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21
Court of Criminal Appeal 13 December 2010

BP v R; R v BP

[2010] NSWCCA 303

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION TENDENCY EVIDENCE COINCIDENCE EVIDENCE WHETHER SIGNIFICANT PROBATIVE VALUE WHETHER ERRORS IN DIRECTIONS TO JURY.

Citation: BP v R; R v BP [2010] NSWCCA 303
Court: New South Wales Court of Criminal Appeal
Date: 13 December 2010
Judge(s): Hodgson JA; Price J; Fullerton J

Background

The appellant was tried in the District Court on eleven counts of sexual assault involving three complainants: his daughter (SP), his granddaughter (TM), and his niece (TP). The alleged offending spanned several decades, from the early 1970s through to 2006, and occurred across two locations in regional New South Wales.

Following a jury trial before Boulton ADCJ, the trial judge directed a verdict of not guilty on one count. The jury acquitted on six further counts and returned guilty verdicts on four counts: one count of indecent assault on SP, two counts of aggravated indecent assault on TP, and one additional count of aggravated indecent assault on TP. The sentencing judge imposed a total effective term of 32 months imprisonment with a non-parole period of 16 months.

Two appeals came before the Court of Criminal Appeal. The appellant challenged his convictions, raising issues about evidentiary rulings and jury directions. The Crown separately appealed the sentences as manifestly inadequate.

  • Whether the trial should have been conducted as separate trials for each complainant, rather than as a single joint trial
  • Whether the tendency and coincidence evidence (evidence that the same accused displayed a pattern of similar conduct across multiple complainants) had sufficient probative value to be admitted under the Evidence Act 1995
  • Whether the probative value of that evidence was substantially outweighed by the danger of unfair prejudice to the accused
  • Whether there was a real risk of concoction or contamination of evidence among the complainants, such that the evidence should have been excluded
  • Whether the trial judge's directions to the jury on tendency and coincidence evidence were adequate
  • Whether the sentencing judge erred by imposing individually lenient sentences and by failing to accumulate those sentences sufficiently, producing an aggregate term that was manifestly inadequate

Decision

Conviction appeal dismissed. The Court of Criminal Appeal found no error in the trial judge's decisions to admit the tendency and coincidence evidence and to conduct a joint trial. The evidence from the three complainants was found to carry significant probative value, given the similarities in the alleged conduct across different complainants and time periods. The Court was not persuaded that any real risk of concoction or contamination between the complainants undermined the probative force of that evidence.

On the jury directions, the Court found no material error in the way the trial judge explained how the jury could use the evidence of each complainant when considering the charges relating to the others. Any minor imperfections in the directions did not give rise to a miscarriage of justice.

Crown sentence appeal allowed in part. The Court found that the sentencing judge had fallen into error by imposing sentences that were individually and collectively inadequate for the gravity of the offending. The original accumulation of the sentences was insufficient to reflect the overall criminality involved. The Court resentenced on three of the four guilty counts and applied a greater degree of accumulation, producing an effective sentence of four years imprisonment with a non-parole period of two years and three months. The sentence imposed on count 11 was confirmed without alteration.

In modulating the resentence, the Court took into account the appellant's age, his poor general health (including a urological condition), and the circumstances as disclosed in correspondence from Justice Health. However, it found that those matters did not warrant dismissing the Crown appeal outright.

Orders Made

  • Conviction appeal dismissed.
  • Crown sentence appeal allowed in part.
  • Sentence on count 11 confirmed.
  • Sentences on counts 2, 8 and 10 quashed and replaced:
  • Count 10: 2 years imprisonment commencing 13 November 2009, non-parole period of 12 months expiring 12 November 2010.
  • Count 8: 2 years imprisonment commencing 13 March 2010, non-parole period of 12 months expiring 12 March 2011.
  • Count 2: 3 years imprisonment commencing 13 September 2010, non-parole period of 15 months expiring 12 December 2011.
  • Effective sentence: 4 years imprisonment with a non-parole period of 2 years and 3 months; earliest parole eligibility 12 December 2011.

Key Takeaways

  • Tendency and coincidence evidence from multiple complainants in a single trial can be admitted where it carries significant probative value under the Evidence Act 1995, and where the probative value is not substantially outweighed by the risk of unfair prejudice.
  • A real risk of concoction or contamination of evidence among complainants can defeat the admissibility of tendency and coincidence evidence, but that risk must be an actual one established on the facts; the Court of Criminal Appeal found no such real risk was demonstrated here.
  • In dismissing the conviction appeal, the Court confirmed that jury directions on tendency and coincidence evidence will not be found to miscarry merely because of minor imperfections, provided the directions conveyed the essential limits on the use of that evidence.
  • Where multiple sentences are imposed for serious sexual offences against children, the degree of accumulation must adequately reflect the totality of the criminality involved; failure to accumulate sufficiently can render an aggregate sentence manifestly inadequate and susceptible to Crown appeal.
  • Poor health and advanced age may warrant some moderation of penalty on resentence, but the Court of Criminal Appeal held that those factors alone did not provide a basis to dismiss a Crown appeal where the original sentences were demonstrably inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 76 (since repealed)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), s 29
- Evidence Act 1995 (NSW), ss 97, 98, 101
- Parole of Prisoners Act 1966

Cases:
- AJB v R [2007] NSWCCA 51
- Bradbery v R [2008] NSWCCA 93
- CGL v DPP [2010] VSCA 26
- GRD v R [2009] NSWCCA 149
- Hoch v The Queen (1988) 165 CLR 292
- Nelson v R [2007] NSWCCA 221
- O'Keefe v R [2009] NSWCCA 121
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Cittadini [2008] NSWCCA 256
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- R v Ford [2009] NSWCCA 306
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v OGD (No 2) [2000] NSWCCA 404; 50 NSWLR 433
- R v PWD [2010] NSWCCA 209
- R v Suteski [2002] NSWCCA 509; 56 NSWLR 182