Citation: HO v R [2023] NSWCCA 245
Court: Court of Criminal Appeal, NSW
Date: 6 October 2023
Judges: Beech-Jones CJ at CL, Wilson J, R A Hulme AJ
Background
The appellant (referred to as "HO" to protect the privacy of the complainant and her children) stood trial in the District Court at Sydney before Judge Frearson SC and a jury of twelve in mid-2019. He faced fifteen counts of sexual and physical assault alleged to have been committed against his then-wife over a ten-year period between 2001 and 2011. The jury returned guilty verdicts on eight of the fifteen counts, and an aggregate sentence of 12 years and 6 months imprisonment with a non-parole period of 8 years and 4 months was imposed.
The convicted offences included assault occasioning actual bodily harm, sexual intercourse without consent, aggravated sexual intercourse without consent (where actual bodily harm was inflicted), indecent assault, and common assault. The complainant gave her evidence at trial with the assistance of an Arabic interpreter.
The appellant filed a notice of appeal well out of time, in February 2023, seeking an extension of time and leave to appeal against conviction only. He attributed the delay primarily to difficulty securing funded legal representation.
Legal Issues
- Whether the verdicts were unreasonable or could not be supported having regard to the evidence (first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW))
- Whether the trial miscarried due to the trial judge's failure to stay or halt the proceedings on the basis that police had inadequately investigated the matter, including by failing to pursue evidence relating to a particular named individual
- Whether any exclusion of reference to that individual at trial constituted a wrong decision of law
- Whether an extension of time and leave to appeal should be granted given the lengthy delay
Decision
Unreasonable verdict (Grounds 1 and 2). Wilson J dealt with these two grounds together, as both raised the same complaint in different terms: that the jury's verdicts were unreasonable or could not be supported by the evidence. After a detailed review of the evidence led at trial, her Honour concluded that the verdicts were open to the jury on the evidence and were not unreasonable. Beech-Jones CJ at CL and R A Hulme AJ each separately confirmed they had reviewed the evidence and were satisfied there was no significant possibility that an innocent person had been convicted, applying the test from M v The Queen (1994) 181 CLR 487.
Investigation obligations and trial miscarriage (Ground 3). Before the trial commenced, the appellant had brought a detailed pre-trial application seeking a stay on the basis that police had failed to adequately investigate aspects of the matter he regarded as critical to his defence. The trial judge dismissed that application, finding the investigation was reasonable and adequate in the circumstances, that no significant forensic disadvantage could be identified, and that the appellant had access to the material he relied upon and could deploy it at trial subject to the rules of evidence. Wilson J upheld the trial judge's approach. The Court confirmed that the Crown's obligation to call witnesses and investigate does not extend to conducting the defence case, and no wrong decision of law was established.
Extension of time and leave. Wilson J accepted that the appellant's difficulty in securing legal representation provided a sufficient explanation for the delay, though she noted it was not entirely satisfactory. Given the seriousness of the charges and the need for finality, she granted both the extension of time and leave to appeal. The appeal was nonetheless dismissed on the merits.
Orders Made
- Extension of time in which to bring an application for leave to appeal against conviction granted until 7 February 2023
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the standard for setting aside a verdict as unreasonable requires the court to be satisfied there is a significant possibility that an innocent person was convicted; a detailed review of all trial evidence is required before that conclusion can be reached.
- A pre-trial application for a stay of proceedings based on alleged police investigative failures will not succeed where the accused cannot identify a specific forensic disadvantage or practical injustice resulting from those alleged deficiencies.
- The Crown's obligation to investigate does not require police to pursue every line of inquiry nominated by an accused; where the accused has access to relevant material, the trial judge may be satisfied a fair trial remains possible.
- Impecuniosity and difficulty obtaining legal representation may provide a sufficient basis for granting an extension of time to appeal, even where the delay is lengthy, though the explanation must be reasonably established.
- No error was established from the exclusion of references to a third party at trial where the appellant could not demonstrate that the exclusion caused the proceedings to miscarry.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act 1900 (NSW), ss 59, 61, 61I, 61J(1), 61L
- Criminal Procedure Act 1986 (NSW), s 293 (now s 294CB)
- Evidence Act 1995 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Key Cases:
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 268 CLR 123
- MFA v The Queen (2002) 213 CLR 606
- R v Baden-Clay (2016) 258 CLR 308
- Mahmood v Western Australia (2008) 232 CLR 397
- Dietrich v The Queen (1992) 177 CLR 292
- R v Kneebone (1999) 47 NSWLR 450
- R v Markuleski (2001) 52 NSWLR 82
- McKenzie v R (1996) 190 CLR 348
- AS v R [2022] NSWCCA 291
- JL v R [2023] NSWCCA 99