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Court of Criminal Appeal 24 March 2006

Dudley Mark Aslett v Regina

[2006] NSWCCA 49

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW CRIMINAL LAW EVIDENCE OF ACCOMPLICE WHETHER DIRECTION TO JURY ADEQUATE CRIMINAL LAW CROWN OPENING

Citation: Dudley Mark Aslett v Regina [2006] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 24 March 2006
Judge(s): Spigelman CJ, Barr J, Howie J

Background

The appellant was convicted by a District Court jury of offences arising from a violent home invasion in Sydney on 17 July 2003. Four men broke into a first-floor unit, tied up a husband, and subjected his wife and their sixteen-year-old daughter to an extended ordeal involving robbery, threats with knives, and serious sexual violence. The appellant was identified as the ringleader.

The charges against the appellant included breaking, entering and robbery in circumstances of special aggravation (wounding), six counts of sexual intercourse without consent in company with deprivation of liberty, and one count of inciting the teenage complainant to commit an act of indecency. His co-offenders included two men named Aslett and a man named Bonham, who gave evidence for the prosecution.

The appellant challenged both his convictions and the sentences imposed by Finnane DCJ in the District Court. The appeal raised a range of issues concerning the conduct of the trial, the admissibility of evidence, and the approach taken to sentencing.

  • Whether the trial judge's directions to the jury regarding accomplice evidence were adequate, and whether a corroboration direction was required
  • Whether the Crown Prosecutor's misstatement of a witness's evidence in the opening address required the jury to be discharged
  • Whether identification evidence was wrongly admitted
  • Whether prior inconsistent statements of a Crown witness were wrongly admitted, and whether the obligation to identify the legal basis of an objection was met
  • Whether a written statement by Bonham was inadmissible under s 66(3) of the Evidence Act 1995, and if so, whether its admission caused a miscarriage of justice
  • Whether remarks made by the Crown Prosecutor during the trial constituted a miscarriage of justice
  • Whether the jury's verdicts were unreasonable or inconsistent with the evidence
  • Whether the sentencing judge erred by treating elements of the offences as additional aggravating factors
  • Whether the sentences were increased beyond proportionate limits to protect the community from the appellant's risk of reoffending
  • Whether the sentences were manifestly excessive

Decision

Conviction appeal dismissed. The Court found no ground sufficient to overturn the jury's verdicts. The accomplice evidence from Bonham was the subject of adequate jury directions and did not require a formal corroboration warning in the terms contended for. The Crown Prosecutor's misstatement in opening was an error, but it did not give rise to a miscarriage of justice requiring the jury to be discharged. The trial judge addressed the issue appropriately.

On the evidentiary grounds, the Court confirmed that counsel objecting to the admission of evidence must identify the legal basis for that objection and the evidence relevant to it. Where no proper objection was taken at trial, it was difficult for the appellant to establish on appeal that evidence was wrongly admitted. In relation to Bonham's written statement, the Court accepted that the document was technically inadmissible under s 66(3) of the Evidence Act 1995. However, the jury already had the recorded interviews and transcripts containing the same account, and the statement added nothing of substance. The Court found no prejudice and no possible bearing on the verdicts.

The Crown Prosecutor's remarks during trial and the remaining conviction grounds were also rejected. The verdicts were neither unreasonable nor inconsistent with the evidence as a whole.

Sentence appeal allowed in part. The Court found that the sentencing judge had fallen into error in several respects. In particular, the judge had treated certain elements of the offences themselves as additional aggravating features, which amounts to double-counting. The Court also found error in some of the specific findings relied upon to increase criminality. Separately, the Court identified that some of the original sentences had been increased beyond what was proportionate to the offending for the purpose of extending the period during which the community was protected from the appellant. The Court held this approach was impermissible in the manner applied, citing the principle in Veen v The Queen (No 2) that a sentence cannot be increased beyond what is proportionate to the crime merely to achieve preventive detention.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave to appeal against sentence is granted; the appeal against sentence is allowed.
  • The sentences on all counts except Count 8 are quashed and replaced as follows:
  • Count 1: Non-parole period of 8 years commencing 22 August 2003, expiring 21 August 2011; balance of term of 2 years and 8 months.
  • Count 2: Non-parole period of 16 years commencing 22 August 2008, expiring 21 August 2024; balance of term of 5 years and 4 months.
  • Counts 3 and 4: On each count, non-parole period of 15 years commencing 22 August 2009, expiring 21 August 2024; balance of term of 5 years.
  • Counts 5, 6 and 7: On each count, non-parole period of 9 years and 6 months commencing 22 August 2017, expiring 21 February 2026; balance of term of 7 years and 6 months commencing 22 February 2026 and expiring 21 August 2033.
  • Count 8: Sentence unchanged.

Key Takeaways

  • A sentencing judge must not treat an element of the offence charged as a separate aggravating feature when assessing the seriousness of the conduct. To do so constitutes impermissible double-counting and is a recognised sentencing error.
  • Under the principle established in Veen v The Queen (No 2), a sentence cannot be increased beyond what is proportionate to the offending for the sole purpose of extending the community's protection from an offender's risk of reoffending.
  • Where a co-offender gives evidence for the Crown as an accomplice, adequate jury directions on how to approach that evidence are required. The Court of Criminal Appeal confirmed here that the directions given were sufficient on the facts, without any mandatory corroboration warning of the kind formerly required at common law.
  • Admitting an inadmissible document does not automatically produce a miscarriage of justice. Where the same evidence was already properly before the jury through other means (here, tape recordings and transcripts), the admission of a technically inadmissible written version of the same account was found to cause no prejudice.
  • Counsel who fails to articulate the legal basis for an evidentiary objection at trial, and to identify the evidence relevant to that basis, faces significant difficulty in establishing on appeal that the evidence was wrongly admitted.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), particularly s 66 and s 66(3)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Markarian v The Queen (2005) 215 ALR 213
- Weiss v The Queen [2005] HCA 81
- Adam v The Queen (2001) 207 CLR 96
- Lee v The Queen (1998) 195 CLR 594
- Gilbert v The Queen (2000) 201 CLR 414
- R v Baskerville [1910] 2 KB 658
- Chen & Ors v R (2002) 130 A Crim R 130
- The Queen v Johnson (1979) 22 SASR 161
- Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498
- R v Street [2005] NSWCCA 139
- R v Wickham [2004] NSWCCA 193
- R v Blair [2005] NSWCCA 78
- R v Wheeler [2000] NSWCCA 34