HEADNOTE
[This headnote is not to be read as part of the judgment]
On 27 March 2023, following a trial by jury over which Abadee DCJ (the trial judge) presided, RM (the applicant) was convicted of 11 counts of sexual offending against his biological daughter (the complainant). The offending occurred over nine years, from when the complainant was aged 9 to 18, and included indecent assault, unlawful sexual intercourse, aggravated sexual intercourse, and unlawful sexual touching. The applicant was sentenced to an aggregate term of imprisonment of 12 years, commencing on 3 January 2023, with a non-parole period of 8 years and 5 months.
The applicant sought leave to appeal against each of the convictions on the sole ground that the verdicts were unreasonable and unsupported by the evidence.
The applicant's case was that the offending conduct had not occurred. He challenged the complainant's credibility generally and relied on her lack of contemporaneous complaint, lack of recollection and inconsistency about details tangential to the offending conduct, and alleged motive to lie as undermining the reliability of her version. The applicant also pointed to aspects of his own and the complainant's conduct which were alleged to make his commission of the offences implausible.
In respect of count 5 (a charge under s 66C(2) of the Crimes Act 1900 (NSW) of aggravated sexual intercourse when the complainant was "above the age of 10 years and under the age of 14 years"), the applicant submitted that the complainant's evidence that she was "13 or 14" when the offending occurred created a reasonable doubt about whether she was under the age of 14 such that the applicant's conviction on this count ought be set aside.
The parties made submissions in this Court as to the consequences of such a finding, given that the trial judge had ruled that the statutory alternative offence, s 66C(4), which is identical as to conduct to s 66C(2) but applies where the victim is above the age of 14 and under the age of 16, could be left to the jury. The Crown submitted that the applicant ought be found guilty of the alternative count, whereas the respondent submitted that this Court could not be satisfied that the jurors would have been unanimous in finding the applicant guilty under s 66C(4).
The Court held (Adamson JA, Dhanji and Sweeney JJ agreeing, with additional reasons of Dhanji J), granting leave to appeal, allowing the appeal against conviction in respect of count 5 but otherwise dismissing the appeal:
Issue 1: whether the verdicts were unreasonable
(1) Save as to the conviction of count 5, having reviewed all of the evidence in the trial, it was open to the jury to be satisfied of the guilt of the applicant on all counts: at [253] (Adamson JA); [278] (Dhanji J); [297] (Sweeney J).
M v The Queen (1994) 181 CLR 487; [1994] HCA 30, applied.
Issue 2: whether the verdict of guilty of count 5 was unreasonable
(2) The evidence was insufficient to exclude the possibility that the offence was committed after the complainant turned 14 and it is necessary to quash the conviction on that count: at [254], [256] (Adamson JA); [280] (Dhanji J); [297] (Sweeney J).
Issue 3: effect of quashing the conviction of count 5
Per Adamson JA (Sweeney J agreeing):
(3) It is consistent with the authorities (Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24 (Gilson) and R v JGW [1999] NSWCCA 116 (JGW)) to set aside the verdict in respect of count 5 and substitute a verdict in respect of the statutory alternative, an offence contrary to s 66C(4) of the Crimes Act. This approach is authorised by s 80AB(9) of the Crimes Act: at [273] (Adamson JA).
Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24; R v JGW [1999] NSWCCA 116, applied.
(4) Applying JGW, as it is only the complainant's age (whether she was under the age of 14 or not) that constitutes the division between an offence under s 66C(2) and s 66C(4) and the alternative offence under s 66C(4) is the lesser offence of the two, it is permissible for this Court to convict the applicant of the alternative count: at [272]-[273] (Adamson JA).
(5) The matter ought be remitted to the District Court for sentencing under s 12(2) of the Criminal Appeal Act 1912 (NSW): at [273] (Adamson JA).
Per Dhanji J (Sweeney J agreeing):
(6) The question for this Court is whether the jury must have been satisfied that the applicant committed an offence against s 66C(4) on the facts found by them, including that the complainant was under the age of 14. This question can be resolved by the proper construction of s 66C(4), without need for recourse to authorities: at [281], [292] (Dhanji J).
(7) Reading s 66C(4) in light of its context and purpose (to criminalise intercourse with persons below a certain age), if the offence created by s 66C(2) cannot be proved only due to the inability to prove the complainant was under the age of 14, the accused will be guilty of an offence against s 66C(4) provided it can be proved the complainant was under the age of 16. The words "of or above the age of 14" in s 66C(4) do not create a further element for that offence: at [286]-[288].
(8) The jury were satisfied of facts that would render the applicant liable to conviction for an offence against s 66(4) of the Crimes Act: at [292].