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Court of Criminal Appeal 1 September 2023

Arizabaleta v R

[2023] NSWCCA 217

Sexual offences
CRIME APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL SIGNIFICANCE OF MALLEABILITY OF MEMORY APPEAL DISMISSED BY MAJORITY

Citation: Arizabaleta v R [2023] NSWCCA 217
Court: Court of Criminal Appeal, New South Wales
Date: 1 September 2023
Judge(s): Leeming JA at [1]; Rothman J at [166]; McNaughton J at [219]

Background

The appellant was charged with three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), all arising from a single incident at a Surry Hills terrace house in the early hours of 21 June 2020. He pleaded guilty to the first count (digital penetration of the complainant's vagina while she was asleep) and contested the second and third counts (cunnilingus and penile vaginal penetration respectively). The complainant was a 24-year-old Korean national whose primary language was not English; the appellant was a 28-year-old Colombian national who had lived in Australia for approximately eight and a half years.

The matter proceeded as a judge-alone trial in the District Court. The primary judge found the appellant guilty on the second and third counts and imposed an aggregate sentence of four years imprisonment with a non-parole period of two years and eight months.

The sole ground of appeal to the Court of Criminal Appeal was that the findings of guilt on counts 2 and 3 were unreasonable and could not be supported by the evidence, pursuant to s 6 of the Criminal Appeal Act 1912 (NSW).

  • Whether the findings of guilt on the cunnilingus and penile vaginal penetration counts were unreasonable or unsupported by the evidence
  • How inconsistencies in the complainant's accounts (across police notebook records, paramedic records, hospital examination records, and trial evidence) should be assessed in determining reasonableness of verdict
  • What weight, if any, should be given to the primary judge's advantage in observing witnesses give evidence, when an appellate court independently assesses the reasonableness of a verdict
  • How the malleability of memory and the complainant's language difficulties bore upon the reliability of her evidence
  • How to approach the absence of early references to cunnilingus and qualified or absent references to penile penetration in the immediate post-assault accounts

Decision

The court divided two to one, with Leeming JA (in the lead judgment) allowing the appeal and Rothman J dissenting; McNaughton J agreed with Leeming JA. Leeming JA undertook a detailed examination of the contemporaneous documentary evidence, which was described as richer than is often encountered in such matters. That evidence included a police officer's notebook entry made at 5.42 am, paramedic records, and records from the Royal Prince Alfred Hospital Sexual Assault Centre, all compiled within hours of the offending.

Leeming JA found that the complainant's earliest and most contemporaneous accounts consistently and clearly described digital penetration but made no mention of cunnilingus and only a qualified or uncertain reference to penile penetration. The phrase "possibly penis" appeared in the police notebook, and subsequent accounts at the hospital also reflected uncertainty or absence on those two counts. By contrast, her evidence at trial, given some 18 months after the event, was more definitive. Leeming JA treated memory's malleability as a significant consideration, and concluded that the prosecution had not established the second and third counts beyond reasonable doubt on the totality of the evidence.

Rothman J, dissenting, independently assessed the evidence and reached a different conclusion. His Honour placed weight on the primary judge's finding that the complainant was a truthful witness and on contextual factors explaining imprecision in early accounts, including trauma, language difficulties, and the circumstances of reporting. Rothman J concluded the verdicts were not unreasonable and the appeal should be dismissed.

McNaughton J agreed with Leeming JA that the appeal should be allowed. By majority, the court quashed the findings of guilt on counts 2 and 3 and resentenced the appellant on count 1 alone, in accordance with the indicative sentence previously stated for that count.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Findings of guilt on counts 2 and 3 (made 15 December 2021) quashed; in their place, findings of not guilty entered on those counts.
  • Aggregate sentence of four years imprisonment (imposed 11 February 2022) quashed.
  • Appellant resentenced on count 1 to three years imprisonment with a non-parole period of two years and one month, commencing 10 February 2022, expiring 9 February 2025, with eligibility for parole from 9 March 2024.

Key Takeaways

  • Where a single ground of appeal is that a verdict is unreasonable and cannot be supported by the evidence, appellate courts must independently assess the whole of the evidence, while giving appropriate weight to the trial judge's advantage in observing witnesses.
  • Contemporaneous documentary records made close in time to an alleged offence carry particular probative significance when assessing the reliability of later trial evidence, especially where memory's malleability is in issue.
  • The absence of a complaint about particular conduct in multiple early accounts, when other conduct was clearly and consistently reported, can be a significant factor in an appellate court concluding a verdict on those specific counts is unreasonable.
  • A finding by the primary judge that a complainant was a truthful witness does not, of itself, preclude an appellate court from concluding that a verdict is unreasonable; the distinction between truthfulness and accuracy in recall is relevant to the inquiry.
  • Language difficulties and the circumstances in which early accounts are given (trauma, urgency, interpreter absence) may explain some imprecision, but the majority in this case found those explanations insufficient to overcome persistent omissions in the complainant's earliest reports.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61I, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 132, 133, 293A, 294, 294B
- Evidence Act 1995 (NSW)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW), Sch 4 [10]

Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Dansie v The Queen [2022] HCA 25; 96 ALJR 728
- De Silva v The Queen (2019) CLR 57; [2019] HCA 48
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 65
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Fennell v The Queen [2019] HCA 37; 93 ALJR 1219
- Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
- AS v R [2022] NSWCCA 291
- Hossain v R [2023] NSWCCA 18
- RA v R [2020] NSWCCA 356
- Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)