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Court of Criminal Appeal 12 July 2024

Davis v R

[2024] NSWCCA 120

Sexual offences
YEAR OLD INDIGENOUS BOY

Citation: Davis v R [2024] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 12 July 2024
Judges: Adamson JA (leading judgment); Price AJA; Garling J

Background

The applicant, a man aged 33 to 34 at the relevant time, was convicted after a jury trial of two counts of aggravated indecent assault of a child under 16 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The complainant was a 14 to 15-year-old Aboriginal boy from Bourke. The offending was alleged to have occurred on visits to the applicant's parents' farm near Bourke between August 2018 and July 2019.

The Crown alleged three separate incidents: touching the complainant's penis near the Darling River on the farm (count 2), touching the complainant's penis overnight in a cabin on the farm (count 3), and inserting his penis in the complainant's mouth on two separate occasions (counts 1 and 4). The jury convicted on counts 2 and 3, the touching counts, and acquitted on counts 1 and 4, the oral penetration counts. The applicant was sentenced to two community corrections orders.

The complainant's evidence was central to the Crown case. The allegations emerged gradually, disclosed in stages to his then girlfriend, to police across several conversations, and finally at trial. The applicant's case at trial was that he did take the complainant to the farm for fishing, motorbike riding, and hunting, but that none of the charged conduct occurred.

  • Whether the guilty verdict on count 3 (touching in the cabin) was inconsistent with the acquittal on count 4 (oral penetration in the same cabin), given both counts arose from the same occasion.
  • Whether the guilty verdicts on counts 2 and 3 were unreasonable or could not be supported having regard to the evidence, particularly given alleged inconsistencies in the complainant's account.

Decision

Inconsistent verdicts (Ground 1)

Adamson JA applied the established principle that the court must ask whether there is any rational explanation for the acquittal other than a general doubt about the complainant's credibility. Her Honour found a rational explanation existed. The complainant's initial complaint to police described the applicant touching him, but did not include any allegation that the applicant had placed his penis in the complainant's mouth. That complaint evidence supported the type of conduct alleged in counts 2 and 3, but was absent in relation to count 4. The acquittal on count 4 could therefore be explained by the relative absence of early complaint evidence for that count, rather than by any general disbelief of the complainant.

Unreasonable verdicts (Ground 2)

The court confirmed it is only in an unusual case that an appellate court can conclude that a complainant's evidence was so damaged that no jury could rationally accept it. Having reviewed the entirety of the evidence, Adamson JA rejected the applicant's submission that inconsistencies in the complainant's account rendered the verdicts unreasonable. Her Honour noted that many apparent inconsistencies identified by the applicant arose from unfair or bundled questions to which the complainant gave one-word answers, or from a selective reading of the transcript. The court also accepted that the complainant's evolving account, which became more detailed over time, was explicable as reflecting his increasing willingness to disclose what had happened, a circumstance the jury could rationally take into account.

All three judges agreed that the jury's advantage of seeing and hearing the complainant give evidence was significant and should not be set aside. Applying the Pell v The Queen formulation, the court was satisfied it was open to the jury, acting rationally, to be satisfied beyond reasonable doubt of the applicant's guilt on counts 2 and 3.

Orders Made

• Grant leave to appeal.
• Dismiss the appeal.

Key Takeaways

  • In assessing an inconsistent verdicts ground, the relevant inquiry is whether there is a rational explanation for the acquittal, not for the conviction. The court does not require symmetry between verdicts where a plausible distinction exists on the evidence.

  • The Court of Criminal Appeal confirmed that the absence of early complaint evidence for a particular count can rationally explain an acquittal on that count, without casting doubt on guilty verdicts on other counts where early complaint evidence was present.

  • An evolving or incremental disclosure by a complainant in child sexual assault proceedings does not necessarily undermine credibility. A jury may rationally infer that the complainant felt increasingly able to speak about what occurred.

  • Appellate courts will not lightly override a jury's assessment of witness credibility. The jury's particular advantage of observing the demeanour and manner of a complainant giving evidence carries significant weight on an unreasonable verdict ground.

  • Applying Pell v The Queen, even where there are inconsistencies or discrepancies in a complainant's evidence, an appellate court must determine whether those matters were such that the jury, acting rationally, ought nonetheless to have harboured a reasonable doubt. That threshold was not met on the facts here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 293A, 294

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Nguyen v R [2017] NSWCCA 145
- Z (a pseudonym) v R [2022] NSWCCA 8
- AS v R [2022] NSWCCA 291
- Lee v R [2023] NSWCCA 203
- Reed v R [2006] NSWCCA 314
- R v ACK [2000] NSWCCA 180
- R v Johnston (1998) 45 NSWLR 362
- Decision Restricted [2024] NSWCCA 81
- Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403