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Court of Criminal Appeal 19 December 2024

SJB v R

[2024] NSWCCA 244

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CHILD SEX OFFENCES APPEAL ALLOWED CRIME

Citation: SJB v R [2024] NSWCCA 244
Court: Court of Criminal Appeal
Date: 19 December 2024
Judge(s): Ward P at [1]; McHugh JA at [333]; Rothman J at [339]

Background

Following a jury trial in the District Court at Campbelltown, the applicant was convicted on five counts of sexual offences against her partner's son. The complainant was 13 at the time of the alleged offending and 17 at trial. The applicant, aged 42 during the relevant period, was the de facto partner of the complainant's father. The complainant lived at the applicant's home from late December 2019 until 5 March 2020, when police removed him following reports of self-harm.

The applicant was originally charged with 15 counts (14 primary and one alternative) arising from alleged conduct between December 2019 and March 2020. The jury returned guilty verdicts on five counts and not guilty verdicts on the remaining ten. The trial judge sentenced the applicant to an aggregate of 7 years and 9 months imprisonment with a non-parole period of 5 years.

The applicant sought leave to appeal her convictions, raising two grounds: that the guilty verdicts were unreasonable and could not be supported by the evidence, and that the guilty verdicts were factually inconsistent with the not guilty verdicts.

Legal Issues

  • Whether the guilty verdicts were unreasonable or could not be supported having regard to the evidence, given the Crown case depended almost exclusively on the complainant's evidence and significant credibility issues arose
  • Whether the guilty verdicts were logically inconsistent with the not guilty verdicts, such that no reasonable jury properly applying its mind could have arrived at those differentiated conclusions

Decision

Ground 1: Unreasonable verdict

The Court found the guilty verdicts were unreasonable (at [275]). The Crown case depended almost exclusively on the complainant's evidence, which the trial judge had acknowledged in her summing-up (at [335]). The supporting evidence from the complainant's sister and former foster parents was limited in what it proved, the complaint evidence from the witness known as G had unreliable timing and minimal content, and the context evidence from the boarder Craig did not relate to any particular count and could not be used for tendency reasoning (at [335]).

The Court identified several matters that caused it serious doubt about the complainant's credibility. The complainant's account that the applicant had twin babies, one of whom died in his arms, was demonstrably untrue, and the complainant maintained it under cross-examination (at [180]-[185]). The complainant had told police he lost his virginity to the applicant, but a recorded conversation with his cousin revealed he had told the cousin he lost his virginity to a different person entirely (at [204]). The complainant's first complaint to police on 15 May 2020 recorded the first incident as occurring towards the end of January 2020 and omitted allegations of anal sex, a dildo, and any incident in a car (at [214]-[215]). A case worker's note recorded the complainant as having threatened to falsely accuse a female carer of sexual conduct, and the complainant accepted that most of the note was accurate (at [284]). Ward P observed that these credibility matters were not capable of being resolved by the jury's advantage of seeing and hearing witnesses, because they arose from things the complainant had said or denied saying, rather than from the manner in which his evidence was given (at [337]). Taking all the evidence into account, the Court was left with a real doubt as to the applicant's guilt on each of the conviction counts (at [288]-[289]).

Ground 2: Inconsistent verdicts

The Court also found the guilty verdicts to be logically inconsistent with the bulk of the not guilty verdicts (at [330]-[331]). The Crown argued the acquittals were explicable because the complainant had conceded omissions from his first police complaint, and that where date was an essential element there was a different basis for acquittal. The Court accepted that for counts 7 and 15, where the date of the offence was an essential element, there was a logical and reasonable basis to explain the acquittals separately from the conviction counts (at [329]). However, no logical basis existed to distinguish the acquittal on count 5 (fellatio in the lounge room) from the conviction on count 6 (intercourse in the bedroom), where those counts were temporally and contextually linked (at [327]). Similarly, there was no logical basis to distinguish the acquittal on count 10 from the convictions on counts 9 and 11, or the acquittal on count 12 from the convictions on counts 13 and 14 (at [327]-[328], [330]). The Court concluded that the not guilty verdicts on most acquittal counts could not be explained other than as a reflection of the jury's non-acceptance of the complainant's credibility and reliability, which should have led to reasonable doubt on all counts (at [330]-[331]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The guilty verdicts on counts 6, 9, 11, 13 and 14 are quashed, and verdicts of acquittal are entered on each of those counts

Key Takeaways

  • Where a Crown case rests almost exclusively on a single complainant's evidence, significant credibility problems across that evidence can render guilty verdicts unreasonable, even where the jury had the advantage of seeing and hearing the witnesses (at [275], [335]).
  • Credibility matters that arise from what a complainant said or denied saying, rather than from the manner of giving evidence, are not resolved by the jury's advantage of observation — an appellate court is equally well placed to assess them (at [337]).
  • A guilty verdict on one count is logically inconsistent with a not guilty verdict on a temporally and contextually linked count where the central issue on both counts is the same and no rational distinguishing basis exists; such inconsistency is a separate ground on which a conviction may be quashed (at [327]-[331]).
  • The Court confirmed the established approach: where date is an essential element of an offence, a jury may logically acquit on that count while convicting on others, and that acquittal does not necessarily reflect a want of confidence in the complainant more broadly (at [329]).
  • Elaborate untruths told by a complainant about sexual matters, connected to the subject matter of the charged offences, can constitute significant credibility damage that contributes to an unreasonable verdict finding, particularly where the complainant maintained those untruths under oath (at [282]-[284], [336]-[337]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1) , 6(1)
- Criminal Procedure Act 1986 (NSW), s 293A
- Evidence Act 1995 (NSW), s 191
- Mental Health Act 2007 (NSW)

Cases
- AH v R [2019] NSWCCA 152
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- AS v R [2022] NSWCCA 291
- Bayliss v R [2023] NSWCCA 84
- Collins v R [2020] NSWCCA 198
- Dadley v R [2021] NSWCCA 267
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Davis v The King [2024] NSWCA 120
- Ganiji v R [2019] NSWCCA 208
- Hawi v R [2014] NSWCCA 83
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Kim v R [2020] NSWCCA 288
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- LS v R [2024] NSWCCA 110
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Martin v R [2020] NSWCCA 192
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Qualtieri v R (2006) 171 A Crim R 463; [2006] NSWCCA 95
- R v ACK [2000] NSWCCA 180
- R v Kirkman (1987) 44 SASR 591
- R v KRL [2007] NSWCCA 354
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- RM v R [2024] NSWCCA 148
- Rossi v R [2024] NSWCCA 17
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13