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Court of Criminal Appeal 30 September 2022

Harper v R

[2022] NSWCCA 211

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT APPEALS APPEAL AGAINST CONVICTION

Citation: Harper v R [2022] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 30 September 2022
Judge(s): Bell CJ; Button J (principal judgment); N Adams J

Background

The applicant stood trial in the District Court of New South Wales on an indictment containing eleven counts of sexual and physical violence against an adult complainant. The alleged offending occurred over a period of approximately five weeks in 2019, during what was described as a turbulent relationship. The jury returned guilty verdicts on two counts of sexual intercourse without consent (penile-vaginal and penile-anal intercourse occurring in the same course of events), one count of common assault as an alternative verdict, and the applicant had pleaded guilty to one count of intimidation. The jury acquitted the applicant on the remaining seven counts of sexual intercourse without consent.

Central to the Crown's case on the two conviction counts were text messages sent by the complainant to the applicant in the hours after the alleged assaults. The messages included statements such as "You won't listen to me say 'No, I'm in pain'" and "You fucked up big time boy." The Crown relied on these as powerful contemporaneous complaints of sexual assault.

The applicant appealed against both his conviction and his sentence. The aggregate sentence imposed was six years' imprisonment, with a non-parole period of four years, commencing 30 October 2020.

  • Whether the guilty verdicts on the two sexual assault counts were unreasonable, given the jury's acquittals on the other counts suggested a rejection of the complainant's general credibility, and that the jury must therefore have misused the text message evidence.
  • Whether the trial miscarried because the trial judge failed to give an Edwards direction (a direction warning the jury about consciousness of guilt reasoning) in response to aspects of the Crown prosecutor's final address concerning the applicant's continuation of the relationship.
  • Whether the trial miscarried because the trial judge gave only a partial Liberato direction (a direction about how to approach the accused's evidence when it conflicts with the complainant's) that omitted reference to the possibility of completely rejecting the applicant's evidence.
  • Whether the aggregate sentence was manifestly excessive, and whether the trial judge failed to consider alternatives to full-time custody for the less serious, non-sexual offences.

Decision

Ground 1: Unreasonable verdict

Button J (with whom Bell CJ and N Adams J agreed) rejected the contention that the acquittals demonstrated the jury must have misused the text message evidence. In the absence of an inconsistent verdicts ground, an intermediate appellate court's role is not to scrutinise the asserted bases of particular jury findings or speculate about how the jury reached them. The text messages were described as powerful contemporaneous evidence supporting the charges on which the applicant was convicted, and the verdicts were not unreasonable. The Court also reiterated that appellate courts must not assess the behaviour of sexual assault complainants against stereotypical expectations about how victims ought to act.

Ground 2: Failure to give an Edwards direction

The Court found that the vast majority of the identified passages in the Crown prosecutor's final address went to the veracity of the applicant's account, rather than to consciousness of guilt reasoning. The Crown conceded that one submission did invite consciousness of guilt reasoning, but defence counsel had not requested an Edwards direction at trial. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), which governs the raising of points not taken at trial, presented a significant hurdle. Critically, the jury returned not guilty verdicts on all counts that could plausibly have been affected by that consciousness of guilt reasoning, namely the counts allegedly occurring after the text messages that formed the subject of that reasoning. No miscarriage of justice was established.

Ground 3: Partial Liberato direction

A full Liberato direction, which would ordinarily address the jury's maintenance of the onus and standard of proof even if the accused's evidence is entirely rejected, was found to have been inapposite in the circumstances. The Crown itself relied on parts of the applicant's sworn evidence to prove certain counts, and the applicant had admitted in the witness box to committing two of the offences charged. Giving a direction premised on complete rejection of his evidence would have been incongruous in that context. Defence counsel had explicitly agreed to the partial direction at trial, which powerfully engaged Rule 4.15.

Ground against sentence: Manifest excess

The Court cautioned that only the aggregate sentence is amenable to appeal on this ground, not individual indicative sentences. Having regard to the overall sentencing exercise, the Court found the aggregate sentence was not manifestly excessive. The applicant's prior good character could not be relied upon given the jury's findings of sexual assault, and the overall sentence was described as arguably lenient.

Orders Made

  • Leave to appeal against conviction and sentence granted.
  • Appeal against conviction dismissed.
  • Appeal against sentence dismissed.

Key Takeaways

  • In the absence of a specific inconsistent verdicts ground, the Court of Criminal Appeal confirmed it will not scrutinise the reasoning processes by which a jury reached particular verdicts, or speculate about how acquittals on some counts affected the basis for convictions on others.
  • Where an accused gives sworn evidence admitting to certain offences charged, and the Crown relies on that evidence as part of its case, a full Liberato direction may be inapposite and a partial direction appropriate in the circumstances.
  • Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) operates as a significant barrier to conviction appeals based on directions that were not sought at trial, particularly where the absence of the direction caused no miscarriage of justice.
  • Sufficient evidence existed in the form of contemporaneous text messages to support the guilty verdicts independently of broader credibility findings, and the mixed verdict did not render the convictions unreasonable.
  • Only the aggregate sentence, not individual indicative sentences for component offences, is amenable to a manifest excess challenge on appeal.

Legislation and Cases Referenced

Legislation
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), Rule 4.15

Cases
- Dansie v The Queen [2022] HCA 25
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
- Haile v R [2022] NSWCCA 71
- Kassab (a pseudonym) v R [2021] NSWCCA 46
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Maughan v R [2020] NSWCCA 51
- Neto v R [2020] NSWCCA 128
- Nguyen v R [2022] NSWCCA 126
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Lane [2011] NSWCCA 157
- Rao v R [2019] NSWCCA 290
- Stevenson v R [2022] NSWCCA 133
- Vaughan v R [2020] NSWCCA 3
- VP v R [2021] NSWCCA 11
- Xu v R [2019] NSWCCA 178
- Zhou v R [2021] NSWCCA 278