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Court of Criminal Appeal 19 May 2023

Slattery v R

[2023] NSWCCA 117

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT APPEALS APPEAL AGAINST CONVICTION

Citation: Slattery v R [2023] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 19 May 2023
Judges: Bell CJ at [1]; Ward P at [171]; Wilson J at [174]

Background

The appellant was a member of a Catholic religious order who worked at a boarding school for boys with intellectual and behavioural difficulties in New South Wales in 1980. Three former students alleged that he had sexually abused them during that period, when they were aged between 9 and 13. The charges comprised 13 counts of historical sexual offending involving penetrative and non-penetrative acts at various locations within the school.

By the time of trial, the appellant had been diagnosed with Parkinson's disease and was found unfit to be tried. The District Court therefore conducted a "special hearing" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a process designed to proceed as nearly as possible to a criminal trial, but resulting in "qualified findings of guilt" rather than convictions in the ordinary sense. A judge alone presided. The trial judge found the appellant had committed all but one of the contested charges.

On appeal, the appellant challenged those qualified findings on three principal grounds: that defence counsel's failure to adduce good character evidence caused a miscarriage of justice; that defence counsel's failure to cross-examine complainants on their prior convictions caused a miscarriage of justice; and that the qualified findings were unreasonable or unsupported by the evidence.

  • Whether defence counsel's decision not to adduce evidence of the appellant's good character constituted a miscarriage of justice, in the sense that it deprived the appellant of a real chance of acquittal.
  • Whether defence counsel's failure to put prior criminal convictions to the complainants as a basis for challenging credibility similarly caused a miscarriage of justice.
  • Whether the qualified findings of guilt were unreasonable or unsupported by the evidence, including in light of alleged inconsistencies in the complainants' evidence about chronology and timing.
  • Whether the Court should grant leave to adduce fresh evidence on appeal.

Decision

Good character issue: The Court held that defence counsel's decision not to lead good character evidence was a deliberate forensic choice that was capable of rational justification. Counsel faced a genuine risk that adducing such evidence would open the door to damaging rebuttal evidence. The Court also noted that, in the contemporary context, there is greater community recognition that persons otherwise regarded as being of good character may commit offences involving child sexual abuse, which limits the weight such evidence is likely to carry.

Prior convictions issue: The prior convictions of the first and third complainants involved minor theft, violence, and driving matters, and the Court found it was not irrational for counsel to have chosen not to deploy them in cross-examination. The prior convictions of the second complainant were predominantly driving-related, and only two offences bore on his honesty at all. Those two offences, involving providing a false name and address in connection with driving charges, could not have materially affected the overall assessment of his credibility. No miscarriage of justice was established on either limb.

Unreasonable verdict issue: The Court confirmed that, on an unreasonable verdict ground following a judge-alone trial, the appellate court must independently assess the whole of the evidence rather than simply scrutinise the trial judge's reasoning for error. The trial judge's advantage in having observed the complainants give evidence, including under sustained cross-examination, was a significant factor. Inconsistencies in the first and second complainants' evidence, which mostly concerned matters of chronology and timing over events occurring more than 30 years earlier, did not generate a reasonable doubt as to identity, and the qualified findings relating to those complainants were upheld.

The Court allowed the appeal in relation to Count 13, concerning the third complainant. That complainant's evidence about the timing of the offending, if accepted, placed the events after the appellant had already left the school. This raised a reasonable doubt about whether the appellant was correctly identified as the perpetrator of that particular offence. All three judges agreed, though all also accepted without qualification that the third complainant had been sexually abused in the manner he described.

Orders Made

  • Leave to appeal granted, except in respect of Ground 4.
  • Appeal allowed in respect of Count 13: the qualified finding of guilt on that count quashed.
  • Appeal otherwise dismissed.
  • Leave to adduce new evidence refused.

Key Takeaways

  • On an unreasonable verdict ground following a judge-alone trial, an appellate court independently reviews the whole of the evidence to determine whether the trial judge ought to have entertained a reasonable doubt. Arguments framed as attacks on the trial judge's reasoning process are not the correct approach; they are relevant only insofar as they bear on that independent assessment.

  • A decision by defence counsel not to lead good character evidence will not constitute a miscarriage of justice where it is capable of rational forensic justification, including a reasonable apprehension that adverse rebuttal evidence might be admitted. It is not necessary for the appellate court to resolve definitively whether the rebuttal evidence would in fact have been admissible.

  • Greater community recognition that persons of apparently good character may commit child sexual offences is now a factor weighing against the forensic value of such evidence in this category of case.

  • Where a complainant's evidence about timing, if accepted, places the alleged offending outside the period when the accused was present at the relevant location, that inconsistency can raise a reasonable doubt as to identification even where the complainant is otherwise accepted as credible and as having been genuinely abused.

  • Accepting a witness as credible and reliable in general does not require acceptance of every aspect of their evidence, particularly on questions of chronology and timing where significant time has elapsed since the events in question.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 54, 55, 56, 62(b), 63(2)
- Crimes Act 1900 (NSW), ss 79, 80, 81 (as in force at 15 December 1980)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), ss 103, 110, 165(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Key Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Tieu v R (2016) 92 NSWLR 94; [2016] NSWCCA 111
- Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- GS v The Queen [2022] NSWCCA 225
- JV v R [2017] NSWCCA 49