HEADNOTE
[This headnote is not to be read as part of the judgment]
On 22 November 2019, SS (the applicant) was convicted of seven child sexual offences against a single complainant (the complainant) following a trial by judge alone which was conducted by English DCJ (the trial judge). He was sentenced to 8 years and 6 months' imprisonment, commencing on 21 May 2028, with a non-parole period of 4 years and 6 months' imprisonment. At the time of the hearing of the appeal, the applicant was on parole.
The applicant was the complainant's mother's de facto partner. The offences, which involved the applicant putting his penis in the complainant's mouth, putting his finger in the complainant's vagina and touching the complainant's breasts, were alleged to have been committed between 1989 and 1993 when the complainant was aged between 7 and 11 years old and living in Wagga Wagga with her mother, the applicant and her three half-brothers. The offences were committed against a background of the applicant's repeated sexual and physical abuse of the complainant.
In August 1993, the complainant told her friend, ES, and her maternal grandmother, what the applicant had been doing to her. She then gave a formal statement to police, was examined by a gynaecologist and the applicant was charged. However, on 4 November 1993, as a result of threats made by the complainant's mother, the complainant signed a retraction statement in which she said none of the conduct comprising the offences had occurred.
Shortly after the charges were dropped, in December 1993, the applicant admitted to sexually and indecently assaulting the complainant to members of his family, including his mother, his brother, his sister and his sister's fiancé.
In 2013, the complainant contacted police in Wagga Wagga to restore her original complaint against the applicant. However it was not until 2016, when police became aware of the admissions made by the applicant, that he was charged and brought to trial.
The applicant sought leave to appeal against his conviction and sentence. He required an extension of time to do so, having filed a notice of intention to appeal on 24 June 2020 and a notice of appeal on 3 April 2024. The applicant's proposed grounds of appeal were that:
(1) there was a miscarriage of justice arising from the trial judge's refusal of an application for the trial to be aborted and for her Honour to recuse herself;
(2) the conviction was unreasonable and could not be supported having regard to the evidence; and
(3) the court re-sentence the offender based on fresh evidence which was not available at the time of sentence, namely the applicant suffering from a terminal illness at the time of sentencing.
Ground 1 was based on the fact that the complainant's mother, who was called as a prosecution witness after almost all other witnesses had been called, gave evidence against the applicant which was inconsistent with earlier supportive statements which had been served on the defence. The applicant's trial counsel applied for the trial judge to recuse herself and vacate the trial, arguing that, had they been aware of the evidence before trial, the defence would have conducted their case differently. The trial judge refused the application but adjourned the trial for four weeks to allow the defence further time.
In support of ground 2, the applicant submitted that notwithstanding the trial judge's acceptance of the complainant's evidence, the Court ought find that the tribunal of fact ought to have entertained a reasonable doubt as to the applicant's guilt because of inconsistencies in the complainant's evidence.
The Court held (Adamson JA, Stern JA and Faulkner J agreeing), granting an extension of time and leave to appeal on grounds 1 and 2 (the conviction appeal), but dismissing the conviction appeal, and refusing an extension of time for leave to appeal on ground 3 (the sentence appeal):
Ground 1: miscarriage of justice arising from the trial judge's refusal to recuse herself and vacate the trial
(1) The test is whether, as a result of the refusal of the recusal application, there was a miscarriage of justice: at [146] (Adamson JA).
Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29; Ilievski v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248; Conway v R [2023] NSWCCA 265, cited.
(2) There was no miscarriage of justice. The applicant could not point to any particular prejudice he suffered as a result of the trial not being vacated or to any forensic decision which he may have made differently had he been aware of the complainant's mother's evidence in advance, and the complainant's mother's evidence did not materially affect the Crown case: at [145], [147]-[149] (Adamson JA); [204] (Stern JA).
Ground 2: unreasonable verdicts
(3) Assumptions about how a sexual assault complainant might behave are inappropriate. Minor discrepancies as to timing or acts are not such as ought to have caused the tribunal of fact to doubt the complainant's credibility: at [160]-[162], [167] (Adamson JA); [210]-[212] (Faulkner J).
Khamis v R [2018] NSWCCA 131; Rao v R [2019] NSWCCA 290; Xu v R [2019] NSWCCA 178; Maughan v R [2020] NSWCCA 51; Reed v R [2006] NSWCCA 314, cited.
(4) Having regard to the evidence as a whole (that the applicant admitted his offending to members of his family, the circumstances of the retraction statement, reliable complaint evidence supported by contemporaneous documents and medical evidence), it was open to the tribunal of fact to return a guilty verdict in respect of all counts: at [165], [185] (Adamson JA); [205] (Stern JA); [213]-[214] (Faulkner J).
Ground 3: extension of time for leave to appeal against sentence
(5) The challenge to the sentence is so devoid of merit as not to warrant an extension of time. The medical evidence falls short of establishing that the applicant had a brain tumour at the time the sentence was imposed and even if the medical evidence was properly admitted as "fresh evidence", there is no reason for this Court to intervene, given that the applicant is no longer in custody: at [197], [200]-[201] (Adamson JA).