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2
Court of Criminal Appeal 2 April 2015

WC v R

[2015] NSWCCA 52

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AGGRAVATED INDECENT ASSAULT CRIMES ACT 1900 (NSW) S 61M(2) SENTENCE AGGRAVATED INDECENT ASSAULT

Citation: WC v R [2015] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 2 April 2015
Judges: Meagher JA (at [1]); Simpson J (at [42]); Wilson J (at [43])

Background

The appellant was convicted at his fourth trial of three counts of aggravated indecent assault against his de facto partner's 12-year-old daughter, committed in August 2011. The offences occurred at the family home while the mother was absent. The second of the three counts was said to have been witnessed by the complainant's younger sister, S, aged 10 at the time.

Because the fourth trial followed an earlier trial in which both the complainant and S had given evidence, the Crown tendered audio-visual recordings of that prior evidence. Crucially, S was not a complainant in the proceedings. Her recorded evidence was tendered by the Crown and admitted without objection from the defence.

Following conviction, the appellant was sentenced to a total effective term of five years and six months imprisonment with a non-parole period of three years and six months. The appellant lodged his notice of appeal well outside the three-month window, requiring an extension of time. He challenged both the convictions and the sentence.

  • Whether the trial judge erred in admitting the audio-visual recording of S's oral evidence from the prior trial, given that S was not a complainant and her recorded testimony was hearsay.
  • Whether the admission of that hearsay evidence, even if without objection, resulted in a substantial miscarriage of justice.
  • Whether the sentencing judge erred by treating both "trust" and "authority" as separate aggravating factors under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), effectively counting the same conduct twice.

Decision

Grounds 1 and 2: Admission of S's recorded evidence

The Court confirmed that S's oral evidence from the prior trial was hearsay. The provisions of Division 4, Part 5 of the Criminal Procedure Act 1986 (NSW), which allow a complainant's prior recorded evidence to be admitted in a retrial, did not extend to a witness who was not a complainant. S's evidence therefore fell outside that statutory exception.

However, no objection had been raised at trial to the admission of S's evidence. The Court applied the well-established principle that "not admissible" in the Evidence Act 1995 (NSW) ordinarily means "not admissible over objection," drawing on Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 and Gonzales v R [2007] NSWCCA 321. Because the evidence was admitted without objection, no error on the part of the trial judge could be established. Leave to raise grounds 1 and 2 under r 4 of the Criminal Appeal Rules was therefore refused.

The Court also found no substantial miscarriage of justice. S's evidence differed from the complainant's in several respects, and its admission did not undermine the integrity of the trial in a way that went to the root of the proceedings.

Ground 3: Sentencing and double-counting of aggravating factors

The appellant argued that the sentencing judge had counted both "trust" and "authority" as distinct aggravating factors in relation to each count, thereby applying the same underlying conduct twice. The Court of Criminal Appeal rejected this argument on a fair reading of the sentencing remarks. In relation to count 1, the sentencing judge had identified that the complainant was under the offender's authority as the factual basis for finding a gross breach of trust. That was not double-counting. In relation to counts 2 and 3, the remarks referred only to a gross breach of trust, not separately to authority. Leave to appeal the aggregate sentence was refused.

Orders Made

  • Extension of time granted to 11 August 2014 for the appellant to give notice of appeal and of application for leave to appeal.
  • Leave under r 4 of the Criminal Appeal Rules to raise grounds 1 and 2 refused.
  • Leave to appeal against the aggregate sentence imposed on 15 April 2013 refused.

Key Takeaways

  • Under the Evidence Act 1995 (NSW), the hearsay rule renders evidence "not admissible over objection." Where hearsay evidence is admitted without objection at trial, no error on the part of the trial judge is established, and an appellate court will not readily grant leave to raise the issue on appeal.
  • The statutory provisions in Division 4, Part 5 of the Criminal Procedure Act 1986 (NSW) that permit a complainant's recorded evidence to be tendered in a retrial do not extend to witnesses who are not complainants in the proceedings.
  • Where an appellant seeks to raise an evidentiary ground on appeal that was not objected to at trial, leave is required under r 4 of the Criminal Appeal Rules, and it will generally not be granted absent a miscarriage of justice or a departure from essential requirements of the law going to the root of the proceedings.
  • Abuse of trust and abuse of authority are distinct concepts under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but relying on a position of authority as the factual basis for a finding of breach of trust does not constitute impermissible double-counting where the sentencing remarks disclose a single aggravating conclusion.
  • In dismissing all grounds, the Court of Criminal Appeal confirmed that the fourth trial was not rendered unfair simply because a sibling witness's prior recorded testimony, which differed from the complainant's in some respects, was admitted without objection.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 306; Division 4, Part 5
- Evidence Act 1995 (NSW), s 59, s 159
- Criminal Appeal Rules, r 4
- Criminal Procedure Regulation 2010, cl 24

Cases
- Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
- Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232
- FP v R [2012] NSWCCA 182
- Lazaris v R [2014] NSWCCA 163
- MRW v R [2011] NSWCCA 260
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Picken v R; R v Picken [2007] NSWCCA 319
- R v FDP [2008] NSWCCA 317; 74 NSWLR 645
- R v Tripodina (1988) 35 A Crim R 183
- Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124