Citation: KSC v R [2012] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 23 August 2012
Judge(s): McClellan CJ at CL, Davies J, Fullerton J
Background
The applicant was tried in the District Court on 13 counts of sexual assault and one count of common assault alleged to have occurred between 1997 and 2003. The complainant was the niece of the applicant's wife, who had come to live with the family at age 12. The offences spanned multiple locations and years as the complainant grew from childhood into adulthood.
The jury acquitted the applicant on four counts and convicted him on the remaining ten. He was sentenced to an overall term of 15 years imprisonment with a non-parole period of 10 years. The applicant sought leave to appeal both his convictions and his sentence, bringing the appeal well outside the standard time limits.
Legal Issues
- Whether the convictions were unreasonable or unsupported by the evidence
- Whether verdicts on different counts were inconsistent with each other
- Whether the trial judge erred in directions relating to delay in complaint under s 165B of the Evidence Act 1995
- Whether the trial judge erred by referring to "uncharged acts" in summing up
- Whether tendency evidence of a common assault was properly admitted without a tendency notice, and whether the jury was properly directed on its use
- Whether the trial judge erred in failing to caution the jury about uncharged acts as tendency evidence while DVD evidence was playing
- Whether the trial judge erred in admitting evidence of a protected confidence
- Whether the trial judge erred in failing to assist the jury with the meaning of "under authority"
- Whether the sentence for common assault was manifestly excessive
Decision
Conviction appeal (Ground 1: unreasonable verdicts and inconsistency). McClellan CJ at CL dismissed the conviction appeal outright. The apparent inconsistency between certain verdicts was explicable by evidence that dates or locations pleaded in particular counts may have been incorrect, not that the jury disbelieved the complainant's account of the offending overall.
Leave to appeal on remaining conviction grounds (Grounds 2 to 10). The applicant faced the additional hurdle of Rule 4 of the Criminal Appeal Rules, which requires leave to raise grounds relating to directions or evidentiary rulings where no objection was taken at trial. The Court refused leave on all remaining conviction grounds. No miscarriage of justice was established. On the tendency evidence issue, the evidence had actually been relied upon by the applicant's own counsel at trial. On the DVD issue, the trial judge's decision not to interrupt the complainant's recorded evidence was appropriate. On the protected confidence issue and the "under authority" direction, the Court found no error that caused a miscarriage.
Sentence appeal on common assault. The Court found that the 18-month fixed term imposed for the common assault offence was manifestly excessive. Although the assault involved throwing a bowl and grabbing the complainant by the throat, she did not suffer physical injury and her own evidence indicated she understood the applicant had been reacting to gain her attention. The applicant was also found to have been suffering from a genuine mental disorder, including chronic adjustment disorder and features of post-traumatic stress disorder, which reduced the weight of general deterrence. A sentence of three months was substituted.
Orders Made
- Leave to appeal convictions on Grounds 2 to 10 refused
- Conviction appeal on Ground 1 dismissed
- Leave granted to appeal sentence for common assault; sentence of 18 months quashed and replaced with a fixed term of 3 months imprisonment commencing 16 June 2012, to be served wholly concurrently with the other sentences
Key Takeaways
- Apparent inconsistency between jury verdicts does not automatically render a conviction unreasonable; the Court of Criminal Appeal will consider whether the inconsistency is explicable by uncertainty about dates or locations rather than wholesale disbelief of the complainant.
- Under Rule 4 of the Criminal Appeal Rules, an applicant who failed to object at trial must show both an arguable error and a resulting miscarriage of justice. The requirement exists partly to ensure trial judges receive timely assistance from counsel to correct any misdirection.
- Where tendency evidence was not only admitted without objection but was actively relied upon by defence counsel at trial, leave to raise that issue on appeal is unlikely to be granted.
- A sentencing court's finding that an offender suffers from a genuine diagnosed mental disorder is a recognised mitigating factor that reduces the weight given to general deterrence, even when the offending is serious.
- In reducing the common assault sentence, the Court confirmed that manifest excess can be established even within a broader pattern of serious offending, where the specific offence and its circumstances do not justify the term imposed.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 165B
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW), Rule 4
- Criminal Procedure Act 1986 (NSW)
- Criminal Code (Cth), s 474.19
Cases:
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
- Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
- Darwiche & Ors v R [2011] NSWCCA 62
- Chahine v R [2006] NSWCCA 179
- GG v R [2010] NSWCCA 230; (2010) 79 NSWLR 194
- DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463