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Court of Criminal Appeal 20 February 2014

Doyle v R; R v Doyle

[2014] NSWCCA 4

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION TENDENCY EVIDENCE CIRCULAR OR COINCIDENCE REASONING APPEAL AGAINST CONVICTION EVIDENCE OF COMPLAINT

Citation: Doyle v R; R v Doyle [2014] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 20 February 2014
Judge(s): Bathurst CJ at [1]; Price J at [432]; Campbell J at [472]

Background

The appellant was convicted after a second jury trial before Woods DCJ on all 38 counts of sexual offences alleged to have been committed against five male complainants over a period spanning from 1980 to 2003. The complainants were young males who, at various times, had been befriended by the appellant while he operated a cinema in the Sydney area. The first trial before North DCJ had ended without a verdict (other than a directed acquittal on one count), making this a retrial.

The offences ranged from indecent assault to sexual intercourse with persons under the age of 16, many of whom were under the authority of the appellant at the relevant times. The appellant was sentenced to a total term of 7 years' imprisonment with a non-parole period of 4 years and 6 months.

The appellant appealed against his convictions on multiple grounds. The Crown separately appealed against the sentence as manifestly inadequate.

  • Whether the trial judge misdirected the jury on tendency evidence, including the risk of circular or coincidence reasoning
  • Whether the trial judge erred in admitting complaint evidence or misdirected the jury on its permissible use
  • Whether the trial judge wrongly refused leave to cross-examine a complainant about prior sexual experience under s 293 of the Criminal Procedure Act 1986 (NSW)
  • Whether the trial judge erred in permitting the prosecutor to cross-examine and obtain supplementary evidence under s 38 of the Evidence Act 1995 (NSW), and whether directions on that issue were adequate
  • Whether the trial judge wrongly declined to allow re-examination aimed at re-establishing a complainant's credibility
  • Whether cross-examination of the appellant's character witnesses was impermissible
  • Whether the summing-up was fair and balanced and adequately put the defence case to the jury
  • Whether the sentencing judge failed to accumulate sentences appropriately, resulting in a manifestly inadequate total sentence

Decision

Conviction appeal: The Court of Criminal Appeal, by Bathurst CJ (with Campbell J agreeing), dismissed all grounds of the conviction appeal. The court found no material misdirection in the trial judge's directions on tendency evidence and no error in the treatment of complaint evidence. The directions given adequately explained the permissible use of the evidence and guarded against the risks of impermissible reasoning.

On the evidentiary grounds, the court found no error in the refusal to permit cross-examination about prior sexual experience, no impermissible use of s 38 of the Evidence Act, and no error arising from the limitation on re-examination or from the cross-examination of character witnesses. The court was also satisfied that the summing-up, taken as a whole, was fair and adequately placed the defence case before the jury.

Crown sentence appeal: Price J (with Campbell J agreeing) upheld the Crown's appeal. The sentencing judge had imposed largely concurrent sentences across the counts, including for the most serious offences involving sexual intercourse with a child under authority. The Court of Criminal Appeal found this approach failed to reflect the full criminality of the conduct, in particular by not adequately accumulating sentences for the more serious sexual intercourse offences and the later offences against the fifth complainant.

The court re-sentenced the appellant to an overall term of 9 years' imprisonment with a non-parole period of 6 years and 6 months. It confirmed that special circumstances existed, justifying the extended balance of term beyond the statutory ratio, given the appellant's age and the need for supervision on release. The court noted that the delay in prosecution of the Crown appeal arose from the complexity of the conviction appeal and did not weigh against the Crown.

Orders Made

  • Crown appeal allowed
  • Sentences for counts 17, 18, 21, 22, 23, 28 and 29 (sexual intercourse with a child contrary to s 66C(2) of the Crimes Act 1900) quashed; replaced with 5 years' imprisonment each, comprising a non-parole period of 2 years 6 months commencing 4 July 2016 and expiring 3 January 2019, with a balance of term of 2 years 6 months expiring 3 July 2021
  • Sentences for counts 35, 36, 37 and 38 (indecent assault contrary to s 61M(1) of the Crimes Act 1900) quashed; replaced with 6 years' imprisonment each, comprising a non-parole period of 4 years commencing 4 July 2012 and expiring 3 July 2016, with a balance of term of 2 years expiring 3 July 2018
  • Sentences imposed by Woods DCJ for all remaining counts confirmed
  • Earliest eligible release date: 3 January 2019

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that directions on tendency evidence must guard against circular reasoning and coincidence reasoning, but found that adequate directions, assessed in the context of the summing-up as a whole, will not be set aside merely because alternative formulations were available.
  • Where a trial judge permits prosecution cross-examination under s 38 of the Evidence Act 1995, the adequacy of accompanying jury directions is critical; no error arises where the directions correctly confine the jury's use of the resulting evidence.
  • Largely concurrent sentences for a series of serious sexual offences committed against multiple complainants over an extended period may be found manifestly inadequate where the sentencing court fails to accumulate appropriately to reflect the full extent of the criminality.
  • The Court of Criminal Appeal re-affirmed that delay in bringing a Crown sentence appeal, where attributable to the complexity of the related conviction appeal rather than any fault of the Crown, is not a bar to allowing the appeal.
  • A finding of special circumstances in sentencing for historical child sexual offences can justify a longer balance of term, particularly where the offender's age and the need for post-release supervision are established considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E, 61M, 66C, 66D, 78Q, 81
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 10, 28
- Criminal Procedure Act 1986 (NSW), ss 130A, 293
- Evidence Act 1995 (NSW), ss 11, 38, 39, 46, 60, 66, 97, 98, 101, 102, 103, 106, 108, 135, 136, 137, 192
- Criminal Appeal Rules, r 4

Cases:
- Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96
- Abdel-Hady ('Sa') v R [2011] NSWCCA 196
- BP v R [2010] NSWCCA 303
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Carbines v Powell (1925) 36 CLR 88
- Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
- Col v R [2013] NSWCCA 302
- DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206
- GEH v R [2012] NSWCCA 150
- Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- Johnson v R (2004) 78 ALJR 616
- Kanaan v R [2006] NSWCCA 109
- *KJR v The