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Court of Criminal Appeal 9 June 2023

NW v R

[2023] NSWCCA 134

Sexual offences

Citation: NW v R [2023] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 9 June 2023
Judges: Meagher JA (principal judgment); Button J; Wilson J

Background

The applicant was tried in the District Court at Wagga Wagga in July 2018 on seven counts of sexual and related offences against a female complainant who was fifteen or sixteen years old at the relevant times. The complainant knew the applicant through his connection to her mother, and the offending involved both an online grooming phase conducted via Facebook Messenger and physical sexual offences alleged to have occurred on 19 July 2016.

The jury returned guilty verdicts on counts 1, 3, 5, 6 (statutory alternative) and 7. On counts 4 and 6 as originally charged, which alleged aggravated sexual intercourse in circumstances of inflicting actual bodily harm, the trial judge directed not guilty verdicts on the basis that there was no evidence capable of establishing that circumstance of aggravation. The jury then also acquitted on the statutory alternative to count 4 (sexual intercourse without consent), but convicted on the statutory alternative to count 6 and on counts 5 and 7, each charging sexual intercourse without consent under s 61I of the Crimes Act 1900.

The applicant sought leave to appeal against his convictions on counts 5, 6 (statutory alternative) and 7, raising two grounds: that those guilty verdicts were inconsistent with the not guilty verdict on count 4, and that the verdicts were unreasonable and unsupported by the evidence. An extension of time was also required, given that the draft notice of appeal was filed in April 2022, well after the expiry of the original time limit.

  • Whether the court should extend time to bring the application for leave to appeal, given the significant delay in filing
  • Whether the guilty verdicts on counts 5, 6 (statutory alternative) and 7 were inconsistent with the not guilty verdict on count 4
  • Whether the guilty verdicts on those three counts were unreasonable or could not be supported having regard to the evidence

Decision

Extension of time: The Crown opposed any extension on the basis that neither ground had merit. The Court of Criminal Appeal took the approach, consistent with its earlier decisions in DS v R, Franklin v R and Olivieri v R, that where an appeal against a serious conviction is accompanied by detailed evidence and comprehensive submissions, the appropriate course is to grant the extension and address the merits directly. The extension was granted accordingly.

Inconsistent verdicts: Meagher JA identified that the not guilty verdict on count 4 (and its statutory alternative) could be explained on a rational basis that did not require the jury to have disbelieved the complainant as to the underlying acts. The two sets of events were alleged to have occurred separately during the afternoon of 19 July 2016, and the evidence touching each count was not identical. Button J agreed separately, noting there was a rational basis of differentiation between the verdicts. The ground was not made out.

Unreasonable verdict: The applicant identified five matters said to cast doubt on whether the offences occurred at all, including the complainant's personal history, her intoxication, the absence of an immediate complaint, the lack of forensic or medical evidence, and the limited utility of a friend's complaint evidence. The Court addressed each in turn. Critically, Facebook Messenger exchanges in the hours after the alleged offences, in which the applicant asked the complainant not to tell anyone about "today" and expressed thanks and sexual appreciation, constituted contemporaneous and incontrovertible evidence that some intimate activity had occurred. The trial judge had also correctly directed the jury on intoxication, and the absence of an immediate complaint was explicable in the circumstances, particularly given the complainant's age and the reaction she anticipated from her friend. All three judges independently concluded that the jury's verdicts were open on the evidence.

Orders Made

  • Time extended for the applicant to file his draft notice of appeal to 5 April 2022
  • Leave to appeal granted on grounds 1 and 2
  • Appeal on each ground dismissed

Key Takeaways

  • A not guilty verdict on one count does not automatically render guilty verdicts on related counts inconsistent; what matters is whether there is a rational basis upon which the jury could differentiate between the counts, even if that basis is not stated explicitly.
  • Where a directed acquittal removes an aggravated charge from the jury's consideration, and the evidence relevant to each count is not identical, a subsequent acquittal on one statutory alternative and conviction on others will not necessarily be inconsistent.
  • Contemporaneous electronic communications made by an accused shortly after alleged offending can constitute strong corroborating evidence, capable of supporting a finding that sexual activity occurred even in the absence of forensic or medical material.
  • Under the test in M v The Queen and Libke v The Queen, an appellate court must itself assess the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt; all three judges independently concluded that standard was satisfied here.
  • In dismissing the application for an extension of time on the merits, the Court confirmed that where an out-of-time appeal against a serious conviction is accompanied by detailed submissions and comprehensive evidence, the preferable approach is to grant the extension and resolve the appeal on its merits.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 66EB(3), 91H(2), 578A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Code (Cth), s 474.27A(1)
- Criminal Procedure Act 1986 (NSW), s 294

Cases:
- DS v R [2022] NSWCCA 55
- Franklin v R [2021] NSWCCA 260
- Jones v The Queen (1997) 191 CLR 439
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- Olivieri v R [2016] NSWCCA 169
- R v Baden-Clay (2016) 258 CLR 308
- R v Markuleski (2001) 52 NSWLR 82
- TK v R (2009) 74 NSWLR 299