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Court of Criminal Appeal 19 July 2024

SS v R

[2024] NSWCCA 128

Sexual offences

Citation: SS v R [2024] NSWCCA 128
Court: NSW Court of Criminal Appeal
Date: 19 July 2024
Judges: Adamson JA (leading judgment); Stern JA; Faulkner J

Background

The applicant was the de facto partner of the complainant's mother. He was convicted following a judge-alone trial of seven child sexual offences committed against the complainant between 1989 and 1993, when she was aged between seven and eleven and living with the applicant in Wagga Wagga. The offending occurred against a background of repeated sexual and physical abuse.

The complainant reported the offending to family and police in August 1993, underwent a gynaecological examination, and formal charges were laid. However, in November 1993, her mother threatened her into signing a retraction statement, and the charges were dropped. Shortly afterwards, in December 1993, the applicant admitted the sexual and indecent assaults to members of his own family, including two of his siblings. The complainant contacted police again in 2013, and the applicant was ultimately charged and brought to trial in 2019 after police became aware of those family admissions.

The applicant was convicted on 22 November 2019 and sentenced to 8 years and 6 months' imprisonment. He filed a notice of intention to appeal in June 2020 but did not file his notice of appeal until April 2024. By the time of the appeal hearing, he had been released on parole.

  • Whether the trial judge's refusal to recuse herself and vacate the trial, after a prosecution witness gave evidence inconsistent with earlier statements served on the defence, resulted in a miscarriage of justice.
  • Whether the convictions were unreasonable and could not be supported having regard to the evidence, given inconsistencies in the complainant's account and her earlier retraction statement.
  • Whether an extension of time for leave to appeal against sentence should be granted on the basis that the applicant was suffering from a terminal illness (brain tumour) at the time of sentencing.

Decision

Ground 1: Refusal to recuse and vacate the trial

Near the end of the prosecution case, the complainant's mother gave evidence that was inconsistent with earlier supportive statements that had been served on the defence. Trial counsel applied for the judge to recuse herself and abort the trial, arguing the defence would have conducted their case differently had this evidence been known in advance. The trial judge refused but granted a four-week adjournment.

The Court confirmed that the applicable test is whether the refusal of the recusal application caused a miscarriage of justice, not merely whether the application itself was wrongly decided. The Court found no miscarriage of justice. The applicant could not identify any specific forensic decision he would have made differently, nor any particular prejudice flowing from the trial continuing. Critically, the complainant's mother's evidence did not materially strengthen the Crown case.

Ground 2: Unreasonable verdicts

The applicant pointed to inconsistencies in the complainant's evidence and argued that her later behaviour, including writing to the applicant in a birthday letter to her brother and voluntarily staying at his home at age 17, was incompatible with her being a victim. The Court rejected this reasoning, noting it rested on an unspoken and unwarranted assumption about how all victims of sexual abuse behave, with no allowance for individual circumstances.

The Court found the complainant's evidence was credible and reliable, corroborated by her contemporaneous diary entries and letters, complaints she made to friends at the time, expert medical evidence, and admissions by the applicant to four family witnesses in 1993 and 1994. The retraction statement, given under threats from the complainant's mother, did not undermine that body of evidence. The Court held it was open to the tribunal of fact to return guilty verdicts on all counts.

Ground 3: Sentence appeal

The Court refused to extend time for the sentence appeal. The medical evidence did not establish that the applicant had a brain tumour at the time sentence was imposed, and even accepting the fresh evidence, no basis for intervention existed given the applicant had already been released on parole. The ground was described as so devoid of merit as to not warrant the extension.

Orders Made

  • Time for filing the notice of appeal extended to 3 April 2024 with respect to grounds 1 and 2 (conviction grounds).
  • Leave to appeal against conviction granted on grounds 1 and 2.
  • Appeal against conviction dismissed.
  • Extension of time for filing the notice of appeal refused with respect to ground 3 (sentence appeal).

Key Takeaways

  • The test for a ground of appeal based on a refused recusal and aborted-trial application is whether that refusal caused an actual miscarriage of justice. A mid-trial evidentiary surprise alone does not establish miscarriage; the applicant must identify specific prejudice or forensic decisions that would have been made differently.
  • Assumptions about how victims of sexual abuse ought to behave are inappropriate when assessing the reasonableness of a verdict. The Court of Criminal Appeal reaffirmed that minor inconsistencies and post-offence conduct that conflicts with assumed victim behaviour do not, without more, raise a reasonable doubt.
  • A retraction statement obtained through threats does not automatically undermine a complainant's credibility, particularly where a strong body of corroborating evidence exists, including contemporaneous documents, medical findings, and the accused's own admissions to family members.
  • In dismissing the sentence appeal, the Court confirmed that fresh evidence of a terminal illness will not ground intervention where the medical evidence fails to establish the condition existed at the time of sentencing, and where the applicant has already been released from custody.
  • Where an applicant has been released on parole, the Court regards that factor as highly relevant to whether any residual utility exists in a sentence appeal based on personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 61O, 66A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 132, 293A, 294
- Evidence Act 1995 (NSW), ss 38, 128

Cases:
- Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
- Ilievski v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
- Conway v R [2023] NSWCCA 265
- Khamis v R [2018] NSWCCA 131
- Rao v R [2019] NSWCCA 290
- Xu v R [2019] NSWCCA 178
- Maughan v R [2020] NSWCCA 51
- Reed v R [2006] NSWCCA 314
- 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
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- BCM v The Queen [2013] HCA 48
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53