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7
Court of Criminal Appeal 13 May 2021

RD (a pseudonym) v R

[2021] NSWCCA 94

Sexual offencesPublic order & justice offences
CRIME APPEALS WHETHER VERDICTS UNREASONABLE APPEALS WHETHER VERDICTS UNREASONABLE NO CLEAR SUPPORT FOR ONE COUNT

Citation: RD (a pseudonym) v R [2021] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 13 May 2021
Judge(s): Macfarlan JA; Walton J; Hamill J

Background

The applicant stood trial in the District Court in May 2019 on 16 counts of indecent assault of a female under the age of 16, contrary to the now-repealed s 76 of the Crimes Act 1900 (NSW). The alleged victims were his three daughters. The jury convicted him on all 16 counts, and he was sentenced to an aggregate term of 8 years' imprisonment with a non-parole period of 6 years.

The applicant sought leave to appeal against 12 of those convictions in the Court of Criminal Appeal, ultimately pressing challenges to 11 counts. The unchallenged convictions related to counts concerning all three daughters, including two counts involving the Third Daughter.

The central question on appeal was whether the complainants' evidence was directed at the specific acts particularised by the Crown for each count, or whether it amounted only to generalised assertions of a pattern of misconduct. A separate argument was raised concerning the quality and consistency of evidence relating to two counts involving the Second Daughter.

  • Whether the jury's verdicts on the challenged counts were unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the complainants' evidence was specific to the particular acts charged in each count, or constituted only generalised descriptions of a pattern of behaviour
  • Whether, in respect of two counts (Counts 7 and 8), the Second Daughter's evidence lacked sufficient quality and consistency to support conviction
  • Whether, following the quashing of convictions on the unreasonable verdict ground, the Court should enter verdicts of acquittal or order a new trial

Decision

The Court conducted a close examination of the evidence in chief given by the First and Second Daughters in relation to each challenged count. The applicable standard was whether, making proper allowance for the jury's advantage in seeing and hearing the witnesses, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of each particular charge. For that standard to be met, the evidence needed to be specific to the particular charged act, not merely a generalised assertion of misconduct.

In relation to several counts, the Court identified a critical distinction between evidence delivered using the habitual "would" formulation (describing a recurring pattern of conduct) and evidence that identified a specific occasion and a specific act. Where the complainant's evidence used language such as "he would" throughout, without anchoring the described conduct to a particular occasion, the Court found it was not open to the jury to be satisfied that the acts particularised had been proven beyond reasonable doubt. Counts 1, 2, 12, 13, and 14 were quashed on this basis.

In contrast, the Court found that for Counts 5, 6, 7, 9, 11, 13, and 14 (Walton J confirming the approach in his concurring judgment), the complainants were testifying to specific occasions and specific acts despite some use of the "would" formulation in parts of their evidence. The convictions on those counts survived the appeal. However, Count 8, relating to an alleged shower incident involving the Second Daughter, was quashed because the evidence did not make clear whether the complainant was describing a specific occasion or either a pattern of behaviour or a different occasion entirely. The Court also quashed the conviction on Count 12 on the basis that there was no specific evidence capable of supporting it.

On the question of remedy, the Court entered verdicts of acquittal on the quashed counts rather than ordering a new trial. Applying established principles, the Court held that where convictions are quashed on the ground of unreasonable verdict, the Crown should not be permitted to seek to improve its case at a further trial. No special circumstances existed to justify a retrial.

Orders Made

  • Leave to appeal granted in relation to the challenged counts
  • Convictions on Counts 1, 2, 8, 12, 13, and 14 quashed
  • Verdicts of acquittal entered on Counts 1, 2, 8, 12, 13, and 14
  • Convictions on Counts 5, 6, 7, 9, 11 (and the unchallenged counts) upheld
  • No new trial ordered

Key Takeaways

  • A conviction for a specific charged act cannot stand where the complainant's evidence amounts only to a generalised description of a pattern of behaviour rather than testimony directed at a particular occasion and particular act.
  • The frequent use of the word "would" in a complainant's evidence is a significant indicator that the evidence may describe habitual conduct rather than a specific incident, requiring close appellate scrutiny of each count individually.
  • Where convictions are quashed on the ground of unreasonable verdict, the Court of Criminal Appeal will ordinarily enter acquittals rather than order a new trial. The Crown is not to be given a further opportunity to improve its case absent special circumstances.
  • The Court of Criminal Appeal confirmed that its task on an unreasonable verdict ground requires an independent assessment of the evidence, while making full allowance for the jury's advantage in seeing and hearing the witnesses.
  • Whether evidence using habitual language ("would") supports a specific count depends on a careful, count-by-count analysis. The same witness's evidence may be sufficiently specific in relation to some counts and insufficiently specific in relation to others.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 76 (now repealed)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Evidence Act 1995 (NSW), s 32
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 5.10

Cases
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
- Prasad v R [2020] NSWCCA 349
- R v A2 [2019] HCA 35; (2019) 93 ALJR 1106
- R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unreported)
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Wade v The Queen [2018] VSCA 304