Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BS v R [2023] NSWCCA 114 Hearing dates: 5 April 2023 Date of orders: 5 April 2023 Decision date: 05 April 2023 Before: Simpson AJA at [1]; Button J at [27]; Hamill J at [28]; Decision: 1. The appeal is allowed; 2. The appellant's convictions are quashed; 3. There is to be a new trial; and 4. The matter be listed on 12 April 2023 at 9.00 am in District Court telephone call over list. Catchwords: CRIME – appeals – appeal against conviction – trial by judge alone – error of fact conceded by the Crown – error central to the trial judge's reasoning – appeal allowed – new trial Legislation Cited: Crimes Act 1900 (NSW) ss 61M, 66C Criminal Appeal Act 1912 (NSW) s 5 Criminal Procedure Act 1986 (NSW) ss 132, 133 Category: Principal judgment Parties: BS (Applicant) Crown (Respondent) Representation: Counsel: T Quilter (Applicant) E Balodis (Crown/Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2019/338898, 2023/108431 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 3 December 2020 Before: Tupman DCJ File Number(s): 2019/338898 Judgment 1. SIMPSON AJA: On 30 November 2020 the applicant, BS, was arraigned in the District Court on an indictment that contained three counts. The first two counts were, respectively, of indecent assault on a person under the age of 16 years (namely, 11 years), which was an offence against s 61M(2) of the Crimes Act 1900 (NSW), and of aggravated sexual intercourse with a child above the age of 10 years and under the age of 14 years (namely, 11 years), which is an offence against s 66C(2) thereof. The third count, pleaded in the alternative to the second, was of indecent assault contrary to s 66M(2). The applicant entered a plea of not guilty to each count. 2. Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the applicant elected for (and the Crown consented to) trial by judge alone and an order to that effect was accordingly made. The trial proceeded over 30 November and 1 December 2020. At the conclusion of the evidence, the Crown abandoned reliance on the alternative count (Count 3). On 3 December 2020 the trial judge found the applicant guilty of the first and second counts. As required by s 133 of the Criminal Procedure Act, her Honour stated the principles of law that she applied and findings of fact on which she relied in coming to the verdicts. 3. The trial judge proceeded, on 11 August 2021, to sentence the applicant. On the first count (indecent assault), she imposed a sentence of imprisonment of four years with a non-parole period of two years and six months, commencing on 10 August 2021. On the second count (aggravated sexual intercourse), she imposed a sentence of seven years with a non-parole period of four years, commencing on 10 August 2022, and which had therefore been accumulated on the first by one year. 4. Pursuant to s 5 of the Criminal Appeal Act 1912 (NSW), the applicant sought leave to appeal against both the convictions and the sentences. He identified five proposed grounds of appeal against the convictions, the first of which was: "The trial judge wrongly rejected the applicant's denial of guilt because of an error of fact about the sequence of events." 1. The Crown conceded the error asserted by ground one. After consideration, all members of the Court accepted that the concession was properly made. Accordingly, orders were made that the appeal be allowed, the convictions quashed and there be a new trial. Reasons were reserved. 2. What follows are my reasons for accepting the Crown concession, granting leave to appeal and allowing the appeal on the basis of ground one. It is unnecessary to proceed to rule on the remaining grounds. The Crown case 1. What follows is an account of the Crown case as presented to the trial judge. Nothing in the following account should be taken as a finding of any disputed fact. 2. The applicant is the stepfather of the complainant (he is married to the complainant's mother). The complainant was born in November 2006. I will refer to her mother as "MC". MC has been in a relationship with the applicant since 2007 or 2008. They have a daughter to whom I will refer as "A". The family lived in Canberra and maintained a caravan in a town on the South Coast of New South Wales. The caravan had two bedrooms, one of which was occupied by the complainant and A. 3. In April 2018 the family travelled from Canberra to the South Coast and stayed in the caravan for a few days. MC returned to Canberra, leaving the applicant, the complainant and A at the caravan. On one evening the complainant felt unwell and went to bed, in the bottom bunk of double bunks in the bedroom occupied by the children. The applicant entered the room, put his hand inside the complainant's shirt and squeezed her breasts. This was the indecent assault the subject of the first count on the indictment. The applicant then put his hand inside the complainant's underpants and digitally penetrated her anally. The complainant told him to stop. He apologised and told her that she could tell mother if she wished to do so. The applicant then left the complainant's bedroom and went to bed. 4. The applicant, the complainant and A remained at the caravan for the rest of the week. 5. On 17 May 2018 the complainant told her school friend what had happened. The events of the following day are of significance. 18 May 2018 1. On 18 May 2018, by a series of text messages sent from school, the complainant told MC, initially, that the applicant had "done something" to her, then that he had "touched her inappropriately", and finally that he had tried to rape her. MC picked the complainant up from school and took her to a police station in the Australian Capital Territory. En route to the police station the complainant told MC that the applicant had done something inappropriate to her, once in Canberra and once in New South Wales at the caravan park. She gave an account of how she said it had happened in the caravan. She told MC that the applicant then fell asleep on the floor and later got up. 2. At the police station the complainant gave an account of the events by way of a recorded interview with a police officer. That interview commenced at 1.45 pm and concluded at 3.16 pm. 3. At 2.19 pm, by text message, MC asked the applicant to call her "when you finish". 