SKA v The Queen [2011] HCA 13 4 May 2011 S100/2010
ORDER
1.Special leave to appeal granted in respect of grounds 2, 3 and 4 of the amended draft notice of appeal dated 13 August 2010, but refused on grounds 1 and 5.
2.Appeal treated as instituted and heard instanter and allowed.
3.Set aside the order of the Court of Criminal Appeal of New South Wales dismissing the applicant's appeal against conviction to that Court made on 14 July 2009.
4.Remit the matter to the Court of Criminal Appeal for rehearing.
On appeal from the Supreme Court of New South Wales
Representation
H K Dhanji SC with C E Alexander for the applicant (instructed by Crawford & Duncan)
D M L Woodburne SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
SKA v The Queen
Criminal law – Appeal – Appeal on ground jury verdict unreasonable, or cannot be supported, having regard to the evidence – Application of test in M v The Queen (1994) 181 CLR 487 – Whether Court of Criminal Appeal made independent assessment of evidence.
Criminal law – Appeal – Video evidence – Where Court of Criminal Appeal relied on transcript of evidence – Whether sufficient to rely on transcript of evidence.
Criminal law – Appeal – Trial judge's opinion – Where trial judge considered a jury acting reasonably could not have been satisfied beyond reasonable doubt of accused's guilt – Whether regard should be had to trial judge's opinion.
Words and phrases – "unreasonable, or cannot be supported", "unsafe or unsatisfactory".
FRENCH CJ, GUMMOW AND KIEFEL JJ. The applicant seeks special leave to appeal from the judgment of the New South Wales Court of Criminal Appeal[1] which dismissed his appeals against both conviction and sentence for sexual assault, aggravated sexual assault and aggravated indecent assault against a child. The facts and circumstances relating to those charges and the history of the proceedings are contained in the reasons of Crennan J.
The applicant's ground of appeal in the Court of Criminal Appeal relevant to the proceedings in this Court is that the verdicts of the jury were perverse and not supported by the evidence. Section 6(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") states that the Court of Criminal Appeal "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence".
The evidence
The five charges brought against the applicant concerned offences which were alleged to have been committed in two periods in time.…
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.
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AGLC
SKA v The Queen [2011] HCA 13
Case
[2011] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by SKA against the decision of the Court of Criminal Appeal of New South Wales. The applicant sought to appeal his conviction on five charges, arguing that the jury's verdicts were unreasonable and could not be supported by the evidence. The charges related to alleged offences occurring in two distinct periods, with particular focus on the timing of the latter two charges.
The central legal issue before the High Court was whether the Court of Criminal Appeal had properly applied the test for determining if a jury verdict was unreasonable or could not be supported by the evidence, as established in *M v The Queen*. This involved considering whether the appellate court had conducted an independent assessment of the evidence and whether it was sufficient to allow the verdict to stand, or if it would be dangerous to allow it to remain. A further issue concerned whether the Court of Criminal Appeal had erred by relying solely on a transcript of the complainant's evidence, rather than viewing the video recording. The Court also considered the weight to be given to the trial judge's opinion regarding the reasonableness of the jury's satisfaction of guilt.
The High Court reasoned that the Court of Criminal Appeal's assessment of the evidence, particularly concerning the timing of the alleged offences and the defence alibi, was not sufficiently independent. It noted that the Court of Criminal Appeal's judgment had not referred to the applicant's activities on 22 December 2006, which was relevant to the defence. The Court reiterated that an appellate court must make its own independent assessment of the evidence's sufficiency and quality when considering whether a verdict is unreasonable, rather than merely determining if there was *some* evidence upon which a jury might convict. The Court concluded that the Court of Criminal Appeal had not adequately discharged this obligation.
Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal dismissing the applicant's appeal against conviction, and remitted the matter to the Court of Criminal Appeal for a rehearing. Special leave to appeal was granted in respect of grounds relating to the reasonableness of the verdict and the sufficiency of the evidence, but refused on other grounds.
Orders
Orders of the court
1. Special leave to appeal granted in respect of grounds 2, 3 and 4 of the amended draft notice of appeal dated 13 August 2010, but refused on grounds 1 and 5.
2. Appeal treated as instituted and heard instanter and allowed.
3. Set aside the order of the Court of Criminal Appeal of New South Wales dismissing the applicant's appeal against conviction to that Court made on 14 July 2009.
