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Court of Criminal Appeal 28 August 2023

Bolton v R

[2023] NSWCCA 211

Sexual offences
CRIMES APPEALS APPEAL AGAINST CONVICTION SEXUAL OFFENCES AGAINST CHILD NATURE OF CHILD SEXUAL OFFENDING JURY ADVANTAGE IN OBSERVING WITNESSES

Citation: Bolton v R [2023] NSWCCA 211
Court: Court of Criminal Appeal
Date: 28 August 2023
Judge(s): Harrison J (at [1]), Wilson J (at [53]), N Adams J (at [55])

Background

The applicant was convicted by a jury in December 2021 on seven counts of sexual offences against his nephew, who was approximately six years old at the time of the alleged offending. The offences were grouped around three separate incidents: conduct in a bathtub, an incident on a couch in the loungeroom, and conduct on a grey bed. The applicant was sentenced to an aggregate term of 10 years imprisonment with a non-parole period of seven years.

The complainant made disclosures to his mother in January 2019, which were reported to police the same day. He participated in a recorded JIRT interview (a specialist police interview for children) days later, while the events were relatively fresh. He gave pre-recorded evidence at a hearing in November 2021, by which time he was nine years old.

The applicant did not challenge the sentence. His sole ground of appeal was that the jury's verdicts were unreasonable and could not be supported having regard to the evidence, requiring leave to appeal under the Criminal Appeal Act 1912 (NSW).

Legal Issues

  • Whether the jury's verdicts on all seven counts were unreasonable or could not be supported having regard to the evidence, within the meaning of s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether the complainant's memory lapses and inconsistencies were so significant that the jury must have entertained a reasonable doubt
  • Whether the inherent implausibility of certain alleged conduct, said to occur in proximity to other people, was of a character that must have produced a reasonable doubt
  • Whether descriptions of offending conduct characterised as "fantastical" or "fatuous" were incapable of belief and therefore compelled doubt

Decision

The single ground: Unreasonableness of the verdicts

Harrison J identified the applicable framework: an appellate court assessing unreasonableness must proceed on the basis that the jury accepted the complainant's evidence as credible and reliable, and it is only in an unusual case that a complainant's credibility will have been so damaged that the jury could not properly accept it (at [25]-[26]). The court granted leave to appeal but dismissed the appeal, finding the verdicts were not unreasonable.

Memory lapses and inconsistencies in the complainant's evidence

The applicant pointed to several omissions and inconsistencies, including the complainant's failure in cross-examination to mention that the applicant touched his armpits with his penis, his apparent forgetting of the couch incident at the pre-recorded hearing, and differing accounts of when the couch incident occurred. The court found the complainant's failure to raise certain matters was unsurprising, given he was not asked about them in cross-examination and given his very young age and the time elapsed (at [29]). The apparent confusion about "the couch" was attributed to genuine ambiguity in the terminology, as the complainant used the phrase to refer to more than one location and more than one incident (at [31]-[32]). The court held it was unrealistic to expect a child of this age to recount events with unerring accuracy as to timing, sequence and location across a period of nearly three years, and that inconsistency in a witness's evidence does not of itself establish that the jury ought to have entertained a doubt about the balance of that evidence (at [36]-[37], [46]).

Alleged implausibility of the conduct described

The applicant argued that the alleged conduct, particularly the couch incident said to have occurred while several adults socialised on an adjacent veranda, "bordered on the fantastical" and must have produced a doubt. The court rejected that proposition. It noted that the fear of detection does not universally operate as a deterrent in child sexual assault cases, and that the applicant's alleged incautious conduct was not of a character that must have caused the jury to have a reasonable doubt, as distinct from a doubt it might have entertained (at [39]-[41]). N Adams J, while acknowledging the couch incident evidence was "of a slightly different character" capable of giving rise to a doubt, was satisfied the jury's advantage in seeing and hearing the evidence was capable of resolving that doubt (at [63]).

Descriptions characterised as extraordinary or childish

The applicant submitted that certain descriptions, including the applicant allegedly "wiggling" his penis and making "fatuous and childish" remarks, were so extraordinary they must have been doubted. The court found that descriptions which might appear extraordinary are commonly encountered in child sexual assault cases (at [42]-[44]). Harrison J observed that the complainant's references to pain associated with anal penetration were difficult to discount as fantasy and lent support to the validity of the account (at [44]). Wilson J added that the bizarre or extraordinary nature of the alleged conduct cannot of itself raise a doubt as to the veracity of the evidence, and that courts have long recognised that sexual offenders will commit offences against children notwithstanding a risk of discovery (at [53]).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an appellate court examining an unreasonableness ground must proceed on the assumption that the jury accepted the complainant as credible and reliable; it is only in an unusual case that credibility damage will be so severe that the verdict cannot stand (at [25]-[26], [56]).

  • Memory lapses and inconsistencies in a young complainant's evidence do not, of themselves, compel a finding that the jury must have entertained a reasonable doubt, particularly where the child was very young at the time of offending and gave evidence years after the events (at [36]-[37], [46]).

  • In dismissing the appeal, the court reaffirmed that the fear of detection does not universally deter child sexual offending, so that alleged recklessness or incaution by an offender is not the kind of conduct that must produce a reasonable doubt, even if it might give rise to one (at [39]-[41], [53]).

  • Descriptions of offending conduct that appear extraordinary, implausible or even "fantastical" are commonly encountered in child sexual assault cases and do not compel doubt; a child complainant's account of pain during penetration is, on the other hand, difficult to discount as product of imagination (at [42]-[44]).

  • A distinction exists between a doubt the jury might have entertained during deliberations and a doubt they must have entertained; only the latter can ground a successful unreasonableness appeal (at [41]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW) s 5

Cases
- AS v R [2022] NSWCCA 291
- Dansie v The Queen [2022] HCA 25
- JL v R [2023] NSWCCA 99
- Khan v R [2022] NSWCCA 157
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v R (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- RA v R [2020] NSWCCA 356
- RW v R [2023] NSWCCA 2
- Sita v R [2022] NSWCCA 90
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- VP v R [2021] NSWCCA 11
- Z (a pseudonym) v R [2022] NSWCCA 8