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Court of Criminal Appeal 13 March 2024

GN v R

[2024] NSWCCA 39

Sexual offences

Citation: GN v R [2024] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 13 March 2024
Judges: Adamson JA (principal judgment); Davies J and Garling J agreeing

Background

The applicant was convicted of 21 counts of sexual offences against two young relatives: his step-granddaughter (TWN) and his granddaughter (KN). The offending included indecent assault and sexual intercourse with children aged between four and eight years. The children had stayed at the applicant's home while their parents worked, and the offending came to light in 2015 when TWN discovered notes KN had written about the abuse.

The trial was conducted by judge alone in the District Court at Wagga Wagga. Central to the prosecution case was KN's police interview, conducted when she was 11 years old, in which she gave a detailed and naive description of the applicant ejaculating. The defence challenged how the trial judge used that description.

The applicant sought leave to appeal against all convictions on five grounds, each directed at the adequacy and lawfulness of the trial judge's reasoning.

  • Whether the trial judge improperly took judicial notice of the fact that an 11-year-old girl would not know about ejaculation, in breach of s 144 of the Evidence Act 1995 (NSW)
  • Whether the trial judge's reasoning about KN's sexual knowledge contravened s 293 of the Criminal Procedure Act 1986 (NSW), which restricts the use of a complainant's sexual experience or lack thereof
  • Whether the Crown's closing submissions on the complainant's lack of sexual experience caused a miscarriage of justice
  • Whether the trial judge improperly rejected the evidence of a witness (IM) whose account contradicted KN's version of how the disclosing notes were written
  • Whether the trial judge failed to make adequate factual findings about complaint evidence
  • Whether the trial judge was required to address the evidence of a further witness (DN) in the reasons for verdict

Decision

Grounds 1 and 2: KN's description of ejaculation

The Court accepted that the trial judge could not legitimately reason, as a matter of common knowledge or generalisation, that an 11-year-old girl would not know about ejaculation. Such a generalisation is not a matter of common knowledge within s 144 of the Evidence Act, and relying on it would be unfair to the applicant under s 293 of the Criminal Procedure Act. However, reading the reasons for verdict fairly and as a whole, the Court was not persuaded that the trial judge had in fact reasoned in that prohibited way.

One phrase in the verdict, read in isolation, appeared to disclose an impermissible inference. The Court nonetheless concluded that the surrounding reasoning demonstrated a different and legitimate basis: the trial judge was entitled to draw on common sense and life experience to infer that KN would have been unlikely to provide such a detailed, naive description of ejaculation unless she had witnessed it herself. The naivety of the description, and the absence of any other plausible source of that knowledge, supported an inference that she had encountered ejaculation only in the context of the charged offending. Applying HG v The Queen (1999) 197 CLR 414, this reasoning was permissible.

Ground 3: Rejection of IM's evidence

IM gave evidence that KN had told her that KN and TWN wrote the disclosing notes together, which would have undermined the prosecution case. The trial judge rejected that evidence. The Court of Criminal Appeal held that the reasons for verdict, read as a whole, adequately explained why IM's account was treated as highly improbable and likely affected by the family conflict flowing from KN's disclosure. The trial judge was entitled to reject evidence that did not cohere with the remainder of the trial evidence.

Grounds 4 and 5: Complaint evidence and DN's evidence

On complaint evidence, the Court held that a trial judge is entitled to address minor inconsistencies in a global way rather than making discrete findings on each detail. With respect to the witness DN, whose evidence was consistent with both the Crown and defence cases, a trial judge is not required to address evidence of little or no probative value in reasons for verdict. The applicant's challenge on that ground therefore failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A trial judge in a judge-alone sexual assault trial cannot reason, from generalisation alone, that a child of a particular age would not know about a sexual act. Such an assumption is not a matter of common knowledge under s 144 of the Evidence Act 1995 (NSW) and is restricted by s 293 of the Criminal Procedure Act 1986 (NSW).

  • Legitimate reasoning remains available: where a child gives a detailed but naive description of a sexual act, a trial judge may draw on common sense and life experience to infer that the child witnessed the act in the circumstances alleged, provided that inference is grounded in the specific character of the evidence rather than a demographic generalisation.

  • Reasons for verdict must be read fairly and as a whole. An infelicitous phrase that, in isolation, suggests an error in reasoning will not ground a successful appeal if the reasons overall disclose a legitimate and sufficient basis for the findings.

  • In dismissing the challenge to the trial judge's treatment of complaint evidence, the Court confirmed that inconsistencies in complaint evidence may be addressed globally in reasons for verdict, without specific findings on every discrepancy in detail or timing.

  • A trial judge sitting alone is not obliged to address, in the reasons for verdict, the evidence of a witness whose testimony is of little or no probative value to either the prosecution or defence case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 66A, 409B
- Criminal Procedure Act 1986 (NSW), ss 133, 293
- Evidence Act 1995 (NSW), s 144

Cases
- HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
- DH v R [2020] NSWCCA 2
- Dries v R [2022] NSWCCA 33
- Hodgson v R [2022] NSWCCA 72
- Hopgood v R [2019] NSWCCA 246
- Munn v R; Miller v R [2006] NSWCCA 61
- R v BK [2022] NSWCCA 51
- Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70
- Y v R [2009] NSWCCA 287