Citation: AZ v R [2018] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 14 December 2018
Judges: White JA; Walton and Wilson JJ
Background
The applicant (identified by pseudonym) was convicted by a jury on ten of eleven counts of child sexual assault and indecency involving a young complainant, referred to in the judgment as "Thomas", and his younger brother "Christopher". The applicant had been a close friend of the complainants' mother, often caring for the children while she worked, sometimes overnight. He was sentenced to an aggregate term of 13 years' imprisonment with a non-parole period of nine years.
The Crown's case rested almost entirely on Thomas's evidence, which was presented partly through four video-recorded police interviews tendered as his evidence-in-chief under the pre-recorded evidence provisions of the Criminal Procedure Act 1986 (NSW). There was no forensic corroboration, and Christopher, who was only four years old at the time of the alleged offences, was not called as a witness.
Notably, at trial the Crown Prosecutor conceded in closing address that the jury should not convict on certain counts, yet the jury returned guilty verdicts on all ten counts it ultimately convicted on. The applicant sought leave to appeal, arguing that the verdicts were unreasonable and not supported by the evidence.
Legal Issues
- Whether the verdicts on the ten counts were unreasonable or could not be supported having regard to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
- Whether the Court of Criminal Appeal should view the video-recorded police interviews as part of its review of the whole of the evidence.
- What weight, if any, the Crown's concessions at trial should carry in the appellate assessment of the evidence.
- How the principle in M v The Queen (1994) 181 CLR 487 applies where the evidence in chief was largely delivered by video recording, limiting the jury's usual advantage of observing a witness give live oral testimony.
Decision
The Court granted leave to appeal but dismissed the appeal. Applying the test from M v The Queen, the Court asked whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on each count. The Court confirmed that this requires full regard to the jury's constitutional role as the primary fact-finder and the advantages the jury enjoys from seeing and hearing witnesses, while also acknowledging that a doubt experienced by an appellate court will ordinarily be one a jury should also have experienced.
The Court addressed the procedural question of whether appellate judges should personally view the video-recorded interviews. Because Thomas's evidence-in-chief was given largely through those recordings, the Court considered it appropriate to review them as part of examining the whole of the evidence. This was consistent with the approach taken in comparable cases such as SKA v The Queen (2011) 243 CLR 400.
On the Crown's trial concessions, the Court found they were a significant feature requiring careful scrutiny of the complainant's evidence, but were not determinative. The jury was not bound by counsel's submissions, and the jury had been directed that closing addresses were not evidence. The Crown did not maintain those concessions before the Court of Criminal Appeal, instead arguing strongly for the reliability of the complainant's evidence on the counts resulting in guilty verdicts.
Having carefully reviewed the trial transcript and the recorded evidence in their entirety, the Court concluded that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on the ten counts for which he was convicted. No significant possibility of a wrongful conviction was established, and the appeal was dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that where a complainant's evidence-in-chief is delivered substantially by video recording under the pre-recorded evidence scheme, it is appropriate for the appellate court to view those recordings as part of its review of the whole of the evidence.
- Concessions made by a Crown Prosecutor in closing address at trial are a factor requiring careful appellate scrutiny of the evidence, but they are not binding on the jury and are not determinative on appeal.
- The M v The Queen standard remains the governing test: an appeal court must determine whether it was open to the jury to be satisfied beyond reasonable doubt, paying full regard to the jury's constitutional role and its advantage of having seen and heard the witnesses.
- Where conflicting evidence exists on a count, a Crown Prosecutor may highlight that conflict in closing address, but the Court indicated that prosecutors should avoid straying into the jury's function of assessing the reliability of disputed evidence.
- Sufficient evidence existed in the complainant's recorded and live testimony, taken as a whole, to support the jury's verdicts notwithstanding the absence of corroboration and the concessions made at trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O, 66A, 66B
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 306S
- Evidence Act 1995 (NSW), ss 66, 108
Cases:
- M v The Queen (1994) 181 CLR 487
- The Queen v Baden-Clay (2016) 258 CLR 308
- SKA v The Queen (2011) 243 CLR 400
- GAX v The Queen (2017) 91 ALJR 698
- MFA v The Queen (2002) 213 CLR 606
- R v Markuleski (2001) 52 NSWLR 82
- R v Kneebone (1999) 47 NSWLR 450
- Abbott (a pseudonym) v R [2017] NSWCCA 149
- Cabot (a pseudonym) v R [2018] NSWCA 265
- R v Prasad (1979) 2 A Crim R 45
- R v Apostilides (1984) 154 CLR 563
- Hocking v Bell (1945) 71 CLR 430
- Jones v The Queen (1997) 191 CLR 439
- Alqudsi v The Queen (2016) 90 ALJR 211