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Court of Criminal Appeal 24 November 2017

Johnson v R

[2017] NSWCCA 278

Sexual offences
CRIME CONVICTION APPEAL SEXUAL ASSAULT DEFINITION OF “FEMALE GENITALIA” SUFFICIENCY OF EVIDENCE OF PENETRATION QUESTION OF FAIR TRIAL

Citation: Johnson v R [2017] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 24 November 2017
Judge(s): Payne JA; McCallum J; Wilson J

Background

The appellant was tried in the District Court at Campbelltown before Pickering SC DCJ and convicted on multiple counts arising from conduct against a 15-year-old complainant, who was at the time the girlfriend of the appellant's son. The counts included supply of a prohibited drug, aggravated indecent assault, and two counts of aggravated sexual assault. The central sexual assault count concerned the appellant rubbing his penis against the complainant's vagina on the outside, without internal penetration.

At trial, the defence relied in part on evidence from the appellant's electronically recorded interview with police (ERISP) suggesting he suffered from erectile dysfunction, implying he was incapable of committing the alleged acts. In response, police obtained records from the Commonwealth Department of Health and Ageing showing that Viagra had not been dispensed to the appellant through the Pharmaceutical Benefits Scheme (PBS) during the relevant period. The admissibility of that evidence was contested.

In sentencing, the trial judge took into account that the appellant was already serving a nine-year sentence for separate sexual offences against a young girl. Applying the totality principle, the trial judge reduced the sentence for the present offences. However, after sentencing, the Court of Criminal Appeal quashed that earlier sentence and ordered a new trial. This gave rise to the Crown's appeal against the present sentence on the basis that its factual premise had been removed.

  • Whether the trial judge erred in directing the jury on the legal definition of "female genitalia" and the requirement of penetration under s 61H of the Crimes Act 1900 (NSW)
  • Whether the verdict on count 4 (aggravated sexual assault by rubbing) was unreasonable or unsupported by the evidence
  • Whether the trial judge erred in admitting the PBS pharmaceutical records as evidence to rebut the appellant's erectile dysfunction claim
  • Whether the sentence was manifestly inadequate following the quashing of the earlier sentence on which the totality reduction had been based

Decision

Jury direction on penetration (majority): The majority held that the trial judge did not err in his directions about female genitalia and penetration. It was sufficient for his Honour to explain the distinction between penetration of the outer aspects of the female vaginal cavity and penetration of the vagina itself. The complainant's evidence that the appellant placed his penis "in between" her vagina on the outside was capable of satisfying the jury beyond reasonable doubt that the penetration element under s 61H had been established.

Reasonableness of the verdict (majority): The majority found the verdict on count 4 was not unreasonable and was supported by the evidence. The complainant's description of what occurred was sufficient to ground the jury's finding.

Admissibility of PBS records (split decision): Wilson J, with McCallum J agreeing, held that the PBS document was admissible and that the trial judge did not err in receiving it. Even if admission had been an error, Wilson J found the evidence was of limited significance and no miscarriage of justice resulted. Payne JA dissented strongly, concluding that the records were inadmissible business records containing assertions irrelevant to the facts in issue. His Honour held that the evidence could have been used by the jury as an independent basis to reject the appellant's account in the ERISP, which gave rise to a miscarriage of justice and deprived the appellant of a real chance of acquittal.

Crown sentence appeal (majority): Payne JA and Wilson J held that the sentence was manifestly inadequate. The sentencing judge had expressly reduced the non-parole period by reference to the totality principle as it applied to the earlier (now quashed) sentence. Once that sentence was quashed, the premise for the reduction no longer existed. The majority held the sentence required correction to reflect what Pickering SC DCJ had indicated he would otherwise have imposed. McCallum J dissented, finding that the sentence standing alone was not plainly unreasonable and that there was no suggestion the total effective sentence was inadequate.

Orders Made

Conviction Appeal:
- Leave to advance grounds 2 and 5 refused; leave to advance ground 3 granted
- Conviction appeal dismissed

Sentence Appeal:
- Crown appeal allowed
- Sentence imposed on 16 December 2016 quashed
- Respondent re-sentenced to an aggregate term of 10 years imprisonment commencing 26 August 2015, expiring 25 August 2025, with a non-parole period of 7 years and 6 months expiring 25 February 2023
- Indicative sentences:
- Count 1 (supply prohibited drug): 6 months
- Count 2 (aggravated indecent assault): 3 years
- Count 3 (aggravated sexual assault): 7 years
- Count 4 (aggravated sexual assault): 8 years
- Count 6 (supply prohibited drug): 12 months
- Count 7 (aggravated act of indecency): 3 months
- Accessory after aggravated break, enter and steal: 3 months

Key Takeaways

  • A jury direction on penetration under s 61H of the Crimes Act 1900 (NSW) does not require a detailed anatomical explanation of female genitalia, provided the direction adequately distinguishes between penetration of the outer aspects of the vaginal area and internal penetration of the vagina itself.
  • Complainant evidence describing external genital contact, without internal penetration, can be sufficient to satisfy the penetration element of aggravated sexual assault if the jury is properly directed on what "penetration to any extent" of the genitalia means.
  • Where a defence of physical incapacity is raised and the prosecution seeks to rebut it with government records, the admissibility and weight of those records may be contested. The majority in this case held their admission did not cause a miscarriage of justice, though Payne JA's dissent highlights real risks in relying on records asserting facts not directly in issue.
  • A sentence materially reduced on totality grounds, where the co-sentence forming the basis of that reduction is subsequently quashed, may be found manifestly inadequate and liable to correction on Crown appeal. The majority here treated the removal of the factual premise as justifying resentencing to the level the original judge indicated was otherwise warranted.
  • Differing views among the panel on both the admissibility point and the sentence appeal serve as a reminder that questions of miscarriage of justice and the application of totality in complex sentencing scenarios remain genuinely contested.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61H
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- National Health Act 1953 (Cth)
- Veterans' Entitlements Act 1986 (Cth)

Cases:
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- Johnson v R [2017] NSWCCA 31
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- R v AJS (2005) 12 VR 563; [2005] VSCA 288
- *R v Ab