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Court of Criminal Appeal 29 May 2017

Abbey v R

[2017] NSWCCA 109

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT INCONSISTENT VERDICTS APPEAL DISMISSED CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Abbey v R [2017] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 29 May 2017
Judges: Leeming JA (with Adamson J and Wilson J agreeing)

Background

The appellant (referred to as "Abbey," a pseudonym required by statute) was convicted in the District Court on three counts arising from sexual offending against his step-daughter when she was aged 11 or 12. The offences occurred between July 2001 and April 2002. He was acquitted on the remaining counts in a twelve-count indictment. The trial judge imposed an aggregate sentence of five years and six months, with a non-parole period of three years and three months.

The Crown case rested principally on the complainant's evidence, supported by her recorded police interviews from 2005, complaint evidence from school staff, and evidence from two of the appellant's former friends. The friends gave evidence that, in 2006 after earlier charges were withdrawn, the appellant made statements indicating he would have pleaded guilty to some (though not all) of the charges brought against him.

The appellant sought leave to appeal both his convictions and sentence. Charges had originally been laid in 2005 but were withdrawn in 2006. The complainant returned to police in 2013, leading to the trial.

  • Whether the trial judge erred in admitting the appellant's out-of-court statements as admissions, under s 137 of the Evidence Act 1995 (NSW), given the risk of unfair prejudice
  • Whether the trial judge gave adequate jury directions regarding those admission statements
  • Whether the guilty verdicts were unreasonable or could not be supported having regard to the acquittals on related counts, in particular where one acquitted count allegedly occurred on the same occasion as two convicted counts
  • Whether the sentence, specifically the non-parole period, was manifestly excessive

Decision

Admission evidence (Grounds 1 and 2). The Court found no error in the trial judge's decision to admit the statements made by the appellant to Ms Phillips and Mr McIntosh. The trial judge applied the balancing exercise required by s 137, weighing the probative value of the admissions against the danger of unfair prejudice, and followed the approach endorsed in R v Burton [2013] NSWCCA 335. The admissions were directly inconsistent with the defence case that the appellant was a caring stepfather who had not offended. The Court was not persuaded that the trial judge's assessment of probative value versus prejudice miscarried, nor that the jury directions on this evidence were inadequate.

Inconsistent verdicts (Ground 3). The Court granted leave on this ground but dismissed it. The appellant argued that acquittals on counts alleged to have occurred on the same occasion as two convicted counts necessarily made the convictions unreasonable. The Court held that the verdicts were not legally inconsistent in a way that required the convictions to be set aside. Corroborating evidence, including the admission evidence and complaint evidence, went specifically to the counts on which the appellant was convicted, providing a rational basis for the jury's differentiation. The test, drawn from MFA v The Queen (2002) 213 CLR 606, asks whether it was open to the jury to be satisfied beyond reasonable doubt on the evidence; the Court was satisfied that it was.

Manifest excess in sentencing (Ground 4). The Court found no basis to disturb the sentence. The trial judge expressly addressed the appellant's rehabilitation prospects and made a finding of special circumstances in his favour. Although the appellant argued those prospects should have been given greater prominence, the trial judge weighed them against the countervailing considerations of denunciation and general deterrence. No identifiable error was established, and the non-parole period was not shown to be manifestly excessive.

Orders Made

  • Leave to appeal granted in respect of Ground 3 (unreasonable verdicts) only; leave to appeal refused on all other grounds
  • Appeal dismissed

Key Takeaways

  • Where corroborating evidence goes specifically to particular counts in an indictment, that evidence can provide a rational explanation for a jury returning guilty verdicts on those counts while acquitting on related counts, even where the related conduct was alleged to have occurred in the same incident.
  • Under s 137 of the Evidence Act 1995 (NSW), the trial judge conducting the probative value versus unfair prejudice balancing exercise is not required to speculate about the range of inferences a jury might draw from admission evidence; this confirms the approach in R v Burton.
  • Admission statements of the form "I would have pleaded guilty to some but not all of the charges" carry significant probative value where the defence case is a complete denial of any offending.
  • A ground of manifest excess in sentencing does not require identification of a specific sentencing error; however, no error was established here where the trial judge expressly addressed rehabilitation and other relevant factors.
  • In dismissing the appeal, the Court of Criminal Appeal reiterated that an appellate court will not interfere with a sentencing judge's evaluative judgment simply because greater weight could theoretically have been given to a mitigating factor.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61J, 61O, 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 28A, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 137

Cases
- Greenhalgh v R [2017] NSWCCA 94
- Lepine v R [2017] NSWCCA 83
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McCann v R [2014] NSWCCA 79
- Meissner v The Queen (1995) 184 CLR 132
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Selby v R [2017] NSWCCA 40