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Court of Criminal Appeal 13 December 2023

Asiminaris v R

[2023] NSWCCA 321

Sexual offences
TWO COUNTS UNDER AUTHORITY UNREASONABLE VERDICT

Citation: Asiminaris v R [2023] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 13 December 2023
Judges: Mitchelmore JA; Dhanji J; Sweeney J

Background

Following a District Court trial, a jury convicted the applicant, a former youth worker at Reiby Juvenile Justice Centre, of two counts of sexual intercourse with a person aged 10 years or over and under 16 years under authority (s 66C(2) of the Crimes Act 1900 (NSW)), and one count of sexual intercourse with a person in that age range (s 66C(1)). The offences were alleged to have occurred in 1997, when the applicant was 23 years old and the complainant, then 15, was serving a sentence at the centre. The applicant was sentenced to an aggregate term of three years' imprisonment with a non-parole period of one year and ten months, which had expired before the appeal was heard.

The Crown alleged that sexual intercourse occurred on three separate occasions: in the applicant's car during a work release outing (count 1), in the complainant's accommodation unit at the centre (count 3), and at the home of the applicant's brother on the day the complainant was released from custody (count 5). After the complainant's release, the two moved in together briefly, and the relationship ended after the applicant became pregnant. The applicant denied all counts and gave evidence at trial; her brother also gave evidence.

The applicant sought leave to appeal out of time, relying on her solicitor's explanation for the delay, which included difficulties obtaining materials and disruptions caused by the COVID-19 pandemic during 2021.

  • Whether leave to appeal out of time should be granted given the delay in filing the notice of appeal
  • Whether the jury's verdicts on counts 1, 3 and 5 were unreasonable, specifically:
  • Whether the complainant's evidence was inherently unlikely or lacked sufficient detail to support conviction
  • Whether there was adequate opportunity for the relationship between the applicant and complainant to develop, as alleged
  • Whether unexplored case notes recording a pregnancy and miscarriage in May 1997 undermined the reliability of the complainant's evidence
  • Whether a statement made by the applicant to the arresting officer amounted to evidence of consciousness of guilt
  • Whether evidence from the applicant's brother made the alleged location of count 5 impossible
  • Whether there remained a reasonable possibility that the applicant's account was true

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, but dismissed the appeal unanimously. Mitchelmore JA delivered the principal judgment, with Dhanji J and Sweeney J each confirming their agreement after conducting their own independent assessments of the evidence.

On the question of detail in the complainant's evidence, the Court found that while the complainant did not provide every detail the applicant criticised as absent, his accounts did contain specific particulars, and the absence of other details was consistent with the passage of time since the events occurred. Some details the complainant provided were also corroborated by other evidence in the trial.

The submission that there was insufficient opportunity for closeness to develop between the applicant and complainant assumed the accuracy of departmental rostering records. That assumption was undermined by the evidence of a fellow youth worker, Ms Tonumaipea, and by aspects of the applicant's own evidence. The case notes recording a pregnancy and miscarriage were found not to carry the significance the applicant attributed to them, and the complainant's stated inability to recall those events was consistent with him giving evidence only of matters he actually remembered.

Regarding the applicant's brother's evidence that the applicant never stayed at his home and that the complainant never visited, the Court found this was undermined by the complainant's mother's evidence and contemporaneous documentary evidence. The applicant's own trial evidence was characterised as given in a generally argumentative manner, and her account of her interactions with the complainant was found to be implausible and contradicted by the complainant's family members and by contemporaneous documents. On the evidence as a whole, it was well open to the jury to be satisfied beyond reasonable doubt of guilt on all three counts.

Orders Made

  • Time extended to 16 June 2023 for the applicant to file the notice of appeal
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an absence of granular detail in a complainant's account of historical sexual offences does not, of itself, render a verdict unreasonable, particularly where the passage of time provides a ready explanation for incomplete recollection.
  • Corroboration by family members and contemporaneous documentary evidence can sustain a complainant's account even where the accused and a defence witness both deny the conduct alleged.
  • Where a defence argument depends on the reliability of institutional records (such as rostering documents), that argument is weakened if other witnesses, including the accused, give evidence inconsistent with those records being determinative.
  • Sufficient evidence existed on the whole of the trial record to eliminate any reasonable doubt, notwithstanding that the applicant gave evidence denying the offences, where that evidence was found to be implausible and contradicted by multiple other witnesses.
  • The Court granted an extension of time to appeal in circumstances where the applicant's solicitor provided a sufficient explanation covering material portions of the delay, including pandemic-related disruptions, even though the overall delay was described as not insignificant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(1), 66C(2), 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Act 1986 (NSW), s 306I
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 1
- WG v R; KG v R [2020] NSWCCA 155
- Z (a pseudonym) v R [2022] NSWCCA 8
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Hawi v R [2014] NSWCCA 83