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Court of Criminal Appeal 19 October 2022

GS v R

[2022] NSWCCA 225

Sexual offences
CRIMINAL LAW CONVICTION APPEAL TRIAL BY JUDGE ALONE APPROACH TO TRIAL BY JUDGE ALONE GROUND REJECTED APPEAL DISMISSED.

Citation: GS v R [2022] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 19 October 2022
Judges: Beech-Jones CJ at CL; Garling J; Wilson J

Background

The applicant, GS, was tried before a judge alone and convicted of one count of sexual assault contrary to s 61I of the Crimes Act 1900 (NSW). The Crown alleged that in February 2010, GS drove from interstate to a property at Taylors Flat, where he forced the complainant, PS, into the back seat of his car and sexually assaulted her. PS was GS's niece, 17 years old at the time, legally blind, and had never attended school.

The trial proceeded against a deeply troubling background of systemic sexual abuse. The trial judge found it was not in dispute that PS had been continually sexually assaulted from a very young age by various family members, and that her mother had condoned, if not actively encouraged, those assaults. PS had been threatened with violence, including death, if she told anyone.

PS first told police about the assault by GS in 2013, but later retracted that statement while living with her mother. She made further complaints to police in 2017 about other family members but did not mention GS at that time. She gave fuller evidence about the assault by GS in two police interviews in 2018. GS was sentenced to four years' imprisonment with a non-parole period of two years and four months. He filed his appeal after his release on parole.

  • Whether the guilty verdict was unreasonable and could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether unfairness arose from PS providing greater detail about the assault in her oral evidence than in her first police interview
  • Whether PS's failure to mention the assault by GS at earlier opportunities rendered her evidence unreliable
  • Whether the withdrawal of charges relating to other family members affected PS's credibility or reliability

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with leave granted on the single ground pressed. Beech-Jones CJ at CL (with Garling J and Wilson J agreeing on outcomes) found that it was reasonably open to the trial judge to be satisfied beyond reasonable doubt of GS's guilt, and that none of the contentions raised by GS created any doubt about the conviction.

On the inconsistency in the vehicle description, the Court acknowledged that PS described the car as a green Holden Commodore in her police interview but referred to it as a green Ford "XR6" in cross-examination. However, PS herself explained during cross-examination that she preferred not to think about GS's car. The Court held that even if the vehicle discrepancy were established, it amounted to a doubt that the trial judge's advantage in seeing and hearing PS give evidence was capable of resolving.

On the question of detail, the Court found the suggestion that PS gave significant details of the assault "for the first time" in her evidence was not substantiated. Given the family context she described, her account was not implausible, and the explanations she and police provided about the scope of the earlier interviews meant no doubt arose about her honesty or reliability. On the issue of delayed or incomplete complaint, the Court noted that PS's retraction of the 2013 statement occurred while she was living with her mother, who had encouraged male family members to assault her, providing a clear explanation for the retraction.

On the final issue, it was accepted by the applicant that none of the charges withdrawn by the Director of Public Prosecutions concerned allegations by other family members in which PS was herself the complainant. That issue therefore carried no weight against PS's credibility.

Beech-Jones CJ at CL, with Wilson J agreeing and Garling J expressly reserving his position, also addressed a point of appellate principle: when reviewing a judge-alone verdict for unreasonableness, the advantage the trial judge enjoyed from seeing and hearing witnesses is not confined by, or dependent upon, what the judge expressly recorded in their reasons. The scope of that advantage is not limited by any express statement or disclaimer in the judgment itself.

Orders Made

  • Leave granted to the applicant to raise ground 4 of the notice of appeal
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a guilty verdict in a judge-alone trial will not be set aside as unreasonable where it was reasonably open to the trial judge to be satisfied of guilt beyond reasonable doubt on the evidence as a whole.
  • A credibility advantage arising from seeing and hearing witnesses at trial is not extinguished simply because the trial judge did not expressly articulate that advantage in their written reasons. Beech-Jones CJ at CL and Wilson J held that the scope of a judge's advantage as the tribunal of fact is not confined by what the judge records about it (Garling J reserved his position on this point).
  • Inconsistencies in a complainant's description of peripheral details do not necessarily undermine the safety of a conviction, particularly where the complainant offers a contemporaneous explanation for the inconsistency and the trial judge had the benefit of observing her evidence firsthand.
  • Delay in reporting sexual offences, or omissions in earlier complaints, must be assessed in their full context. Here, the circumstances of family-based coercion, threats of violence, and the complainant's living situation at the time of retraction were relevant to evaluating the reliability of her account.
  • Where charges against other accused persons are withdrawn by the Director of Public Prosecutions, the withdrawal does not automatically reflect on the credibility of a complainant in a separate trial, particularly where the complainant was not the complainant in those withdrawn charges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I (sexual assault), s 578A (prohibition on publication of complainant's identity)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 306M, 306U(1)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63