NBM v The Queen

Case [2021] SASCA 105

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

NBM v THE QUEEN

[2021] SASCA 105

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Doyle)

30 September 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED

EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - BASIS OF OPINION

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

The appellant was convicted after a trial by judge alone of one count of maintaining an unlawful sexual relationship with a child, namely his biological daughter. The alleged offending occurred when the complainant was between seven and ten years old; she was 19 at the time of trial. The complainant's credibility and reliability were the key issues at trial. Under cross-examination, the complainant gave evidence that she had blocked out/repressed her memory of the alleged sexual offending for a period of approximately 6 years. The appellant called expert evidence from a psychologist that such presentation was atypical. The Trial Judge accepted the complainant's evidence as credible and reliable and found the appellant guilty beyond reasonable doubt as charged. The appellant was sentenced to 12 years imprisonment with a non-parole period of 7 years and 6 months.

The appellant appealed against both conviction and sentence. The appellant contended that the Trial Judge had failed to provide adequate reasons for his findings that the complainant was credible and reliable; had failed to adequately deal with the expert evidence; and misdirected himself on the issues of consciousness of guilt and delay in making a complaint. The appellant contended that the verdict was unsafe. The appellant further contended that the sentence imposed was manifestly excessive.

Held (by Doyle JA, Kelly P agreeing), granting permission to appeal on Grounds 1 and 2, refusing permission to appeal on Ground 5, and dismissing the appeal against conviction on all grounds:

1. The Trial Judge’s reasons, read as a whole, adequately expose his Honour’s reasons for finding the complainant’s evidence to be credible and reliable, despite the expert evidence;

2. The Trial Judge was entitled to use the evidence of the November 2011 telephone conversation between Mr Miller and the appellant on the issue of consciousness of guilt;    

3. The Trial Judge did not err in his directions with respect to consciousness of guilt or delay in making a complaint.

Held (by Lovell JA), granting permission to appeal and allowing the appeal against conviction on Grounds 1 and 2, but dismissing Grounds 3 and 4:

1. The Trial Judge failed to give adequate reasons when assessing the complainant's credibility and reliability;

2. The Trial Judge failed to give adequate reasons as to how the expert evidence was used and the weight afforded to it;

3. The Trial Judge erred in failing to consider the complainant's…

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NBM v The Queen [2021] SASCA 105
Case
[2021] SASCA 105
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for sexual offending against a complainant who was a minor at the time of the alleged offending. The appellant, NBM, appealed against his conviction and sentence. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issues before the Full Court were whether the Trial Judge had erred in his directions to the jury regarding the complainant's evidence, particularly in light of expert testimony concerning repressed memories, and whether the verdict was unreasonable or insupportable having regard to the evidence. The court also considered whether the Trial Judge had adequately explained his reasoning for accepting the complainant's evidence as credible and reliable, and whether the use of a telephone conversation as evidence of consciousness of guilt was permissible. Finally, the court reviewed the sentence imposed.

Doyle JA and Kelly P, in their joint judgment, found that the Trial Judge's reasons, when read as a whole, adequately explained his findings on the complainant's credibility and reliability, despite the expert evidence. They held that the Trial Judge was entitled to use the telephone conversation as evidence of consciousness of guilt and did not err in his directions concerning consciousness of guilt or delay in making a complaint. Consequently, they dismissed the appeal against conviction. Lovell JA, while agreeing that the appeal against sentence should be refused, dissented on the appeal against conviction. Lovell JA found that the Trial Judge failed to give adequate reasons for assessing the complainant's credibility and reliability, and for how expert evidence was used and weighted. Lovell JA also considered that the Trial Judge erred in failing to distinguish between the complainant's reliability and credibility, but ultimately concluded that the appellant had not established that the Trial Judge must have had a reasonable doubt as to guilt.

The Full Court unanimously refused the application for permission to appeal against sentence, finding the starting point of 12 years imprisonment and the non-parole period to be appropriate, and that the sentence was not manifestly excessive. Permission to appeal was granted on grounds relating to the Trial Judge's directions and assessment of evidence, but refused on other grounds. The appeal against conviction was dismissed.

