SM v R [2016] NSWCCA 171 (17 August 2016)

Last Updated: 19 August 2016

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	SM v R
Medium Neutral Citation:	[2016] NSWCCA 171
Hearing Date(s):	4 July 2016
Decision Date:	17 August 2016
Before:	Bathurst CJ at [1]; Basten JA at [2]; Simpson JA at [29]
Decision:	(1) To the extent necessary, grant the applicant leave to appeal against his conviction. (2) Dismiss the appeal against conviction. (3) Grant the applicant leave to appeal against sentence. (4) Dismiss the appeal against sentence.
Catchwords:	CRIME – conviction appeal – jury direction – jury’s views as to reliability or credibility of complainant – use of reasonable doubt with respect to one charge in assessing another charge – conviction on one count and acquittal on second count – whether jury direction adequate – whether verdicts inconsistent - whether conviction an unreasonable verdict CRIME – sentence appeal – Local Court jurisdictional limit – theoretical possibility that conviction could have been dealt with in Local Court – whether District Court took into account jurisdictional limit of Local Court – how that factor may affect sentence
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), ss 267, 294AA
Cases Cited:	Baines v R [2016] NSWCCA 132 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Palmer [2005] NSWCCA 349
Category:	Principal judgment
Parties:	SM (Applicant) Regina (Respondent)
Representation:	Counsel: Mr W Hunt / Ms C O’Neill (Applicant) Mr E Balodis (Respondent) Solicitors: S E O’Connor – Legal Aid NSW (Applicant) C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/273408
Publication Restriction:	The applicant has been anonymised to protect the identity of the complainant, in accordance with the policy of the Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	31 July 2015
Before:	Woods DCJ
File Number(s):	2012/273408

JUDGMENT

1. BATHURST CJ: I agree with Basten JA.
2. BASTEN JA: The applicant, SM, was found guilty by a jury on one count of assault with an act of indecency, on a child under the age of 16 years.^[1] At the time of the alleged offence, the applicant was living with the complainant and was in a relationship with her mother. The charge alleged that the applicant came into the complainant’s bedroom on Christmas Eve, 2011, lay down beside her on the bed and held her breasts. He seeks leave to appeal from the conviction.
3. The applicant was also charged and tried at the same time, on a second count of indecent assault which occurred some weeks later in March/April 2012. The allegation was that, after rubbing ointment into an area of eczema on the back of her leg, he reached his hand up under her shorts and touched her on the vagina. He was acquitted of that charge.
4. The applicant was sentenced to a non-parole period of 1 year and 3 months imprisonment, with an additional term of 1 year 3 months. The non-parole period was fixed to commence from the date of sentencing, being 31 July 2015 and is due to expire on 30 October 2016. The sentence being for a period of less than 3 years, the applicant is entitled to be released to parole at the expiration of the non-parole period. In addition to the appeal against conviction, there is an appeal against sentence.

Appeal against conviction

5. The notice seeking leave to appeal in this matter was not filed until 5 February 2016. It contained two grounds, as follows:

(1) The learned trial judge failed to direct the jury that if it had reasonable doubt concerning the reliability or credibility of the complainant’s evidence in respect of one count, it could take that into account when assessing her reliability or credibility in relation to the other counts [sic].
(2) The verdict [on count 1] is unreasonable because it is inconsistent with the jury’s verdict in relation to count 2.

6. It was not in dispute that the judge expressly directed the jury that if they had a reasonable doubt with respect to one count, they were entitled to consider that fact in dealing with the other count. The complaint was, rather, that the jury were not directed as to how such a doubt could affect the assessment of the evidence on the other count.
7. The trial was conducted primarily on the basis of the audio visual recording of the complainant’s evidence by way of a record of interview and of the cross-examination conducted at an earlier trial. The hearing commenced with the empanelling of the jury on day 1 and the usual explanation to the jury of the respective functions of the participants in the trial. The hearing was adjourned at 10.30am to commence again on the next (second) day. The evidence was completed mid-morning on the fourth day. The transcript of the hearing, other than the summing up, ran to 87 pages. As a result, the summing up, which took place on the fifth day, was appropriately brief, the jury retiring to consider its verdict at 10.44am. The trial judge (Judge G D Woods QC) gave the following direction with respect to the separate counts or charges:^[2]

“You must consider and decide upon each count separately. However, if you decide that you have a reasonable doubt about one of the charges and you find the accused not guilty on that charge you are entitled to consider whether this causes you to have a doubt also about the other charge or charges.”

8. The judge then briefly explained that the verdict must be unanimous and continued:

“You should discuss the evidence carefully, taking into account the reasoning and opinions of all members of the jury. Do not compromise.
In this trial there are two counts or charges. An approach you must avoid is to bargain amongst yourselves as jurors in any terms such as if you find the accused guilty or not guilty of count 1, I will find him not guilty or guilty of count 2. Any reasoning along these lines would be wrong and you should avoid it.”

