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Court of Criminal Appeal 28 July 2023

EE v R

[2023] NSWCCA 188

Sexual offencesAssault & violence

Citation: EE v R [2023] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 28 July 2023
Judges: Beech-Jones CJ at CL (with Adamson JA and Ierace J agreeing)

Background

The applicant, EE, was the former husband of the complainant, FF. Following a judge-alone trial in the District Court, he was convicted on 30 November 2021 of one count of assault and one count of sexual intercourse without consent. Both offences were alleged to have occurred during the marriage in 2017.

The assault charge (count 1) arose from an incident in March 2017 when, following an argument in a car, the applicant was found to have unbuckled the complainant's seatbelt, opened the passenger door, and pushed her out by applying force to her shoulder. The sexual intercourse charge (count 2) concerned a May 2017 incident in which anal intercourse began with the complainant's reluctant agreement but continued after she repeatedly told the applicant to stop, culminating in her telling him he was hurting her and sobbing "rather hysterically." The applicant denied both accounts entirely.

For count 1, the applicant was fined $750. For count 2, he was sentenced to three years' imprisonment with a non-parole period of two years commencing 4 July 2022. He sought leave to appeal both conviction and sentence.

  • Whether the trial judge erred in reconciling the complainant's evidence (that she had complained to the applicant's parents about the assault on the same day it occurred) with the parents' evidence (that they did not recall any such complaint).
  • Whether the trial judge's verdict on both counts was unreasonable, in that a significant possibility existed that an innocent person had been convicted.
  • Whether the sentencing judge erred in declining to find, on the balance of probabilities, that count 2 was "spontaneous and unplanned."
  • Whether an alleged error in a trial judge's reasoning process falls under the "first limb" or the "third limb" of s 6(1) of the Criminal Appeal Act 1912 (NSW).

Decision

The conflicting evidence issue: The Court held that an alleged error in a trial judge's reasoning when accepting evidence does not engage the "first limb" of s 6(1) of the Criminal Appeal Act (that the verdict is unreasonable or cannot be supported having regard to the evidence). Instead, such an argument is capable of raising a separate ground under the "third limb" (that there was a miscarriage of justice on some other ground). Applying this framework, the Court found no error in the trial judge's approach. The complainant's description of what she told the applicant's parents was, in context, ambiguous as to whether physical force had actually been applied, making it unsurprising the parents did not recall the exchange. The trial judge's characterisation of the complaint as "limited" and "containing no real detail" was not erroneous.

The unreasonable verdict issue: The Court found no inconsistencies, discrepancies, or other inadequacies in the complainant's evidence sufficient to warrant overturning either verdict. For count 2, evidence from a psychologist and marriage counsellor who had seen the couple in March 2020 provided strong corroboration of key aspects of the complainant's account and undermined the applicant's evidence. For count 1, any doubt arising from the conflicting accounts was one the trial judge was capable of resolving by the advantage of seeing and hearing the witnesses give evidence. The Court concluded there was no significant possibility that an innocent person had been convicted on either count.

The characterisation issue (sentence appeal): The Court drew a careful distinction between two different standards of proof. The sentencing judge's acquittal of the applicant on the basis that she was not satisfied beyond reasonable doubt that he was aware, prior to the anal sex commencing, of the possibility the complainant might withdraw her consent, did not compel a finding on the lower civil standard that he lacked such awareness. The sentencing judge clearly did not accept on the balance of probabilities that he was unaware of that possibility. Given the evidence about prior occasions of anal intercourse between the parties and the way the offending unfolded, the Court found it was well open to the sentencing judge to be left in doubt about whether the offence was spontaneous and unplanned, and no error was established.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal against sentence dismissed.

Key Takeaways

  • An alleged error in a trial judge's reasoning process in accepting evidence does not fall under the "first limb" (unreasonable verdict) of s 6(1) of the Criminal Appeal Act 1912 (NSW), but may constitute a miscarriage of justice under the "third limb."
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a trial judge's characterisation of a prior complaint as "limited" and lacking detail can be a legitimate basis for concluding that a failure to recall the complaint does not undermine the complainant's overall credibility.
  • The standard of proof applicable at sentencing differs from that at trial. An acquittal (or acquittal-equivalent finding) on the criminal standard does not automatically produce a finding in the defendant's favour on the same factual question when it falls for consideration at sentencing on the balance of probabilities.
  • Corroborating evidence from a treating psychologist and marriage counsellor, given in the context of a trial, can carry significant weight in supporting a complainant's account of sexual offending within an intimate relationship.
  • No significant possibility of an innocent person having been convicted existed where the trial judge, having seen and heard all witnesses, was in a position to resolve credibility conflicts between the complainant and defence witnesses.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61I
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21

Cases:
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mohana v R [2023] NSWCCA 61
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Taylor v R [2017] NSWCCA 2