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Court of Criminal Appeal 6 March 2020

ABR (a pseudonym) v R

[2020] NSWCCA 33

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPEAL DISMISSED EVIDENCE TENDENCY EVIDENCE CRIMINAL PROCEEDINGS

Citation: ABR (a pseudonym) v R [2020] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 6 March 2020
Judges: Meagher JA (principal judgment); Bellew J and Lonergan J (agreeing)

Background

The appellant (referred to by pseudonym throughout) was convicted in the District Court following a jury trial before Ellis DCJ on five counts of indecent assault and one count of inciting a child under ten to commit an act of indecency. The offences related to incidents alleged to have occurred between February and July 2015, when the complainant was aged six or seven. The appellant was sentenced to a total effective sentence of five years, with a non-parole period of three years and six months.

The complainant disclosed the alleged conduct to her mother in late July 2015. Her mother immediately confronted the appellant, and a series of text messages were exchanged. The complainant subsequently participated in three electronically recorded police interviews describing a pattern of conduct including genital touching during physical play and a bedroom incident involving the appellant's penis. The complainant's younger brother gave corroborating evidence on one count.

The appellant did not give or call evidence at trial, but his electronically recorded interview with police was admitted and played to the jury. He denied all allegations and maintained that any physical contact during play was innocent. The appeal was filed on 23 grounds, and an extension of time to file the notice of appeal was required and not opposed by the Crown.

  • Whether the verdicts were unreasonable or unsupported by the evidence
  • Whether trial counsel was incompetent in a manner that caused a miscarriage of justice
  • Whether various directions given, or omitted, by the trial judge gave rise to error or miscarriage
  • Whether tendency evidence was wrongly admitted, including whether it had significant probative value and whether that value was substantially outweighed by its prejudicial effect
  • Whether the complainant was correctly found to be a competent witness
  • Whether various other alleged miscarriages of justice (including Browne v Dunn issues and alleged failures in the conduct of the trial) warranted appellate intervention

Decision

The Court of Criminal Appeal dismissed the appeal on all grounds, with Bellew J and Lonergan J agreeing with Meagher JA's reasons in full.

On the tendency evidence ground, the Court found no error in admitting evidence that the appellant had a sexual interest in the vaginas of pre-pubescent girls. Given that part of the defence was that the allegedly intentional touching was innocent or accidental, the tendency evidence carried significant probative value. The Court held that the potential prejudicial effect had been adequately ameliorated by the trial judge's directions and by the omission of certain more inflammatory material from the tender. Accordingly, the probative value was not substantially outweighed by unfair prejudice under ss 97 and 101 of the Evidence Act 1995 (NSW).

On the competence ground, the Court found no error in the trial judge's determination that the complainant was a competent witness under s 13 of the Evidence Act. The Court noted that the assessment of a child witness's competence involves a practical inquiry into whether the witness can give an account and understands the obligation to tell the truth, and that the trial judge's approach was not shown to be erroneous.

On the unreasonable verdict ground, the Court found that the evidence, taken as a whole, was sufficient to support the jury's verdicts. The text messages exchanged immediately after the first disclosure were characterised as providing strong support for the complainant's account and as revealing what the Court described as acceptance and consciousness on the appellant's part. The complainant's consistent evidence across multiple interviews, corroboration from her brother on one count, and the admitted tendency evidence together provided a sufficient basis for the jury's conclusions. The remaining grounds, including those alleging incompetence of counsel, misdirections, and various miscarriages of justice, were each considered and rejected. Leave was refused on several grounds where no objection had been taken at trial.

Orders Made

  • Time for filing the notice of appeal extended to 8 August 2019
  • Appeal against conviction on all six counts dismissed
  • Leave granted (where necessary) and grounds 1, 2, 3, 4, 5, 6, 11, 12, 18, 19, 20, 21, 22, and 23 dismissed
  • Leave refused on grounds 7, 8, 9, 10, 13, 14, 15, 16, and 17

Key Takeaways

  • Tendency evidence directed at proving a sexual interest in pre-pubescent girls can carry significant probative value under ss 97 and 101 of the Evidence Act 1995 (NSW), particularly where the defence characterises alleged intentional conduct as innocent or accidental.
  • Where a trial judge ameliorates potential prejudice through careful directions and by limiting the scope of the material tendered, a finding that probative value is not substantially outweighed by prejudicial effect is unlikely to be disturbed on appeal.
  • In dismissing the unreasonable verdict grounds, the Court of Criminal Appeal confirmed that text messages exchanged between an accused and a complainant's parent immediately following initial disclosure can constitute significant supporting evidence capable of sustaining a jury's verdicts.
  • No error was established in finding a young child competent to give evidence under s 13 of the Evidence Act 1995 (NSW), where the trial judge conducted the requisite inquiry into the child's ability to give an account and understand the obligation to tell the truth.
  • Grounds of appeal relating to directions, omissions to direct, or evidentiary rulings to which no objection was taken at trial require leave under the Criminal Appeal Rules, and leave may be refused where no substantial miscarriage of justice is demonstrated.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M, 61O
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 275B, 294B, 306U
- Evidence Act 1995 (NSW), ss 13, 26, 31, 97, 101, 144, 165, 165A, 191

Cases
- Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045
- R v Bauer [2018] HCA 40; (2018) 92 ALJR 846
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- Gilbert v The Queen (2000) 205 CLR 414; [2000] HCA 15
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- AL v R [2017] NSWCCA 34; (2017) 266 A Crim R 1
- BC v R [2015] NSWCCA 327; (2015) 257 A Crim R 340
- Dao v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DPP (NSW) v RDT [2018] NSWCCA 293
- Browne v Dunn (1893) 6 R 67
- Galea v Galea (1990) 19 NSWLR 263