Citation: CF v R [2017] NSWCCA 318
Court: Court of Criminal Appeal, NSW
Date: 13 December 2017
Judges: Gleeson JA; Rothman J; Hamill J
Background
The applicant, a great uncle by marriage to the complainant, faced four sexual assault charges arising from two separate incidents in which he sexually touched or penetrated the complainant when she was 12 years old. The incidents occurred in December 2011 and August 2012 at family gatherings. The complainant first disclosed the conduct in February 2013 through a social media conversation with a cousin, which led to a police investigation.
The applicant was tried twice. The first jury was discharged without reaching a verdict. At a second trial before Berman SC DCJ in Newcastle, the jury convicted the applicant on all four counts in May 2016. Importantly, covertly recorded conversations formed a significant part of the Crown case. In one, the applicant admitted to having "obviously done the wrong thing" and acknowledged touching the complainant on her private part, though he characterised the contact as accidental or incidental to massage.
The applicant received an aggregate sentence of eight years imprisonment with a five-year non-parole period. He then sought to appeal both his conviction and sentence. His application required an extension of time, which the Crown did not oppose.
Legal Issues
- Whether leave should be granted under Criminal Appeal Rules, r 4 to raise a ground of appeal not objected to at trial
- Whether providing the jury, during deliberations, with audio-visual recordings of the complainant's evidence (including her JIRT interview and her recorded evidence from the first trial) constituted an irregularity causing a miscarriage of justice
- Whether the aggregate sentence of eight years was manifestly excessive
Decision
On the conviction appeal, the Court granted leave under r 4 of the Criminal Appeal Rules despite the absence of any objection at trial to the provision of the recordings to the jury. The Court accepted the applicant's argument that the point warranted consideration, but ultimately dismissed the ground. The applicant contended there was a real danger the jury would give disproportionate weight to the complainant's recorded evidence compared to the oral evidence of defence witnesses, particularly given his positive defence case. Gleeson JA found this argument did not establish a miscarriage of justice in the circumstances.
The Court noted several countervailing features. The trial judge gave the jury appropriate directions about how to approach the recorded evidence. Defence counsel at trial raised no objection to the recordings being provided to the jury, and no application was made for a redirection. The applicant had led a positive defence case, including his own evidence and that of his wife, meaning the jury had direct oral evidence from the defence to weigh against the complainant's account. These features, taken together, meant the provision of the recordings did not produce a miscarriage of justice.
On sentence, the Court granted leave to appeal but dismissed the ground. Gleeson JA found the indicative sentence for count 4 was not obviously excessive, and the aggregate sentence was not plainly unreasonable or unjust. The sentencing judge had correctly identified two statutory aggravating factors: the offences were committed in the complainant's home and involved an abuse of a position of trust. The complainant was entitled to feel safe in a family environment, and the applicant's conduct represented a significant breach of that trust. Senior Counsel for the applicant acknowledged the ground was "impressionistic" and depended on whether the aggregate sentence leapt out as too harsh. The Court found it did not.
Orders Made
- Time extended for filing the notice of application for leave to appeal
- Leave granted to rely on ground 1 of the conviction appeal pursuant to Criminal Appeal Rules, r 4
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Key Takeaways
- Providing a jury with audio-visual recordings of a complainant's evidence during deliberations does not automatically constitute a miscarriage of justice, even where the defence led positive oral evidence at trial.
- Where trial counsel raises no objection to the admission or jury-room provision of recorded evidence, and seeks no redirection on those matters, an appellate court applies the Criminal Appeal Rules, r 4 threshold, requiring the applicant to show it is appropriate to grant leave to raise the ground.
- A trial judge's directions to the jury about the proper use of recorded evidence are a relevant factor in assessing whether any irregularity in its provision caused a miscarriage of justice.
- Under ss 21A(2)(eb) and (k) of the Crimes (Sentencing Procedure) Act 1999, committing offences in a victim's home and in breach of a position of trust are distinct statutory aggravating factors, both of which applied on the facts here.
- In dismissing the sentence appeal, the Court confirmed that an aggregate sentence will not be disturbed on appeal merely because it may seem firm; the applicant must demonstrate the sentence is plainly unreasonable or unjust, not merely impressionistically harsh.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66C(1), 66M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb) and (k), 53A(2)
- Criminal Procedure Act 1986 (NSW), Part 5, Chapter 6 (provisions governing evidence of vulnerable persons, including ss 306A to 306ZI)
- Criminal Appeal Act 1912, s 6
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW)
- Evidence (Children) Act 1997 (NSW)
Cases:
- Gately v The Queen (2007) 232 CLR 208
- Hili v The Queen (2010) 242 CLR 520
- Jarrett v R (2014) 86 NSWLR 623
- Markarian v The Queen (2005) 228 CLR 357
- Papakosmas v R (1999) 196 CLR 297
- R v Button (2002) 54 NSWLR 455
- R v NZ (2005) 63 NSWLR 628