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Court of Criminal Appeal 5 April 2023

BS v R

[2023] NSWCCA 114

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION TRIAL BY JUDGE ALONE ERROR OF FACT CONCEDED BY THE CROWN APPEAL ALLOWED

Citation: BS v R [2023] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 5 April 2023
Judges: Simpson AJA; Button J; Hamill J

Background

The applicant, the stepfather of the complainant, was tried by judge alone in the District Court on two counts: indecent assault on a person under 16 years of age, and aggravated sexual intercourse with a child aged between 10 and 14 years, contrary to the Crimes Act 1900 (NSW). The alleged offending occurred at a South Coast caravan in April 2018, when the complainant was 11 years old. The applicant pleaded not guilty to both counts and did not give or call evidence at trial.

The trial judge found the applicant guilty on both counts and sentenced him to a total effective term of imprisonment. A key plank of the trial judge's reasoning concerned the sequence of events on 18 May 2018, the day the complainant first disclosed the alleged offending to her mother and to police. Specifically, the judge drew an adverse inference from the applicant's conduct and statements on that afternoon, concluding that he appeared to have known the details of the allegations before they could have been communicated to him through legitimate means.

The applicant sought leave to appeal against both conviction and sentence, raising five grounds of appeal against conviction. The first ground alleged that the trial judge had made a critical error of fact about the timing of text messages sent on 18 May 2018. The Crown conceded that error, and the Court of Criminal Appeal accepted the concession.

  • Whether the trial judge made an error of fact about the timing of the applicant's text messages to the complainant's mother on 18 May 2018.
  • Whether that factual error was sufficiently central to the trial judge's reasoning to warrant setting aside the convictions.
  • Whether a new trial should be ordered as a consequence.

Decision

The trial judge's reasoning placed considerable weight on her conclusion that the applicant's last telephone call to the complainant's maternal grandmother (HC) occurred before 2:19 pm on 18 May 2018. That conclusion rested on an interpretation of Exhibit C, a screenshot of text messages. The screenshot showed a single 2:19 pm timestamp above the first message in the exchange, which had actually been sent by the complainant's mother, not by the applicant. The trial judge treated that timestamp as establishing that all subsequent messages from the applicant were also sent at 2:19 pm.

The Court of Criminal Appeal found this conclusion was not open on the evidence. The content of the applicant's messages showed escalating anxiety, which was inconsistent with all messages being sent at the same moment. The fifth message, in which the applicant said he was going to collect the children from school, was inconsistent with a 2:19 pm timeframe. HC's own evidence, that the first call from the applicant came "later in the afternoon," and her note that the applicant on the second call said the children were at after-school care, further contradicted the trial judge's finding.

The significance of the error was its centrality to the trial judge's reasoning. Because the judge incorrectly concluded that the applicant's calls to HC predated any disclosure to him of the allegations, she inferred that his comments to HC (including that his hand sometimes slipped when cuddling the complainant, and that he had fallen asleep on the floor beside her bed) demonstrated prior awareness of the allegations. This inference then led her to give reduced weight to the applicant's forceful denials during the recorded 4:21 pm telephone call with the complainant's mother. The Crown conceded the reasoning could not stand, and all three members of the bench accepted that concession as properly made.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on both counts quashed.
  • New trial ordered.

Key Takeaways

  • A factual error in a judge-alone trial can vitiate a conviction where it is central to the reasoning process rather than peripheral to the verdict.
  • Under s 133 of the Criminal Procedure Act 1986 (NSW), a trial judge deciding alone must state the principles of law applied and the findings of fact relied upon, which in this case made the erroneous reasoning susceptible to appellate scrutiny.
  • The Court of Criminal Appeal confirmed that a single unsupportable factual finding can be sufficient to quash convictions without the need to examine remaining grounds of appeal.
  • Where the Crown concedes an error of fact on appeal, the court will examine whether the concession is properly made before acting on it; here, all three judges independently accepted the concession was correct.
  • Inferences drawn from documentary evidence, such as a screenshot timestamp, must be consistent with the whole of the evidence, including witness testimony and the internal logic of the documents themselves.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 132, 133

Cases: No cases were cited in the judgment.