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Court of Criminal Appeal 3 December 2013

TDP v R; R v TDP

[2013] NSWCCA 303

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION APPLICANT SELF REPRESENTED CHALLENGE TO SUMMING UP BY TRIAL JUDGE WHETHER POST

Citation: TDP v R; R v TDP [2013] NSWCCA 303
Court: Court of Criminal Appeal
Date: 3 December 2013
Judges: Hoeben CJ at CL (principal judgment), Blanch J and R A Hulme J agreeing

Background

A stepfather was convicted by jury in the District Court of nine counts of aggravated sexual intercourse without consent and two counts of aggravated indecent assault against his stepdaughter. The offences were committed over approximately three and a half years, beginning when the complainant was 13 and continuing until she was 16. Circumstances of aggravation included that the complainant was under 16 at the time of some offences and under the authority of the offender throughout.

The sentencing judge imposed an effective sentence of imprisonment with a non-parole period of 7.5 years and a balance of term of 3 years. For four of the eleven counts, the sentencing judge imposed fixed terms of imprisonment rather than sentences with non-parole periods.

Two appeals followed. The offender, self-represented, appealed against his conviction on thirteen grounds. The Crown separately appealed the sentence as inadequate, raising four grounds.

Legal Issues

  • Whether the Crown failed in its duty to place all relevant evidence before the jury, particularly concerning a toxicology report on the complainant's hair and pharmacological details of the drug Hypnodorm
  • Whether the trial judge's summing up misdirected the jury on the use of the toxicology evidence
  • Whether the summing up caused a miscarriage of justice by failing to adequately emphasise contradictions in the complainant's evidence
  • Whether a warning under s 165(1)(c) of the Evidence Act 1995 should have been given about the reliability of the complainant's evidence
  • Whether the trial judge inadequately directed the jury on corroboration
  • Whether incompetent representation by defence counsel caused a miscarriage of justice
  • Whether rule 4 of the Criminal Appeal Rules applied to bar grounds not raised at trial
  • Whether post-conviction admissions made to a psychologist could be taken into account by the Court of Criminal Appeal in a conviction appeal
  • Whether the sentencing judge erred in imposing fixed terms (without non-parole periods) for four counts, contrary to s 45(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge improperly took the offender's mental health into account
  • Whether the sentences were inadequately accumulated, rendering the total sentence manifestly inadequate

Decision

Conviction Appeal

Grounds 1, 3, 4 and 5 (toxicology and Hypnodorm evidence): The Court dismissed these grounds on multiple bases. Defence counsel had successfully objected at trial to the Crown adducing evidence about the identity and effects of any tablets, so the applicant could not on appeal complain the Crown had failed to present that evidence. The toxicology report only covered a period from March back to August 2010, and said nothing about the period spanning most of the alleged offending. Crucially, the report did not test for Flunitrazepam, the active ingredient in Hypnodorm, so it could not be said the report confirmed the drug's absence. Further cross-examination on the ERISP concerning tablets would have risked drawing the jury's attention to the far greater frequency of offending described there.

Ground 2 (summing up on count 7): The applicant argued the trial judge failed to make sufficiently clear that the count 7 incident was in dispute. The Court found the defence case had been clearly put to the jury through counsel's closing address, and there was no substance in the complaint that the complainant's failure to recall a particular conversation was an "indispensable link" to proving guilt. This ground was not made out.

Grounds 6 and 9 (time frame for count 8): The Court found that even accepting the applicant's factual premise about when a relevant witness was present, the offence still fell within the period charged. Evidence from a motel owner independently confirmed the booking for the Warialda offences. Both grounds failed.

Ground 7 (no warning given regarding complainant's reliability): The Court found no occasion for a s 165(Evidence Act) warning. The trial judge gave a strong and comprehensive general warning about relying on a single witness's evidence, including repeated directions requiring the jury to be satisfied beyond reasonable doubt of the complainant's honesty and accuracy before convicting. Nothing further was required.

Ground 10 (corroboration directions): The summing up fairly summarised both the Crown's and the defence's cases, including references to corroborating evidence. The Court found no error in the directions given, and noted all appropriate warnings were given. This ground was not made out.

Grounds 8, 11 and 12 (Crown fabricating or misleading on evidence): The applicant did not identify any assertion in the Crown's address that was unsupported by the evidence. These grounds were not made out.

Ground 13 (incompetent counsel): Applying the principles from R v Birks, the Court found that defence counsel's decisions, including not pursuing further evidence about Hypnodorm and limiting cross-examination on the ERISP, reflected reasonable tactical judgments. There was no flagrant incompetence and no miscarriage of justice was established.

Rule 4 and post-conviction admissions: The Court noted that most grounds required leave under rule 4 because no objection was taken at trial, and leave would not have been granted in most cases. On the question of post-conviction admissions (made by the offender to the psychologist), the Court observed, without deciding the question, that such admissions would likely face significant obstacles if relied on to invoke the proviso under s 6(1) of the Criminal Appeal Act 1912, citing the High Court's remarks in Cesan. As the conviction appeal was dismissed, the issue did not need to be resolved.

