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6
Court of Criminal Appeal 26 July 2012

DS v Regina

[2012] NSWCCA 159

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT OFFENCES WHETHER TRIAL WAS HELD ACCORDING TO LAW WHETHER TRIAL A NULLITY NO REQUIREMENT TO RE

Citation: DS v Regina [2012] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 26 July 2012
Judges: Beazley JA; Harrison J; McCallum J

Background

The appellant was convicted by a jury of four sexual offences against a child complainant, committed over a period spanning approximately 1999 to 2007. The complainant was as young as four or five years old at the start of the offending. The appellant had been in a relationship with the complainant's mother and regularly cared for the complainant while the mother worked.

The offences included acts of indecency on a child under ten (two counts), persistent sexual abuse of a child under 18, and inciting a child under ten to commit an act of indecency. A fifth count was acquitted by the jury. The trial judge sentenced the appellant to a total effective non-parole period of 9 years 9 months and an additional term of 3 years 3 months.

The appellant appealed against both conviction and sentence.

  • Whether the trial was a nullity because the appellant was not arraigned in accordance with the mandatory requirements of s 130(3)(b) of the Criminal Procedure Act 1986, and was not re-arraigned after the jury was empanelled.
  • Whether the Crown Prosecutor's closing address, which drew the jury's attention to the complainant's "Why would I lie about that?" response in cross-examination, gave rise to a miscarriage of justice.
  • Whether the trial judge's direction to the jury about the "Why would I lie?" response was adequate.
  • Whether the trial judge gave a proper warning under s 165 of the Evidence Act 1995 about the unreliability of evidence of admissions.
  • Whether any combination of the alleged defects together constituted a miscarriage of justice.
  • On sentence: whether the trial judge misstated the standard non-parole period for the count 3 offence, and whether this error infected the non-parole period imposed for that count.
  • Whether the trial judge wrongly treated the commission of offences in the home as an aggravating factor.
  • Whether the trial judge erred in failing to find special circumstances warranting a different ratio of non-parole to additional term.

Decision

Conviction appeal dismissed in full.

On the arraignment ground, the Court found that while the appellant had not been arraigned in strict compliance with s 130(3)(b), there was no requirement to re-arraign an accused after jury empanelment where no legal issue arose requiring the exercise of the court's jurisdiction under s 130(2). The trial was not a nullity.

On the "Why would I lie?" grounds, the Court accepted that a complainant's motive to lie is a matter for the jury's determination, and it is impermissible for the Crown to suggest that the accused bears any onus to establish that the complainant was lying. However, the Court found that the Crown Prosecutor was permitted to refer to the complainant's actual evidence. The trial judge's directions, which reminded the jury that the Crown bore the burden of proof beyond reasonable doubt and that assessing the complainant's evidence was a matter for the jury, were adequate. A general statement that there may be many reasons a person has a motive to lie was sufficient in the circumstances.

On the admissions warning, the Court noted that defence counsel had specifically agreed to the terms of the direction the trial judge proposed and gave. In those circumstances, the trial judge was not required to give the more specific warning and information mandated by s 165(2) of the Evidence Act 1995. The Court was also not satisfied that the combination of alleged defects produced a miscarriage of justice.

Sentence appeal partly allowed.

The Court identified a genuine error: the trial judge misstated the standard non-parole period applicable to the count 3 offence (s 61M(2) of the Crimes Act 1900) as it stood at the time of the offending. The trial judge applied a standard non-parole period of 5 years when the correct period was 3 years. Because the judge had assessed the offending as below the mid-range of objective seriousness, this error directly infected the non-parole period she imposed for count 3. The sentences for counts 3 and 5 were quashed and the appellant was re-sentenced. The Court also found that the trial judge erred in treating the commission of counts 1 and 2 in the home as an aggravating factor, but concluded no different sentence was warranted for those counts. The Court declined to find special circumstances and rejected the accumulation ground. Importantly, after re-sentencing, the total effective sentence remained the same.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Sentences for counts 1 and 2 confirmed.
  • Sentences for counts 3 and 5 quashed.
  • Appellant re-sentenced as follows:
  • Count 2: Fixed term of 2 years, commencing 20 May 2009, expiring 19 May 2011.
  • Count 1: Fixed term of 2 years 6 months, commencing 20 November 2009, expiring 19 May 2012.
  • Count 3: Non-parole period of 3 years (20 May 2010 to 19 May 2013), additional term of 1 year (20 May 2013 to 19 May 2014).
  • Count 5: Non-parole period of 6 years 9 months (20 May 2012 to 19 February 2019), balance of term of 3 years 3 months (20 February 2019 to 19 May 2022).
  • Earliest eligible release date noted as 19 February 2019.

Key Takeaways

  • A trial is not automatically rendered a nullity by non-compliance with arraignment requirements under s 130(3)(b) of the Criminal Procedure Act 1986, and there is no blanket requirement to re-arraign an accused after jury empanelment where no relevant jurisdictional issue arises under s 130(2).
  • In closing address, the Crown may refer to a complainant's evidence, including a "Why would I lie?" response, but it is impermissible to frame that evidence in a way that shifts any onus onto the accused to establish that the complainant was lying.
  • Where defence counsel specifically agrees to the terms of a proposed jury direction, the trial judge is not required to go further and give the full specific warning and information set out in s 165(2) of the Evidence Act 1995 regarding the unreliability of admissions.
  • Applying an incorrect standard non-parole period to an offence assessed as below mid-range seriousness constitutes an error that directly infects the sentence imposed, warranting intervention on appeal even where the overall total sentence does not ultimately change.
  • A sentencing error on one or more counts does not necessarily produce a different total effective sentence where the court on re-sentencing adopts the same pattern of partial accumulation and reaches the same overall result.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A, 66EA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Table to Pt 4, Div 1A
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 130
- Evidence Act 1995 (NSW), s 165
- Jury Act 1977 (NSW)

Cases:
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- Doe v R [2008] NSWCCA 203; 187 A Crim R 328
- EK v R [2010] NSWCCA 199
- Ingham v R [2011] NSWCCA 88
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Palmer v R [1998] HCA 2; 193 CLR 1
- R v Comert [2004] NSWCCA 125