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Court of Criminal Appeal 6 October 2021

Mura v R

[2021] NSWCCA 240

Sexual offences
CRIME APPEALS UNREASONABLE VERDICT GROUND EXAMINATION

Citation: Mura v R [2021] NSWCCA 240
Court: Court of Criminal Appeal, NSW
Date: 6 October 2021
Judge(s): Macfarlan JA (principal judgment); Davies J; Beech-Jones J

Background

Following a 12-day judge-alone trial before Robison DCJ, the applicant was convicted of three counts of participating as a client in an act of child prostitution under s 91D(1)(b) of the Crimes Act 1900 (NSW). The offences involved two complainants, both under 18 at the relevant times. The applicant was acquitted of two counts of possessing child abuse material.

The applicant did not dispute that he had engaged the services of both complainants for prostitution, that the acts occurred, or that he had paid them. The sole contest at trial was whether he knew at the time of each offence that the complainants were under 18 years of age.

A third party, referred to as AG, had established a criminal enterprise supplying child prostitutes and arranged the relevant encounters. AG had previously pleaded guilty to child prostitution and robbery offences, received a sentence discount for her pleas and assistance to police, and gave evidence for the Crown.

  • Whether leave to appeal should be granted under s 5(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the convictions were unreasonable or unsupported by the evidence under s 6(1)
  • Whether the trial judge ought to have entertained a reasonable doubt as to the applicant's knowledge of the complainants' ages at the time of each offence
  • Whether one complainant's evidence in cross-examination amounted to a retraction of her evidence in chief regarding the applicant's knowledge of her age
  • Whether post-offence conversation evidence from the other complainant was capable of proving the applicant's knowledge at the time of the offences (the retrospectant evidence question)

Decision

Macfarlan JA granted leave to appeal but dismissed the appeal, with Davies J and Beech-Jones J each confirming from their own review of the evidence that the convictions were open on the evidence.

On Count 1, the applicant argued that the first complainant, CL, had retracted in cross-examination her evidence that she told the applicant she was 15. Macfarlan JA rejected this submission. His Honour found that the apparent inconsistencies arose from a lack of precision in the cross-examiner's questions: the questions assumed a single, continuous meeting, whereas CL's evidence described two distinct phases, an exchange outside the house and a separate gathering inside. Her cross-examination answers denying she said anything to the applicant were consistent with the indoor gathering, during which she was not involved in conversation. Her re-examination confirmed that she had told the applicant her age while outside. Taken as a whole, her evidence was consistently to the same effect.

On Counts 2 and 3 concerning the second complainant, TB, the applicant challenged the capacity of TB's evidence of a post-offence conversation to prove his knowledge at the time of the charged offences. Macfarlan JA considered the nature of retrospectant evidence, noting it can be relevant and admissible to prove a fact in issue, including a past state of mind. His Honour was satisfied that TB's evidence of that conversation, together with the circumstantial evidence, was sufficient to support the convictions on those counts.

The circumstantial evidence available to the trial judge included: the applicant's own admission that he used AG's premises because he could obtain the "type of young girl" he wanted; the absence of the age-verification safeguards found in licensed brothels; his avoidance of police contact when with TB; and text messages from AG's phone offering him a 16-year-old, to which he drove to attend. The court was satisfied it was well open to the trial judge to be satisfied beyond reasonable doubt of guilt on all three counts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the unreasonable verdict ground under s 6(1) of the Criminal Appeal Act 1912 applies to judge-alone trials in the same way as jury trials, requiring the appellate court to conduct an independent assessment of the sufficiency and quality of the evidence.
  • Apparent inconsistencies in a complainant's evidence will not necessarily constitute a retraction; where confusion arises from imprecise questioning, a court may find the evidence, read as a whole, was consistently to the same effect.
  • Retrospectant evidence (evidence of a post-offence statement or event) can be admissible and capable of proving a fact in issue at the time of the offence, including a defendant's past state of mind, provided proper reasoning supports that inference.
  • Circumstantial evidence, including an accused's deliberate avoidance of police, admission that he sought particularly young girls through unregulated premises, and receipt of texts explicitly referencing a minor's age, can collectively support a finding of knowledge beyond reasonable doubt.
  • In assessing whether a conviction is unreasonable, an appellate court does not disregard the trial judge's advantage of having seen and heard witnesses give evidence directly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91C, 91D(1)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Hamilton v The Queen [2020] NSWCCA 80
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Biber [2018] NSWCCA 271
- R v Musleh (No 5) [2018] NSWSC 1927
- Wright v Lemon (No 2) [2021] WASC 159
- R & B Customs Brokers Co Ltd v United Dominions Trust Ltd [1988] 1 All ER 847