Citation: RWB v R; R v RWB [2010] NSWCCA 147
Court: New South Wales Court of Criminal Appeal
Date: 12 July 2010
Judge(s): Simpson J (primary judgment); Johnson J; McCallum J (both agreeing)
Background
The appellant was convicted by a District Court jury of 12 counts relating to a continuing course of sexual offending against his niece. The offences occurred between January 1990 and April 1991, when the complainant was aged approximately six to seven years old. The charges included sexual intercourse with a child under 10, assault with an act of indecency on a person under 10, and inciting an act of indecency by a person under 16.
The appellant denied all allegations and gave evidence at trial. His niece's evidence formed the central basis of the Crown case. He raised, for the first time in cross-examination, suggestions about the conduct of the complainant's father, which had not been put to the complainant during her evidence.
Two grounds of appeal against conviction were pursued. Separately, the Crown appealed against the sentences imposed by Madgwick ADCJ in the District Court, contending they were inadequate.
Legal Issues
- Whether the trial judge's direction to the jury on "beyond reasonable doubt" was inadequate or erroneous
- Whether the trial judge's direction regarding the rule in Browne v Dunn (the obligation on a party to put matters to a witness before relying on contradictory evidence) gave rise to a miscarriage of justice
- Whether leave to appeal was required under s 5(1)(b) of the Criminal Appeal Act 1912, given the grounds were not objected to at trial
- Whether, even if errors were established, the proviso under s 6 of the Criminal Appeal Act applied to preclude the appeal succeeding
- Whether the sentences imposed by the District Court were infected by error and were manifestly inadequate
Decision
Appeal against conviction
The Court of Criminal Appeal granted leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912, accepting that the grounds did not involve questions of law alone and that leave was therefore required. The Court determined both grounds on their merits rather than dismissing them on the basis that no objection had been taken at trial.
On the "beyond reasonable doubt" direction, the Court found that the circumstances that might have warranted an expanded direction did not arise. No miscarriage of justice resulted from the direction given.
On the Browne v Dunn direction, the Court accepted that a Crown prosecutor's submission had been adopted by the trial judge in the jury direction, and that this raised some concern. The Court cautioned that care must be taken when directing a jury about defence counsel's failure to comply with the rule in Browne v Dunn, given the potential practical effect on the jury's assessment of the accused. However, the Court found no substantial miscarriage of justice resulted. All three judges independently assessed the whole of the trial record in accordance with Weiss v R and were each satisfied that the evidence proved the appellant's guilt beyond reasonable doubt.
Crown appeal against sentence
The Court allowed the Crown appeal and quashed all sentences. The sentencing judge had erred in several respects: failing to impose sentences in accordance with the principles in Pearce v The Queen (which requires appropriate accumulation when multiple offences are sentenced together); impermissibly taking into account the hardship of the appellant's custody conditions; and imposing sentences that failed to reflect the criminality and objective gravity of the offences. The Court also noted that the aggregate sentence was manifestly inadequate. The appellant was re-sentenced, with a longer total period of imprisonment and a restructured accumulation of sentences across the individual counts and incidents.
Orders Made
- Leave granted to appeal against each conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912
- Appeal against conviction dismissed
- Crown appeal allowed; all sentences quashed
- Appellant re-sentenced, with sentences structured across seven incidents, producing a final non-parole period commencing 1 October 2013 and expiring 31 May 2018, with a balance of term expiring 31 March 2021
Key Takeaways
- Caution is required when a trial judge adopts a Crown prosecutor's submission as the basis for a jury direction regarding defence counsel's failure to comply with the rule in Browne v Dunn, given the risk that such a direction may adversely colour the jury's assessment of the accused's credibility.
- Where grounds of appeal relate to directions not objected to at trial, and those grounds do not involve a question of law alone, leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 is required and the grounds are to be determined on their merits.
- Even where errors in jury directions are established, the proviso under s 6 of the Criminal Appeal Act will apply if the Court is satisfied, after independently assessing the whole trial record under Weiss v R, that no substantial miscarriage of justice occurred.
- Hardship in custody conditions is not a permissible factor in sentencing; the Court of Criminal Appeal confirmed it was an error for the District Court to take that circumstance into account.
- When sentencing for multiple offences, the principles in Pearce v The Queen governing accumulation must be applied, and care must be taken not to evaluate the adequacy of historic sentences by reference to current sentencing expectations.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61E, 61M, 61N, 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6
- Criminal Appeal Rules, r 4
Cases
- Browne v Dunn (1893) 6 R 67
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Weiss v R [2005] HCA 81; 224 CLR 300
- Rasic v R [2009] NSWCCA 202
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Birks (1990) 19 NSWLR 677
- Clinton v R [2009] NSWCCA 276
- R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
- Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1