Citation: Wade v R [2018] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 11 May 2018
Judges: R A Hulme J; Schmidt J; Hamill J
Background
The appellant was a former school principal who had served as headmaster of two Marist Brothers schools in NSW during the 1970s and 1980s. Following a judge-alone trial, he was convicted of three counts of indecent assault contrary to s 81 of the Crimes Act 1900 (NSW) (now repealed), and acquitted of one further count. The offences were alleged to have been committed against two male students at those schools, one in 1976 and two in 1980.
The trial judge delivered detailed reasons accepting the evidence of both complainants, who did not know each other and had never discussed their allegations. The appellant was sentenced to an effective term of 18 months imprisonment with a non-parole period of 9 months, commencing 3 November 2017.
The appellant challenged both the convictions and the sentence on appeal to the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge gave adequate reasons for his treatment of the appellant's own evidence, as required in a judge-alone trial
- Whether the trial judge gave adequate reasons for his treatment of the evidence of an expert witness (Dr Donald Thomson) on the limitations of long-term memory
- Whether the verdicts were unreasonable or unsupported by the evidence
- Whether the total sentence of 18 months with a 9-month non-parole period was manifestly excessive
Decision
Adequacy of reasons (Grounds 1 and 3): The Court rejected both grounds concerning inadequacy of reasons. While the trial judge did not expressly state that he rejected the appellant's denials, the Court found that the only available explanation for the convictions and the judge's acceptance of the complainants' evidence beyond reasonable doubt was that the judge had rejected the appellant's evidence. The judge had directed himself on the applicable legal principles, making clear that an acquittal would have followed if he had believed the appellant or thought his evidence might be true. In those circumstances, the failure to state rejection explicitly did not constitute a miscarriage of justice.
On the expert evidence, the Court noted that the appellant himself gave very limited evidence, which constrained the practical significance of Dr Thomson's testimony about memory limitations. The trial judge's extensive reasons for accepting the complainants' evidence adequately addressed the matters the expert raised, and no miscarriage resulted from the approach taken.
Unreasonable verdict (Ground 4): The Court found it was open to the trial judge to be satisfied beyond reasonable doubt of the appellant's guilt. The Court applied the High Court's test from M v The Queen (1994) and noted the significance of the trial judge's advantage in seeing and hearing witnesses directly. Minor inconsistencies in the complainants' evidence, such as an error in a nickname attributed to the appellant, did not give rise to a doubt that could not be resolved by reference to that advantage.
Sentence (Ground 5): The Court granted leave to appeal on sentence but dismissed the appeal. Although the sentences were acknowledged to be severe given the appellant's age, the significant delay between the offences and prosecution, and the very different sentencing patterns prevailing in 1976 to 1980, the Court found that the material before it did not establish that the sentences were manifestly excessive. The Court emphasised that the offences involved an egregious breach of trust by a headmaster holding responsibility for the pastoral care of the young victims.
Orders Made
- Leave to appeal on sentence granted; sentence appeal dismissed
- Appeal against conviction dismissed
Key Takeaways
- In a judge-alone trial, the failure to expressly reject an accused's denial will not necessarily constitute a miscarriage of justice where the only available explanation for the guilty verdicts is that the judge rejected that evidence.
- The Court of Criminal Appeal confirmed that a trial judge's self-direction on the applicable legal principles can make the rejection of an accused's evidence sufficiently apparent from the reasons as a whole, even without explicit language of rejection.
- Where an expert witnesses on memory limitations, the practical weight of that evidence may be constrained by how little evidence the accused actually gave, a factor the court can legitimately account for in its reasons.
- Historical sentencing patterns at the time of the offence are relevant to whether a later sentence is manifestly excessive, but evidence of those patterns must actually demonstrate that the sentence imposed exceeded what was appropriate, not merely that sentencing norms have since changed significantly.
- In dismissing the sentence appeal, the Court identified a headmaster's breach of trust toward students in his pastoral care as a weighty aggravating factor, reinforcing that a position of institutional authority over children is treated seriously in sentencing for historical sexual offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 81 (repealed)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5
- Criminal Appeal Act 1912 (NSW) ss 5(1), 6(1), 18
- Criminal Procedure Act 1986 (NSW) ss 133, 293
- Evidence Act 1995 (NSW) s 184
Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Kalbasi v Western Australia [2018] HCA 7
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
- MC v R [2017] NSWCCA 316
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56