Citation: Regina v Skene [2000] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 25 August 2000
Judge(s): Meagher JA, Sperling J, Adams J
Background
The appellant was convicted in the District Court by a jury on six counts arising from sexual offences committed against a male child. The offences, committed across two periods in the mid-1990s, included acts of indecency, and homosexual intercourse contrary to the Crimes Act 1900. The appellant was a family friend of the complainant and denied all of the conduct alleged.
At trial, evidence emerged of additional uncharged sexual acts during some of the episodes underlying counts 4 and 5. Defence counsel did not object to this evidence at the time. Instead, counsel used the evidence tactically, cross-examining the complainant to draw out inconsistencies between his trial account and his earlier police statement.
The appellant was sentenced to a minimum term of four years imprisonment with an additional term of one year and four months on count 5, with concurrent fixed terms on the remaining counts. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge misdirected the jury on the permissible use of evidence of uncharged sexual acts
- Whether the jury were inadequately directed on the different categories of evidence and how each could be used
- Whether the summing up was so unbalanced as to unfairly prejudice the appellant
- Whether the sentencing judge was bound to find special circumstances and extend the additional (non-parole) term
- Whether the sentence imposed was manifestly excessive
Decision
Grounds 1 and 2: Directions on uncharged acts and categories of evidence
The trial judge directed the jury that evidence of the uncharged sexual acts was admitted to illuminate the nature of the relationship between the appellant and the complainant, to demonstrate how the appellant regarded and treated the complainant, and to explain the context in which the charged acts occurred. The Court of Criminal Appeal scrutinised the summing up, including a redirection given after counsel raised concerns. Sperling J found that the directions, read as a whole, adequately conveyed the limited purpose for which the uncharged acts evidence could be used.
Even if there were some imperfection in the directions, Sperling J applied the proviso in section 6 of the Criminal Appeal Act 1912. He concluded that no substantial miscarriage of justice had occurred because the uncharged acts evidence was, in any event, properly before the jury, and because defence counsel had made a deliberate tactical choice to use that evidence rather than challenge its admission. That tactical decision was central to the court's analysis.
Ground 3: Balance of the summing up
The Court found nothing in the summing up as a whole, including the redirection, that unfairly prejudiced the appellant. This ground was dismissed without detailed elaboration.
Grounds 4 and 5: Sentence
On the question of special circumstances, Sperling J held that the sentencing judge was not bound to make such a finding merely because the appellant was a first-time custodial prisoner likely to serve his sentence under strict protection conditions. Those factors, while relevant, are not unusual in cases involving sex offenders, and the court detected no demonstrable error in the exercise of the judge's discretion. On manifest excess, Sperling J noted that he would not have imposed a less severe sentence himself had he been resentencing the appellant, and found the sentence was within the proper range.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence allowed
- Appeal against sentence dismissed
Key Takeaways
- Evidence of uncharged sexual acts admitted to show the nature of a relationship and provide context for charged conduct may be used for those limited purposes, provided the jury is appropriately directed on the constraints on its use.
- Where defence counsel makes a deliberate tactical decision not to object to evidence and instead exploits it in cross-examination, that choice weighs against a later appellate complaint about the same evidence.
- The proviso in section 6 of the Criminal Appeal Act 1912 permits a conviction appeal to be dismissed even where a misdirection is established, if no substantial miscarriage of justice has resulted.
- A sentencing court is not bound to find special circumstances simply because an offender is a first-time custodial prisoner, or because the offender is likely to serve time under strict protection conditions. Those matters are relevant considerations, not determinative factors.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that rehabilitation considerations and the hardship of strict protection, while capable of weighing in mitigation, did not compel a finding of special circumstances in the circumstances of this case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 78K
- Criminal Appeal Act 1912 (NSW), s 6 (proviso)
Cases cited
No specific cases were identified in the portions of the judgment provided.