AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 17 May 2012

Badans v R

[2012] NSWCCA 97

Sexual offences
CRIMINAL LAW APPEAL CONVICTION EVIDENCE APPEAL SENTENCING

Citation: Badans v R [2012] NSWCCA 97
Court: Court of Criminal Appeal, NSW
Date: 17 May 2012
Judge(s): Meagher JA; Hoeben J; Rothman J

Background

The appellant was convicted in the District Court of one count of sexual assault under s 61I of the Crimes Act 1900, following a short trial before Syme DCJ in December 2010. The offence was alleged to have occurred at a private gathering in Macquarie Fields in August 2009, where the complainant was asleep in a bedroom when the appellant allegedly had sexual intercourse with her without her consent.

The appellant maintained that the complainant had been awake and had invited the sexual contact. The central issue at trial was whether the jury accepted the complainant's account. The appellant was sentenced in June 2011 to three years' imprisonment with a non-parole period of one year, well below the standard non-parole period of seven years, partly in light of evidence concerning his intellectual disability.

Three separate appeals were brought: the appellant challenged his conviction; the Crown (Director of Public Prosecutions) appealed the sentence as manifestly inadequate; and the Crown also appealed a costs order requiring it to pay $1,500 for the attendance of the appellant's expert psychiatrist, Dr Olav Nielssen, at the sentencing hearing.

  • Whether the trial judge's summing up contained misdirections that warranted setting aside the conviction (Grounds 1 and 2)
  • Whether the guilty verdict was unreasonable or unsupportable on the evidence (Ground 3)
  • Whether the sentence of three years with a one-year non-parole period was manifestly inadequate, including the proper approach to the standard non-parole period and the appellant's intellectual disability following Muldrock v The Queen (2011) 244 CLR 120
  • Whether the District Court had power to order the Crown to pay the costs of calling the appellant's expert witness under s 177(7) of the Evidence Act 1995, in circumstances where the court had not directed that the Act's evidence law applied under s 4(2)(a)

Decision

Conviction appeal: The Court refused leave to appeal on Grounds 1 and 2 (alleged misdirections in the summing up). On Ground 3, the Court granted leave to appeal but dismissed the appeal. The Court was satisfied that the verdict was not unreasonable: the complainant's account was capable of being accepted by the jury, and the evidence as a whole did not raise a reasonable doubt that the jury's capacity to observe witnesses could not resolve. Rothman J separately noted, applying SKA v The Queen (2011) 85 ALJR 571, that the evidence examined as a whole did not raise such a doubt.

Sentence appeal: The Crown's appeal against the sentence as manifestly inadequate was dismissed. The Court considered the principles from Muldrock v The Queen, which had clarified how standard non-parole periods should operate. The Court accepted that the appellant's intellectual disability was a significant mitigating factor bearing on his moral culpability and the appropriateness of the sentence imposed, consistent with the approach in Engert v R (1995). The sentence was not found to fall outside the range available to the sentencing judge.

Costs order appeal: The Crown's appeal against the $1,500 costs order succeeded. The Court held that the District Court at the sentencing hearing had not made a direction under s 4(2)(a) of the Evidence Act 1995 that the Act's provisions applied to those proceedings. Without such a direction, the court had no power to make a costs order under s 177(7). The Court also found that, in any event, the Crown had a legitimate reason to require Dr Nielssen for cross-examination, given an ambiguity in his report about whether the appellant's intellectual disability affected his appreciation of the complainant's condition. The trial judge therefore erred in concluding otherwise.

Orders Made

  • Leave to appeal against conviction on Grounds 1 and 2: refused
  • Leave to appeal against conviction on Ground 3: granted
  • Appeal against conviction: dismissed
  • Appeal against sentence: dismissed
  • Appeal against the costs order for Dr Nielssen's attendance: allowed
  • District Court order of 24 June 2011 that the Crown pay $1,500 in costs: set aside

Key Takeaways

  • A verdict is not unreasonable simply because the case turned on a credibility contest between the complainant and the accused; the Court of Criminal Appeal confirmed that the jury's opportunity to observe witnesses is a relevant consideration in assessing whether a verdict can be supported on the evidence.
  • Under Muldrock v The Queen, the standard non-parole period operates as a legislative guideline, not a fixed benchmark, and a sentencing court retains full discretion when significant mitigating factors such as intellectual disability are present.
  • Intellectual disability can reduce an offender's moral culpability and influence the appropriate sentence even in serious sexual assault matters, consistent with the long-standing principle in Engert v R.
  • A costs order under s 177(7) of the Evidence Act 1995 is only available during sentencing proceedings if the court has first made a direction under s 4(2)(a) that the Act's evidence provisions apply; in the absence of such a direction, the costs power is not engaged.
  • Where an expert witness's report contains an ambiguity material to the sentencing discretion, the Crown has a legitimate basis to require that witness for cross-examination, and a sentencing court may err in characterising such a requirement as unwarranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), ss 5(1)(a), 5(1)(b), 5D(1), 5F(2)
- Evidence Act 1995 (NSW), ss 4(2)(a), 177(7)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
- Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
- Engert v R (1995) 84 A Crim R 67
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- Matzick v R [2007] NSWCCA 92
- R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1