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10
Court of Criminal Appeal 28 July 2014

Jarrett v R

[2014] NSWCCA 140

Also reported as (2014) 86 NSWLR 623
Sexual offences
CRIMINAL LAW APPEAL CONVICTION DIRECTIONS TO JURY APPEAL SENTENCE

Citation: Jarrett v R [2014] NSWCCA 140
Court: Court of Criminal Appeal
Date: 28 July 2014
Judges: Basten JA; R A Hulme J; Campbell J

Background

The applicant was convicted by a jury in November 2012 on four counts of sexual assault against a 12-year-old girl, a friend of his daughter. The offences occurred in June 2007. The applicant was not charged until 2009, and the complainant did not give a full police account until January of that year, having initially disclosed the allegations to her sister and school friends in late 2007.

The prosecution case rested primarily on two categories of evidence: a video recording of the complainant's police interview (tendered as her evidence in chief), and admissions the applicant made in October 2007 when admitted to a hospital mental health unit. At that time, the applicant understood the complainant was about to go to the police. Three hospital staff members gave evidence of his statements, which were capable of being understood as acknowledgements of sexual misconduct.

The applicant was sentenced in January 2013 to concurrent terms, with the two more serious offences attracting eight-year sentences each, carrying five-year non-parole periods. He sought leave to appeal against both conviction and sentence.

Legal Issues

  • Whether the jury should have received a further warning under s 306X of the Criminal Procedure Act 1986 (NSW) when accessing the complainant's video evidence in the jury room
  • Whether the trial judge erred in failing to direct the jury that the applicant's admissions at the hospital may have referred to someone other than the complainant
  • Whether the trial judge erred in declining to give a direction about significant forensic disadvantage caused by delay in complaint, under s 165B of the Evidence Act 1995 (NSW)
  • Whether the trial judge erred in failing to direct the jury that delay in complaining was relevant to the complainant's credibility, under s 294(2)(c) of the Criminal Procedure Act
  • Whether the sentencing judge failed to take adequate account of the applicant's mental health

Decision

Ground 1: Jury access to complainant's video recording

The trial judge had given a warning under s 306X early in the trial, and no further warning or objection was sought when the jury requested the video during deliberations. The jury requested the video alongside written transcripts of the complainant's evidence and Detective Scott's evidence, which included the complaint evidence. That context indicated the jury was likely comparing inconsistencies rather than replaying the complainant's evidence disproportionately. Basten JA (with R A Hulme J agreeing) held that no miscarriage of justice resulted, and leave to appeal was refused.

Campbell J took a different route to the same conclusion. His Honour held that, following the High Court's decision in Gately v The Queen [2007] HCA 55, it will seldom if ever be appropriate to allow a jury unsupervised access to a recorded complainant's evidence, and that the practice in R v NZ [2005] NSWCCA 278 should give way to the more prescriptive approach in Gately. Campbell J characterised the jury's unsupervised access as an irregularity, but agreed it did not give rise to a miscarriage of justice in the circumstances.

Ground 2: Direction on admissions at the hospital

The applicant argued the jury should have been directed that the admissions, which did not name the complainant expressly, might have referred to a different person, framing this as an intermediate fact requiring proof beyond reasonable doubt. The Court refused leave. The forensic risk of such a direction was obvious: it would have raised before the jury the possibility that the applicant had committed similar offences against another victim entirely. Counsel for the defence had not sought the direction at trial, and for understandable forensic reasons.

Ground 3: Forensic disadvantage from delay (s 165B Evidence Act)

Leave to appeal was granted on this ground given the relative novelty of s 165B. However, the appeal was dismissed. The Court identified four considerations bearing on whether a direction was required. First, the section is concerned with actual disadvantage to the accused, not any general premise about complainant unreliability. Second, where both complainant and authorities acted reasonably, "delay" is not automatically established. Third, where the accused's own conduct contributed to the delay, any resulting forensic disadvantage may not qualify as a "consequence of delay" or may provide a good reason under s 165B(3) not to give the direction; here, the applicant had told the complainant he would kill himself if she told anyone. Fourth, the applicant had been on notice since October 2007 and had taken no steps to preserve evidence or make inquiry. The Court concluded that no significant forensic disadvantage had been established, and even if it had, good reasons existed not to give the direction.

