BA v The Queen - [2015] NSWCCA 189

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	BA v R
Medium Neutral Citation:	[2015] NSWCCA 189
Hearing Date(s):	3 July 2015
Decision Date:	17 July 2015
Before:	Hoeben CJ at CL at [1] R A Hulme J at [86] Campbell J at [87]
Decision:	(1) Leave should be granted to the applicant to bring this application for leave to appeal against conviction in respect of count 5. (2) Leave to appeal against conviction in respect of count 5 should be granted and the appeal allowed. (3) The applicant’s conviction for count 5 should be quashed and a verdict of acquittal entered. (4) The applicant should be immediately released from custody.
Catchwords:	CRIMINAL LAW – conviction appeal – aggravated sexual intercourse with a child under 10 years contrary to s 66A(2) of the Crimes Act 1900 – whether verdict unreasonable and cannot be supported having regard to the evidence – whether evidence capable of establishing that sexual intercourse took place – complainant aged 6 – evidence of complainant consistent with sexual intercourse not having taken place – not open to jury to find beyond reasonable doubt that sexual intercourse took place – whether erroneous directions given by trial judge as to the elements of the offence of “sexual intercourse” – necessity to have regard for way in which the trial was run – no error in trial judge’s directions – appeal should be allowed – applicant should be released.
Legislation Cited:	Crimes Act 1900 (NSW) – s 61H, s 61M(2), 61O(2), 66A(2) Criminal Appeal Act 1912 (NSW) – s 6(1)
Cases Cited:	M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Picken v R [2007] NSWCCA 319 R v Abusafiah (1991) 24 NSWLR 531 at 536 R v BA [2014] NSWCCA 148 R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 SKA v R [2011] HCA 13; 243 CLR 400
Category:	Principal judgment
Parties:	BA – Applicant Regina – Respondent Crown
Representation:	Counsel: G Bashir SC – Applicant P Ingram SC – Respondent Crown Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2012/277671
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Date of Decision:	15 October 2013
Before:	Wells SC DCJ
File Number(s):	2012/277671

JUDGMENT

HOEBEN CJ at CL:
The applicant BA was tried on an indictment containing seven counts:
Count 1: Aggravated indecent assault of a child under 16 years (s 61M(2) Crimes Act 1900 (NSW) (the Act).
Count 2: Aggravated indecent assault of a child under 16 years (s 61M(2)) of the Act.
Count 3: Aggravated act of indecency towards a child under 10 years (s 61O(2)) of the Act.
Count 4: Aggravated act of indecency towards a child under 10 years (s 61O(2)) of the Act.
Count 5: Aggravated sexual intercourse with a child under 10 years (s 66A(2))…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BA v The Queen

Details

AGLC: BA v The Queen [2015] NSWCCA 189
Case: [2015] NSWCCA 189
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case of BA v The Queen involved an appeal against a conviction for aggravated sexual intercourse with a child under 10 years, contrary to s 66A(2) of the Crimes Act 1900. The applicant, the de facto partner of the complainant’s mother, was found guilty of the offence and sentenced. The applicant appealed against his conviction on count 5, arguing that the verdict was unreasonable and could not be supported by the evidence, and that the trial judge had given erroneous directions regarding the elements of the offence of "sexual intercourse". The court had to decide whether the evidence was capable of establishing that sexual intercourse took place, and whether there was any error in the trial judge's directions.

The court found that the evidence of the complainant was inconsistent with sexual intercourse having taken place, and that it was not open to the jury to find beyond reasonable doubt that the offence occurred. The court also considered the trial judge's directions and found that there was no error in them. However, the court found that the verdict on count 5 was unreasonable and could not be supported by the evidence, and that the applicant should be released from custody as his present imprisonment was due entirely to the sentence imposed for count 5. The court held that the appeal should be allowed and that a verdict of acquittal should be entered in favour of the applicant in respect of count 5.

The court's decision was based on the evidence presented at trial, which did not establish that sexual intercourse took place. The court found that the complainant's evidence was inconsistent with the offence having occurred, and that it was not open to the jury to find beyond reasonable doubt that the offence occurred. The court also found that the trial judge's directions were not erroneous, and that there was no miscarriage of justice in the trial. However, the court found that the verdict on count 5 was unreasonable and could not be supported by the evidence, and that the applicant should be released from custody. The court's decision has considerable implications, as the applicant's present imprisonment is due entirely to the sentence imposed for count 5.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The grounds of appeal relied upon by the applicant are:Ground 1: The verdict on count 5 is unreasonable and cannot be supported having regard to the evidence.Ground 2: The trial judge erred in law in her directions as to what was necessary to satisfy the element of the offence of “sexual intercourse”, to wit, “cunnilingus”.Ground 3: The trial miscarried on account of the erroneous direction in relation to count 5 given by the trial judge.FACTUAL BACKGROUND The applicant was the de facto partner of the complainant’s mother. At the time of the offences the complainant was six years old (d.o.b. February 2006) and the applicant and the complainant’s mother had been in a relationship for about two and a half years. They were planning to get married. The complainant referred to the applicant as “daddy”. The applicant resided with the complainant, her mother and their one year old son, M, in East Lismore. The complainant and M each had their own bedroom. The applicant had been diagnosed with agoraphobia and spent most of his time at home. The complainant’s evidence in chief comprised her video recorded interview with police on 2 September 2012 (MFI’s 2 and 4) and some short evidence at trial. The complainant’s evidence was that the incidents occurred “a couple of days ago” on a day “in between Sunday and Saturday” when her mother was out shopping for a new mattress. The complainant was home alone with the applicant and M had been dropped home from day care by the applicant’s mother and was playing in his bedroom. The complainant’s mother, RM, gave evidence that she was out purchasing a new futon mattress on Wednesday 29 August 2012. At about 3pm she travelled alone to Byron Bay for a 4pm appointment to collect the mattress at the futon shop. It was a normal school day and the complainant had caught the bus home from school as she usually did. The school bus normally arrived at the driveway between 3.50pm and 4pm.Count 1 The complainant gave evidence that the incident started in the lounge room when the applicant asked her ‘“Do you want to kiss me on the lips?” and I was not so sure I said “I’m not really sure” and he kissed me on the lips” (Q&A 133). The kiss lasted for “a little bit and I wasn’t really sure” (Q&A 137). The complainant said that this kiss was the first of three kisses on the lips by the applicant.Count 2 The complainant gave evidence that after the first kiss on the lips by the applicant, she went into her bedroom “trying to get away from him” and “trying to get a lay down”, however, the applicant followed her and “kissed me on the lips again” (Q&A 138-143). When the applicant did this, the complainant was “not quite sure” and “really not very, very happy about it” (Q&A 144-145).Count 3 The complainant gave evidence that after the applicant kissed her on the lips for the second time he “took off his shorts and his undies and then I, then he showed it [his penis] to me” (Q&A 154-157). “He showed his penis to me” (Q&A 78) and “I felt disgusting” (Q&A 79). The complainant observed that the applicant’s penis “looked like a big, big bone”; “but it was just a big muscle”; “it looked like, it just looked like a big bone but was it was a big muscle and that’s all I can remember about the penis” (Q&A 158-160). She said that the applicant’s shorts were silver and his underpants were blue. He “took them off totally. He put them on the ground”. The applicant did not remove his shirt (Q&A 161-167).

