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Court of Criminal Appeal 13 April 2017

Kapanadze v R

[2017] NSWCCA 69

Sexual offences
CRIMINAL LAW CONVICTION APPEAL EXAMINATION CONVICTION APPEAL DISMISSED

Citation: Kapanadze v R [2017] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 13 April 2017
Judges: Hoeben CJ at CL, Walton J, R A Hulme J

Background

The appellant was convicted in the District Court at Parramatta on one count of aggravated sexual assault without consent (person under 16), one count of aggravated indecent assault, and two counts of attempted aggravated sexual intercourse. The complainant was aged 14 at the time of the first offence and 15 at the time of the remaining offences. The appellant was the husband of the complainant's mother and had lived with the family at Merrylands from August 2008.

The complainant gave evidence of repeated sexual abuse occurring approximately two to three times per week between October 2011 and late February 2012. The four counts on the indictment captured the first and last incidents. The appellant was sentenced to an aggregate term with a non-parole period of seven years commencing 27 September 2014.

The appellant appealed against both his conviction and sentence. The conviction appeal raised issues about tendency evidence, a refusal to discharge the jury following an expert's unsolicited prejudicial answer, and the adequacy of jury directions.

  • Whether the trial judge erred in admitting evidence from the complainant's mother as tendency evidence, specifically her account of witnessing the appellant and complainant together in the backyard shed.
  • Whether the trial judge erred in refusing to discharge the jury after an expert witness gave an inadmissible, non-responsive answer under cross-examination.
  • Whether the trial judge failed to give the jury a direction in accordance with R v Markuleski (that in a "word on word" case, the jury should assess credibility separately on each count and may use a finding of unreliability on one count when assessing overall credibility).
  • On sentence, whether the trial judge erred by failing to find special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which affects the ratio between non-parole period and total sentence.

Decision

Ground 1: Tendency evidence. The Court examined the admissibility of the complainant's mother's evidence about the shed incident under s 97(1)(b) of the Evidence Act 1995 (NSW), which requires that tendency evidence have significant probative value that substantially outweighs any prejudicial effect (per s 137). The Court found that the mother's account was plainly a description of what she had observed herself, not hearsay. The Crown relied on the evidence to establish that the appellant had a sexual interest in the complainant and was willing to act on it. The Court rejected arguments that the evidence did not qualify as tendency evidence and found no error in the trial judge's ruling or the accompanying jury direction.

Ground 2: Refusal to discharge the jury. During cross-examination of an expert witness, an unsolicited and potentially prejudicial answer was given. The trial judge struck out the answer, directed the jury to disregard it, and declined to discharge the jury. The Court of Criminal Appeal held that this approach did not occasion a miscarriage of justice. The direction to disregard was adequate in the circumstances, and the trial judge's exercise of discretion in refusing to discharge the jury involved no error.

Ground 4: Markuleski direction. The appellant argued the trial judge failed to instruct the jury in accordance with R v Markuleski, requiring close attention to each count separately in a "word on word" case. The Court refused leave to raise this ground because, on examination, the direction had in fact been given. The Court further observed that, since the jury returned guilty verdicts on all counts, there was no doubt about the complainant's credibility on any count.

Sentence appeal. The appellant contended that his age, prior good character, and absence of prior imprisonment compelled a finding of special circumstances. The Court rejected the submission that the sentencing judge was "bound" to make such a finding, noting the matter is discretionary and that no authority supported the appellant's position. Leave to appeal against sentence was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against conviction on Ground 4 refused.
  • Appeal against conviction on Grounds 1 and 2 dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Tendency evidence under s 97(1)(b) of the Evidence Act 1995 (NSW) requires that its significant probative value substantially outweigh any prejudicial effect; the Court of Criminal Appeal confirmed that a direction reminding the jury of the specific tendency alleged, supported by both primary and corroborative evidence, was properly given.
  • Where an expert witness gives a non-responsive, prejudicial answer under cross-examination, a trial judge retains a discretion to deal with the problem by striking out the answer and directing the jury to disregard it, without discharging the jury, provided no miscarriage of justice results.
  • The Markuleski direction (requiring the jury to assess credibility separately on each count in a "word on word" case) must be given where appropriate, but the failure to raise the point at trial may preclude leave on appeal, particularly where the direction was in fact given.
  • A finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is a matter of judicial discretion; factors such as age, prior good character, and absence of prior imprisonment do not automatically compel such a finding.
  • In dismissing the conviction appeal, the Court of Criminal Appeal reaffirmed that a guilty verdict on all counts in a multi-count indictment is itself indicative that the jury did not doubt the complainant's overall credibility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 61P
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)
- Evidence Act 1995 (NSW), ss 66, 97(1)(b), 137
- Criminal Appeal Rules (NSW), r 4

Cases
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- R v FDP [2008] NSWCCA 317; 74 NSWLR 645
- House v The King [1936] HCA 40; 55 CLR 499
- Doney v The Queen [1990] HCA 51; 171 CLR 207
- Collier v R [2012] NSWCCA 213
- Penza and Di Maria v Regina [2013] NSWCCA 21
- Tieu v R [2016] NSWCCA 111
- TO v R [2017] NSWCCA 12
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Steve v Regina [2008] NSWCCA 231; 189 A Crim R 68
- Potts v R [2012] NSWCCA 229; 227 A Crim R 217
- Poniris v R [2014] NSWCCA 100
- Qing An v Regina [2007] NSWCCA 53
- Regina v Fidow [2004] NSWCCA 172
- Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89