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Court of Criminal Appeal 4 May 2018

CJW v R

[2018] NSWCCA 80

Sexual offencesAssault & violence
CRIMINAL LAW CONVICTION APPEAL

Citation: CJW v R [2018] NSWCCA 80
Court: NSW Court of Criminal Appeal
Date: 4 May 2018
Judges: Hoeben CJ at CL; Fullerton J; Davies J

Background

The applicant was convicted by a jury of one count of assault with an act of indecency on a child under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The complainant was the applicant's step-granddaughter, who was approximately eight or nine years old at the time of the offending. The offence on the indictment (count 5) concerned an incident in the applicant's bedroom in which he digitally touched the complainant's vagina.

The indictment specified a timeframe for the offending between 3 May 2008 and 7 May 2009. In the same trial, the applicant was acquitted of two other counts; a further three counts resulted in a hung jury, and he was subsequently acquitted of those at a retrial. He was sentenced on count 5 to imprisonment with a non-parole period of two years.

The applicant sought leave to appeal his conviction on the ground that the jury's verdict was unreasonable and could not be supported having regard to the evidence.

  • Whether the jury's verdict on count 5 was unreasonable and could not be supported having regard to the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400
  • Whether the offending in count 5 could only have occurred within a narrow seven-week window, being the period between the complainant's ninth birthday and the date the applicant moved away on 3 April 2009
  • Whether the date or timeframe specified in the indictment was an essential element that the Crown was required to prove beyond reasonable doubt

Decision

The central argument on appeal was that the evidence confined the possible timeframe for count 5 to approximately seven weeks, and that within that window there was insufficient opportunity for the offending to have occurred. The applicant pointed to the complainant's imprecision about dates and argued this made the verdict unreasonable.

Hoeben CJ at CL rejected the submission that the timeframe was as narrow as the applicant contended. His Honour found the evidence did not support a firm commencement date as early as the complainant's ninth birthday. The most the evidence established as a certain starting point was that the relevant offending occurred during the year following the death of the complainant's grandmother in May 2008, meaning the period available to the jury was considerably longer than seven weeks.

His Honour further held that even accepting the narrower seven-week period for the sake of argument, it remained open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The complainant's account, including a particularly compelling volunteered statement in her police interview, was largely free of discrepancies apart from her imprecision as to dates. Her evidence was also corroborated to some extent by another witness. The jury was best placed to assess the complainant's credibility, and no other basis for finding the verdict unreasonable had been advanced.

Fullerton J and Davies J both agreed, each conducting an independent review of the evidence and reaching the same conclusion. Leave to appeal was granted but the appeal was dismissed unanimously.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test for an unreasonable verdict requires the appellate court to examine the whole of the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt.
  • A complainant's imprecision as to dates does not, by itself, render a verdict unreasonable, particularly where the remainder of the complainant's evidence is consistent and largely free of discrepancies.
  • The Court rejected the proposition that the timeframe stated in the indictment was so narrow as to foreclose the possibility of the offending occurring within it, noting that the evidence supported a considerably broader period than the applicant asserted.
  • Where a complainant's evidence is compelling, internally consistent, and partly corroborated, the jury's assessment of credibility carries significant weight in an unreasonable verdict appeal.
  • No error was established in treating the upper end of the indictment period (the applicant's departure from the area) as a firm date while not treating an earlier internal date as an equally firm commencement point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)

Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Cawthray v R [2013] NSWCCA 105
- Hawi v R [2014] NSWCCA 83
- R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34
- Stringer v R [2000] NSWCCA 293; 116 A Crim R 198