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Court of Criminal Appeal 14 June 2019

Hogan (a pseudonym) v R

[2019] NSWCCA 125

Sexual offences
CRIME CONVICTION APPEAL EXAMINED AT COMMITTAL PROCEEDINGS WHERE CONTEMPORANEOUS MATERIAL LOST CONVICTION APPEAL MIXED VERDICTS

Citation: Hogan (a pseudonym) v R [2019] NSWCCA 125
Court: Court of Criminal Appeal, New South Wales
Date: 14 June 2019
Judge(s): Simpson AJA (principal judgment); Johnson J and N Adams J (agreeing)

Background

The appellant faced four charges of child sexual assault under the Crimes Act 1900 (NSW), relating to offences allegedly committed against his daughter between 1989 and 1992, when she was aged between 11 and 14. The complainant first reported the offending in 1992, and the appellant was interviewed by police and cross-examined at committal proceedings. Before trial, the complainant withdrew her complaints and the Director of Public Prosecutions declined to proceed.

In 2014, the complainant reactivated her complaints. By that point, some material from the original 1992 prosecution had been lost, including records of the appellant's police interview and his medical records. Other material remained available, including the complainant's statements and the transcript of the 1992 committal proceedings.

At trial in the District Court, the appellant was acquitted on Counts 2 and 4 but convicted on Counts 1 and 3. He was sentenced to an aggregate term of five years' imprisonment with a non-parole period of three years. He appealed against his convictions on two grounds.

  • Whether the trial judge erred in law by refusing to grant a permanent stay of proceedings, given that potentially exculpatory material from 1992 had been lost
  • Whether the convictions on Counts 1 and 3 were unreasonable or unsupported by the evidence, particularly in light of the acquittals on Counts 2 and 4 (sometimes called "mixed verdicts")

Decision

Ground 1: Permanent Stay

The Court of Criminal Appeal confirmed that a permanent stay requires a "fundamental defect" going to the root of the trial, such that nothing the court can do would relieve the unfair consequences. A permanent stay is a discretionary decision, reviewable only if the appellant can identify a specific error in the trial judge's exercise of that discretion. The appellant did not identify any such error; instead, he simply re-argued the same submissions made to the trial judge.

The Court noted that the appellant was in a comparatively advantageous position. He had the benefit of a near-contemporaneous police interview denial, and the transcript of the 1992 committal proceedings remained available, allowing cross-examination of Crown witnesses to be put to use at trial. A witness who would have given evidence against him in 1992 was no longer available to do so. The Court also observed that procedures and directions now routinely accommodate the disadvantage arising from delay in historical sexual assault cases.

Ground 2: Unreasonable Verdict

The Court confirmed the applicable test from M v The Queen (1994): the question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt, while paying full regard to the jury's primary fact-finding role and its advantage of seeing and hearing witnesses. The Court also clarified that in mixed verdict cases, the proper enquiry is whether the acquittals can be explained, not whether the convictions can be explained.

The acquittal on Count 2 was explicable: that count had been amended mid-trial to expand the alleged date range and the complainant's age range. That amendment gave the jury a rational basis to doubt the accuracy of the complainant's evidence on that specific incident without casting doubt on the other counts. The acquittal on Count 4 arose because the trial judge directed the verdict after the Crown's evidence was found insufficient. The Court was satisfied that it remained open to the jury to convict on Counts 1 and 3, and that the convictions were not unreasonable.

Orders Made

  • Leave granted to the appellant to appeal against the convictions on ground 2
  • Appeal dismissed

Key Takeaways

  • A permanent stay of criminal proceedings will not be granted merely because potentially useful material has been lost; the appellant must identify a fundamental defect going to the root of a fair trial, and any appeal must identify a specific error in the trial judge's discretionary refusal.
  • No error was established in the trial judge's refusal of a stay where the appellant retained access to a contemporaneous denial and the transcript of committal cross-examination, even though the original police interview recording and some medical records had been lost.
  • In mixed verdict appeals, the Court of Criminal Appeal confirmed that the analytical focus falls on whether the acquittals can be explained on a rational basis, not on whether independent justification exists for the convictions.
  • An amendment to a count mid-trial that expands the alleged date range can provide a rational explanation for a jury acquitting on that count while convicting on others, preserving the validity of those other convictions.
  • The Court of Criminal Appeal reiterated that delay in the prosecution of historical child sexual assault offences does not, of itself, amount to a basis for a permanent stay, given that trial procedures and directions exist to address the disadvantages arising from delay.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 66D, 404A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), s 31

Cases
- Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jafary v R [2018] NSWCCA 243
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Murray (1987) 11 NSWLR 12
- R v RD [2016] NSWCCA 84
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151