AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
21
Court of Criminal Appeal 27 May 2015

Ewen v R

[2015] NSWCCA 117

Also reported as (2015) 250 A Crim R 544
Sexual offences
APPEAL CONVICTION TRIAL BY JUDGE ALONE CONVICTION R V MURRAY (1987) 11 NSWLR 12 LONGMAN V THE QUEEN [1989] HCA 60

Citation: Ewen v R [2015] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 27 May 2015
Judges: Basten JA; Simpson J; Davies J

Background

The appellant was convicted of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) following a trial by judge alone, a procedure available under s 132 of the Criminal Procedure Act 1986 (NSW) where the accused consents. The offence was alleged to have occurred at a private home during a party. The trial judge convicted the appellant and imposed custodial sentences.

The appellant challenged both the convictions and the sentences on a range of grounds. On conviction, the challenges focused primarily on whether the trial judge had properly addressed required legal warnings and principles in the judgment. On sentence, the challenge concerned the application of the totality principle and whether the sentences were unduly harsh.

  • Whether the trial judge, in a judge-alone trial under s 133 of the Criminal Procedure Act, was required to make explicit reference to the presumption of innocence as a principle distinct from the onus and standard of proof
  • Whether the trial judge was required to give a "Murray direction" (a warning about relying solely on uncorroborated complainant evidence) and, if so, whether s 294AA of the Criminal Procedure Act prohibited such a direction in this context
  • Whether the trial judge erred by failing to give a reliability warning under s 165(1)(c) of the Evidence Act 1995 (NSW) in relation to the complainant's intoxication
  • Whether the trial judge erred by failing to direct that flight evidence was not available as consciousness of guilt
  • Whether the trial judge's assessment of witness reliability was erroneous
  • Whether the verdict was unreasonable or unsupportable on the evidence under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the sentencing judge misapplied the totality principle and erred in characterising the offences as "mid-range"
  • Whether the sentencing aggravating factor in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (offence committed in a home) was correctly applied

Decision

Conviction appeal

The Court dismissed all grounds directed at the conviction. On the presumption of innocence, the Court confirmed that this presumption is not separate from or independent of the onus and standard of proof. Provided the trial judge's reasons demonstrated application of those principles, no additional explicit statement about the presumption of innocence was required.

On the Murray direction, the Court held that s 294AA of the Criminal Procedure Act expressly prohibits a judge from giving such a warning where the evidential issue is based solely on the absence of corroboration of a complainant's evidence. The argument that a Murray direction was required therefore failed on this statutory ground. The Court engaged in detailed analysis of the historical development of corroboration warnings in sexual assault cases, tracing the legislative reform designed to remove the suspect treatment of complainants' uncorroborated evidence.

The s 165 reliability warning concerning intoxication was not required because no request for such a warning was made at trial and intoxication was not raised as a live issue during the proceedings. The flight evidence ground also failed because the trial judge made no inference of consciousness of guilt from any evidence of flight. On the unreasonable verdict ground, the Court found the trial judge's findings were open on the evidence, with the judge's assessment of witness reliability being reasonable in light of all the evidence, including that of other witnesses present before and after the assault.

Sentence appeal

The Court granted leave to appeal against sentence but dismissed the appeal. It found the sentencing judge had erred in applying the aggravating factor under s 21A(2)(eb) by treating the fact that the offence was committed in a home as aggravating, when the home had been used to host a party, making access to the premises not relevantly restricted. However, this error did not ultimately produce sentences that were manifestly excessive. The Court also rejected the submission that the totality principle had been incorrectly applied and found the characterisation of the offences as mid-range, and the sentences imposed, fell within the permissible range.

Orders Made

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

Key Takeaways

  • The presumption of innocence is not a legal principle separate from the onus and standard of proof; a trial judge's explicit engagement with those concepts satisfies the requirement under s 133(2) of the Criminal Procedure Act to state the relevant principles of law applied.
  • Section 294AA of the Criminal Procedure Act prohibits a Murray-style corroboration warning where the only evidential issue is the absence of corroboration of the complainant's account, reflecting a deliberate legislative policy to remove the historical suspect treatment of complainants in sexual assault cases.
  • In a judge-alone trial, if a judgment fails to show that a required principle of law was applied, the Court of Criminal Appeal will generally treat the principle as not having been applied, rather than applied but merely unrecorded, following Fleming v The Queen.
  • Under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act, treating a home as an aggravating location is not appropriate where the premises were open to attendees of a party; the protected use of the home must be relevant to the aggravation.
  • No error was established in the trial judge's assessment of witness reliability; the Court confirmed it was open on the evidence to convict, particularly given the testimony of other witnesses present in the relevant circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I, s 405B, s 405C
- Criminal Procedure Act 1986 (NSW), s 132, s 133, s 294, s 294AA
- Criminal Appeal Act 1912 (NSW), s 5, s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb), s 44(2)
- Evidence Act 1995 (NSW), s 128, s 164, s 165

Key Cases
- Fleming v The Queen [1998] HCA 68; 197 CLR 250
- R v Murray (1987) 11 NSWLR 12
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Robinson v The Queen [1999] HCA 42; 197 CLR 162
- Kelleher v The Queen [1974] HCA 48; 131 CLR 534
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Stewart [2001] NSWCCA 260; 52 NSWLR 301
- R v BWT [2002] NSWCCA 60; 54 NSWLR 241
- Greensill v The Queen [2012] VSCA 306; 226 A Crim R 416