Citation: Rao v R [2019] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 9 December 2019
Judges: Gleeson JA at [1]; Harrison J at [155]; Cavanagh J at [156]
Background
The appellant was convicted in the District Court of two counts of sexual intercourse without consent and two counts of indecent assault under ss 61I and 61L of the Crimes Act 1900 (NSW). The offending was alleged to have occurred during the early hours of the morning while several people shared a bed at a birthday party sleepover in March 2015. The complainant gave evidence that she woke to find the appellant digitally penetrating her vagina and, after she pushed his hand away, he repeated the conduct.
The appellant denied the offending. Three other people who were in the bed testified they had not observed any of the alleged conduct. The complainant did not report the matter to police until June 2017, more than two years after the incident.
The District Court imposed an aggregate sentence of four years imprisonment with a two-year non-parole period. The appellant was granted conditional bail pending appeal and sought leave to appeal against conviction only.
Legal Issues
- Whether the jury's verdicts were unreasonable and could not be supported having regard to the evidence, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
- Whether the complainant's account was implausible, including in light of inconsistencies in her evidence and her post-incident conduct
- Whether the delay in reporting to police undermined the complainant's credibility to a degree that rendered the verdicts unreasonable
- Whether, consequent on bail pending appeal, the commencement date of the sentence required adjustment under ss 18(2) and 28A of the Criminal Appeal Act 1912 (NSW)
Decision
The Court granted leave to appeal, treating the sole ground as reasonably arguable, but unanimously dismissed the appeal. The central question was whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The Court's role was not to substitute its own assessment for that of the jury, but to determine whether the jury, acting reasonably, could have reached the verdicts it did.
The appellant argued that the complainant's account was implausible in several respects: the asserted ability to carry out the conduct undetected with others in the bed, the complainant's decision to attend a second party the following evening, her ongoing social contact with the appellant including a shared breakfast, and her suggestion of a one-on-one meeting with him after the event. Gleeson JA examined each of these matters in detail and found that none of them, individually or collectively, rendered the verdicts unreasonable. The Court noted that post-incident conduct inconsistent with the occurrence of sexual assault is not a reliable indicator, and that courts have cautioned against judging victims of sexual assault by assumptions about how they should behave.
On the delay in reporting, the Court accepted that the complainant had contacted a rape crisis centre shortly after the incident and had confided in a friend. The two-year delay before a formal police report was treated in context rather than as a freestanding indicator of fabrication. The Court found the jury was entitled to accept the complainant's evidence and that the verdicts were supported by the evidence at trial.
Regarding the sentence, because the appellant had spent time on conditional bail pending appeal and that time did not count towards his sentence under the relevant provisions, the Court made orders adjusting the commencement date of the sentence accordingly.
Orders Made
- Leave to appeal against conviction granted
- Appeal against conviction dismissed
- The commencement date of the appellant's sentence adjusted to account for time on bail pending appeal not counting as time served, pursuant to ss 18(2) and 28A of the Criminal Appeal Act 1912 (NSW)
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that an unreasonable verdict ground requires the appellate court to assess whether it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt; it is not an invitation to substitute the appellate court's own view of the evidence.
- Post-incident conduct by a complainant in a sexual assault matter, even where it might appear inconsistent with the alleged offending, does not carry determinative weight; the Court emphasised that assumptions about how victims of sexual assault are expected to behave should not be given undue significance.
- A delay in reporting sexual assault to police does not automatically undermine a complainant's credibility, particularly where the complainant sought support from other sources in the interim.
- Where the credibility of witnesses is the central issue at trial, a jury that saw and heard those witnesses is well placed to make findings, and the Court of Criminal Appeal will not lightly disturb those findings.
- Under ss 18(2) and 28A of the Criminal Appeal Act 1912 (NSW), time spent on conditional bail pending a criminal appeal does not count towards the service of a sentence, and the court must adjust the commencement date of the sentence to reflect this.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 18(2), 28A
- Bail Act 2013 (NSW), s 22
- Crimes (Administration of Sentences) Amendment Act 2004 (NSW)
- Crimes (Sexual Assault) Amendment Act 1981 (NSW)
Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Fennell v The Queen [2019] HCA 37
- Khamis v R; Hussain v R [2018] NSWCCA 131
- Stanford v R [2018] NSWCCA 249
- R v Hall [2004] NSWCCA 127
- Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22