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Court of Criminal Appeal 12 May 2025

RJ v R

[2025] NSWCCA 68

Sexual offencesAssault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION APPEALS EXTENSION OF TIME IN WHICH TO APPEAL

Citation: RJ v R [2025] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 12 May 2025
Judges: Ward P (leading judgment); Yehia J; Coleman J

Background

Following a judge-alone trial in the District Court, the appellant was convicted of 18 sexual offences against his daughter (who was aged between 11 and 14 at the time of the alleged offending) and one count of common assault against his wife. The offences spanned multiple occasions between January 2015 and March 2018. The appellant was sentenced to an aggregate term that was subsequently increased on a Crown appeal to 17 years' imprisonment with a non-parole period of 12 years and 6 months.

Prior to the principal trial, evidence of the appellant's conduct in soliciting his wife to discourage the complainant from proceeding with the prosecution was ruled admissible as consciousness of guilt evidence. The appellant was separately convicted of attempting to pervert the course of justice arising from that conduct. He did not appeal that conviction or his sentences.

The appellant sought leave to appeal his sexual assault convictions, challenging the way the trial judge used the consciousness of guilt evidence in his reasons. Because the notice of appeal was filed more than six months after the notice of intention to appeal had expired, an extension of time was also required.

  • Whether the trial judge's reasons on consciousness of guilt were inadequate and failed to comply with s 133(2) of the Criminal Procedure Act 1986 (NSW), which requires a judge in a judge-alone trial to provide reasons for the verdict.
  • Whether the trial judge erred by applying consciousness of guilt reasoning across all counts on the indictment when it was not open to do so, particularly in relation to counts alleging specific sexual conduct such as penetration.
  • Whether an extension of time to file the notice of appeal should be granted.

Decision

The Court of Criminal Appeal unanimously granted the extension of time and leave to appeal, but dismissed the appeal on both grounds.

On Ground 1, Ward P found that the trial judge's reasons, read as a whole, were adequate. The consciousness of guilt evidence was treated by the trial judge as a general admission of sexual misconduct against the complainant. The reasons sufficiently addressed the relevance and use of that evidence across the counts, and no breach of s 133(2) of the Criminal Procedure Act was established. The Court rejected a "disaggregated" reading of the reasons that would have isolated particular passages from their broader context.

On Ground 2, the appellant did not contend that consciousness of guilt reasoning could never be used in a multi-count sexual assault matter. His narrower argument was that the post-offence conduct could not prove specific acts such as penile or anal penetration. Ward P found this argument did not expose any error, noting that the trial judge had expressly accepted there was no express admission of penetrative conduct. Whether the post-offence conduct could distinguish guilt on certain counts but not others was therefore immaterial to the ultimate findings.

Ward P also observed that, even if either ground had been made out, there would have been no miscarriage of justice. The consciousness of guilt reasoning did not affect or influence the critical credibility finding about the appellant, and the proviso under the Criminal Appeal Act 1912 (NSW) would have applied in any event.

Orders Made

  • Extension of time for filing the notice of appeal granted to the date it was filed.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In a judge-alone trial involving multiple counts of sexual misconduct against a child, consciousness of guilt evidence may properly be used as a general admission of sexual misconduct rather than as proof of each specific alleged act.
  • A fair reading of a trial judge's reasons requires consideration of the reasons as a whole. Isolating individual passages, or "disaggregating" them, does not satisfy the obligation to read reasons fairly.
  • Under the authorities confirmed in this decision (including ARS v R and Rolfe v R), an admission does not need to be specifically referable to a particular charged count to be admissible in multi-count sexual assault proceedings involving a child complainant.
  • No error arose from the trial judge's failure to link the consciousness of guilt evidence to each individual count alleging penetration, where his Honour had already accepted that the evidence did not constitute an express admission of penetrative conduct.
  • Granting an extension of time and leave to appeal does not preclude dismissal on the merits. The Court extended time and granted leave before proceeding to dismiss both grounds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1), 8(1), 10(1)(b)
- Criminal Procedure Act 1986 (NSW), ss 66, 133(2)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases:
- ARS v R [2011] NSWCCA 266
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- R v RJ [2023] NSWCCA 273 (Crown sentence appeal)
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- AB v R [2022] NSWCCA 104
- EE v R [2023] NSWCCA 188
- GE v R [2018] NSWCCA 91
- Meakin v R [2018] NSWCCA 288