CR v R - [2017] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: CR v R [2017] NSWCCA 29
Hearing dates: 3 March 2017
Date of orders: 14 March 2017
Decision date: 14 March 2017
Before: Hoeben CJ at CL at [1]
Schmidt J at [106]
Wilson J at [107]
Decision:
Leave to appeal against conviction granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – two counts of sexual intercourse with a child under the age of 10 (5 years) in circumstances of aggravation – whether verdict unreasonable or cannot be supported by the evidence – inconsistencies identified in complainant’s testimony – whether complainant’s testimony implausible – no corroboration – very much a jury question – significant advantage of jury hearing and seeing complainant – open to jury to find guilt beyond reasonable doubt – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 66A
Criminal Appeal Act 1912 (NSW) – s 5(1)
Cases Cited: Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
SKA v The Queen [2011] HCA 13; 243 CLR 400
The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013
Category: Principal judgment
Parties: CR – Applicant
Regina – Respondent Crown
Representation:
Counsel:
S Fraser – Applicant
H Roberts – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2012/253686
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 March 2015

Before:

McClintock SC DCJ

File Number(s):

2012/253686

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant stood trial in March 2015 before his Honour Judge McClintock SC and a jury at Nowra District Court on two counts of sexual intercourse with a child under the age of 10 years (5 years) in circumstances of aggravation, namely that the complainant was at that time under the applicant's authority, between 1 May and 31 July 2012 contrary to s 66A of the Crimes Act 1900 (NSW).

The applicant was convicted of those counts (counts 1 and 3) and received an aggregate sentence of imprisonment for 12 years, commencing 17 March 2015 and expiring 16 March 2027, with a non-parole period of 8 years expiring 16 March 2023.
The applicant has appealed against his conviction pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) upon the following ground:

The verdicts are unreasonable or cannot be supported having regard to the evidence

Factual background and Crown case

Throughout the relevant period in 2012 (1 May – 31 July) the complainant and the applicant lived in the same street in West Nowra. In early 2012 the complainant and her family moved into a house near to that occupied by the applicant, his wife, his daughter and his granddaughter, S. The complainant met the applicant's granddaughter, S, in her kindergarten class at school and…

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 CR v R

Details

AGLC: CR v R [2017] NSWCCA 29
Case: [2017] NSWCCA 29
Decision Date: 14 March 2017

CaseChat Overview and Summary

The appeal in CR v R involved the conviction of the applicant on two counts of sexual intercourse with a child under the age of ten, in circumstances of aggravation. The applicant challenged the conviction on the grounds that the verdict was unreasonable and not supported by the evidence, citing inconsistencies in the complainant's testimony and the absence of corroborating evidence. The crux of the appeal was whether the jury's decision, based on the complainant's testimony, was reasonable and could be supported by the evidence presented.

The legal issues before the court were whether the verdict was unreasonable, whether it could be supported by the evidence, and whether the lack of corroboration and inconsistencies in the complainant's testimony rendered the conviction unsafe. The applicant argued that the complainant's testimony contained significant inconsistencies, particularly regarding the timing and frequency of the alleged assaults, and that the absence of corroborating evidence, including medical evidence of injuries, cast doubt on the occurrence of penetrative acts. The court needed to determine if these issues were sufficient to undermine the jury's verdict.

The court found that the evidence was largely a question for the jury, who had the advantage of seeing and hearing the complainant. The court emphasised that the jury was entitled to consider the complainant's testimony and decide whether they were satisfied beyond reasonable doubt of the applicant's guilt. Despite the lack of corroboration and inconsistencies noted by the applicant, the court concluded that it was open to the jury to find the applicant guilty based on the complainant's testimony. The appeal was dismissed, with the court reaffirming the importance of the jury's role in assessing witness credibility and the weight of evidence in criminal trials.

The final orders of the court were that the appeal against conviction was dismissed. The sentences imposed by the trial judge were confirmed, and the applicant's conviction on both counts remained intact.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Lack of corroborating evidence The applicant accepted that the submissions under this heading were predicated on the proposition that despite the time period averred in the indictment, the evidence strongly suggested that the complainant did not start to visit the applicant’s house until July 2012. The applicant noted that the complainant said that he hurt her every time she went there. She had, according to NP, been to his house as recently as a few days before her first complaint to NP. On the basis of that evidence, the applicant submitted that the complainant had been to his house and according to her, hurt by him as recently as two weeks before the medical examination. The applicant noted that despite this, Professor Brown saw no sign of injury despite a history of repeated deep penetration of the vaginal canal by his penis and multiple acts of penetration of the anus using a knife. The applicant submitted that although Professor Brown did note that a child healed relatively quickly, a doubt must arise as a result of the complete absence of injury found by Professor Brown. This was because of the history given by the complainant when compared to the relatively recent examination following the alleged events. The applicant noted that NP was a mother who was protective of her children. She said she was careful and kept an eye on her daughter. Despite that, she gave no evidence of the complainant coming home by herself upset, she did not notice any redness or marking to the complainant’s eye, and she did not notice any blood in the complainant’s clothing despite the complainant having clothes on when she was punched in the genital area with the applicant’s wrist. The applicant submitted that it was difficult to accept that the complainant, being hurt by him on every occasion that she was at his house, was not apparently seen or noticed by any of the other occupants of the house to be in distress. Doubts that must arise in relation to the occurrence of a penetrative act The applicant noted that each of the counts had as an essential element an act of penetration. The applicant submitted that a reasonable doubt as to that element would of itself require a not guilty verdict to Counts 1 and 3. The applicant submitted that the totality of evidence did raise such a doubt concerning the act of penetration. The applicant specifically referred to the lack of evidence from the medical examination. He relied upon the demonstration by the complainant to NP, which involved “touching” and “rubbing” but not actual penetration. The applicant submitted that there was a real ambiguity in that demonstration and that it was consistent with there being no penetration, but only external touching. The applicant submitted that even if the Court were satisfied to the necessary level that touching had occurred, it could not be satisfied beyond reasonable doubt that the touching involved penetrative acts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	CR v R [2017] NSWCCA 29
Hearing dates:	3 March 2017
Date of orders:	14 March 2017
Decision date:	14 March 2017
Before:	Hoeben CJ at CL at [1] Schmidt J at [106] Wilson J at [107]
Decision:	Leave to appeal against conviction granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – two counts of sexual intercourse with a child under the age of 10 (5 years) in circumstances of aggravation – whether verdict unreasonable or cannot be supported by the evidence – inconsistencies identified in complainant’s testimony – whether complainant’s testimony implausible – no corroboration – very much a jury question – significant advantage of jury hearing and seeing complainant – open to jury to find guilt beyond reasonable doubt – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 66A Criminal Appeal Act 1912 (NSW) – s 5(1)
Cases Cited:	Libke v The Queen [2007] HCA 30; 230 CLR 559 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 SKA v The Queen [2011] HCA 13; 243 CLR 400 The Queen v Baden-Clay [2016] HCA 35; 90 ALJR 1013
Category:	Principal judgment
Parties:	CR – Applicant Regina – Respondent Crown
Representation:	Counsel: S Fraser – Applicant H Roberts – Respondent Crown Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2012/253686
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 March 2015 Before: McClintock SC DCJ File Number(s): 2012/253686