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Court of Criminal Appeal 25 May 2022

AB v R

[2022] NSWCCA 104

Sexual offences

Citation: AB v R [2022] NSWCCA 104
Court: Court of Criminal Appeal
Date: 25 May 2022
Judges: Adamson J at [1]; Wright J at [101]; Dhanji J at [105]

Background

Following a judge-alone trial in the District Court, the applicant was convicted of two counts of sexual offending against a complainant who was his stepdaughter. The Crown case alleged digital penetration committed in late 2009 or early 2010 when the complainant was approximately six years old, and a separate count of exposing the complainant to indecent material. Expert evidence established that the complainant had a cognitive impairment and functioned at a level significantly below her chronological age peers.

The Crown relied on the evidence of the complainant, a neighbour (Ms Van de Vate) who entered the house after hearing screaming, evidence of complaints made years later to carers, and significant tendency evidence. The tendency evidence comprised the transcript of evidence given by the applicant's biological daughter (UM) in separate proceedings, in which the applicant pleaded guilty to six counts of sexual offending against her.

The applicant's case at trial was that the complainant's evidence was internally inconsistent, implausible, and irreconcilable with independent evidence. He adduced no evidence of his own. The central dispute on appeal was whether the trial judge's reasons adequately dealt with those inconsistencies.

Legal Issues

  • Whether the trial judge reversed the onus of proof by framing her analysis around evidence that "supported" the complainant's account rather than the whole of the evidence
  • Whether the trial judge's reasons adequately addressed the inconsistency between the complainant's evidence and Ms Van de Vate's evidence as to what Ms Van de Vate witnessed when she entered the bedroom
  • Whether the trial judge's reasons adequately addressed the conflict between the complainant's evidence of an immediate complaint to her grandmother (Mrs B) and Mrs B's denial of any such complaint or visit
  • Whether the trial judge's failure to make findings about evidence of the complainant's sexualised behaviour rendered her reasons inadequate
  • Whether the verdicts on each count were unreasonable
  • Whether, if the reasons were inadequate, the proviso applied so as to avoid a substantial miscarriage of justice

Decision

Ground 1 (Reversal of onus of proof): The Court unanimously rejected this ground. The trial judge had expressly and repeatedly directed herself as to the Crown's onus and the standard of proof beyond reasonable doubt. Her references to evidence that "supported" the complainant arose in the context of applying an Ewen direction, which was the correct direction to give in a sexual assault trial before a judge alone (rather than a Murray direction, which would be inconsistent with section 294AA of the Criminal Procedure Act). No incorrect statement of principle was identified and there was no indication it was not applied (at [62]-[64]).

Grounds 2 and 3 (Adequacy of reasons: Ms Van de Vate and Mrs B): The court divided. Adamson J (with whom Wright J agreed on these grounds) held that the trial judge's reasons, read fairly as a whole, were adequate. Her Honour had implicitly rejected the complainant's account that Ms Van de Vate witnessed the act of digital penetration by accepting Ms Van de Vate's evidence, and had treated the precise timing of the neighbour's arrival as a "peripheral" matter. Adamson J considered the reasons sufficient to explain why such peripheral inconsistencies did not undermine the complainant's credibility on the central elements (at [70]-[83]). Similarly, Adamson J considered the trial judge's treatment of the Mrs B complaint evidence adequate, finding her Honour had implicitly reasoned that miscommunication explained the inconsistency (at [84]-[87]).

Dhanji J disagreed on both grounds and formed the majority view (Wright J agreeing with Dhanji J). Dhanji J held that the reasons failed to address the critical inconsistency between the complainant's account, in which Ms Van de Vate was present during the act and called on the applicant to stop, and Ms Van de Vate's own evidence that she saw no sexual assault. This was not a matter of peripheral timing but went to the reliability of the complainant's account of the act itself (at [131]-[137]). As to Mrs B, Dhanji J accepted that the trial judge had not adequately addressed several additional aspects of the conflict, including the complainant's evidence that she had arranged independently to travel to Mrs B's house, stayed more than one night, and received a specific response from Mrs B, all of which Mrs B denied (at [140]-[143]). The applicant was entitled to know how the trial judge was satisfied of guilt in circumstances where the complainant's account of the assault was contradicted by an independent witness, and the reasons did not expose that reasoning (at [136]-[138]).

