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Court of Criminal Appeal 10 December 2012

Jones v R

[2012] NSWCCA 262

Sexual offences
CRIMINAL LAW APPEAL CONVICTION EXPERT EVIDENCE INCONSISTENT VERDICTS APPEAL

Citation: Jones v R [2012] NSWCCA 262
Court: Court of Criminal Appeal
Date: 10 December 2012
Judge(s): McClellan CJ at CL; R A Hulme J; Schmidt J

Background

The applicant was convicted at a second trial of two counts of sexual intercourse with a child under ten years of age. The offences occurred during a single evening in October 2008 when the applicant took the six-year-old complainant out from a family gathering, drove to a secluded location, and committed acts of oral and anal sexual assault. A third count, relating to alleged indecent conduct the following day, resulted in a hung jury.

At the sentencing stage, the trial judge imposed a fixed term of five years for count 1 and a sentence of 15 years with an 11-year non-parole period for count 2, both made wholly concurrent. The applicant sought leave to appeal both his convictions and his sentences.

The applicant had originally filed seven grounds of appeal but abandoned three. The remaining grounds challenged the admission of expert and lay evidence about constipation, alleged inconsistency between verdicts, and the reasonableness of the convictions. Five further grounds challenged the sentence.

Legal Issues

  • Whether the admission of expert medical opinion evidence (by a general practitioner from a Child Protection Unit) about the cause of the complainant's constipation gave rise to a miscarriage of justice
  • Whether related lay evidence about the complainant's constipation on the drive home from Sydney should have been excluded, and whether its admission caused a miscarriage
  • Whether the jury's failure to reach a verdict on count 3 rendered the guilty verdicts on counts 1 and 2 inconsistent or unreasonable
  • Whether the convictions were unreasonable or unsupported by the evidence
  • Whether the sentencing judge committed error under the principles established in Muldrock v The Queen by treating the standard non-parole period as a "benchmark head sentence"
  • Whether the victim's age and the emotional harm caused were properly treated as aggravating factors
  • Whether the sentencing judge erred in rejecting a psychologist's risk assessment
  • Whether the sentences were manifestly excessive

Decision

Ground 3 (Expert Evidence): McClellan CJ at CL found that the evidence of Dr Marks, a general practitioner who had never examined the complainant but offered an opinion that his constipation was consistent with anal penetration, should have been excluded. Its probative value was minimal. Dr Marks herself acknowledged more common alternative causes for constipation, and subsequent medical evidence attributed the complainant's later constipation to a dietary fibre deficiency. The evidence also carried a risk of disproportionate weight before the jury, given it came from a medical expert. However, the trial judge's careful directions to the jury, including drawing attention to the alternative causes and the absence of reported pain, neutralised that risk sufficiently that no miscarriage of justice resulted. Ground 3 was rejected.

Ground 4 (Lay Evidence of Constipation): This ground largely mirrored Ground 3. The court held the lay evidence of the complainant's bowel difficulties on the drive home should also have been excluded. Despite this, its admission did not occasion a miscarriage of justice in light of the trial judge's directions. Ground 4 was rejected.

Ground 6 (Inconsistent Verdicts): The court noted the ground as framed was not technically available: there were no strictly inconsistent verdicts, as no verdict was returned on count 3. In substance, the argument was that the jury's inability to agree on count 3 rendered the guilty verdicts on counts 1 and 2 unreasonable. The court rejected this. The hung jury on count 3 was explicable on multiple bases: the evidence on that count was sparse, there was uncertainty about the date pleaded, and at least some evidence suggested the touching may not have been intentional. R A Hulme J added that the complainant's account of counts 1 and 2 was supported by graphic and compelling detail that the count 3 evidence simply did not share. Ground 6 was rejected.

