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Court of Criminal Appeal 23 May 2008

RYLANDS v REGINA

[2008] NSWCCA 106

Also reported as (2008) 184 A Crim R 534
Sexual offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON OTHER OFFENCES AGAINST THE PERSON SEXUAL OFFENCES RAPE AND SEXUAL ASSAULT

Citation: Rylands v Regina [2008] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 23 May 2008
Judge(s): Mason P, James J, Hoeben J

Background

The appellant, a 55-year-old man, was tried in the District Court on three counts arising from an incident at a remote country property during a children's sleepover. The complainant was a 15-year-old girl who had attended a birthday party for the appellant's daughter. The appellant gave the complainant alcohol, then offered her a massage using a portable massage table and Sorbolene cream.

The complainant gave evidence that during the massage the appellant engaged in cunnilingus on her for approximately an hour, while she lay in a state of shock and repeatedly said it was wrong. The appellant denied the allegations, and the defence case was that nothing sexual occurred.

The jury acquitted the appellant on two counts of aggravated indecent assault but convicted him on the count of sexual assault (cunnilingus). He was sentenced to six years' imprisonment with a non-parole period of four years. He appealed both his conviction and his sentence.

  • Whether expert evidence about DNA, and specifically about the capacity of Sorbolene cream to facilitate the transfer of DNA, was properly admitted at trial under section 79 of the Evidence Act 1995, given the expert's alleged lack of specialised knowledge on that specific topic.
  • Whether the expert's opinion lacked a proper scientific basis and therefore should not have been placed before the jury.
  • Whether the sentence of six years was unduly harsh, having regard to the appellant's age, good character, and the welfare of his dependent daughter.
  • Whether the sentencing judge failed to give adequate weight to the hardship that imprisonment would cause to the appellant's child.

Decision

On the conviction appeal, the court examined the challenge to the DNA expert evidence. The defence argued that the expert had no experience with Sorbolene cream specifically and that any opinion about its capacity to transfer DNA therefore fell outside the witness's specialised knowledge for the purposes of section 79 of the Evidence Act 1995. The court considered the requirements for expert opinion evidence, including the principles from cases such as HG v The Queen and Makita (Australia) Pty Ltd v Sprowles, which require that an expert's opinion be based on specialised knowledge derived from training, study, or experience.

The court rejected the ground of appeal on the DNA evidence, finding no error in its admission. Mason P's analysis addressed whether the expert's broader expertise in DNA transfer was sufficient to ground the opinion, even in the absence of specific prior experience with Sorbolene cream as the transfer medium. The conviction appeal was accordingly dismissed.

On the sentence appeal, the appellant argued that the sentencing judge had failed to adequately account for his age and good character, and that insufficient weight had been given to the impact of incarceration on his daughter. The sentencing judge had found special circumstances justifying an adjusted non-parole period and had expressly acknowledged the appellant's concern for his daughter's welfare. The court found that no error had been demonstrated in the sentencing exercise and that the judge's treatment of the daughter's circumstances was within the permissible range. The sentence appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted, but appeal dismissed.

Key Takeaways

  • Under section 79 of the Evidence Act 1995, an expert's opinion on a specific factual question does not necessarily fall outside their specialised knowledge simply because they lack direct prior experience with the precise substance or medium involved, provided their broader expertise encompasses the subject matter.
  • The Court of Criminal Appeal confirmed that the requirements from HG v The Queen and Makita govern the admissibility of expert opinion evidence, requiring the opinion to be wholly or substantially based on the witness's area of specialised knowledge.
  • A sentencing court's acknowledgment of an offender's concern for a dependent child, incorporated as a special circumstance justifying adjustment of non-parole period proportions, does not necessarily require a reduction in the head sentence itself.
  • No error was established in the sentencing judge's conclusion that the impact of imprisonment on the appellant's daughter, while acknowledged, did not rise to the level of exceptional hardship warranting a departure from an otherwise appropriate custodial term.
  • In dismissing both appeals, the Court of Criminal Appeal confirmed that good character and the indirect effects of imprisonment on family members are matters for a sentencing judge to weigh in the overall sentencing exercise, but they do not automatically mandate a lesser sentence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 79
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Clark v Ryan (1960) 103 CLR 486
- HG v The Queen [1999] HCA 2, 197 CLR 414
- Keller v R [2006] NSWCCA 204
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
- Middleton v The Queen [2000] WASCA 213, (2000) 114 A Crim R 258
- R v Dib (NSWCCA, 13 September 1991)
- R v Girard [2004] NSWCCA 170
- R v Grbin [2004] NSWCCA 220
- R v Markuleski (2001) 52 NSWLR 82