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Court of Criminal Appeal 20 September 2023

JC v R

[2023] NSWCCA 231

Sexual offences

Citation: JC v R [2023] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 20 September 2023
Judges: Adamson JA (principal judgment); Harrison J agreeing; Chen J agreeing

Background

The applicant was convicted following a trial by judge alone in the District Court on two counts: indecent assault of his daughter, RC, who was approximately two years old at the time of the offending, and possession of child abuse material (1,334 cartoon images found on a hard drive at his Sydney home). He was acquitted of a third count after a successful no-case application.

The prosecution's case on the assault count rested substantially on the evidence of AS, the applicant's wife and the child's mother, who alleged the assault occurred during intercourse between her and the applicant. A third adult, BH, who lived with the couple, gave corroborating evidence. The applicant was sentenced to four years' imprisonment for the assault count, with a non-parole period of two years and seven months, plus a concurrent fixed term of six months for the child abuse material count.

The applicant sought leave to appeal his convictions on six grounds, ranging from alleged misdirections in the judge-alone trial to claims that the verdicts were unreasonable and that fresh evidence warranted a different outcome.

  • Whether the trial judge was required to warn himself, under s 165(1)(d) of the Evidence Act 1995 (NSW), that AS's evidence may be unreliable because she was reasonably suspected of being criminally involved in the events
  • Whether the trial judge should have applied a Murray direction, cautioning himself about the reliability of AS's uncorroborated evidence
  • Whether the trial judge failed to apply or adequately explain the application of the Liberato direction (the requirement to consider what effect denial evidence has on the prosecution case)
  • Whether the trial judge reversed the onus of proof when reasoning about the child abuse material count
  • Whether the verdicts on both counts were unreasonable or unsupported by the evidence
  • Whether fresh evidence of BH's sexual interest in "age play" created a significant possibility that the tribunal of fact would have reached a different verdict

Decision

Ground 1 (s 165 warning): The Court held that under s 165(2) of the Evidence Act, a warning of this kind is only required when a party requests it. Here, the prosecutor initially raised the possibility of such a warning but then withdrew the request, and defence counsel expressly did not seek it. Accordingly, no warning was required and no miscarriage of justice arose.

Grounds 2 and 3 (Murray and Liberato directions): No Murray direction was necessary because AS's evidence was substantially corroborated by other evidence at trial. The trial judge's reasons adequately explained his acceptance of the prosecution witnesses and rejection of the applicant's evidence. On the Liberato ground, because the prosecution witnesses' accounts and the applicant's account were directly contradictory and could not stand together, the trial judge's acceptance of AS and BH's evidence necessarily involved rejection of the applicant's version. The Court found the judge's reasoning was sufficient to disclose this process.

Ground 4 (onus of proof): The Court found no reversal of the onus of proof when the trial judge's reasons were read fairly as a whole. The impugned findings were made in the course of evaluating and rejecting the applicant's specific submissions that AS had been responsible for the child abuse material, not in substituting a different standard for proof.

Ground 5 (unreasonable verdicts): On both counts, the Court held the verdicts were plainly open. For the assault count, acceptance of AS and BH as credible and reliable witnesses was sufficient to support the finding. For the child abuse material count, direct evidence from AS and BH denying knowledge of the material, combined with substantial circumstantial evidence implicating the applicant (including that the hard drive was at his Sydney residence where he lived alone), made the verdict supportable. Harrison J noted that the trial judge had the distinct advantage of observing witnesses, and no basis was established for disregarding that advantage.

Ground 6 (fresh evidence): The Court considered fresh evidence of BH's sexual interest in "age play" and in referring to her partner as "Daddy." It found that the apparent inconsistency between BH's described interests and her actual conduct was a matter capable of resolution by the tribunal of fact, and the precise identification of her sexual interests was not particularly significant given that her evidence primarily served to corroborate AS's account of the applicant's conduct and AS's complaints. The Court concluded there was no significant possibility that a tribunal of fact acting reasonably would have acquitted the applicant had this evidence been available, and thus no miscarriage of justice was established.

Orders Made

  • Leave to appeal against conviction refused; appeal dismissed
  • The sentence, suspended during the appeal period, recommenced on 20 September 2023
  • The 217-day period from 15 February 2023 to 19 September 2023 (inclusive) does not count as part of the sentence, pursuant to s 18(2) of the Criminal Appeal Act 1912 (NSW)
  • The non-parole period will now expire on 27 August 2025
  • The sentence will now expire on 25 January 2027

Key Takeaways

  • Under s 165(2) of the Evidence Act 1995 (NSW), the obligation to give a reliability warning about a witness reasonably suspected of criminal involvement is triggered only by a party's request; where defence counsel does not seek the warning, no miscarriage of justice arises from its absence.
  • A Murray direction is not required where a witness's evidence is substantially corroborated by other evidence and the trial judge's reasons adequately address credibility findings.
  • In a judge-alone trial where evidence is directly contradictory, acceptance of one witness's account necessarily implies rejection of the opposing account; this process can satisfy the Liberato requirement without a formulaic statement of the direction.
  • Fresh evidence will not establish a miscarriage of justice unless there is a significant possibility that a tribunal of fact, acting reasonably, would have returned a different verdict had the evidence been available; marginal inconsistencies in a corroborating witness's personal circumstances are unlikely to meet that threshold.
  • Sufficient evidence existed to support conviction on a child abuse material possession count where the relevant device was found at a residence where the applicant lived alone and the other household occupants gave direct evidence denying knowledge of the material.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 91H, 91HA
- Evidence Act 1995 (NSW), s 165
- Criminal Procedure Act 1986 (NSW), ss 133, 294AA
- Criminal Appeal Act 1912 (NSW), ss 6, 18, 28A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 48
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Liberato v The Queen (1985) 159 CLR 507
- R v Murray (1987) 11 NSWLR 12
- Evans v The Queen (2007) 235 CLR 521
- Pell v The Queen (2020) 268 CLR 123
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Dansie v The Queen (2022) 403 ALR 221
- Mickelberg v The Queen (1989) 167 CLR 259
- Gallagher v The Queen (1986) 160 CLR 392
- R v JC [2023] NSWSC 111