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Court of Criminal Appeal 8 September 2010

EK v R

[2010] NSWCCA 199

Also reported as (2010) 79 NSWLR 740 (2010) 208 A Crim R 157
Sexual offencesPublic order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES PERVERTING THE COURSE OF JUSTICE CRIMINAL LAW

Citation: EK v R [2010] NSWCCA 199
Court: Court of Criminal Appeal, New South Wales
Date: 8 September 2010
Judge(s): McClellan CJ at CL, Simpson J, RA Hulme J

Background

The appellant was charged with seven sexual offences against his daughter and one count of perverting the course of justice. The sexual offences were alleged to have occurred between January 2001 and November 2003, while the perverting the course of justice count arose from conduct in March 2007 while the appellant was in custody.

A trial commenced in the District Court in June 2007, during which the complainant gave evidence by closed-circuit television. The trial was later discontinued after questions arose about the appellant's fitness to be tried. Following a formal inquiry, the appellant was found unfit for trial and referred to the Mental Health Review Tribunal, which determined he would not become fit within 12 months.

As required by s 19 of the Mental Health (Forensic Provisions) Act 1990, a "special hearing" was then conducted before Hock DCJ and a jury in February 2009. The jury returned verdicts that, on the limited evidence available, the appellant had committed all eight offences. He appealed against both conviction and sentence.

  • Whether a special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act 1990 constitutes "a new trial" or "new trial proceedings" for the purposes of s 306I(1) of the Criminal Procedure Act 1986, thereby permitting the complainant's earlier trial evidence to be tendered without her giving evidence again
  • Whether the trial judge failed to properly direct the jury in relation to evidence of a second pregnancy and associated DNA evidence
  • Whether the sentencing judge erred in treating the commission of the sexual offences in the complainant's home as an aggravating factor

Decision

Admissibility of the complainant's prior evidence (Ground 1)

The central question was whether s 306I(1) of the Criminal Procedure Act, which allows a complainant's original evidence to be tendered in "new trial proceedings" after a trial is discontinued, extended to a special hearing under the Mental Health (Forensic Provisions) Act. Simpson J, applying a purposive approach to statutory construction, concluded that a special hearing does qualify as "new trial proceedings" within the meaning of s 306I(1). The purpose of s 306I is plainly to spare complainants the trauma of giving evidence and being cross-examined a second time. Construing the provision narrowly to exclude special hearings would frustrate that protective purpose, given that such hearings arise precisely because an earlier trial was discontinued.

Simpson J also had regard to the broader statutory context. Section 21(1) of the Mental Health (Forensic Provisions) Act directs that a special hearing be conducted "as nearly as possible as if it were a trial of criminal proceedings." Read together, the two Acts supported the conclusion that s 306I(1) operated to permit the complainant's earlier evidence to be tendered at the special hearing. The appeal on this ground was dismissed.

Jury directions on pregnancy and DNA evidence (Ground 2)

The appellant contended that the trial judge had not adequately directed the jury on evidence of a second pregnancy and related DNA material. The Court of Criminal Appeal found that the trial judge had given appropriate directions on these matters. This ground was found to be without merit and leave to rely upon it was refused.

Aggravating factor of offending in the complainant's home (Ground 3)

The sentencing judge treated the fact that the offences occurred in the complainant's home as an aggravating factor. The Court of Criminal Appeal noted that, under both the common law and the relevant statutory provision (s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999), the "home" aggravating factor applies where an offender intrudes into the victim's home, not where the offender and complainant reside together. The trial judge's approach in this respect reflected an error, one apparently induced by submissions from the Crown Prosecutor and conceded by the applicant's former counsel.

However, the Court declined to intervene on sentence. Even accepting the error, it had no significant bearing on the limiting terms imposed. Given the gravity and duration of the conduct, the Court was satisfied that no lesser sentence was warranted and should have been imposed, applying s 6(3) of the Criminal Appeal Act 1912.

Orders Made

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

Key Takeaways

  • A special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act 1990 constitutes "new trial proceedings" for the purposes of s 306I(1) of the Criminal Procedure Act 1986, allowing a complainant's original trial evidence to be tendered without requiring the complainant to give evidence again.
  • Statutory interpretation in this context required a purposive approach: the Court of Criminal Appeal considered the protective object of s 306I alongside the requirement in s 21(1) of the Mental Health (Forensic Provisions) Act that special hearings be conducted as nearly as possible to ordinary criminal trials.
  • Under both the common law and s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, the aggravating factor of offending in a victim's home applies where an offender intrudes into that home. It does not apply where the offender and complainant are co-residents.
  • Even where a sentencing error is established, the Court of Criminal Appeal will not disturb the sentence if, having regard to the overall gravity of the offending, no lesser sentence was warranted: s 6(3) of the Criminal Appeal Act 1912.
  • In dismissing the appeal on jury directions, the Court confirmed that the adequacy of those directions must be assessed in light of what was actually given to the jury, not merely what the appellant contended was omitted.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 10, 19, 21, 22, 23
- Criminal Procedure Act 1986 (NSW), s 306I
- Criminal Procedure Amendment (Evidence) Act 2005 (NSW)
- Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Evidence Act 1995 (NSW)
- Interpretation Act 1987 (NSW)

Cases
- Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
- Doggett v The Queen (2001) 208 CLR 343
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Qualtieri v R [2006] NSWCCA 95
- R v Gazi Comert [2004] NSWCCA 125
- R v Humphries [2004] NSWCCA 370
- R v Knorr [2005] NSWCCA 70
- R v MAJW [2007] NSWCCA 145
- R v Markuleski (2001) 52 NSWLR 82
- R v Young (1999) 46 NSWLR 681
- R v Zvonaric (2001) 54 NSWLR 1
- Subramaniam v R (2004) 211 ALR 1
- Warren v R [2009] NSWCCA 176