Citation: LP v Regina [2013] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 23 December 2013
Judges: Beazley P, McCallum J, Schmidt J
Background
The appellant was tried in the District Court on nine counts of sexual offences allegedly committed against his stepdaughter across a period spanning from 1982 to 2003. He pleaded not guilty to all counts. During the trial, he was acquitted on four counts: two by judicial direction after the Crown acknowledged a deficiency in the evidence, and two following a Prasad direction, which allowed the jury to return verdicts of not guilty before the end of the trial if they were unanimously satisfied of reasonable doubt on any count.
The jury convicted the appellant on the remaining five counts (counts 1, 4, 5, 6, and 7), which related to indecent assault and sexual intercourse offences alleged to have occurred between 1982 and 1986. The trial judge sentenced the appellant to an aggregate term of eight years' imprisonment with a non-parole period of four years. The appellant remained on bail pending the appeal.
The appeal raised three grounds, centring on the reasonableness of the guilty verdicts in light of the partial acquittals, a claim of miscarriage of justice arising from defence counsel's conduct, and the trial judge's failure to exclude certain evidence under section 137 of the Evidence Act 1995.
Legal Issues
- Whether the jury's verdicts of guilty on five counts were unreasonable or unsupported by the evidence, particularly in light of the four acquittals on the same indictment
- Whether there was a miscarriage of justice connected to defence counsel's conduct at trial, including counsel's decision not to tender portions of the complainant's mother's statement
- Whether the trial judge erred by failing to exclude, under section 137 of the Evidence Act 1995, evidence of alleged admissions made by the appellant to the complainant's partner, in the absence of any objection by defence counsel
Decision
On the first ground, the Court applied the test from M v R (1994) 181 CLR 487: whether, upon an independent assessment of the whole evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The Court found that it was. The partial acquittals did not render the remaining convictions unreasonable, as the jury was entitled to reach different conclusions on different counts based on the particular evidence supporting each.
On the second ground, the Court examined defence counsel's decision not to tender excluded portions of the complainant's mother's statement, even after the trial judge made observations suggesting some of that material might have assisted the defence. The Court found that the excluded portions were not unequivocally favourable to the accused, and that counsel's adherence to the tactical decision he had made was, in the Court's assessment, sound. No miscarriage of justice was established.
On the third ground, the Court considered whether the trial judge was obliged to exclude the evidence of alleged admissions under section 137 of the Evidence Act (which requires exclusion where the probative value of evidence is outweighed by the danger of unfair prejudice), even without a defence objection. The Court rejected this ground. In the circumstances, the failure to exclude the evidence in the absence of any application by defence counsel did not constitute error.
Because the appellant had been on bail throughout the sentencing and appeal period, and time on bail does not count as time served under section 18(2) of the Criminal Appeal Act 1912, the Court exercised its power under section 28A of that Act to reset the commencement dates of the sentences to reflect the date of the appeal decision.
Orders Made
- The appeal was dismissed.
- Pursuant to section 28A of the Criminal Appeal Act 1912, the sentences were re-specified to commence as follows:
- Count 1 (18 months): commencing 23 December 2013, expiring 22 June 2015
- Counts 6 and 7 (4 years each): commencing 23 December 2013, expiring 22 December 2017
- Counts 4 and 5 (6 years each, with a 2-year non-parole period): commencing 23 December 2015, with the non-parole period expiring 22 December 2017 and the balance of term expiring 22 December 2021
- First eligible parole date: 23 December 2017
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that partial acquittals on an indictment do not automatically render guilty verdicts on remaining counts unreasonable: the jury may lawfully differentiate between counts based on the evidence supporting each.
- The test for an unreasonable verdict under section 6(1) of the Criminal Appeal Act 1912 requires the appellate court to make an independent factual assessment of the evidence and determine whether it entertains a reasonable doubt as to guilt, not merely whether the evidence was legally capable of supporting conviction.
- A miscarriage of justice based on defence counsel's conduct at trial is not established simply because the trial judge suggests a different forensic approach might have been open: the Court assessed counsel's decision as a considered tactical choice that was not shown to have miscarried.
- Where an accused is on bail between sentencing and the determination of a conviction appeal, section 18(2) of the Criminal Appeal Act 1912 provides that the bail period does not count toward the sentence, and section 28A empowers the Court to adjust sentence commencement dates accordingly.
- No error was established in the trial judge's failure to exclude evidence of alleged admissions under section 137 of the Evidence Act 1995 where defence counsel made no application for exclusion at trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1), 61I, 61L, 73
- Evidence Act 1995 (NSW), s 137
- Criminal Appeal Act 1912 (NSW), ss 6(1), 18(2), 28A
Cases:
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFI v R [2002] HCA 53; (2002) 213 CLR 606
- Prasad v R (1979) 2 A Crim R 45
- R v SKA [2009] NSWCCA 186
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299