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Court of Criminal Appeal 22 March 2023

SC v R

[2023] NSWCCA 60

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION AGGRAVATED SEXUAL AND INDECENT ASSAULTS UNREASONABLE VERDICT APPEAL ALLOWED

Citation: SC v R [2023] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 22 March 2023
Judges: Beech-Jones CJ at CL; Price J; Yehia J

Background

The appellant (referred to as SC) stood trial in the Campbelltown District Court in October and November 2020 on nine counts of aggravated sexual assault and aggravated acts of indecency. The complainant was SC's biological daughter, RP. The offences were alleged to have occurred during the period 1994 to 1997, when RP was between approximately 12 and 15 years of age.

The Crown case was that SC and her then-partner (a co-accused, DI) acted in a joint criminal enterprise. On the Crown's case, three separate incidents occurred in which DI had non-consensual penile-vaginal intercourse with RP while SC was present, assisting and encouraging him. Immediately following each of those incidents, SC and DI engaged in sexual intercourse with each other in RP's presence, which formed the basis of the indecency counts. SC was convicted on six counts and sentenced to an aggregate term of eight years' imprisonment with a five-year non-parole period.

RP had first complained to police in March 1997, then retracted those allegations the following month. She made a further report in 2013 and provided a fresh statement to police in January 2017. After SC's trial, RP gave evidence at a separate special hearing against DI in February 2021. SC sought leave to appeal her convictions, arguing the verdicts were unreasonable and that the absence of RP's special hearing evidence from her own trial occasioned a miscarriage of justice.

  • Whether the verdicts of guilty were unreasonable or not supported by the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW), given discrepancies, inconsistencies, and other inadequacies in the complainant's evidence.
  • Whether the unavailability at SC's trial of RP's evidence from the co-accused's subsequent special hearing occasioned a miscarriage of justice.

Decision

Ground 1: Unreasonable verdicts (majority allowed)

The majority (Yehia J, with Price J agreeing) found that the discrepancies, inconsistencies, and inadequacies in RP's evidence were of sufficient significance that a jury acting rationally ought to have entertained a reasonable doubt as to SC's guilt. Yehia J applied the well-established test from M v The Queen (1994) 181 CLR 487 and considered the approach confirmed in Pell v The Queen (2020) 268 CLR 123 and Dansie v The Queen (2022) 96 ALJR 728. Those authorities require the appellate court to make its own independent assessment of the evidence while acknowledging the jury's advantage in seeing and hearing witnesses.

Beech-Jones CJ at CL dissented on this ground. His Honour examined the trial record and concluded that any doubt arising from the complainant's evidence was of a kind that the jury's advantage in observing the witness was capable of resolving. In his Honour's view, there was not a significant possibility that an innocent person had been convicted, and the verdicts were not unreasonable.

Ground 2: Miscarriage of justice (unanimously dismissed)

All three judges agreed that Ground 2 should be dismissed. The Court held that RP's evidence at the co-accused's special hearing was not "constructively" available to SC at the time of her trial. The evidence was considered "fresh" because it could not have been discovered with reasonable diligence before or during SC's trial. However, the majority further held that the unavailability of that evidence did not, in the circumstances, occasion a miscarriage of justice. It was regarded as highly speculative to assume that counsel at SC's trial would have elicited the same or similar answers from RP as those given at the special hearing.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal allowed (by majority).
  • Convictions on counts 1, 3, 4, 6, 7, and 9 quashed.
  • Verdicts of acquittal entered on those counts.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on an unreasonable verdict ground, an appellate court must make an independent assessment of whether a rational jury, properly instructed, could have been satisfied of guilt beyond reasonable doubt, notwithstanding the jury's advantage of having seen and heard the witnesses.
  • Where discrepancies and inconsistencies in a complainant's evidence are sufficiently significant, they may lead an appellate court to conclude that a reasonable doubt ought to have arisen, even in a case turning substantially on that complainant's credibility.
  • Evidence given by a complainant in a subsequent proceeding against a co-accused may qualify as "fresh" evidence if it was not discoverable with reasonable diligence before or during the earlier trial; however, that classification does not automatically mean a miscarriage of justice occurred.
  • A speculative conclusion that different cross-examination would have yielded the same favourable answers given in a separate proceeding is insufficient to establish that the absence of that evidence caused a miscarriage of justice.
  • The majority and dissenting judgments illustrate the tension in unreasonable verdict appeals between the appellate court's independent review function and appropriate deference to a jury's assessment of witness credibility at trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61O(1), 66C(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW), ss 32, 38

Cases
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 268 CLR 123
- Dansie v The Queen (2022) 96 ALJR 728
- Coughlan v The Queen (2020) 267 CLR 654
- SKA v The Queen (2011) 243 CLR 400
- The Queen v Baden-Clay (2016) 258 CLR 308
- Libke v The Queen (2007) 230 CLR 559
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- Green v The King (1939) 61 CLR 167
- Lawless v The Queen (1979) 142 CLR 659
- AJ v R [2022] NSWCCA 136
- AS v R [2022] NSWCCA 291
- JN v R [2019] NSWCCA 287
- Ly v R; Ngo v R [2021] NSWCCA 272
- Director of Public Prosecutions (NSW) v Presnell [2022] NSWCCA 146
- Khoury v R [2011] NSWCCA 118
- Aouad and El-Zeyat v R [2011] NSWCCA 61
- MRW v R [2011] NSWCCA 260
- R v Abou-Chabake [2004] NSWCCA 356