Citation: Lever (a pseudonym) v R [2018] NSWCCA 107
Court: Court of Criminal Appeal, New South Wales
Date: 1 June 2018
Judge(s): Basten JA at [1]; Johnson J at [80]; Campbell J at [82]
Background
The applicant was the stepfather of two twin girls. Between September 2006 and May 2007, when his stepdaughter Sarah was aged nine to ten, he entered her bedroom on multiple occasions, inserted his fingers into her vagina while she was asleep, and on one further occasion committed a similar assault while she lay in the bed he shared with her mother. Sarah did not disclose the abuse for several years, first telling a friend when she was 14 and her mother when she was 15.
A jury convicted the applicant on eight counts of aggravated sexual assault against Sarah, contrary to section 61J(1) of the Crimes Act 1900 (NSW), and acquitted him on one count involving Sarah and one count involving her twin sister Maryanne. He was sentenced to an aggregate term with a non-parole period of eight years and a balance of term of five years.
The applicant sought leave to appeal against both conviction and sentence. His grounds challenged pre-trial evidentiary rulings relating to protected confidences, the adequacy of jury directions on tendency and context evidence, the absence of a forensic disadvantage direction, and the overall reasonableness of the verdicts in light of the acquittals.
Legal Issues
- Whether the trial judge erred in refusing the applicant access to Sarah's clinical records held by her general practitioner, and in refusing to permit cross-examination about the surrounding circumstances of her complaint to that doctor, under the protected confidences provisions of the Criminal Procedure Act 1986 (NSW)
- Whether the jury directions on tendency and context evidence were adequate and not misleading
- Whether the absence of a direction on forensic disadvantage caused by delay in complaint, under section 165B of the Evidence Act 1995 (NSW), caused a substantial miscarriage of justice
- Whether the convictions were unreasonable or unsupported by the evidence, including having regard to the acquittals on other counts
Decision
Ground 2 (Protected Confidences): The trial judge correctly applied section 299D(1) of the Criminal Procedure Act and found that the clinical records did not satisfy any of the three statutory requirements for disclosure: substantial probative value, unavailability of other evidence, and a public interest in admission that substantially outweighed confidentiality. The Court of Criminal Appeal found no identifiable error in those reasons and rejected the suggestion that the reasons were inadequate (at [22]-[24]). The proposed cross-examination of Sarah and her doctor about surrounding circumstances of the complaint fell within the earlier ruling, and the applicant did not explain on appeal how that evidence would have had substantial probative value (at [27]). Ground 2 was dismissed (at [28]).
Ground 3 (Tendency and Context Directions): Leave to rely on this ground was required under Criminal Appeal Rules, rule 4, but not addressed by the applicant. The Court found the directions adequate: the trial judge expressly identified the specific acts treated as context evidence and separately identified the evidence of counts relating to Maryanne as tendency evidence, leaving no room for jury confusion (at [34]-[35]). The trial judge also carefully limited tendency reasoning to the counts involving the other complainant, consistent with the High Court's reasoning in IMM v The Queen (2016) 257 CLR 300 (at [37]). Leave to rely on this ground was refused (at [39]).
Ground 4 (Forensic Disadvantage Direction): Three obstacles stood against this ground. Counsel for the applicant expressly declined to seek a direction under section 165B when offered the opportunity by the trial judge. The applicant never formulated what direction should have been given. The matters relied on, including imprecise dates and a change in the prosecution's closing approach, bore only a remote connection to forensic disadvantage caused by delay rather than by the imprecision of the evidence itself (at [41]-[47]). Leave was refused (at [55]).
Ground 1 (Unreasonable Verdicts): The Court found Sarah to be a coherent and plausible witness (at [58]). The jury's acquittal on count 5, for which the applicant had an alibi for New Year's Eve 2006, demonstrated careful discrimination based on the evidence rather than compromise or irrationality (at [66]). The absence of tendency evidence arising from Maryanne's acquittal did not substantially weaken the prosecution case, given the extent and inherent plausibility of Sarah's own evidence (at [67]). Objective circumstances, including the girls moving to their father's home in 2008, limited subsequent contact with the applicant, and the absence of any apparent motive for fabrication, supported the jury's findings (at [75]). The convictions were not unsafe or unsupported by the evidence, and the jury was entitled to convict on each of the eight counts (at [77]).
Orders Made
- Leave to rely upon grounds 3 and 4 refused pursuant to Criminal Appeal Rules, rule 4
- Leave to appeal against convictions granted with respect to grounds 1 and 2
- Appeal against convictions dismissed
- Leave to appeal against sentence refused
Key Takeaways
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Under Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW), a court refusing access to protected confidences is not required to disclose the content of those confidences in its reasons; the absence of detailed reasons in such circumstances does not, of itself, establish error (at [24]).
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Where defence counsel expressly declines a direction under section 165B of the Evidence Act 1995 (NSW) when offered the opportunity by the trial judge, the ground that its absence caused a substantial miscarriage of justice faces a formidable obstacle on appeal, particularly where no alternative direction is ever formulated (at [41]-[48]).
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Consistent with the reasoning in IMM v The Queen (2016) 257 CLR 300, the Court of Criminal Appeal confirmed that trial judges should take care not to allow tendency reasoning to be applied to multiple counts involving the same complainant, and that tendency and context directions must clearly identify the specific evidence each concept governs (at [37]-[38]).
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Acquittals on some counts do not automatically render convictions on related counts unreasonable; where the acquittals are explicable by distinct features of the evidence, such as an alibi for a specifically identified date, the jury's discrimination indicates careful evaluation rather than compromise or irrationality (at [66], [76]).
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No error was established in the trial judge's application of the three-part test in section 299D(1) of the Criminal Procedure Act when refusing access to documents containing protected confidences; an applicant who cannot identify a specific error beyond repeating trial arguments is unlikely to succeed on appeal (at [19], [24]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 295, 296, 297, 298, 299D; Pt 5, Div 2, Ch 6
- Evidence Act 1995 (NSW), ss 9, 165, 165A, 165B
- Jury Directions Act 2015 (Vic), s 40; Pt 4, Div 5
- Criminal Appeal Rules, r 4
Cases
- Binns v R [2017] NSWCCA 280
- Director of Public Prosecutions v Martin [2016] VSCA 219
- Greensill v The Queen (2012) 37 VR 257; [2012] VSCA 306
- Groundstroem v R [2013] NSWCCA 237
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- MWL v The Queen [2016] NTCCA 6
- Packard v The Queen [2018] VSCA 45
- R v O’Brien [2017] NTSC 34
- RMD v State of Western Australia [2017] WASCA 70
- TO v R [2017] NSWCCA 12