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Court of Criminal Appeal 20 November 2023

Redding v R

[2023] NSWCCA 286

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION CHILD SEXUAL ASSAULT OFFENCES

Citation: Redding v R [2023] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 20 November 2023
Judges: Ward P (principal judgment); Davies J agreeing; N Adams J agreeing

Background

The applicant stood trial in the District Court in October 2022 on eleven counts of historical sexual offences against a complainant who had been a childhood friend of the applicant's daughter. The offences were alleged to have occurred between December 2002 and June 2006, when the complainant was aged between 11 and 15. The charges included aggravated indecent assault, acts of indecency under authority, and multiple counts of sexual intercourse with a child under authority.

The jury acquitted the applicant of counts 7, 8, 10 and 11 (and a directed verdict of not guilty was entered on count 3 during trial). The jury convicted on counts 1, 2, 4, 6 and 9. In December 2022, the trial judge imposed an aggregate sentence of seven years' imprisonment with a non-parole period of four years.

The applicant sought leave to appeal against the five convictions on two grounds: first, that the guilty verdicts were unreasonable in light of the not-guilty verdicts; and second, that the Crown Prosecutor's closing address contained a submission that did not conform with the evidence and was materially prejudicial.

  • Whether the guilty verdicts on counts 1, 2, 4, 6 and 9 were unreasonable or inconsistent with the acquittals on the remaining counts, in particular whether the acquittals necessarily implied that the jury had rejected the complainant's overall credibility
  • Whether the evidence, assessed independently by the appellate court, was of sufficient nature and quality to support the convictions beyond reasonable doubt
  • Whether the Crown Prosecutor's closing address submission (characterising a prior false complaint made by the complainant as a "cry for help") was unsupported by the evidence and materially prejudicial to the applicant

Decision

Ground 1: Unreasonable or inconsistent verdicts

The Court of Criminal Appeal granted leave to appeal on this ground but dismissed it. Ward P (with Davies J and N Adams J agreeing) held that a not-guilty verdict does not necessarily mean the jury disbelieved the complainant. There were rational, evidence-based explanations for the acquittals that had nothing to do with the complainant's overall credibility. Specifically, the acquittals on counts 7 and 8 were explicable by uncertainty as to whether the offending occurred at the location specified in the indictment; the acquittals on counts 10 and 11 were explicable by uncertainty as to whether the conduct fell within the time range stated in the indictment. The verdicts could therefore be reconciled.

The Court then considered independently whether the evidence was of sufficient nature and quality to eliminate any reasonable doubt as to the applicant's guilt on the convicted counts. The central issue at trial was the credibility and reliability of the complainant. The Court acknowledged that the jury held a distinct advantage, having seen and heard the complainant and other witnesses firsthand. Ward P identified that various discrepancies and inconsistencies pointed to by the applicant, including the most troubling matter concerning the complainant's evidence about a non-existent birthmark, were capable of resolution through the jury's assessment of the witnesses' credibility. N Adams J, having considered the matter independently, was also satisfied that the jury's advantage in seeing and hearing the evidence was capable of resolving any doubt arising from that aspect of the complainant's testimony.

Ground 2: Crown closing address

Leave to appeal on this ground was refused. The Court found there was a legitimate evidentiary basis for the Crown's submission that the complainant's 2006 false complaint (in which she attributed blame to someone other than the applicant) could be characterised as a "cry for help." The trial judge had fairly summarised the defence's arguments to the jury, and the Crown's submission in that context was not apt to occasion a miscarriage of justice.

The Court also noted that the defence had not raised any objection at trial. Applying the reasoning in Germakian v R, the Court was satisfied that the failure to object reflected the third of three recognised explanations for such omissions: that in the atmosphere of the trial, defence counsel saw no injustice or error in what had been done. This reinforced the conclusion that no miscarriage of justice had occurred.

Orders Made

• Appeal dismissed.

Key Takeaways

  • An inconsistent verdicts ground does not succeed merely because a jury acquitted on some counts and convicted on others. The relevant question is whether the different verdicts can be reconciled, and an acquittal does not necessarily carry an implied finding that the complainant lacked credibility.

  • Where acquittals can be explained by location or timeframe uncertainties specific to particular counts in the indictment, rather than by a general rejection of the complainant's account, the verdicts are capable of rational reconciliation.

  • On an unreasonable verdict ground in a case turning on witness credibility, the Court of Criminal Appeal must assess the evidence independently, but the jury's advantage in seeing and hearing witnesses firsthand remains a significant consideration, particularly where discrepancies in the evidence are capable of resolution through credibility findings.

  • A Crown Prosecutor's closing submission is not rendered improper merely because it involves a characterisation of prior conduct by the complainant, provided there is a legitimate evidentiary basis for the submission.

  • In the Court of Criminal Appeal, a defence advocate's failure to object at trial to a matter later raised on appeal is a relevant consideration and may, in appropriate circumstances, indicate that no real injustice or error was perceived at the time.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M, 61O, 66C, 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Evidence Act 1995 (NSW), s 165B(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Barney v R [2023] NSWCCA 85
- Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Latu v R [2023] NSWCCA 19
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Greenhalgh v R [2017] NSWCCA 94
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322