NBM v The Queen

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.