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Court of Criminal Appeal 26 March 2021

Kassab (a pseudonym) v R

[2021] NSWCCA 46

Sexual offences

Citation: Kassab (a pseudonym) v R [2021] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 26 March 2021
Judges: Johnson J, N Adams J (principal judgment), Ierace J

Background

The applicant was convicted of 22 counts of historical child sexual abuse alleged to have been committed against his two nieces between 1974 and 1989. Both complainants were born in Syria and came to Australia as young children. The alleged offences occurred at a family home where the two extended families lived together from 1976 until around 1980, when the complainants were aged approximately 6 to 12 years old.

Both complainants disclosed the alleged abuse repeatedly over subsequent decades to friends, boyfriends, husbands, and relatives, before each made a formal complaint to police in 2013. A joint trial initially commenced in 2018 against the applicant and another uncle, but that trial was aborted and proceedings against the co-accused did not continue. The applicant's trial proceeded in 2019 before Judge Weber SC and a jury of twelve. He was convicted on 22 counts and acquitted on nine. He was sentenced to an aggregate term of 12 years imprisonment with a non-parole period of 7 years.

The applicant sought leave to appeal against his convictions on two grounds: that the guilty verdicts were unreasonable or inconsistent with the acquittals, and that the trial miscarried through the wrongful admission of evidence relating to one complainant and to multiple complaint witnesses.

  • Whether the guilty verdicts were inconsistent with the acquittals, given that some counts on which the applicant was acquitted concerned alleged offences said to have occurred in locations or at times that the evidence cast into doubt (including a garage not yet built, and a period before the complainants moved into the premises)
  • Whether the acquittals on those counts necessarily reflected jury doubts about the complainants' overall credibility, thereby undermining the guilty verdicts
  • Whether the trial judge erred in failing to exclude one complainant's evidence entirely on the basis that she had undergone hypnosis or EMDR (Eye Movement Desensitisation and Reprocessing) therapy before trial
  • Whether the trial judge erred in admitting complaint evidence made by both complainants to various people over the decades following the alleged offences, under s 66(2) of the Evidence Act 1995 (NSW), on the basis that the events remained "fresh in the memory"

Decision

Ground 1: Unreasonable or inconsistent verdicts

The Court rejected the argument that the guilty verdicts were inconsistent with the acquittals. The acquittals on certain counts were explicable by specific, identifiable doubts: some alleged offences were said to have occurred in a garage that had not yet been built, or at the family home at a time before the complainants had moved there. Those doubts were tied to particular factual circumstances, not to a wholesale rejection of the complainants' credibility. The jury's doubts on those specific counts did not logically require doubts about the remaining counts. The Court was also satisfied that, looking at the evidence as a whole, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on the counts for which he was convicted.

Ground 2(a): Victoria's evidence and EMDR therapy

The trial judge found as a fact that the complainant Victoria had not undergone hypnosis. The Court of Criminal Appeal held that finding was a finding of fact and no error in it was demonstrated on appeal. As to EMDR therapy, the therapy had been undertaken after Victoria gave her police statement but before trial, and it was not video recorded. Critically, there was no indication that her evidence changed following the therapy. The Court found no error in the trial judge's refusal to exclude her evidence under s 137 of the Evidence Act, which requires exclusion where the danger of unfair prejudice substantially outweighs the probative value of the evidence. The requirements for exclusion were not met.

Ground 2(b): Complaint evidence under s 66(2)

The Court upheld the admissibility of complaint evidence made over many years to friends, partners, and relatives. Section 66(2) of the Evidence Act permits the admission of previous representations as evidence of an asserted fact where the event was "fresh in the memory" of the maker. The Court confirmed that for traumatic events, particularly those involving child sexual abuse, matters may remain fresh in memory for many years. Relevantly, both complainants had disclosed the alleged abuse repeatedly and consistently over the relevant period. The Court distinguished between a complainant disclosing abuse for the first time after 30 years and one who had disclosed it numerous times throughout that period. The fact of ongoing, consistent complaint was a highly relevant consideration. The trial judge had applied the correct test and identified the relevant delays. No error of the kind identified in House v The King (1936) was established.

Orders Made

  • Leave to appeal against conviction granted.
  • The appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that acquittals on some counts do not automatically render guilty verdicts on other counts inconsistent, where the acquittals can be explained by specific, identifiable factual doubts rather than a general rejection of the complainants' credibility.
  • A trial judge's finding that a complainant did not undergo hypnosis is a finding of fact; an appellate court will not interfere with that finding absent demonstrated error.
  • Under s 66(2) of the Evidence Act 1995 (NSW), the "fresh in the memory" requirement for admissibility of previous representations does not impose a fixed time limit. Traumatic events, particularly childhood sexual abuse, may remain fresh in memory for many years, especially where disclosure has been made repeatedly and consistently throughout the intervening period.
  • The Court drew a material distinction between a complainant who first discloses alleged abuse after a gap of 30 or more years, and one who has made ongoing, consistent disclosures across that same period. The latter circumstance strongly supports a finding that the events remained fresh in memory for s 66(2) purposes.
  • Even where complaint evidence might not satisfy s 66(2) as hearsay evidence, it may remain admissible on another basis, such as under s 108(3) of the Evidence Act, which deals with the rehabilitation of credibility.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Evidence Act 1995 (NSW), ss 59, 60, 66(2), 108(3), 136, 137, 165

Cases
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Collins v R [2020] NSWCCA 198
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- Graham v The Queen (1998) 195 CLR 606
- Hawi v R [2014] NSWCCA 83
- House v The King (1936) 55 CLR 499
- Jones v The Queen (1997) 191 CLR 439
- Kim v R [2020] NSWCCA 288
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- Maughan v R [2020] NSWCCA 51
- MFA v The Queen (2002) 213 CLR 606
- Papakosmas v The Queen (1999) 196 CLR 297
- Pell v The Queen [2020] HCA 12
- R v Bauer (2018) 266 CLR 56
- R v Gregory-Roberts [2016] NSWCCA 92
- R v Jenkyns (1993) 32 NSWLR 712
- R v KG (2001) 54 NSWLR 198
- R v McFelin [1985] 2 NZLR 750
- R v O'Donoghue (1988) 34 A Crim R 397