Citation: Paul Upton v Regina [2006] NSWCCA 256
Court: New South Wales Court of Criminal Appeal
Date: 23 August 2006
Judge(s): Beazley JA; Hulme J; Hislop J
Background
The appellant was convicted by jury in the District Court of two counts of aggravated sexual assault in company (under s 61JA of the Crimes Act 1900 (NSW), carrying a maximum of life imprisonment) and two counts of aggravated sexual assault (under s 61J, carrying a maximum of 20 years). The offences arose from an incident in the early hours of 21 October 2001, during which the appellant and a co-offender subjected a complainant to serious sexual and physical violence at a unit in an industrial area.
The Crown case relied on a joint criminal enterprise between the appellant and the co-offender. The trial judge had also directed the jury on the use of a lie told by the appellant during his police interview as evidence of consciousness of guilt. The appellant was sentenced after conviction and subsequently sought both to appeal his conviction and to challenge his sentences as manifestly excessive.
The appellant appeared in person before the Court of Criminal Appeal. A separate kidnapping count on the indictment had resulted in a hung jury at trial.
Legal Issues
- Whether the trial judge erred in directing the jury that the appellant's lie to police could be used as consciousness of guilt evidence across all counts, rather than limiting it to the particular count to which the lie related.
- Whether the trial judge erred by failing to direct the jury on the doctrine of extended joint criminal enterprise.
- Whether the sentences imposed were manifestly excessive, such that some other sentence was warranted in law.
Decision
On the first ground, the Court found no error in the trial judge's directions. The appellant had denied in his initial police interview that he knew the co-offender's full name, describing him as a mere acquaintance known only as "John." This was contradicted by the appellant's own subsequent statement, in which he admitted knowing the co-offender for approximately three years. The Court found that this lie was relevant not to one count alone but to the entire transaction, and the direction permitting the jury to draw a consciousness of guilt inference across all counts was therefore appropriate.
On the second ground, the Court rejected the contention that the trial judge was required to direct the jury on the doctrine of extended joint criminal enterprise. The Crown's case was put on the basis of an ordinary joint criminal enterprise, and the evidence did not raise any factual scenario that required the extended doctrine to be addressed. No error was established in the trial judge's directions on this point.
On sentence, the Court noted that under s 6(3) of the Criminal Appeal Act 1912 (NSW), it may only intervene if it forms a positive opinion that some other sentence is warranted in law. The Court found the sentences were within an appropriate discretionary range. Beazley JA observed that the sentences in respect of the s 61JA offences might, if anything, be considered lenient, and that the case was among the worst of its type. The Crown's submissions, made in the absence of any Crown appeal, were understood as emphasising the leniency rather than any error in the sentences. No basis for intervention was established.
Orders Made
- Extension of time to file a notice of appeal and application for leave to appeal granted to 5 April 2006.
- Appeal against conviction dismissed.
- Leave to appeal against sentences granted.
- Appeal against sentences dismissed.
Key Takeaways
- A lie told by an accused to police is not automatically confined to the single count most directly associated with that lie; where the lie relates to the overall transaction, the trial judge may direct the jury that it is relevant to consciousness of guilt across multiple counts.
- No obligation arises on a trial judge to direct a jury on the doctrine of extended joint criminal enterprise where the Crown case is run solely on the basis of an ordinary joint criminal enterprise and the evidence does not raise the extended doctrine as a live issue.
- Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may only quash a sentence where it is positively satisfied that some other sentence is warranted in law; a mere argument of manifest excess, without more, does not automatically satisfy that threshold.
- In dismissing the sentence appeal, the Court of Criminal Appeal found the sentences were within the appropriate discretionary range and noted they were, if anything, on the lenient side for offences of this gravity.
- Concurrent sentencing, where it in effect fails to reflect the totality of an offender's criminality across multiple serious counts, may invite scrutiny against the principle in Pearce v The Queen, though in this case there was no Crown appeal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J, 61JA, 90A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 4
Cases
- Edwards v The Queen (1993) 178 CLR 193
- McAuliffe v The Queen (1995) 183 CLR 108
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- Papakosmas v The Queen (1999) 196 CLR 297
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Lowery and King (No 2) [1972] VR 560
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Tangye (1997) 92 A Crim R 545