AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 3 March 2021

Williams v R

[2021] NSWCCA 25

Sexual offences
APPEALS TRIAL BY JUDGE ALONE ADEQUACY OF REASONS

Citation: Williams v R [2021] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 3 March 2021
Judges: Hoeben CJ at CL, R A Hulme J, Adamson J

Background

The appellant was tried by judge alone in the District Court on an indictment containing five counts. Priestley DCJ found him guilty of two counts of sexual intercourse without consent (counts 1 and 3) and not guilty of a further count of doing an act with intent to pervert the course of justice (count 5). The alternative counts of indecent assault did not arise because of the guilty verdicts.

The Crown alleged that the appellant had digitally and penilely penetrated the complainant without her consent while she lay heavily intoxicated and unconscious, or barely conscious, on a couch at a residential gathering in Yamba in June 2018. The complainant had returned from an overseas holiday that morning, worked a shift that evening, and consumed a significant quantity of alcohol before attending the gathering with a friend.

An aggregate sentence of three years imprisonment, with a non-parole period of one year and eight months, was imposed on 21 July 2020. The sentence was not challenged on appeal. The appellant had been released on bail before the appeal was heard and remained at liberty.

  • Whether the trial judge erred by failing to give a Murray direction in relation to the complainant's evidence, and whether adequate reasons were provided on that question under s 133 of the Criminal Procedure Act 1986 (NSW)
  • Whether the trial judge erred by failing to give a warning under s 165 of the Evidence Act 1995 (NSW) concerning the complainant's evidence
  • Whether the trial judge failed to properly consider the DNA evidence, specifically that the appellant was excluded as the contributor to a male DNA profile found in the complainant's underwear, and whether adequate reasons were given on this point
  • Whether the verdicts on counts 1 and 3 were unreasonable and could not be supported by the evidence
  • Whether the trial judge failed to properly apply the onus of proof

Decision

On the Murray direction ground, Adamson J found no error. A Murray direction is a caution given to a jury (or, in a judge-alone trial, applied by the judge) where the complainant's evidence stands alone and requires careful scrutiny. The trial judge was not required to give such a direction in these circumstances, and the reasons provided were adequate for the purposes of s 133 of the Criminal Procedure Act.

On the s 165 Evidence Act warning ground (which concerns potentially unreliable evidence), the Court found no error warranting appellate intervention. The trial judge's approach to the complainant's evidence was appropriate, and the absence of a formal warning did not constitute a miscarriage of justice in the context of a judge-alone trial.

Regarding the DNA evidence, the Court acknowledged that the trial judge's treatment of that evidence at paragraph 228 of his reasons was brief. However, reading the reasons as a whole, the Court was satisfied that the trial judge had adequately grappled with the significance of the DNA findings, including that the appellant had been excluded as a contributor to a particular male DNA profile on the complainant's underwear. The reasons, read in their entirety, disclosed the path of reasoning sufficiently.

On the unreasonable verdict ground, Adamson J conducted a thorough review of all the trial evidence and applied the test from M v The Queen and Pell v The Queen: whether, on the whole of the evidence, it was open to the trial judge to be satisfied of guilt beyond reasonable doubt. Adamson J was satisfied that the verdicts were reasonably open. Having reviewed the transcript and all exhibits, her Honour stated that she did not herself entertain a doubt about the appellant's guilt. The onus of proof ground was also rejected.

Orders Made

  • Affidavit of Ben Cochrane (affirmed 1 February 2021) rejected on grounds of relevance
  • Leave to appeal granted
  • Appeal dismissed
  • Sentence to recommence on 3 March 2021 pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW)
  • A period of 75 days (18 December 2020 to 2 March 2021, inclusive) does not count as part of the sentence
  • Non-parole period to expire on 4 June 2022, after which the appellant will be eligible for parole
  • Sentence to expire on 3 October 2023

Key Takeaways

  • In a judge-alone trial, the obligation to apply the equivalent of a Murray direction does not automatically arise merely because a conviction depends substantially on the complainant's testimony; the trial judge's reasons must be read as a whole to assess adequacy.
  • Adequate reasons under s 133 of the Criminal Procedure Act 1986 (NSW) do not require exhaustive treatment of every piece of evidence; they require the path of reasoning to be sufficiently disclosed when the reasons are read in their entirety.
  • The unreasonable verdict test requires the appellate court to independently assess the whole of the evidence and determine whether it was open to the fact-finder to be satisfied of guilt beyond reasonable doubt, following M v The Queen (1994) 181 CLR 487 and Pell v The Queen [2020] HCA 12.
  • DNA evidence that excludes an accused as a contributor to a particular profile is a relevant consideration in a sexual assault trial, but its significance depends on the broader evidentiary context; its presence does not automatically undermine an otherwise sound conviction.
  • No error was established in relation to the onus of proof ground where the trial judge's reasons, read overall, demonstrated application of the correct criminal standard.

Legislation and Cases Referenced

Legislation:
- Crimes (Forensic Procedures) Act 2000 (NSW), Pt 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 48
- Criminal Appeal Act 1912 (NSW), s 28A
- Criminal Procedure Act 1986 (NSW), ss 18, 33, 133, 294AA
- Evidence Act 1995 (NSW), ss 116, 165, 177

Cases:
- R v Murray (1987) 11 NSWLR 12
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
- SKA v The Queen (2011) 243 CLR 400
- MFA v The Queen (2002) 213 CLR 606
- TKWJ v The Queen (2002) 212 CLR 124
- Edwards v The Queen (1993) 178 CLR 193
- Fleming v The Queen (1998) 197 CLR 250
- R v Birks (1990) 19 NSWLR 677
- R v Baartman [2000] NSWCCA 298
- Ewen v R [2015] NSWCCA 117
- Kaifoto v R [2006] NSWCCA 186