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Court of Criminal Appeal 21 February 2024

Rossi v R

[2024] NSWCCA 17

Sexual offencesAssault & violence

Citation: Rossi v R [2024] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 21 February 2024
Judge(s): Mitchelmore JA (leading judgment); Cavanagh J and Weinstein J (both agreeing)

Background

The applicant was a professional photographer convicted by a jury in the District Court of NSW on 16 counts of assault with an act of indecency under s 61L of the Crimes Act 1900 (NSW). The offences involved three complainants (referred to as CN, YL, and VL) who each attended photoshoots with the applicant during which the offending was alleged to have occurred. The photoshoots took place between January 2012 and December 2016. The trial judge separately found the applicant guilty of a common assault charge involving one complainant (VL) and not guilty of a further common assault charge involving another (YL).

The applicant was sentenced to a community corrections order for some counts, and an intensive corrections order for an aggregate term of three years on the remaining counts. Because the application for leave to appeal was filed out of time, the applicant also required an extension of time, which the Court granted.

The central feature of the Crown case was the evidence of each complainant, which was cross-admissible as tendency evidence on the counts involving the other complainants. The Crown also relied on corroborating witnesses.

  • Whether the verdicts on all 16 counts of assault with an act of indecency, and the common assault conviction, were unreasonable or unsupported by the evidence under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether specific deficiencies and inconsistencies in the evidence of each complainant (CN, YL, and VL) were sufficient to give rise to a reasonable doubt
  • The proper function of the Court of Criminal Appeal when assessing an unreasonable verdict ground, as described in Dansie v The Queen (2022) 274 CLR 651 and M v The Queen (1994) 181 CLR 487

Decision

The Court dismissed the appeal unanimously. Mitchelmore JA, with whom Cavanagh J and Weinstein J agreed, conducted a detailed review of the evidence relating to each complainant and found that none of the matters raised by the applicant were sufficient to give rise to a reasonable doubt.

Regarding CN (counts 1 and 2), the Court found that her encouragement of a friend to attend a photoshoot with the applicant needed to be understood in the context of CN's inexperience as a model and the applicant's standing as a well-known photographer. Her evidence about lingerie and topless shoots was not so implausible as to undermine her credibility, particularly given that the jury had the benefit of observing her demeanour when confronted with that material.

Regarding VL (count 16 and the common assault charge), the Court accepted that her inability to recall the precise sequence of events was explicable by the shocking nature of the incident. The consistency between her immediate complaint to her then-boyfriend and his corroborating evidence outweighed the difference in language between their accounts.

Regarding YL (counts 3 to 15), the most heavily contested evidence, the Court considered six categories of challenge including inconsistencies with her friend Olivia's evidence, contemporaneous documents, photographs showing apparent agency, her return to the studio for further sessions, the timing of her police complaint, and her conduct in the witness box. The Court found that none of these matters, individually or in combination, meant the jury ought to have had a doubt. YL's continued attendance at photoshoots and composed demeanour in photographs were consistent with her evidence that she was an aspiring model who believed the applicant could advance her career. The weakness in any suggested motive to fabricate was reinforced by the fact that she maintained her account all the way to trial in 2021.

Cavanagh J and Weinstein J each conducted independent reviews of the evidence. Both concluded it was open to the jury to be satisfied beyond reasonable doubt, and both emphasised that the jury's function in resolving inconsistencies and weighing credibility is not lightly displaced on appeal.

Orders Made

  • Extension of time granted to 16 June 2023 for the applicant to file the notice of appeal
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, on an unreasonable verdict ground, the appellate court must make its own independent assessment of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt. The court applies the test in M v The Queen as restated in Dansie v The Queen: intervention is warranted only where the jury ought (not merely might) have had a doubt.

  • Credibility challenges based on inconsistencies or conduct that could bear an innocent explanation will not necessarily give rise to a reasonable doubt on appeal. The jury's forensic advantage in observing witnesses remains a significant factor in the appellate analysis.

  • Where a complainant's behaviour after the alleged offending (such as returning to the offender's premises or encouraging others to attend) is explicable by evidence about their state of mind or circumstances at the time, that behaviour does not automatically impugn credibility.

  • Cross-admissible tendency evidence from multiple complainants was an accepted part of the Crown case in this matter, though the Court's analysis proceeded complainant by complainant rather than on the tendency evidence in isolation.

  • In dismissing the appeal, the Court reinforced that matters going to witness credibility are quintessentially within the jury's province, and that differences in language or gaps in recollection will not of themselves require appellate intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61L, 578A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 2
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- AJ v R [2022] NSWCCA 136
- Hawi v R [2014] NSWCCA 83
- Z (a pseudonym) v R [2022] NSWCCA 8