury could have reached them.

Reliability of the child's evidence. McCallum J, in a brief observation accompanying her agreement with Leeming JA's orders, noted that the child's account carried an inherent plausibility. A young child of that age could not readily have described acts of that nature from imagination, and the child appeared to be describing experiences he did not fully understand. Her Honour regarded this as a compelling indicator of reliability, more significant than the inconsistencies in surrounding detail.

The unanimity direction. The applicant argued that the trial judge should have directed the jury that they needed to be unanimous as to which particular incident founded the offence on each count, given that evidence emerged about possible conduct both in the morning and at night. The court rejected this ground. No such direction had been sought by the experienced defence solicitor at trial, and the ground was only formulated shortly before the appeal was heard. Leeming JA found no real prospect of a miscarriage of justice and declined to grant leave to advance this ground under r 4 of the Criminal Appeal Rules. His Honour also observed, without relying on it, that seeking such a direction would have been inconsistent with the defence's central position that the evidence was too uncertain to establish any offending at all.

Orders Made

  • Extension of time for filing a notice of appeal granted, to 12 July 2018.
  • Leave to appeal granted on ground 1.
  • Leave to appeal refused on ground 1A pursuant to r 4 of the Criminal Appeal Rules.
  • Appeal dismissed.

Key Takeaways

  • A jury's guilty verdict returned on indictment falls within the meaning of "convicted on indictment" under s 5(1) of the Criminal Appeal Act 1912 (NSW), making an appeal available even before formal entry of conviction or sentencing.
  • Inconsistencies in a child complainant's evidence across multiple recorded interviews do not automatically render a guilty verdict unreasonable, particularly where the inconsistencies concern peripheral detail rather than the core conduct alleged.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the applicable test for unreasonableness under M v The Queen requires the appellate court to conclude that, having regard to all the evidence, it would have been impossible for a reasonable jury to be satisfied beyond reasonable doubt, not merely that another jury might have acquitted.
  • A failure to give a unanimity direction (of the kind discussed in R v Markuleski) will not ground appellate intervention where no such direction was sought at trial, no basis for a miscarriage of justice is demonstrated, and the omission may have aligned with trial strategy.
  • McCallum J's observation that a young child's apparent inability to fabricate the nature of the alleged conduct from imagination can serve as an independent indicator of reliability is a notable, though non-binding, comment on the assessment of child witness evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A, 578A
- Criminal Appeal Act 1912 (NSW), ss 5, 5A
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), Part 6

Cases
- M v The Queen (1994) 181 CLR 487 (unreasonableness standard)
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 (unanimity directions)
- R v Baden-Clay (2016) 258 CLR 308
- Lane v The Queen [2018] HCA 28
- NH v DPP (SA) (2016) 260 CLR 546
- Maxwell v The Queen (1996) 184 CLR 501
- MacKenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
- Griffiths v The Queen (1977) 137 CLR 293
- Obeid v R (2015) 91 NSWLR 226
- R v TK (2009) 74 NSWLR 299
- Allan v R [2017] NSWCCA 6
- Palmer v R [2018] NSWCCA 205
- McCann v R [2014] NSWCCA 79
- Jenkins v Director of Public Prosecutions [2013] NSWCA 406
- R v MAJW (2007) 171 A Crim R 407