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Court of Criminal Appeal 14 November 2013

VERSI, Peter v R

[2013] NSWCCA 206

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION HISTORICAL CHILD SEXUAL ASSAULT VERDICT NOT UNREASONABLE ERRORS IN TRIAL TRANSCRIPT CORRECTED BY SUBSTANTIAL AGREEMENT

Citation: VERSI, Peter v R [2013] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 14 November 2013
Judges: Basten JA, Adams J, Latham J

Background

The appellant was convicted by a jury on two counts of sexual misconduct involving his stepdaughter, committed in the 1980s. The offences involved the complainant as a child. Following conviction, the appellant was sentenced, with partial accumulation of the sentences for the two counts.

The appellant sought leave to appeal against both his convictions and his sentences. Leave was required for the conviction appeals because the grounds did not raise pure questions of law. The Court granted leave on all grounds but ultimately dismissed both appeals.

A secondary procedural question arose during the hearing: whether the Court should listen to the sound recording of the trial judge's summing up to assess whether directions on coincidence and tendency evidence were confusing or misleading.

  • Whether the conviction verdicts were unreasonable or could not be supported by the evidence
  • Whether directions on coincidence and tendency evidence were confusing and misleading
  • Whether an appellate court should listen to a sound recording of a trial summing up when an agreed corrected transcript is available
  • Whether the sentences were manifestly excessive
  • Whether sentencing practices at the time the offences were committed in the 1980s should inform the sentences imposed

Decision

Listening to the sound recording. Basten JA addressed at length whether the Court should accede to the applicant's invitation to listen to the sound recording of the summing up. His Honour declined. Where the parties had agreed on a corrected transcript, the Court should rely on that document. Listening to a recording to assess whether a jury might have misheard or misunderstood directions, rather than to resolve a dispute about what was actually said, was a course requiring great caution. Basten JA also noted the pragmatic concern that allowing such requests in one case could expand the practice into demands to review video recordings in future, straining appellate resources significantly.

Coincidence and tendency evidence directions. The Court examined the trial judge's directions on coincidence evidence under s 98 of the Evidence Act 1995 (NSW) and tendency evidence under s 97. The coincidence evidence comprised an account given by another woman who was also the appellant's stepdaughter as an adolescent, describing a similar incident to that charged in count 2. Adams J found the directions, while potentially imperfect in places, did not give rise to a miscarriage of justice. The verdicts were not unreasonable.

Sentencing. The sole sentence ground was that the sentences were manifestly excessive. The Court rejected the argument that sentencing practices prevalent at the time of the offences in 1985 and 1986 should apply. Basten JA and Latham J confirmed that perceived patterns of sentencing from that era played no part in the appeal. The judge's findings on objective seriousness, general deterrence, and the partial accumulation of sentences were all upheld. Latham J noted that partial accumulation is a matter of sentencing discretion, and the applicant could not demonstrate that the discretion miscarried. The sentences were not manifestly excessive.

Sentence adjustment. Although the substantive appeals were dismissed, the Court identified that a minor administrative correction was needed to the commencement dates of the appellant's sentences and made orders accordingly.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence dismissed
  • On count 2, the fixed term directed to recommence on 14 November 2013 and expire on 23 December 2013
  • On count 3, the non-parole period directed to recommence on 14 November 2013 and expire on 23 December 2014, with a balance of term of 12 months expiring 23 December 2015
  • The appellant to be released on parole on 24 December 2014

Key Takeaways

  • An appellate court is not required to listen to a sound recording of a trial summing up where the parties have agreed on a corrected transcript. Listening to a recording solely to assess whether a jury might have misheard otherwise adequate directions is a course requiring great caution and should generally be declined.
  • Coincidence evidence under s 98 of the Evidence Act 1995 (NSW) is admissible where, having regard to similarities between events, it is improbable that those events occurred coincidentally. The probative value lies in the improbability of independent witnesses describing similar events unless those events actually occurred.
  • Perceived patterns of sentencing at the time historical offences were committed do not govern the sentence to be imposed on conviction many years later.
  • Partial accumulation of sentences for separate offences is an exercise of sentencing discretion. An applicant must demonstrate that the discretion miscarried in the established legal sense; it is not sufficient to argue that one sentence should have been absorbed into another on grounds of fairness.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a statement that sentences for child sexual offences must carry a substantial element of general deterrence is entirely orthodox, and does not itself demonstrate that excessive weight was given to that factor.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 97, 98
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Sentencing Act 1989 (NSW)
- Probation and Parole Act 1983 (NSW)

Cases:
- Pfennig v The Queen [1995] HCA 7; 182 CLR 461
- HML v The Queen [2008] HCA 16; 235 CLR 334
- M v The Queen [1994] HCA 63; 181 CLR 487
- MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v MJR [2002] NSWCCA 129; 130 A Crim R 481
- Khoury v R [2011] NSWCCA 118
- AJB v R [2007] NSWCCA 51; 169 A Crim R 32
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- PWB v R [2011] NSWCCA 84
- R v Jenkins (1999) NSWCCA 110
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29