Orders

Orders of the court

Held (by Doyle JA, Kelly P agreeing), granting permission to appeal on Grounds 1 and 2, refusing permission to appeal on Ground 5, and dismissing the appeal against conviction on all grounds:

1. The Trial Judge’s reasons, read as a whole, adequately expose his Honour’s reasons for finding the complainant’s evidence to be credible and reliable, despite the expert evidence;

2. The Trial Judge was entitled to use the evidence of the November 2011 telephone conversation between Mr Miller and the appellant on the issue of consciousness of guilt;

3. The Trial Judge did not err in his directions with respect to consciousness of guilt or delay in making a complaint.

Held (by Lovell JA), granting permission to appeal and allowing the appeal against conviction on Grounds 1 and 2, but dismissing Grounds 3 and 4:

1. The Trial Judge failed to give adequate reasons when assessing the complainant's credibility and reliability;

2. The Trial Judge failed to give adequate reasons as to how the expert evidence was used and the weight afforded to it;

3. The Trial Judge erred in failing to consider the complainant's reliability as distinct from credibility;

4. The appellant failed to establish that the Trial Judge must have, as opposed to might have, had a reasonable doubt as to the appellant’s guilt.

Held (by Doyle JA, Kelly P and Lovell JA agreeing), refusing the application for permission to appeal against sentence:

1. The starting point of 12 years imprisonment and the non-parole period of slightly greater than 60% of the head sentence were appropriate;

2. The sentence imposed was not manifestly excessive.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Throughout 2017 and 2018, when the complainant was aged 16 and 17 years, she consulted Ms Brooks. During a consultation with Ms Brooks on 21 May 2018, the complainant disclosed to Ms Brooks an incident occurring at her school earlier that year (the “triggering incident”). On 4 June 2018 in a follow-up consultation, when asked directly by Ms Brooks whether anyone had touched her in a sexual way as a child, the complainant disclosed the alleged offending involving the appellant for the first time (the “initial complaint”). Further details of the alleged offending were disclosed in a subsequent session with Ms Brooks on 14 June 2018. The alleged offending was reported to police and the appellant was arrested on 10 July 2018.The memory evidence Whilst there was no dispute that the initial complaint and further details given by the complainant to Ms Brooks were consistent with the complainant’s evidence in court, the allegations of particulars (f) and (g) on the Information were first made during, or just after, a proofing session in July 2020. The issue that was largely the focus of the appeal arose during cross-examination of the complainant at trial. Counsel for the appellant elicited from the complainant that she had “blocked” the details of the alleged offending. It was put to the complainant that she had “repressed” the memory of the alleged offending which only returned after the triggering incident at school; she agreed. Counsel returned to this topic a number of times in cross-examination. Sometimes the complainant referred to “repressed memory” and on other occasions “suppressed memory”. At the completion of the complainant’s evidence, counsel for the appellant made an application for a mistrial due to the respondent’s lack of disclosure of the issue of a blocked, suppressed or repressed memory. That is, the appellant complained about the respondent’s lack of disclosure that the complainant “had no memory for six years” of the details of the alleged offending. The Trial Judge dismissed the application for a mistrial. The trial continued with Ms Brooks, the clinical psychologist to whom the complainant made the initial complaint, giving evidence before the appellant had an opportunity to obtain an expert report. Self-evidently, when leading Ms Brooks, the respondent was unaware of what any expert might say on the topic of the complainant’s evidence about memory. Ms Brooks was not recalled to give evidence in response to the expert evidence and opinion later adduced from Mr Balfour. Ms Brooks did not address the question of blocked out/repressed memories. Mr Balfour was called by the appellant in response to the evidence elicited in cross-examination of the complainant’s “repressed” memory. Mr Balfour was provided the trial transcript of the complainant’s evidence and Ms Brooks’ evidence only. He provided a report but did not consult with the complainant.[6] Mr Balfour described how memory was laid down. Mr Balfour considered the complainant’s suggestion of a repressed or suppressed memory of such a traumatic event was atypical. He opined that traumatic events, by their nature, meant that memories of such events were “intrusive” rather than repressed or suppressed. The appellant contended that Mr Balfour’s evidence undermined both the credibility and reliability of the complainant’s evidence.[6] Exhibit D9. Trial Judge’s findings

Decision

Reasons for decision

I would dismiss the application for permission to appeal against sentence.Conclusion and orders In relation to the appeal against conviction, noting that the appellant has already been granted permission to appeal on Grounds 3 and 4, I would also grant permission to appeal on Grounds 1 and 2, but would refuse the application for permission to appeal on Ground 5, and would dismiss the appeal. In relation to the appeal against sentence, I would refuse the application for permission to appeal.

Ratio Decidendi

Legal Principle Established

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