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Court of Criminal Appeal 10 October 2007

GAC v Regina, WC v Regina

[2007] NSWCCA 287

Also reported as (2007) 178 A Crim R 1
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE RELEVANCE OF DELAY IN COMPLAINT CROWN ADDRESS WHETHER IMPROPER NO CRITICISM BY TRIAL JUDGE

Citation: GAC v Regina, WC v Regina [2007] NSWCCA 287
Court: New South Wales Court of Criminal Appeal
Date: 10 October 2007
Judge(s): Spigelman CJ, Simpson J, Harrison J

Note: A non-publication order applies to this judgment.

Background

Two appellants, identified only as GAC and WC, were convicted in the District Court at Port Macquarie following a jury trial before Garling DCJ. The convictions related to a series of sexual offences committed against the same complainant over a period spanning from 1987 to 2003, when the complainant was between approximately 5 and 21 years of age. WC was convicted on all seven counts and GAC on three counts.

The offences included acts of indecency, sexual intercourse with a child under 10, and rape. Sentences were structured with significant accumulation across counts, producing an effective non-parole period of 7 years for WC. Both appellants challenged their convictions; WC also sought leave to appeal against sentence.

  • Whether evidence of a police interview of the complainant in 1995 was wrongly admitted, on the basis that its prejudicial effect outweighed its probative value
  • Whether the Crown Prosecutor's address to the jury was improper, causing the trial to miscarry
  • Whether the verdicts were unreasonable having regard to delay in the complainant making formal complaint and to evidence said to contradict the complainant's account
  • Whether the sentencing judge erred by failing to give proper effect to a finding of special circumstances when setting the non-parole period for WC

Decision

Admissibility of the 1995 police interview. The Court rejected the argument that the trial judge erred in admitting evidence of the complainant's 1995 police interview. No direction had been sought by defence counsel at trial, and the Court found no basis to conclude that admission of the evidence caused a miscarriage of justice. The probative value of the material was not outweighed by prejudice to the accused in the circumstances.

Crown Prosecutor's address. The appellants argued that certain passages in the Crown's closing address were improper. The Court noted that the trial judge had made no criticism of the address at the time, and no remedial direction had been requested by defence counsel. In those circumstances, the Court found no miscarriage of justice had occurred.

Unreasonable verdicts. The Court reaffirmed the established principle that something more than inconsistency or contradiction in a complainant's evidence is required before a verdict can be set aside as unreasonable. The complainant's evidence was found to be neither demonstrably nor arguably unreliable or incredible. The jury's verdicts were plainly open on the evidence, and the appeals against conviction were dismissed for both appellants.

Sentence appeal (WC). The sentencing judge had found special circumstances justifying a departure from the standard ratio between non-parole period and head sentence, and had stated an intention to reduce the head sentence by 50 per cent. However, the Court found the resulting non-parole period of 7 years did not adequately give effect to that intention. The effective non-parole period was reduced to 5 years, achieved by quashing and re-imposing sentences on counts 5, 6 and 7. The Court noted that a lower non-parole period would not adequately reflect the seriousness of the long course of offending, and that the supervision period on parole is in any event capped at three years by regulation.

Orders Made

  • GAC: appeal against conviction dismissed.
  • WC: appeal against conviction dismissed.
  • WC: leave to appeal against sentence granted; appeal allowed in part.
  • Sentences on counts 5, 6 and 7 quashed and substituted as follows:
  • Count 5: non-parole period of 12 months (2 December 2009 to 1 December 2010), balance of term 12 months (to 1 December 2011)
  • Count 6: non-parole period of 6 months (2 December 2010 to 1 June 2011), balance of term 3 years and 6 months (to 1 December 2014)
  • Count 7: non-parole period of 18 months (2 December 2009 to 1 June 2011), balance of term 18 months (to 1 December 2012)

Key Takeaways

  • A verdict is not unreasonable merely because a complainant's evidence contains inconsistencies or contradictions. The Court of Criminal Appeal confirmed that the evidence must be shown to be demonstrably or arguably unreliable or incredible before an appellate court will interfere with a jury's findings.
  • Where defence counsel does not object to evidence at trial or seek a remedial direction following a Crown address, the absence of those steps is relevant to whether any subsequent appeal ground based on those matters can succeed.
  • Delay in complaint, standing alone, does not render a verdict unreasonable. The Court assessed the complainant's evidence as credible in context, notwithstanding the significant passage of time before formal complaint was made.
  • A sentencing court's stated intention to reduce the head sentence by a specific proportion to reflect special circumstances must be carried through in the actual non-parole period imposed. Failing to give practical effect to a finding of special circumstances constitutes error warranting appellate intervention.
  • Under reg 216(1) of the Crimes (Administration of Sentences) Regulation 2001, a period of supervision on parole cannot exceed three years, a constraint the Court of Criminal Appeal took into account when calibrating the appropriate non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61E(1A), 61I, 61M(1), 66A, 66C(2)
- Crimes (Administration of Sentences) Regulation 2001: reg 216(1)

Cases
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Chidiac v The Queen (1990) 171 CLR 432
- Jones v The Queen (1997) 191 CLR 439
- Libke v The Queen [2007] HCA 30
- Livermore v R [2006] NSWCCA 334
- M v The Queen (1994) 181 CLR 487
- Morris v The Queen (1987) 163 CLR 454
- Palmer v The Queen 66 ALJR 270
- R v Heather May Attard [2004] NSWCCA 376
- R v Cramp [2004] NSWCCA 264
- R v Dellapatrona (1993) 31 NSWLR 123
- R v LWP [2003] NSWCCA 215
- R v Ralph and George (1988) 37 A Crim R 202
- Whitehorn v The Queen (1983) 152 CLR 657