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15
Court of Criminal Appeal 8 December 2011

RR v R

[2011] NSWCCA 235

Also reported as (2011) 216 A Crim R 489
Sexual offences
CRIMINAL LAW APPEAL CONVICTION EVIDENCE FALSE STATEMENTS APPEAL

Citation: RR v R [2011] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 8 December 2011
Judges: Bathurst CJ at [1]; James J at [127]; Johnson J at [128]

Background

The appellant was convicted by a jury in the Newcastle District Court of sexual intercourse with a child under the age of 10 years, contrary to section 66A of the Crimes Act 1900. The offence was alleged to have occurred on 22 March 2008. The complainant was a young girl who had been playing at the appellant's home with his son.

The primary evidence at trial came from a DVD recording of the complainant's evidence at an earlier aborted trial, which included verification of her police interview conducted on the day of the alleged incident. The appellant denied the offence. Evidence was also given by the complainant's mother, who recounted what her daughter had told her shortly after the alleged events.

Following conviction, the appellant was sentenced to a non-parole period of nine years commencing 10 October 2008, with a balance of term of three years, for a total sentence of 12 years. He appealed against both conviction and sentence.

  • Whether the trial judge erred in permitting the prosecution to rely on the appellant's denial as a lie evidencing consciousness of guilt, and in directing the jury accordingly
  • Whether the trial judge's summing-up failed to adequately put the defence case to the jury
  • Whether any objections not taken at trial gave rise to a miscarriage of justice under Criminal Appeal Rules r 4
  • Whether the sentence was manifestly excessive

Decision

Consciousness of guilt direction. The Court examined whether the appellant's denial to the complainant's mother, made before any formal allegation or charge had been laid, was capable of amounting to a lie evidencing consciousness of guilt. The Court applied the well-established framework from Edwards v R (1993) 178 CLR 193, which requires that before such a direction is given, the jury must be satisfied that the accused made the statement, that it was deliberate, that it was made because the accused was aware of his guilt, and that there was no other explanation for it. After reviewing the circumstances in which the denial was made, the Court concluded the trial judge did not err in allowing this evidence to be used in that way or in giving the direction.

Summing-up of the defence case. The appellant argued that the trial judge failed to properly put the defence case, including the suggestion that the complainant had been coached by her mother and the significance of certain inconsistencies in the complainant's evidence. The Court acknowledged that a trial judge is obliged to present the defence case fairly and adequately. However, having reviewed the summing-up as a whole, the Court was not persuaded that the trial judge's presentation of the defence case constituted a misdirection or gave rise to a miscarriage of justice, particularly given that many objections were not raised at trial.

Objections not taken below. The Court noted that under Criminal Appeal Rules r 4, grounds not raised at trial require leave. Several complaints about the summing-up had not been the subject of objection during the trial. The Court considered whether any failure nonetheless occasioned a substantial miscarriage of justice, and concluded it had not.

Sentence. On the question of manifest excess, the Court applied the principles from House v The King (1936) 55 CLR 499, confirming that appellate intervention is warranted only where the result discloses a misapplication of principle, not merely because the appellate court might have imposed a different sentence. The Court found the sentence, while substantial, fell within the proper range for this offence committed by this offender. No specific error in the exercise of sentencing discretion was demonstrated. Leave to appeal against sentence was granted, but the appeal was dismissed.

Orders Made

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

Key Takeaways

  • A "lies used as evidence of consciousness of guilt" direction is only available where the prosecution establishes all elements of the Edwards v R framework: that the lie was deliberate, made with awareness of guilt, and not otherwise explicable.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the obligation on a trial judge to put the defence case adequately must be assessed by reference to the summing-up as a whole, not isolated passages.
  • Where grounds of appeal were not the subject of objection at trial, the appellate court applies a miscarriage of justice standard rather than entertaining the ground as of right under Criminal Appeal Rules r 4.
  • Manifest excess as a ground of sentence appeal requires more than a marked difference from other sentences: the difference must be such that a misapplication of principle can be inferred, even if the precise error is not apparent from the reasons.
  • No error was established in the sentencing discretion exercised below, and a non-parole period of nine years for an offence against a child under 10 years was held to fall within the proper sentencing range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 66C(1)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Rules
- Court of Appeal Act 1912

Cases
- Edwards v R [1993] HCA 63; (1993) 178 CLR 193
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Pemble v R [1971] HCA 20; (1971) 124 CLR 107
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 85 ALJR 1154
- Hili v R; Jones v R [2010] HCA 45; (2010) 85 ALJR 195
- Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
- CC v R [2010] NSWCCA 337
- Darwiche v R [2011] NSWCCA 62
- Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- Condon v R (1995) 83 A Crim R 335
- Tekely v R [2007] NSWCCA 75
- Picken v R [2007] NSWCCA 319
- Han v R [2009] NSWCCA 300
- Eedens v R [2009] NSWCCA 254
- R v Cook [2004] NSWCCA 52
- R v Araya [2005] NSWCCA 283; 155 A Crim R 555