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9
Court of Criminal Appeal 18 June 2004

R v Milton

[2004] NSWCCA 195

Sexual offences
CRIMINAL LAW: APPEAL AGAINST CONVICTION TWO COMPLAINANTS

Citation: Milton v R [2004] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 18 June 2004
Judge(s): Tobias JA, Hidden J, Greg James J

Background

The appellant was convicted in the Sydney District Court on nine counts arising from sexual offences against two male complainants, both in their early teenage years at the relevant times. The first five counts related to one complainant and covered offences alleged to have occurred between late 1987 and early 1990. The remaining four counts related to a second complainant and arose from events in 1990 at the appellant's home in South Penrith.

Following conviction on all counts, the appellant was sentenced to an aggregate term of sixteen years imprisonment with a non-parole period of twelve years. He appealed against the convictions and sought leave to appeal against the sentences.

The two principal areas of contest on appeal were the admissibility of each complainant's evidence as tendency evidence in the case of the other, and the adequacy of the trial judge's directions to the jury about confirmatory evidence. The sentence appeal raised questions about compliance with the principle in Pearce v The Queen and whether special circumstances warranted a reduction in the non-parole period.

  • Whether the evidence of each complainant was admissible in the trial relating to the other as tendency evidence
  • Whether other evidence in the trial was capable of serving as confirmatory evidence of the complainants' accounts
  • Whether the trial judge's directions to the jury on the use of confirmatory evidence were adequate
  • Whether the sentence on one count complied with the principle established in Pearce v The Queen
  • Whether the sentencing judge erred by declining to find special circumstances justifying a non-parole period below the standard statutory ratio

Decision

On the conviction appeal, the Court found no error in the admission of each complainant's evidence as tendency evidence in the proceedings relating to the other. The two accounts displayed sufficient similarities in the appellant's conduct to justify admission on that basis.

The Court also addressed confirmatory evidence. Corroboration (independent evidence supporting a complainant's account) was available from other witnesses, including one who gave evidence about observations he had made at the appellant's home and about the supply of alcohol and drugs to the complainants. The Court found that the trial judge's directions to the jury about how to use that confirmatory evidence were adequate in the circumstances, and dismissed the conviction appeal.

On the sentence appeal, the Court considered whether one sentence had been structured in a way that failed to comply with Pearce v The Queen, which requires that when sentences are accumulated, each individual sentence must properly reflect the criminality of the particular offence. The Court found that the sentencing judge's approach was consistent with that principle, even if the reasoning required some analysis to confirm.

On the question of special circumstances, the appellant pointed to his age, absence of prior convictions, vulnerability in custody due to the nature of the offences, and the length of time he would serve before becoming eligible for parole. The Court accepted that such factors could, in an appropriate case, support a finding of special circumstances, but held that the sentencing judge had considered them and was entitled to conclude they did not warrant a departure from the standard ratio. The four-year parole eligibility period was noted as adequate to assist re-entry into society. Leave to appeal against sentence was granted, but the appeal was dismissed.

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 evidence from one complainant in a multi-complainant sexual offences trial can be admitted as tendency evidence in the case of the other complainant, provided the conduct displays sufficient similarity to justify that use.
  • Corroborative or confirmatory evidence does not need to be direct evidence of the offence itself; evidence from witnesses about related conduct, circumstances, and opportunity can satisfy that function.
  • Adequate jury directions on confirmatory evidence remain an important safeguard, and their adequacy is assessed by reference to the overall directions given rather than by a formulaic checklist.
  • Under Pearce v The Queen, where sentences are accumulated, each individual sentence must properly reflect the gravity of the specific offence it addresses, and a sentencing judge's reasoning must demonstrate compliance with that requirement.
  • A sentencing court's refusal to find special circumstances is a discretionary judgment; the Court of Criminal Appeal will not lightly interfere with it, particularly where the standard parole period is assessed as sufficient to address reintegration needs.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- BRS v The Queen (1977) 191 CLR 275
- Hoch v The Queen (1988) 165 CLR 292
- Eade v The King (1924) 34 CLR 155
- The King v Baskerville [1916] 2 KB 658
- R v Simpson (2001) 53 NSWLR 704
- R v Ellis [2003] NSWCCA 319
- R v Connors [2000] NSWCCA 470
- R v Tubou [2001] NSWCCA 243
- R v Guldur (1986) 8 NSWLR 12
- R v Kalajzich & Anor (1989) 39 ACrimR 415
- R v Verma (1987) 30 ACrimR 441