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Court of Criminal Appeal 24 September 2020

Gray v R

[2020] NSWCCA 240

Sexual offences

Citation: Gray v R [2020] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 24 September 2020
Judges: Hoeben CJ at CL, Johnson J, Lonergan J

Background

The applicant, referred to in proceedings as John Gray, was convicted in the District Court following a jury trial before Haesler SC DCJ. He was found guilty of sexual intercourse with a child under the age of 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The applicant was 16 at the time of the offending; the complainant, referred to as Jane, was his five-year-old sister.

The Crown case was that the applicant, while babysitting Jane on multiple occasions between October and November 2017, penetrated her anus with a vibrator (count 1) and masturbated in her presence (count 2). The jury convicted on count 1 and acquitted on count 2.

The applicant sought leave to appeal his conviction. He was sentenced in October 2019, with the sentencing judge making an order under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) directing that the sentence be served in a juvenile detention centre rather than an adult correctional centre, due to the applicant's vulnerabilities and the therapeutic programs available to him there.

  • Whether a miscarriage of justice occurred by reason of the admission of Jane's evidence at trial, specifically whether she was competent to give evidence under s 13 of the Evidence Act 1995 (NSW)
  • Whether the jury's verdict on count 1 was unreasonable and incapable of being supported by the evidence

Decision

On ground 1 (competence and admissibility of Jane's evidence), the Court refused leave to appeal. Counsel for the applicant had not challenged Jane's competence at trial, and accordingly leave was also required under r 4 of the Criminal Appeal Rules (NSW). The Court did not accept that a miscarriage of justice had been occasioned by the admission of Jane's evidence.

On ground 2 (unreasonable verdict), the Court granted leave to appeal but dismissed the appeal. The applicant's argument concentrated heavily on what counsel described as the "unsatisfactory quality and nature" of Jane's evidence, and its alleged unreliability. The two grounds were closely interrelated in that way, with ground 2 substantially dependent on criticisms of the complainant's evidence that also underpinned ground 1.

The Court applied the principles governing unreasonable verdict appeals, including those clarified by the High Court in Pell v The Queen (2020) 94 ALJR 394. Notwithstanding the complainant's young age and the nature of her evidence, the Court was not satisfied that the jury, acting reasonably, could not have been satisfied of guilt beyond reasonable doubt on count 1. The verdict was upheld as one open on the evidence.

Orders Made

  • Leave to appeal on ground 1 (competence/admissibility) refused
  • Leave to appeal on ground 2 (unreasonable verdict) granted, but the appeal dismissed
  • The applicant's sentence ordered to recommence on 24 September 2020 pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW)
  • The period between 1 April 2020 and 23 September 2020 noted as not counting toward the term of imprisonment under s 18(2) of the Criminal Appeal Act
  • Non-parole period adjusted to expire on 18 April 2021; sentence to expire on 18 October 2022
  • The order under s 19 of the Children (Criminal Proceedings) Act 1987 (NSW) confirmed, directing that the sentence continue to be served in a detention centre rather than a correctional centre

Key Takeaways

  • A ground of appeal challenging a complainant's competence to give evidence, where that challenge was not raised at trial, requires leave under both s 5 of the Criminal Appeal Act 1912 and r 4 of the Criminal Appeal Rules (NSW) before it can be pursued on appeal.
  • Where two grounds of appeal are formally distinct but factually intertwined, the Court of Criminal Appeal will treat them as interdependent and assess the arguments accordingly.
  • Under the unreasonable verdict ground, the applicable standard (consistent with Pell v The Queen) requires the appellate court to assess whether a jury acting reasonably could have been satisfied of guilt beyond reasonable doubt, not merely whether there were inconsistencies or weaknesses in the complainant's account.
  • No error was established in the trial judge's competence inquiry under s 13 of the Evidence Act 1995 (NSW) in relation to a five-year-old complainant, and the admission of her evidence did not occasion a miscarriage of justice.
  • Confirmation that the sentencing court's s 19 order directing detention in a juvenile facility, rather than an adult correctional centre, survives the unsuccessful appeal and continues to apply on recommencement of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Evidence Act 1995 (NSW), s 13
- Criminal Appeal Act 1912 (NSW), ss 5, 18, 28A
- Criminal Appeal Rules (NSW), r 4
- Children (Criminal Proceedings) Act 1987 (NSW), s 19

Cases:
- Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
- AZ v R [2018] NSWCCA 294
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- R v Basha (1989) 39 A Crim R 337
- R v Gray [2019] NSWDC 550