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21
Court of Criminal Appeal 18 July 2014

W v R

[2014] NSWCCA 110

Sexual offences
CRIMINAL SUBRAMANIAM DIRECTION WHETHER OBLIGATION TO GIVE DIRECTION LONGMAN WARNING JUDGE ALONE TRIAL WHETHER OBLIGATION TO GIVE WARNING

Citation: W v R [2014] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 18 July 2014
Judges: Bathurst CJ (with whom Hoeben CJ at CL and Bellew J agreed)

Background

The appellant was charged with ten counts of sexual offences against his stepdaughter, said to have occurred in September and October 1992 when the complainant was 14 years old. The appellant was found unfit to plead, which triggered a "special hearing" under s 21 of the Mental Health (Forensic Provisions) Act 1990 (NSW). That hearing was conducted by a judge alone.

The trial judge acquitted the appellant on four counts (the principal aggravated sexual assault and attempted sexual assault counts) but found, on the limited evidence available at a special hearing, that the appellant had committed the offences described in the remaining six counts. The judge imposed a limiting term of imprisonment, commencing 8 March 2013 and expiring 7 June 2016, partially accumulated across the counts.

The appellant appealed both the findings of guilt and the severity of the limiting term on multiple grounds. Leave to appeal was required and was granted by the Court, noting no objection had been raised by either party.

  • Whether the trial judge properly applied the Subramaniam direction (concerning reliance on out-of-court statements as evidence of the truth of their contents)
  • Whether the trial judge was obliged to give, and did give, an adequate Longman warning (concerning the dangers of convicting on uncorroborated evidence of historical sexual offences, given the delay in complaint) in a judge-alone special hearing under s 165B of the Evidence Act 1995 (NSW)
  • Whether the trial judge gave, and properly applied, a Murray direction (reminding the fact-finder of the limited use of evidence of general sexual conduct between the appellant and complainant prior to the charged incidents)
  • Whether the verdict was unsafe and unsatisfactory, in that it was not open to the judge to be satisfied beyond reasonable doubt on the evidence available
  • Whether the trial judge erred in sentencing by failing to take into account the appellant's mental state at the time of the offences
  • Whether the limiting term was manifestly excessive

Decision

Subramaniam direction: The Court found no error in the trial judge's treatment of hearsay evidence. The diary entries of the complainant were properly treated as contemporaneous records corroborating her account, not as out-of-court statements tendered for the truth of their contents in a way requiring any different direction. The ground was dismissed.

Longman warning: The Court acknowledged that in a judge-alone trial, a warning under s 165B of the Evidence Act must be genuinely applied and not merely recited in a formulaic way. Bathurst CJ emphasised that a bare incantation of the warning, without evidence that the fact-finder actually engaged with the reasoning it requires, may be insufficient. On the facts, the Court found that the trial judge did adequately address the relevant dangers arising from the delay in complaint, and the ground failed.

Murray direction: The Court similarly stressed that where a judge alone gives themselves a direction of this kind, the judgment must expose a reasoning process that demonstrates the direction was actually followed. A perfunctory reference to the direction without any apparent application of it to the evidence would not suffice. On the evidence here, the Court concluded the trial judge had sufficiently engaged with the limited use of the relationship evidence and the direction had been applied, so this ground was also dismissed.

Unsafe and unsatisfactory verdict: Applying the test in M v The Queen and Libke v The Queen, the Court found it was open to the trial judge, having seen and heard the witnesses, to be satisfied beyond reasonable doubt on the limited evidence available. The complainant's evidence, supported by her diary entries, provided a sufficient evidentiary basis for the findings. The advantage held by the trial judge in observing witnesses was a relevant consideration. This ground failed.

Sentencing grounds: The appellant's counsel at trial had expressly declined to rely on the appellant's mental condition at the time of the offences as a mitigating factor, and there was insufficient evidence before the sentencing judge to permit such a finding in any event. The Court held the sentencing judge could not be criticised for failing to take into account a matter that was deliberately not pressed. On manifest excess, the statistical sentencing data supplied by the Crown showed the limiting terms fell within the lower range for offences of this nature. The Court declined to determine the issue by comparison to a single other case involving different facts. Both sentence grounds were dismissed.

Orders Made

  • Leave to appeal against conviction and sentence granted
  • Appeal dismissed

Key Takeaways

  • In a judge-alone trial or special hearing, giving oneself a Longman warning or Murray direction as a formulaic recitation is not enough. The judgment must demonstrate that the warning or direction was genuinely applied in the reasoning process.
  • A special hearing under s 21 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is subject to appeal in the same manner as an ordinary criminal trial, including appeals against both the verdict and the limiting term.
  • Where defence counsel at trial expressly eschews reliance on a mitigating factor (here, the appellant's mental state at the time of the offences), a sentencing court cannot later be criticised on appeal for failing to take that factor into account, particularly in the absence of supporting evidence.
  • Manifestly excessive sentence grounds are not established by comparison to sentences in a single other case with different facts and circumstances. Sentencing patterns drawn from a broader statistical base carry more weight, subject to the cautions expressed by the High Court in Hili v The Queen.
  • The Court of Criminal Appeal confirmed that the advantage a trial judge holds from having seen and heard witnesses remains a significant consideration when assessing whether a verdict is unsafe and unsatisfactory.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 61P, 66C, 66D
- Criminal Procedure Act 1986 (NSW), ss 33 and 133
- Evidence Act 1995 (NSW), ss 9, 165A and 165B
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 21, 21A, 21B, 22 and 23

Cases:
- Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372
- EK v The Queen [2010] NSWCCA 199; (2010) 79 NSWLR 740
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241