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Court of Criminal Appeal 27 March 2020

Maughan v R

[2020] NSWCCA 51

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER COMPLAINANT’S MEMORIES RELIABLE JURY’S VERDICTS REASONABLE LEAVE TO APPEAL GRANTED

Citation: Maughan v R [2020] NSWCCA 51
Court: Court of Criminal Appeal, New South Wales
Date: 27 March 2020
Judge(s): R A Hulme J; Adamson J; Ierace J

Background

The applicant was convicted by a jury in the Newcastle District Court of one count of indecent assault (s 61L of the Crimes Act 1900 (NSW), since repealed) and one count of sexual intercourse without consent (s 61I). The offences arose from events during an Easter long weekend in 2016, when a group of around 15 people gathered at a rural retreat in the Hunter region. The applicant, then aged 60, and the complainant, then aged 19, had not previously met.

In the early hours of Saturday morning, the applicant and the complainant were the last two people remaining in the communal area of the larger house. The complainant had consumed a significant amount of alcohol over the course of the evening. Her evidence was that she came to consciousness to find the applicant kissing her, lapsed in and out of consciousness, and then became aware of him touching her again. She gave evidence that she had not consented to either act.

The applicant was convicted on both counts. On the first count he was sentenced without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). On the second count he received four years' imprisonment with a non-parole period of two years. He appealed against conviction on two grounds.

  • Ground 1: Whether the jury's verdicts were unreasonable or unsupported by the evidence, including whether the complainant's account was implausible, contradicted by other evidence, or unreliable given the circumstances.
  • Ground 2: Whether there was a miscarriage of justice arising from the Crown's closing address to the jury, specifically whether it impermissibly reversed the onus of proof or implied the applicant's bad character.

Decision

On Ground 1, all three judges independently reviewed the trial transcript and exhibits and concluded the verdicts were not unreasonable. The court found the complainant's evidence credible and reliable. Her account of drifting in and out of consciousness was consistent with her intoxicated state and did not undermine her overall reliability. Her complaint to her mother shortly after the events, and the account she gave police on Easter Monday, were internally consistent and aligned with the Crown case at trial.

The court rejected arguments that particular aspects of the complainant's behaviour, including apologising the following morning or falling asleep again after the first incident, were inherently implausible. Adamson J specifically noted that apologising is not uncommon even where a person bears no responsibility, and that individuals respond differently to distressing events. All three judges declined to assess the complainant's conduct against stereotypical expectations, with Hulme J observing that the criminal law has moved well past that approach.

On Ground 2, the court refused leave to appeal. The court noted that no objection had been raised at trial to the Crown's closing address, and the matters complained of were dealt with in the applicant's own address to the jury. The court was not satisfied that any miscarriage of justice had occurred.

Orders Made

  • Leave to appeal granted in respect of Ground 1.
  • Appeal against conviction dismissed in respect of Ground 1.
  • Leave to appeal refused in respect of Ground 2.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict ground requires more than identifying discrepancies in a complainant's evidence; the appellate court must be persuaded, having reviewed the transcript and exhibits, that no reasonable jury could have accepted the evidence.
  • Assessing a sexual assault complainant's behaviour against stereotypical expectations is not a reliable or appropriate analytical tool. The court emphasised that jurors applying a mature understanding of human behaviour are unlikely to be persuaded by such propositions.
  • A complainant's post-offence conduct, including apologising or returning to sleep, does not automatically cast doubt on credibility. Individuals respond to traumatic events in varied ways, and juries are entitled to take that into account.
  • Where a complaint is raised on appeal about a Crown address at trial but no objection was taken before the trial judge, leave to appeal under r 4 of the Criminal Appeal Rules is unlikely to be granted in the absence of a demonstrated miscarriage of justice.
  • An intoxicated complainant's description of drifting in and out of awareness does not necessarily mean she was describing discrete periods of being fully awake and fully asleep; the court found her account was more naturally read as describing a state of impaired consciousness throughout.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Appeal Act 1914 (NSW)
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Rao v R [2019] NSWCCA 290