4. Remit the matter to the Court of Criminal Appeal for rehearing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The applicant's ground of appeal in the Court of Criminal Appeal relevant to the proceedings in this Court is that the verdicts of the jury were perverse and not supported by the evidence. Section 6(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") states that the Court of Criminal Appeal "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence".The evidence The five charges brought against the applicant concerned offences which were alleged to have been committed in two periods in time. The first three charges were alleged to have occurred between 1 June 2004 and 31 July 2004, when the complainant was under 10 years of age. The fourth and fifth charges were alleged to have occurred between 1 December 2006 and 25 December 2006, when the complainant was 10 years of age. It is the latter charges, and in particular when they were said to have occurred, which assumed importance on the hearing of this application. The applicant's wife is the sister of the complainant's father. The applicant was therefore referred to as the complainant's uncle. One of the applicant's daughters, Sh, was good friends with the complainant. The complainant said, when interviewed by a police officer, that the offences occurred whilst she was sharing a bedroom with her sister and Sh, during visits or "sleepovers" at the applicant's family home. On each occasion she alleged that the applicant came to the room and either fondled her breasts with his hands inside her pyjama top (counts 2, 3 and 5) or digitally penetrated her vagina (counts 1 and 4). In the interview the complainant confirmed that she was at her uncle's house having a "sleepover" with her cousin on the last occasion when he had touched her – the occasion of counts 4 and 5. She said it was "[a]bout, just before Christmas, around then." She later said that she went to the house around 3.00 or 4.00 pm. Asked to recall whether it was a weekday or on the weekend, she replied:"A.It was, I think it was a Friday. No, wait, it was, it was the day before Christmas Eve.Q58. The day before Christmas Eve?A.Yes, I think so. I think that was when. 'Cause we were having that kind of, like since our families are really close, we just go over to their house and we'd have that little family get together." The complainant's evidence-in-chief took the form of the videotape recording of her interview, which was played to the jury[2]. She also gave some oral evidence. In the cross-examination of the complainant which followed, she was asked if her uncle's house remained the same throughout the periods in question, up until 23 December 2006. The question was directed to the complainant's recollection of some renovations having been undertaken, which is not presently relevant. Her answer, however, assumes relevance with respect to the time of the last two alleged offences. She answered:"A. Yes but it may have – may have not been 23 December but … [L]ike I guessed that it may have been the day before New Year's Eve because I do remember some celebrations around then but it could have been maybe even a week before that."She was then asked:"Q. I see so why are you changing that?A. Well because I've thought of it. I thought maybe – and I've watched the video I've thought, oh well then I think I thought that it may have been the day before New Year's Eve, but it may have not been. I thought it was around that time –Q. The day before Christmas Eve?A. Yeah it's Christmas Eve, sorry."[2]This was permitted under the Evidence (Children) Act 1997 (NSW). That statute was repealed by s 5 of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW), but s 3 and Sched 1 of the 2007 Act inserted in the Criminal Procedure Act 1986 (NSW) a provision saving the application of the 1997 Act to proceedings thereunder which were pending immediately before its repeal. The present provisions provide a particular exception to the hearsay rule: Gately v The Queen (2007) 232 CLR 208 at 240 [104]-[105]; [2007] HCA 55.
Decision
Reasons for decision
FRENCH CJ, GUMMOW AND KIEFEL JJ
(dissent)
HEYDON J
CRENNAN J
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality"[7]. In M, Mason CJ, Deane, Dawson and Toohey JJ stated[8]:"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."[7]Morris v The Queen (1987) 163 CLR 454 at 473 per Deane, Toohey and Gaudron JJ; [1987] HCA 50.[8]M v The Queen (1994) 181 CLR 487 at 492-493 (footnotes omitted).The decision of the Court of Criminal Appeal The other members of the Court of Criminal Appeal (McClellan CJ at CL and James J) agreed with the reasons of Simpson J for dismissing the appeal. Her Honour detailed the evidence of the complainant and, in that process, noted her evidence as to when the alleged incidents occurred. She noted that the complainant had initially said that the incident the subject of the 2006 allegations occurred "just before Christmas, around then" and that, more specifically, the complainant had said that it was the day before Christmas Eve[9]. She observed that the complainant was giving this account in April 2007[10]. Her Honour noted the complainant's responses to questions in cross-examination about when the 2006 events had occurred[11]:"She said that initially she had thought that was the day before New Year's Eve, because she could remember some celebrations, but that she then thought it could have been a week earlier than that. She concluded that it may have been the day before Christmas Eve."[9]SKA v The Queen [2009] NSWCCA 186 at [36].[10]SKA v The Queen [2009] NSWCCA 186 at [36].[11]SKA v The Queen [2009] NSWCCA 186 at [53]. Simpson J outlined the evidence which had been led for the defence, including the alibi evidence. In this regard her Honour focussed upon the evidence of witnesses as to what took place on 23 December[12]:"The [applicant] then gave evidence about his activities on 23 December 2006. He said that the daughter of neighbours, who was close to Sh, spent some time with Sh at his home in the morning. The complainant was not present. At 6.00pm, the family went to Mass, as was their practice. He did not recall seeing the complainant at Mass, although it was also her family's usual practice to attend.The [applicant] and his family then returned home, and remained at home until about 8.45pm, when they took food to the home of his uncle, [Mr J], who was returning from India that evening. His brother-in-law (brother of his wife and of the complainant's father) was also present with his family. They remained at Mr [J's] home until 10.30 or 11.00pm, then returned home."Her Honour then added[13]:"The following day, 24 December, they spent some time in the morning shopping, and had dinner at the complainant's home with her family and others."Her Honour did not refer to the applicant's activities on 22 December 2006.[12]SKA v The Queen [2009] NSWCCA 186 at [83]-[84].[13]SKA v The Queen [2009] NSWCCA 186 at [85].