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Court of Criminal Appeal 27 October 2000

REGINA v. QUINN

[2000] NSWCCA 446

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT APPEAL AGAINST CONVICTION UNREPRESENTED APPELLANT IDENTIFICATION SUFFICIENCY OF EVIDENCE

Citation: Regina v Quinn [2000] NSWCCA 446
Court: Court of Criminal Appeal, New South Wales
Date: 27 October 2000
Judge(s): Fitzgerald JA, Newman J, Greg James J

Background

The appellant was convicted in the District Court at Penrith of sexual intercourse without consent in circumstances of aggravation. The complainant, a 15-year-old girl, alleged that the appellant had followed her into a toilet on a train platform at Lithgow, threatened her, and digitally penetrated her. She fled the toilet and identified him to nearby passengers and railway personnel as he left the scene.

The appellant had denied the offence to police, asserting mistaken identification. He was represented at trial but appeared unrepresented on the conviction appeal, with counsel appearing separately on the sentence application. The sentencing judge imposed a minimum term of nine years' penal servitude with an additional term of two years.

  • Whether fresh evidence in the form of an alleged letter from the complainant was admissible and sufficient to overturn the conviction
  • Whether the absence of an identification parade gave rise to error at trial
  • Whether the appellant's legal representation at trial was inadequate
  • Whether there was sufficient evidence to support the conviction
  • Whether a complaint of judicial bias had any substance
  • Whether the sentence imposed was manifestly excessive

Decision

Fresh evidence: The appellant sought to rely on a letter he claimed the complainant had sent him after the trial, suggesting she had fabricated her evidence to obtain victims' compensation. The Crown filed an affidavit from the complainant denying authorship, and a police document examiner expressed the opinion that she had not written the letter. Applying the principles in Mickelberg (1989) 167 CLR 259, the Court found the fresh evidence lacked cogency and there was insufficient explanation for why relevant factual material had not been raised at trial. The application failed.

Identification and representation: The trial judge had conducted an inquiry into whether identification evidence should have been admitted in the absence of a parade and ruled in favour of admission. The Court found no error in that ruling. The various complaints about counsel's conduct, including that counsel was distracted by the birth of a child during the trial, were assessed against established principles and found to disclose no adequate basis for complaint. Other factual assertions raised by the appellant, including claims about police conduct and missing witnesses, were unsupported by sworn evidence and could not be properly considered.

Conviction appeal dismissed: The Court was satisfied that sufficient evidence existed to support the conviction and that none of the grounds raised, including the complaint of bias, had substance. The appeal against conviction was dismissed.

Sentence: The Court upheld the appeal against sentence, finding the original sentence manifestly excessive. Greg James J noted that a minimum term of nine years sat well towards the top of the range shown by Judicial Commission statistics, notwithstanding that the circumstances of aggravation available under the relevant provision encompassed offences of considerably greater culpability. Relevant factors included that the complainant was only a few months under 16, that the violence was limited in degree, and that the penetration was digital rather than penile. The Court resentenced the appellant under the Crimes (Sentencing Procedure) Act 1999 to a total term of nine years with a non-parole period of seven years, finding no special circumstances to justify departing from the statutory three-quarters rule.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted and the appeal against sentence upheld
  • Sentence quashed and replaced with a term of imprisonment of nine years commencing 14 May 1998 and expiring 13 May 2007
  • Non-parole period of seven years, expiring 13 May 2005
  • Earliest eligible release date: 13 May 2005

Key Takeaways

  • Fresh evidence on a criminal appeal must satisfy the cogency requirements set out in Mickelberg; an uncorroborated letter of disputed authorship, contradicted by expert handwriting evidence and the deponent's own sworn denial, will not meet that threshold.
  • No error arose from the absence of an identification parade where the trial judge had conducted a proper inquiry into the matter and ruled in favour of admission.
  • A complaint of inadequate legal representation requires a factual basis grounded in sworn evidence; generalised assertions about counsel's distractions or omissions, unsupported by evidence, will not establish a ground of appeal.
  • In dismissing all grounds of the conviction appeal, the Court confirmed that sufficient evidence from the complainant's identification of the appellant at the scene supported the jury's verdict.
  • Resentencing under the Crimes (Sentencing Procedure) Act 1999 required the Court of Criminal Appeal to apply the statutory non-parole period of not less than three-quarters of the head sentence in the absence of special circumstances, and Judicial Commission sentencing statistics remained a relevant, if not determinative, reference point when assessing whether a sentence was manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912
- Crimes (Sentencing Procedure) Act 1999, s 44(2)

Cases:
- The Queen v Mickelberg (1989) 167 CLR 259
- Regina v Birks (1990) 19 NSWLR 677
- Regina v Ignjatic (1993) 68 A Crim R 333
- Fleming (1998) 158 ALR 379
- Gipp (1998) 194 CLR 106
- M (1994) 181 CLR 487
- Jones (1997) 149 ALR 598
- Siganto (1999) 159 ALR 94
- Regina v Carrion [2000] NSWCCA 191