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19
Court of Criminal Appeal 29 March 2019

Roos v R

[2019] NSWCCA 67

Sexual offences
CRIMINAL LAW CHILD SEXUAL OFFENCES CONVICTION APPEAL UNREASONABLE VERDICTS CHILD SEXUAL OFFENCES CONVICTION APPEAL

Citation: Roos v R [2019] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 29 March 2019
Judge(s): Gleeson JA (principal judgment); Harrison J and Davies J agreeing

Background

The appellant stood trial in the District Court at Gosford over eight days in late 2016. The indictment charged him with 15 counts of sexual and indecent assault against two young brothers, both under 10 years of age, who were informally regarded as his nephews. The alleged conduct spanned from early 2012 to April 2015, and both boys had disclosed the abuse to their grandmother after she overheard a conversation between them in April 2015.

The jury returned guilty verdicts on nine counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 (NSW), and not guilty verdicts on five counts of sexual intercourse with a child under 10 (s 66A) and one count of assault with intent to have sexual intercourse. The appellant was sentenced to an aggregate term of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 6 months. He appealed against conviction only.

Both victims gave unsworn evidence at trial. Their evidence-in-chief consisted of recorded police interviews played to the jury, and cross-examination was conducted via audio-visual link with each child in a separate room, consistent with the standard procedure for child witnesses.

The appeal raised the following questions:

  • Whether the guilty verdicts on nine counts were unreasonable given that the jury acquitted on six other counts, and whether the mixed verdicts were legally inconsistent
  • Whether the trial judge failed to give a proper direction in accordance with R v Markuleski (2001) 52 NSWLR 82 (requiring a jury to consider counts separately and not simply reject an accused because they believe other counts are proven)
  • Whether the trial judge was required to give a Liberato direction (addressing how a jury should approach evidence where an accused's denial is weighed against a complainant's account)
  • Whether the trial judge was required to give a motive-to-lie direction regarding the complainants' evidence
  • Whether the trial judge was required to give a hearsay warning concerning the grandmother's account of overhearing the boys' conversation
  • Whether the trial judge's summing up adequately put the appellant's case to the jury

Decision

Ground 1: Unreasonable or inconsistent verdicts. The Court of Criminal Appeal granted leave to appeal on this ground but rejected the argument. It found a rational and logical basis on which the jury could distinguish the counts on which it convicted from those on which it acquitted. The acquittals on the more serious penetration counts were consistent with the jury accepting that the evidence of penetration did not reach the required standard of proof, while still being satisfied beyond reasonable doubt of the lesser indecent assault counts. The mixed verdicts reflected a careful and discriminating approach to the evidence rather than any irrationality.

Ground 2(a): Markuleski direction. Leave was granted on this ground as well. The Court found that the trial judge had given a Markuleski direction, and that it was adequate in the circumstances. No error was established.

Grounds 2(b), (c), (d) and (e): Remaining directions and summing up. Leave under r 4 of the Criminal Appeal Rules was refused for all remaining sub-grounds because no objection had been raised at trial. In any event, the Court found no error warranting intervention. A Liberato direction was not required because the case was not one in which the jury was simply being asked to choose between the accused's denial and the complainant's account in a direct credibility contest. No motive-to-lie direction was required on the evidence. The grandmother's account of overhearing the boys' conversation was not hearsay in the relevant sense, and no warning was required. As to the summing up, the appellant's trial counsel had expressly indicated that there was "not a word" he would ask the judge to change, and the summing up adequately reflected the defence case as it was actually presented.

The appeal was dismissed unanimously.

Orders Made

  • Leave to appeal against conviction granted on Ground 1 and Ground 2(a)
  • Leave to appeal under r 4 of the Criminal Appeal Rules refused on Grounds 2(b), (c), (d) and (e)
  • Appeal dismissed

Key Takeaways

  • Mixed verdicts in a multi-count sexual assault trial are not necessarily inconsistent: where a rational and logical basis exists for the jury to distinguish between counts (for example, by applying different levels of satisfaction to more and less serious charges), the verdicts will not be characterised as unreasonable or legally incompatible.
  • A Markuleski direction was held to have been adequately given in this case; the requirement is that juries be directed to consider counts individually and not allow findings on one count to drive conclusions on another.
  • A Liberato direction (addressing how juries approach an accused's denial against a complainant's account) is not automatically required in every case involving disputed credibility; its necessity depends on the way the case is actually conducted and the issues actually joined.
  • No objection taken at trial to a direction, or the absence of one, is a significant factor in applications for leave under r 4 of the Criminal Appeal Rules: the absence of any request for redirection, and counsel's express approval of the summing up at the time, weighed against the appellant on appeal.
  • A trial judge's obligation to put the accused's case to the jury extends to summarising any challenge to the prosecution evidence and any defence submissions, but does not require a lengthy rehearsal of the evidence where the issues are not complex and the defence was mounted through attacking the Crown case rather than advancing a positive account.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66B
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Appeal Rules (NSW), r 4
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Act 1986 (NSW), s 161
- Evidence Act 1995 (NSW)

Cases:
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Liberato v The Queen (1985) 159 CLR 507
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- Dixon v R [2017] NSWCCA 299
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Papakosmas v The Queen (1999) 196 CLR 297
- ARS v R [2011] NSWCCA 266
- DV v R [2017] NSWCA 276
- Palmer v R [2018] NSWCCA 205
- Jafary v R [2018] NSWCCA 243
- Greenhalgh v R [2017] NSWCCA 94