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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, NSW
Date: 28 August 2023
Judge(s): Harrison J (primary), Wilson J, N Adams J

Background

The appellant was convicted by a jury on 10 December 2021 of seven counts of sexual offending against his nephew, who was six years old at the time of the alleged offending. The offences arose from three separate incidents, referred to throughout proceedings as the "bathroom allegations," the "couch allegations," and the "grey bed allegations." The appellant was sentenced to an aggregate term of 10 years imprisonment with a non-parole period of seven years.

The complainant was interviewed by police under the Joint Investigation Response Team (JIRT) process at approximately six years and eight months of age. He gave pre-recorded evidence at trial in November 2021, by which time he was nine years old. The appellant denied all allegations.

The appellant sought leave to appeal against conviction on the sole ground that the verdicts were unreasonable and could not be supported having regard to the evidence. He did not challenge the sentence.

  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether the complainant's inconsistencies in memory and detail were substantial enough to require the jury to have held a reasonable doubt
  • Whether the alleged circumstances of the offending were so inherently fantastical or improbable that no reasonable jury could have accepted the complainant's account

Decision

The Court granted leave to appeal but dismissed the appeal unanimously, with Harrison J delivering the primary judgment and Wilson J and N Adams J agreeing.

Harrison J held that the issues raised on appeal were quintessentially credibility matters that fell within the jury's province to resolve. The jury had the advantage of seeing and hearing both the complainant and the appellant give evidence, and had been properly directed in accordance with Liberato v The Queen (1985) 159 CLR 507, which addresses how juries should approach conflicting accounts from a complainant and an accused. It was unrealistic, his Honour found, to assess a young child's evidence too critically by demanding that it emerge without lapses in memory or in a strict logical temporal sequence.

The Court also rejected the submission that the alleged circumstances of offending were so bizarre or extraordinary that the jury must have harboured reasonable doubt. Drawing on the Court's own institutional experience, Harrison J noted that the fear of detection does not universally deter child sexual offending, and that brazen or opportunistic conduct is a recognised feature of such cases. The description of the conduct and the child-appropriate language used by the complainant were not beyond the Court's experience and did not, of themselves, generate doubt as to the appellant's guilt.

N Adams J, while accepting that the complainant's evidence on the couch allegations was capable of giving rise to doubt, was satisfied that the jury's advantage in observing witnesses firsthand was capable of resolving that doubt, consistent with the High Court's approach in M v The Queen (1994) 181 CLR 487.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that credibility findings made by a jury, particularly where they have seen and heard witnesses, carry significant weight and will not lightly be disturbed on appeal.
  • A child complainant's evidence is not rendered incapable of supporting a conviction merely because it contains lapses in memory, temporal inconsistencies, or is expressed in age-appropriate rather than precise language.
  • Where an appellant argues that alleged conduct was so improbable or brazen that no reasonable jury could have accepted it, the Court confirmed that such submissions can themselves be speculative, and the Court will draw on its institutional experience of how child sexual offending commonly occurs.
  • The jury's advantage in observing and assessing witnesses, including a young child complainant, is recognised as capable of resolving aspects of evidence that might, in isolation, appear to generate doubt.
  • Under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), leave to appeal is required where the ground does not involve a question of law alone; here, leave was granted but the substantive appeal was dismissed.

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