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Court of Criminal Appeal 3 December 2018

Ambury v R

[2018] NSWCCA 275

Sexual offences
CRIME APPEAL AGAINST CONVICTION APPELLANT SELF REPRESENTED APPEAL DISMISSED

Citation: Ambury v R [2018] NSWCCA 275
Court: Court of Criminal Appeal, New South Wales
Date: 3 December 2018
Judge(s): Macfarlan JA (principal judgment, [1]); Johnson J ([79]); N Adams J ([80])

Background

The appellant was convicted after a judge alone trial in the District Court of three offences under s 91D(1)(b) of the Crimes Act 1900 (NSW): participating as a client with a child under 18 years in an act of prostitution. The trial judge had directed an acquittal on a fourth count. The appellant had served his sentence before the appeal was heard.

The charges arose from events in May and June 2012 involving two complainants, EH (aged 16) and OK (aged 15), who had been spending time in Kings Cross and told adults they were 18. The complainants gave evidence that the appellant had repeatedly propositioned them for paid sex, that they ultimately agreed to attend his apartment for that purpose at $250 each, and that he paid them $100 each on the first occasion and $150 to EH on a subsequent occasion.

The appellant did not deny that sexual intercourse had occurred or that the complainants were under 18. His sole defence, both at trial and on appeal, was that the payments he made were not for sex and that the Crown had therefore failed to prove an "act of child prostitution" as defined in the legislation.

  • Whether the convictions were unreasonable or unsupported by the evidence (the principal substantive ground)
  • Whether the trial judge erred in her assessment of the complainants' credibility, including her treatment of their admitted lies
  • Whether various procedural and evidentiary rulings at trial were erroneous
  • Whether the trial judge misstated the appellant's interview evidence when summarising his defence
  • Whether a number of further grounds raised by the self-represented appellant (24 in total) disclosed any error warranting intervention

Decision

Macfarlan JA, with whom Johnson J and N Adams J agreed, dismissed all grounds of appeal. The Court granted leave to appeal to the extent required (covering grounds that were not questions of law alone) but found no basis to disturb the convictions.

On the primary ground, that the verdicts were unreasonable and could not be supported by the evidence, all three judges independently assessed the trial evidence and were not left with any reasonable doubt as to the correctness of the trial judge's verdicts. The Court found no flaw in the trial judge's reasoning or conclusions on the central factual issue of whether the payments were made for sex.

The trial judge had given herself a "Murray Direction," requiring her to scrutinise the complainants' evidence with great care given that the Crown case rested almost entirely on that evidence. She acknowledged the admitted lies told by EH and OK but explained why the existence of those lies did not compel rejection of the rest of their evidence. The Court found this approach was open to her and disclosed no error.

N Adams J noted that the trial judge appeared to have made a minor misstatement in describing the appellant's records of interview, characterising his denial as one of payment for sex when in fact he had initially denied sexual intercourse altogether. However, N Adams J concluded this was a minor slip that caused no miscarriage of justice, because the trial judge's reasons as a whole made clear she was aware of the appellant's actual interview position.

Orders Made

  • Leave to appeal granted to the extent required
  • Appeal dismissed

Key Takeaways

  • A conviction under s 91D(1)(b) of the Crimes Act 1900 (NSW) requires proof that the defendant participated as a client in an act of child prostitution, meaning the sexual service must have been provided for the payment of money or another material thing, as defined in s 91C.
  • In dismissing the appeal, all three judges of the Court of Criminal Appeal independently assessed the trial evidence on the unreasonable verdict grounds, as is required where that ground is raised, and each reached the same conclusion that no reasonable doubt arose.
  • A trial judge in a judge alone trial may apply a "Murray Direction," scrutinising complainant evidence with particular care, while still accepting that evidence as truthful; the existence of admitted lies by a witness does not compel rejection of the entirety of that witness's account.
  • No miscarriage of justice arose from a minor misstatement in the trial judge's summary of the appellant's interview answers, where the reasons read as a whole demonstrated awareness of the appellant's actual position.
  • Many of the grounds raised by the self-represented appellant on appeal had not been raised before the trial judge, and several challenged factual findings that were plainly open to the trial judge on the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91C, 91D(1)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), ss 20, 29, 293, 306I
- Children and Young Persons (Care and Protection) Act 1998, s 43
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 123
- Criminal Appeal Rules, r 4

Cases
- R v Murray (1987) 11 NSWLR 12 (source of the "Murray Direction" applied at trial)
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Bell v Regina [2017] NSWCCA 207
- Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
- RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489
- R v Abusafiah (1991) 24 NSWLR 531
- Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253