AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 15 December 2017

Armstrong v R

[2017] NSWCCA 323

Sexual offencesAssault & violenceDomestic & family violence
EVIDENCE TENDENCY EVIDENCE SENTENCING SEXUAL OFFENCES OBJECTIVE SERIOUSNESS WHERE NON

Citation: Armstrong v R [2017] NSWCCA 323
Court: Court of Criminal Appeal, NSW
Date: 15 December 2017
Judge(s): Meagher JA (at [1]); Rothman J (at [38]); Button J (at [39])

Background

The appellant was tried before the District Court on five counts arising from conduct against his domestic partner over a period in 2011. The charges included one count of common assault, two counts of sexual assault, and two counts of aggravated sexual assault. The aggravated counts alleged non-consensual sexual intercourse in circumstances where the appellant had intentionally inflicted actual bodily harm on the complainant immediately before each offence.

The Crown relied on evidence of two separate incidents of physical violence against the complainant as tendency evidence. One incident formed the basis of count 1 on the indictment; the other was a prior occasion at a Terrigal hotel, captured on CCTV footage, for which the appellant had separately pleaded guilty. The jury convicted the appellant of the assault and both aggravated sexual assault counts, but acquitted him on the two remaining sexual assault charges.

At sentencing, the appellant received terms of eight years and six months, and eight years and nine months imprisonment for the two aggravated sexual assault counts respectively, with associated non-parole periods. He appealed against both conviction and sentence.

  • Whether the trial judge erred in ruling that evidence of the appellant's prior violent conduct toward the complainant had significant probative value and was admissible as tendency evidence under the Evidence Act 1995 (NSW), ss 97(1) and 101(2).
  • Whether the admission of that tendency evidence, including CCTV footage provided to the jury, caused a miscarriage of justice.
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences by failing to give sufficient weight to the short duration of the acts and the absence of sexual gratification as a motive.

Decision

Tendency evidence (grounds 1 and 2): The Court confirmed that tendency evidence does not need to directly establish every element of the charged offence. Under the framework confirmed in Hughes v The Queen and IMM v The Queen, the relevant question is whether the evidence, taken together with other evidence, makes one or more facts in issue significantly more likely. Tendency evidence may satisfy this standard by supporting a complainant's credibility so as to make their account significantly more probable than the accused's.

The Court found no error in the trial judge's ruling that the two prior assaults had significant probative value in relation to the aggravated sexual assault counts. The aggravating circumstance charged was that the appellant had intentionally inflicted actual bodily harm immediately before each sexual assault. Evidence that he had a tendency to commit acts of violence against the complainant was directly relevant to that circumstance and, taken with her evidence, made the charged facts significantly more likely.

Miscarriage of justice (ground 2): The Court found that the jury directions clearly identified the tendency relied upon and how it could be used. The Court also noted that defence counsel at trial, described as astute to his client's interests, raised no objection to providing the CCTV footage to the jury. The footage was not characterised as particularly graphic or likely to produce an irrational response on repeated viewing. No miscarriage of justice arose from the use of the tendency evidence.

Objective seriousness (ground 3): The Court rejected the argument that the short duration of the digital penetration and the absence of a sexual gratification motive reduced the objective seriousness of the offences. Drawing on Simpson v R, the Court confirmed that objective seriousness must be assessed in full context, not by examining the acts of intercourse in isolation. The offences occurred following a severe physical assault and were accompanied by conduct designed to humiliate and dominate the complainant. The sentencing judge was entitled to regard duration as largely irrelevant in that context. The Court also declined to accept that sexual assault motivated by sexual gratification is more objectionable than sexual assault used to humiliate and physically dominate another person.

Orders Made

  • Time for giving notice of intention to seek leave to appeal against conviction and sentence extended to 25 August 2017.
  • Leave to appeal against conviction granted on the grounds proposed.
  • Appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • Tendency evidence does not need to directly prove all elements of the charged offence. Provided it makes one or more facts in issue significantly more likely when taken with other evidence, including by supporting a complainant's credibility, the "significant probative value" threshold under s 97(1) of the Evidence Act 1995 (NSW) can be satisfied.
  • Under s 101(2) of the Evidence Act, the probative value of tendency evidence must substantially outweigh its prejudicial effect. The Court of Criminal Appeal confirmed this assessment includes consideration of how the evidence was directed to the jury and its potential to produce an irrational reaction.
  • Objective seriousness in sexual assault sentencing cannot be assessed by examining the act of intercourse in isolation. Surrounding circumstances, including prior violence, humiliation, and domination, are integral to the assessment.
  • No principled basis exists for treating sexual assault committed for gratification as inherently more serious than sexual assault committed to humiliate or physically dominate a victim.
  • Delay in prosecuting an appeal, even where partly unjustified, will not necessarily preclude an extension of time where there is no prejudice to the respondent and the grounds merit consideration on their merits.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61I, 61J
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 130A
- Evidence Act 1995 (NSW), ss 97(1), 101(2)

Cases:
- Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Simpson v R [2014] NSWCCA 23
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- House v The King (1936) 55 CLR 499
- Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
- R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
- RH v R [2014] NSWCCA 71
- Sokolowskyj v R [2014] NSWCCA 55; (2014) 239 A Crim R 528