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Court of Criminal Appeal 16 June 2023

Wentworth v R

[2023] NSWCCA 143

Sexual offences

Citation: Wentworth v R [2023] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 16 June 2023
Judges: Beech-Jones CJ at CL; McNaughton J; R A Hulme AJ

Background

The applicant was convicted in April 2022 of 14 historical sexual offences against a single male complainant (identified only as XX) committed between 1980 and 1985, when XX was aged between 9 and 14 years old. The applicant had lived a short distance from XX's home in Church Point, Sydney, and was alleged to have groomed and then repeatedly sexually assaulted XX over a period of approximately five years.

XX had first approached police in 1997 but heard little further, reportedly being told the applicant was overseas. In 2018, XX located the applicant through social media and participated in a series of covertly recorded phone calls and text exchanges in an effort to arrange a face-to-face meeting. Throughout those exchanges, the applicant denied any recollection of XX.

At trial, XX's evidence was played from a recording made during a prior incomplete trial in 2021. The Crown also called XX's two brothers, both of whom recalled an occasion on which XX disclosed the abuse to their mother. The applicant did not give evidence. He was sentenced to seven years' imprisonment with a non-parole period of three years and six months.

  • Whether the jury's verdicts of guilty on all 14 counts were unreasonable, or could not be supported having regard to the whole of the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Specifically, whether various attacks on the complainant's credibility, including his drug use, criminal history, dishonesty, and alleged inconsistencies, were so damaging that no reasonable jury could have accepted his evidence and convicted.

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. Beech-Jones CJ at CL delivered the principal judgment, with McNaughton J and R A Hulme AJ each confirming they had independently reviewed the trial record and agreed with both the reasoning and the proposed orders.

The Chief Judge identified that the jury, not the appellate court, held the distinct advantage of observing XX give his evidence. Because XX's testimony was recorded and replayed over many days, the scope of that jury advantage was described as "relatively wide." Every credibility issue raised on appeal, including XX's daily marijuana use (including on the day he gave evidence), his criminal record, and allegations of dishonesty, had been fully placed before the jury during cross-examination.

The Court found that many aspects of XX's account were supported by independent documentary evidence, including council records relating to the applicant's nearby property. The applicant's denial of any recollection of XX was afforded little weight, given XX's brothers corroborated an early disclosure and XX was able to recount specific details about the applicant's circumstances during the relevant period.

The Court held that the various attacks on XX's credibility did not "taint" his evidence with discrepancies or inadequacies sufficient to suggest that an innocent person had been convicted. Applying the test from M v The Queen (1994), the Court was not satisfied there was a significant possibility that an innocent person had been convicted, and accordingly rejected the sole ground of appeal.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court reaffirmed that appellate courts must give significant weight to the jury's advantage in seeing and hearing a witness, particularly where the jury's assessment of credibility is central to the verdict and the scope of that advantage is wide.
  • A verdict is not unreasonable merely because a complainant's credibility was attacked on multiple grounds at trial; what matters is whether, considered in context and alongside the whole of the evidence, those attacks give rise to a significant possibility that an innocent person was convicted.
  • Where credibility challenges such as drug use, prior convictions, and alleged inconsistencies have all been fully ventilated before the jury, an appellate court will be slow to conclude that no reasonable jury could have accepted the complainant's evidence.
  • Corroborating evidence, including documentary records and testimony from family members about an early disclosure, can reinforce a complainant's account even where significant credibility issues are in play.
  • The applicable test, drawn from M v The Queen (1994) 181 CLR 487, requires the appellate court to be satisfied of a "significant possibility" that an innocent person was convicted before an unreasonable verdict ground can succeed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), former ss 78Q(1) and 81
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1994) 181 CLR 487 (applied)
- MFA v The Queen (2002) 213 CLR 606 (considered)
- Pell v The Queen (2020) 268 CLR 123 (considered)
- Dansie v The Queen [2022] HCA 25 (considered)
- AJ v R [2022] NSWCCA 136 (considered)
- Daaboul v R (2019) 100 NSWLR 682
- Mahmood v Western Australia (2008) 232 CLR 397
- Nguyen v R [2022] NSWCCA 126
- R v Markuleski (2001) 52 NSWLR 82