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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: Court of Criminal Appeal
Date: 20 February 2014
Judges: Bathurst CJ; Price J; Campbell J at

Background

The appellant was the proprietor of a suburban cinema in Sydney. He was tried for 38 sexual offences committed against five male complainants over a period spanning more than two decades, from 1980 to 2003. Each complainant was a young male who had been employed at the cinema or otherwise brought into contact with the appellant through its operations.

Following a first trial in which the jury could not agree, the appellant was convicted at a retrial before a judge and jury on all 38 counts. The offences ranged from indecent assault to sexual intercourse with persons under the age of 16, and involved conduct including fondling, masturbation, fellatio, and digital penetration. He was sentenced to an overall term of 7 years' imprisonment with a non-parole period of 4 years and 6 months.

The appellant appealed against his conviction on ten grounds. Separately, the Crown appealed against the sentence as manifestly inadequate, contending the trial judge had failed to accumulate sentences sufficiently to reflect the totality of the criminality.

Legal Issues

  • Whether the trial judge misdirected the jury on tendency evidence, including whether the directions permitted impermissible coincidence reasoning or circular reasoning
  • Whether the trial judge erred in admitting evidence of complaint made by one complainant to his then-partner, particularly in the context of a prior ruling at the first trial
  • Whether the trial judge's directions on the use of complaint evidence were too general or otherwise erroneous
  • Whether the trial judge (at the first trial, with the ruling binding at the retrial) erred in refusing leave under s 293 of the Criminal Procedure Act 1986 to cross-examine a complainant about an alleged sexual assault by a third party
  • Whether the trial judge erred in permitting the prosecutor to cross-examine a defence-called witness under s 38 of the Evidence Act 1995 and in allowing that witness to be recalled to give supplementary evidence
  • Whether the trial judge's directions to the jury concerning that witness's evidence were erroneous
  • Whether cross-examination of character witnesses suggesting underlying concern about the appellant's conduct with their sons amounted to a miscarriage of justice
  • Whether the trial judge erred in declining to permit re-examination of a key defence witness to rehabilitate his credibility
  • Whether the summing up was fair and balanced, and adequately presented the defence case
  • Whether the total sentence was manifestly inadequate by reason of insufficient accumulation

Decision

Ground 1: Tendency evidence directions

The Court held that the tendency directions, read as a whole, were not erroneous. The trial judge had required the jury to be satisfied beyond reasonable doubt both that the underlying acts occurred and that those acts established the alleged tendency before using that tendency evidence in relation to any charge. That two-step requirement was adequately explained. The Court acknowledged that some language in the summing up was more consistent with coincidence reasoning than tendency reasoning, particularly references to "the sheer number of the complainants," but found this did not constitute a misdirection because the judge had clearly limited the permissible use of such evidence. The Court distinguished the present case from cases involving circular reasoning, noting there was no assumption of the facts sought to be proved. The absence of a direction in Markuleski terms and the absence of specific directions on good character and tendency were noted as concerns, but neither caused a miscarriage of justice in circumstances where guilty verdicts were returned on all counts and no objection had been raised at trial.

Ground 2: Admission of complaint evidence from complainant DL

The Court upheld the trial judge's decision to admit prior consistent statements made by DL to his then-partner. The precondition under s 108(3)(b) of the Evidence Act was satisfied because the defence case, which included an alibi placing the appellant at a restaurant on the night in question, went beyond mere denial and at least impliedly suggested that DL's evidence about that night had been fabricated. The Court confirmed that fabrication need not be explicitly raised; it is sufficient if it is strongly inferred. The fact that the consistent statements were made some years after the alleged events was relevant to the exercise of discretion but was not a precondition to the grant of leave.

Ground 3: Directions on complaint evidence generally

The Court found no error warranting appellate intervention. No objection had been taken to the admission of the complaint evidence, and no application was made under ss 135, 136, or 137 of the Evidence Act to exclude or limit its use. The Court accepted that the directions were not perfectly tailored to each count, but noted the judge had emphasised that evidence should be considered separately for each complainant, had dealt with each complaint individually, and had given detailed warnings about delay. No miscarriage of justice was demonstrated.

Ground 4: Refusal of leave under s 293 to cross-examine about another alleged sexual assault

The Court upheld the refusal of leave to cross-examine one complainant about an alleged assault by a third party that occurred approximately two years after the last offence charged against the appellant. Section 293(4)(a) required that the sexual experience be at or about the time of the alleged offence and form part of a connected set of circumstances. Neither requirement was met. The Court also rejected the argument that s 293(6) was enlivened by any implied suggestion of lack of sexual experience. Even accepting a residual discretion to allow an appeal in cases of miscarriage of justice notwithstanding a correct ruling, the Court found no real chance of acquittal had been lost; without any evidence that the complaint against the third party was true or false, it could not have materially affected the jury's assessment of the complainant's evidence.

Ground 5: Cross-examination of a defence witness under s 38 and recall for supplementary evidence

The Court found no error in permitting the Crown to cross-examine the witness under s 38 of the Evidence Act in relation to prior inconsistent statements. No objection had been taken to the first through fifth applications. While the sixth application and the recall of the witness for supplementary evidence were more problematic, the cross-examination exceeding the scope of leave was again unobjected to, and in any event the defence had been able to neutralise the damaging aspects through cross-examination. The Court noted that the power to recall witnesses is not limited to s 46 of the Evidence Act, the general power to control proceedings under s 11 being available.

