Citation: R v TAB [2002] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 16 July 2002
Judges: Mason P, Sully J, Levine J (Levine J delivering the principal judgment; Mason P and Sully J agreeing)
Background
The appellant, a man born in 1935, was convicted in the District Court at Parramatta on six counts arising from sexual offences committed against his natural daughter over a number of years during her childhood. The offences included indecent assault, carnal knowledge, buggery, and acts of indecency. The complainant was a young child when the offending began and remained under the appellant's control throughout the period in question.
The trial before Bellear DCJ was the third attempt, the previous two having aborted. The parties agreed that rulings made during the aborted second trial would carry over into the third. Several of those rulings became the focus of the appeal.
The appellant was sentenced on the buggery count to a head sentence of seven years with a four-year non-parole period, with all other sentences commencing from the same date. He appealed both his conviction and his sentence.
Legal Issues
- Whether evidence of the relationship between the appellant and the complainant (so-called "relationship evidence") was properly admitted at trial
- Whether complaint evidence was admissible and whether the trial judge's directions on it were adequate
- Whether evidence of the appellant's prior good character was properly dealt with at trial
- Whether the trial judge erred in taking the jury's verdict before responding to a jury question or providing further directions
- Whether the sentence imposed, particularly for the buggery offence, was manifestly excessive
Decision
Conviction appeal
The Court dismissed each ground of the conviction appeal. On relationship evidence, the Court was satisfied that the evidence admitted was properly confined to establishing the relevant context of the offending and was not unfairly prejudicial. The trial judge's rulings, though made in the context of the earlier aborted trial and carried over, were examined and found to be within the proper exercise of judicial discretion.
On the complaint evidence, the Court found no error in its admission. The evidence was relevant to corroborate aspects of the complainant's account and was appropriately explained to the jury by way of direction. Similarly, no error was found in the handling of the appellant's prior good character evidence, which the trial judge addressed in a manner consistent with established principle.
On the jury procedure ground, the Court considered the circumstances in which a verdict was taken before an outstanding jury question was answered or further directions given. The Court examined the applicable principles and concluded that, in the circumstances of this trial, no miscarriage of justice resulted. The overall conduct of the trial did not give rise to any appealable error.
Sentence appeal
The Court granted leave to appeal against sentence but dismissed the appeal. Levine J found that the sentencing judge had properly assessed the objective gravity of the offences, correctly identified the appellant's position of trust as an aggravating feature, and appropriately considered the appellant's subjective circumstances, including his age, health, and the conditions under which he would serve his sentence. The head sentence of seven years for the buggery offence was not considered manifestly excessive given the maximum available penalty and the pattern of prior offending against the complainant.
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 rulings carried over from an aborted trial can properly govern the conduct of a subsequent trial, provided the parties have agreed to that course and no injustice results.
- Relationship evidence in child sexual assault proceedings remains admissible where it is properly confined to establishing relevant context and does not operate as mere propensity evidence.
- Where a jury returns a verdict before an outstanding question is answered or further directions are given, the verdict will not automatically be set aside; the court examines whether a miscarriage of justice actually resulted in the circumstances of the particular trial.
- In sentencing for serious child sexual offences, a position of trust and a pattern of escalating offending over time are significant aggravating factors, and the sentencing court's exercise of discretion will not be disturbed on appeal absent demonstrated error in approach or principle.
- No error was established in the sentencing judge's treatment of the appellant's medical condition; the availability of correctional health services to manage the condition was a relevant and permissible consideration.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61E(2), 73, 76, 79
- Criminal Records Act 1991 (NSW)
- Evidence Act 1995 (NSW)
Cases
- BRS v The Queen (1997) 191 CLR 275
- Gipp v The Queen (1998) 194 CLR 106
- Hoch v The Queen (1988) 165 CLR 292
- KRM v The Queen (2001) 75 ALJR 550
- Papakosmas v The Queen (1999) 196 CLR 297
- Pearce v The Queen (1998) 194 CLR 610
- Ryan v The Queen [2001] HCA 21; (2001) 179 ALR 193
- Saraswati v The Queen (1990-91) 172 CLR 1
- Wilson v The Queen (1970) 123 CLR 334
- Regina v AH (1997) 42 NSWLR 702
- Regina v Beserick (1993) 30 NSWLR 510
- Regina v Dann [2000] NSWCCA 185
- Regina v Marsh [2000] NSWCCA 370
- Regina v McCormack (1995) 85 A Crim R 445
- Regina v MJR [2002] NSWCCA 129
- Regina v Robinson [2000] NSWCA 59
- Regina v Salama [1999] NSWCCA 105
- Regina v Todd (1982) 2 NSWLR 517
- R v Peake (1996) 67 SASR 297
- Various unreported NSWCCA decisions including Regina v Cole, Regina v Hudson, Regina v Wheeler, and others