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Court of Criminal Appeal 20 July 2020

Curran v R

[2020] NSWCCA 171

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION SEXUAL ASSAULT OFFENCES CONVICTIONS QUASHED ON TWO COUNTS TRIAL

Citation: [2020] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 20 July 2020
Judge(s): Basten JA at [1]; R A Hulme J at [130]; Hamill J at [137]

Background

The applicant was tried in the District Court in March 2019 on nine counts of indecent assault on a male. The alleged offending occurred between 1981 and 1983, when the applicant was in his early thirties and the complainant was a schoolboy aged between 13 and 16. The applicant had been a trusted family friend, and both parties described the relationship as resembling that of a father and son or uncle and nephew.

The charges arose from a pattern of conduct that included overnight stays at the applicant's house, shared sleeping arrangements, and several overseas trips together. The jury convicted the applicant on seven of the nine counts and acquitted him on two. He was sentenced to an aggregate term of 2 years and 4 months imprisonment, with a non-parole period of 16 months.

The applicant sought leave to appeal against conviction on two grounds: that the Crown Prosecutor's closing address gave rise to a miscarriage of justice, and that the jury's verdicts were unreasonable and could not be supported having regard to the evidence, including the two acquittals.

  • Whether the verdicts on counts 3 and 4 were reasonably open to the jury, given the specific difficulties with the complainant's evidence on those counts
  • Whether, if counts 3 and 4 could not be sustained, the resulting doubt necessarily undermined the remaining five convictions
  • Whether two impugned statements made by the Crown Prosecutor in closing address gave rise to a miscarriage of justice

Decision

Counts 3 and 4: The Court accepted the applicant's submissions that the jury should have entertained a reasonable doubt about counts 3 and 4. Count 3 alleged fellatio during an overnight sailing trip, and count 4 alleged an indecent assault immediately following that incident. The complainant's evidence on these counts was beset by significant reliability concerns: the relevant memories emerged many years after the events, through multiple evolving statements to police, after a history of suppressed memories and the effects of hypnosis, and in circumstances where the complainant had earlier expressly denied the facts charged. The Court found that the jury could not rationally assess the reliability of that evidence and that no reasonable jury could be satisfied of guilt on those counts.

Remaining convictions (counts 1, 2, 5, 6 and 7): The Court rejected the applicant's argument that the unreasonable verdicts on counts 3 and 4 necessarily infected the other convictions. The basis on which the jury acquitted on counts 8 and 9, and the basis on which the Court found reasonable doubt on counts 3 and 4, did not logically compel a reasonable doubt across all counts. Considered on their individual facts, each of the remaining counts was supported by credible and apparently reliable evidence, and the convictions were reasonably open to the jury.

Crown Prosecutor's address: The Court identified two inappropriate statements made by the prosecutor in closing: a suggestion that the applicant had a "motive to lie," and a suggestion that the applicant had a general tendency to behave in a certain way that was not supported by the evidence. However, the Court was not satisfied that either statement gave rise to a miscarriage of justice. The trial judge gave appropriate directions in response, consistent with the requests of senior counsel for both parties, and those directions were sufficient to cure any prejudice.

Orders Made

The Court made the following orders on 18 June 2020:

  • Leave to appeal against conviction granted
  • Appeal against conviction allowed in part
  • Convictions on counts 3 and 4 quashed; verdicts of acquittal entered on those counts
  • Aggregate sentence quashed
  • Appeal otherwise dismissed
  • On counts 1, 5, 6 and 7, the applicant resentenced to an aggregate term of 16 months imprisonment with a non-parole period of 9 months, dating from 23 August 2019
  • The non-parole period having expired on 22 May 2020, the applicant was entitled to release on a statutory parole order; the total term expires 22 December 2020

Key Takeaways

  • Where a complainant's evidence on specific counts was affected by suppressed memories, hypnosis, multiple evolving police statements, and a prior express denial of the facts charged, the Court of Criminal Appeal found that a jury could not rationally assess reliability and that convictions on those counts could not stand.
  • Unreasonable verdicts on some counts do not automatically render other convictions unreasonable. The Court examined whether the basis for doubt on the impugned counts logically extended to the remaining counts, and found that it did not where each remaining count rested on its own credible evidentiary foundation.
  • Inappropriate prosecutorial statements in closing address, including a suggestion of "motive to lie" and an unsupported general tendency assertion, will not necessarily produce a miscarriage of justice where the trial judge delivers prompt and adequate corrective directions consistent with the parties' requests.
  • In resentencing after partial conviction appeal, the Court of Criminal Appeal drew on the indicative sentences originally identified by the sentencing judge to fix an appropriate aggregate penalty, resulting here in immediate entitlement to release.
  • The decision illustrates the appellate court's role under s 6 of the Criminal Appeal Act 1912 (NSW) in independently assessing whether a verdict was reasonably open, applying the principles in M v The Queen (1994) 181 CLR 487 and Pell v The Queen [2020] HCA 12.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Livermore v The Queen (2006) 67 NSWLR 659; [2006] NSWCCA 334
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MAJW v Regina [2009] NSWCCA 255
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
- Pell v The Queen [2020] HCA 12; 94 ALJR 394
- Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42