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26
Court of Criminal Appeal 24 May 2013

BJS v R

[2013] NSWCCA 123

Sexual offencesAssault & violence
CRIMINAL LAW CONVICTION APPEAL APPELLANT A FORMER CATHOLIC PRIEST WHETHER CROSS CONVICTION APPEAL DISMISSED SENTENCE APPEAL

Citation: BJS v R [2013] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 24 May 2013
Judge(s): Hoeben CJ at CL, Davies J, Adamson J

Background

The appellant, a former Catholic priest, was convicted in the District Court on nine of eleven counts of indecently assaulting four young girls over a five-year period spanning 1976 to 1981. The offences involved girls aged between seven and thirteen, each of whom the appellant encountered through his priestly role in their families' lives. He was sentenced to an aggregate term of nine years imprisonment with a non-parole period of five years.

The appellant brought nine grounds of appeal against conviction and one ground challenging the sentence as manifestly excessive. The conviction appeal raised a range of pre-trial and trial rulings, including the joinder of all counts, the admission of tendency evidence, the exclusion of evidence relating to hypnosis treatment undergone by two witnesses, restrictions on cross-examination under the Sexual Assault Communications Privilege, and the adequacy of the jury direction on unanimous verdicts.

The sentence appeal raised additional matters including extra-curial punishment (threats made against the appellant's wife and children), his health, his age, his prior good character, the conditions under which he was serving his sentence, and the appropriate sentencing range applying at the time of the offending.

  • Whether all eleven counts involving four different complainants should have been tried together rather than in separate trials
  • Whether the trial judge erred in permitting the Crown to rely upon tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW)
  • Whether evidence that two witnesses (a complainant and a tendency witness) had undergone hypnosis as part of psychological treatment was wrongly excluded as irrelevant to their reliability
  • Whether the Sexual Assault Communications Privilege under s 29(1) of the Criminal Procedure Act 1986 (NSW) was correctly applied to prevent cross-examination about the content of counselling sessions
  • Whether the trial judge wrongly excluded the defence psychiatrist's evidence concerning the reliability of those witnesses
  • Whether the jury should have been discharged after evidence of a witness's psychiatric history was admitted contrary to an earlier ruling
  • Whether the trial judge erred in permitting the Crown to cross-examine the appellant and, further, whether that cross-examination as to tendency required the jury to be discharged
  • Whether the trial judge's direction that jurors could "reluctantly agree" on a verdict was a misdirection
  • Whether the aggregate sentence of nine years was manifestly excessive, having regard to the appellant's personal circumstances and sentencing practices at the time of the offending

Decision

The Court of Criminal Appeal dismissed all nine grounds of conviction appeal. Hoeben CJ at CL delivered the principal judgment, with Davies J and Adamson J each agreeing. On the joinder ground, the court found no error in the trial judge's decision to try all counts together. The offending shared sufficient features of context and character to justify joint trial, and the risk of prejudice did not outweigh the interests of justice in a single proceeding.

On the tendency evidence grounds, the court found that the evidence met the requirements of ss 97 and 101 of the Evidence Act 1995. The probative value of the tendency evidence significantly outweighed the danger of unfair prejudice. The court also rejected the argument that hypnosis undergone by two witnesses rendered their evidence inadmissible or unreliable as a matter of law. The trial judge's refusal to permit the defence to lead evidence on that topic, and to allow cross-examination about counselling communications protected by the Sexual Assault Communications Privilege, was upheld.

On the jury direction ground, the court found that the "reluctant agreement" direction, considered in context, did not misstate the requirement for a unanimous verdict. The direction was read as permitting jurors to ultimately agree after genuine deliberation, rather than as encouraging capitulation to majority pressure. No error requiring discharge of the jury was established on any of the remaining grounds.

On sentence, the court granted leave to appeal but dismissed the ground. While acknowledging that some of the indicative sentences were at the higher end, the court applied the principle that only the aggregate sentence and non-parole period are amenable to appeal. Given the seriousness of the offending, particularly in relation to certain counts, the aggregate sentence was within the available range. The court found no demonstrated error in the sentencing judge's approach, and no lesser sentence was warranted in law.

Orders Made

  • Grounds of Appeal 1 to 9 (conviction appeal): dismissed
  • Ground of Appeal 10 (sentence appeal): leave to appeal granted, but appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that joinder of multiple counts involving different complainants is permissible where the offending shares sufficient contextual and factual connections, and where any prejudicial risk does not outweigh the interests of justice.
  • Tendency evidence admitted under ss 97 and 101 of the Evidence Act 1995 (NSW) must satisfy the requirement that its probative value significantly outweighs the danger of unfair prejudice; the court confirmed that threshold was met on the facts of this case.
  • A witness having undergone hypnosis as part of psychological treatment does not, without more, render that witness's evidence inadmissible or require the trial judge to exclude it on reliability grounds.
  • Under s 29(1) of the Criminal Procedure Act 1986 (NSW), the Sexual Assault Communications Privilege operates to protect the contents of counselling communications, and the court upheld the trial judge's refusal to permit cross-examination on those contents.
  • In dismissing the sentence appeal, the Court of Criminal Appeal reaffirmed that indicative head sentences within an aggregate sentencing structure are not themselves amenable to appeal; the materiality of any error in an indicative sentence to the overall aggregate must be demonstrated before intervention is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 76
- Criminal Appeal Act 1912 (NSW), s 6(1), s 6(3)
- Criminal Procedure Act 1986 (NSW) (Sexual Assault Communications Privilege), s 29(1)
- Evidence Act 1995 (NSW), ss 97, 101

Cases:
- AW v Regina [2009] NSWCCA 1
- BJS v Regina [2011] NSWCCA 239
- BP v R; R v BP [2010] NSWCCA 303
- Christian v R [2013] NSWCCA 98
- CUR 24 v DPP [2012] NSWCA 65
- DAO v R [2011] NSWCCA 63
- De Jesus v R [1986] HCA 65; 61 ALJR 182
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- Farrell v R [1998] HCA 50; 194 CLR 286
- FP v R [2012] NSWCCA 182
- Kenny v R [2010] NSWCCA 6
- Ludlow v Metropolitan Police Commissioner [1971] AC 29
- Palmer v R [1998] HCA 2; 193 CLR 1
- PD v R [2012] NSWCCA 242
- Pfennig v R [1995] HCA 7; 182 CLR 461
- R v Alexander Cittadini [2008] NSWCCA 256; 189 A Crim R 492
- R v Anna Zhang [2005] NSWCCA 437; 158 A Crim R 504
- R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 273 ALR 286
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36