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Court of Criminal Appeal 12 April 2023

Murray v R

[2023] NSWCCA 79

Sexual offences
CRIME A PPEAL AGAINST CONVICTION AGGRAVATED SEXUAL ASSAULT LACK OF OPPORTUNITY APPEAL DISMISSED

Citation: Murray v R [2023] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 12 April 2023
Judges: Rothman J, Wilson J, Yehia J

Background

The applicant was convicted after a jury trial in the District Court at Newcastle in December 2020 on a single count of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The complainant, a 12 to 13 year old girl referred to as Ms M, alleged that the applicant sexually assaulted her while she slept over at the home of a school friend. The applicant was in a de facto relationship with the school friend's mother and was living at the property at the time.

The Crown's case was that the applicant moved Ms M's mattress from the friend's bedroom to a dining area, leaving her to sleep alone, and then assaulted her in the early hours of the morning. The complainant gave her evidence through pre-recorded interviews conducted pursuant to the child sexual evidence pilot scheme under the Criminal Procedure Act 1986 (NSW). The applicant was later sentenced to 7 years and 6 months imprisonment with a non-parole period of 5 years and 6 months.

The applicant filed a notice of appeal in September 2022, outside the applicable time limit. Because the appeal did not raise a question of law alone, he required both an extension of time and leave to appeal.

  • Whether the jury's verdict of guilty was unreasonable or unsupported by the evidence, within the meaning of s 5(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the jury adequately grappled with inconsistencies and discrepancies in the evidence, particularly regarding the sleeping arrangements on the night in question
  • Whether the complainant's evidence was implausible or incredible such that no reasonable jury could have accepted it

Decision

Wilson J, with whom Rothman J and Yehia J agreed, examined the trial evidence in detail. The complainant's account described waking to find the applicant standing over her, covering her mouth, and proceeding to sexually assault her. The Court noted her evidence was internally consistent on the central elements, even though some peripheral details varied across the pre-recorded interview and subsequent testimony. The Court found her account was neither implausible nor incredible.

The sleeping arrangements formed a significant area of dispute at trial. Several witnesses gave differing accounts about the layout of the home, where the mattress was placed, and who else may have been present overnight. The jury sent notes during deliberations that demonstrated it was actively considering these discrepancies and their potential effect on the complainant's credibility and reliability.

The Court concluded that the jury was plainly alert to the inconsistencies in the evidence and gave them careful consideration. A jury is entitled to accept one witness's account over another's, and the inconsistencies present here did not rise to a level that made the verdict unreasonable. After examining the whole of the evidence, all three judges were satisfied the verdict was open to the jury and should not be disturbed.

On the procedural questions, the Court granted the extension of time and leave to appeal, but dismissed the appeal on the merits.

Orders Made

  • Time extended to file the application for leave to appeal
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury verdict is not unreasonable merely because witnesses gave inconsistent accounts on peripheral matters, provided the jury demonstrably engaged with those inconsistencies.
  • A jury is entitled to prefer the complainant's evidence over conflicting testimony from other witnesses, even where aspects of the broader evidentiary picture are unsatisfactory.
  • Jury notes sent during deliberations can serve as evidence that the jury was alive to specific credibility issues, supporting the conclusion that the verdict reflects considered fact-finding rather than oversight.
  • Where a notice of appeal is filed out of time and raises no question of law alone, the applicant must obtain both an extension of time and leave to appeal before the merits can be addressed. Here the Court granted both before proceeding to dismiss the appeal.
  • No error was established in the trial process; the conviction was upheld on the basis that the verdict fell within the range of verdicts reasonably open to the jury on the evidence as a whole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J(1), s 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), Schedule 2, Part 29 (child sexual evidence pilot scheme)
- Evidence Act 1995 (NSW)

Cases:
- AJ v R [2022] NSWCCA 136