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Court of Criminal Appeal 1 July 2024

LS v R

[2024] NSWCCA 110

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CHILD SEX OFFENCES SEXUAL INTERCOURSE WITH CHILD <10

Citation: LS v R [2024] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 1 July 2024
Judges: Ward P (principal judgment); Hamill J (agreeing with additional reasons); Dhanji J (agreeing)

Background

The applicant, a maternal grandfather, was convicted following a jury trial in the District Court at Newcastle on nine counts of child sexual offences against his granddaughter (referred to in the judgment as AD). The offending was alleged to have occurred over approximately four years, when AD was between three and seven years old. AD had been diagnosed with autism and ADHD, and had a particularly close relationship with the applicant, whom she called "Pop."

The offences spanned three locations: the family home at North Rothbury, a rural property at East Seaham where a family wedding was held in November 2017, and a caravan park at Dunbogan where the applicant lived during a family holiday around Christmas 2018. The nine counts included seven of sexual intercourse with a child under ten, one of intentional sexual touching of a child under ten, and one of grooming (exposing a child to indecent material with intent to procure unlawful sexual activity).

Following conviction in March 2023, the applicant was sentenced to an aggregate term of 18 years imprisonment with a non-parole period of 11 years. He sought leave to appeal against conviction only, on the basis that the verdicts were unreasonable or could not be supported by the evidence.

  • Whether the verdicts on all nine counts were unreasonable or could not be supported by the evidence as a whole, such that no reasonable jury could have been satisfied of guilt beyond reasonable doubt.
  • In the alternative, whether the verdicts on five specific counts (Counts 1, 2, 6, 7 and 8, relating to the grooming conduct and the Dunbogan and Seaham incidents) were unreasonable on the same basis.
  • What weight should be given to inconsistencies between the complainant's accounts and objective evidence when assessing whether a verdict is unreasonable.

Decision

The Court granted leave to appeal but allowed the appeal only in part. It quashed the conviction on Count 2 and dismissed the appeal as to all remaining counts, remitting the matter to the District Court for re-sentencing.

On the general approach, the Court confirmed that an unreasonable verdict ground requires the appellate court to undertake its own independent assessment of the whole of the evidence. However, the Court must not disregard the advantage the jury held in seeing and hearing the witnesses give evidence. Credibility assessment remains primarily the jury's function, and the Court of Criminal Appeal will not simply substitute its own view where a verdict was open on the evidence.

On Counts 1 and 3 to 9, the Court found that inconsistencies in AD's accounts did not undermine her evidence to the point where the jury ought to have harboured a reasonable doubt about the applicant's guilt. Ward P identified the most compelling aspect of AD's testimony as her detailed description of the physical aspects of the conduct alleged. Hamill J, in additional reasons, observed that evidence called by the applicant to challenge AD's credibility (including internet search records accessed using a voice activation function) warranted little weight. All three judges were satisfied that conviction on these counts was open to the jury.

Count 2, relating to an alleged act of digital penetration at a family wedding at East Seaham on or about 4 November 2017, was treated differently. The Court found that objective evidence rendered AD's initial account of the surrounding circumstances impossible. While the Court accepted that the conduct described almost certainly occurred on at least one occasion, it could not be satisfied beyond reasonable doubt that it occurred on the specific occasion and in the circumstances particularised in Count 2. The jury therefore ought to have entertained a reasonable doubt as to that count. Hamill J declined to decide whether the conduct itself occurred, focusing instead on the Crown's failure to prove the count as particularised. Dhanji J agreed with this framing, and noted that the doubt concerning Count 2 did not carry over to undermine the remaining convictions.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • Conviction on Count 2 quashed.
  • Appeal otherwise dismissed.
  • Matter remitted to the District Court for re-sentencing.

Key Takeaways

  • On an unreasonable verdict appeal, the appellate court conducts its own independent assessment of the evidence but must give appropriate weight to the jury's advantage in observing witnesses, particularly where credibility is central to the verdict.
  • A conviction can be quashed on unreasonable verdict grounds even where the complainant's account is otherwise compelling, if objective evidence renders the particular circumstances of a count impossible to prove beyond reasonable doubt.
  • Where a conviction on one count is quashed because the Crown failed to prove that count as particularised, this does not automatically cast doubt on guilty verdicts on related counts arising from the same overall course of offending.
  • Detailed and consistent descriptions by a complainant of the physical nature of alleged sexual conduct can constitute the most compelling basis for a jury's acceptance of that complainant's evidence, even where peripheral details vary.
  • The Court of Criminal Appeal confirmed its approach that assessing witness credibility is not a function it duplicates; where a jury has found a complainant credible and reliable, the appellate court respects that assessment unless the verdict was not reasonably open.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66DA, 66EB
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- BCM v The Queen [2013] HCA 48
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Lang v The Queen [2023] HCA 29
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- AZ v R [2018] NSWCCA 294
- CLC v R [2015] NSWCCA 248
- AS v R [2022] NSWCCA 291
- Arizabaleta v R [2023] NSWCCA 217
- Bolton v R [2023] NSWCCA 211
- Ho v R [2023] NSWCCA 245
- JC v R [2023] NSWCCA 231
- JL v R [2023] NSWCCA 99
- Lee v R [2023] NSWCCA 203
- Marco v R [2023] NSWCCA 307
- Hawi v R [2014] NSWCCA 83