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Court of Criminal Appeal 24 March 2023

Passmore v R

[2023] NSWCCA 65

Sexual offences

Citation: Passmore v R [2023] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 24 March 2023
Judges: Payne JA; Garling J; Yehia J

Background

The appellant was convicted after a jury trial in the District Court at Coffs Harbour of one count of using a carriage service to transmit an indecent communication to a person under 16, contrary to s 474.27A(1) of the Commonwealth Criminal Code. The complainant was 15 years old at the relevant time. The alleged offending arose from electronic communications, including mobile phone calls, between the two during early 2019.

The Crown's indictment initially alleged that the indecent words were spoken during one of seven phone calls made between 7 and 12 February 2019. Midway through the trial, after the complainant's second day of cross-examination, the Crown amended the indictment to allege the words were spoken specifically on 12 February 2019. Both parties and the trial judge agreed that this amendment made time of the essence: the Crown was required to prove beyond reasonable doubt that the relevant call occurred on that precise date.

The appellant appealed his conviction on the sole ground that the jury's verdict was unreasonable and could not be supported by the evidence. The trial judge had certified the case as fit for appeal on a question of fact or mixed fact and law, meaning no separate grant of leave from the Court of Criminal Appeal was required.

  • Whether the jury's verdict was unreasonable because the evidence was insufficient to support a finding beyond reasonable doubt that the indecent words were spoken during a phone call on 12 February 2019.
  • Whether the complainant's evidence about the date of the call was so internally inconsistent and unreliable that no jury could properly act on it to the required standard.
  • Whether the jury's advantage of seeing and hearing the complainant give evidence could resolve any doubt experienced by the appeal court.

Decision

The Court of Criminal Appeal allowed the appeal unanimously, quashing the conviction and entering a verdict of acquittal.

Payne JA (with Garling and Yehia JJ agreeing) restated the applicable standard for challenges to jury verdicts as unreasonable. An appellate court must independently assess the evidence to determine whether the verdict is unsafe, and the critical question is whether the jury must have entertained a doubt about guilt, not merely whether it might have done so. If the jury's advantage in seeing and hearing witnesses is capable of resolving an appellate court's doubt, no miscarriage of justice will be found. However, that residual advantage does not assist where the problem is internal inconsistency in the evidence itself, as distinct from the demeanour or credibility of a witness being assessed in person.

The complainant's evidence about the date of the relevant call was found to be wholly unreliable. During cross-examination over three days, she identified the call as having taken place on each of four different dates: 5, 7, 11, and 12 February 2019. At other points she expressly denied the call occurred on 12 February 2019, and she acknowledged confusion about dates. Payne JA concluded that the weight of these internal inconsistencies was too great for the jury properly to accept the evidence as sufficiently reliable to prove beyond reasonable doubt that the words were spoken on 12 February 2019. The jury was in no better position than the appellate court to assess this particular reliability problem.

Garling J added that while the evidence may have been capable of supporting a conclusion that indecent words were spoken at some point during the relevant period, the Crown had chosen to formulate the case around a single specific date. That prosecutorial choice was central to the outcome. The evidence did not establish beyond reasonable doubt that the alleged call occurred on that date specifically.

Orders Made

  • Appeal allowed.
  • Conviction quashed.
  • Verdict of acquittal entered on count 1 in the indictment.

Key Takeaways

  • When a Crown amends an indictment to specify a particular date, it accepts the burden of proving beyond reasonable doubt that the offending occurred on that precise date, not merely within a broader period.
  • Where a complainant's evidence contains significant internal inconsistencies about the date of an alleged offence, and those inconsistencies are apparent from the trial record itself, an appellate court is in no worse a position than the jury to assess the reliability of that evidence.
  • The Court of Criminal Appeal confirmed the established test from M v The Queen and Pell v The Queen: the question on an unreasonable verdict ground is whether the jury must have had a doubt, not merely whether it might have had one.
  • A jury's advantage in observing a witness's demeanour does not cure fundamental unreliability arising from a pattern of directly contradictory evidence given by that witness on a matter the Crown was required to prove.
  • An acquittal, rather than a retrial, was ordered because the insufficiency of evidence on the specific date meant the appellant was entitled to be acquitted of the only charge he faced.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Code Act 1995 (Cth), Schedule, s 474.27A(1)
- Telecommunications Act 1997 (Cth)

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v R (2022) 403 ALR 221; [2022] HCA 25
- Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34
- R v McDonald; R v Deblaquiere (2013) 233 A Crim R 185; [2013] ACTSC 122
- R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188