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68
Court of Criminal Appeal 9 December 2011

ARS v R

[2011] NSWCCA 266

Sexual offences
CRIMINAL LAW APPEAL CONVICTION APPEAL CONVICTION APPEAL

Citation: ARS v R [2011] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 9 December 2011
Judge(s): Bathurst CJ (with James J and Johnson J agreeing)

Background

The appellant was convicted in April 2010 on one count of persistent sexual abuse of a child under s 66EA of the Crimes Act 1900 (NSW). Section 66EA creates a single offence where a person engages in conduct constituting sexual offences against a child on at least three separate occasions. The appellant was sentenced to 10 years' non-parole period with a head sentence of 14 years.

The indictment was structured with the s 66EA count as the primary charge, supported by 13 alternative counts of specific sexual offences and seven additional "described offences." The described offences were not alternative counts but were identified on the indictment as conduct that could be used to establish the s 66EA charge. The offending spanned from 2002 to 2007 and involved a child who was under the appellant's authority throughout.

The appellant appealed against both conviction and sentence on multiple grounds, challenging the fairness of the trial, the structure of the indictment, the adequacy of particularisation, the use of uncharged acts evidence, and the basis on which the sentencing judge proceeded.

  • Whether the structure of the indictment rendered the trial unfair
  • Whether the jury was required to unanimously identify the specific three incidents underlying the s 66EA conviction
  • Whether the charges were sufficiently particularised
  • Whether relationship evidence, context evidence, and evidence of uncharged acts was misused by the jury
  • Whether any charges were bad for latent duplicity (meaning a single charge that secretly encompasses multiple distinct offences)
  • Whether sufficient evidence existed to leave the charges to the jury
  • Whether a covertly recorded conversation between the complainant and the appellant was admissible under s 138 of the Evidence Act 1995
  • Whether the sentencing judge was required to sentence on the basis of all charges laid, given the jury did not specify which acts founded the conviction

Decision

The Court of Criminal Appeal dismissed the conviction appeal in its entirety. Bathurst CJ, with James J and Johnson J agreeing, addressed each ground methodically and found no error of law or fact sufficient to disturb the conviction.

On the jury unanimity question, the Court confirmed that s 66EA does not require a jury to identify unanimously which three specific occasions they rely upon to reach a verdict. The section is structured as a single composite offence, and the jury need only be satisfied beyond reasonable doubt that at least three separate occasions of the relevant conduct occurred. This approach was consistent with the statute's evident purpose of addressing patterns of abuse that are difficult to particularise precisely.

On the admissibility of the covertly recorded conversation, the Court held the evidence was properly admitted. Although the recording engaged considerations under s 138 of the Evidence Act 1995 (which requires a court to consider whether to exclude improperly or illegally obtained evidence), the trial judge did not err in allowing it into evidence.

On the sentence appeal, the Court acknowledged a genuine difficulty: because the jury returned a general verdict without specifying which acts formed the basis of the conviction, the sentencing judge faced uncertainty about the precise factual foundation. The Court held that the sentencing judge was not required to sentence on the basis of every charged act, nor was the judge required to treat only the minimum of three incidents as proven. The proper approach was to make a general assessment of the frequency and seriousness of the offending, having regard to the duration of the conduct, and to calibrate the sentence accordingly. This was consistent with the approach taken in R v D (1997) 69 SASR 413 and did not involve sentencing in a manner inconsistent with the jury's verdict. Leave to appeal against sentence was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed.
  • Leave to appeal against sentence granted; sentence appeal dismissed.

Key Takeaways

  • Section 66EA of the Crimes Act 1900 creates a single composite offence of persistent sexual abuse. A conviction does not require the jury to unanimously agree on which specific three occasions of abuse occurred, only that at least three occasions are established beyond reasonable doubt.

  • Where the jury returns a general verdict under s 66EA without identifying the particular acts relied upon, the sentencing court is not required to sentence on every charged act. Instead, the court must make a general assessment of the frequency and seriousness of the overall offending.

  • Sufficient particularisation of charges under s 66EA can be achieved by describing offences occurring within time bands and at specified locations, even where the precise dates cannot be established. The section is designed for patterns of abuse where individual incidents are difficult to isolate.

  • Evidence of uncharged sexual acts admitted as relationship or context evidence does not necessarily constitute misuse by a jury, provided the trial judge has given appropriate directions. No such misuse was established on the facts of this case.

  • Under s 138 of the Evidence Act 1995, a court retains discretion to admit improperly or illegally obtained evidence. The Court of Criminal Appeal found no error in the trial judge's decision to admit the covertly recorded conversation in the circumstances of this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 66C, 66EA
- Evidence Act 1995 (NSW), s 138
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Listening Devices Act 1984 (NSW)

Cases:
- Carney v R; Cambey v R [2011] NSWCCA 223
- Cheung v R [2001] HCA 67; (2001) 209 CLR 1
- Darwiche v R [2011] NSWCCA 62
- Glennon v R [1994] HCA 7; (1994) 179 CLR 1
- HML v R [2008] HCA 16; (2008) 235 CLR 334
- KBT v R [1997] HCA 54; (1997) 191 CLR 417
- KRM v R [2001] HCA 11; (2001) 206 CLR 221
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- R v D (1997) 69 SASR 413
- R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
- R v Fitzgerald [2004] NSWCCA 5; (2004) 59 NSWLR 493
- R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310
- R v Isaacs (1997) 41 NSWLR 374
- R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466
- L'Estrange v R [2011] NSWCCA 89