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Court of Criminal Appeal 9 September 2008

Sudath v R

[2008] NSWCCA 207

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST CONVICTION COMMON ASSAULT SEXUAL ASSAULT DOMESTIC VIOLENCE PRESCRIBED SEXUAL OFFENCE PROCEEDINGS

Citation: Sudath v R [2008] NSWCCA 207
Court: New South Wales Court of Criminal Appeal
Date: 9 September 2008
Judge(s): McClellan CJ at CL, Hidden J, Fullerton J

Background

The appellant, a medical practitioner originally from Sri Lanka, was convicted by a jury in the District Court of two offences arising from events at the family home in Baulkham Hills in late April and early May 2005. The first count was sexual assault, specifically anal rape of his domestic partner without her consent. The second count was common assault, arising from a separate incident the following morning in which the appellant struck the complainant's head against a doorframe and pulled her hair while she was carrying their infant son.

The complainant and the appellant had been in a de facto relationship since 1999. The relationship had become troubled by the time of the alleged offences, with the complainant giving evidence of escalating abuse and violence. The appellant was sentenced to an aggregate non-parole period of 3 years and 6 months, with an aggregate balance of term of 2 years.

The appellant brought four grounds of appeal against conviction and also sought leave to appeal against sentence.

  • Whether the trial judge erred in being "satisfied" under s 294B(6) of the Criminal Procedure Act 1986 (NSW) that the complainant was entitled to give evidence via alternative arrangements (rather than in open court in the ordinary way) as provided for in prescribed sexual offence proceedings
  • Whether the trial judge erred in declining to give a specific circumstantial evidence direction to the jury in relation to the expert medical evidence called at trial
  • Whether the jury's verdicts were unreasonable in the circumstances
  • Whether a post-trial pleading by the complainant in civil proceedings, which contained an account of the assault allegedly inconsistent with her trial evidence, constituted fresh evidence revealing a miscarriage of justice
  • Whether the sentence for the common assault count was excessive
  • Whether the accumulation of sentences was inappropriate having regard to the requirements in Pearce v R

Decision

Ground 1: Alternative arrangements for the complainant's evidence. The Court upheld the trial judge's exercise of the discretion under s 294B(6) of the Criminal Procedure Act 1986 to permit alternative arrangements for the complainant's evidence in these prescribed sexual offence proceedings. No error was established in the judge's satisfaction that the complainant was entitled to give evidence in that manner.

Ground 2: Circumstantial evidence direction. The Court found no error in the trial judge's refusal to give a specific circumstantial evidence direction concerning the expert medical evidence given by the two doctors. The Court was not persuaded that the absence of such a direction caused any injustice or that the judge was required to give it in the circumstances.

Ground 3: Unreasonable verdict. The Court dismissed this ground, finding that the jury's verdicts were not unreasonable. The evidence, including the complainant's account and the supporting medical evidence, was sufficient to sustain the convictions.

Ground 4: Fresh evidence. The post-trial civil pleading relied upon as fresh evidence described an assault during a car journey from Bega to Sydney on the same day, allegedly committed by the appellant driving his fingernails into the complainant's neck and pushing her face into the steering wheel. The Court found that this did not establish a miscarriage of justice. The inconsistency between the civil pleading and the trial evidence did not undermine the convictions.

Sentence appeal. The Court granted leave to appeal against sentence but dismissed the appeal. McClellan CJ at CL acknowledged that the trial judge did not follow the precise sentencing methodology required by Pearce v R (that is, imposing individual sentences first and then separately addressing cumulation and totality). However, the Court was not persuaded to intervene because the individual sentences were each justified and the total sentence was appropriate in the circumstances. The common assault was described as having a high degree of objective criminality, and the sentence for the sexual assault was found to be within range, noting that a greater non-parole period would not have been inappropriate given the seriousness of the offence.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A trial judge's decision under s 294B(6) of the Criminal Procedure Act 1986 to permit a complainant in prescribed sexual offence proceedings to give evidence via alternative arrangements will not be disturbed on appeal unless error is demonstrated in the exercise of that satisfaction.
  • No error arises from declining to give a circumstantial evidence direction where the evidence and conduct of the trial do not require it.
  • Post-trial civil pleadings by a complainant that contain accounts with potential inconsistencies do not automatically constitute fresh evidence establishing a miscarriage of justice; the Court of Criminal Appeal will assess whether such material genuinely undermines the verdict.
  • In dismissing the sentence appeal, the Court confirmed that strict adherence to the Pearce v R methodology (sentencing for each offence individually before addressing cumulation) is the proper approach, but a failure to follow that precise form will not necessarily lead to intervention where the individual sentences and the total sentence are each appropriate.
  • Significant professional background and community contributions, including service in remote and Aboriginal communities, are relevant to prospects of rehabilitation at sentencing, but do not of themselves render an otherwise appropriate sentence excessive.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4 (standard non-parole periods)
- Criminal Procedure Act 1986 (NSW), s 294B
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Craig v The King (1933) 49 CLR 429
- House v The King (1936) 55 CLR 499
- Plomp v The Queen (1963) 110 CLR 234
- R v Taouk [2005] NSWCCA 155; (2005) 154 A Crim R 69