Crown Sentence Appeal

Ground 1 (fixed terms without non-parole periods): The Court upheld this ground. The sentencing judge imposed fixed terms for counts 2, 3, 5 and 7, which carried standard non-parole periods. Under ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999, there was no discretion to decline setting a non-parole period for such offences. The Court quashed those sentences and re-sentenced on those counts, treating the fixed terms as non-parole periods and adding balance of term components, without increasing the minimum custodial period.

Ground 2 (mental health): Although the Court found the sentencing judge's explanation of how he took the offender's mental health into account was opaque, there was no indication the factor was actually misapplied. This ground was not made out.

Grounds 3 and 4 (inadequate accumulation and manifest inadequacy): The Court found some error in making counts 1 and 4, identified as the two most serious offences, fully concurrent. However, the Crown had itself recommended the overall structure of accumulation adopted by the sentencing judge. Applying Everett v The Queen, the Court held the Crown could not now successfully challenge an approach it had specifically endorsed in the sentence proceedings. There was also an unexplained 10-week delay in lodging the Crown appeal. While R A Hulme J expressed personal disquiet about whether the total effective sentence adequately reflected the totality of the criminality, the Court declined to intervene on these grounds.

Orders Made

  • Leave to appeal against conviction granted; appeal dismissed.
  • Sentences for counts 2, 3, 5 and 7 quashed and replaced:
  • Count 2: non-parole period of 3 years (15 May 2012 to 14 May 2015), balance of term 18 months (to 14 November 2016)
  • Count 3: non-parole period of 4 years (15 May 2012 to 14 May 2016), balance of term 2 years (to 14 May 2018)
  • Count 5: non-parole period of 4 years (15 May 2012 to 14 May 2016), balance of term 2 years (to 14 May 2018)
  • Count 7: non-parole period of 2 years and 6 months (15 November 2015 to 14 May 2018), balance of term 1 year and 6 months (to 14 November 2019)
  • Crown appeal against sentence otherwise dismissed.

Key Takeaways

  • Under ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge has no discretion to decline to set a non-parole period for offences that carry a standard non-parole period; imposing a fixed term for such offences constitutes legal error requiring correction on appeal.
  • A toxicology report that did not test for the specific active ingredient of the drug alleged to have been administered could not be treated as confirming the drug's absence, meaning the negative result did not establish the premise that further scientific evidence would have assisted the defence.
  • In Crown sentence appeals, the Court of Criminal Appeal will generally not allow the prosecution to challenge on appeal an approach to accumulation that the Crown itself recommended at the sentencing hearing, consistent with the principles affirmed in Everett v The Queen.
  • Post-conviction admissions made to a psychologist for the purpose of a sentencing report face significant obstacles to use in a conviction appeal under the s 6(1) proviso of the Criminal Appeal Act 1912, given the High Court's remarks in Cesan that statements made in a sentencing context carry no weight in determining whether a substantial miscarriage of justice occurred.
  • Where a self-represented applicant raises grounds of appeal requiring leave under rule 4 of the Criminal Appeal Rules because no objection was taken at trial, appellate courts will still examine each ground on its merits, but leave will not ordinarily be granted absent an arguable case of legal error or miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 - s61J, s61M(1)
- Crimes (Sentencing Procedure) Act 1999 - ss 44 and 45
- Criminal Appeal Act 1912 - ss 6(1), 8
- Evidence Act 1995 - s165(1)(c)

Cases
- AP v R [2013] NSWCCA 189
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
- Collier v R [2012] NSWCCA 213
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 231
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Grey v R [2001] HCA 65; 184 ALR 593
- Ignjatic v R (1993) 68 A Crim R 333
- Lipchin v R [2013] NSWCCA 77
- M v The Queen [1994] HCA 63; 181 CLR 487 at 534
- Monteiro v R [2011] NSWCCA 113
- Muldrock [2011] HCA 39; 244 CLR 120
- Nguyen v R [2007] NSWCCA 14
- Papakosmas v R [1999] HCA 37; 196 CLR 297
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- R v Bikic [2001] NSWCCA 537
- R v Birks [1990] 19 NSWLR 677 at 685
- R v De-Cressac [1985] 1 NSWLR 381
- R v Gudgeon (1995) 83 A Crim R 228
- R v McCarthy and Ryan (1993) 71 A Crim R 395
- R v Reid (NSWCCA 13 September 1993, unreported)
- R v Williams [1999] NSWCCA 9; 104 A Crim R 260
- Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
- Reeves v R; R v Reeves [2013] NSWCCA 34
- Regina v XX [2009] NSWCCA 115; 195 A Crim R 38
- Salmon v R [2012] NSWCCA 119
- SGJ v R [2008] NSWCCA 258
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124