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Court of Criminal Appeal 15 December 2022

Nadin (a pseudonym) v R

[2022] NSWCCA 284

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPEAL DISMISSED

Citation: Nadin (a pseudonym) v R [2022] NSWCCA 284
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2022
Judge(s): Leeming JA; Garling J; Adamson J

Background

The applicant (referred to by the pseudonym "Nadin" to protect the complainant's identity) stood trial in the District Court on ten counts of sexual offences against his granddaughter, who was aged between 10 and 12 at the time of the alleged conduct. The charges arose from three separate incidents: the "pizza incident," the "bedtime story incident," and the "glass of water incident." The Crown case rested primarily on the complainant's evidence, recorded in police interviews conducted approximately five years after the events.

The jury acquitted the applicant on counts 5 to 10, which related to the second and third incidents, but convicted him on counts 1 to 4, all arising from the pizza incident. Those four counts concerned acts of indecency alleged to have occurred while the applicant's wife and three other grandchildren were away from the home.

The applicant sought leave to appeal his convictions on the grounds that the guilty verdicts were inconsistent with the not guilty verdicts, and that the verdicts were unsafe and unsatisfactory.

  • Whether the not guilty verdicts on counts 5 to 10 rendered the guilty verdicts on counts 1 to 4 logically inconsistent, such that the convictions could not stand.
  • Whether, having regard to the totality of the evidence (including the deceased wife's affidavit and the cross-examination of the complainant), the guilty verdicts were unsafe and unsatisfactory.
  • Whether a portion of the complainant's cross-examination evidence, in which she appeared to raise a new allegation not made in her police interviews, further undermined the reliability of her evidence as a whole.

Decision

Inconsistent verdicts. The court rejected the argument that the not guilty verdicts necessarily undermined the guilty verdicts. Leeming JA identified meaningful differences in the evidence relating to each incident. The complainant's account of the pizza incident was described as clear, and the surrounding circumstances (the wife's absence from the home with other grandchildren) were specifically identifiable. By contrast, her evidence concerning the bedtime story and glass of water incidents carried features that could reasonably have given the jury greater pause. The jury's acquittals on those counts were explicable by reference to the nature and quality of the complainant's evidence on those specific charges, not by a wholesale rejection of her credibility.

The wife's affidavit. The applicant placed significant weight on an affidavit sworn by his late wife, who died before the trial, in which she stated she could not recall ever leaving any grandchild behind when going out, and denied various other circumstances underpinning the Crown case. The court accepted that this evidence was before the jury but found that it did not render the guilty verdicts unreasonable. The jury was entitled to weigh that evidence against the complainant's account and nonetheless be satisfied beyond reasonable doubt on counts 1 to 4.

Cross-examination on fellatio. During cross-examination, the complainant made a reference that appeared to introduce an element of the alleged conduct (fellatio) that had not featured in either of her recorded police interviews and had not been part of the Crown case relating to the pizza incident. The court examined this carefully. Leeming JA concluded that this did not, in context, undermine the guilty verdicts, forming part of the detailed analysis of the complainant's evidence as a whole.

Overall safety of the verdicts. Applying the test most recently restated by the High Court in Dansie v The Queen [2022] HCA 25, the court asked whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on counts 1 to 4. All three judges concluded that it was. Garling J and Adamson J each confirmed independently, after reviewing the totality of the evidence, that the convictions were soundly based and not unreasonable.

Orders Made

  • Extension of time to bring the application granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A jury's not guilty verdicts on some counts do not automatically render guilty verdicts on related counts inconsistent, provided the acquittals are explicable by reference to the specific nature or quality of the evidence on those charges.
  • The principle in Jones v The Queen (1997) 191 CLR 439, that inconsistent verdicts may be unreasonable where there is no basis for finding the complainant more reliable on one count than another, is highly fact-specific and depends on whether such a basis actually exists on the evidence.
  • Where a deceased witness's affidavit is admitted and considered by the jury, the court will not substitute its own assessment of that evidence for the jury's; the jury retains primary responsibility for weighing competing accounts.
  • In dismissing the appeal, all three judges conducted an independent review of the whole evidence, as required under the Dansie framework, before concluding that the verdicts were open to the jury and were not unreasonable.
  • Publication restrictions under s 578A of the Crimes Act 1900 (NSW) and s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW) applied, requiring the use of a pseudonym for the applicant to prevent identification of the complainant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 578A
- Criminal Appeal Act 1912 (NSW), s 5
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)

Cases:
- Dansie v The Queen [2022] HCA 25; 96 ALJR 728
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Pethybridge v R [2020] NSWCCA 185
- Dellow v R [2020] NSWCCA 301
- Roos v R [2019] NSWCCA 67