AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
76
Court of Criminal Appeal 30 January 2018

Hughes v R

[2018] NSWCCA 2

Sexual offences
CRIME CONVICTION APPEAL INCOMPETENCE OF COUNSEL ACCUSED DID NOT GIVE EVIDENCE AT TRIAL SENTENCE APPEAL

Citation: Hughes v R [2018] NSWCCA 2
Court: Court of Criminal Appeal, NSW
Date: 30 January 2018
Judges: Payne JA, R A Hulme J, Garling J

Background

The applicant was tried on ten counts of sexual intercourse without consent and aggravated sexual intercourse without consent, arising from two separate incidents in 2011 involving a complainant with whom he had been in an intermittent relationship. Following a trial in October and November 2015, the jury acquitted him on six counts relating to the first incident and convicted him on four counts relating to the second. The trial judge (Buscombe DCJ) imposed an aggregate sentence of 8 years and 6 months, with a non-parole period of 6 years.

The applicant sought leave to appeal against both his convictions and his sentence. The conviction appeal raised concerns about an inadvertent reference by the complainant during evidence to a prior sexual assault, as well as an allegation that trial counsel had acted incompetently. The sentence appeal argued that the sentence was manifestly excessive and that the sentencing judge had misused an unsworn victim impact statement.

  • Whether the trial judge erred by declining to discharge the jury after the complainant gave evidence referring to a prior sexual assault not the subject of the indictment
  • Whether trial counsel's alleged failure to properly advise the applicant of his right to give evidence, and to take proper instructions, constituted a miscarriage of justice
  • Whether the aggregate sentence of 8 years and 6 months was manifestly excessive
  • Whether the sentencing judge erred in relying on an unsworn victim impact statement to establish the aggravating factor of "substantial harm" under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Jury discharge. During the complainant's evidence, she used language suggesting the applicant had sexually assaulted her on an earlier occasion not charged in the indictment. The trial judge declined to discharge the jury but directed them to disregard the remark. The Court of Criminal Appeal held that direction was sufficient. Juries are presumed capable of following a clear judicial direction to disregard prejudicial material, and the judge was correct not to discharge the jury in the circumstances.

Competence of trial counsel. The applicant contended that his counsel had failed adequately to advise him of his right to give evidence and had not taken proper instructions, causing him to remain silent at trial. The Court found no miscarriage of justice had occurred. The critical problem was that the applicant had no satisfactory explanation for text messages he sent to the complainant shortly after the incident, messages that were highly incriminating. Advising the applicant not to give evidence in those circumstances was not negligent; indeed, giving evidence without any credible explanation for those messages would have significantly damaged his prospects of acquittal on all counts, including those on which he was in fact acquitted.

Manifest excess. The Court found no error in the sentencing judge's approach to the applicant's subjective circumstances, including his age at the time of the offences, his lack of prior criminal history, and his previously good character. The weight given to those matters was appropriate and was reflected in the sentence ultimately imposed.

Victim impact statement. The sentencing judge had used the victim impact statement to support a finding that the complainant suffered substantial emotional harm, an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. The Court held this was a permissible use. The statement confirmed what the sentencing judge had already observed through the complainant's evidence over many days of trial, and was consistent with the other evidence, including the contemporaneous text messages. The weight to afford such a statement remained a matter for the sentencing judge's discretion.

Orders Made

  • Leave to appeal refused on grounds 1 and 2 (conviction)
  • Leave to appeal granted on grounds 3 and 4 (sentence)
  • Appeal dismissed

Key Takeaways

  • A clear judicial direction to disregard inadvertently introduced prejudicial evidence will generally be sufficient to cure any irregularity; a trial judge is not obliged to discharge the jury whenever such evidence surfaces.
  • Incompetence of counsel rises to the level of a miscarriage of justice only where the accused lost a chance of acquittal that was fairly open to them. Where the evidence against the accused is overwhelming in a particular respect, a failure to call the accused to give evidence will not meet that threshold.
  • Advising an accused not to give evidence is not negligent where there is no credible explanation available for highly incriminating contemporaneous communications.
  • Under s 21A of the Crimes (Sentencing Procedure) Act, a sentencing court may use a victim impact statement to confirm a finding of substantial emotional harm, particularly where that statement is consistent with evidence already before the court from trial.
  • No error is established in a sentencing discretion merely because the resulting sentence is severe; the applicant must demonstrate identifiable error of the kind described in House v The King (1936) 55 CLR 499.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Criminal Procedure Act 1900 (NSW)

Cases
- R v Birks (1990) 19 NSWLR 677
- Alkhair v R [2016] NSWCCA 4
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Curran v R [2017] NSWCCA 123
- R v Tuala [2015] NSWCCA 8
- Hanania v R [2012] NSWCCA 220
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Obeid v R [2017] NSWCCA 221
- Yang v R [2012] NSWCCA 49
- Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312