Citation: JC v R [2021] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 1 November 2021
Judges: Macfarlan JA (leading judgment), RA Hulme J, Wright J
Background
Following an eight-day District Court trial in October 2019, the applicant was convicted on 13 counts of sexual offences against four child complainants, all young female relatives in an extended family network. The offences spanned a range of conduct and included sexual intercourse and indecent assault charges under the Crimes Act 1900 (NSW). The applicant was acquitted on two counts. He was sentenced to an aggregate term of six years' imprisonment with a three-year non-parole period.
The four complainants had not made immediate disclosures. Their complaints emerged through a series of conversations in 2018, beginning when two of them discussed the allegations at a medical appointment, then involving other complainants through family conversations and social media. The Crown relied on tendency evidence, asserting cross-admissibility of each complainant's evidence to establish the applicant's sexual interest in young female relatives and a tendency to act on that interest.
The applicant sought leave to appeal his convictions on three grounds: alleged incompetence of defence trial counsel, an unfair Crown closing address, and inconsistency between a guilty verdict on one count and an acquittal on a closely related count.
Legal Issues
- Whether defence trial counsel's failure to put concoction to the complainants in cross-examination amounted to incompetence resulting in an unfair trial
- Whether the Crown's closing address gave rise to a miscarriage of justice
- Whether the acquittal on Count 11 (indecent assault) was inconsistent with the guilty verdict on Count 12 (sexual intercourse) involving the same complainant
Decision
Ground 1: Alleged incompetence of trial counsel. The applicant contended that the chronology of complaint disclosures indicated a real possibility the complainants had combined to fabricate allegations, and that trial counsel should have put this concoction theory directly to each complainant. The Court of Criminal Appeal rejected this ground, finding that defence counsel's decision not to raise concoction explicitly could be explained as a rational forensic choice. Pursuing a concoction case would have required counsel to suggest a coordinated conspiracy involving children, which carried strategic risks including potential damage to the defence's credibility with the jury. The applicant was not denied a fair trial, and no miscarriage of justice was established.
Ground 2: Crown closing address. The applicant argued that errors in the Crown's closing address rendered the trial unfair. The Court found that while the Crown had made errors, the trial judge corrected those errors in his summing up to the jury. Critically, defence counsel made no application for the jury to be discharged and sought no further directions. On the basis of the corrective directions given, the Court concluded the applicant was not denied a fair trial and no miscarriage of justice resulted.
Ground 3: Inconsistent verdicts. The acquittal on Count 11 (alleging breast touching) and the conviction on Count 12 (alleging digital penetration) both involved the same complainant, KA. The Court held the verdicts could be reconciled on a logical and reasonable basis. The complainant's evidence on Count 11 was notably vague, with KA unable to clearly describe what had occurred or confirm the nature of the contact. Her evidence on Count 12, by contrast, was specific and clear. The acquittal on Count 11 was therefore attributable to the quality of the evidence on that count, not to any general doubt about the complainant's credibility. The verdicts were not inconsistent.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A decision by defence trial counsel not to advance a concoction theory in cross-examination will not found an incompetence ground if it is explicable as a rational forensic decision, even if other counsel might have taken a different approach.
- Errors in a Crown closing address do not automatically produce a miscarriage of justice where the trial judge corrects those errors in summing up and defence counsel does not seek a discharge or additional directions.
- Verdicts on separate counts are not inconsistent merely because they involve the same complainant. Where an acquittal is explicable by the insufficiency or vagueness of evidence on that specific count, rather than a rejection of the complainant's credibility generally, the verdicts can stand together.
- In dismissing the appeal, the Court applied the established principle that an acquittal is only irreconcilably inconsistent with a conviction where it is attributable principally to doubt about the witness's credibility, not where evidentiary differences between counts explain the divergent outcomes.
- Tendency evidence under s 97 of the Evidence Act 1995 (NSW) requires "significant probative value," and the manner in which complaints emerge over time, including through conversations between complainants, is a factual matter going to weight rather than automatically defeating admissibility.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66C, 61M, 61O
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), ss 97, 98, 101
Cases:
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- OKS v Western Australia (2019) 265 CLR 268; [2019] HCA 10
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- ARS v R [2011] NSWCCA 266
- BF v R [2019] NSWCCA 321
- DS v R [2021] NSWCCA 52
- La Rocca v R [2021] NSWCCA 116