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Court of Criminal Appeal 6 September 2005

Regina v Rymer

[2005] NSWCCA 310

Also reported as (2005) 156 A Crim R 84
Sexual offences
CRIMINAL LAW AND PROCEDURE EVIDENCE HEARSAY BASIS OF EXCEPTION TO HEARSAY RULE MAINTENANCE OF COMMON PRACTICE SENTENCE

Citation: Regina v Rymer [2005] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 6 September 2005
Judge(s): Grove J; Barr J; Latham J

Background

The appellant was convicted in the Lismore District Court on three counts of sexual intercourse with a child. The complainant was the daughter of a woman with whom the appellant had been living in a de facto relationship. The offences were alleged to have occurred between May 1994 and January 1996, when the child was aged between nine and eleven years.

The appellant denied all wrongdoing when first confronted by police in April 2002, and maintained those denials throughout a video-recorded interview conducted later the same day. At trial, the Crown objected to the admission of those exculpatory statements on hearsay grounds, and the trial judge ruled they would only be admissible if the appellant himself gave evidence.

The appellant was sentenced to nine years imprisonment with a six-year non-parole period on each count, to be served concurrently. However, the trial judge had been incorrectly informed of the applicable maximum penalties, and the sentences imposed on two of the three counts exceeded those maxima.

  • Whether the trial judge erred in ruling the appellant's exculpatory statements to police were inadmissible as hearsay
  • Whether the trial judge erred in ruling those statements could only be admitted if the appellant gave evidence, thereby effectively compelling him to do so
  • Whether the Crown's refusal to tender the exculpatory statements in its own case deprived the appellant of a fair trial
  • Whether the conviction on count 1 was unreasonable or unsupported by the evidence
  • Whether sentences imposed in excess of the applicable maximum penalty required intervention on appeal

Decision

Conviction appeal: The Court dismissed the appeal against conviction. While the trial judge's ruling that the exculpatory statements were only admissible if the appellant gave evidence was found to be erroneous, the Court concluded that no miscarriage of justice resulted from that error. The appellant did give evidence and had the opportunity to place his denials before the jury.

Exculpatory statements and hearsay: The Court engaged in a detailed discussion of the various approaches courts have taken to evidence of exculpatory out-of-court statements. The out-of-court denials made to police were plainly hearsay under s 59 of the Evidence Act 1995. The Court noted the general practice of the Crown tendering such statements, subject to the objectionability of contrived or manufactured material, and discussed the basis on which exceptions to the hearsay rule might apply.

Reasonableness of the conviction: The Court did not accept that the conviction on count 1 was unreasonable or unsupported by the evidence. No error in the verdict was established.

Sentence appeal: The Court allowed the sentence appeal. The trial judge had been misinformed that the applicable maximum penalties were 25 years for count 1 and 16 years for counts 2 and 3. In fact, the offences fell under the prescriptions in force at the time of the conduct (between 1994 and 1996), which carried maxima of 20 years for count 1 and 8 years for counts 2 and 3. The sentences imposed on counts 2 and 3 therefore exceeded the lawful maximum. The Court resentenced the appellant, finding special circumstances and applying a measure of accumulation between count 1 and counts 2 and 3, which arose from a single occasion.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; sentence appeal allowed
  • Sentences imposed in the District Court quashed and the appellant resentenced as follows:
  • Count 1: non-parole period of 3 years (commencing 27 February 2004, expiring 26 February 2007), total term of 6 years imprisonment commencing 27 February 2004
  • Counts 2 and 3 (concurrent with each other): non-parole period of 2 years 6 months (commencing 27 August 2005, expiring 26 February 2008), total term of 5 years imprisonment commencing 27 August 2005
  • Earliest parole eligibility date: 26 February 2008

Key Takeaways

  • A trial judge's erroneous ruling that an accused must give evidence in order to render earlier exculpatory statements admissible does not necessarily produce a miscarriage of justice. Where the accused gives evidence and the denials are placed before the jury, the Court of Criminal Appeal may find the error caused no practical injustice.
  • Under the hearsay rule in s 59 of the Evidence Act 1995, out-of-court denials made to police are inadmissible to prove the truth of the denial. The Court discussed multiple approaches to admitting such material and confirmed that any exception must have a proper statutory basis.
  • A general Crown practice exists of tendering an accused's exculpatory statements, though this duty yields where material is contrived. The refusal to tender such statements may, in appropriate cases, be challenged as productive of unfairness.
  • Sentences imposed in excess of the applicable statutory maximum are unlawful. Where the sentencing court is misinformed about the correct maximum, appellate intervention is required regardless of whether the error was the judge's own.
  • The applicable maximum penalty is determined by the law in force at the time the offence was committed, not by any later legislative increase. This principle directly affected the resentencing in this case.

Legislation and Cases Referenced

Legislation:
- s 66A, Crimes Act 1900 (NSW)
- s 66C(1), Crimes Act 1900 (NSW)
- s 135, Crimes (Administration of Sentences) Act 1999 (NSW)
- s 59, Evidence Act 1995 (NSW)
- s 66, Evidence Act 1995 (NSW)

Cases:
- Adam v The Queen (2001) 207 CLR 297
- Graham v The Queen (1998) 195 CLR 606
- Ibbs v The Queen (1997) 163 CLR 447
- McCallum v Parole Board [2003] NSWCCA 294
- R v Brooker (NSWCCA, unrep, 21 February 1996)
- R v Bryant (NSWCCA, unrep, 27 June 1994)
- R v Callaghan (1993) 70 A Crim R 350
- R v Coats (1932) 51 NZLR 401
- R v Crisologo (1997) 99 A Crim R 178
- R v Familic (NSWCCA, unrep, 4 November 1994)
- R v Higgins (1829) 3 C & P 603
- R v Keevers (NSWCCA, unrep, 26 July 1994)
- R v Latu (NSWCCA, unrep, 6 July 1993)
- R v Middleton (1998) 100 A Crim R 244
- R v Moystyn (2004) 145 CLR 304
- R v Pearce (1979) 69 Cr App R 365
- R v Reyes [2005] NSWCCA 218
- R v Sharp (1988) 86 Crim App R 274
- R v Skinner (NSWCCA, unrep, 28 October 1993)
- R v Tooke (1990) 90 Crim App R 417
- R v Williamson (1972) 1 NSWLR 291
- R v Astill (1992) 63 A Crim R 148
- Ratten v The Queen [1972] AC 378
- The Queen's Case (1820) 2 Brod & Bing 286