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Court of Criminal Appeal 5 December 2022

Miller v R

[2022] NSWCCA 255

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL APPEALS

Citation: Miller v R [2022] NSWCCA 255
Court: Court of Criminal Appeal
Date: 5 December 2022
Judge(s): Meagher JA (at [1]); Mitchelmore JA (at [113]); Bellew J (at [115])

Background

The applicant was tried alone before a District Court judge on eight counts of alleged sexual offending against two complainants, referred to by pseudonyms HH and CD. He was acquitted of the three counts relating to CD and convicted of five counts of aggravated indecent assault against HH, all arising from incidents in 2017 when HH visited the applicant's Central Coast home while her half-sister (the applicant's de facto partner) was at work. He was sentenced to seven years' imprisonment with a non-parole period of four years.

At trial, the applicant conceded he had opportunities to be alone with HH but denied that any of the alleged conduct occurred. The trial judge rejected his denials and was satisfied beyond reasonable doubt that HH was a credible and reliable witness. No appeal was brought against the sentence.

On appeal, the applicant challenged the adequacy of the trial judge's reasons for rejecting his evidence, contended the verdict was unreasonable and unsupported by the evidence, and relied on fresh evidence from a witness who deposed to an alleged conversation suggesting HH's complaint may have been fabricated.

Legal Issues

  • Whether the trial judge gave adequate reasons for rejecting the applicant's sworn denials of the offending (Ground 1)
  • Whether the verdict was unreasonable and could not be supported by the evidence (Ground 2)
  • Whether fresh evidence, unavailable at trial, gave rise to a miscarriage of justice warranting a new trial (Ground 3)

Decision

Ground 1: Adequacy of reasons for rejecting the applicant's denials

The Court of Criminal Appeal held that the trial judge's reasons adequately exposed her reasoning process for rejecting the applicant's evidence (at [54]). Although the applicant argued that the trial judge had done no more than note that he sought to minimise his opportunity to offend, the Court found that this observation reflected a genuine credibility assessment grounded in the manner in which the applicant had answered questions at trial and during his police interview (at [43]-[46]). The trial judge's finding that she was not "impressed" with the applicant's evidence constituted an adverse demeanour-based credibility finding, and her comprehensive reasons for accepting HH's evidence meant the applicant's denials were contradicted by evidence the judge believed (at [52]-[53]).

Ground 2: Unreasonable verdict

All three judges conducted independent assessments of the evidence and concluded that the trial judge's findings were open on the whole of the record (at [89]-[90], [114], [116]). The Court examined the four matters raised by the applicant as undermining HH's credibility: her initial denial to her mother; alleged inconsistencies in her account of the complaint to her teacher; the nine-month delay in reporting; and evidence about pornographic material on her iPad. The Court found that the trial judge's rejection of each of these matters as giving rise to reasonable doubt was open on the evidence (at [73], [78], [82], [87]-[89]). Notwithstanding the absence of corroboration, the Court was not left with a reasonable doubt as to the applicant's guilt (at [90]).

Ground 3: Fresh evidence

The fresh evidence consisted of an affidavit from Ms Boyling describing a telephone conversation in which HH's mother, MW, allegedly described a meeting at which MW, the biological father GD, and his parents had decided the applicant was guilty of offending against both complainants. The applicant argued this suggested HH's complaint was the product of improper influence. The Court rejected this ground on two bases. First, the alleged conversation as described in Ms Boyling's own note could only have occurred after HH had already made her complaint to her teacher in October 2018, not before, making it incapable of undermining HH's evidence of independent complaint (at [102]). Second, MW, the source of the hearsay statement, denied making it and denied the underlying conversation ever occurred; had the evidence been available at trial, it would likely have been inadmissible under the hearsay rule and its exceptions under the Evidence Act 1995 (NSW) (at [108]). In any event, the evidence had no real prospect of causing the trial judge to entertain a reasonable doubt (at [109]-[110]).

Orders Made

  • Leave to appeal granted in respect of Grounds 1 and 2.
  • Appeal dismissed.

Key Takeaways

  • In a judge-alone trial, adequate reasons for rejecting an accused's evidence do not require an elaborate analysis of every argument raised; it is sufficient that the reasons expose the reasoning process linking the credibility findings to the ultimate verdict, including adverse observations about the manner in which the accused gave evidence (at [43]-[54]).

  • Where a trial judge in a judge-alone trial provides comprehensive reasons for accepting the complainant as truthful and reliable, those reasons bear directly on the rejection of the accused's denials, because the accused's evidence is necessarily contradicted by the evidence the judge has accepted (at [52]-[53]).

  • The Court of Criminal Appeal confirmed the established approach to unreasonable verdict appeals: each appellate judge must conduct an independent assessment of the evidence, and the question is whether, notwithstanding the trial judge's credibility findings, the evidence was such that the judge acting rationally ought to have entertained a reasonable doubt (at [55]-[59], citing Filippou and Pell).

  • Fresh evidence that is admissible only as hearsay, where the source of the out-of-court statement denies making it, and where that source was available to give evidence at trial and would be available at any retrial, carries little probative weight and is unlikely to ground a successful miscarriage of justice application (at [108]-[110]).

  • Delay in complaint does not of itself generate a reasonable doubt about guilt where the trial judge has accepted a coherent explanation for the delay, including fear of the accused and concern for the wellbeing of family members (at [82]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 578A(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s s 59 , 65, 66

Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 6
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417