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Court of Criminal Appeal 23 December 2008

GILLIES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

[2008] NSWCCA 339

Sexual offences
APPEAL AND NEW TRIAL CRIMINAL APPEAL MISCARRIAGE OF JUSTICE UNFAIR TRIAL INCOMPETENCE OF COUNSEL INSTRUCTIONS WITHDRAWN

Citation: Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 23 December 2008
Judge(s): Basten JA, Hislop J, Price J

Background

The appellant was convicted in the District Court on one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), following a trial concerning events on the night of 9 to 10 July 2004 at his home near Newcastle. The complainant, with whom he was in a relationship, had consumed alcohol that evening and later reported having no memory of events after arriving at his home. She subsequently discovered videotapes depicting sexual activity involving herself and the appellant.

The appellant faced five charges in total, including three counts of sexual intercourse without consent, one count of attempted sexual intercourse without consent, and one count of assault with an act of indecency. He was acquitted on all counts except count five, the final sexual intercourse without consent charge. He was sentenced to a non-parole period of five years commencing 17 July 2006, with a further term of one year and eight months.

The appellant represented himself on appeal. He raised a wide range of grounds challenging both his conviction and his sentence, with many complaints centred on the conduct of his legal representatives at trial.

  • Whether hostility between the trial judge and defence counsel, or the incompetence of defence counsel, resulted in an unfair trial or a miscarriage of justice
  • Whether the withdrawal of counsel's brief and subsequent applications for adjournment and discharge of the jury were improperly refused
  • Whether the trial judge wrongly disallowed certain cross-examination questions directed to the complainant, contrary to the Criminal Procedure Act 1986 (NSW) s 275A
  • Whether an admission made under s 191 of the Evidence Act 1995 (NSW) regarding the authenticity of videotapes was properly binding or could be challenged on appeal
  • Whether the verdicts were inconsistent, rendering the conviction unsafe
  • Whether the sentencing judge erred by failing to apply a discount for the utilitarian benefit of the manner in which the appellant conducted his trial

Decision

The Court granted leave to appeal on all grounds requiring it, given the seriousness of the offence and the nature of the issues raised. However, it dismissed both the conviction and sentence appeals in their entirety.

On the conduct of trial counsel, the Court examined complaints about alleged hostility between the trial judge and counsel, the withdrawal of the brief, applications for adjournment and discharge of the jury, and broader claims of incompetence. The Court considered evidence given by the appellant and his partner about conversations with lawyers during the trial. Despite the variety of complaints, the Court found no basis to conclude that the conduct of the trial had resulted in an unfair trial or a miscarriage of justice.

Regarding the videotape admission made under s 191 of the Evidence Act 1995, which acknowledged the authenticity of the recordings, the Court rejected the appellant's attempt to challenge that agreement on appeal. On the question of alleged inconsistency between the verdicts, the Court did not accept that the acquittals on the other counts were logically irreconcilable with the conviction on count five.

On sentence, the appellant argued the sentencing judge should have applied a discount for the utilitarian benefit of the way he conducted his trial, relying on authority that refraining from dilatory and technical objections of no merit can be a mitigating factor. The Court rejected this submission, noting that no such argument had been put to the sentencing judge and that the reduction of the non-parole period from the standard seven years to five years already provided adequate allowance for any time saved by the admission regarding the videotape.

Orders Made

  • Leave granted to appeal against conviction (to the extent necessary) and sentence
  • Appeal against conviction dismissed
  • Appeal against sentence dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that complaints about the conduct of trial lawyers, including allegations of hostility with the trial judge and withdrawal of a brief, will not automatically establish an unfair trial or miscarriage of justice; the appellant must demonstrate actual prejudice to the fairness of the proceedings.
  • A formal admission made at trial under s 191 of the Evidence Act 1995 (NSW) regarding agreed facts is not readily open to challenge on appeal, particularly where the admission reflected the practical reality of the evidence.
  • Alleged inconsistency between jury verdicts requires a showing of logical irreconcilability; acquittals on related counts do not, without more, undermine a conviction on a remaining count.
  • Where a sentencing submission is not made to the sentencing judge, an appellate court will be reluctant to entertain it for the first time on appeal, especially where the existing sentence adequately accounts for any relevant mitigating factors.
  • A court of criminal appeal will interfere with sentence only where error is established and it forms the positive opinion that a less severe sentence is warranted in law, consistent with the principles in House v The King (1936) 55 CLR 499 and R v Simpson [2001] NSWCCA 534.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 166, 275A, 293
- Evidence Act 1995 (NSW), ss 41, 137, 191
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
- Summary Offences Act 1998 (NSW), s 21G

Cases:
- Ali v The Queen [2005] HCA 8; 79 ALJR 662
- Banditt v The Queen [2005] HCA 80; 224 CLR 262
- Carlton v The Queen [2008] NSWCCA 244
- Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385
- Cesan v The Queen [2008] HCA 52; 250 ALR 192
- House v The King [1936] HCA 40; 55 CLR 499
- Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
- MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v Birks (1990) 19 NSWLR 677
- R v Doff [2005] NSWCCA 119; 54 ASCR 200
- R v Lars (1994) 73 A Crim R 91
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124