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Court of Criminal Appeal 31 October 2019

LS v R

[2019] NSWCCA 258

Sexual offences
CRIMINAL LAW CONVICTION APPEAL JURY TRIAL CHALLENGE TO COMPLAINANT’S CREDIT WHETHER JURY VERDICTS INCONSISTENT

Citation: LS v R [2019] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 31 October 2019
Judges: Hoeben CJ at CL (with Walton J and Price J agreeing)

Background

The applicant, the uncle of the complainant, stood trial in the District Court at Tamworth in November 2017 on 13 counts of sexual misconduct against his niece. The alleged offending occurred between 1991 and 2000, when the complainant was aged between four and thirteen. The applicant was aged 16 to 17 at the commencement of the alleged offending.

The jury returned guilty verdicts on six counts (covering offences including digital penetration, anal intercourse, and indecent assault) and not guilty verdicts on the remaining seven. The applicant was sentenced to an aggregate term of nine years imprisonment with a non-parole period of six years.

The Crown case rested substantially on the complainant's evidence. The Crown also called three other female relatives as tendency witnesses, each of whom alleged the applicant had sexually or indecently assaulted her when they were children. The applicant did not give evidence at trial and denied all allegations in a 2001 police interview.

  • Whether the six guilty verdicts were unreasonable, or could not be supported having regard to the evidence, within the meaning established by the High Court's jurisprudence on unreasonable verdicts
  • Whether the guilty verdicts were inconsistent with the seven not guilty verdicts in a way that rendered them unsafe
  • Whether the jury's assessment of the complainant's credibility, in light of admitted inconsistencies and concessions about false or changed accounts, could rationally support the guilty verdicts

Decision

The sole ground of appeal was that the guilty verdicts were unreasonable and could not be supported having regard to the evidence, particularly when considered alongside the not guilty verdicts. The Court of Criminal Appeal applied the well-established test requiring the appellate court to independently assess the evidence and determine whether it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt.

Hoeben CJ at CL examined each guilty count in detail. The Court found that the mixed verdicts were not inconsistent in the legally relevant sense. Rather, they were explicable on the basis that the jury carefully followed the trial judge's directions to consider each count separately. The not guilty verdicts were consistent with the jury exercising appropriate caution where the complainant's evidence was less certain, or where the Crown had greater difficulty establishing particular details of specific incidents.

The Court acknowledged that the complainant had made concessions in cross-examination, including admissions that she had given false or different accounts to police on earlier occasions, particularly regarding the nature of the abuse alleged in count 7. However, the Court found the complainant's explanations for those inconsistencies, including her young age, embarrassment, and difficult family circumstances, were neither implausible nor unbelievable. The complainant's willingness to make concessions openly was itself capable of reinforcing, rather than undermining, her general credibility as a witness.

The tendency evidence, which was not challenged on appeal, provided significant corroboration of the complainant's account. The Court concluded that no reasonable doubt arose from the record of trial that the jury ought to have held. The combination of verdicts was consistent with a jury that had approached its task cautiously and conscientiously, and it was well open to the jury to be satisfied beyond reasonable doubt on the six counts returned as guilty.

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 verdicts in a multi-count sexual offence trial are not necessarily inconsistent. Differential verdicts can reflect a jury carefully applying separate scrutiny to each count rather than any logical incompatibility in its reasoning.
  • Where a complainant openly acknowledges past inconsistencies and provides credible explanations for them, that candour can itself be a factor supporting an assessment of overall reliability, rather than automatically undermining the complainant's credibility.
  • A conviction for historical child sexual offences is not rendered unreasonable simply because the complainant had difficulty with precise dates and timing. Where imprecision is attributable to the complainant's young age at the time and the passage of years, those matters need not be critical to the elements of the offences charged.
  • Tendency evidence called from multiple witnesses, and not challenged on appeal, can provide substantial support for a complainant's account and is a relevant factor when assessing whether guilty verdicts are reasonable.
  • The appellate standard for unreasonable verdicts requires the court to conduct an independent assessment of the evidence, but credibility findings remain primarily a matter for the jury. The Court of Criminal Appeal will not substitute its view unless the evidence, properly assessed, could not rationally support the verdicts returned.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 61N, 66A(1)

Cases
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- The Queen v Bauer [2018] HCA 40; 92 ALJR 846
- Hughes v The Queen [2017] HCA 20; 263 CLR 338
- MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
- The Queen v Nguyen [2010] HCA 38; 242 CLR 491
- Jones v The Queen [1997] HCA 56; 191 CLR 438
- AH v R [2019] NSWCCA 152
- BM v R [2017] NSWCCA 133
- ML v R [2015] NSWCCA 27
- Palmer v R [2018] NSWCCA 205
- Jafary v R [2018] NSWCCA 243
- Gilham v R [2012] NSWCCA 131; 224 A Crim R 22
- Miller v R [2014] NSWCCA 34
- Darby v R [2016] NSWCCA 164
- Artery v R [2017] NSWCCA 259
- Still v R [2010] NSWCCA 131
- R v Carbone [2000] NSWCCA 387