Citation: BQ v R [2023] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 3 March 2023
Judges: Davies J; McNaughton J; R A Hulme AJ
Background
The applicant was tried in the District Court on 11 counts of child sexual assault offences alleged to have been committed between 2007 and 2012 against his two nieces, who were aged 5 to 8 years and 10 to 13 years during the relevant period. The offences involved indecent assaults and acts of sexual intercourse. The jury convicted the applicant on nine counts and acquitted him on two. He was sentenced to an aggregate term of 12 years' imprisonment with a non-parole period of eight years.
The Crown relied on tendency evidence, including that the applicant referred to one niece by a sexualised nickname, as well as uncharged acts of indecent and sexual assault admitted as context evidence. Over objection, the trial judge permitted expert evidence from Associate Professor Shackel about how child victims of sexual assault respond to and disclose offending, but excluded her evidence about the responses of the two specific complainants. The applicant denied all offences at trial, gave evidence of otherwise good character, and was supported by his wife and other relatives on several contextual matters.
The applicant sought leave to appeal against conviction only, not sentence. He pressed three grounds of appeal: that five of the guilty verdicts were unreasonable; that the expert evidence caused a miscarriage of justice; and that the trial judge's directions to the jury about that expert evidence were inadequate.
Legal Issues
- Whether the guilty verdicts on Counts 1, 8, 9, 10 and 11 were unreasonable or unsupported by the evidence
- Whether the conviction on Count 8 (alleged sexual intercourse) was sustainable given ambiguity about whether penetration, as required by the definition of "sexual intercourse" in s 61H of the Crimes Act 1900 (NSW), actually occurred
- Whether the conviction on Count 11 was sustainable given factual confusion about whether the applicant was present at the location where the alleged incident was said to have occurred
- Whether Associate Professor Shackel's expert evidence exceeded the bounds of her expertise and caused a miscarriage of justice
- Whether the trial judge's directions to the jury on the expert evidence were insufficient, and whether leave to raise that ground should be granted given no direction had been sought at trial
Decision
Ground 1: Unreasonable verdicts
The Court upheld this ground in part. It was satisfied that guilty verdicts on Counts 1, 9 and 10 were reasonably open to the jury on the evidence. However, it found a reasonable doubt existed on Counts 8 and 11.
For Count 8, the issue was whether the complainant's description of being touched "in my wee" was sufficient to establish penetration to the extent required for "sexual intercourse" under the then-applicable definition in s 61H of the Crimes Act 1900. The Court noted the complainant used the expressions "in my wee" and "on my wee" interchangeably when describing other incidents, and no clarification had been sought from her as to which she meant for Count 8. Given that ambiguity, and the absence of any clarification in the evidence, the jury should have had a reasonable doubt about whether penetration had occurred. The Court quashed the conviction and substituted a verdict of guilty of indecent assault upon a person under the age of 16 years under s 61M(2) of the Crimes Act.
For Count 11, the complainant described the incident as occurring in the grandparents' home while the applicant's wife was wrapping Christmas presents, approximately two weeks before Christmas 2012. However, it was an agreed fact that the applicant and his family had moved out of that home in September 2012. There was no explanation for why they would have been there in the lead-up to Christmas. While the children visited on Christmas Day, the evidence indicated the applicant's family had spent the day elsewhere and did not arrive until late afternoon. The Court found this factual confusion created a reasonable doubt that the jury should have entertained, and quashed the conviction, entering a verdict of acquittal.
Ground 2B: Expert evidence
The Court dismissed this ground. It reviewed the entirety of Associate Professor Shackel's evidence and rejected the applicant's contention that she had impermissibly strayed into evidence about perpetrator behaviour, intra-familial relationships, timing of abuse, and risk factors. The Court concluded each aspect of her evidence was within the bounds of her expertise and consistent with the trial judge's ruling. The Court also found that her use of the terms "victims" and "perpetrators" did not constitute a miscarriage of justice, as that terminology reflected the research literature she was drawing upon. The Court followed its earlier decisions in Aziz v R and AJ v R.
Ground 2C: Jury directions on expert evidence
The Court refused leave to raise this ground. No request for further directions had been made by trial counsel, which was taken as an indication that counsel saw no need for additional directions given the conduct of the trial. The Court found there was no requirement in the circumstances of this case for the trial judge to warn the jury about the limitations of the expert evidence in the absence of such a request. No miscarriage of justice was established sufficient to justify granting leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Orders Made
- Time for filing the notice of appeal extended to 16 May 2022
- Leave to appeal refused on Ground 2C pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
- Leave to appeal granted on Grounds 1 and 2B; appeal allowed in part
- Conviction on Count 8 quashed; verdict of guilty of indecent assault upon a person under the age of 16 years (s 61M(2) of the Crimes Act 1900) substituted pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW)
- Conviction on Count 11 quashed; verdict of acquittal entered
- Aggregate sentence quashed
- Matter remitted to the District Court for re-sentencing on Counts 1, 2, 3, 4, 7, 8, 9 and 10
- Matter listed for mention in the District Court on 10 March 2023
Key Takeaways
- Ambiguity in a child complainant's description of an incident, where the words "in" and "on" were used interchangeably across multiple counts and no clarification was sought, was sufficient to create a reasonable doubt that the more serious charge of sexual intercourse (requiring penetration) was established, even where an indecent assault was proven.
- Where agreed facts about an accused's whereabouts are inconsistent with the circumstances in which a complainant describes an alleged incident occurring, and no explanation bridges that inconsistency, a conviction on that count may not be reasonably open to the jury.
- Expert evidence about how child victims of sexual assault respond to and disclose offending remains permissible where it is confined to the expert's area of expertise and does not address the specific responses of the complainants in the proceedings; the Court of Criminal Appeal reaffirmed the approach in Aziz v R [2022] NSWCCA 76 and AJ v R [2022] NSWCCA 136.
- The use of terms such as "victims" and "perpetrators" by an expert witness does not, of itself, constitute a miscarriage of justice where those terms reflect the research literature on which the expert is drawing.
- Failure by trial counsel to request jury directions on the use of expert evidence is a significant factor weighing against a grant of leave to raise inadequate directions as a ground of appeal, as the absence of such a request is indicative of counsel perceiving no deficiency in the directions given.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61M
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2), 12(2)
- Criminal Procedure Act 1986 (NSW), s 294
- Evidence Act 1995 (NSW), ss 38, 79, 108C, 165B
- Evidence Amendment Act 2007 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases:
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