SKA v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Kiefel JJ.,Heydon J.,Crennan J.
• Judgment Date: 04 May 2011
• Neutral Citation: [2011] HCA 13,2011-0504 HCA C
• Docket Number: S100/2010
• Date: 04 May 2011

[2011] HCA 13

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Heydon, Crennan and Kiefel JJ

S100/2010

SKA

Applicant

and

The Queen

Respondent

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))

Criminal Appeal Act 1912 (NSW), s 6(1).

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’.

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.

1 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.

2 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

3 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.

4 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).

5 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.’

6 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.’

7 In re-examination she was taken back to her answers to the questions by the police officer in her interview, and asked to explain why she had said ‘Yes, I think so’ when asked to confirm that the last offences occurred on the day before Christmas Eve, and why she had used the term ‘around’. She said that she was not exactly sure of the date and then went on:

‘I do know it was before Christmas because I remember the last time I saw them which was the night of Christmas Eve and they were just leaving just before 12.00 and I was complaining because I wanted them to stay till the thing go to — the clock go to Christmas, so I do remember the last time was before Christmas, some time within December.’

8 Before the jury were addressed, the trial judge (Finnane DCJ) discussed the date of the 2006 offences with prosecution and defence counsel in the absence of the jury. At the end of that discussion the trial judge stated:

‘I'm not going to let the jury have the view or decide this case on the basis that any time in December is good enough. In my view the evidence on which the Crown case is based is it's the 22nd or the 23rd, that's the evidence. Maybe the 24th but no other time. There's no possibility on the evidence of any earlier weekend raised in December or any other day so I wouldn't allow [the prosecution] to address on that.’

During the closing address to the jury, the prosecutor stated that the incidents were ‘sometime just before Christmas’. In summing up his Honour told the jury that, in relation to the events of 2006, the complainant's evidence was that these assaults occurred perhaps on the Friday night, which would have been 22 December, the Saturday night, being 23 December, or possibly Sunday 24 December. She had related the offences to the period around Christmas.

9 The date of the incidents the subject of counts 4 and 5 is critical because the applicant led evidence at trial which provided an alibi for the period from the evening of 22 December up to and including Christmas Eve. The applicant gave evidence that he was at a concert, in which one of his daughters was performing, on 22 December 2006, a fact confirmed by his wife. There was evidence that, on the evening of 23 December 2006, the applicant and his family visited a person recently arrived from overseas at his home and remained there until about 11.00 pm. Other evidence confirmed a large gathering, on the evening of 24 December, for dinner at the home of the complainant's family. The evidence of the firstmentioned witness was unchallenged and the other witnesses were not seriously challenged about their accounts.

10 The effect of this evidence, as the trial judge observed for the benefit of the jury, was that if the jury came to the view that the incidents could only have occurred in the period immediately before Christmas of 2006 and the evidence providing an alibi was not disproved, it was unlikely that the jury could conclude beyond reasonable doubt that the applicant was guilty of the 2006 offences.

The task of the Court of Criminal Appeal

11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen3 by Mason CJ, Deane, Dawson and Toohey JJ:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen4 McHugh, Gummow and Kirby JJ stated that the reference to ‘unsafe or unsatisfactory’ in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as “unreasonable” or such as “cannot be supported, having regard to the evidence”.’

13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary...