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Court of Criminal Appeal 1 February 2002

R. v. G.S.

[2002] NSWCCA 4

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES APPEAL AGAINST CONVICTION CRIMINAL LAW SEXUAL OFFENCES PROSECUTION FOR

Citation: R v GS [2002] NSWCCA 4
Court: Court of Criminal Appeal, New South Wales
Date: 1 February 2002
Judges: Powell JA, Sully J, Bell J

Background

The appellant stood trial in the District Court on seven counts of sexual offences allegedly committed against his daughter over a period spanning from 1974 to 1988. The offences included acts of indecency (when the complainant was aged as young as five or six) and carnal knowledge. The jury returned guilty verdicts on six counts and a not guilty verdict on one count.

The appellant appealed against the six convictions, raising questions about the consistency of the verdicts and about whether the prosecution had been properly authorised before it commenced.

The prosecution of the carnal knowledge counts required the sanction of the Attorney-General under s 78F of the Crimes Act 1900. The Attorney-General had, by a Gazette order in 1987, delegated the power to give that sanction to the Director of Public Prosecutions (DPP). The DPP then executed an instrument of sanction in November 1997.

  • Whether the six guilty verdicts were unreasonable, or inconsistent with the jury's verdict of not guilty on the seventh count
  • Whether the prosecution required the Attorney-General's sanction under s 78F of the Crimes Act 1900 before it could be commenced, and at what point that sanction had to be in place
  • Whether the Attorney-General's 1987 delegation of the sanctioning power to the DPP remained effective after the Attorney-General who made the order had ceased to hold office
  • Whether the DPP's sanction, given in 1997, was a valid exercise of the delegated power

Decision

On the question of verdict consistency, the Court rejected the appellant's argument. The mere fact that a jury acquits on one count while convicting on others does not, of itself, make the convictions unreasonable. The Court applied established principles requiring an examination of whether the guilty verdicts, considered in light of all the evidence, were ones that a properly instructed jury acting reasonably could have returned.

On the sanction requirement, the Court examined the timing question: specifically, whether the Attorney-General's sanction needed to be obtained before proceedings were commenced, or whether it could be given at some later point. The Court concluded that the sanction did need to be in place before the prosecution was commenced, but that the DPP's 1997 instrument satisfied that requirement in relation to the relevant counts.

Regarding the delegation's continuing validity, the Court held that the 1987 Gazette order remained in force notwithstanding that the Attorney-General who made it had long since left office. Drawing on the Interpretation Act 1987 and a line of authority including the Federal Court's decision in Aban v Minister for Immigration, Local Government and Ethnic Affairs, the Court concluded that a delegation instrument does not lapse merely because the delegator ceases to hold the relevant office. The delegation continued to authorise the DPP to give the required sanction.

All three judges agreed that none of the grounds of appeal were made out, and the appeal was dismissed unanimously.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • An acquittal on one count in a multi-count sexual offence trial does not automatically render guilty verdicts on other counts unreasonable or legally inconsistent. Each count must be assessed on its own evidentiary basis.
  • Under s 78F of the Crimes Act 1900, the Attorney-General's sanction (or an authorised substitute) must be obtained before a prosecution for a carnal knowledge offence is commenced.
  • A Gazette order delegating the Attorney-General's sanctioning power to the DPP under s 11(2) of the Director of Public Prosecutions Act 1986 does not cease to operate simply because the Attorney-General who made the order has since left office. The Interpretation Act 1987 (ss 48 and 49) and applicable common law principles support the ongoing validity of such an instrument.
  • The DPP's exercise of a delegated sanctioning power is, by force of s 49(6) of the Interpretation Act 1987, taken to be an exercise of the power by the delegator.
  • Several grounds of appeal were abandoned at the hearing; the Court noted it would have rejected each of them in any event, though its reasons on those grounds were not elaborated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 73, 76, 78A, 78B, 78F
- Crimes (Sexual Assault) Amendment Act 1981 (NSW)
- Crimes (Child Assault) Amendment Act 1985 (NSW)
- Director of Public Prosecutions Act 1986 (NSW), ss 4, 11
- Interpretation Act 1987 (NSW), ss 48, 49

Cases:
- Aban v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 93
- Benwell v Gottwald [1978] VR 253
- Dore v Gormley [1963] QWN 38
- Kelly v Watson (1985) 10 FCR 305
- Larcher v Dunleavy (No 2) [1938] AR (NSW) 548
- Mackenzie v The Queen (1996) 190 CLR 348
- MRW (1995) 113 ACrimR 308
- R v ATM [2000] NSWCCA 475
- R v Davies (1985) 3 NSWLR 276
- R v Markuleski [2001] NSWCCA 290
- R v RAT (2000) 111 ACrimR 360
- R v Robinson (2000) 111 ACrimR 388
- Seaton v Chen Fong Yan [1908] QSR 195
- Wood v Pfeiffer [1925] VLR 167