Citation: Regina v TA [2003] NSWCCA 191
Court: New South Wales Court of Criminal Appeal
Date: 25 July 2003
Judge(s): Spigelman CJ, Dowd J, Adams J
Background
The appellant was convicted after trial of sexual intercourse without consent (cunnilingus), administering a stupefying drug with intent to commit an indecent assault, and indecent assault. The offences were recorded on a portable video camera, footage that police discovered after the appellant's arrest. The prosecution relied on the recording to establish the sexual conduct, the drug administration, and its effect on the complainant.
The complainant had no memory of the events because she had been drugged. During trial, the defence sought to cross-examine her about her opinion of what she appeared to be doing on the video, including whether she appeared to be consenting. The trial judge, Sperling J, rejected that line of questioning.
The appellant challenged both his conviction and his sentence before the Court of Criminal Appeal. On sentence, the original structure imposed an eight-year term for the drugging offence that effectively absorbed the penalties for the other counts, which the Court found did not comply with established sentencing principles.
Legal Issues
- Whether the trial judge erred in rejecting cross-examination inviting the complainant to express an opinion about her apparent state of mind as depicted on the video recording
- Whether such opinion evidence was admissible under ss 78 or 79 of the Evidence Act 1995
- Whether the cross-examination was in any event properly refused as unduly harassing, oppressive, or offensive under s 41 of the Evidence Act 1995
- Whether the original sentence structure, which caused the drugging offence term to subsume the other counts, complied with the principles in Pearce v The Queen
- Whether special circumstances existed to justify a departure from the standard non-parole period
Decision
The Court dismissed the conviction appeal. Spigelman CJ held that the complainant's opinion about what appeared on the video was entirely irrelevant. Her perception of the recorded events was not a fact in issue, and there was no rational relationship between her viewing of the footage and the question of consent. The complainant was in no better position than the jury to assess what was observable on the video, a situation the Chief Justice compared directly to police witnesses impermissibly offering opinions about identity from photographs, as considered in Smith v The Queen.
Even if some relevance could be assumed, Spigelman CJ held that the cross-examination was independently liable to be rejected under s 41 of the Evidence Act 1995 as unduly harassing, offensive, and oppressive. Requiring a complainant with no material recollection of the events to interpret footage of her own sexual assault was, on any objective analysis, highly distressing. The Court noted that the probative force of such questioning was so slight that even a small degree of oppression would have been sufficient to enliven the discretion under s 41.
On sentence, the Court granted leave to appeal and allowed it. Adams J found that the sentencing structure was flawed because the term imposed on the drugging count effectively doubled up with and covered the penalties for the sexual intercourse and indecent assault counts. The Court accepted that a substantial accumulation was appropriate given the additional and distinct criminality of each offence, particularly because the drugging offence and the completed sexual offences represented genuinely separate wrongs deserving separate punishment. The overall effective term of around eight years was regarded as no more than appropriate. The Court declined to find special circumstances warranting a reduced non-parole period.
Orders Made
- Leave to appeal granted and appeal allowed on sentence
- Sentences quashed and substituted as follows:
- Count 2 (administering stupefying drug): five years' imprisonment commencing 16 February 2000, expiring 15 February 2005
- Count 1 (sexual intercourse without consent): four years' imprisonment commencing 16 February 2004, expiring 15 February 2008
- Count 3 (indecent assault): six months' imprisonment commencing 16 February 2004, expiring 15 August 2004
- Eligible for release to parole on 15 February 2006
- Conviction appeal dismissed (implicit from the judgment)
Key Takeaways
- A complainant who has no memory of events recorded on video is in no better position than the jury to assess what is observable on that footage; her opinion about her apparent state of mind or consent from viewing the recording is not admissible opinion evidence under the Evidence Act 1995.
- Under s 41 of the Evidence Act 1995, courts have a clear role in protecting complainants from cross-examination that is unduly harassing, offensive, or oppressive, particularly in sexual assault proceedings, and that protection is consistent with the requirements of a fair trial.
- Where probative force of a line of questioning is very slight, only a small degree of harassment or oppression is needed to justify rejection under s 41.
- Sentencing courts must structure cumulative sentences so that each term reflects the distinct criminality of each offence; a sentence for one count should not simply absorb the penalties for other substantive counts in a way that fails to reflect their additional criminality, as required by Pearce v The Queen.
- Relatively young age, a clear prior record, and personal difficulties in custody do not automatically constitute special circumstances justifying a departure from the standard non-parole period calculus under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 41, 78, 79
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases:
- Browne v Dunn (1894) 6 R (HL) 67
- M v The Queen (1994) 181 CLR 487
- Pearce v The Queen (1998) 194 CLR 610
- R v Leung and Wong (1999) 47 NSWLR 405
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50