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Court of Criminal Appeal 10 November 2016

DN v R

[2016] NSWCCA 252

Also reported as (2016) 92 NSWLR 600
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION DIRECTIONS TO JURY CONSCIOUSNESS OF GUILT REASONING POST OFFENCE CONDUCT

Citation: DN v R [2016] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 10 November 2016
Judge(s): Beazley P (primary judgment); Davies J (agreeing); Garling J (agreeing)

Background

The appellant managed a video store and employed the complainant, a person under 16 years of age, as a casual worker. On 8 March 2012, after her shift ended, the appellant drove the complainant to his home rather than directly home, having arranged this with her stepmother. At his home, he committed acts of sexual intercourse without consent and photographed the complainant in circumstances that formed the basis of a child abuse material charge.

The appellant was convicted of one count of sexual intercourse with a person under 16 years contrary to s 61J(1) of the Crimes Act 1900 (NSW), and one count of inciting a person under 16 to commit an act of indecency while knowingly filming it for the purpose of producing child abuse material, contrary to s 61O(2A). He was sentenced to a total effective term of six years imprisonment with a four-year non-parole period.

At trial, the Crown cross-examined the appellant about the whereabouts of his iPhone, on which the photographs had allegedly been taken. In closing, the Crown prosecutor invited the jury to treat the disposal of the phone as corroborating the complainant's account if they rejected the appellant's explanation. No consciousness of guilt direction was sought or given at trial.

  • Whether a substantial miscarriage of justice occurred because the Crown used consciousness of guilt reasoning in its closing address without the trial judge directing the jury on the proper use of that reasoning.
  • Whether the sentence imposed was manifestly excessive, including whether the trial judge erred in treating the objective seriousness of the offending and the complainant's age as aggravating factors.

Decision

Conviction appeal: The Court accepted that a consciousness of guilt direction was appropriate in the circumstances. The Crown's closing address, if the jury disbelieved the appellant's account of the phone, could have led jurors to treat the disposal of the phone as near-conclusive evidence of guilt on the s 61O(2A) charge. Where lies are relied upon as probative of guilt, a direction is required that jurors may only use a lie in that way if satisfied it was told because the accused knew the subject matter would implicate them in the offence (applying Edwards v R (1998) 178 CLR 193).

However, the Court held that the failure to give the direction did not occasion a substantial miscarriage of justice. Having regard to the whole of the evidence, including the complainant's account and the other evidence at trial, the convictions were well supported. The omission of the direction did not undermine confidence in the verdict.

Sentence appeal: The Court found no specific error in the sentencing judge's reasoning. The trial judge was entitled to treat the appellant's position as the complainant's employer, and his deliberate exploitation of the trust placed in him to drive her home, as relevant to the objective seriousness of the offending. The complainant's age was also properly treated as an important aggravating circumstance. Combined with the finding of no remorse, the sentence was not shown to be unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against conviction granted; appeal dismissed.
  • Leave to appeal against sentence granted; appeal dismissed.

Key Takeaways

  • A consciousness of guilt direction following Edwards v R is required where the jury is invited to use a lie or post-offence conduct as probative of guilt. The direction must make clear that such reasoning is only available if the jury is satisfied the conduct reflects the accused's awareness that the matter would implicate them in the offence.
  • Even where a trial judge errs by failing to give a required consciousness of guilt direction, the Court of Criminal Appeal will dismiss the conviction appeal if the appellant cannot demonstrate a substantial miscarriage of justice, assessed against the whole of the evidence.
  • In some circumstances, a consciousness of guilt direction may be necessary even where the Crown has not expressly framed its argument in those terms, if the jury could reasonably have understood the closing address as an invitation to engage in that reasoning.
  • No error was established in the sentencing court's assessment of objective seriousness where the offending involved a deliberate exploitation of both an employment relationship and a specific occasion of trust, namely the arrangement to drive a minor home in place of her parents.
  • Garling J confirmed, in a brief separate judgment, that the victim's age was an important aggravating factor that the sentencing judge had addressed appropriately, rejecting the suggestion that it warranted only minimal weight.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61O(2A)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Rules

Cases:
- Edwards v R (1998) 178 CLR 193
- Zoneff v The Queen (2000) 200 CLR 234
- Weiss v The Queen (2005) 224 CLR 300
- Darkan v The Queen (2006) 227 CLR 373
- Filippou v The Queen (2015) 256 CLR 47
- Markarian v The Queen (2005) 228 CLR 357
- McKey v R (2012) 219 A Crim R 227
- R v Cook [2004] NSWCCA 52
- R v GJH (2001) 122 A Crim R 361
- R v KNL (2005) 154 A Crim R 268 (noted without endorsement by Davies and Garling JJ)
- AB v The Queen (1999) 198 CLR 111
- Ibbs v The Queen (1987) 163 CLR 447
- House v The King (1936) 55 CLR 499