Citation: [2002] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 26 June 2002
Judge(s): Sheller JA, Barr J, Greg James J (unanimous)
Background
The appellant was convicted in the District Court of New South Wales on 10 counts of sexual intercourse without consent and aggravated sexual intercourse without consent, involving four separate complainants. The offences involved attacks on women in ground-floor or first-floor units in Campsie, in circumstances where each complainant was alone or without a male partner at home. The attacker was consistently described as an Asian man carrying a knife who engaged each complainant in personal conversation.
The defence did not dispute that sexual assaults had occurred but contended that the appellant was not the assailant in any of the incidents. The Crown relied on a combination of identification evidence, DNA evidence, and the striking similarities across all four incidents to establish that one person was responsible for all the attacks.
The appellant was sentenced to a total of 27 years imprisonment with a non-parole period of 20 years, with portions of the sentence running cumulatively. He appealed both his convictions and his sentence.
Legal Issues
- Whether the trial judge's directions on coincidence evidence (that is, directions explaining how the jury could use the similarities between the offences across counts) were adequate
- Whether the cumulative sentences imposed, particularly on counts relating to the 12-year-old complainant, produced a manifestly excessive total sentence
Decision
On coincidence evidence directions: The Court considered whether the trial judge's directions adequately explained to the jury how to use the coincidence evidence. Only one complainant (those corresponding to counts 8 to 10) made a direct photographic identification of the appellant. For the remaining complainants, identification rested on circumstantial evidence: the DNA profile, the similar description of the attacker, and the common features of the attacks. The DNA evidence was powerful. Expert evidence placed the probability of another person sharing the same DNA profile at approximately one in 8.6 billion, described as a conservative and favourable-to-the-accused estimate.
Before the summing up, the trial judge consulted both the Crown and defence counsel about appropriate directions. Both counsel agreed the draft directions were satisfactory, and no objection was raised at trial to the directions as ultimately given. The Court of Criminal Appeal applied the longstanding principle (sometimes called "Rule 4") that an appellate court will be slow to find that directions accepted as appropriate at trial constituted a miscarriage of justice on appeal. The Court found the directions were adequate to the circumstances of the case and that no substantial miscarriage of justice arose, applying the test from Festa v The Queen (2001) 75 ALJR 291.
On sentence: The Court accepted that the cumulative structure of the sentences produced a heavy overall term. However, it confirmed there is no binding rule requiring concurrent sentences simply because multiple offences arose from the same incident. The sentencing judge was required to take the single-incident nature into account when exercising the cumulation discretion, and the proper test on appeal remained whether the total sentence was manifestly excessive. The Court found the individual sentences for the offences against the 12-year-old complainant were proportionate to the serious criminality involved, and the overall total of 27 years was not manifestly excessive. The Court also noted that by making these sentences wholly concurrent with sentences already imposed in a separate earlier proceeding, the sentencing judge had demonstrated leniency rather than error.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that where both counsel agree at trial that directions are appropriate and raise no objection, appellate courts will apply significant caution before finding those directions constituted a miscarriage of justice on appeal.
- DNA evidence showing a profile shared by approximately one in 8.6 billion people was treated as compelling circumstantial evidence of identification across multiple counts, even where direct identification was available on only some counts.
- Coincidence or similarity evidence that is admissible on some counts can, in appropriate circumstances, be admissible across all counts on an indictment, including those where identification is otherwise entirely circumstantial.
- No binding rule requires a sentencing court to impose concurrent sentences for offences arising from the same incident. The sentencing court retains a discretion to impose cumulative sentences, provided it has regard to the single-incident context and the overall sentence is not manifestly excessive.
- In dismissing the sentence appeal, the Court observed that concurrent operation of these sentences with those from a prior proceeding represented a degree of leniency to the appellant rather than any sentencing error.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61J(1)
- Evidence Act 1995 (NSW), s 165(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- G [2000] NSWCCA 198
- Shepherd v The Queen (1990) 170 CLR 573
- Festa v The Queen (2001) 75 ALJR 291