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Court of Criminal Appeal 22 August 2022

Macri v R

[2022] NSWCCA 177

Also reported as (2022) 110 NSWLR 1
Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION HISTORICAL CHILD SEXUAL OFFENCES APPLICATION FOR PERMANENT STAY REFUSED WHERE INDICTMENT SPANNED FIVE YEARS

Citation: Macri v R [2022] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 22 August 2022
Judges: Beech-Jones CJ at CL; N Adams J; Lonergan J

Background

The applicant stood trial in March 2021 before Judge Noman SC and a jury on three charges of historical child sexual assault under the Crimes Act 1900 (NSW). The alleged offending spanned a five-year period from February 1986 to January 1991, when the complainant, the daughter of the applicant's girlfriend at the time, was aged between six and twelve years old. A prior trial before a different judge had been aborted. Before that first trial commenced, the applicant applied for a permanent stay of the prosecution, which was refused.

The jury returned guilty verdicts on all three counts, and the applicant was sentenced to an aggregate term of four years and six months imprisonment with a non-parole period of three years. The applicant then sought leave to appeal his conviction to the Court of Criminal Appeal.

  • Whether the primary judge erred in refusing the application for a permanent stay of the prosecution, given the broad five-year indictment date range, the complainant's lack of precise particularity as to timing and sequence, and the forensic disadvantage caused by significant delay.
  • Whether the verdicts on all three counts were unreasonable and unsupported by the evidence, having regard to the overall quality of the complainant's testimony.
  • What standard of review applies on appeal where a permanent stay was refused and the trial proceeded to conviction.

Decision

Ground 1: Refusal of the permanent stay

The Court confirmed the applicable standard of review where a stay has been refused and a conviction follows. An applicant must establish both that the primary judge's discretion miscarried in the sense described in House v The King (1936) 55 CLR 499 (that is, some identifiable legal error in the exercise of discretion, rather than mere disagreement with the outcome) and that a miscarriage of justice occurred at trial within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). This two-limb requirement is dictated by authority, including the High Court's decisions in Glennon and Dupas and this Court's decision in Hughes.

Beech-Jones CJ at CL noted, as a matter of first principle, that he would have favoured an approach under which the refusal of a stay based on fairness grounds collapses into the broader miscarriage of justice inquiry under s 6(1). However, his Honour accepted that existing authority required both House error and a miscarriage to be demonstrated. On the facts, the applicant established neither. The Court found that the difficulties arising from the vagueness of the indictment and the passage of time did not warrant a stay, and the trial was not in fact unfair.

Ground 2: Unreasonable verdicts

The Court applied the test from M v The Queen (1994) 181 CLR 487 and Pell v The Queen (2020) 268 CLR 123, which requires the appellate court to independently examine the whole of the evidence and determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. N Adams J, with whom the other judges agreed, held that the complainant's recollections were reasonably clear and precise as to the acts constituting each offence. Her evidence was described as unembellished and cogent.

Supporting the complainant's account was evidence of complaints made around the time of the alleged offending and a pretext call (a recorded phone conversation made by the complainant to the applicant in May 2019 as part of a police investigation) in which the applicant's responses were difficult to explain away as mere attempts to placate a distressed caller. Lonergan J agreed the verdicts were open but expressed some reservation about the weight of the pretext call evidence. The Court was unanimously satisfied that it was well open to the jury to convict on all three counts, and dismissed the ground.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where a permanent stay is refused and the trial proceeds to conviction, an appellant challenging the refusal on appeal must satisfy a two-limb test: demonstrating House error in the exercise of the discretion to refuse the stay, and establishing a miscarriage of justice at trial under s 6(1) of the Criminal Appeal Act 1912 (NSW). Showing only one limb is insufficient.

  • Beech-Jones CJ at CL flagged a tension in principle: where the stay application was grounded in concerns about trial fairness, the House error inquiry may add little to what is already captured by the miscarriage of justice inquiry. His Honour nonetheless applied the established two-limb framework, acknowledging it was dictated by authority.

  • In dismissing the unreasonable verdict ground, the Court applied the familiar appellate standard requiring an independent examination of the whole evidence, consistent with the approach affirmed in Pell v The Queen.

  • A broad indictment date range and a complainant's inability to specify the precise timing or sequence of alleged events within that range do not, without more, render guilty verdicts unreasonable, provided the complainant's descriptions of the acts constituting the offences are sufficiently clear and precise.

  • Complaint evidence and a pretext call recording can constitute supporting material capable of reinforcing a complainant's account in historical child sexual assault cases, though the weight to be given to such material remains a matter for assessment in the context of the whole trial record.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Evidence Act 1995 (NSW), s 165B

Cases
- House v The King (1936) 55 CLR 499
- The Queen v Glennon (1992) 173 CLR 592
- M v The Queen (1994) 181 CLR 487
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Hughes v R [2015] NSWCCA 330
- Jago v The District Court of NSW (1989) 168 CLR 23
- Palmer v The Queen (1998) 193 CLR 1
- Kassab (a pseudonym) v R [2021] NSWCCA 46
- Hogan (a pseudonym) v R [2019] NSWCCA 125
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Bandao v R; Bruce v R [2018] NSWCCA 181
- R v RD [2016] NSWCCA 84