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6
Court of Criminal Appeal 7 August 2024

RM v R

[2024] NSWCCA 148

Sexual offences

Citation: RM v R [2024] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 7 August 2024
Judges: Adamson JA (with additional reasons by Dhanji J and Sweeney J agreeing)

Background

Following a jury trial in the District Court, the applicant was convicted of 11 counts of sexual offending against his biological daughter. The offending spanned nine years, beginning when the complainant was aged 9 and continuing until she was 18. The charges included indecent assault, unlawful sexual intercourse, aggravated sexual intercourse, and unlawful sexual touching. The applicant was sentenced to an aggregate term of 12 years' imprisonment, with a non-parole period of 8 years and 5 months.

The applicant sought leave to appeal all 11 convictions on a single ground: that the verdicts were unreasonable and unsupported by the evidence. He did not challenge the sentence.

His case was that the offending had not occurred. He argued the complainant lacked credibility, had made no contemporaneous complaint, gave inconsistent evidence about peripheral details, and had a motive to lie. He also submitted that certain conduct by both himself and the complainant made his commission of the offences implausible.

  • Whether the verdicts on all 11 counts were unreasonable and unable to be supported by the evidence, given the complainant's alleged lack of credibility and the implausibility arguments raised
  • Whether the conviction on count 5 (aggravated sexual intercourse under s 66C(2) of the Crimes Act 1900 (NSW), which requires the complainant to have been under 14 years of age) was unreasonable given the complainant's own evidence that she was "13 or 14" at the time
  • If the count 5 conviction was to be quashed, whether the Court of Criminal Appeal could substitute a conviction for the statutory alternative offence under s 66C(4), which applies where the complainant is aged 14 or above but under 16

Decision

Counts 1 to 4 and 6 to 11: appeal dismissed. The Court conducted an independent review of all trial evidence and concluded that, aside from count 5, the jury was entitled to be satisfied beyond reasonable doubt of the applicant's guilt on the remaining counts. The Court rejected the credibility challenges. Minor inconsistencies in the complainant's evidence related to matters tangential to the offending and did not render the verdicts unreasonable. The absence of contemporaneous complaint and the alleged motive to lie did not undermine the reliability of the complainant's account to the degree required to establish unreasonableness.

Count 5: conviction quashed. The complainant herself testified that she was "13 or 14" when the conduct in count 5 occurred. Section 66C(2) required proof beyond reasonable doubt that she was under 14 at the relevant time. The Court held that this evidence was insufficient to exclude the possibility the offending occurred after the complainant's 14th birthday, making it necessary to quash the conviction.

Substituting a verdict on the statutory alternative. The Court then considered whether a conviction under s 66C(4) (the alternative charge, covering victims aged 14 and above but under 16) could be substituted. Adamson JA (with Sweeney J agreeing) held this was authorised by s 80AB(9) of the Crimes Act, consistent with Gilson v The Queen and R v JGW. The only distinction between s 66C(2) and s 66C(4) is the complainant's age bracket, and the alternative is the lesser offence. Dhanji J reached the same outcome by a different path, construing s 66C(4) as not requiring the prosecution to prove the complainant was of or above 14 as a further element. On his Honour's reading, where s 66C(2) fails only because the complainant's age cannot be pinned below 14, a conviction under s 66C(4) follows provided the complainant was under 16. The jury's findings of fact were sufficient to support that conclusion.

Remittal for sentencing. Because the substituted conviction under s 66C(4) carries a lower maximum penalty than s 66C(2), the matter was remitted to the District Court for resentencing on count 5.

Orders Made

  • Leave to appeal granted
  • Appeal against conviction on count 5 allowed; conviction quashed
  • Verdict of guilty on count 5 set aside and a verdict of guilty of the statutory alternative offence under s 66C(4) of the Crimes Act 1900 (NSW) substituted
  • Matter remitted to the District Court for sentencing on count 5 pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW)
  • Appeal against conviction on all other counts dismissed

Key Takeaways

  • An unreasonable verdict ground requires the appellate court to determine independently whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of guilt; minor inconsistencies in a complainant's evidence about peripheral details, the absence of contemporaneous complaint, and alleged motive to lie do not automatically render a verdict unreasonable.
  • Where an element of an offence (here, the complainant's age being under 14) cannot be proved beyond reasonable doubt, a conviction on that charge is unsustainable even when the complainant's own evidence creates the uncertainty.
  • The Court of Criminal Appeal confirmed that it may substitute a conviction for a lesser statutory alternative offence under s 80AB(9) of the Crimes Act 1900 (NSW) where the only unproven element is an age bracket that distinguishes the more serious charge from its alternative.
  • Under s 66C(4) of the Crimes Act, on the construction adopted by Dhanji J, the phrase "of or above the age of 14" does not create an additional element for the prosecution to prove; it operates to capture conduct falling outside s 66C(2) where the complainant is nonetheless under 16.
  • A partial success on one count does not automatically infect the remaining verdicts; the Court assessed whether doubt about the jury's approach on count 5 gave rise to doubt about the other counts and found that the evidence on those counts was sufficiently cogent to stand independently.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61J, 61KC, 61KE, 61M, 66A, 66B, 66C, 78H, 78J, 78K, 80AB, 80AF
- Criminal Appeal Act 1912 (NSW), ss 5, 7, 12

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24
- R v JGW [1999] NSWCCA 116
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Kilby v The Queen (1973) 129 CLR 460; [1973] HCA 30
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- The Queen v A2; Magennis, Vaziri (2019) 269 CLR 507; [2019] HCA 35
- Xerri v R (2021) 292 A Crim R 355; [2021] NSWCCA 268
- Z (a pseudonym) v R [2022] NSWCCA 8
- Maughan v R [2020] NSWCCA 51
- R v Johnston (1998) 45 NSWLR 362
- *R v Marijacev