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Court of Criminal Appeal 6 December 2023

Marco v R

[2023] NSWCCA 307

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION S EXUAL ASSAULT OFFENCES

Citation: Marco v R [2023] NSWCCA 307
Court: Court of Criminal Appeal, New South Wales
Date: 6 December 2023
Judges: Ward P; Walton J; Fagan J

Background

The appellant was convicted in November 2022 following a jury trial in the District Court at Parramatta on two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). He was sentenced in April 2023 to an aggregate term of four years and four months imprisonment, with a non-parole period of two years and nine months. He had been on bail throughout and had not served any time in custody prior to the appeal.

The alleged offending occurred at a gathering in May 2020 at the home of a mutual friend, referred to throughout as Ben Nies. The complainant and Ben Nies were in a casual sexual relationship at the time. The Crown case was that, while Ben Nies briefly left his darkened bedroom, the appellant entered and sexually assaulted the complainant. The complainant initially believed the person was Ben Nies, but came to identify the appellant by touch during the assault. The appellant denied entering the bedroom or having any sexual contact with the complainant.

The defence argued that other males present in the house that night could not be excluded as the perpetrator. Two of the three grounds of appeal originally filed were ultimately pressed: one challenging the adequacy of the trial judge's identification direction to the jury, and one contending that the guilty verdicts were unreasonable.

  • Whether the trial judge erred by giving an "identification evidence" direction rather than a "recognition evidence" direction, where the complainant identified the appellant by touch rather than sight.
  • Whether the verdicts of guilty on each count were unreasonable, in circumstances where the complainant's account was said to be contradicted by the evidence of Ben Nies and his mother (Mrs Nies), and where the jury could not exclude the possibility that another person was responsible.

Decision

Ground 1: Identification direction

The Court held that the complainant's evidence was properly characterised as "identification evidence" within the meaning of the Evidence Act 1995 (NSW), making the trial judge's direction adequate. The Court found that even if the evidence had been more accurately categorised as "recognition evidence" (that is, identifying someone already known to the witness), the failure to give an additional recognition direction did not give rise to a real risk of a miscarriage of justice. Critically, the absence of such a direction had no tendency to affect the verdicts, not least because the case did not turn solely on the complainant's in-trial identification of the appellant. Leave to appeal on this ground was refused.

Ground 3: Unreasonable verdict

The Court examined the evidence in detail, as required when an unreasonable verdict ground is pressed. Mrs Nies's evidence, even if fully accepted, was found not to be inconsistent with the complainant's account and would not have required the jury to harbour a reasonable doubt. The conflicts between the complainant's evidence and that of Ben Nies were squarely before the jury, which was in the best position to assess the credibility and reliability of each witness.

Once the jury accepted the complainant's evidence and excluded Ben Nies as the assailant, no other plausible candidate remained. The appellant's father and brother were found to have been excludable on the evidence, leaving only the appellant. The Court was not left with a reasonable doubt as to guilt. Fagan J observed that it was open to the jury to infer, from all the circumstances including the appellant's testimony and demeanour, that his denials could not constitute a reasonably possible account. Leave to appeal on ground 3 was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal refused in respect of ground 1.
  • Leave to appeal granted in respect of ground 3.
  • Appeal dismissed in respect of ground 3.
  • The appellant's sentence was varied to an aggregate term of four years and four months imprisonment, with a non-parole period of two years and nine months, commencing 6 December 2023 and expiring 5 April 2028. The appellant is eligible for release on parole on 5 September 2026.

Key Takeaways

  • The distinction between "identification evidence" and "recognition evidence" under the Evidence Act 1995 (NSW) was central to ground 1. The Court confirmed that where evidence is properly characterised as identification evidence, a dedicated recognition direction is not required, and its omission will not constitute error if it had no tendency to affect the verdicts.

  • Refusing leave on ground 1, the Court applied Hofer v The Queen (2021) 274 CLR 351 and Edwards v The Queen (2021) 273 CLR 585 in assessing whether any misdirection gave rise to a real risk of miscarriage of justice.

  • In an unreasonable verdict appeal, the appellate court must itself assess whether a reasonable doubt exists as to guilt, applying M v The Queen (1994) 181 CLR 487, Dansie v The Queen (2022) 274 CLR 651, and Pell v The Queen (2020) 268 CLR 123. All three members of the Court concluded that no such doubt arose on the evidence.

  • Where conflicting witness evidence was placed squarely before the jury and addressed in closing addresses, the appellate court will be slow to disturb the verdict. The jury's advantage in observing witnesses first-hand remains significant.

  • No error was established in the trial judge's directions or in the jury's fact-finding process, and the convictions were upheld in their entirety.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 578A
- Evidence Act 1995 (NSW), s 116 and Dictionary
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 4, 4.15

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Gardiner v Regina (2006) 162 A Crim R 233; [2006] NSWCCA 190
- Trudgett v R (2008) 70 NSWLR 696; [2008] NSWCCA 62
- Various other NSWCCA decisions as cited in the judgment