AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 3 September 2004

Regina v Villar; Regina v Zugecic

[2004] NSWCCA 302

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW AND PROCEDURE JOINT TRIAL OF OFFENDERS' INDICTMENT JOINT AND SEVERAL CONSTRUCTION INADMISSIBLE STATEMENTS BY CO SCOPE OF "SEXUAL REPUTATION"

Citation: Regina v Villar; Regina v Zugecic [2004] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 3 September 2004
Judge(s): Grove J (with Simpson J and Howie J agreeing)

Background

Two appellants were jointly tried in the District Court before Coleman DCJ and a jury at Campbelltown on a lengthy indictment arising from events at a residential unit in Canley Vale over the night of 24 to 25 May 2001. A third co-accused was tried alongside them but was acquitted of all charges. The offences alleged included kidnapping and multiple counts of sexual intercourse without consent, some charged with the aggravating circumstance of being "in company."

The complainant was a woman who had known one appellant for many years and had limited prior contact with the other. She met one appellant at a shopping centre and was taken with three men to the unit, where the alleged offending occurred overnight.

The jury returned guilty verdicts against both appellants on kidnapping and multiple sexual offences but acquitted the third co-accused entirely. Both appellants appealed to the Court of Criminal Appeal against their convictions and sentences.

The appeals raised a number of distinct legal questions:

  • Whether the indictment, which charged multiple accused jointly, was to be read as charging them jointly or severally, and whether the jury was entitled to return split verdicts on count 1
  • Whether statements made by one co-accused, which were inadmissible against the other, could be rendered admissible at the behest of that other accused
  • Whether cross-examination of the complainant on matters going to "sexual reputation" was properly restricted under the relevant provisions of the Crimes Act
  • Whether the evidence was sufficient to support the "in company" aggravating circumstance for the sexual offence counts
  • Whether certain slips of language in the trial judge's charge to the jury caused any actual miscarriage of justice
  • Whether the judge's factual findings at sentence had to be identical to the jury's implicit findings in returning guilty verdicts
  • Whether the Crown Prosecutor's comment on one appellant's failure to give evidence (in circumstances where the other appellant had given evidence) amounted to a miscarriage of justice
  • Whether the sentencing structure imposed in the District Court, which produced extremely long potential parole periods, was appropriate and warranted resentencing

Decision

The Court dismissed both appeals against conviction, finding no ground made out that warranted setting aside the verdicts. The Court accepted that the indictment was properly read as charging the appellants jointly and severally on count 1, and that the jury was entitled to return split verdicts once the trial judge clarified this, with no objection from counsel at the time. The evidence was sufficient to support the "in company" aggravation.

On the question of the inadmissible statements of a co-accused, the Court held that such statements could not be made admissible simply because the other accused sought to rely on them. Restrictions on cross-examination of the complainant about her sexual reputation were also upheld. Minor verbal slips in the summing-up were found to be inconsequential and incapable of producing a miscarriage. The Crown Prosecutor's comment on one appellant's silence, made in the specific context where the other appellant had given evidence, was examined but found not to have produced a miscarriage in the circumstances.

The Court further confirmed that a sentencing judge's factual findings do not need to be identical to the jury's implicit findings, provided the judge does not proceed inconsistently with the jury's verdicts. This principle is relevant where a judge must assess the precise circumstances of offending for sentencing purposes after a general verdict of guilty.

Both appeals against sentence succeeded. The District Court's original sentencing structure had produced an outcome in which the potential parole periods were excessively and disproportionately long. The Court of Criminal Appeal resentenced each appellant to a single overarching effective sentence of 12 years imprisonment with a non-parole period of 9 years, backdated to commence from the date of original sentencing in October 2002.

Orders Made

  • Both appeals against conviction dismissed.
  • Villar granted leave to appeal against sentence; appeal allowed; District Court sentences quashed and replaced:
  • Counts 9 and 11: 3 years imprisonment, concurrent, commencing 15 October 2002
  • Count 22: 7 years imprisonment, commencing 15 October 2002
  • Count 1: 5 years imprisonment, commencing 15 October 2002
  • Count 17: 12 years imprisonment with a non-parole period of 9 years, commencing 15 October 2002 (non-parole period expires 14 October 2011)
  • No separate non-parole periods set for counts 9, 11, 22, and 1, as those terms fall wholly within the non-parole period on count 17
  • Zugecic granted leave to appeal against sentence; appeal allowed; District Court sentences quashed and replaced:
  • Counts 7 and 10: 3 years imprisonment, concurrent, commencing 15 October 2002
  • Counts 4 and 8: 7 years imprisonment, concurrent, commencing 15 October 2002
  • Count 1: 5 years imprisonment, commencing 15 October 2002
  • Count 18: 12 years imprisonment with a non-parole period of 9 years, commencing 15 October 2002 (non-parole period expires 14 October 2011)
  • No separate non-parole periods set for counts 7, 10, 4, 8, and 1
  • For each appellant, 14 October 2011 specified as the earliest date of eligibility for consideration of release to parole.

Key Takeaways

  • A co-accused's out-of-court statements that are inadmissible against a second accused do not become admissible merely because that second accused wishes to use them; the rule against admissibility operates regardless of which party seeks to rely on the material.
  • Restrictions on cross-examining a complainant about "sexual reputation" in sexual offence trials apply with full force and are not relaxed simply because the defence considers the material relevant to credit or prior relationship.
  • A sentencing judge's factual findings for sentencing purposes need not align precisely with the jury's implicit factual findings in returning a guilty verdict, provided the judge does not proceed on a basis inconsistent with those verdicts.
  • Where a Crown Prosecutor comments on one accused's silence in circumstances where a co-accused in the same trial has given evidence, the Court of Criminal Appeal will assess whether a miscarriage actually resulted, rather than treating the comment as automatically fatal to the conviction.
  • A sentencing structure that produces disproportionately long potential parole periods may itself justify resentencing on appeal, even where the individual terms are not otherwise manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 61I, 61J, 90A

Cases:
- Bataillard v The King (1907) 4 CLR 1282
- BRS v The Queen (1997) 191 CLR 275
- Cheung v The Queen (2001) 209 CLR 1
- Crofts v The Queen (1996) 186 CLR 427
- DPP v Merriman [1973] AC 584
- Gregory v The Queen (1983) 151 CLR 566
- R v Berrigan (unreported, NSWCCA, 7 October 1994)
- R v DMC [2002] NSWCCA 513
- R v Fenwick (1953) 54 SR (NSW) 147
- R v Leary (unreported, NSWCCA, 8 October 1993)
- R v Leoni [1999] NSWCCA 14
- R v Markuleski (2001) 52 NSWLR 82
- R v McGarvey (1987) 10 NSWLR 632
- R v Rowe (1996) 89 A Crim R 467
- R v Scognamiglo (1991) 56 A Crim R 81
- Hale's Pleas of the Crown (1778)
- Hawkins' Pleas of the Crown (8th edn)