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Court of Criminal Appeal 15 December 2014

Pasoski v R

[2014] NSWCCA 309

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW APPEAL AGAINST CONVICTION "CONTEXT" EVIDENCE APPEAL AGAINST CONVICTION COURT TO RE

Citation: Pasoski v R [2014] NSWCCA 309
Court: Court of Criminal Appeal, NSW
Date: 15 December 2014
Judges: Meagher JA; Hidden J; RS Hulme AJ

Background

The applicant was convicted in the District Court of two counts of assault occasioning actual bodily harm and five counts of sexual intercourse without consent. All seven offences were alleged to have occurred in November 2010 at premises where the applicant and the complainant lived together with their two young daughters.

The trial judge imposed an aggregate sentence of five years and six months imprisonment with a non-parole period of two years and nine months. The applicant filed his conviction appeal and application for leave to appeal against sentence more than two years after the applicable three-month deadline, requiring an extension of time.

On the conviction appeal, three grounds were raised: a procedural failure in the majority verdict direction, the wrongful admission of "context" evidence about the applicant's controlling behaviour toward the complainant, and the trial judge's failure to direct the jury on the limited use of that context evidence. On sentence, the applicant challenged whether the offences were properly treated as aggravated because they occurred in the home shared by both parties.

  • Whether the extension of time to appeal should be granted, given the unsatisfactory supporting affidavit
  • Whether the trial judge's failure to examine a juror on oath before giving a majority verdict direction, as required by s 55F(2)(b) of the Jury Act 1977 (NSW), constituted a miscarriage of justice
  • Whether the admission of "context" evidence relating to the applicant's controlling conduct in the relationship occasioned a miscarriage of justice
  • Whether the trial judge erred by failing to direct the jury on the limited purposes for which the context evidence could be used
  • Whether the trial judge erred in treating the location of the sexual assaults, within the shared home, as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether, upon quashing the convictions on counts 7 and 8, a retrial or acquittal was the appropriate remedy
  • What aggregate sentence was appropriate across the remaining five counts

Decision

Extension of time: The supporting affidavit was described as "less than satisfactory," providing little explanation for the delay beyond vague references to administrative errors by the District Court. However, because the Crown did not oppose the extension and one conviction ground was conceded, the court found the interests of justice required granting the extension to 16 August 2014.

Conviction Ground 1 (majority verdict direction): This ground was conceded by the Crown. Section 55F(2)(b) of the Jury Act 1977 requires a court to examine at least one juror on oath and be satisfied it is unlikely a unanimous verdict will be reached before a majority verdict direction may be given. The trial judge did not examine any juror on oath before giving the direction on counts 7 and 8. The court held that a precondition to the power had not been satisfied, that the applicant had not received a trial according to law on those counts, and that the convictions must be quashed.

Conviction Grounds 2 and 3 (context evidence): Leave to appeal was refused on both grounds. The context evidence concerned the applicant's controlling behaviour toward the complainant, including limiting her social contacts, monitoring her movements, and pressuring her in various ways. The court found this evidence was admissible as relevant background to the relationship and that, even if a limiting direction should have been given, no substantial miscarriage of justice resulted given the strength of the Crown case.

Sentence grounds: The court accepted that treating the location of the sexual assault as an aggravating factor was an error, because the parties resided together at the relevant time and s 21A(2)(eb) does not operate as an aggravating factor in those circumstances. The sentencing error and the quashing of counts 7 and 8 together required the court to reassess and impose a fresh aggregate sentence across the five remaining counts. Rather than ordering a retrial on counts 7 and 8, the court directed acquittals on those counts, considering the applicant's existing convictions for the events in question, the prospect of the complainant facing a third cross-examination, and the limited public interest in a further trial.

Orders Made

  1. Time for giving notice of appeal and application for leave to appeal extended to 16 August 2014
  2. Leave to appeal granted on conviction ground 1
  3. Convictions on counts 7 and 8 quashed
  4. Judgment and verdict of acquittal entered on counts 7 and 8
  5. Leave to appeal refused on conviction grounds 2 and 3
  6. Leave to appeal granted on sentencing grounds 1 and 2
  7. Aggregate sentence of five years and six months with a non-parole period of two years and nine months quashed
  8. Applicant re-sentenced to an aggregate term of four years and eleven months with a non-parole period of two years and five and a half months, ending 18 October 2014, dating from 4 May 2012

Key Takeaways

  • Under s 55F(2)(b) of the Jury Act 1977 (NSW), a majority verdict direction is only lawful if the court has first examined at least one juror on oath and formed the requisite satisfaction that unanimous agreement is unlikely. Omitting that examination deprives the accused of a trial according to law and requires the convictions to be quashed.

  • A deficient affidavit in support of an extension of time application will not necessarily be fatal where the Crown does not oppose and the grounds of appeal are at least fairly arguable. The discretion is exercised with reference to the interests of justice, including the length of delay, the reasons for it, and the applicant's prospects of success.

  • The aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply where the complainant and the offender resided together at the relevant time. Applying it in those circumstances constitutes sentencing error.

  • Where convictions are quashed for procedural irregularity, the Court of Criminal Appeal may direct an acquittal rather than order a retrial. Relevant considerations include the extent to which the events have already been the subject of conviction, the interests of the complainant in not being cross-examined again, and the limited public interest in a further trial.

  • "Context" evidence of a controlling or difficult relationship between an accused and a complainant, that does not involve prior uncharged assaults, may be admissible to provide background to charged conduct. The absence of a specific limiting direction on such evidence will not necessarily constitute a miscarriage of justice if the overall trial was fairly conducted and the Crown case was strong.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 53A, 306I(5)
- Criminal Appeal Act 1912 (NSW), ss 6(2), (3), 8, 10(1)(b)
- Criminal Appeal Rules, rr 3B(2), 4
- Criminal Procedure Act 1986 (NSW), s 306I
- Evidence Act 1995 (NSW), ss 55, 95, 97, 101, 135, 137(2)
- Jury Act 1977 (NSW), s 55F(2)(b)

Cases
- Andrews v The Queen [1968] HCA 84; 126 CLR 198
- ARS v R [2011] NSWCCA 266
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- BBH v The Queen [2012] HCA 9; 245 CLR 499
- Black v The Queen [1993] HCA 71; 179 CLR 44
- Carney v R [2011] NSWCCA 223; 217 A Crim R 201
- Dyers v The Queen [2002] HCA 45; 210 CLR 285
- EK v R [2010] NSWCCA 199; 79 NSWLR 740
- FP v R [2012] NSWCCA 182; 224 A Crim R 82
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