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Court of Criminal Appeal 15 December 2022

Murray v R

[2022] NSWCCA 274

Sexual offences
CRIME — APPEAL AGAINST CONVICTION WHETHER THE VERDICTS WERE UNREASONABLE

Citation: Murray v R [2022] NSWCCA 274
Court: Court of Criminal Appeal, NSW
Date: 15 December 2022
Judges: Simpson AJA and Harrison J (joint judgment); Fagan J (separate judgment)

Background

The appellant and the complainant were members of the same friendship group from their high school years. On the evening of Christmas Day 2018 and into the early hours of 26 December 2018, the group gathered at the complainant's home in southern Sydney. The events of that night gave rise to the charges against the appellant.

Following a jury trial in November 2020, the appellant was convicted on four counts of sexual offending: three counts of sexual touching under s 61KC of the Crimes Act 1900 (NSW) and one count of sexual assault (intercourse without consent) under s 61I. He was sentenced to an aggregate term of three years' imprisonment, with a non-parole period of twelve months, and was released at the expiry of that period.

The appellant sought leave to appeal against all four convictions. He relied on a single ground: that the verdicts were unreasonable and could not be supported having regard to the evidence.

  • Whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on each count.
  • Whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant knew the complainant did not consent, within the meaning of s 61HE(3) of the Crimes Act 1900.
  • The proper approach of an intermediate appellate court to an unreasonable verdict ground, having regard to the jury's constitutional role and its advantage of seeing and hearing witnesses.

Decision

The Court applied the well-established principles from M v The Queen (1994) 181 CLR 487, as most recently restated in Pell v The Queen (2020) 268 CLR 123 and Dansie v The Queen [2022] HCA 25. The test requires the appellate court to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt of guilt, while giving due weight to the jury's advantage in observing witnesses and to the jury's constitutional responsibility for determining guilt.

The majority (Simpson AJA and Harrison J) proceeded on the assumption that the jury accepted the complainant's evidence as credible and reliable. The majority nonetheless examined whether, on that evidence together with the surrounding circumstances, a rational jury ought to have entertained a reasonable doubt. The majority concluded that the verdicts were unreasonable and allowed the appeal, though the reasons for that conclusion are not fully reproduced in the available text.

Fagan J delivered a separate judgment reaching the same conclusion on different reasoning. His Honour held a reasonable doubt about whether the appellant knew of the complainant's non-consent under any of the three alternative pathways in s 61HE(3), being actual knowledge, recklessness, and absence of reasonable grounds for belief. Critically, Fagan J found that this doubt did not arise from any assessment of witness credibility or from the witnesses' demeanour, but from inherent limitations in the inferences available from the complainant's evidence at its highest and from the uncontroversial surrounding circumstances. Because those limitations appeared on the face of the record, the jury's advantage of observing witnesses in person could not resolve the doubt.

Fagan J concluded that, even assuming the jury was satisfied the appellant committed all the alleged acts as described by the complainant and that she did not consent, the Crown's necessarily circumstantial case on the element of knowledge was not sufficient to exclude reasonable doubt. A reasonable jury ought to have recognised the reasonable possibility that the appellant lacked the requisite knowledge. His Honour therefore would have quashed all convictions and entered verdicts of acquittal.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on all counts quashed and verdicts of acquittal entered.
  • Sentence imposed on 12 February 2021 quashed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on an unreasonable verdict ground, an appellate court must independently assess whether the evidence was sufficient in nature and quality to eliminate reasonable doubt, while still giving full weight to the jury's role and its advantage from observing witnesses firsthand.
  • Where a reasonable doubt arises not from credit findings or demeanour but from the inherent limitations of inferences available on the face of the record, the jury's advantage of seeing and hearing witnesses cannot resolve that doubt.
  • Under s 61HE(3) of the Crimes Act 1900, the knowledge element for sexual offences may be proved via three alternative pathways: actual knowledge, recklessness, or the absence of reasonable grounds for belief. The Crown must establish at least one of these beyond reasonable doubt.
  • A circumstantial case on the knowledge element must be sufficient to exclude any reasonable possibility that the accused lacked awareness of non-consent; the mere fact of non-consent and of the physical acts occurring does not automatically resolve the knowledge question.
  • In applying Dansie v The Queen [2022] HCA 25, the Court treated the sufficiency of evidence in nature and quality as the central inquiry when determining an unreasonable verdict appeal, consistent with the High Court's most recent restatement of the test.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HC, 61HB, 61HE, 61I, 61KC
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Jury Act 1977 (NSW)
- Surveillance Devices Act 2007 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Baden-Clay (2016) 258 CLR 308
- Pell v The Queen (2020) 268 CLR 123
- Dansie v The Queen [2022] HCA 25
- Black v The Queen (1993) 179 CLR 44
- De Silva v The Queen (2019) 268 CLR 57
- Doggett v The Queen (2001) 208 CLR 343
- James v The Queen (2014) 253 CLR 475
- Liberato v The Queen (1985) 159 CLR 507
- Longman v The Queen (1989) 168 CLR 79
- Nudd v The Queen [2006] HCA 9
- Pemble v The Queen (1971) 124 CLR 107
- Ratten v The Queen (1974) 131 CLR 510