Citation: Adams v R [2018] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 20 December 2018
Judge(s): Hoeben CJ at CL, Campbell J, N Adams J
Background
The appellant worked as a casual carer at a crisis centre for high-needs young people. One night in January 2013, while on shift, he was alleged to have committed a series of sexual offences against a 14-year-old resident of the centre who had a mild to moderate intellectual disability.
The appellant faced four counts: three counts of aggravated indecent assault and one count of aggravated sexual assault. The jury acquitted him on Counts 2, 3 and 4 but convicted him on Count 1, which involved touching the complainant's legs and breasts in the communal lounge room. He was sentenced to a total of two years and six months imprisonment with a non-parole period of one year and seven months.
The appellant sought leave to appeal against both conviction and sentence, raising multiple grounds including inconsistent verdicts, problems with the DNA evidence and related jury directions, and the trial judge's exclusion of evidence that the complainant had made other false sexual complaints.
Legal Issues
- Whether the guilty verdict on Count 1 was unreasonable or could not be supported having regard to the evidence, including because it was irrationally inconsistent with the not-guilty verdicts on Counts 2, 3 and 4.
- Whether significant errors at trial, including in the handling of DNA evidence and expert neuropsychological evidence, deprived the appellant of a fair trial.
- Whether the trial judge erred in excluding evidence of eight prior alleged false sexual complaints made by the complainant, pursuant to s 293 of the Criminal Procedure Act 1986 (NSW).
Decision
All three judges agreed the conviction appeal should be allowed and a verdict of acquittal entered on Count 1.
On Ground 1, the Court found the verdict on Count 1 was inconsistent with the acquittals on the remaining counts. Because all counts concerned the same complainant in the same incident, there was no rational basis for the jury to have been satisfied beyond reasonable doubt on Count 1 while acquitting on Counts 2, 3 and 4. N Adams J reasoned that the acquittals could only be explained by the jury harbouring doubts about the complainant's credibility, which meant the jury should equally have entertained a reasonable doubt on Count 1. Hoeben CJ at CL separately found that the complainant's evidence contained so many contradictions that a real doubt arose as to whether the conduct in Count 1 occurred at all.
On Ground 2, the Court identified problems with the trial judge's directions about the DNA evidence. The DNA evidence had been significant to Count 1, and the absence of adequate direction about its limited significance was a material gap. Hoeben CJ at CL noted that, had the appellant not succeeded on Ground 1, this deficiency would independently have warranted a retrial.
On Ground 3, the Court found the trial judge erred in excluding the false complaint evidence under s 293(3) of the Criminal Procedure Act. The evidence concerned eight occasions over approximately ten months, straddling the date of the alleged offending, on which the complainant had made complaints treated by police and other authorities as false. The Court held that these instances, viewed collectively rather than individually, could be characterised as a connected set of circumstances forming part of the background to the alleged offence, bringing them within the exception in s 293(4). The error was to assess each complaint separately against the charged incident rather than to consider the total picture. Hoeben CJ at CL observed that had Ground 1 not succeeded, the appellant would have been entitled to a retrial on this ground alone.
Orders Made
- Leave to appeal against conviction granted.
- Appeal allowed.
- Conviction and sentence on Count 1 quashed.
- Verdict of acquittal on Count 1 entered.
Key Takeaways
- The Court of Criminal Appeal confirmed that where jury verdicts on closely connected counts arising from the same incident are irrationally inconsistent, this can render a guilty verdict unreasonable and unsupported by the evidence, warranting an acquittal rather than merely a retrial.
- Inadequate jury directions on the significance of DNA evidence can constitute a serious trial error, particularly where that evidence appears central to the jury's reasoning on a particular count.
- Under s 293 of the Criminal Procedure Act 1986 (NSW), a trial judge assessing evidence of prior false sexual complaints must consider the connected set of circumstances as a whole, not evaluate each individual complaint in isolation against the charged offence.
- A series of allegedly false complaints made both before and shortly after the charged offending can, taken together, satisfy the s 293(4) exception as part of the connected circumstances forming the background to the alleged offence.
- Even if evidence clears the s 293 admissibility threshold, it remains subject to the general provisions of the Evidence Act 1995 (NSW), meaning further rulings on probative value, potential prejudice, and the manner of adducing the evidence would still be required at trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 66C
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW), ss 13, 56, 102, 106, 108C, 137, 192A
Cases
- ARS v R [2011] NSWCCA 266
- Burton v R (2013) 237 A Crim R 238; [2013] NSWCCA 335
- Clark v R (2008) 185 A Crim R 1; [2008] NSWCCA 122
- Doyle v R; R v Doyle [2014] NSWCCA 4
- Fitzgerald v The Queen [2014] HCA 28
- GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150
- HG v The Queen (1999) 197 CLR 414
- M v The Queen (1994) 181 CLR 484
- M v R (1993) 67 A Crim R 549
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- Palmer v R (1998) 193 CLR 1
- Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74