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Court of Criminal Appeal 19 December 2006

TJC v Regina

[2006] NSWCCA 413

Sexual offences

Citation: TJC v Regina [2006] NSWCCA 413
Court: NSW Court of Criminal Appeal
Date: 19 December 2006
Judge(s): Barr J (primary judgment); Adams J and Rothman J (agreeing)

Background

The appellant, referred to as TJC, was the maternal grandfather of the complainant. He was convicted at trial in the District Court of multiple sexual offences against the complainant, including two counts of having intercourse with a child under ten years of age said to have occurred in December 1996, as well as offences of indecent assault and sexual intercourse alleged to have occurred in 1999.

The appellant had served a notice of alibi accounting for his absence from the relevant town between 25 November 1996 and 2 January 1997, directly covering the December 1996 period particularised in the indictment. During the retrial, the complainant's evidence on the 1996 dates became uncertain. The Crown applied mid-trial to amend the indictment to broaden the date range for the 1996 counts. The trial judge refused that amendment but nonetheless declined to direct verdicts of not guilty, and the jury convicted on all four contested counts.

The appellant filed his notices of appeal and applications for leave to appeal more than four years out of time, requiring the Court to first consider whether to grant an extension. The Crown opposed the extension. A separate guilty plea on an independent charge had resulted in an additional sentence imposed in 2003.

  • Whether the Court should grant an extension of time to appeal, given the appeal was filed over four years late
  • Whether the trial judge erred in refusing to direct verdicts of acquittal on the first and second counts, after refusing to allow amendment of the indictment and where the only evidence placed the events outside the charged dates
  • Whether the charged dates in the 1996 counts had become an essential element of the prosecution case, rather than mere particulars, by reason of the alibi evidence
  • Whether the sentences imposed across the multiple counts were correctly structured and sequenced

Decision

On the extension of time question, the Court acknowledged that gross delay in filing cannot be treated as a mere formality. However, it proceeded to assess the likely merits of the appeal as a factor in the discretion. Finding that the conviction appeal had strong prospects of success, the Court granted the extension.

On the central conviction issue, the Court held that the trial judge fell into error by allowing the jury to convict on counts one and two after refusing to amend the indictment. Ordinarily, dates in an indictment are treated as particulars only, and the Crown is not required to prove events occurred within the pleaded dates. However, this general rule does not apply where the accused has put forward alibi evidence, which raises the timing of the alleged offence to something that must be proved beyond reasonable doubt. The trial judge had expressly recognised that principle in refusing the amendment, yet contradicted that reasoning by declining to withdraw the counts from the jury. The Court found that, in those circumstances, there was no adequate evidence that the offences occurred in December 1996, and the convictions could not stand.

On sentence, the Court dismissed the appeal against the sentence on count four. It did, however, restructure the sequencing of the sentences on count five and the carnal knowledge conviction to correct errors in the way the sentences had been made to run. The Court was satisfied that the total effective sentence, as restructured, appropriately reflected the seriousness of the appellant's conduct while providing a meaningful period of eligibility for parole.

Orders Made

  • Extension of time granted for the appeal and applications for leave to appeal against sentences.
  • Convictions and sentences on counts one and two quashed; verdicts of acquittal entered on those counts.
  • Leave to appeal against remaining sentences granted.
  • Appeal against the sentence on count four dismissed.
  • Sentence on count five varied to run from 6 June 2003 and to have expired on 5 June 2005; non-parole period on count five taken to have commenced 6 June 2003 and expired 5 December 2004.
  • Sentence on the carnal knowledge conviction varied to commence 6 December 2004 and expire 5 March 2010.
  • Non-parole period on the carnal knowledge conviction quashed and substituted with a non-parole period of three years and six months, commencing 6 December 2004 and expiring 5 June 2008.
  • First day of eligibility for consideration for release to parole declared to be 5 June 2008.

Key Takeaways

  • Where an accused puts forward alibi evidence directly addressing the dates charged in an indictment, those dates are elevated from mere particulars to matters the Crown must prove beyond reasonable doubt.
  • A trial judge who refuses to amend an indictment on the basis that the alibi makes the dates essential cannot then leave those counts to the jury when the evidence does not establish that the offences occurred within the charged period. Doing so is a legal error that will found a successful conviction appeal.
  • Gross delay in bringing an appeal (here, over four years) will not automatically result in refusal of an extension of time. The likely merits of the proposed appeal are a relevant factor in the discretion.
  • In restructuring sentences on multiple counts, the Court of Criminal Appeal will attend to the correct sequencing and commencement dates of cumulative sentences to ensure the aggregate reflects the totality of the offending.
  • The Court confirmed the principle from authorities including R v Pfitzner and R v MacDonald that alibi evidence can transform the temporal element of an indictment into an essential element of the offence for proof purposes.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 16(1)(g), (h)

Cases:
- R v Lawrence [1981] NSWLR 112
- R v O'Hara [2005] NSWCCA 97
- R v Dossi (1918) 13 Cr App R 158
- R v Stringer (2000) 116 A Crim R 198
- R v Pfitzner (1976) 15 SASR 171
- R v MacDonald (1996) 84 A Crim R 508
- R v Swan (1987) 27 A Crim R 289