Citation: Kees Langelaar v R [2016] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 22 July 2016
Judge(s): Hoeben CJ at CL, Campbell J, N Adams J (judgment delivered by N Adams J, with whom the other judges agreed)
Background
The appellant, a 72-year-old man who appeared unrepresented on appeal, had been convicted in the District Court at Taree in May 2012 on four counts of aggravated sexual intercourse with a child aged between 14 and 16 years who was under his authority, and one count of indecent assault on a child under 16 years. The offences were committed against a 15-year-old girl who had moved into the appellant's home after falling out with her grandmother.
The Crown case rested primarily on the complainant's evidence, given partly through a recorded police interview. Other prosecution witnesses included the complainant's grandmother, the appellant's then-partner, and the officer in charge. The appellant did not participate in a recorded interview with police and did not give evidence at trial. His daughter was the sole defence witness.
The jury returned guilty verdicts on five of the six counts and acquitted the appellant on the remaining count. Williams DCJ sentenced the appellant to an aggregate term of five years' imprisonment with a non-parole period of three years. The appellant subsequently sought leave to appeal both conviction and sentence.
Legal Issues
The Court was asked to resolve the following questions:
- Whether fresh evidence should be admitted on the conviction appeal
- Whether trial counsel had been incompetent in the conduct of the defence
- Whether the jury's guilty verdicts were unreasonable or could not be supported by the evidence
- Whether the sentencing judge had erred by mischaracterising a statement made by a witness as a confession by the appellant
Decision
Fresh evidence and incompetent trial counsel. The Court considered but rejected the grounds relating to fresh evidence and alleged incompetence of trial counsel. The judgment records that none of these grounds were made out, without disclosing that any procedural irregularity or forensic failure on counsel's part had reached the threshold required to establish a miscarriage of justice.
Unreasonable verdict. On the ground that the verdicts were unreasonable, the Court applied the established test: whether it was open to the jury, acting on the evidence, to be satisfied beyond reasonable doubt of the appellant's guilt. Having regard to all of the evidence, including the complainant's detailed account, the corroborating observation by the appellant's then-partner of conduct she described as "way out of whack," and the interrupted kiss witnessed by the appellant's daughter, the Court was satisfied that the verdicts were open to the jury. This ground was also rejected.
Sentence appeal. The only sentence ground advanced was that the sentencing judge had wrongly attributed a confession to the appellant. The Court found no substance in this complaint: the judge had referred to the appellant's statement to his then-partner, and at no point described that statement as a confession "to the court." Because no other sentence grounds were pressed and no submission of manifest excess was made, leave to appeal against sentence was refused.
Orders Made
- Leave to appeal against conviction granted
- Appeal against conviction dismissed
- Leave to appeal against sentence refused
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that unreasonable verdict grounds require an appellant to demonstrate that no reasonable jury, acting on the whole of the evidence, could have returned the guilty verdicts. A jury's acquittal on one count while convicting on others does not of itself undermine the remaining convictions.
- Allegations of trial counsel incompetence face a high threshold: the appellant must establish that counsel's conduct caused a miscarriage of justice, not merely that different tactical decisions might have been made.
- Where an appellant seeks to advance a sentence ground, the Court will not grant leave in the absence of any identifiable error or any submission that the sentence was manifestly excessive. A bare assertion of mischaracterisation, unsupported by a reading of the sentencing remarks as a whole, is insufficient.
- Corroborating evidence from lay witnesses, including observations of physical contact and an account of a concerning remark made by the accused to his then-partner, can support a jury's assessment of a complainant's credibility even in cases that turn substantially on that complainant's word.
- No error was established in the sentencing judge's reference to the appellant's statement to a witness as a "confession" made to her, where the judge made no claim that the appellant had confessed to the court.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66C(4), 61M(2), 319
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 293(3), 293(4), 293(6)
- Evidence Act 1995 (NSW), ss 128, 164
Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Melbourne v The Queen [1999] HCA 32; 198 CLR 1
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Mackenzie v R [1996] HCA 35; (1996) 190 CLR 348
- Gallagher v R (1986) 160 CLR 392
- Mickelberg v R (1989) 167 CLR 259
- Ratten v R (1974) 131 CLR 510
- Abou-Chabake v R [2004] NSWCCA 356; 149 A Crim R 417
- Ahmu v R [2014] NSWCCA 312
- Alkhair v R [2016] NSWCCA 4
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- Carlton v The Queen [2008] NSWCCA 244
- Elwood v R [2016] NSWCCA 18
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220
- Matthews v R [2013] NSWCCA 187
- Outram v R [2013] NSWCCA 329
- Rasic v R [2009] NSWCCA 202
- Raumakita v R [2001] NSWCCA 126; 210 A Crim R 326
- R v Bernthaler (NSWCCA, 17 December 1993, unreported)