AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 30 July 2010

Chivers v R

[2010] NSWCCA 134

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT LEAVE TO APPEAL GRANTED APPEAL UPHELD

Citation: Chivers v R [2010] NSWCCA 134
Court: New South Wales Court of Criminal Appeal
Date: 30 July 2010
Judge(s): Basten JA; Hulme J; Schmidt J

Background

The appellant was charged with having sexual intercourse with a young complainant without consent, under a provision of the Crimes Act 1900 (NSW) as it stood in 1983 to 1985, when the offences were alleged to have occurred. Because the complainant was approximately 10 or 11 years old at the relevant time, her identity was subject to statutory suppression. The same indictment included charges relating to the complainant's sister, on which the appellant was acquitted.

The appellant was convicted on the charge relating to the complainant and sentenced in the District Court to five years imprisonment (with a three-year non-parole period). He was separately sentenced on a common assault charge involving another young woman in his household. A third set of sentences had been imposed by a different District Court judge in later proceedings.

The appellant challenged his conviction on two grounds relating to the trial judge's directions to the jury. He also sought leave to appeal against both the sentence imposed on the conviction and the sentence for common assault. Separately, the court considered whether the commencement dates of the other sentences required adjustment.

  • Whether the trial judge adequately identified for the jury the specific act or acts constituting the offence charged in count 1
  • Whether the trial judge was required to direct the jury to scrutinise the complainant's evidence with great care, given that it was uncorroborated and that uncharged incidents featured in the evidence
  • Whether the sentence for common assault was manifestly excessive
  • Whether the commencement dates of sentences imposed in the later proceedings required variation under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Conviction appeal: The Court granted leave to appeal on both grounds, which did not raise pure questions of law and therefore required leave under s 5(1) of the Criminal Appeal Act 1912 (NSW). The Court identified several features warranting that grant: uncertainty in the prosecution case about the number of incidents, the jury's differential verdicts (acquitting on the sister's counts while convicting on the complainant's count), and the fact that further directions had been sought and partly given at trial.

The Court upheld the conviction appeal. It found that the trial judge's directions were inadequate in two respects. The summing-up failed to sufficiently identify which specific act or acts the jury needed to be satisfied about to constitute count 1, a significant problem given the multiplicity of incidents in the evidence. The judge also failed to give a proper direction requiring the jury to scrutinise the complainant's evidence with great care, as required by the principles in Longman v The Queen (1989) 168 CLR 79 and related authorities, where evidence is uncorroborated and involves historic allegations. The conviction was quashed and a new trial ordered.

Sentence appeals: The Court refused leave to appeal against the common assault sentence. It noted that it was preferable for that appeal to be dealt with in the context of the wider appeal proceedings concerning the same victim, rather than in isolation.

Commencement dates: The Court exercised its power under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to vary the commencement dates of the sentences imposed in the later proceedings by Tupman DCJ. Those dates were moved forward to reflect the proper sequencing of the custodial terms.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction upheld
  • Conviction and sentence on count 1 (sexual intercourse without consent) quashed; new trial ordered
  • Leave to appeal against the common assault sentence refused
  • Commencement dates of sentences imposed by Tupman DCJ varied as follows:
  • Aggravated indecent assault (12 months fixed term): commencing 16 June 2008
  • Sexual intercourse with person aged 10 to 16 in circumstances of aggravation (3 years fixed term): commencing 16 June 2009
  • Act of indecency towards person under 16 (12 months fixed term): commencing 16 June 2009
  • Two counts of sexual intercourse with person aged 10 to 16 in circumstances of aggravation (3 years each): commencing 16 June 2010
  • Two counts of attempted aggravated sexual intercourse without consent (3 years each): commencing 16 June 2011
  • Sexual intercourse with person aged 10 to 16 in circumstances of aggravation (4 years fixed term): commencing 16 June 2011
  • Common assault (18 months fixed term): commencing 16 June 2012
  • Sexual intercourse without consent in circumstances of aggravation (10 years, non-parole period 5 years): commencing 16 June 2013

Key Takeaways

  • A conviction will be quashed where the trial judge's summing-up fails to adequately identify the specific act the jury must find proven, particularly in cases involving multiple alleged incidents spanning an extended period.
  • Where a complainant's evidence is uncorroborated and relates to historic sexual offences, the principles from Longman v The Queen require the trial judge to direct the jury to scrutinise that evidence with great care. Failure to give such a direction can constitute a sufficient basis to set aside a conviction.
  • The differential verdicts in this case (acquittal on charges involving the complainant's sister but conviction on the complainant's charge) contributed to the Court of Criminal Appeal's conclusion that adequate directions were critical and that the absence of a proper Longman direction was not a minor deficiency.
  • Under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court of Criminal Appeal has power to vary the commencement dates of sentences where the original sequencing requires correction in light of other proceedings.
  • Refusing leave to appeal a sentence is not necessarily the end of the matter. The Court noted that the common assault sentence appeal was better addressed in the context of related appeal proceedings involving the same victim, leaving open the possibility of reconsideration in that broader context.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Crimes Act 1900 (NSW), s 61D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 45, 59
- Evidence Act 1995 (NSW)
- Prisons Act 1952 (NSW), s 41
- Prisons Regulations 1968, reg 110A
- Probation and Parole Act 1983 (NSW)
- Sentencing Act 1989 (NSW), s 46

Cases:
- Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
- Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
- Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162
- Radenkovic v The Queen [1990] HCA 54; 170 CLR 623
- Rasic v R [2009] NSWCCA 202
- DJV v R [2008] NSWCCA 272
- DTS v The Queen [2008] NSWCCA 329
- R v MJR [2002] NSWCCA 129
- R v Murray (1987) 11 NSWLR 12
- Lozanovski v R [2006] NSWCCA 143
- Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
- Kelleher v Parole Board of New South Wales [1984] HCA 77