Ground 4: Delay and complainant credibility (s 294(2)(c) Criminal Procedure Act)

The applicant contended that evidence of inconsistencies between the complainant's various disclosures to her sister and school friends justified a warning that delay was relevant to credibility. The Court disagreed. The mandatory warnings under s 294(2)(a) and (b) were given. The threshold in s 294(2)(c) requires "sufficient evidence" before a credibility-based delay warning is given. The Court found that what the evidence disclosed was not doubt arising from delay but inconsistencies in the content of complaints, which counsel had thoroughly exploited in addresses. Those inconsistencies did not justify a delay-based credibility direction. Leave to appeal was refused.

Ground 5: Mental health and sentencing

The applicant contended the sentencing judge failed to engage adequately with psychiatric evidence when considering moral culpability, general deterrence and the hardship of imprisonment. The Court rejected this in two respects. The sentencing judge had expressly identified the applicant's mental health difficulties as a basis for finding special circumstances, and had clearly received and considered the tendered psychiatric report. Further, the sentences imposed corresponded precisely to the bottom of the range proposed by counsel for the applicant at the sentencing hearing. No basis existed to conclude a less severe sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW).

The Court also noted, on the Director's prompting, that the two fixed-term sentences imposed for the lesser offences were technically irregular because those offences attracted a standard non-parole period, meaning a true fixed term was not available without engaging s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, as both sentences had already expired by the time of the appeal, no further order was made.

Orders Made

  • Leave to appeal against conviction granted on Ground 3 (forensic disadvantage from delay); appeal on that ground dismissed.
  • Leave to rely on Grounds 1, 2 and 4 refused pursuant to Criminal Appeal Rules, r 4.
  • Leave to appeal against sentence refused.

Key Takeaways

  • Under s 165B of the Evidence Act 1995 (NSW), a significant forensic disadvantage direction is not established by delay alone; where an accused's own conduct materially contributed to the delay in complaint, that conduct may both undermine any claim of disadvantage and supply a "good reason" for declining to give the direction under s 165B(3).

  • A direction framing an admission as possibly referring to an unnamed third person is unlikely to assist the defence and carries a serious risk of prejudice by implying similar offending against someone else; such a direction will rarely be appropriate.

  • Campbell J confirmed, applying Gately v The Queen [2007] HCA 55, that it will seldom if ever be appropriate to give a jury unsupervised access to a video recording of a complainant's evidence, and that this approach from Gately should now be the practice in New South Wales, superseding the less prescriptive approach in R v NZ [2005] NSWCCA 278.

  • The threshold under s 294(2)(c) of the Criminal Procedure Act requires "sufficient evidence" before a judge may warn the jury that delay is relevant to a complainant's credibility; inconsistencies in complaint content do not, without more, satisfy that threshold.

  • Where sentences imposed correspond to the bottom of the range proposed by defence counsel at the sentencing hearing, there is a strong basis for finding that the sentencing judge engaged with all relevant submissions, even where written reasons did not spell out every mitigating factor explicitly.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
- Crimes Act 1900 (NSW), ss 61J, 61M
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 294, 294AA, 306X
- Evidence Act 1995 (NSW), s 165B

Cases
- Collier v R [2012] NSWCCA 213
- Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- Gately v The Queen [2007] HCA 55; 232 CLR 208
- Gavin v R [2006] NSWCCA 66
- Hristovski v R [2010] NSWCCA 129
- JJB v The Queen [2006] NSWCCA 126; 161 A Crim R 187
- Kilby v The Queen [1973] HCA 30; 129 CLR 460
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- M v The Queen [1994] HCA 63; 181 CLR 487
- Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24
- R v Hemsley [2004] NSWCCA 228
- R v LTP [2004] NSWCCA 109
- R v NZ [2005] NSWCCA 278; 63 NSWLR 628
- Shepherd v The Queen [1990] HCA 56; 170 CLR 573
- Suresh v The Queen [1988] HCA 23; 72 ALJR 769