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Court of Criminal Appeal 6 December 2024

CF v R

[2024] NSWCCA 225

Sexual offences

Citation: CF v R [2024] NSWCCA 225
Court: Court of Criminal Appeal, New South Wales
Date: 6 December 2024
Judge(s): Harrison CJ at CL, Ierace J, Sweeney J

Background

The applicant was convicted by a jury in December 2022 in the Tamworth District Court of seven sexual offences committed against his stepdaughter. The offences occurred between 2007 and 2009, when the complainant was aged between 14 and 16. The counts included indecent assault and sexual intercourse offences, covering acts of oral and anal penetration.

The complainant was the applicant's stepdaughter, and the applicant had been married to her mother since 2004. The complainant regarded the applicant as a father figure and had worked alongside him on farm duties from the age of 14. The first complaint to police arose in early 2020.

The applicant sought leave to appeal his convictions on a single ground: that the jury's verdicts were unreasonable and could not be supported having regard to the evidence. No challenge was brought to the trial judge's directions or any other aspect of the trial.

  • Whether the jury's verdicts were unreasonable or could not be supported on the evidence, applying the principles stated in M v Queen (1994) 181 CLR 487.
  • Whether identified inconsistencies and discrepancies in the complainant's evidence were of sufficient weight to create a significant possibility that an innocent person had been convicted.

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. Sweeney J delivered the principal judgment, with Harrison CJ at CL and Ierace J each providing concurring reasons after conducting their own independent review of the trial evidence.

Applying the M v Queen test, the Court noted that an appellate court must make its own independent assessment of the evidence and determine whether, notwithstanding that evidence capable of supporting a conviction exists, it would nonetheless be dangerous to allow the verdicts to stand. The Court found, after that independent review, that it did not experience a doubt about the quality, sufficiency, or reliability of the complainant's evidence in support of every count on the indictment.

The applicant pointed to various asserted inconsistencies in the complainant's accounts: differences between her statement and her oral evidence on several details, uncertainty about dates and ages, a discrepancy about who collected her from a camp, a police officer's note referring to digital penetration she never alleged, and concerns about the complainant's credibility arising from her mother's concurrent custody dispute with the applicant. The Court assessed each of these matters and found them to be either minor, plausibly explained, or insufficient to undermine the complainant's evidence when viewed in the full context of the trial.

Harrison CJ at CL placed particular weight on recorded telephone conversations between the complainant and the applicant. Those recordings showed the complainant's evident distress and confusion, and the applicant's failure to deny, even in general terms, her references to oral and anal sex. Ierace J separately noted that while some uncertainty existed about dates and whether certain counts arose from the same or different incidents, those uncertainties did not adversely affect the reliability of the complainant's evidence about the sexual assaults themselves. All three judges were in agreement that the verdicts were not unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that asserted inconsistencies and discrepancies in a complainant's evidence must be assessed in the context of the trial as a whole, not examined in isolation.
  • Applying M v Queen, the appellate court must conduct its own independent assessment of the trial evidence to determine whether a significant possibility exists that an innocent person was convicted. That threshold was not met here.
  • Minor differences between a complainant's prior statement and oral evidence, including variations in detail about sexual acts, do not automatically give rise to appellate doubt about the reliability of the evidence.
  • An accused person's failure, during recorded conversations with a complainant, to refute specific allegations of sexual conduct was treated by the Court as significant in evaluating the overall reliability of the complainant's account.
  • The existence of a potential motive to lie, such as a concurrent family law dispute, is a matter for the jury's assessment. The appellate court found it did not, when considered alongside the whole of the evidence, create a significant possibility that the verdicts were unreasonable.

Legislation and Cases Referenced

Cases:
- M v Queen (1994) 181 CLR 487 (High Court of Australia) — the governing test for unreasonable verdict appeals

Legislation:
- None cited.