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Court of Criminal Appeal 15 October 2020

LH v R

[2020] NSWCCA 262

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION CHILD SEXUAL ASSAULT OFFENCES WHETHER THE VERDICTS WERE UNREASONABLE

Citation: LH v R [2020] NSWCCA 262
Court: Court of Criminal Appeal, NSW
Date: 15 October 2020
Judge(s): Payne JA, Wilson J, Ierace J

Background

The applicant (referred to as LH) was convicted by a jury in the District Court sitting at Newcastle following a five-day trial in August 2019. He faced three counts involving his stepdaughter (referred to as HH): one count of aggravated indecent assault and two counts of sexual intercourse with a person aged 14 to 16 years, contrary to the Crimes Act 1900 (NSW). The jury returned guilty verdicts on all three counts, and the applicant was subsequently sentenced to six years imprisonment with a non-parole period of four and a half years.

The complainant was HH, who was the applicant's stepdaughter. He had been in a relationship with her mother since 2001 and they married in 2004, meaning the applicant had effectively been HH's father figure since she was an infant. The offending occurred while the family lived on a rural property in New South Wales, during a period when HH was aged between 14 and 16 years.

The applicant sought leave to appeal against his convictions on counts 2 and 3 only. Those counts related to two separate incidents of penile-vaginal intercourse occurring within weeks of the first incident. He did not challenge the conviction on count 1.

  • Whether the jury's verdicts on counts 2 and 3 were unreasonable or could not be supported by the evidence, constituting a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether asserted inconsistencies in the evidence of Crown witnesses rendered the verdicts unsafe
  • Whether the jury failed to consider counts 2 and 3 separately on their merits, instead simply applying the guilty verdict on count 1 to the remaining counts

Decision

Wilson J (with whom Payne JA and Ierace J agreed) reviewed the entirety of the trial evidence and concluded that the verdicts were well open to the jury. The complainant's evidence was assessed as internally consistent in all material respects, and the inconsistencies relied upon by the applicant were characterised as minor and immaterial rather than matters that could undermine the verdicts. Her account was found to be coherent and credible across the critical details of the charged incidents.

Corroborating the complainant's account was evidence from her mother and brother, who gave evidence of admissions made by the applicant. In addition, the applicant himself had apologised for his conduct. Wilson J found that these admissions and the apology provided "coherent and conclusive support" for the complainant's evidence. By contrast, the applicant's own evidence at trial, including an account involving the then-15-year-old complainant behaving in a sexualised manner toward him, was found to be incredible and unsupported by any other witness or by common sense.

On the contention that the jury had failed to consider each count separately, Wilson J found no foundation for that argument. A direction had been given to the jury to consider each count independently, and there was no basis to depart from the presumption that jurors follow directions of law given by the trial judge. Because each verdict was independently supported by the evidence, the argument that the jury simply applied the count 1 verdict to counts 2 and 3 could not be sustained.

Orders Made

  • Leave to appeal against the convictions on counts 2 and 3 is refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for an unreasonable verdict requires the appellate court to review the whole of the evidence and determine whether the jury, acting reasonably, was "well open" to reach the verdicts it did. Minor inconsistencies in a complainant's evidence will not, of themselves, satisfy that test.
  • Admissions and apologies made by the accused outside of court can provide powerful corroboration of a complainant's account, and the Court treated those matters as significant in assessing the strength of the Crown case.
  • In dismissing the ground that the jury failed to consider each count separately, the Court reaffirmed the established principle that, absent clear evidence to the contrary, juries are presumed to have followed the directions of law given by the trial judge.
  • No error was established merely because a jury returns guilty verdicts on multiple counts arising from a single course of conduct, provided the evidence independently supports each verdict.
  • The Criminal Appeal Act 1912 (NSW), s 6(1) requires more than an assertion of inconsistency to establish a miscarriage of justice; the inconsistencies must be of a character capable of raising a reasonable doubt as to the verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(4), 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Libke v The Queen (2007) 239 CLR 599; [2007] HCA 30
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 376 ALR 478; [2020] HCA 12
- R v Dudko [2000] NSWCCA 336; (2000) 132 A Crim R 371
- R v Milat (Court of Criminal Appeal (NSW), 26 February 1998, unreported)
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35