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Court of Criminal Appeal 8 September 2023

Duncan v R

[2023] NSWCCA 223

Sexual offences

Citation: Duncan v R [2023] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 8 September 2023
Judges: Adamson JA (leading judgment); Wright J; Fagan J

Background

The applicant was a married man with two daughters who owned competition horses on a property near Bega. He gave riding instruction to his daughters' friends and organised camping trips to remote areas, taking one daughter and another young girl riding and sleeping in swags.

He was charged with 16 offences of sexually touching a child against five complainants, each aged between 10 and 14 at the time of the alleged offences. The charges related to incidents occurring during 2019 and 2020, including alleged touching of complainants' breasts and genital areas, primarily during camping trips in Kosciuszko National Park and at his property.

Following a jury trial in the District Court at Queanbeyan before Tupman DCJ, the applicant was convicted on eight counts involving three complainants (OO, HU, and SC). He was acquitted on counts relating to complainants RN and AL, and the jury was unable to reach a verdict on two further counts concerning RN. He received an aggregate sentence of five years' imprisonment with a non-parole period of two and a half years. He sought leave to appeal against conviction only.

  • Whether the jury's guilty verdicts on the eight counts were unreasonable and unsupported by the evidence within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW).
  • Whether discrepancies and conflicts within and between the complainants' accounts ought to have created a reasonable doubt as to the applicant's guilt.
  • Whether evidence of potential contamination between complainants' accounts (in particular, RN's complaint evidence touching on the OO counts) undermined the safety of the guilty verdicts.
  • Whether the applicant's prior good character evidence, and the confidence placed in him by the parents of the complainants, ought to have produced a reasonable doubt.

Decision

Adamson JA delivered the leading judgment, with Wright and Fagan JJ agreeing. The Court conducted a thorough review of all trial evidence before turning to the applicant's specific challenges.

On the unreasonable verdict ground, the Court applied the well-established principle that an appellate court must itself assess the whole of the evidence and determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. It is not enough for an applicant to identify inconsistencies or weaknesses in the evidence; those matters must be of a character that ought to have produced a reasonable doubt.

The Court considered the applicant's numerous arguments concerning discrepancies in the complainants' accounts, including variations between their police interviews and trial evidence, and the potential for contamination between the accounts of RN and OO. The Court found that each of these matters was one the jury was entitled to resolve in the Crown's favour. Inconsistencies of the kind raised did not require a reasonable doubt, and the circumstances of the alleged offences (remote camping, children sleeping in swags beside the applicant) were consistent with the complainants' accounts.

The Court gave no special weight to the prior good character evidence. It was open to the jury to find that a man regarded as trustworthy by those around him was nonetheless guilty of the charged offences. Adamson JA stated that, having reviewed all the evidence, she had no doubt of the applicant's guilt on the relevant counts. Wright and Fagan JJ each confirmed they had independently reviewed the full trial record and reached the same conclusion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying discrepancies and conflicts in complainants' evidence does not, without more, establish that a verdict was unreasonable. The question is whether a jury was entitled to resolve those issues and still be satisfied of guilt beyond reasonable doubt.
  • All three judges conducted independent reviews of the full trial record before agreeing that the verdicts were open. Fagan J specifically noted he had watched and listened to parts of a complainant's police interview as part of that review.
  • Potential contamination between complainants' accounts is a matter the jury is entitled to weigh, and the appellate court will not disturb a guilty verdict merely because a contamination argument was available to the defence.
  • Prior good character evidence, and the trust placed in a defendant by others, does not automatically create a reasonable doubt. A jury may rationally accept both that a person was regarded as trustworthy and that he committed the charged offences.
  • The mixed verdict at trial (acquittals, hung counts, and guilty verdicts across five complainants) did not render the guilty verdicts unreasonable. No inconsistency argument was advanced, and the Court treated each count on its own evidential merits.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes Act 1900 (NSW), ss 61HB, 66DB
- Criminal Procedure Act 1986 (NSW), s 294B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Markuleski (2001) 52 NSWLR 82
- BCM v The Queen (2013) 303 ALR 387
- The Queen v Baden-Clay (2016) 258 CLR 308
- Hughes v The Queen (2017) 263 CLR 338
- Pell v The Queen (2020) 268 CLR 123
- Dansie v The Queen (2022) 403 ALR 21
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- Maughan v R [2020] NSWCCA 51
- Z (a pseudonym) v R [2022] NSWCCA 8
- AS v R [2022] NSWCCA 291
- JL v R [2023] NSWCCA 99
- Crickitt v R [2018] NSWCCA 240
- Rao v R [2019] NSWCCA 290
- Reed v R [2006] NSWCCA 314