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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, NSW
Date: 5 December 2022
Judge(s): Meagher JA; Mitchelmore JA; Bellew J

Background

The applicant was convicted in a judge-alone trial in the District Court on five counts of sexual offending against a complainant referred to as HH, who was 12 years old at the time of the offending in 2017. The counts comprised four of indecent assault and one of aggravated sexual intercourse with a person aged between 10 and 14 in circumstances of aggravation (victim under authority). The applicant was acquitted on three separate counts relating to another complainant.

The offending occurred during HH's visits to the Central Coast home where the applicant lived with his de facto partner (HH's half-sister) and their daughter. All incidents took place on occasions when HH was present and the applicant's partner was away from the home on night shifts. The applicant was sentenced to seven years' imprisonment with a non-parole period of four years.

At trial, the applicant gave evidence conceding he had been alone with HH on some occasions but firmly denying any offending. The trial judge rejected his denials and was satisfied of his guilt beyond reasonable doubt on the five counts relating to HH.

  • Whether the trial judge gave sufficient reasons for rejecting the applicant's evidence denying the offences
  • Whether the verdicts were unreasonable and unsupported by the evidence
  • Whether a miscarriage of justice arose from the unavailability at trial of fresh evidence

Decision

Ground 1: Adequacy of reasons. The applicant argued the trial judge failed to give adequate reasons for rejecting his denials. The Court of Criminal Appeal granted leave to appeal on this ground but dismissed it. The Court found the trial judge's reasons, read as a whole, sufficiently explained why the applicant's denials were not accepted, having regard to the judge's assessment of the complainant's evidence and the circumstances of the case.

Ground 2: Unreasonable verdict. The Court also granted leave and dismissed this ground. Each member of the Court conducted an independent assessment of the trial evidence. All three judges were satisfied it was reasonably open to the trial judge to be satisfied of the applicant's guilt on each of the five counts beyond reasonable doubt. The verdict was not unreasonable and was supported by the evidence.

Ground 3: Fresh evidence. The applicant sought to rely on evidence of an alleged conversation in early 2018, said to have the capacity to undermine the complainant's credibility. The Court found this evidence faced significant admissibility obstacles under the hearsay provisions of the Evidence Act. More fundamentally, even accepting the evidence could have been admitted, the Court was not satisfied it was at all likely to have caused the trial judge to entertain a reasonable doubt. The alleged conversation was contradicted by a contemporaneous note, by the complainant's mother's outright denial, and by evidence from multiple witnesses at trial. No miscarriage of justice was established.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Leave to appeal was granted on grounds 1 and 2 but all three grounds of appeal were ultimately dismissed, with the convictions upheld.
  • In a judge-alone trial, the adequacy of a trial judge's reasons for rejecting an accused's evidence is assessed by reading the reasons as a whole rather than by isolating particular passages.
  • Where the unreasonable verdict ground is raised, each judge of the Court of Criminal Appeal is required to conduct an independent assessment of the trial evidence rather than simply reviewing the trial judge's reasoning.
  • Fresh evidence said to undermine a complainant's credibility will not establish a miscarriage of justice unless it carries a real prospect of affecting the outcome; evidence substantially contradicted by other trial material is unlikely to meet that threshold.
  • The Court's approach confirmed that an applicant who succeeds on a fresh evidence ground would ordinarily obtain a retrial rather than an acquittal; only a successful unreasonable verdict ground would warrant entry of an acquittal.

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), ss 59, 65, 66

Cases:
- AK v Western Australia (2008) 232 CLR 438
- DL v The Queen (2018) 266 CLR 1
- Filippou v The Queen (2015) 256 CLR 47
- Fleming v The Queen (1998) 197 CLR 250
- Gallagher v The Queen (1986) 160 CLR 392
- Liberato v The Queen (1985) 159 CLR 507
- M v The Queen (1994) 181 CLR 487
- Mickelberg v The Queen (1989) 167 CLR 259
- Pell v The Queen (2020) 268 CLR 123
- R v Abou-Chabake [2004] NSWCCA 356