AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 25 May 2022

AB v R

[2022] NSWCCA 104

Sexual offences

Citation: AB v R [2022] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 25 May 2022
Judge(s): Adamson J (leading judgment); Wright J (agreeing at [101]); Dhanji J (agreeing at [105])

Background

The applicant, a stepfather, was convicted after a judge-alone trial in the District Court on two counts: sexual intercourse with a child under 10 (digital penetration of his stepdaughter in late 2009 or early 2010, when she was approximately six years old); and grooming a child under 14 by showing her pornographic images. The complainant had an intellectual disability and gave evidence through pre-recorded JIRT interviews conducted when she was 14 and 15, and was cross-examined at trial when she was 16.

The Crown case relied on the complainant's direct evidence, corroborated by a neighbour (Ms Van de Vate) who entered the house after hearing screaming, tendency evidence from separate criminal proceedings involving the applicant's biological daughter, evidence of the complainant's sexualised behaviour, and a series of complaint witnesses. The applicant's mother denied that the complainant had made a complaint to her shortly after the alleged event.

The applicant sought leave to appeal his convictions on nine grounds, broadly concerning the trial judge's reasoning, her handling of inconsistencies in the evidence, and the reasonableness of the verdicts.

  • Whether the trial judge reversed the onus of proof when assessing the complainant's reliability and honesty
  • Whether the trial judge failed to take into account, or gave inadequate reasons concerning, Ms Van de Vate's evidence that she did not observe any sexual assault
  • Whether the trial judge erred in relying on the grandmother's complaint evidence
  • Whether the trial judge failed to consider the cumulative effect of inconsistencies in and around the complainant's evidence, or provided inadequate reasons on that question
  • Whether the trial judge's findings and reasoning concerning evidence of the complainant's sexualised behaviour were adequate
  • Whether the verdicts on both counts were unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge adequately considered whether the material shown to the complainant (count 2) was "indecent"

Decision

The Court of Criminal Appeal dismissed most of the individual grounds but allowed the appeal on the basis that the trial judge's reasons were inadequate in addressing key conflicts in the evidence, and that this inadequacy amounted to a substantial miscarriage of justice.

On the onus of proof ground, Adamson J found no error. The trial judge had correctly stated the relevant legal principles derived from Ewen v R and R v Murray, and the impugned passages did not reverse the burden of proof when read in context.

The critical finding concerned the trial judge's failure to reconcile two significant evidentiary tensions: first, between the complainant's account (that she was actively being assaulted when Ms Van de Vate arrived and was directed to leave) and Ms Van de Vate's account (that she saw the applicant adjusting his clothing and the complainant appearing frightened and frozen, but did not witness any sexual act); and second, between the complainant's evidence that she told the applicant's mother (Mrs B) about the assault shortly afterwards, and Mrs B's denial of any such complaint. Adamson J held that the trial judge's reasons did not adequately grapple with these conflicts and did not explain how they were resolved in a way favourable to the Crown.

Drawing on the principle that articulating reasoning often reveals its flaws, Adamson J held that it could not be assumed the trial judge would have reached the same conclusion had she engaged properly with those conflicts. Because the complainant's credit was central to the outcome, and the Court of Criminal Appeal did not have the benefit of observing the witnesses, the Court could not be satisfied beyond reasonable doubt of the applicant's guilt on the record of the trial. Accordingly, there had been a substantial miscarriage of justice and the convictions on both counts were quashed. A new trial was ordered. The inadequacy of reasoning on count 1 also infected the count 2 verdict because the trial judge had relied on count 1 in supporting the finding of guilt on count 2.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions on counts 1 and 2 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

  • A trial judge's failure to articulate reasoning that reconciles significant conflicts in the evidence can constitute inadequate reasons amounting to a substantial miscarriage of justice, even where no individual finding is demonstrably wrong.
  • Where the credit of a complainant is central to a conviction, the Court of Criminal Appeal will not substitute its own assessment from the record alone; if the trial judge's reasoning is inadequate, the appellate court cannot simply assume the same outcome would have followed.
  • The principle that "opinions often won't write" was applied: the discipline of composing reasons can itself reveal errors in reasoning, and a failure to undertake that exercise deprives the appellate court of the basis on which to evaluate the verdict.
  • Adequate reasons do not require every piece of evidence to be discussed, but must address conflicts that are material to the central issue, particularly where the reliability of a key witness is the crux of the case.
  • An error in reasoning with respect to one count can infect a related count where the trial judge expressly relied on the finding on the first count to support her conclusion on the second.

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