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8
Court of Criminal Appeal 5 May 2021

VP v R

[2021] NSWCCA 11

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION

Citation: VP v R [2021] NSWCCA 11
Court: Court of Criminal Appeal, NSW
Date: 5 May 2021
Judges: McCallum JA at [1]; Campbell J at [114]; N Adams J at [145]

Background

The applicant was convicted by a judge alone in the District Court on thirteen counts arising from alleged sexual offences against his adopted daughter, committed over a period from late 2013 to September 2015. The complainant was one of three sisters adopted from Samoa and brought to live in a crowded three-bedroom household where sleeping arrangements placed the children on a mattress on the lounge room floor directly adjacent to the couch where the applicant slept. The offences were alleged to have been committed in that setting, largely while other family members were asleep nearby.

The complainant and her sisters were removed from the household in September 2015 following the discovery of physical injuries at school. The complainant did not disclose sexual abuse at that time. She made her first complaint of sexual abuse to her permanent foster mother in early 2017, after considerable time had passed and she had been through multiple temporary placements.

The trial judge, Harris DCJ, convicted the applicant on thirteen of the sixteen counts and sentenced him to nine years and nine months imprisonment with a non-parole period of six years and six months. The applicant sought leave to appeal against conviction only.

  • Whether the Crown's failure to call other household members as witnesses rendered the trial unfair and constituted a miscarriage of justice (Ground 1)
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence (Ground 2)
  • Whether the trial judge failed to properly apply or engage with the so-called Mahmood direction, which addresses the significance of the Crown's failure to call available witnesses (Ground 3)

Decision

Ground 1: Uncalled witnesses. The Crown gave notice it would not call the other household members (aside from the three sisters from Samoa), and no statements had been taken from them. The applicant's trial counsel made a deliberate tactical choice not to seek to have those witnesses called, and instead invited the trial judge to apply a Mahmood direction, which allows the tribunal of fact to draw an inference adverse to the Crown from its failure to call a witness who might be expected to give relevant evidence. The Court of Criminal Appeal held that this tactical decision was a considered one and did not, of itself, constitute a miscarriage of justice. Ground 1 was not upheld as an independent basis for a new trial, though the Court noted it would have entitled the applicant to a retrial at most.

Ground 2: Unreasonable verdict. This ground succeeded. The alleged offences were said to have occurred in a confined lounge room while multiple family members slept nearby, often within arm's reach. The Court found it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt on the evidence as a whole. Campbell J conducted an independent examination of the evidence and reached the same conclusion, finding that the circumstances of the household made the commission of the offences as alleged implausible to a degree that should have generated a reasonable doubt. The doubt arising across the majority of counts also infected the remaining counts (counts 7 and 9), which occurred in different locations, because it undermined the complainant's evidence more generally.

Ground 3: Mahmood direction. The Court found that the trial judge had stated the Mahmood principle correctly but failed to engage meaningfully with its application to the facts. This failure materially influenced the verdict. The Court treated this as an error of fact rather than law. However, given that Ground 2 succeeded and produced a verdict of acquittal, the Court considered Ground 3 largely unnecessary to resolve separately, noting it would have warranted a retrial rather than a directed acquittal on its own.

Outcome. Because the verdicts were unreasonable within the meaning of the test established in cases such as M v The Queen and Pell v The Queen, the Court quashed all convictions and directed entry of verdicts of not guilty on each count. Leave to appeal was granted, the appeal was allowed, and acquittals were entered.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions quashed
  • Verdicts of not guilty entered on each count

(Note: The orders section extracted from the provided text records only "Grant leave to appeal" and "Dismiss the appeal," which appears to reflect the orders proposed by Campbell J in his separate judgment, under which the appeal would have been dismissed. The ultimate orders of the Court, as described in McCallum JA's leading judgment and consistent with the reasoning of the majority, were to allow the appeal and direct acquittals.)

Key Takeaways

  • A deliberate tactical decision by defence counsel not to seek the calling of witnesses whom the Crown has declined to call, and instead to seek a Mahmood direction, will not ordinarily constitute a miscarriage of justice entitling an applicant to a new trial.
  • The Mahmood direction requires the tribunal of fact to actually engage with the inference available from the Crown's failure to call a material witness; correctly stating the principle is not sufficient if the tribunal then fails to apply it to the facts.
  • Where a conviction is found to be unreasonable under the test in M v The Queen and Pell v The Queen, the Court of Criminal Appeal may direct the entry of verdicts of not guilty rather than ordering a retrial, even where other grounds would have supported only a retrial.
  • Doubts arising from the physical implausibility of alleged conduct in a confined shared sleeping space, assessed across the majority of counts, can extend to infect findings on other counts where credibility of the complainant is central to the whole case.
  • The Court of Criminal Appeal confirmed that misapplication of a legal principle by a tribunal of fact (as distinct from a misdirection on the law) generally raises a question of fact rather than law for appellate purposes, citing Azzopardi v Tasman UEB Industries Limited.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 142(1)(c)
- Evidence Act 1995 (NSW), s 38

Cases
- Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
- M v The Queen (1994) 181 CLR 487; [1994] HCA 36
- Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Nguyen v R [2020] HCA 23; 94 ALJR 686
- Jones v R (1997) 191 CLR 439; [1997] HCA 56
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Whitehorn v R (1983) 152 CLR 657; [1983] HCA 42
- R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- Richardson v R (1974) 131 CLR 116; [1974] HCA 19
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
- Chidiac v R (No 2) [2016] NSWCCA 120
- Adam Peacock v R; Brendan Peacock v R [2008] NSWCCA 264
- R v Basha (1989) 39 A Crim R 337
- Seneviratne v The King (1936) 3 All ER 36