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11
Court of Criminal Appeal 9 November 2012

Norman v R

[2012] NSWCCA 230

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE RESULTED SEXUAL INTERCOURSE WITHOUT CONSENT PAROLE PERIOD

Citation: Norman v R [2012] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 9 November 2012
Judges: Macfarlan JA, Price J, McCallum J

Background

The appellant was convicted in the District Court on three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900, following a trial by judge and jury. All three offences involved anal intercourse alleged to have occurred during the course of his 13-year marriage to the complainant, with the incidents spanning 2002 to 2005.

The complainant gave evidence that the appellant proceeded with anal intercourse on each occasion despite her repeated verbal refusals and physical attempts to push him away. The appellant denied the allegations, contending that intercourse on each occasion was consensual, either expressly or through the complainant's body language. Several witnesses gave evidence of admissions attributed to the appellant and complaints made by the complainant.

The trial judge sentenced the appellant to a total term of seven years and six months imprisonment, with a non-parole period of four years and six months. The appellant appealed against both conviction and sentence.

  • Whether the trial judge erred in declining to admit evidence of an alleged prior gang rape of the complainant
  • Whether the trial judge erred in admitting relationship evidence of prior non-sexual domestic violence
  • Whether the trial judge erred in admitting evidence of the appellant laughing during a confrontation in 2009
  • Whether a miscarriage of justice resulted from the absence at trial of "fresh evidence" concerning the appellant's Asperger's Disorder
  • Whether the sentences imposed were manifestly excessive, and whether the sentencing judge properly assessed objective seriousness in the context of the marital relationship

Decision

Relationship evidence (Ground 2): Macfarlan JA found that certain relationship evidence, specifically evidence of prior non-sexual domestic violence, should not have been admitted. However, applying the test in Weiss v R [2005] HCA 81, his Honour concluded that no substantial miscarriage of justice had occurred. The properly admitted evidence of the appellant's admissions to other witnesses, and the complainant's own evidence, was sufficiently strong that the inadmissible material did not affect the outcome.

Other conviction grounds: The remaining grounds of appeal against conviction all failed. The evidence of the appellant laughing during the 2009 garage incident was properly admitted as relevant to issues at trial. The "fresh evidence" ground, based on an Asperger's Disorder diagnosis obtained after trial, was also rejected. The Court found the proposed fresh evidence would not have produced a different verdict, as the diagnosis did not bear materially on the central factual dispute of consent.

Sentence appeal: The appellant argued the sentences were manifestly excessive and that the objective seriousness of the offences had to be assessed in the context of an ongoing consensual sexual relationship. Macfarlan JA accepted, consistent with his earlier remarks in NM v R [2012] NSWCCA 215, that objective seriousness must be assessed in the context of the relationship between the parties. His Honour found, however, that the sentencing judge had implicitly done so, and had also noted the relatively short duration of each act. The sentences were within the range reasonably open to the sentencing judge and were not manifestly excessive.

Orders Made

  • The appeal against conviction is dismissed.
  • The application for leave to appeal against sentence is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that improperly admitted relationship evidence does not automatically result in a successful conviction appeal; the court must be satisfied that a substantial miscarriage of justice actually occurred.
  • Where fresh evidence is raised post-trial, the relevant question is whether it could reasonably have produced a different verdict. A post-trial diagnosis of Asperger's Disorder was insufficient here because it did not bear materially on the contested issue of consent.
  • Macfarlan JA reaffirmed the principle from NM v R that, while a marital or prior relationship is not of itself a mitigating factor, the objective seriousness of sexual offences must be assessed in the context of the relationship, including the history of consensual sexual activity between the parties.
  • In dismissing the sentence appeal, the Court applied the established standard from Markarian v R: an appellate court may not substitute its own view merely because it would have exercised the sentencing discretion differently. The question is whether the sentence is unreasonable or plainly unjust.
  • No error was established in admitting evidence of the appellant laughing during a confrontation with the complainant, as the evidence was relevant to the issues in dispute at trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- BBH v R [2012] HCA 9; 86 ALJR 357
- Bellchambers v R [2011] NSWCCA 131
- DJV v R [2008] NSWCCA 272; 200 A Crim R 206
- Markarian v R [2005] HCA 25; 228 CLR 357
- NM v R [2012] NSWCCA 215
- Patel v R [2012] HCA 29; 86 ALJR 954
- Pfennig v R [1995] HCA 7; 182 CLR 461
- Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463
- Roach v R [2011] HCA 12; 242 CLR 610
- RG v R [2010] NSWCCA 173
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- Weiss v R [2005] HCA 81; 224 CLR 300
- Wilson v R [1970] HCA 17; 123 CLR 334