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Court of Criminal Appeal 26 July 2023

Hanna v R

[2023] NSWCCA 182

Sexual offences
CRIME APPEAL APPEAL AGAINST CONVICTION WHETHER CONVICTIONS WERE UNREASONABLE VARIOUS INCONSISTENCIES IN EVIDENCE APPEAL DISMISSED

Citation: Hanna v R [2023] NSWCCA 182
Court: Court of Criminal Appeal, New South Wales
Date: 26 July 2023
Judges: Leeming JA at [1]; Yehia J at [106]; Weinstein J at [107]

Background

The applicant stood trial in the District Court on nine counts of sexual offending against a single complainant, arising from events alleged to have occurred in 2005 and 2008 when the complainant was between approximately 13 and 15 years old. The first and second occasions were said to have taken place at the applicant's home in St Marys, giving rise to counts 1 to 3. The third occasion was alleged to have occurred at a hotel in early 2008, giving rise to counts 4 to 9.

The jury returned guilty verdicts on counts 1, 2 and 3 (an act of indecency in circumstances of aggravation, and two counts of sexual intercourse with a child aged between 10 and 14), and not guilty verdicts on all six counts relating to the third occasion. The Crown case rested heavily on the complainant's evidence of events that had occurred 14 to 17 years before trial, supported by complaint evidence from school friends and others.

The applicant sought leave to appeal against conviction, contending the guilty verdicts were unreasonable and inconsistent with the not guilty verdicts on counts 4 to 9.

  • Whether the guilty verdicts on counts 1 to 3 were unreasonable or cannot be supported having regard to the evidence, applying the test in M v The Queen (1994) 181 CLR 487 and Pell v The Queen (2020) 268 CLR 123.
  • Whether the not guilty verdicts on counts 4 to 9 were irreconcilably inconsistent with the guilty verdicts on counts 1 to 3, such that the convictions should be set aside.
  • Whether, if a rational explanation existed for the acquittals other than doubt about the complainant's credibility generally, the convictions could nonetheless stand.

Decision

The Court identified a clear rational explanation for the not guilty verdicts on counts 4 to 9 that had nothing to do with the complainant's general credibility. Those counts related to the third occasion at the Plumpton Hotel, and required the Crown to prove beyond reasonable doubt that the complainant was under 16 at the time. The complainant's only evidence as to timing was that the hotel incident occurred just after the applicant's son was born. However, that son was born approximately two years before the period charged in the indictment, leaving at most a three-day window before the complainant's 16th birthday even under the most favourable interpretation. This evidentiary gap provided a ready, rational basis for the acquittals entirely independent of any doubt about the complainant's honesty or reliability on the 2005 events.

On the unreasonableness ground, Leeming JA conducted a detailed review of the evidence relating to counts 1 to 3. He acknowledged various inconsistencies in the complainant's account, including discrepancies about peripheral details. However, he found these were adequately explained by the passage of time and the traumatic nature of the events. The Court placed particular weight on the contemporaneous complaint evidence from two school friends, which not only supported the complainant's account of sexual offending but also undermined the competing hypothesis advanced by the applicant, namely that the complainant had given him an unsolicited kiss while he was asleep.

Leeming JA concluded that, bearing in mind the jury's advantage in observing the complainant give evidence, a jury acting rationally could have been satisfied beyond reasonable doubt of the applicant's guilt on counts 1 to 3. He stated that there was no significant possibility the applicant was wrongly convicted. Yehia J and Weinstein J each conducted their own assessments of the evidence and agreed with Leeming JA's reasoning and proposed orders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where a jury returns mixed verdicts in a multi-count sexual offence trial, the convictions will not be set aside for inconsistency if there is a rational explanation for the acquittals other than general doubt about the complainant's credibility. The analysis, as confirmed in R v Markuleski (2001) 52 NSWLR 82 and applied here, focuses on whether such an explanation exists for the acquittals, not the convictions.

  • Evidentiary gaps on a single element, here the complainant's age at the time of the third occasion, can provide a complete rational explanation for acquittals on those counts without infecting the jury's assessment of the complainant's evidence on separate, earlier incidents.

  • In dismissing the appeal, the Court of Criminal Appeal applied the established test from M v The Queen and Pell v The Queen, asking whether the jury, acting rationally, ought to have had a doubt. The appellate court does not simply substitute its own view but undertakes a careful, independent review of the whole of the evidence.

  • Roughly contemporaneous complaint evidence, here from school friends who received disclosures many years before the matter reached police, carried significant weight. The Court treated such evidence as powerful corroboration not merely of the sexual offending but also as a basis to reject a competing innocent explanation offered by the applicant.

  • Inconsistencies and gaps in a complainant's recollection of traumatic events occurring many years prior do not automatically render a conviction unreasonable. The Court found that some degree of imperfection in memory is expected and that the jury's assessment, having observed the complainant giving evidence, warrants appropriate deference on appeal.

Legislation and Cases Referenced

Legislation

  • Children (Criminal Proceedings) Act 1987 (NSW), s 15A
  • Crimes Act 1900 (NSW), ss 61H, 61HA, 61M, 66C, 77, 80AE, 578A
  • Criminal Appeal Act 1912 (NSW), ss 5, 6
  • Criminal Procedure Act 1986 (NSW), ss 159, 293, 294
  • Evidence Act 1995 (NSW), s 38
  • Surveillance Devices Act 2007 (NSW)

Cases

  • M v The Queen (1994) 181 CLR 487; [1994] HCA 63
  • Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
  • R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
  • TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
  • Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
  • MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
  • Dansie v The Queen [2022] HCA 25; 96 ALJR 728
  • R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
  • MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
  • Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
  • NW v R [2023] NSWCCA 134
  • AJ v R [2022] NSWCCA 136
  • Collins v R [2020] NSWCCA 198
  • Walker v R [2019] NSWCCA 4