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Court of Criminal Appeal 23 September 2020

Le v R

[2020] NSWCCA 238

Assault & violenceDomestic & family violence
CRIMINAL LAW CONVICTION APPEAL PAROLE PERIOD OF 1 YEAR AND 9 MONTHS CROWN CASE RELIED ON A SINGLE WITNESS PROBLEMS WITH COMPLAINT EVIDENCE MEDICAL EVIDENCE SUPPORTED CLAIM

Citation: Le v R [2020] NSWCCA 238
Court: Court of Criminal Appeal, New South Wales
Date: 23 September 2020
Judges: Hoeben CJ at CL; Davies J; Adamson J

Background

The applicant stood trial in the District Court at Sydney before Judge Yehia SC and a jury in November 2019. The charges arose from alleged acts of violence against the complainant (referred to as "S"), with whom the applicant had been in an intimate domestic relationship between 2016 and 2017. The relationship was described as volatile, involving repeated separations and reunions, as well as serious drug and alcohol use by both parties.

The jury was asked to consider two main counts. Count 1 alleged assault occasioning actual bodily harm by slapping in December 2016. Count 2 alleged causing grievous bodily harm ("GBH") recklessly by stomping or kicking the complainant's hip during an argument at the applicant's York Street apartment on or about 10 October 2017, causing a femur fracture. Count 3 was an alternative to Count 2.

The jury acquitted the applicant on Count 1 and returned a guilty verdict on Count 2. No verdict was required on Count 3. On 7 February 2020, the applicant was sentenced to 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months. The applicant sought leave to appeal the conviction on the ground that the jury's guilty verdict was unreasonable or could not be supported by the evidence.

  • Whether the jury's verdict of guilty on Count 2 (recklessly causing GBH) was unreasonable or unsupported by the evidence, having regard to: the reliability of the complainant as the sole witness to the assault; apparent discrepancies between her initial complaint and text messages sent to the applicant; the Crown's failure to call an important witness; the medical evidence; and the availability of a reasonable alternative hypothesis (accidental fall while intoxicated) to explain the injury.
  • Whether a non-publication order should be made to protect the complainant's identity.

Decision

The central question was whether, taking all the evidence into account, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The applicable test, drawn from M v The Queen (1994) and affirmed in Pell v The Queen [2020] HCA 12, requires an appellate court to examine the record and determine whether the jury must have had a reasonable doubt about guilt. It is not enough that the appellate court itself would have had a doubt; the question is whether the jury was acting within the bounds of reason.

The applicant raised several weaknesses in the Crown case. The complainant was the sole eyewitness, and her evidence contained acknowledged inconsistencies. She had sent text messages to the applicant that appeared to sit in tension with her complaint, and she changed aspects of her account under cross-examination. The Crown also did not call Steven Low, a witness who the complainant said was present the day after the alleged assault and was shown her injuries by the applicant. The applicant argued this unexplained absence entitled the jury to draw an inference unfavourable to the Crown under the principles from Jones v Dunkel (1959). The defence also pointed to the applicant's use of crutches at the time due to a leg infection, which it said made a forceful kick or stomp implausible.

The majority (Hoeben CJ at CL and Davies J) granted leave to appeal but dismissed the appeal. The majority found that, while there were genuine weaknesses in the complainant's evidence, this did not mean the jury was compelled to acquit. The medical evidence was consistent with the complainant's account of being kicked or stamped on. The jury was entitled to assess credibility and accept the complainant's evidence on Count 2 even having acquitted on Count 1. The failure to call Mr Low could be considered by the jury but did not preclude a guilty verdict. The alternative hypothesis of an accidental fall was available but not so compelling as to require the jury to entertain a reasonable doubt.

Adamson J dissented, reaching a different conclusion on the application of the unreasonable verdict test, though the specific reasoning in her Honour's dissent is not extracted in the available text. The majority's orders, granting leave but dismissing the appeal, prevailed. Separately, all three judges agreed that a non-publication order was appropriate to protect the complainant's identity. The court noted that the complainant's occupation (not specified here, consistent with the suppression order) was one where publicising the judgment could deter victims from reporting crimes or giving evidence, justifying an order under s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Non-publication order made (until further order) under s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), directing that the complainant be referred to by the pseudonym "S" and not otherwise identified.

Key Takeaways

  • In dismissing the appeal, the majority confirmed that an unreasonable verdict challenge requires more than demonstrating weaknesses or inconsistencies in a witness's evidence; the appellate court must be satisfied that the jury, acting reasonably, was obliged to entertain a reasonable doubt.
  • A jury's acquittal on one count does not preclude a guilty verdict on a related count arising from the same relationship; the jury may accept a complainant's evidence selectively across different charges.
  • Under the principles from Jones v Dunkel, a jury may draw an inference adverse to the Crown from an unexplained failure to call a material witness, but such an inference does not automatically render a guilty verdict unreasonable.
  • The availability of a plausible alternative hypothesis (here, an accidental fall while intoxicated) does not compel an acquittal where medical and other evidence is also consistent with the Crown's account and the jury has had the opportunity to assess witness credibility.
  • Non-publication orders protecting complainant identity may be appropriate under s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) where publication could deter victims in similar circumstances from reporting offences or giving evidence, even if no such order was sought at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 8(1)(e)

Cases
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen [2020] HCA 12
- Jones v Dunkel (1959) 101 CLR 298
- Mahmood v State of Western Australia (2008) 232 CLR 397
- MFA v The Queen (2002) 213 CLR 606
- RPS v The Queen (2000) 199 CLR 620
- Douglass v The Queen (2012) 86 ALJR 1086
- The Queen v Baden-Clay (2016) 258 CLR 308
- Dyers v The Queen (2002) 210 CLR 285
- Fennell v The Queen [2019] HCA 37
- Chidiac v The Queen (No 2) [2016] NSWCCA 120