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Court of Criminal Appeal 1 June 2018

Lever (a pseudonym) v R

[2018] NSWCCA 107

Sexual offences
CRIME APPEAL AGAINST CONVICTIONS JURY DIRECTIONS IMM V THE QUEEN (2016) 257 CLR 300 [2016] HCA 14 CONSIDERED EVIDENCE NO DIRECTION SOUGHT

Citation: Lever (a pseudonym) v R [2018] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 1 June 2018
Judges: Basten JA at [1]; Johnson J at [80]; Campbell J at [82]

Background

The applicant (referred to by the pseudonym Kevin Lever) was the stepfather of twin girls, Sarah and Maryanne, who were approximately nine to ten years old during the period of the alleged offending. He was charged with nine counts of aggravated sexual assault against Sarah and one count involving Maryanne, all contrary to s 61J(1) of the Crimes Act 1900 (NSW). The offences were alleged to have occurred between September 2006 and May 2007.

A jury acquitted the applicant on one count involving Sarah and on the single count involving Maryanne, but convicted him on the remaining eight counts involving Sarah. Those counts related to repeated acts of digital penetration committed while Sarah was asleep, either in her own bedroom or, on one occasion, in her mother's bed. Sarah did not disclose the abuse to anyone until she was around 14 years old, several years after the conduct had ceased.

On 25 October 2017, the trial judge imposed an aggregate sentence of imprisonment with a non-parole period of eight years, followed by a balance of term of five years. The applicant sought leave to appeal against both conviction and sentence.

  • Whether the convictions on eight counts were inconsistent with, or rendered unsafe by, the acquittals on other counts (Ground 1)
  • Whether the trial judge erred in refusing the applicant access to the complainant's general practitioner records, and in refusing leave to adduce evidence about the surrounding circumstances of a complaint made to that doctor, under the sexual assault communications privilege provisions of the Criminal Procedure Act 1986 (NSW) (Ground 2)
  • Whether the jury directions regarding tendency and context evidence were erroneous or caused a miscarriage of justice (Ground 3)
  • Whether the absence of a direction to the jury under s 165B of the Evidence Act 1995 (NSW) about forensic disadvantage caused by delay constituted a substantial miscarriage of justice (Ground 4)
  • Whether the aggregate sentence was manifestly excessive (Ground 5)

Decision

Ground 1: Unreasonable verdicts and consistency of verdicts. The Court found no error in the jury's approach. The acquittals were not necessarily inconsistent with the convictions, particularly given that the acquitted counts involved different circumstances, including the count concerning Maryanne. The verdicts as a whole were open on the evidence, and the convictions on the eight counts were not unreasonable or unsupported.

Ground 2: Protected confidences and the general practitioner records. The Court examined the trial judge's rulings under the protected confidences regime in Pt 5, Div 2, Ch 6 of the Criminal Procedure Act 1986 (NSW). The regime requires leave before an accused can obtain access to records containing "counselling communications" by a complainant. The Court found that the trial judge's rulings on access and on the admissibility of evidence about surrounding circumstances were correct, and no error was established. The Court also addressed the submission that the trial judge had failed to give reasons, but found this did not amount to a ground for overturning the rulings.

Grounds 3 and 4: Jury directions. On tendency and context evidence (Ground 3), the Court considered the High Court's decision in IMM v The Queen (2016) 257 CLR 300, which addressed how evidence of uncharged acts in a multi-count trial may operate both as tendency evidence and context evidence on other counts. The Court found the directions given at trial were adequate and disclosed no error causing a miscarriage of justice. On the delay direction under s 165B of the Evidence Act (Ground 4), no such direction had been sought by the defence at trial. The Court found that the absence of the direction, in the circumstances of this case, did not produce a substantial miscarriage of justice, and refused leave on this ground.

Ground 5: Sentence. The applicant presented no written or oral submissions in support of the manifestly excessive ground. The Court refused leave to appeal against sentence.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that acquittals on some counts in a multi-count sexual assault trial do not automatically render convictions on other counts unreasonable or inconsistent, provided the verdicts are explicable on the evidence.
  • Under the protected confidences regime in the Criminal Procedure Act 1986 (NSW), an accused requires leave to access records of counselling communications made by a complainant, including communications made to a general practitioner, and the threshold for obtaining that access is a meaningful one that the trial judge is properly placed to apply.
  • Where evidence of multiple charged acts by the same accused against the same complainant is adduced in a single trial, IMM v The Queen (2016) 257 CLR 300 (HCA) governs how that evidence may function as both tendency evidence and context evidence across counts.
  • The absence of a forensic disadvantage direction under s 165B of the Evidence Act 1995 (NSW) will not necessarily produce a substantial miscarriage of justice, particularly where no such direction was requested by the defence at trial.
  • A ground of appeal against sentence will be refused if the applicant provides no submissions, written or oral, in its support.

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
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- 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
- 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