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Court of Criminal Appeal 2 August 2019

White v R

[2019] NSWCCA 168

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER CONVICTION IS UNREASONABLE REVIEW OF EVIDENCE AT TRIAL COMPLAINANT AGED 5

Citation: White v R [2019] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 2 August 2019
Judge(s): Leeming JA; R A Hulme J; Davies J

Background

The applicant (referred to by the pseudonym "White" due to statutory suppression obligations) was tried on four counts of sexual offending against a child under the age of 10. The applicant was aged 15 at the time of the alleged offending; the complainant was aged 5 or 6. The families were long-standing friends, and the applicant was a regular visitor at the complainant's home.

The four counts alleged that the applicant had engaged in digital penetration and related conduct on three separate occasions at the complainant's home between December 2016 and February 2017. The locations differed across the counts: the complainant's bedroom (Count 1), the parents' bedroom (Count 2), and the lounge room (Counts 3 and 4). The complainant disclosed the alleged conduct to her mother in February 2017, and a police interview followed nine days later.

The jury convicted the applicant on Count 1 and acquitted him on Counts 2, 3, and 4. He was sentenced to 20 months' imprisonment, with execution of the sentence suspended on a good behaviour bond. He sought leave to appeal against the conviction on Count 1 only.

  • Whether the guilty verdict on Count 1 was unreasonable and could not be supported having regard to the evidence, applying the principles governing unreasonable verdict appeals.
  • Whether the acquittals on Counts 2 to 4 necessarily undermined the conviction on Count 1, by suggesting the jury doubted the complainant's credibility or reliability generally.
  • Whether there was a rational explanation for the acquittals other than a general rejection of the complainant's evidence.

Decision

The Court unanimously granted leave to appeal but dismissed the appeal. R A Hulme J delivered the principal judgment, with Leeming JA and Davies J agreeing.

On the unreasonable verdict ground, the Court applied the well-established principles from M v The Queen (1994) and SKA v The Queen (2011): an appellate court must independently assess whether it was open to the jury to be satisfied beyond reasonable doubt, while giving appropriate weight to the jury's advantages in seeing and hearing witnesses. The Court found it was plainly open to the jury to accept the complainant's evidence on Count 1. Factors including the complainant's young age (5 to 6 at the time of the offending, 7 at trial), the nature of children's memory, the passage of time, and the manner of cross-examination were all matters the jury was entitled to weigh. The Court noted that the correctness of the trial judge's directions, while not determinative, confirmed the jury had not been misdirected about their task.

On the inconsistent verdicts issue, the Court applied principles summarised in Roos v R [2019] NSWCCA 67. The critical question was whether the acquittals on Counts 2 to 4 had no rational explanation other than a general doubt about the complainant's credibility. The Court found there was a rational alternative explanation: the evidence raised real questions about whether the applicant had the opportunity to commit the offences described in Counts 2, 3, and 4 on the specific occasions alleged. The mixed verdicts were therefore consistent with the jury accepting the complainant's evidence but applying appropriate caution where the supporting circumstances were less certain. The Court characterised the acquittals as reflecting careful deliberation rather than a rejection of the complainant's account.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal against conviction dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that mixed jury verdicts are not inherently inconsistent or unreasonable where there is a rational explanation for the acquittals that does not depend on doubting the key witness's credibility.
  • Where an asserted unreasonable verdict ground rests on inconsistency with other verdicts, the appellate task is to ask whether there is any rational explanation for the acquittals other than a general rejection of the prosecution's principal witness.
  • A jury's acquittal on some counts while convicting on another can reflect cautious and responsible deliberation, particularly where opportunity or circumstantial detail differs across counts.
  • The particular characteristics of child complainants, including their age, the nature of children's memory, and the passage of time between events and trial, are matters an appellate court must bear in mind when reviewing whether a jury's verdict was open on the evidence.
  • Correct jury directions, while not answering whether a verdict was unreasonable, serve to dispel the possibility that an unreasonable verdict arose from the jury misunderstanding their task.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 66A(1), 61M(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), ss 150, 306S
- Evidence Act 1995 (NSW), s 13

Cases
- AZ v R [2018] NSWCCA 294
- Crickitt v R [2018] NSWCCA 240
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Morris v The Queen (1987) 163 CLR 454
- R v Markuleski (2001) 52 NSWLR 82
- Roos v R [2019] NSWCCA 67
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Baden-Clay (2016) 258 CLR 308
- TK v R (2009) 74 NSWLR 299