Decision

Reasons for decision

HOEBEN CJ

It follows that these grounds of appeal have not been made out.CONCLUSION Since ground of appeal 1 has been made out, a verdict of acquittal should be entered in favour of the applicant in respect of count 5. No alternative count was relied on by the Crown and the possibility of a lesser offence being made out was expressly eschewed by the Crown in the appeal. The verdict of acquittal has considerable implications. As indicated earlier in this judgment, the sentences for the other counts of which the applicant was found guilty have been served and his present imprisonment is due entirely to the sentence imposed for count 5. In those circumstances, because the conviction for this count cannot stand, the applicant should be released from custody forthwith. The orders which I propose are as follows:(1)Leave should be granted to the applicant to bring this application for leave to appeal against conviction in respect of count 5.(2)Leave to appeal against conviction in respect of count 5 should be granted and the appeal allowed.(3)The applicant’s conviction for count 5 should be quashed and a verdict of acquittal entered.(4)The applicant should be immediately released from custody. R A HULME J: I agree with Hoeben CJ at CL. CAMPBELL J: I agree with Hoeben CJ at CL.**********

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

In support of that proposition, the Crown noted that a viewing of the videoed statement showed that when asked to draw where the applicant kissed her on the front (Q&A.294), the complainant initially pointed to the crotch area with the pen and then drew the arrow at the side of the figure. The Crown submitted that because of that evidence, the jury could readily discount the suggestion that the complainant intended to indicate the entire area within the rectangle was that to which she was referring when she used the word “bagina”.CONSIDERATION It is true, as both the applicant and Crown noted, that the point raised by this ground of appeal was not taken by the defence at trial and if it is now to be relied upon, the leave of the Court is required by the Criminal Appeal Rules. In my opinion, leave should be given. This is because it relates to an element of the offence. The question of whether the evidence was capable of establishing count 5 is fundamental to whether the offence was made out. If the evidence were not so capable, then the applicant’s conviction on that count has given rise to a miscarriage of justice of the kind requiring this Court to intervene. In R v Kanaan the Court (Hunt AJA, Buddin and Hoeben JJ) said in relation to rule 4:“99 ... That Rule provides that no direction or omission to give a direction at the trial shall, without the leave of this Court, be allowed as a ground of appeal unless objection was taken by the appellant at the trial to the direction or omission challenged. Leave to rely on an error to which no objection had been taken at the trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice: Regina v Abusafiah (1991) 25 NSWLR 531 at 536; Regina v Wilson [2005] NSWCCA 20 at [20]. There is a miscarriage of justice where, by reason of the error made, the appellant may have lost a real chance (or a chance fairly open to him) of being acquitted.” It follows that leave to rely upon this ground of appeal should be granted to the applicant. The Court was invited by both sides to view the videoed statement of the complainant, which made up most of her evidence in chief. The Court did so before the hearing of the appeal so as to better appreciate not only the written submissions before it but the oral submissions. The exercise was useful because it was clear that there were some errors in the transcription of the recorded interview. It was also important to observe the gestures of the interviewer and the complainant at various times during the interview. Fundamental to the Crown case in relation to count 5 was the evidence of the complainant in the videoed statement of 2 September 2012, five days after the offence was said to have occurred. It is correct, as the Crown submitted, that the complainant mentioned the word “bagina” without prompting for the first time in the interview at Q&A.81. It is, however, also of significance that shortly thereafter the complainant said: “And then he licked and kissed my bottom” (Q&A.85). Nothing was volunteered by the complainant concerning any actions by the applicant directed towards her vagina. Similarly, when the issue of the applicant kissing and licking her bottom was raised again by the interviewer (Q&A.197 and Q&A.243-244) no mention was made by the complainant of the applicant doing anything in relation to her vagina. On the contrary, the question and answer at 244 was:“Q.244 … and licking, licking your bum and then laying on the lounge with you in the lounge room and kissing you again in the lounge room, did he do anything else that was naughty?A. No, he did do other thing.”The “other thing” had nothing to do with the complainant’s vagina.