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Court of Criminal Appeal 10 May 2024

Fisher v R

[2024] NSWCCA 68

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION ASSERTED USE OF INFLAMMATORY WORDS WHETHER VERDICTS UNREASONABLE TRIAL EVIDENCE

Citation: Fisher v R [2024] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 10 May 2024
Judge(s): Harrison CJ at CL; Cavanagh J; McNaughton J

Background

The appellant was convicted by a jury in the District Court on 27 March 2023 on one count of intentional sexual touching of a child under s 66DB(a) of the Crimes Act 1900 (NSW) and one count of detaining a person with intent to obtain a sexual advantage in circumstances of aggravation (inflicting actual bodily harm) under s 86(2)(b) of the same Act. The jury was unable to reach a verdict on a second sexual touching count. The primary judge sentenced the appellant to an aggregate term of five years and six months imprisonment with a non-parole period of three years.

The Crown case concerned events on the night of 15 November 2020 involving the appellant and CP, a 12-year-old foster child residing with a woman with whom the appellant had two biological children. The Crown alleged that the appellant took CP from the home, touched her on the genital area over her clothing during a car journey, drove her to a remote bushy area near a river, made explicit sexual demands, threatened to kill her, and physically assaulted her when she resisted. CP escaped when the car stopped, sought help from a neighbour, and was later taken to hospital.

The appellant did not challenge the sentence. His appeal was confined to two grounds: whether the Crown Prosecutor's closing address caused a miscarriage of justice, and whether the verdicts were unreasonable or unsupported by the evidence.

  • Whether the Crown Prosecutor's closing address caused a miscarriage of justice by referring to matters not in evidence, relying on matters that had been the subject of a tendency application successfully objected to by the Crown, and using inflammatory language
  • Whether the verdicts were unreasonable or could not be supported having regard to the evidence, including whether CP's agitated and inconsistent presentation as a witness undermined her credibility, whether the evolution of her account from initial complaint to pre-trial evidence was too significant to accept, and whether independent objective evidence contradicted the alleged timing of events

Decision

On Ground 1, the Court found that the Crown Prosecutor's closing address did not cause a miscarriage of justice. References to CP's "obvious difficulties" in giving evidence were understood in context: the jury had directly observed CP's outburst and her eventual return to complete her testimony, and the Crown's submission was no more than a fair characterisation of conduct the jury had witnessed. The Crown's use of the word "abandoned" to describe the appellant leaving CP behind was also found to be literally accurate given the evidence, and was a permissible way to put the Crown's case.

Regarding the Crown's references to CP's behaviour (causing her own nose to bleed and pulling her own hair), the Court noted that although the Crown had successfully opposed the appellant's tendency evidence application on that subject, defence counsel made no complaint about those references at the time of the closing address. Rule 4.14 of the Supreme Court (Criminal Appeal) Rules 1970 applied accordingly. Significantly, the Court found that defence counsel had himself drawn on CP's behavioural history and mental health issues in his own address to the jury, meaning no unfairness of the kind alleged could be demonstrated. The Crown's repeated references to an intention to sexually abuse CP were not inflammatory; such language was consonant with the charges on the indictment in a contested sexual offences trial.

On Ground 2, the Court held that the verdicts were not unreasonable. The Court accepted that children can be imprecise about time and that such imprecision should not affect the reliability or credibility of a complainant's evidence more generally. The variations between CP's several accounts did not, individually or collectively, rise to the level of generating a reasonable doubt about the appellant's guilt. The Court also noted that the evolution in CP's account had been fully available to, and exploited by, defence counsel at trial.

The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a Crown Prosecutor's closing address may use language directly consonant with the charges on the indictment, including terms such as "sexual abuse," without that language being characterised as impermissibly inflammatory.
  • Where defence counsel fails to object to a Crown closing address at trial, r 4.14 of the Supreme Court (Criminal Appeal) Rules 1970 applies, and the appellate court will scrutinise the miscarriage of justice ground with that procedural context in mind.
  • A Crown's reference to matters relating to a complainant's behaviour did not constitute unfairness where the defence had itself relied on substantially the same material in its own closing address.
  • Inconsistencies and imprecision in a child complainant's evidence about timing and specific details do not automatically undermine verdict reliability; the Court assessed whether those matters, individually or collectively, were capable of generating a reasonable doubt.
  • Sufficient evidence existed to support both convictions, and no error was established in the jury's assessment of CP's credibility notwithstanding her agitated presentation and the evolution of her account across multiple statements.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66DB(a), 86(2)(b)
- Supreme Court (Criminal Appeal) Rules 1970 (NSW), r 4.14

Cases
- Bolton v R [2023] NSWCCA 211
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Palmer v R [2018] NSWCCA 205
- Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- WC v R [2012] NSWCCA 231
- Xie v R [2022] NSWCCA 185