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Court of Criminal Appeal 9 December 2016

Rosenburg v R

[2016] NSWCCA 292

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION OVERWHELMING CROWN CASE APPEAL DISMISSED CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Rosenburg v R [2016] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 9 December 2016
Judges: Hoeben CJ at CL; R A Hulme J; Schmidt J

Background

The applicant was convicted by a jury in the District Court in January–February 2015 on six counts: three of sexual intercourse without consent and three of indecent assault, contrary to sections 61I and 61L of the Crimes Act 1900 (NSW). The offences arose from a series of attacks on a heavily intoxicated complainant (referred to in the judgment as "Mary") in Hyde Park, Sydney, in the early hours of 30 August 2013. The sentencing judge imposed an aggregate term of 11 years' imprisonment with a non-parole period of 8 years and 3 months.

The applicant sought leave to appeal against both conviction and sentence, representing himself throughout the appellate proceedings. He filed extensive written material, though the Court noted this was voluminous, discursive, and repetitive. Crown counsel's submissions assisted the Court in identifying the issues in a more ordered way.

A procedural complication arose because the Notice of Application for Leave to Appeal was filed some three months after the earlier Notice of Intention to Appeal had expired, requiring the Court to consider an extension of time.

  • Whether an extension of time should be granted to file the appeal application out of time
  • Whether the applicant was incompetently represented at trial, such that his convictions were unsafe
  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence
  • Whether any error could be identified in the sentence imposed

Decision

Conviction appeal: The Court found no basis to conclude that trial counsel had been incompetent. Schmidt J noted that representing the applicant had been a most difficult task given the strength of the Crown case and the contradictory instructions provided to counsel, some of which would have actively damaged the defence had they been pursued. The alternative account the applicant sought to advance on appeal rested largely on speculation about matters not within his own knowledge, and would have required him to give evidence at trial to have been relevant.

The applicant dismissed his legal representatives after addresses and summing-up, while the jury was deliberating. When he sought a further opportunity to address the jury himself, a verdict note had already been received. The Court found no error in refusing that application. Hulme J characterised the Crown case as overwhelming, and the alternative explanation put forward by the applicant as incredible.

Sentence appeal: No submissions were made in support of the sentence appeal. The Court found that the sentencing judge had carefully reviewed all relevant material. The offending was described as predatory, committed against a vulnerable complainant, and the applicant's subjective circumstances offered very little calling for leniency. No specific or latent error in the sentence was identified.

Procedural matters: The Court granted an extension of time to file the Application for Leave to Appeal and formally granted leave to appeal against both conviction and sentence before dismissing both appeals.

Orders Made

  • Extension of time for filing the Application for Leave to Appeal granted to 1 July 2016
  • Leave to appeal against both conviction and sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a ground of incompetent representation at trial will not succeed where the case against the accused was overwhelming and the impugned decisions of counsel were attributable, at least in part, to contradictory and potentially damaging instructions from the client.
  • Where an accused elects not to give evidence at trial, he cannot on appeal rely on matters that were within his own knowledge but were never placed before the jury; those matters required evidence at trial to be available.
  • An accused who dismisses legal representatives after summing-up and while the jury is deliberating has no entitlement to then address the jury afresh, particularly once a verdict note has been received.
  • No error was identified in a sentence of 11 years' aggregate imprisonment for predatory sexual offending against a highly vulnerable complainant where subjective circumstances offered little basis for leniency.
  • Procedural deficiencies in the timing of an appeal application do not necessarily defeat the application; the Court extended time in circumstances where the substantive merits could still be addressed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 578A
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 42, 43

Cases:
- [Decision Restricted] [2016] NSWCCA 202