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Court of Criminal Appeal 30 May 2022

Maber (a pseudonym) v R

[2022] NSWCCA 106

Sexual offencesDomestic & family violence
CRIME APPEAL AGAINST CONVICTION WHETHER CONVICTIONS WERE UNREASONABLE LEAVE GRANTED BUT APPEAL DISMISSED

Citation: Maber (a pseudonym) v R [2022] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 30 May 2022
Judge(s): Leeming JA; Hamill J; Ierace J

Background

The applicant (referred to by the pseudonym "Maber" to protect the identities of the complainants) was convicted by a jury in the District Court on 13 counts arising from assaults, acts of indecency, indecent assault, and aggravated sexual intercourse against his three biological daughters. The complainants are referred to in the judgment as M, G, and C. A fourteenth count, involving one of the daughters, resulted in an acquittal.

The offending spanned a number of years. Counts relating to M included sexual offending in 2013 and further conduct in December 2017. Counts relating to G alleged conduct in 2017. The applicant did not give evidence at trial and had a prior history of domestic violence, including convictions from 2012 arising from violence against his former partner and M.

The applicant sought leave to appeal against seven of the thirteen convictions, challenging the verdicts on counts 6, 7, 8, 9, 10, 11, and 12. He did not challenge the remaining convictions. His sole ground of appeal was that the jury verdicts on those seven counts were unreasonable or could not be supported by the evidence.

  • Whether the convictions on counts 6, 7, and 8 (involving complainant M, relating to events on 2 December 2017) were unreasonable, given inconsistencies in the evidence and the absence of any reference to certain conduct in contemporaneous police notes taken shortly after the alleged events.
  • Whether the convictions on counts 9, 10, 11, and 12 (involving complainant G) were unreasonable, given alleged unreliability in G's evidence about dates when compared against school attendance records.
  • Whether leave to appeal on questions of fact should be granted under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

Decision

On the counts relating to M (counts 6, 7, and 8), the central argument was that police arrived at the premises approximately 20 minutes after the alleged conduct and that, despite M's complaint to police about being pushed down the stairs, no reference to the touching of her breasts and vagina appeared in the contemporaneous police notes. Leeming JA acknowledged this was a legitimate point squarely placed before the jury, but found it did not compel a reasonable doubt. The court noted that M and her mother A both gave evidence supporting the Crown case, and that the jury's prior acceptance of M's evidence on counts 1 to 5 (involving similar conduct in 2013) provided important context informing the reliability of her account.

On the counts relating to G (counts 9 to 12), the challenge focused on inconsistencies between G's evidence about dates and what the school attendance records established. Again, the court found these inconsistencies were placed squarely before the jury by both counsel and the trial judge in summing up. Hamill J distinguished the present case from Hodgson v R [2022] NSWCCA 72, where a complainant's description of a pool that had not yet been installed represented a fundamental flaw in the prosecution's core evidence. Here, the date discrepancies did not undermine the evidence to that degree.

All three judges applied the framework from Pell v The Queen (2020) 268 CLR 123, which requires the appellate court to consider whether, on the whole of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt. Leeming JA found that, even if some doubt existed, it would readily be resolved by the advantages the jury held, including observing witnesses give evidence, collective deliberation, and the requirement of unanimity. The court concluded the verdicts could not be characterised as unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that inconsistencies in a complainant's evidence and the absence of a complaint in contemporaneous police notes do not automatically render a jury verdict unreasonable, particularly where those matters were fully ventilated before the jury at trial.
  • Applying Pell v The Queen, the appellate court must assess whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, giving weight to the jury's advantages in assessing witness credibility through direct observation and unanimous deliberation.
  • Where weaknesses in the Crown case are placed squarely before the jury by both counsel and the trial judge, an appellate court is less likely to find that the verdict could not have been reasonably reached.
  • The distinction drawn in Hodgson v R [2022] NSWCCA 72 is significant: evidentiary inconsistencies may fail to displace a verdict unless they reflect a fundamental flaw in the prosecution's critical witnesses, rather than peripheral or explicable discrepancies.
  • Under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), an appeal based on questions of fact requires leave, even where the grounds are considered sufficiently meritorious to warrant serious consideration by the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), s 191

Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4
- Hodgson v R [2022] NSWCCA 72
- R v Cawthray v R [2013] NSWCCA 105
- R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unreported)
- R v Westerman (1991) 55 A Crim R 353