4. There was then a series of messages from the applicant to MC, recorded on MC's phone. These messages were in the following terms: 1: "Why aren't you talking to me" 2: "What is going on????." 3: "Im getting really worried" 4: "Im getting kids from school" 5: "I just spoke with your mum and she knows … Im not lieing [sic] but neither is [the complainant]". 1. A photograph of the messages was in evidence as Exhibit C. The screenshot does not show the time of any of the messages other than the first which was sent by MC to the applicant at 2.19 pm. 2. At some time not identified more specifically than "later in the afternoon", the applicant telephoned MC's mother, to whom I will refer as "HC". The applicant asked HC if she knew where MC was and told her that he had tried, unsuccessfully, numerous times, to call MC, and that he had texted her (apparently without response). During the course of the afternoon the applicant telephoned HC four times. On the third and fourth occasions the applicant was crying. 3. HC made brief notes of what the applicant said. In her note of his second telephone call, she noted that the applicant had said that the complainant and A were at after school care and he was going to collect them. (HC observed that the children were not booked in and had never been to after school care.) 4. HC noted the applicant, in the fourth and final call, as saying: "… Sometimes his hands slipped down when he is cuddling [the complainant]. He fell asleep on the floor besides [the complainant's] bed" 1. At 4.21 pm MC telephoned the applicant from the police station to which she had taken the complainant. The call was recorded. MC asked the applicant what had happened when he had the children at the South Coast, and told him that she had been told that he had "put [his] hands down her top and down her pants and inside her". The applicant denied, in forceful terms, the allegations which were put to him on a number of occasions. In the conversation MC told the applicant that she did not think that the complainant would lie about this, to which the applicant replied: "I don't think the [the complainant] would lie, but I didn't fucking touch her." This was consistent with his responses throughout the conversation. 1. The applicant did not give or call evidence in the trial. The primary judgment 1. The trial judge recounted the evidence of the various witnesses. In reasoning to her verdict of guilty on each of the first and second counts, she placed considerable weight on the timing, as she perceived it, of the various events of 18 May. Importantly, her Honour inferred that the last of the applicant's phone calls to HC had been made before 2:19 pm on 18 May, at a time when the complainant was in the process of being interviewed by police officers in Canberra. The trial judge made that finding on the basis of Exhibit C, the screenshot of the text messages sent by the applicant to MC, which, her Honour said, were all made at 2.19 pm. Her Honour reached that conclusion because the screenshot showed the time stamp of 2.19 pm above the first message (which had been sent by MC), whereas there is no time stamp for the following messages. 2. The significance, in the reasons of the trial judge, was that MC did not disclose to the applicant the content of the complainant's allegations until the telephone call at 4.21 pm. The applicant's last conversation with HC, in which he said that his hand sometimes slipped when he was cuddling the complainant, and that he had fallen asleep on the floor beside the complainant's bed, disclosed an awareness of the allegations that could not have come from either the complainant (who was in the interview with police) or MC (who did not disclose the detail of the allegations until 4.21 pm). 3. This conclusion was central to the trial judge's reasoning. Her Honour expressly found that "less weight" should, accordingly, be given to the evidence that, in his conversation with MC commencing at 4.21 pm, the applicant had forcefully and vehemently denied the allegations she put to him. Ground one of the appeal 1. The terms of ground one of the appeal have been set out above. The specific error of fact on which the applicant relied in support of ground one was the finding that each of the text messages from the applicant to MC on 18 May was sent at 2.19 pm, thus indicating that the applicant was aware of the nature of the accusations against him prior to being so advised by MC in the 4.21 pm conversation. This finding, it was contended, was unavailable for a number of reasons. It was not open to conclude, because the time stamp above the first message could be taken to establish (in the absence of evidence to the contrary) that it had been sent at 2.19 pm, that all subsequent messages had also been sent at that time. In fact, analysis of the content of the messages would strongly suggest otherwise. The messages were sent at intervals with the applicant becoming increasingly anxious. The fifth message – "Im getting the kids from school" – was inconsistent with a call made at 2.19 pm. Further, the conclusion was inconsistent with the evidence of HC. HC said that the first of the four telephone calls from the applicant was "later in the afternoon". The finding that the last of the calls to HC was before 2.19 pm was inconsistent with that evidence. It was also inconsistent with HC's note of the second call, in which the applicant said that the complainant and A were in after school care. 2. As indicated above, in accordance with its duty of fairness, the Crown conceded that the reasoning of the trial judge to verdicts of guilty could not be supported, that the verdicts should be set aside and a new trial ordered. I accept, as did the other members of the bench, that this concession was properly made. Accordingly, the orders set out above were made. 3. BUTTON J: The reasons of Simpson AJA accord with my own for joining in the orders of 5 April 2023. 4. HAMILL J: I have had the advantage of reading the reasons of Simpson A-JA for joining the orders made on 5 April 2023. Her Honour's judgment sufficiently explains why I also accepted the respondent's concession and joined in the orders allowing the appeal and quashing the applicant's conviction. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2023