Ground 7 (Unreasonable Verdicts): Applying the test from SKA v The Queen and MFA v The Queen, the court conducted an independent assessment of the evidence. Despite some inconsistencies and confusion in the complainant's cross-examination, his core account was consistent and supported by vivid, specific detail that the court found bore the hallmarks of truthfulness. The court noted the jury's advantage of having seen and heard witnesses, and concluded it was plainly open to them to be satisfied of guilt beyond reasonable doubt on counts 1 and 2. Ground 7 was rejected.

Sentence Grounds 1 and 2 (Muldrock Error): The court accepted that the sentencing judge's reasoning disclosed a potential Muldrock error. By treating the standard non-parole period as implying a "benchmark" head sentence, the judge may have given the standard non-parole period a role beyond what Muldrock permits, or may have commenced analysis from the wrong starting point. The court was persuaded that, combined with other factors, the sentences were manifestly excessive.

Sentence Ground 3 (Aggravating Factors): No error was established in treating the victim's young age and emotional harm as aggravating factors. Evidence of significant emotional harm was before the court, and settled authority confirms that the youth of a victim is a proper consideration in assessing objective seriousness, even where all victims of the relevant offence are by definition young.

Sentence Ground 4 (Psychologist's Risk Assessment): The sentencing judge was entitled to reject the psychologist's assessment that the applicant posed a low to moderate risk of reoffending. The judge's factual basis for doing so, including the applicant's continued denial of guilt and the unexpectedness of the offending, was open to him. No error was established on this ground.

Sentence Ground 5 (Manifestly Excessive): The court found the sentences manifestly excessive, attributable either to Way error (over-reliance on the standard non-parole period in fixing the head sentence) or excessive emphasis on the standard non-parole period more broadly. The court noted the offences were opportunistic, of short duration, occurred in immediate succession, and were committed without grooming, threats, or significant premeditation. The applicant was 20 years old at the time, of prior good character, and would serve part of his sentence in protective custody. The court also identified a technical error: a non-parole period was required for count 1 but the sentencing judge had imposed only a fixed term. Special circumstances were found to apply, justifying a greater than usual ratio of additional term to non-parole period, given the applicant's rehabilitation needs.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed.
  • Leave to appeal against sentence granted; sentence appeal upheld; sentences below quashed.
  • On count 1: non-parole period of 3 years commencing 12 November 2010, expiring 11 November 2013; further term of 2 years expiring 11 November 2015.
  • On count 2: non-parole period of 8 years commencing 12 November 2010, expiring 11 November 2018; further term of 4 years expiring 11 November 2022.

Key Takeaways

  • Expert opinion evidence of minimal probative value that risks disproportionate weight with a jury should ordinarily be excluded, even where the argument for exclusion is not squarely put under s 137 of the Evidence Act; however, careful judicial directions can in some cases prevent the admission from causing a miscarriage of justice.
  • A hung jury on one count does not automatically render guilty verdicts on other counts inconsistent or unreasonable, particularly where plausible alternative explanations exist, such as differences in the quality and detail of the evidence or uncertainty about dates pleaded in the indictment.
  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the standard for unreasonableness requires an independent appellate assessment of both the sufficiency and quality of the evidence, with the jury's advantage in seeing and hearing witnesses remaining a relevant consideration where doubts are capable of being resolved by that advantage.
  • Muldrock v The Queen error may arise where a sentencing judge treats the standard non-parole period as implying a mathematical "benchmark" head sentence, rather than treating both the maximum penalty and the standard non-parole period as guideposts to be weighed alongside all other relevant circumstances.
  • Under s 45 of the Crimes (Sentencing Procedure) Act 1999, where an offence carries a standard non-parole period, a sentencing court is required to set a non-parole period; imposition of a fixed term alone is an error, regardless of how lenient the overall sentence is.

Legislation and Cases Referenced

Legislation
- Evidence Act
- Crimes (Sentencing Procedure) Act 1999

Cases
- DS v R [2012] NSWCCA 159
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- SGJ v R [2008] NSWCCA 258
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400