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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: NSW Court of Criminal Appeal
Date: 19 December 2024
Judge(s): Ward P; McHugh JA; Rothman J

Background

The applicant was convicted by a jury in the District Court at Campbelltown of five sexual offences against her partner's 13-year-old son. She had faced a 15-count indictment, with the alleged offending said to have taken place between December 2019 and March 2020, during a period when the complainant came to live in the applicant's home after running away from his father's house.

The jury returned unanimous verdicts: guilty on five counts (counts 6, 9, 11, 13 and 14) and not guilty on the remaining ten. On two of the acquitted counts (counts 7 and 15), the trial judge had directed that the date of the offence was an essential element, which explains those not guilty verdicts. The remaining acquittals had no such distinguishing direction.

The applicant was sentenced to an aggregate term of 7 years and 9 months imprisonment with a non-parole period of 5 years, and remained on conditional bail throughout the appeal proceedings. She did not challenge the sentence; her appeal was confined to the five guilty verdicts.

  • Whether the five guilty verdicts were unreasonable, or could not be supported, having regard to the evidence at trial (Ground 1)
  • Whether the guilty verdicts were factually inconsistent with the not guilty verdicts, such that the verdicts could not stand together (Ground 2)

Decision

On unreasonableness of the verdicts (Ground 1): The Court of Criminal Appeal examined the evidence in detail and concluded, unanimously, that the jury should have entertained a reasonable doubt as to guilt on each of the five convicted counts. The central problem was the complainant's credibility. The Court found it was significantly undermined by notes from Catholic Care workers documenting the complainant's willingness to make fantastical or histrionic statements, and by evidence suggesting he had made elaborate untruths about sexual matters and had threatened to fabricate allegations.

On individual counts: Regarding count 6, the complainant alleged the applicant gave him alcohol and drugs, but Catholic Care workers who attended the house gave no evidence of observing him in an inebriated state. This, combined with the presence of other occupants in the house during the relevant period, made the account inherently implausible. Regarding counts 9 and 11, the absence of any reference to one incident in the police interview, together with the broader credibility concerns, raised reasonable doubt. Regarding counts 13 and 14, the Court found it logically incoherent that the jury could accept the complainant's evidence on those counts but reject his account on the immediately preceding count, given all three arose from the same surrounding circumstances.

On inconsistent verdicts (Ground 2): Other than the counts where date was an essential element of the offence (counts 7 and 15), the Court found no logical basis for distinguishing between the acquittal counts and the conviction counts. Because each count turned on the same question of whether the complainant's account was to be accepted, the verdicts could not rationally stand together.

All three judges agreed that both grounds were established and that the guilty verdicts should be quashed and acquittals entered.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal quashed all five guilty verdicts and entered acquittals on each count, finding the convictions unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Where proof of each charge rests almost entirely on a single complainant's evidence, significant and documented credibility problems with that complainant's account can render a guilty verdict unreasonable, even giving full allowance for the jury's advantage in seeing and hearing the evidence.
  • Documentary records kept by third-party welfare workers (in this case, Catholic Care case notes) can constitute powerful credibility evidence that an appellate court is equally placed to assess as the jury, removing the usual deference to the jury's advantage in observing demeanour.
  • Inconsistent verdicts may be fatal to convictions where no logical basis exists to distinguish between the counts on which a jury convicted and those on which it acquitted, particularly where all counts turned on the same factual question of a complainant's reliability.
  • A rational basis for inconsistency existed only on those counts where the trial judge had specifically directed the jury that date was an essential element; the remaining acquittals provided no such logical distinction.

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:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- LS v R [2024] NSWCCA 110
- AS v R [2022] NSWCCA 291
- Bayliss v R [2023] NSWCCA 84
- Collins v R [2020] NSWCCA 198
- Davis v The King [2024] NSWCA 120
- AH v R [2019] NSWCCA 152
- Ganiji v R [2019] NSWCCA 208
- Hawi v R [2014] NSWCCA 83
- Kim v R [2020] NSWCCA 288
- Martin v R [2020] NSWCCA 192
- Dadley v R [2021] NSWCCA 267