9. Relevantly to the complaint as to the inadequacy of this direction, the jury were also told that the prosecution case was largely based on the evidence of a single witness and, in those circumstances, they should scrutinise such evidence with care. The judge continued:^[3]

“You must exercise caution before you convict the accused because the Crown case largely depends on you accepting the reliability of the evidence of one main witness, the complainant ....
This being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given you cannot find the accused guilty. Before you could convict the accused you would need to scrutinise the evidence of the complainant very carefully in order to satisfy yourselves that you could safely act upon that evidence to the high standard required in a criminal trial.”

10. The complaint about this direction relied upon propositions derived from the judgment of Spigelman CJ in R v Markuleski.^[4] The passage relied upon commenced with an analysis of cases in which juries had convicted on one count and acquitted on another in circumstances where, as in the present case, the charges involved sexual assaults and where they turned on an assessment of the credibility of the complainant.
11. It is frequently submitted that, where the jury convicts on one count and acquits on another, that the verdicts are “inconsistent”. There is a fear that differences of opinion amongst the jury have been papered over by a compromise, when in truth there has been no agreement reached with respect to the individual charges. That was a concern expressly addressed by the trial judge in the passage set out above. In Markuleski, after expressing “considerable reluctance” about adding to the number of directions and warnings trial judges are required to give, Spigelman CJ continued:^[5]

“Nevertheless, the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.”

12. The “recurring difficulty” there identified is, of course, one which arises in retrospect, in seeking to understand the reasoning of the jury based purely on knowledge of the evidence and the verdict. Because one cannot know in advance how the jury will assess the complainant and her evidence, the formulation of an appropriate direction to avoid this “difficulty” is by no means easy. To give an explicit direction that each charge must be considered separately and then to say that a doubt with respect to one should be “taken into account” in considering another is itself a recipe for possible confusion. As the Chief Justice noted, it would be wrong to direct the jury that a reasonable doubt on one charge should lead to an acquittal on the other. The Chief Justice continued:^[6]

“[186] In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.
...
[188] It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.”

13. So far, there was nothing in these passages from Markuleski with which the directions given by the trial judge did not conform. However, the judgment continued:

“[189] On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.
[190] Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.”

14. These passages are clearly intended to be fact specific: the occasion will dictate what it is appropriate to say. On the other hand, the occasions where there is “nothing to distinguish” the complainant’s evidence on one count from that on another will be rare; furthermore, the absolute nature of that proposition is highly likely to infringe upon the right of the jury to determine where the point of distinction might lie. Further, the more detail which is given in directions as to how to deal with the facts, the greater the risk that the judge will contravene the constraints imposed with respect to directions. Thus, s 294AA(1) of the Criminal Procedure Act 1986 (NSW) prohibits a judge from warning or making any suggestion to a jury that complainants as a class are unreliable witnesses. Further, that is to be treated as a prohibition on warning a jury on the danger of convicting on the uncorroborated evidence of any complainant.^[7] These, and related provisions in the Criminal Procedure Act and the Evidence Act 1995 (NSW), were introduced (or commenced) after Markuleski.
15. What should be said in different circumstances need not be considered further in the present case. That is because counsel for the accused at trial spent the major part of her final address going through what she described as “entirely different versions” of the touching of the vagina (the subject of the second count). The jury had seen the record of interview and knew what had happened at the first and second trials. The various inconsistencies in the accounts given were explored in detail over almost four pages of the transcript,^[8] a point reiterated in submissions on the appeal. By contrast, the episode of holding her breasts was dealt with in some two pages, where the discrepancies in the account were limited and related mainly to peripheral matters. Indeed, counsel relied upon the timing of the two events to cast doubt on the story with respect to the touching of the vagina. She said to the jury:^[9]

“What’s interesting is that even after she says [SM] touched her on the breast, she’s quite happy to lie down on the lounge a couple of months later and let him massage her back. ... This is a man who, at that stage she’s only known for a few months, who she says has touched her on the breast, four days, mind you, after moving into the house ... and then a few months later she’s quite happy after that incident, quite happy to let him massage her back, to let him touch her body again.”

16. The applicant’s submissions on the appeal made much of the significant differences in the “versions” given in respect of count 2 which made it “unsurprising that the jury was not satisfied beyond reasonable doubt” with respect to that count. It was said that her versions “changed throughout her evidence”. Further, there was conflicting evidence of complaint given with respect to count 2.
17. It is apparent that not only the nature of the complaints, but the circumstances in which they occurred and the terms in which they were recounted varied significantly. There was ample basis for the jury to have a reasonable doubt about the essential elements of count 2, without considering that the complainant was deliberately untruthful. It would have been necessary for the jury to scrutinise carefully the account given in relation to the first charge, as they were directed to do by the trial judge.
18. Two conclusions follow from this analysis. The first is that the directions given by the trial judge were appropriate and adequate in relation to the possibility that the jury would have a reasonable doubt in respect of one of the charges, but not the other. Without knowing whether that situation would eventuate, or on what basis, it would have been fraught with danger to give more specific directions. Accordingly, there was no error in failing to do so.
19. Secondly, the significant points of distinction between the evidence relating to each charge provided a coherent and rational basis for the jury to distinguish between them. There is no reason to infer that the jury reached the kind of compromise (against which they were expressly warned), rather than following the direction that they consider the charges separately, whilst having regard to the fact that they may have regard to a reasonable doubt about one, when considering the other.
20. The applicant should have leave to appeal against his conviction, but the appeal should be dismissed.

