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Court of Criminal Appeal 8 December 2005

Richard Norman Mearns v R

[2005] NSWCCA 396

Sexual offences
CONVICTION AND SENTENCE APPEALS CHILD SEXUAL ASSAULT ADEQUACY OF MURRAY DIRECTION DATES NOT OF THE ESSENCE OF THE OFFENCE CONDUCT OF TRIAL BY COUNSEL

Citation: Richard Norman Mearns v R [2005] NSWCCA 396
Court: New South Wales Court of Criminal Appeal
Date: 8 December 2005
Judge(s): Brownie AJA, Buddin J, Latham J

Background

The appellant was convicted in the Parramatta District Court on four counts of aggravated indecent assault and one count of aggravated sexual intercourse without consent against his former de facto partner's daughter. The offending occurred between 1999 and 2002, when the complainant was aged 11 to 15. The appellant had lived with the complainant's mother and retained unrestricted access to the home even during periods when he was not residing there.

At trial, the Crown led evidence of the appellant's regular pattern of entering the complainant's bedroom early in the morning and engaging in sexual touching, characterised as relationship or contextual evidence. A poem written by the complainant in 2002 was also admitted under the Evidence Act 1995 in anticipation of cross-examination alleging fabrication. The appellant gave evidence denying any sexual impropriety but agreed with most of the other circumstances described by the complainant and her mother.

The appellant subsequently challenged both his conviction and the sentences imposed by Sorby DCJ in September 2004.

  • Whether the trial judge's directions on the relationship or contextual evidence were inadequate or incorrect, including whether they inadvertently raised a tendency reasoning direction
  • Whether the poem was properly admitted as part of the Crown case
  • Whether the Murray direction (the direction requiring the jury to use particular caution when convicting on a complainant's uncorroborated evidence alone) was adequate in respect of Counts 3, 4 and 5
  • Whether the jury had to be satisfied beyond reasonable doubt that the incident charged in Count 3 occurred within the date range specified, and whether the evidence on Count 3 was capable of supporting a conviction
  • Whether the total sentence of six years, with an effective non-parole period of four years, was manifestly excessive

Decision

Relationship evidence direction: The Court found that the trial judge's direction on the contextual or relationship evidence had inadvertently used language capable of raising a tendency reasoning direction, rather than simply explaining the permissible use of that evidence. However, the Court was satisfied there was no real risk the jury misused the evidence, particularly because defence counsel at trial did not interpret the direction as prejudicial. The Court applied the proviso and declined to find a miscarriage of justice.

Murray direction: The Court accepted that the Murray direction given in respect of Counts 3, 4 and 5 was adequate in the circumstances. A Murray direction alerts the jury to the dangers of acting on the uncorroborated evidence of a sexual assault complainant without appropriate caution. The Court was satisfied the direction, viewed in the context of the summing-up as a whole, fulfilled its purpose.

Count 3 and the date range: The appellant argued the jury needed to be satisfied beyond reasonable doubt that the Count 3 incident fell within the specified date range of 31 July 2002 to 1 January 2003. The Court rejected this, finding that dates were not of the essence of the offence. The Court also found the complainant's evidence was capable of supporting a verdict of guilty on that count, notwithstanding some inconsistency between the date range and her reference to being in Year 8 (which would have placed the event in 2001).

Sentence appeal: The Court found no error and no manifest excess in the total sentence. The Court noted that the trial judge had placed the offences towards the lower end of the scale and that Judicial Commission statistics confirmed the sentences were consistent with that assessment. The subjective circumstances of the appellant, while favourable, could not outweigh the objective gravity of sustained sexual exploitation of a young child in his care.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that an inadvertent tendency-type direction embedded in relationship evidence directions does not automatically result in a miscarriage of justice where there is no real risk the jury engaged in the forbidden chain of reasoning.
  • A Murray direction is assessed in the context of the summing-up as a whole; minor deficiencies in its framing will not necessarily render it inadequate.
  • Dates are not of the essence of a sexual assault offence in New South Wales, meaning a discrepancy between the charged date range and the complainant's recollection does not by itself undermine a conviction, provided the evidence is otherwise capable of establishing the offence.
  • The failure to give an immediate jury direction at the time uncharged acts evidence is led does not inevitably cause a trial to miscarry, provided a proper direction is given in the summing-up, consistent with the approach in R v TAB and R v GS.
  • Favourable subjective circumstances for an offender do not necessarily reduce a sentence where the objective gravity of repeated sexual offending against a child in the offender's care is significant.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 108(3)(b)

Cases:
- R v Murray (1987) 11 NSWLR 12
- R v Beserick (1993) 30 NSWLR 510
- BRS (1997) 191 CLR 275
- BD (1997) 94 A Crim R 131
- R v Abusafiah (1991) 24 NSWLR 531
- R v Whitmore [1999] NSWCCA 247
- R v El-Kheir [2004] NSWCCA 461
- R v Reardon [2002] NSWCCA 203
- R v Selsby [2004] NSWCCA 381
- R v LTP [2004] NSWCCA 109
- R v TAB [2002] NSWCCA 274
- R v GS [2003] NSWCCA 73
- KRM v The Queen (2001) 206 CLR 221
- R v AH (1997) 42 NSWLR 702
- R v AN [2000] NSWCCA 372
- R v MM [2000] NSWCCA 78
- R v ATM [2000] NSWCCA 475
- Gipp v The Queen
- R v Stringer (2000) 116 A Crim R 198
- R v Macdonald (1995) 84 A Crim R 508
- R v Zafiris CCA (unrep) 14.9.98
- R v Gust [1999] NSWCCA 265
- R v Greenham [1999] NSWCCA 8
- R v Pfitzner (1976) 15 SASR 171
- R v Aziz [1982] 2 NSWLR 322