Ground 6: Directions on the evidence obtained via s 38 and supplementary evidence

The Court found no error in the trial judge's directions concerning the witness's evidence and the Crown's attack on his credibility. Once the evidence had been properly admitted, there was nothing improper in the trial judge directing the jury to consider the question of the witness's reliability. Minor criticisms of the directions, including a slight misstatement of the witness's evidence about a complainant's age, did not amount to a miscarriage of justice.

Ground 7: Cross-examination of character witnesses

The Court found that the statement made by a defence witness outside the courtroom was capable of substantially affecting his credit within the meaning of s 103 of the Evidence Act, and the trial judge had not erred in permitting cross-examination on it. The admission of a character witness's evidence about that same statement without objection did not cause a miscarriage of justice, particularly because it was ultimately favourable to the appellant by confirming the defence witness had not used the stronger language attributed to him.

Ground 8: Refusal to permit re-examination

The Court found no error. The evidence sought to be adduced in re-examination did not arise sufficiently from cross-examination, and no error of discretion in refusing to grant leave was established.

Ground 9: Cross-examination of character witnesses about concern for their sons

The trial judge gave a clear and unequivocal direction at the conclusion of the summing up that the jury could not reason from the fact that a mother had questioned her child about the appellant to an inference that something had gone wrong. There was no reason to think the jury would have disregarded it.

Ground 10: Adequacy of the summing up

The Court found the summing up to be fair and balanced, having read it in its entirety across three days. The approach of dealing with each complainant's evidence alongside the respective Crown and defence cases was a legitimate structure. Specific criticism about the treatment of sauna evidence, scarring evidence, the pool table, and the character witnesses were addressed in turn and found to have been adequately, if not exhaustively, covered. The Court noted that experienced senior counsel at trial had not sought further directions on most of the matters complained of.

Crown Appeal: Manifest inadequacy of sentence

The Court of Criminal Appeal allowed the Crown appeal. Price J, with whom Bathurst CJ and Campbell J agreed, found that the overall sentence of 7 years failed to reflect the totality of the criminality across 23 years and five victims. The practical effect of the structuring was that the appellant received no real punishment for the offending against three of the five complainants, and the non-parole periods for the more serious sexual intercourse offences against a fourth complainant were entirely subsumed by concurrent fixed terms. The Court also noted the trial judge's error in imposing fixed terms for the four most recent counts, which attracted a statutory standard non-parole period under s 45 of the Crimes (Sentencing Procedure) Act 1999, leaving no discretion to impose a fixed term. Acknowledging that sentencing standards were more lenient at the time of the earlier offending, and considering the appellant's subjective circumstances, the Court re-sentenced to an overall term of 9 years with a non-parole period of 6 years and 6 months.

Orders Made

  • Appeal against conviction dismissed.
  • Crown appeal against sentence allowed.
  • Sentences for counts 17, 18, 21, 22, 23, 28, and 29 (offences contrary to s 66C(2) Crimes Act) 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 (offences contrary to s 61M(1) Crimes Act) 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 for all remaining counts confirmed.
  • Earliest date eligible for release on parole: 3 January 2019.

Key Takeaways

  • Tendency evidence directions need not segregate each complainant's evidence from every other count in the indictment; the Court of Criminal Appeal confirmed it is not circular reasoning to consider all the evidence when assessing whether alleged acts occurred, provided the jury is required to be satisfied beyond reasonable doubt of both the underlying acts and the tendency they establish before using that tendency.
  • Under s 108(3)(b) of the Evidence Act 1995, the precondition that fabrication be suggested "by implication" does not require the suggestion to be explicit or strongly signalled; an alibi putting the accused geographically away from the location of an alleged offence on a specific date can, in context, be sufficient to permit the admission of prior consistent statements to rebut that implied suggestion.
  • A refusal to grant leave under s 293(4)(a) of the Criminal Procedure Act 1986 is correct where the sexual experience sought to be explored occurred approximately two years after the last charged offence; the temporal and circumstantial connection required by the provision was not satisfied, and the existence of similar allegations against a third party does not itself constitute a connected set of circumstances.
  • In a multi-offender, multi-count sentencing exercise, structuring sentences so that all terms for offending against some victims are entirely subsumed by concurrent terms imposed for offending against others may fail to reflect the totality of the criminality, even where the principle of totality properly limits overall accumulation.
  • Where an offence committed after 1 February 2003 attracts a statutory standard non-parole period under s 45 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court has no discretion to impose a fixed term; failure to set a non-parole period for such an offence is an error requiring correction on appeal.

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 Appeal Rules, r 4
- 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

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 Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226
- KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552
- Magnuson v R [2013] NSWCCA 50
- Mill v R (1988) 166 CLR 59; 36 A Crim R 468
- Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Pemble v The Queen (1971) 124 CLR 107
- PWB v R [2011] NSWCCA 84
- R v Berrigan (Court of Criminal Appeal (NSW), 7 October 1994, unreported)
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487
- R v Hammond [2000] NSWCCA 540
- R v Holder & Johnston [1983] 3 NSWLR 245; (1983) 13 A Crim R 375
- R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450
- R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- R v Meher [2004] NSWCCA 355
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- R v Morgan (1990) 30 NSWLR 543
- R v Ryan (No 7) [2012] NSWSC 1160; (2012) 218 A Crim R 384
- R v Souleyman (1996) 40 NSWLR 712
- R v Sukkar [2005] NSWCCA 54
- R v Velevski (No 2) (1997) 93 A Crim R 420
- R v Veverka [1978] 1 NSWLR 478
- R v Whitmore [1999] NSWCCA 247; (1999) 109 A Crim R 51
- R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89
- R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629
- SGJ v R; KU v R [2008] NSWCCA 258
- Shanahan v Scott (1957) 96 CLR 245
- Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
- Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1