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Court of Criminal Appeal 29 April 2009

CPG v R

[2009] NSWCCA 120

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION PERSISTENT SEXUAL ABUSE OF A CHILD R 4 CRIMINAL APPEAL RULES APPLIED LEAVE TO APPEAL REFUSED

Citation: CPG v R [2009] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 29 April 2009
Judges: McClellan CJ at CL, Buddin J, Rothman J

Background

The applicant was convicted in the District Court on count 1 of persistent sexual abuse of a child under s 66EA(1) of the Crimes Act 1900 (NSW). The complainant was his daughter, who had come to live with him following injuries to her mother. The Crown alleged six separate occasions of sexual offending spanning roughly two years, with the sixth occasion involving five distinct incidents in a single afternoon.

The jury returned a guilty verdict on count 1, making it unnecessary to consider the numerous alternative counts. The applicant then sought leave to appeal to the Court of Criminal Appeal, arguing that the trial judge's directions to the jury contained two significant errors.

Critically, neither complaint had been raised by defence counsel at trial. This meant the applicant required leave to appeal under r 4 of the Criminal Appeal Rules, a higher threshold than an appeal brought as of right.

  • Whether the trial judge erred by directing the jury that the offences must have occurred on "three separate occasions" without also telling them the occasions must have occurred on "separate days," as expressly required by s 66EA(1) of the Crimes Act 1900
  • Whether the trial judge erred by failing to give the jury a "separate consideration" warning in relation to count 1, directing them to consider the evidence for each occasion independently before reaching any conclusion

Decision

On the first ground, the Court accepted that s 66EA(1) requires the relevant conduct to have occurred on three or more separate occasions "occurring on separate days." The trial judge's written and oral directions referred to "separate occasions" without expressly adding the "separate days" requirement. However, the Court found this omission caused no practical problem on the facts: the Crown had alleged six occasions spread across a period from March 2005 to February 2007, with each occasion clearly identified by reference to a specific date or distinct factual context. There was no realistic possibility that the jury would have found three occasions occurring on the same day.

On the second ground, the Court found the trial judge's directions were sufficiently clear and detailed to guide the jury through the evidence relevant to each occasion separately. The written document given to the jury identified each occasion distinctly, set out the specific acts alleged for each, and required unanimity as to which occasions were proved. While a formal separate consideration direction could have been given, its absence did not render the directions inadequate.

Because neither ground had been raised at trial, the Court applied r 4 and concluded both propositions lacked sufficient substance to warrant leave. The Court also reviewed the whole of the evidence and was satisfied that, even if the directions had contained some error, no substantial miscarriage of justice had actually occurred. The complainant's evidence was clear, detailed, and corroborated in part by diary entries and the applicant's own admissions in his police interview and at trial.

Orders Made

  • Leave to appeal refused under r 4 of the Criminal Appeal Rules
  • Appeal dismissed

Key Takeaways

  • Under s 66EA(1) of the Crimes Act 1900, a conviction for persistent sexual abuse of a child requires proof that the relevant conduct occurred on three or more separate occasions "on separate days." A direction that refers only to "separate occasions" without this additional phrase is technically incomplete.
  • No error warranting intervention was established where the omission of the "separate days" language caused no practical risk of a wrong verdict, given the occasions charged were spread across distinct dates and factual circumstances over nearly two years.
  • Failing to give a formal separate consideration warning in relation to the occasions underpinning a persistent sexual abuse charge is not necessarily fatal where the overall directions clearly identify each occasion and require jury unanimity as to which are proved.
  • In dismissing the appeal, the Court applied the principle that grounds not raised at trial require leave under r 4, and leave will be refused where the proposed grounds lack substance and no miscarriage of justice can be identified.
  • A review of the whole evidence can inform whether the proviso applies: where the complainant's account was clear, internally detailed, and partially corroborated by the applicant's own admissions, the Court was satisfied the guilty verdict was correct regardless of any directional shortcoming.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61O(1), 66C(2), 66EA(1), 80A(2A)
- Criminal Appeal Rules, r 4

Cases
- Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169
- KBT v R (1997) 191 CLR 417
- R v Maunsa [2001] NSWCCA 427; 125 A Crim R 505