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25
Court of Criminal Appeal 26 August 1999

R v Colby

[1999] NSWCCA 261

Sexual offences
APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE NEW SENTENCE EVIDENCE

Citation: R v Colby [1999] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 26 August 1999
Judge(s): Mason P, Grove J, Dunford J

Background

The appellant was convicted in the District Court on two counts of aggravated sexual assault and eleven counts of sexual intercourse with a person aged between 10 and 16 by a person in authority. The appellant was approximately 50 years old at the time of the offences; the complainant was aged 12 or 13. He had been a long-time friend of the complainant's family and had been appointed her custodian on the application of the Director-General of the Department of Youth and Community Services.

The original sentence comprised a minimum term of 16 years and an additional term of 6 years. The Crown case relied substantially on the evidence of three former wives of the appellant, who each described a similar range of sexual practices with him. That evidence was admitted over objection at trial.

The appellant appealed against both the conviction and the sentence. On conviction, he raised numerous grounds concerning jury directions, the admissibility of various categories of evidence, and the overall safety of the verdicts.

  • Whether the trial judge gave adequate directions to the jury regarding complaint evidence and any delay in complaint
  • Whether further specific warnings were required concerning the complainant's evidence
  • Whether the evidence of the three former wives was properly admitted as coincidence or tendency evidence, and whether the possibility of concoction rendered it inadmissible
  • Whether the jury directions on the former wives' evidence were adequate
  • Whether evidence from a third party (Anthony Simone) was properly admitted
  • Whether a Cleo magazine was wrongly excluded as evidence bearing on the complainant's knowledge of sexual matters
  • Whether firearm discharge evidence was admissible to show a propensity to act on impulse
  • Whether a not-guilty finding against the complainant's father on sexual assault charges should have been admitted
  • Whether specialist gynaecological evidence was wrongly excluded
  • Whether the verdicts were unsafe and unsatisfactory for lack of evidentiary support
  • Whether the total sentences imposed were manifestly excessive

Decision

Complaint evidence and jury directions: The Court held that the directions given on complaint evidence complied with s 405B of the Crimes Act, which addresses delayed complaints. Although a trial judge may in appropriate cases warn the jury that delay in complaint is relevant to assessing a complainant's credibility, the absence of such a warning here did not cause a miscarriage of justice, particularly because no direction or redirection had been sought by defence counsel at trial.

Former wives' evidence: This was the most significant evidentiary contest. The Court held that the trial judge was correct to admit the evidence of the three former wives under the coincidence rule (s 98 of the Evidence Act 1995) and the tendency rule (s 97). The evidence was found to have significant probative value. On the Hoch v The Queen principle, similar fact evidence must be rejected if there is a "real possibility" of concoction between witnesses, but the Court held that possibility did not arise on the facts here. The jury directions on the use of this evidence were found to be appropriate.

Other evidentiary grounds: The evidence of Anthony Simone was found to have been inadmissible, but its admission caused no miscarriage of justice given the volume of other evidence. The exclusion of the Cleo magazine, if erroneous, likewise produced no substantial miscarriage. On the firearm evidence, Mason P and Grove J held it was properly admitted, while Dunford J considered it inadmissible but agreed it was insignificant and applied the proviso. The refusal to admit the not-guilty finding against the complainant's father and the exclusion of parts of the gynaecological evidence each involved no error or no material prejudice.

Sentence: The Court granted leave to appeal against sentence and upheld the appeal, finding the total of the original sentences manifestly excessive. A new sentence was imposed, restructuring the terms across the thirteen counts. The appeal against conviction was dismissed unanimously.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence upheld; original sentence quashed
  • New sentences imposed across counts 1 to 14, comprising a combination of fixed terms and minimum/additional terms, commencing 22 August 1997, with various cumulative and concurrent arrangements as detailed in Mason P's judgment

Key Takeaways

  • Under the coincidence and tendency rules in ss 97 and 98 of the Evidence Act 1995, evidence from multiple witnesses describing similar sexual practices with a defendant can be admissible where it carries significant probative value, provided the possibility of concoction between witnesses is not a real one.
  • The Hoch v The Queen principle requires exclusion of similar fact evidence where concoction is a genuine possibility, but the Court confirmed that the possibility must be real and not merely theoretical before it renders otherwise cogent evidence inadmissible.
  • Absence of a jury warning on delayed complaint does not automatically produce a miscarriage of justice, particularly where no such direction was sought at trial.
  • Admitting inadmissible evidence will not always result in a conviction being set aside: where the evidence was peripheral and the remaining evidence overwhelming, the Court applied the proviso and declined to disturb the verdicts.
  • In dismissing the conviction appeal while reducing the sentence, the Court of Criminal Appeal confirmed that an aggregate sentence may be manifestly excessive even where each individual term is not, warranting resentencing to impose a revised and proportionate total.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 61J, 66C(2), 405B
- Evidence Act 1995 (NSW), including ss 97, 98
- Criminal Appeal Act 1912 (NSW)

Cases:
- Hoch v The Queen (1988) 165 CLR 292
- R v Johnston (1998) 45 NSWLR 362
- Longman v The Queen (1989) 168 CLR 79
- R v Pfennig (1995) 182 CLR 461
- Robertson (1997) 91 A Crim R 388
- BRS v The Queen (1997) 191 CLR 275
- R v BD (1997) 94 A Crim R 131
- Gipp v The Queen (1988) 194 CLR 106
- H (1994) 74 A Crim R 41