Citation: R v Selsby, Kenneth William [2004] NSWCCA 381
Court: New South Wales Court of Criminal Appeal
Date: 9 November 2004
Judge(s): Hodgson JA; Hulme J; Hidden J
Background
The appellant was tried and convicted in separate District Court trials in February and March 2003 on charges of sexual offences against two child complainants, a boy (J) and a girl (F), arising from incidents alleged to have occurred in the late 1980s and early 1990s at a residence in Vaucluse. The appellant had been in a romantic relationship with the complainants' mother at the relevant time, and the offending was alleged to have occurred during overnight stays at his home.
The jury convicted the appellant on seven of the eleven counts across the two trials. The convictions included counts of sexual intercourse with both complainants during their childhoods. The complainants' mother was herself separately prosecuted in related proceedings and had already been sentenced at the time of this appeal.
Graham DCJ sentenced the appellant to a total of eight years imprisonment with a non-parole period of five and a half years, with all sentences running concurrently. The appellant appealed against his convictions. The Crown separately appealed against the sentence on grounds of parity with the mother's sentence and manifest inadequacy.
Legal Issues
- Whether evidence of the appellant's assaults on the complainants' mother was relevant and, if so, whether its prejudicial effect outweighed its probative value under s 137 of the Evidence Act 1995
- Whether the Crown was properly permitted to lead evidence of a prior inconsistent statement made by the complainant J
- Whether leave was correctly granted to the Crown to lead evidence of a prior consistent statement made by J, in circumstances where the defence had used a prior inconsistent statement in cross-examination to suggest the assaults did not occur
- Whether the overall sentence was infected by error, including failure to provide reasons for not setting a non-parole period on one count
- Whether the sentence was manifestly inadequate or failed to achieve appropriate parity with the sentence imposed on the complainants' mother
Decision
Conviction appeal
The Court dismissed the conviction appeal. On the question of the assaults on the mother, the Court was satisfied that the evidence was relevant and that its probative value was not outweighed by the danger of unfair prejudice in the circumstances of the trial. The evidence provided context for the complainants' accounts and was not admitted for an impermissible purpose.
On the prior consistent statement issue, the Court found that leave was properly granted to the Crown under s 108 of the Evidence Act 1995. Once the defence had used a prior inconsistent statement in cross-examination to suggest the complainant's account of the assaults was fabricated or mistaken, the Crown was entitled to lead evidence of an earlier consistent statement to rehabilitate the complainant's credibility. The Court found no error in the trial judge's handling of that issue.
Crown appeal on sentence
The Court acknowledged that the sentence was lower than it would independently have considered appropriate given the seriousness of the offending, which it described as involving "very high criminality." However, it declined to intervene. The Court noted that disturbing the sentence could unsettle the outcome in the related proceedings involving the mother, where the Court of Criminal Appeal had already applied parity with the original sentence imposed on the appellant to reach its result. Intervening to increase the appellant's sentence would undermine that parity equilibrium.
On the failure to give reasons for not imposing a non-parole period on one count, the Court found this was not a sufficient ground for appellate intervention. The reason for that approach was apparent from the structure of the sentences overall, given the count's head sentence was shorter than the non-parole periods attached to other counts. The Crown appeal was dismissed.
Orders Made
- Conviction appeal dismissed
- Crown appeal on sentence dismissed
Key Takeaways
- Under s 108 of the Evidence Act 1995, leave to adduce a prior consistent statement may be properly granted where the opposing party has used a prior inconsistent statement in cross-examination to suggest that the events complained of did not occur, thereby opening the door to credibility rehabilitation.
- Evidence of uncharged assaults on a third party may be admissible in a sexual assault trial where it is relevant and its probative value is not outweighed by the risk of unfair prejudice under s 137 of the Evidence Act 1995.
- In dismissing the Crown sentence appeal, the Court of Criminal Appeal confirmed that parity considerations in related co-offender proceedings can weigh heavily against appellate intervention, even where a sentence is regarded as independently low.
- A sentencing judge's failure to provide explicit reasons for not setting a non-parole period does not automatically warrant appellate intervention where the reason is manifest from the overall sentencing structure.
- The Court affirmed that on a Crown appeal, the threshold for appellate intervention remains high, and the interconnected consequences for co-offenders who have already had their sentences set by reference to the original sentence are a legitimate factor against disturbing that sentence.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 108, 137, 192, Dictionary
Cases
- Gipp v The Queen (1998) 194 CLR 106
- Graham v The Queen (1998) 195 CLR 606
- Johnson v The Queen (2004) 205 ALR 346
- Pearce v The Queen (1998) 194 CLR 610
- R v AEM Snr, KEM & MM [2002] NSWCCA 58
- R v BD (1997) 94 A Crim R 131
- R v JMP [2003] NSWCCA 369
- R v Marsh [2000] NSWCCA 370
- R v Reardon [2002] NSWCCA 203
- Stanoevski v The Queen (2001) 202 CLR 115