Appeal against sentence

21. The application for leave to appeal against the sentence relied upon a single ground, namely that the sentence imposed “did not reflect the sentencing judge’s findings that the offence could be dealt with in the Local Court.”
22. The formulation of the ground was obscure. However, it reflected the fact that the trial judge had stated, in accordance with authority:^[10]

“The fact that this matter could, theoretically, have been dealt with in front of a magistrate, with relatively lesser maximum penalty than otherwise might apply at a higher court, is something which I note and take into account.”

23. In written submissions, the applicant’s counsel submitted that the statement was “at odds with” the imposition of a sentence of 2 years and 6 months imprisonment, being greater than the 2 year jurisdictional limit in the Local Court.^[11]
24. The matter was not dealt with before the Local Court because there were two charges, to each of which the applicant pleaded not guilty. The Director conceded that, had the only charge been that in count 1, it could properly have been dealt with in the Local Court. However, there was no concession that the District Court was limited to the 2 year jurisdictional limit in the Local Court, indeed the contrary was accepted. The correctness of that proposition is beyond doubt, it having been reiterated in a number of cases, referred to by Hall J in R v Palmer.^[12]
25. Nor was the judge bound to accept the concession made by the prosecutor that it would have been appropriate for the matter to proceed in the Local Court; indeed, his acceptance was guarded, referring to it as a “theoretical” possibility. In imposing a sentence which exceeded the jurisdictional limit of the Local Court, at least by inference, the judge did not accept the full extent of the concession. There was also a degree of ambiguity as to what was meant by the concession: if the applicant had required a jury trial, that could not have happened in the Local Court. If the assumption was that it could have proceeded in the Local Court had there been a plea of guilty, that would have involved an additional counterfactual consideration.
26. As explained in Baines v R,^[13] there has been little explanation in the caselaw as to precisely how the possibility that the matter could have been dealt with in the Local Court should be taken into account. If, as in the present case, the sentencing judge is satisfied that a term of imprisonment exceeding 2 years is required, the fact that the prosecutor might have taken a different view would not appear to be a relevant consideration.
27. There is no reason to suppose that the judge did not take that factor into account as he expressly stated that he did; there was no obligation (nor would it have been appropriate) to indicate in any arithmetical sense how it affected the sentence imposed. In the absence of a principle that a District Court judge should not impose a sentence in excess of the jurisdictional limit of the Local Court, and in the absence of a ground alleging that the sentence in fact imposed was manifestly excessive, there is no scope for this Court to intervene. Accordingly, although the applicant should have leave to appeal against sentence, the appeal should be dismissed.
28. The Court should make the following orders:
    • (1) To the extent necessary, grant the applicant leave to appeal against his conviction.
    • (2) Dismiss the appeal against conviction.
    • (3) Grant the applicant leave to appeal against sentence.
    • (4) Dismiss the appeal against sentence.
29. SIMPSON JA: Section 5(1)(a) of the Criminal Appeal Act 1912 (NSW) permits an appeal against conviction as of right on any ground that involves a question of law alone; s 5(1)(b) relevantly permits such an appeal, by leave, on any ground that involves a question of fact alone, or a question of mixed law and fact.
30. Ground 1 of the present appeal against conviction asserts error, in a specific respect, in the directions given by the trial judge to the jury. In my opinion, that is a ground that involves a question of law alone. Leave is not required.
31. Ground 2 is more difficult to characterise, but, since in my view the appellant is entitled to an appeal as of right on Ground 1, it is unnecessary to decide into which of the three categories envisaged by s 5 it fits.
32. I agree, for the reasons given by Basten JA, that both grounds ought to be rejected, and the appeal against conviction dismissed. I would so order.
33. I agree with Basten JA that the sole proposed ground of appeal against sentence should fail. I would grant leave to appeal against sentence but dismiss the appeal.

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Amendments

19 August 2016 - [15] Correcting typographical error in quote.

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^[1] The applicant has been anonymised to protect the identity of the complainant, in accordance with the policy of the Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
^[2] Summing up, 15/05/15, p 3.
^[3] Summing up, p 4.
^[4] (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [187]- [188].
^[5] Markuleski at [185].
^[6] Markuleski at [186].
^[7] Criminal Procedure Act, s 294AA(2).
^[8] Tcpt, 14/05/15, pp 75(50)-79(40).
^[9] Tcpt, pp 81(40)-82(2).
^[10] Sentencing judgment, 31/7/2015, p 5.
^[11] Criminal Procedure Act, s 267(2).
^[12] [2005] NSWCCA 349 at [15(a)].
^[13] [2016] NSWCCA 132.