Citation: Diaz v R [2004] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 26 July 2004
Judges: Spigelman CJ, Hidden J, Buddin J
Background
The appellant was tried jointly in the District Court with a co-offender on charges arising from a sexual assault at Darling Harbour in December 2000. The complainant was a 15-year-old girl who had been drinking with both men and became heavily intoxicated. She gave evidence that the appellant had forcible intercourse with her while the co-offender held her down, and that the co-offender then assaulted her in turn.
The appellant did not give evidence at trial. In a recorded police interview, he stated he was drunk at the relevant time and had no recollection of the period during which the assaults were alleged to have occurred. Both the appellant and the co-offender accepted that sexual intercourse had occurred; the live issues were whether the complainant had consented and, if not, whether the men were aware of her non-consent.
The jury convicted the appellant of sexual intercourse without consent in circumstances of aggravation (being in company). He was sentenced to eight years' imprisonment with a non-parole period of five years and eleven months, effectively six years accounting for pre-sentence custody. He appealed against conviction and sought leave to appeal against sentence.
Legal Issues
- Whether the trial judge erred by failing to give an adequate direction under s 165 of the Evidence Act 1995 about the potential unreliability of the complainant's evidence due to her intoxication.
- Whether the trial judge's direction about the appellant's own intoxication, as it bore on his awareness of the complainant's non-consent, was adequate.
- Whether the appellant's sentence was disproportionate compared with that imposed on the co-offender (the parity ground).
- Whether the trial judge ought to have found "special circumstances" to alter the ratio between the head sentence and the non-parole period.
Decision
Complainant's intoxication: The Court held that no further warning was required beyond what the trial judge had already given. The effect of intoxication on a witness's reliability is a matter well within ordinary juror experience. The trial judge had made plain that the Crown case depended entirely on the complainant's reliability, and gave a corroboration warning even though none was legally required. Relying on R v Baartman [2000] NSWCCA 298, the Court confirmed that s 165 warnings are directed at situations where juries need to be equipped with accumulated court experience or where there is a risk of overestimating probative value, neither of which was established here.
Appellant's intoxication direction: The trial judge's direction on this point was brief, but the Court found it adequate in context. The direction correctly identified intoxication as relevant to whether the appellant knew the complainant was not consenting, and was assessed at the relevant time of the offence. Counsel for the co-offender had raised the same point at trial, so the issue had been agitated. The Court noted that more might have been said, but what was said was sufficient to guide the jury and adequately put the defence case.
Parity with the co-offender's sentence: The Court addressed a factual clarification raised by Spigelman CJ: the appellant had left the scene before the co-offender committed his separate assault, and the circumstances of aggravation differed between them (being in company for the appellant; the victim being under 16 for the co-offender). The Court found this distinction did not displace the conclusion that there was no unjustifiable disparity in the sentences.
Special circumstances: The Court declined to interfere with the trial judge's refusal to find special circumstances. While the appellant would need significant support on release, the sentence already provided two years of parole eligibility. The non-parole period also needed to reflect retribution and deterrence in what was a serious case.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted; appeal against sentence dismissed.
Key Takeaways
- A direction about a complainant's intoxication and its effect on reliability will not ordinarily be required under s 165 of the Evidence Act 1995 where that effect is a matter well within ordinary juror experience, particularly where the trial judge has already directed the jury on the central importance of that witness's credibility.
- Brief jury directions on an accused's intoxication may be adequate where counsel addressed the issue in closing, the direction correctly identified the legal relevance of intoxication, and the jury had sufficient guidance to resolve the question.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that factual differences between co-offenders (including differing circumstances of aggravation) can justify what might otherwise appear to be sentencing disparity.
- A sentencing court's refusal to find special circumstances will not be lightly disturbed on appeal; the appellate court will not intervene merely because the offender will require assistance on re-entering society if the sentence structure already provides a meaningful parole period.
- Under s 165 of the Evidence Act 1995, the need for a warning typically arises because the jury requires the benefit of accumulated court experience, or because there is a risk the jury will overestimate probative value, not simply because the evidence could theoretically be unreliable.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 164, 165
- Crimes Act 1900 (NSW), s 61J
Cases
- R v Baartman [2000] NSWCCA 298
- R v Harbulot [2003] NSWCCA 141
- R v Wilson & Ors (1986) 22 A Crim R 131
- R v Simpson (2001) 53 NSWLR 704
- R v Fidow [2004] NSWCCA 172