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14
Court of Criminal Appeal 21 December 2022

AS v R

[2022] NSWCCA 291

Sexual offences

Citation: AS v R [2022] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 21 December 2022
Judge(s): Adamson J (at [1]); Hamill J (at [145]); Cavanagh J (at [194])

Background

The applicant stood trial in the District Court on seven counts of sexual offences against two children, contrary to the Crimes Act 1900 (NSW). The complainants were F, the applicant's natural son, and G, the son of his former partner. Counts 1 and 2 related to alleged acts of indecency against F, including masturbating the child and masturbating in the child's presence in a bathroom, said to have occurred when F was between three and five years old.

Counts 3 to 7 concerned G. Counts 3 and 4 involved the applicant allegedly masturbating in front of G and touching G's penis during a shower. Count 5 involved digital penetration of G's anus, which G said occurred while other family members were away caring for an ill grandparent. Counts 6 and 7 alleged further acts of indecency in a laundry.

The jury convicted the applicant on counts 1 to 5 and acquitted him on counts 6 and 7. The applicant sought leave to appeal on the single ground that all five guilty verdicts were unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW).

  • Whether the five guilty verdicts were unreasonable having regard to all the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and Pell v The Queen (2020) 268 CLR 123.
  • Whether timing discrepancies surrounding an art book produced by F, which uncontrovertibly could not have existed when F claimed to have used it, undermined the convictions on counts 1 and 2 to the point that no reasonable jury could have convicted.
  • Whether evidence about the applicant's working and living arrangements made it impossible, or at least sufficiently doubtful, that count 5 could have occurred as alleged.
  • Whether the acquittals on counts 6 and 7 were logically inconsistent with the convictions on counts 3 to 5, given that all five counts concerned the same complainant.
  • Whether any doubt about G's reliability on count 5 necessarily infected his evidence on counts 3 and 4.

Decision

The Court divided two to one. Adamson J, with Hamill J agreeing, dismissed the appeal. Cavanagh J dissented and would have allowed the appeal on all counts.

Counts 1 and 2 (F and the art book): The majority accepted that F's evidence contained discrepancies about timing, particularly his claim that he had the art book in pre-school when uncontrovertible evidence showed the book was only available for purchase from October 2016. Adamson J held, however, that a jury is entitled to accept the substance of a complainant's evidence while discounting peripheral inaccuracies, particularly where the complainant was very young at the relevant time. The drawings in the art book, which depicted the alleged offending in detail, could still rationally support the convictions even if the surrounding temporal account was inaccurate. Hamill J agreed, observing that a child may be unreliable about ancillary details yet honest in describing the abuse itself. Cavanagh J took the contrary view: the art book evidence went beyond mere imprecision. Because F's account of when he had the book could not be true, this was a matter of significance that a reasonable jury should have found raised a real doubt about the reliability of his evidence as a whole, making the convictions on counts 1 and 2 unreasonable.

Count 5 (G and the overnight question): The majority acknowledged that evidence about the applicant's living and working arrangements made it unlikely he slept at the premises on the specific date most consistent with G's account. Adamson J and Hamill J held this was not fatal because the Crown case did not depend on a single night: the applicant continued to visit and stay intermittently during the relevant indictment period, and the jury was entitled to find opportunity existed. Cavanagh J disagreed, finding that unchallenged evidence of night-shift work, combined with the statements of two adults living at the premises that the applicant did not stay overnight during the charged period, should have produced a doubt that no reasonable jury would have resolved against the applicant.

Inconsistency of verdicts (counts 6 and 7): The majority rejected the inconsistency argument. Adamson J noted that the evidence supporting counts 6 and 7 was considerably thinner and less detailed than the evidence on counts 3 to 5. An acquittal on the less-supported counts does not indicate that the jury disbelieved G generally; different verdicts can reflect rational distinctions in the quality of proof. Cavanagh J, having already concluded the convictions on counts 3, 4 and 5 were unreasonable, would have quashed all five convictions.

Orders Made

The orders proposed by Cavanagh J in dissent were:
- Grant leave to appeal
- Allow the appeal
- Quash the applicant's convictions on all counts and enter verdicts of acquittal

Note: The orders above are those proposed by the dissenting judge, Cavanagh J. Because the majority (Adamson J and Hamill J) dismissed the appeal, the operative outcome of the case is that the appeal was dismissed and the convictions were upheld. The orders extracted in the provided text reflect only the dissenting judgment's proposed orders, not the orders actually made by the Court.

Key Takeaways

  • A reasonable jury is entitled to accept the substance of a child complainant's evidence about alleged offending while rejecting or discounting peripheral details, including inaccuracies about timing, where those inaccuracies are explicable by the child's young age (majority).
  • The question of whether a verdict is unreasonable requires the appellate court to assess whether it was open to the jury, on the whole of the evidence, to be satisfied of guilt beyond reasonable doubt, not merely whether the court itself would have reached the same conclusion.
  • Where an accused is acquitted on some counts involving a complainant but convicted on others, the acquittals do not automatically indicate a general rejection of the complainant's credibility; rational differences in the strength of the evidence across counts can explain divergent verdicts (majority, applying MFA v The Queen).
  • Cavanagh J's dissent illustrates that where a central piece of evidence relied upon by the Crown is demonstrably irreconcilable with established facts (not merely imprecise), it may be insufficient to attribute the discrepancy to a child's poor memory of timing.
  • Doubt about a complainant's reliability on one count can, in appropriate circumstances, logically flow through to an assessment of the complainant's evidence on related counts where those convictions rest entirely on that same witness (Cavanagh J in dissent).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61O, 66A
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- BCM v The Queen [2013] HCA 48; (2013) 303 ALR 387
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 21
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- JN v R [