Citation: Rolfe v Regina [2007] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 14 June 2007
Judges: Giles JA; James J; Harrison J
Background
The appellant was convicted in the District Court on ten charges of sexual assault against a child. The offences were alleged to have occurred between August 1998 and April 2001, when the complainant was aged between approximately five and a half and eight years old. The charges included aggravated indecent assault, sexual intercourse with a person under ten, and aggravated indecency.
The complainant was the stepdaughter of the appellant, who had married her mother in January 1998. The family relocated from Victoria to New South Wales, living on a dairy farm and later at a property the mother purchased at Wolumla, NSW.
At trial, the prosecution relied on the complainant's evidence, letters written by the appellant to the complainant's mother, and statements made by the appellant to a Christian minister. The appellant did not give evidence at trial, on the advice of his counsel. He was convicted on all ten counts and sentenced to a total term of imprisonment with a non-parole period of six years.
Legal Issues
- Whether evidence relating to the complainant's sexual experience was inadmissible under s 293 of the Criminal Procedure Act, and whether the exception in s 293(6) applied
- Whether the appellant's admissions of sexual misconduct towards the complainant, which were not specifically admissions to the charged conduct, were properly admitted as "relationship evidence" or as admissions
- Whether the failure to exclude the admissions evidence caused a miscarriage of justice
- Whether the trial miscarried because the appellant did not give evidence, having received counsel's advice not to do so
- Whether the verdicts were unreasonable or unsafe on the whole of the evidence
Decision
On the s 293 issue, the Court noted that the appellant had himself conceded at trial that the evidence in question was admissible, and had not applied to cross-examine pursuant to s 293(6). No miscarriage of justice arose from the manner in which that evidence was handled.
Regarding the admissions, the Court considered letters the appellant wrote and statements he made to a Christian minister. Although these admissions related to sexual misconduct towards the complainant generally, rather than to the specific charges, the Court found they carried additional relevance beyond mere "relationship evidence" by operating as admissions. No application had been made at trial to exclude this evidence. The Court found no miscarriage of justice resulted from its admission.
On the question of the appellant's silence at trial, the Court examined in detail the affidavit material filed by the appellant in support of ground 11A. The Court concluded that the appellant's own account, including his explanation that the conduct amounted only to allowing the complainant to "gyrate" on him, was unlikely to have assisted the jury and would have been contradicted by his prior instructions to counsel. The Court found that not giving evidence did not deprive the appellant of a chance of acquittal that was fairly open to him.
On the sentence appeal, the appellant accepted in oral submissions that eight years was within range and offered no substantive argument in support of the ground relating to manifest excess. The Court found no error in the sentencing judge's refusal to find special circumstances, and upheld the sentence.
Orders Made
- Appeal against conviction dismissed
- Application for leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Where an accused concedes admissibility of evidence at trial and makes no application under the relevant exception provision, an appeal court will not readily find a miscarriage of justice on that basis after conviction.
- Admissions of sexual misconduct towards a complainant, even where not specifically directed at the charged acts, may be admitted not only as relationship evidence but also on the independent basis that they constitute admissions, broadening their probative significance.
- A failure to make a timely application to exclude evidence at trial will weigh heavily against a conviction appeal ground based on that evidence's admission.
- Where an accused elects not to give evidence on counsel's advice, a miscarriage of justice will not be established merely because a different forensic choice might theoretically have been made; the Court of Criminal Appeal will examine whether any realistic chance of acquittal was lost.
- In dismissing the sentence appeal, the Court confirmed that a bare submission of special circumstances, unsupported by substantive argument or written submissions, is unlikely to displace a sentencing judge's considered refusal to make such a finding.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 293 (evidence of complainant's sexual experience) and s 293(6) (exception)
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A
Cases Cited:
- Gipp v The Queen (1998) 194 CLR 106
- KRM v The Queen (2001) 206 CLR 221
- M v R (1993) 67 A Crim R 549
- MFA v The Queen (2002) 213 CLR 606
- Papakosmas v The Queen (1999) 196 CLR 297
- Qualtieri v R [2006] NSWCCA 95
- R v AH (1997) 42 NSWLR 702
- R v Bernthaler (CCA, 17 December 1993, unreported)
- R v Beserick (1993) 30 NSWLR 510
- R v Button [2002] NSWCCA 159
- R v BWT (2002) 54 NSWLR 241
- R v Centraco [2005] NSWCCA 11
- R v Fraser (10 August 1998, unreported)
- R v Greenham [1999] NSWCCA 8
- R v Hagarty (2004) 145 A Crim R 138
- R v L (CCA, 6 April 1992, unreported)
- R v McKeon (1986) 31 A Crim R 357
- R v Murray (1987) 11 NSWLR 12
- R v Wickham (CCA, 17 December 1991, unreported)
- Seymour v R [2006] NSWCCA 206
- Tully v The Queen (2006) 81 ALJR 391