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Court of Criminal Appeal 30 September 2022

Krojs v R

[2022] NSWCCA 209

Sexual offences

Citation: Krojs v R [2022] NSWCCA 209
Court: Court of Criminal Appeal, NSW
Date: 30 September 2022
Judges: Adamson J (with Wright J and Fagan J agreeing)

Background

The applicant was convicted by a jury in the District Court of sexual intercourse with a child aged 12, contrary to s 66C of the Crimes Act 1900 (NSW). The jury acquitted him of the primary count of aggravated sexual assault (which required proof of non-consent and knowledge of non-consent) but convicted him on the alternative count, which required proof only of sexual intercourse with a child between 10 and 14 years of age.

The offence occurred in June or July 2015 when the 12-year-old complainant came to stay at the applicant's home after an argument with her father. The complainant gave evidence that the applicant entered the bedroom, locked the door, began kissing her, pinned her arms, and penetrated her despite her saying "No, stop" and telling him it hurt. The applicant was sentenced to four years' imprisonment with a non-parole period of two years.

The applicant sought leave to appeal against both conviction and sentence on four grounds: that tendency evidence was wrongly admitted; that the Crown Prosecutor's conduct occasioned a miscarriage of justice; that the verdict was unreasonable; and that the sentencing judge's factual finding was inconsistent with the jury's verdicts.

  • Whether tendency evidence of the applicant's admitted consensual sexual relationship with a 14-year-old was wrongly admitted, given the charged offence involved no consent
  • Whether the Crown Prosecutor's questioning of witnesses, cross-examination of the applicant, and final address caused a miscarriage of justice
  • Whether the conviction on the alternative count was unreasonable, particularly in light of the acquittal on the primary count
  • Whether the sentencing judge's finding that the sexual intercourse was forceful breached the De Simoni principle (which prohibits sentencing for a more serious offence than that of which the offender was convicted) or was inconsistent with the jury's verdicts

Decision

Tendency evidence: The Court held that the tendency evidence was properly admitted. Although the prior relationship was consensual and the charged conduct was not, the evidence nonetheless demonstrated that the applicant had a sexual interest in girls under 16 years of age and had acted on it. That tendency made it more likely he had a sexual interest in the complainant and acted on it, which was relevant to the charge. The Court discussed the approach in Hughes v The Queen (2017) 263 CLR 338, affirming that tendency evidence need not mirror the charged conduct in all respects to carry sufficient probative value.

Crown Prosecutor's conduct: The Court acknowledged that a transcript alone cannot capture the tone or manner of questioning. Applying R v PL [2009] NSWCCA 256, the Court found that the prosecutor's obligations of fairness must be understood alongside the duty to prosecute the case forcefully and appropriately. None of the topics raised exceeded the scope of what was proper, and the prosecutor's use of "we" and "us" in questions was not improper.

Unreasonable verdict: The Court rejected the submission that the alternative count verdict was unreasonable. The Crown's failure to address specifically on count 2 was not problematic because the elements of that count overlapped substantially with the primary count, which was addressed. The acquittal on count 1 was explicable on the basis that the jury may not have been satisfied beyond reasonable doubt that the applicant knew the complainant did not consent, an element not required for count 2. Inconsistencies in the complainant's evidence about when and to whom she disclosed were found to be relatively peripheral, and it remained open to the jury to accept parts of her evidence while rejecting others.

Sentencing ground and the De Simoni principle: The sentencing judge found that the sexual intercourse was forceful and occurred without the complainant's consent. The Court held this was consistent with the verdicts: the acquittal on count 1 indicated only that the jury was not satisfied the applicant knew the complainant did not consent, but it did not exclude the possibility that she had not in fact consented. Because the finding about forceful non-consensual intercourse did not import any finding about the applicant's knowledge of consent, it did not elevate the offence into the more serious category of aggravated sexual assault under s 61J, and therefore did not breach the De Simoni principle.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Tendency evidence need not replicate the alleged offending in all respects. Evidence of a prior consensual sexual relationship with an underage person can be admissible to show a sexual interest in underage persons and a willingness to act on that interest, even where the charged offence involves non-consent.
  • A verdict of not guilty on a charge requiring proof of knowledge of non-consent is not necessarily inconsistent with a conviction on an alternative charge that omits that element. The acquittal speaks only to the element that distinguished the two counts.
  • Where the Crown addresses fully on a primary count, the failure to address specifically on an alternative count with overlapping elements will not, without more, render a conviction on that alternative count unreasonable.
  • The De Simoni principle prevents a sentencing court from punishing an offender as though convicted of a more serious offence, but a factual finding about forceful non-consensual intercourse does not breach that principle if it does not import a finding about the offender's knowledge of consent, which would be the element lifting the conduct into the more serious category.
  • Appellate review of a prosecutor's conduct faces an inherent limitation: transcripts cannot convey tone or manner, and fairness obligations must be assessed alongside the prosecutor's legitimate duty to put the Crown case as forcefully as appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J (aggravated sexual assault), 66C (sexual intercourse with child aged 10 to 14)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 84, 170
- Evidence Act 1995 (NSW), ss 97, 101 (tendency evidence)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Key Cases:
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (tendency evidence)
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (sentencing principle)
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (sentencing and fact-finding)
- R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 (leave requirements; prosecutor's conduct)
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29