AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 27 September 2024

RE v R

[2024] NSWCCA 180

Sexual offences

Citation: RE v R [2024] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 27 September 2024
Judge(s): Mitchelmore JA (leading judgment); Davies J and Ierace J agreeing

Background

The appellant was convicted after a District Court jury trial on two counts: intentionally sexually touching a child aged 14 (count 1) and digitally penetrating the same child (count 2), contrary to ss 66DB and 66C of the Crimes Act 1900 (NSW). The alleged offending occurred on 22 January 2021 at a hotel room in Ettalong Beach, where both families were holidaying together as members of the same church community. The appellant's wife and the complainant's mother were both present in the hotel room throughout.

The Crown case was that the two acts were separated by a phone call the appellant received from a mutual friend, EG. Agreed facts recorded the precise times and duration of that call. The complainant gave evidence that during the alleged offending she was simultaneously exchanging Instagram messages with her boyfriend, and those message timestamps were also part of the agreed facts.

A critical timing problem emerged: comparing the agreed phone call times with the agreed Instagram timestamps, the complainant appeared to be messaging her boyfriend about the second alleged act during the very minute EG called the appellant, and in the minutes that followed. Despite this tension being apparent on the face of the agreed facts, the Crown Prosecutor sought to address it in closing submissions by suggesting the timestamps came from different platforms and proposing that the phone call time should simply be moved forward to align with the Instagram messages.

  • Whether the Crown Prosecutor's closing address occasioned a miscarriage of justice by making submissions on a central factual issue without any evidentiary foundation, and by inviting the jury to disregard an agreed fact.
  • Whether a miscarriage of justice arose from defence counsel's failure to object to those closing submissions, failure to seek the evidentiary basis for the Crown's timing explanation, failure to cross-examine the complainant on the timing issue, and conduct of the defence case contrary to the appellant's own prior statements.
  • Whether new expert evidence (establishing that the Instagram timestamps and call charge records were both synchronised to Coordinated Universal Time) warranted admission on appeal.
  • Whether the verdicts on either or both counts were unreasonable and unsupported by the evidence.

Decision

Ground 1: Crown Prosecutor's closing address. The Court found there was no evidence whatsoever to support the Crown Prosecutor's explanation that the timing discrepancy arose from the records being drawn from different platforms. By advancing that explanation, the Crown invited the jury to treat an issue central to the case as of little consequence. Going further, the Crown Prosecutor urged the jury to shift the agreed time of the phone call to align with the Instagram messages, directly contradicting a fact the parties had formally agreed under s 191 of the Evidence Act 1995 (NSW). The Court held there was a real chance those submissions affected the jury's verdict on count 2, producing a miscarriage of justice.

Ground 3: Conduct of defence counsel. The Court found no rational reason why defence counsel failed to object to the Crown's timing submissions, failed to request the Crown to identify the evidentiary basis for its platform-difference explanation, and failed to cross-examine the complainant on the timing inconsistency even after the trial judge specifically raised the issue with the parties. The Court further found that running a defence asserting the appellant was asleep throughout, which contradicted what the appellant himself had told police and others, did not reflect a rational forensic choice. These failures separately constituted a miscarriage of justice.

Ground 2: New evidence. The proposed new expert evidence confirmed that the Instagram timestamps and the call charge records were in fact synchronised to the same time standard, consistent with what the agreed facts already recorded. Because the evidence confirmed rather than contradicted the existing agreed facts, it did not of itself give rise to an unreasonable verdict. Its significance lay in reinforcing that the Crown Prosecutor's closing submission about platform differences was unsupported.

Ground 4: Unreasonable verdict. On count 2, all three judges independently examined the evidence and concluded the jury ought to have entertained a reasonable doubt. The timing evidence gave rise to a doubt not explained by how the complainant presented in the witness box. On count 1, the Court reached a different conclusion: the complainant's evidence about the first act was capable of acceptance, was not directly affected by the timing issue, and the jury's resolution of the sexsomnia defence depended on credibility assessments it was well placed to make. The verdict on count 1 was not unreasonable.

Orders Made

  • Leave to appeal granted on grounds 1 and 4.
  • Appeal allowed.
  • Convictions on counts 1 and 2 quashed.
  • Verdict of acquittal entered on count 2.
  • New trial ordered on count 1.
  • Matter listed in the arraignments list in the District Court at Gosford on 3 October 2024, or as otherwise directed by that Court.

Key Takeaways

  • A Crown Prosecutor who invites a jury in closing address to infer a fact for which no evidence exists, or to displace an agreed fact, risks producing a miscarriage of justice, particularly where the issue is central to the verdict.
  • Where defence counsel fails to object to impermissible Crown submissions, fails to seek the evidentiary basis for a damaging factual claim, and runs a case contradicting the accused's own statements without any rational forensic justification, a separate miscarriage of justice can arise from those omissions alone.
  • New evidence tendered on appeal that merely confirms the position already recorded in agreed trial facts, rather than contradicting witness testimony, will not of itself establish an unreasonable verdict under the Criminal Appeal Act 1912 (NSW).
  • Under the M v The Queen (1994) 181 CLR 487 standard, an unreasonable verdict requires the appellate court to examine the evidence itself and be satisfied the jury ought to have entertained a reasonable doubt, having regard to all the advantages the jury held, including observing witnesses give evidence.
  • The unreasonable verdict finding on count 2 did not automatically extend to count 1, where the timing issue was not directly in play and the central question turned on the jury's assessment of the sexsomnia defence, a credibility determination properly within the jury's province.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C, 66DB
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), ss 38, 191
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Armstrong v R [2013] NSWCCA 113
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- EC (a pseudonym) v R [2023] NSWCCA 66
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Lee v R [2023] NSWCCA 203
- Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
- Lyndon v R [2014] NSWCCA 112
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398
- Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 25
- Roberts v R [2023] NSWCCA 187
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- VP v R [2021] NSWCCA 11
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371