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Court of Criminal Appeal 6 February 2020

DH v R

[2020] NSWCCA 2

Sexual offences
CRIMINAL LAW CONVICTION APPEAL JUDGE ALONE TRIAL VICTIMS AGED BETWEEN 5 AND 15 TENDENCY EVIDENCE A SINGLE GROUND OF APPEAL

Citation: DH v R [2020] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 6 February 2020
Judges: Hoeben CJ at CL; Price J; Campbell J

Background

The applicant was tried before a District Court judge sitting alone on 12 counts of sexual offending against four complainants: his son, two step-sons, and a friend of one of the step-sons. The complainants were aged between approximately 5 and 15 years at the time of the alleged offences. The conduct alleged spanned a period from 1998 to 2010.

The trial judge convicted the applicant on seven counts, including inciting acts of indecency and indecent assault, and acquitted him on the remaining five counts. Those acquittals included counts involving more serious sexual intercourse offences. The applicant was sentenced to an aggregate term of 8 years' imprisonment with a non-parole period of 5 years.

The applicant sought leave to appeal against his convictions on a single ground: that the verdicts of guilt were unreasonable having regard to the evidence. Leave was required because the ground did not raise a question of law alone.

  • Whether the guilty verdicts were unreasonable, in the sense that a properly instructed jury (or, in a judge-alone trial, the judge) acting on the whole of the evidence could not have been satisfied beyond reasonable doubt of the applicant's guilt.
  • Specifically, whether the complainants' failure to give evidence of a physical abnormality of the applicant's genitalia rendered those verdicts unreasonable, given that the existence of that abnormality was established by agreed facts and expert evidence.

Decision

The applicant's primary argument was that the complainants' accounts were concocted. Central to this submission was evidence that the applicant had undergone a vasectomy, removal of his right testicle, and further circumcision around 2004. The defence contended that if the alleged abuse had occurred, each complainant who had the relevant opportunity to observe the applicant's genitals should have described this physical abnormality in their accounts to police. Their failure to do so, the applicant argued, made the verdicts unreasonable.

The trial judge had accepted that the complainants were honest and, after careful assessment, found the evidence of three of them to be reliable. The Court of Criminal Appeal applied the standard test from M v The Queen (1994) and its progeny: the question is whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt of guilt. The court noted the significant advantage a trial judge holds in assessing the honesty and reliability of witnesses who give evidence in person, and confirmed this advantage is not to be lightly disregarded on appeal.

Hoeben CJ at CL, with whom Price J and Campbell J agreed, held that the trial judge's careful analysis of the complainants' evidence warranted considerable deference. The apparent inconsistency arising from complainants' omission to describe the physical abnormality was addressed by two considerations adopted by the trial judge: first, an inference that the state of a penis need not be viewed as binary (flaccid or erect) such that partial erection could explain partial visibility; and second, that the evidence did not clearly establish the state of the applicant's genitals at the precise moments of offending. The court found these were available findings.

Campbell J noted some initial reservation about whether the trial judge's inferential reasoning should have been raised with counsel before being adopted in the judgment. However, no ground or argument raised any denial of procedural fairness, and that reservation was ultimately resolved by the weight accorded to the trial judge's first-hand assessment of the witnesses. All three judges agreed the appeal against conviction should be dismissed.

Orders Made

  • Leave to appeal against conviction is granted.
  • The appeal against conviction is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test for an unreasonable verdict requires the appellate court to ask whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt, not whether the appellate court would have itself reached the same conclusion.
  • A judge-alone trial does not diminish the significance of the tribunal's advantage in seeing and hearing witnesses; that advantage remains a weighty consideration on appeal where credibility assessments are central to the verdicts.
  • The absence of evidence about a physical characteristic in a complainant's account does not automatically render a guilty verdict unreasonable, particularly where the trial judge has carefully considered and addressed the apparent inconsistency.
  • Consistent with Azzopardi v The Queen, it is not for an accused person to fill gaps in the prosecution case; however, where evidence is unclear or incomplete, that ordinarily weighs in an accused's favour rather than against them.
  • Mixed verdicts (convictions on some counts, acquittals on others) are not inherently inconsistent and can reflect a careful, discriminating assessment of the evidence by the tribunal of fact rather than suggesting error in the guilty findings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Filippou v The Queen (2015) CLR 47; [2015] HCA 29
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35