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Court of Criminal Appeal 11 April 2022

WS v R

[2022] NSWCCA 77

Sexual offences

Citation: WS v R [2022] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 11 April 2022
Judges: Macfarlan JA; Walton J; Rothman J

Background

The applicant stood trial in the District Court in December 2020 on charges of sexual intercourse without consent and indecent assault, arising from an alleged single incident in late 1990. The applicant, who was then 18 years old, was alleged to have grabbed his 15 or 16-year-old sister and sexually assaulted her in the family home. The jury returned verdicts of guilty on one count of indecent assault (Count 2) and one count of sexual intercourse without consent (Count 4), and not guilty on the remaining two counts. The applicant was sentenced to an aggregate term of four years and three months' imprisonment with a non-parole period of two years and six months.

Central to the appeal was the prosecution's evidence that, following the alleged assault, the complainant visited her family doctor and subsequently underwent a pregnancy test on 16 November 1990, roughly nine weeks after the alleged offending. The defence had sought, prior to trial, to cross-examine the complainant about an allegation that she had been sexually assaulted by another man, referred to as "Ian," with whom she had been briefly involved around the same period, on the basis that this may have explained the pregnancy test.

The trial judge refused the pre-trial application to permit that cross-examination. On appeal, the applicant raised three grounds: that the verdicts were unreasonable, that trial counsel's failure to seek admission of the sexual experience evidence under section 293(4)(c) of the Criminal Procedure Act 1986 (NSW) caused a miscarriage of justice, and that the trial judge erred in admitting the pregnancy test evidence under section 137 of the Evidence Act 1995 (NSW).

  • Whether the guilty verdicts on Counts 2 and 4 were unreasonable when assessed against the whole of the evidence
  • Whether a miscarriage of justice resulted from trial counsel's failure to apply under section 293(4)(c) of the Criminal Procedure Act 1986 for admission of evidence that the complainant had sexual experience with another person at or around the relevant time
  • Whether the trial judge erred in declining to exclude the pregnancy test evidence under section 137 of the Evidence Act 1995, on the basis that its probative value was outweighed by the danger of unfair prejudice

Decision

The Court of Criminal Appeal upheld Grounds 1 and 2, and rejected Ground 3. All three judges agreed on the orders, though Rothman J provided additional reasons addressing the construction of section 293 and his own assessment of the evidence.

Ground 1 (Unreasonable verdict): Macfarlan JA, applying the test in M v The Queen and Pell v The Queen, concluded that the jury, acting reasonably, ought to have had a reasonable doubt about guilt on Counts 2 and 4. His Honour identified inconsistencies between the complainant's oral evidence and independent records, the absence of contemporaneous complaint from any witness other than the complainant, and evidentiary gaps that collectively gave rise to a reasonable doubt. Rothman J reached the same conclusion by his own reasoning, noting that while he believed the complainant, the inconsistencies between her recollections and the documentary evidence created a reasonable possibility that the applicant was not guilty.

Ground 2 (Miscarriage of justice): Macfarlan JA found that trial counsel's failure to seek admission of evidence relating to the complainant's alleged sexual experience with "Ian" under section 293(4)(c), rather than under section 293(6) as had been attempted before trial, constituted a miscarriage of justice. Section 293(4)(c) permits such evidence where the accused does not concede the alleged sexual intercourse and the evidence is relevant to whether a pregnancy is attributable to that intercourse. Rothman J observed that the legislature under section 293 has accepted that some unfairness to an accused may result from restricting such evidence, but that on the particular facts the evidence could have been properly tendered under section 293(4)(c), and the failure to pursue that pathway resulted in a material miscarriage.

Ground 3 (Exclusion of pregnancy test evidence): The court rejected this ground. The trial judge's discretionary decision under section 137 of the Evidence Act to admit the pregnancy test evidence did not involve any error of principle sufficient to warrant appellate intervention.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal allowed
  • Convictions on Counts 2 and 4 quashed
  • Verdicts of acquittal entered on the charges on which the applicant was convicted

Key Takeaways

  • Section 293(4)(c) of the Criminal Procedure Act 1986 provides a distinct and separate pathway for admitting evidence of a complainant's sexual experience where the accused does not concede the alleged sexual intercourse and the evidence goes to whether a pregnancy (or other physical consequence) is attributable to that intercourse, rather than relying on section 293(6).
  • The Court of Criminal Appeal confirmed that a failure by trial counsel to pursue an available admissibility pathway under section 293 can constitute a miscarriage of justice, even where a related pre-trial application under a different subsection was made and refused.
  • In assessing whether a verdict is unreasonable under section 6(1) of the Criminal Appeal Act 1912, the appellate court asks whether a jury acting reasonably could have been satisfied beyond reasonable doubt of guilt; inconsistencies between a complainant's oral evidence and independent documentary records may contribute to that doubt even where the complainant is found credible.
  • Rothman J's reasons clarified that section 293 was enacted to prevent cross-examination designed to sully a complainant's reputation, but that the legislature's policy choice does not inform the interpretation of the exceptions in section 293(4), which must be construed according to their terms.
  • A discretionary ruling to admit evidence under section 137 of the Evidence Act will not be disturbed on appeal unless appellate intervention is warranted under House v The King principles; the mere fact that disputed evidence was prejudicial does not, of itself, establish error.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 130A(1), 289F(1), 293, 294
- Evidence Act 1995 (NSW), ss 38(1)(a), 55, 56, 137, 165B, 192, Dictionary
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1)

Cases:
- Hanna v The Queen [2017] NSWCCA 168
- House v The King (1936) 55 CLR 499
- Jarrett v R (2014) 86 NSWLR 623
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- MS v R [2022] NSWCCA 13
- Nudd v The Queen [2006] HCA 9
- Pell v The Queen (2020) 268 CLR 123
- R v Baden-Clay (2016) 258 CLR 308
- RD (a pseudonym) v R [2021] NSWCCA 94
- Xie v The Queen [2021] NSWCCA 1