Ground 5 (Evidence of sexualised behaviour): The court unanimously held that the trial judge's failure to make express findings about the evidence of the complainant's sexualised conduct (playing in a sexualised manner with another child, and touching another child's genitals) did not render the reasons inadequate. Not every piece of evidence requires a finding. The evidence was of relatively low significance, the expert witness was not cross-examined, and the absence of express reference indicated the trial judge gave it little or no weight rather than disregarding it entirely (at [89]-[91]).

Grounds 6 and 7 (Unreasonable verdicts): Adamson J, with whom Wright J agreed, held that the verdicts were not unreasonable on the evidence as a whole. It was open to the trial judge to find the applicant guilty on both counts beyond reasonable doubt, having regard to the complainant's evidence, Ms Van de Vate's observations, the tendency evidence, and the complaints made to carers in 2017 and 2018 (at [95], [99]).

Proviso (substantial miscarriage of justice): Dhanji J, having found the reasons inadequate on grounds 2 and 3, considered whether the proviso to section 6(1) of the Criminal Appeal Act should nonetheless be applied. He held it should not. The inadequacy of reasons was not necessarily limited to a failure of expression: it was possible the trial judge had failed to properly consider significant conflicting evidence. The complainant's credit was central to proof of both counts and the appellate court had not had the benefit of seeing and hearing witnesses. In those circumstances, Dhanji J was not satisfied of the applicant's guilt beyond reasonable doubt on the record of the trial, and could not be satisfied there had been no substantial miscarriage of justice (at [148]-[152]). Accordingly the appeal was allowed on both counts.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions on counts 1 and 2 on the indictment quashed
  • New trial ordered
  • Matter listed in the Arraignments List in the District Court at Sydney on 27 May 2022 at 9:30am

Key Takeaways

  • Where a trial judge sitting alone without a jury relies on a single witness in a sexual assault trial, an Ewen direction is the appropriate self-direction; a Murray direction is inconsistent with section 294AA of the Criminal Procedure Act and should not be given (at [63]).

  • A judge-alone trial gives an accused an entitlement to reasons in exchange for the right to a jury verdict, and that entitlement is engaged with particular force when the accused's case rests on significant inconsistencies between the Crown's witnesses (at [107], [136]).

  • Adequate reasons do not require express findings on every piece of evidence, but where an inconsistency is central to the contest between the parties and directly bears on the reliability of the only eyewitness to the alleged offence, the reasons must articulate how that inconsistency was resolved (at [134]-[137]).

  • The Court of Criminal Appeal confirmed that the discipline of giving reasons is not merely a means of justifying a conclusion already reached; it is a process of reasoning toward one, and it cannot be assumed that proper engagement with conflicting evidence would have yielded the same outcome (at [150]-[151]).

  • Inadequate reasons do not automatically preclude application of the proviso to section 6(1) of the Criminal Appeal Act, but where the error relates to credibility findings central to guilt, and the appellate court cannot be satisfied of guilt beyond reasonable doubt on the trial record without the advantage of seeing and hearing witnesses, the proviso will not be engaged (at [147]-[151]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A, 66EB
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 133, 293A, 294AA

Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Ewen v R [2015] NSWCCA 117
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Hopgood v R [2019] NSWCCA 246
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- O’Connell v Director of Public Prosecutions (NSW) [2021] NSWSC 1519
- Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
- R v BK [2022] NSWCCA 51
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Murray (1987) 11 NSWLR 12
- Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24
- Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816