AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 13 November 2023

ZL v R

[2023] NSWCCA 279

Sexual offences

Citation: ZL v R [2023] NSWCCA 279
Court: New South Wales Court of Criminal Appeal
Date: 13 November 2023
Judge(s): Adamson JA (primary reasons); Price J (agreeing, with additional reasons); Fagan J (agreeing, with additional reasons)

Background

The applicant, who was 16 years old at the time of the alleged conduct, was convicted by a jury of six sexual offences against a 10-year-old complainant. The offences were said to have occurred on a single evening in July 2011 while the complainant was staying overnight at the home of her maternal grandfather, who was the applicant's stepfather. The trial was presided over by Sutherland SC DCJ in the District Court, and the jury returned guilty verdicts on all counts on 23 February 2021. The applicant received a two-year Community Corrections Order, which had been served by the time of the appeal.

The applicant sought leave to appeal on the sole ground that the verdicts were unreasonable. He did not seek leave to appeal against the sentence. The applicant's core argument centred on evidence given by Crown witnesses, specifically his mother and stepfather, which he said made the commission of counts 3 to 6 virtually impossible. Those witnesses testified that the spare room where the complainant slept was stacked with boxes for a garage sale, which would have obstructed access to the side of the bed where the offences were said to have occurred.

A further group of circumstances was also relied upon: the stepfather being a light sleeper, the applicant having spent the entire weekend in his own father's company, dogs in the house that tended to rouse at disturbances, creaky doors, and the placement of a mattress in the applicant's room that would have made his movements noticeable.

  • Whether the verdict was unreasonable under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), such that no reasonable jury could have been satisfied beyond reasonable doubt of the applicant's guilt.
  • Whether the evidence of the applicant's mother and stepfather about the state of the spare room was "unchallenged" for the purposes of the unreasonable verdict analysis, given that the Crown did not seek leave to cross-examine those witnesses under s 38 of the Evidence Act 1995 (NSW).
  • Whether, absent an application under s 38, the prosecutor could properly submit to the jury that those witnesses' evidence ought not to be accepted.
  • Whether the present case was analogous to Pell v The Queen (2020) 268 CLR 123, in which the High Court quashed a conviction on the basis that Crown witness evidence of physical impossibility had gone unchallenged.

Decision

The Court of Criminal Appeal (Adamson JA, Price J, and Fagan J agreeing) granted leave but dismissed the appeal. All three judges concluded it was open to the jury to accept the complainant's evidence beyond reasonable doubt and that the verdicts were not unreasonable.

On the s 38 question, Adamson JA (with Fagan J agreeing) held that no general rule applies as to when a prosecutor must seek leave to cross-examine a Crown witness under s 38 before inviting the jury to reject that witness's evidence. Where it is plain that a witness's evidence is contrary to the Crown case, where the witness is clearly partisan, and where the Crown's attack is simply that the evidence is incorrect or ought not to be accepted, a leave application is not necessarily a precondition to making that submission. The inevitability of inconsistencies arising among prosecution witnesses, given the prosecutor's duty to call all relevant witnesses, was acknowledged as an inherent feature of criminal trials.

On the core impossibility argument, the Court distinguished the present case from Pell v The Queen. In Pell, the Crown had no witness in a position to directly contradict the evidence of physical impossibility, which had been left unchallenged in cross-examination. Here, the complainant herself gave evidence directly denying that boxes or bags obstructed the relevant side of the bed. The jury therefore had a rational basis for preferring her account over that of the applicant's mother and stepfather, even in the absence of cross-examination of those witnesses and irrespective of counsel's submissions on the subject.

Each of the additional circumstances relied upon by the applicant, including the light-sleeping stepfather, the presence of dogs, creaking doors, and the father's mattress position, was assessed individually and collectively. Fagan J found that none of those matters was so invariable or definitive as to compel a reasonable doubt, and that their cumulative force did not alter that assessment. Price J concluded it was not a reasonable possibility that the applicant was an innocent man who had been wrongfully convicted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of a s 38 application does not automatically render Crown witness evidence "unchallenged" in a way that prevents the jury from rejecting it, particularly where the witness is clearly partisan and the evidence is plainly contrary to the Crown case.
  • No general rule governs whether a prosecutor must seek leave under s 38 of the Evidence Act 1995 (NSW) before submitting that a Crown witness's evidence should not be accepted; the appropriateness of such an application depends on the nature of the challenge and the trial circumstances.
  • Pell v The Queen was distinguished on a critical factual basis: the impossibility argument in Pell succeeded in part because no witness in the Crown case could directly contradict the unchallenged evidence of physical impossibility, whereas in this case the complainant herself directly denied the supposed physical obstacle.
  • A jury is entitled to prefer the evidence of a complainant over that of Crown witnesses on a question of physical access or arrangement, even where those Crown witnesses were not cross-examined on the specific point.
  • Cumulative circumstantial factors pointing to difficulty or improbability of offending do not automatically establish a reasonable doubt; each circumstance must be assessed for whether it is sufficiently invariable and definitive to preclude a rational guilty verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 61N, 66C
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 159
- Evidence Act 1995 (NSW), ss 38, 137

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
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Crickitt v R [2018] NSWCCA 240
- Ngo v R [2023] NSWCCA 201
- Z (a pseudonym) v R [2022] NSWCCA 8
- R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34
- R v Tangye (1997) 92 A Crim R 545
- Browne v Dunn (1893) 6 R 67