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2
Court of Criminal Appeal 25 August 2000

R v Dyers

[2000] NSWCCA 335

Sexual offences
CRIMINAL LAW & PROCEDURE APPEAL AGAINST CONVICTION AND SENTENCE DELAY IN MAKING COMPLAINT

Citation: R v Dyers [2000] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 25 August 2000
Judge(s): Stein JA, Smart AJ, Ireland AJ

Background

The appellant was convicted in the Sydney District Court of indecently assaulting a 13-year-old girl during a private session conducted within a communications organisation called Kenja, of which he was a senior figure. The offence was alleged to have occurred in July 1988, during what the organisation described as an "energy conversion" session. The complainant gave evidence that the appellant instructed her to remove clothing and then touched her breasts.

The complainant did not disclose the assault until 1993, approximately five years after the incident and around eleven years before the trial. She said the appellant had instructed her not to discuss what occurred in energy conversion sessions with anyone. The appellant denied the allegations, making an unsworn dock statement in which he disputed knowing the complainant well enough to have conducted private sessions with her.

Following conviction on 16 July 1999, the appellant was sentenced to 12 months imprisonment with a non-parole period of four months. He sought both to overturn the conviction and to challenge the severity of the sentence.

  • Whether the trial miscarried because proceedings became an uncontrolled inquiry into the Kenja organisation and included prejudicial references to Scientology
  • Whether the jury's guilty verdict was unreasonable or unsupported by the evidence, particularly given the significant delay in complaint
  • Whether the trial judge's directions to the jury on the complainant's delay in reporting the assault were adequate
  • Whether the refusal to permit defence counsel to use visual aids (placards) during closing address caused a miscarriage of justice
  • Whether the sentence of 12 months imprisonment was manifestly excessive in light of the appellant's age, health, and personal circumstances

Decision

Ground 1 (trial miscarriage): The Court of Criminal Appeal found that references to Scientology arose only twice during the evidence and not at all in the summing-up. The trial judge had directed the jury that Kenja was not on trial, and the Court was satisfied that no miscarriage resulted from the conduct of the trial on this basis.

Ground 2 (unreasonable verdict): The Court rejected the submission that the verdict was unreasonable. The delay in complaint was explained by the complainant's evidence that she had been directed by the appellant not to discuss what occurred in sessions. The Court found it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Jury directions: The Court found no material error in the trial judge's directions, including those dealing with the complainant's delayed complaint. The directions given were considered adequate in the circumstances.

Visual aids: The refusal to permit defence counsel to use placards during closing address did not, in the Court's view, occasion any miscarriage of justice. This ground was not made out.

Sentence: The Court found no error in the sentencing process itself but accepted more recent medical material placed before it on appeal. On the basis of that material, the Court concluded the appellant should not be returned to custody. The sentence was quashed and replaced with the same 12-month term, suspended pursuant to statute upon the appellant entering into a good behaviour bond.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against severity of sentence granted
  • Appeal against severity of sentence upheld; original sentence quashed
  • Appellant re-sentenced to 12 months imprisonment deemed to have commenced 4 July 2000 and expiring 3 July 2001
  • Sentence suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, subject to the appellant entering into a good behaviour bond for the remainder of the term

Key Takeaways

  • A significant delay between an alleged offence and a complaint does not, of itself, render a conviction unreasonable where the jury has a credible explanation for that delay, such as instructions from the accused not to disclose what occurred.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that passing references to a potentially prejudicial matter (here, Scientology) will not vitiate a trial where the trial judge has given appropriate corrective directions and the references did not feature in the summing-up.
  • No error was established in the trial judge's directions regarding delayed complaint, reinforcing that such directions must be assessed in the context of all the evidence and the specific explanation advanced.
  • Refusing defence counsel the use of visual aids during closing address does not automatically cause a miscarriage of justice; the appellant must demonstrate actual prejudice flowing from the refusal.
  • Post-sentence medical evidence, not available to the sentencing court, can provide a basis for appellate intervention on sentence even where the original sentencing process contained no identifiable error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Longman v The Queen (1989) 168 CLR 79
- R v Gordon and Gordon (1991) 57 ACrimR 413
- R v Blade (NSWCCA, 1 May 1991, unreported)
- R v DJK (1997) 96 ACrimR 443
- R v Johnston (1998) 45 NSWLR 362
- Jones v Dunkel (1959) 101 CLR 298
- R v Taufua [1999] NSWCCA 205
- R v Kneebone [1999] NSWCCA 279
- RPS v R 168 ALR 729
- Richardson v R (1974) 131 CLR 116
- R v Apostilides (1984) 154 CLR 563