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Court of Criminal Appeal 9 July 2015

McIntosh v R

[2015] NSWCCA 184

Sexual offencesAssault & violence
APPEAL LEAVE TO APPEAL CRIMINAL TRIAL INTERLOCUTORY DECISION BASHA INQUIRY HELD COMPLAINANTS CROSS

Citation: McIntosh v R [2015] NSWCCA 184
Court: Court of Criminal Appeal, New South Wales
Date: 9 July 2015
Judge(s): Basten JA; Hidden J; Wilson J

Background

Following two separate District Court trials in 2009 and 2011, the applicant was convicted of 42 offences of assault and indecent assault against multiple young complainants. The first trial concerned offences committed against a single complainant during a school cadet unit between April 1991 and January 1992. The second trial concerned offences against three further complainants, primarily committed in or around Inverell between the late 1970s and early 1980s.

The sentencing judge imposed an aggregate term of 32 years' imprisonment with a non-parole period of 20 years, spanning all convictions from both trials. The applicant sought leave to appeal both his convictions and the aggregate sentence.

The appeals raised distinct issues across the two trials: the admissibility and proper treatment of tendency and coincidence evidence at the first trial, procedural fairness in the ordering of a joint trial at the second, and several sentencing questions concerning the use of aggregate sentences and the application of historical sentencing principles.

  • Whether the trial judge at the first trial gave proper consideration to the possibility of concoction when assessing the significant probative value of tendency and coincidence evidence under ss 97, 98, and 101 of the Evidence Act 1995 (NSW)
  • Whether evidence previously rejected under the tendency rule was properly admitted as relationship evidence to explain a complainant's response
  • Whether the trial judge at the first trial gave adequate jury directions distinguishing tendency evidence from coincidence evidence
  • Whether the applicant was denied a fair trial through an inadequate credibility direction
  • Whether the applicant was denied the opportunity to reopen the question of separate trials at the second trial
  • Whether the aggregate sentence was lawfully imposed, given that one set of convictions predated the commencement of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge correctly applied the sentencing principles in force at the time of the historical offences
  • Whether the principle of totality applies to an aggregate sentence and whether individual indicative sentences required non-parole periods

Decision

Conviction appeals. The Court of Criminal Appeal refused leave to appeal the convictions from both trials. On the tendency and coincidence evidence grounds from the first trial, the Court found that the trial judge had adequately considered whether concoction was a realistic possibility before admitting the evidence. The mere suggestion of concoction in general terms during cross-examination on the voir dire did not, without more, diminish the probative value of the evidence or require the trial judge to undertake a further separate analysis. The Court also found no error in the judge's treatment of the evidence of uncharged beatings as relationship evidence, which had a legitimate explanatory function distinct from its earlier rejection as tendency evidence.

On the jury direction grounds, the Court held that no complaint had been raised at trial about the directions concerning tendency and coincidence evidence. Leave under r 4 of the Criminal Appeal Rules (NSW) was required and refused, with no substantial miscarriage of justice established. The challenge to the credibility direction likewise failed.

Sentencing. The sentencing appeal raised more complex questions. One significant issue was whether an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act could lawfully encompass convictions from the first trial, given that s 53A commenced after that trial concluded. The Court examined the meaning of "convicted" in the relevant transitional provisions, concluding that the applicant had been "convicted" at the first trial before s 53A commenced, and that the aggregate sentencing regime therefore could not apply to those earlier convictions without express legislative authority.

The Court also considered whether historical sentencing principles had been correctly applied, including the principle from Griffiths v The Queen (1977) 137 CLR 293 that leniency is not automatically available to an offender whose prior convictions post-date the offences being sentenced. On the question of totality, the Court confirmed that the principle of totality does apply to aggregate sentences. Several indicative sentences were found to require correction, and the matter was remitted for resentencing on particular grounds.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A trial judge assessing significant probative value of tendency or coincidence evidence is not required to undertake a separate extended analysis of concoction merely because the possibility is raised in general terms during the voir dire; only a realistic possibility of concoction affects probative value under ss 97, 98, and 101 of the Evidence Act 1995 (NSW).

  • Evidence rejected under the tendency rule at a pre-trial hearing may still be admitted as relationship evidence if it serves a genuinely distinct purpose, such as explaining a complainant's response to events, rather than simply proving a tendency.

  • Under the transitional provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender "convicted" before s 53A commenced cannot have those convictions swept into an aggregate sentence under that provision, even where a later sentencing exercise spans both old and new convictions.

  • The principle from Griffiths v The Queen does not grant automatic leniency to an offender whose intervening convictions post-date the offences under sentence; the historical sentencing framework, including any maximum penalties in force at the time of offending, must be correctly identified and applied.

  • Totality applies to aggregate sentences under s 53A, and the sentencing court must ensure that the overall sentence reflects a proportionate and just outcome having regard to the full body of offending.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 98, 101, 137
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 44, 45, 53A; Sch 2, Pt 21, cl 62; Pt 7, cl 45; Pt 19, cl 59
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 6
- Criminal Appeal Rules (NSW), r 4
- Crimes Act 1900 (NSW), ss 61M, 556A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Interpretation Act 1987 (NSW), s 33

Cases
- Griffiths v The Queen (1977) 137 CLR 293
- Hoch v The Queen (1988) 165 CLR 292
- Pfennig v The Queen (1995) 182 CLR 461
- Maxwell v The Queen (1996) 184 CLR 501
- R v Basha (1989) 39 A Crim R 337
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- MPB v R [2013] NSWCCA 213; 234 A Crim R 576
- BJS v R [2013] NSWCCA 123; 231 A Crim R 532
- JM v R [2014] NSWCCA 297
- Lee v R; Tang v R [2015] NSWCCA 157
- Collier v R [2012] NSWCCA 213
- Mariam v R [2013] NSWCCA 338
- Black v R [2013] NSWCCA 265