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Court of Criminal Appeal 24 March 2023

EC (a pseudonym) v R

[2023] NSWCCA 66

Sexual offences
CRIME APPEAL AND REVIEW APPLICATION FOR INQUIRY INTO CONVICTION

Citation: EC (a pseudonym) v R [2023] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 24 March 2023
Judges: Mitchelmore JA; Button J; Wright J (all agreeing)

Background

The appellant, a young person identified only by the pseudonym EC, was convicted in the Children's Court in January 2016 on a charge of sexual intercourse with a child aged between 14 and 16, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The alleged offence occurred at a bra shop fitting room in Haymarket on a day in August 2014, when the appellant was between 15 and 17 years old and the complainant was between 13 and 15 years old.

The appellant's conviction was confirmed on appeal to the District Court in September 2016, though her sentence was reduced. The District Court quashed a separate conviction arising from the same proceedings.

In May 2021, the appellant applied to the Supreme Court for an inquiry into her conviction under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), relying on evidence that had not been available at trial or on appeal. That new evidence bore directly on what the complainant said the appellant was wearing during the alleged offence. The Supreme Court referred the matter to the Court of Criminal Appeal, where it was treated as an appeal against conviction.

  • Whether the fresh evidence, unavailable at the time of the original trial and appeal, occasioned a miscarriage of justice
  • Whether, if a miscarriage of justice was established, the appropriate remedy was an outright verdict of acquittal or an order for a new trial

Decision

The miscarriage of justice

The complainant's account of the alleged offence included a specific and central detail: the appellant had been wearing jeans, and the complainant was cross-examined on the role those jeans played in the circumstances of the alleged act. The fresh evidence, analysed through a digital forensics report, established that the photograph the complainant alleged was taken in the fitting room on the day of the offence was dated 15 August 2014. That date was the only school "mufti day" in the second half of 2014. Other photographs taken that day showed the appellant wearing a skirt, not jeans, and a photobooth printout suggested she was still in a skirt later that afternoon.

The Court found the fresh evidence credible and accepted that it was not available to the appellant at trial, either actually or constructively. The evidence directly undermined a significant detail in the complainant's account, and there was a real chance its absence from the trial could have influenced the verdict. On that basis, the Court held that a miscarriage of justice had occurred.

Acquittal or retrial?

The Court declined to enter a verdict of acquittal, despite the appellant's submissions that the complainant had "locked herself into a position." The fresh evidence went to the credibility and reliability of the complainant's account, but its ultimate impact would depend on how the complainant responded to it under cross-examination, which had not yet occurred. The Court also noted that there remained other cogent evidence supporting the Crown case, including tendency evidence and photographic evidence corroborating aspects of the complainant's account.

A further weighty consideration against acquittal was that ordering one in circumstances where the appeal succeeded on fresh evidence the complainant had never been examined upon would usurp the prosecutorial discretion vested in the Director of Public Prosecutions. Having regard to that factor, the seriousness of the offence, and the recognised public interest in prosecuting serious offences, the Court ordered a new trial. The Court noted that ordering a retrial does not compel the prosecution to proceed with one.

Orders Made

  • Appeal allowed
  • Conviction on Sequence 8 (recorded in the Children's Court on 25 January 2016 and confirmed in the District Court on 8 September 2016) quashed
  • Proceedings remitted to the Children's Court for a retrial of Sequence 8
  • Proceedings to be listed before the Registrar of the Children's Court for directions as soon as reasonably practicable

Key Takeaways

  • Fresh evidence will occasion a miscarriage of justice where there is a significant possibility that the tribunal of fact, acting reasonably, would have acquitted the appellant had that evidence been available at trial.
  • Where a conviction is set aside on the basis of fresh evidence that the complainant has not been cross-examined upon, directing an outright acquittal risks usurping the function of the Director of Public Prosecutions, in whom prosecutorial discretion properly rests.
  • The seriousness of the offence and the public interest in prosecuting serious criminal charges are relevant considerations when a court exercises its discretion under s 8(1) of the Criminal Appeal Act 1912 (NSW) to order a new trial rather than an acquittal.
  • An order for a new trial does not compel the prosecution to proceed: the Director of Public Prosecutions retains a separate discretion to assess whether a retrial should in fact take place.
  • Digital metadata embedded in photographs, combined with school records and contemporaneous printouts, can constitute credible fresh evidence capable of undermining a central factual plank of a complainant's account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(3)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 78, 79, 86
- Criminal Appeal Act 1912 (NSW), ss 6, 8, 12
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B, 33
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Cases
- Ratten v The Queen (1974) 131 CLR 510 (foundational authority on miscarriage of justice and fresh evidence)
- Lawless v The Queen (1979) 142 CLR 659
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- Spies v The Queen (2000) 201 CLR 603
- R v Taufahema (2007) 228 CLR 232
- Hofer v The Queen (2021) 395 ALR 1
- Edwards v The Queen (2021) 393 ALR 368
- Stephens v The Queen (2022) 404 ALR 367
- Ramsey v R [2022] NSWCCA 197
- ALS v R [2013] NSWCCA 63
- WX v R (2020) 102 NSWLR 467
- Gilham v The Queen (2012) 224 A Crim R 22
- R v Thomas (No 3) (2006) 14 VR 512
- Tomlinson v R (2022) 107 NSWLR 239
- Carlton v R [2014] NSWCCA 14
- Application by Cartman (a pseudonym) pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 308