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10
Court of Criminal Appeal 5 June 2019

BC v R

[2019] NSWCCA 111

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: BC v R [2019] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 5 June 2019
Judge(s): Leeming JA; Ierace J; Hidden AJ

Background

The appellant was convicted in the Newcastle District Court in December 2016 on all 20 counts of child sexual assault offences alleged to have been committed between 1994 and 2011 against four different complainants. The jury found him guilty on every count, and he was sentenced to an aggregate term of 14 years' imprisonment with a non-parole period of 10 years and six months.

Counts 1 to 3 related to offences committed when the appellant was aged between 11 and 13. Because of his age, the doctrine of doli incapax applied to those counts. Doli incapax is a common law presumption that a child under 14 years of age is incapable of committing a criminal act, and the Crown bears the burden of rebutting that presumption by proving, beyond reasonable doubt, that the child knew the conduct was seriously wrong (not merely naughty).

The appellant's retrial in 2016 followed an earlier aborted trial in 2015 and a prior unsuccessful appeal to the Court of Criminal Appeal and a failed application for special leave to the High Court. At the retrial, recorded evidence from the four complainants given at the first trial was used by the Crown, and the tendency evidence ruling from the first trial was binding on the retrial judge under s 130A of the Criminal Procedure Act 1986 (NSW).

  • Whether the guilty verdicts on counts 1 to 3 were unreasonable, on the basis that the Crown's evidence was insufficient to rebut the doli incapax presumption applying to offences committed when the appellant was aged 11 to 13
  • Whether the evidence of each complainant was properly admitted as tendency evidence in respect of the counts involving the other complainants, having regard to ss 97 and 101 of the Evidence Act 1995 (NSW)
  • Whether, if the convictions on counts 1 to 3 were quashed, the aggregate sentence required adjustment

Decision

On ground 1, the Court upheld the appeal in respect of counts 1 to 3. The Crown had relied on the complainants' evidence to rebut the doli incapax presumption, but the Court concluded that evidence was insufficient to establish, beyond reasonable doubt, that the appellant knew at the relevant time that his conduct was seriously wrong. The guilty verdicts on those three counts were therefore unreasonable and could not be supported by the evidence.

On ground 2, the Court dismissed the appeal. The Court examined whether the evidence of each complainant possessed sufficient probative value to be admitted as tendency evidence in relation to the counts involving the other complainants, and whether that probative value was substantially outweighed by the danger of unfair prejudice under s 101 of the Evidence Act. The Court found no error in the admission of the tendency evidence and affirmed that the cross-admissibility ruling was correctly made.

On the sentence appeal in ground 3, which was contingent on ground 1 succeeding, the Court observed that the indicative sentences for counts 1 to 3 represented approximately 8 per cent of the combined total indicative sentences across all counts. Applying a broadly proportionate reduction, the Court proposed a new aggregate sentence of 13 years. However, because neither party had made submissions on resentencing in the event that ground 1 succeeded but ground 2 failed, the Court deferred the formal resentencing to allow further submissions.

Orders Made

  • Leave to appeal granted; time to appeal extended to 11 May 2018
  • Convictions on counts 1 to 3 quashed; verdicts of acquittal entered for those counts
  • Appeal against conviction on counts 4 to 20 dismissed
  • Appellant directed to file and serve any further submissions as to sentence within 21 days; respondent directed to file and serve submissions in response within 14 days thereafter, including whether an oral hearing was sought, failing which remaining sentencing issues to be determined on the papers

Key Takeaways

  • The doli incapax presumption requires the Crown to prove beyond reasonable doubt that a child aged under 14 knew the relevant conduct was seriously wrong, and where the evidence falls short of that standard, resulting convictions will be unreasonable and liable to be quashed on appeal.
  • Tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW) may be cross-admissible as between multiple complainants in a child sexual assault trial, provided its probative value is not substantially outweighed by the danger of unfair prejudice.
  • A prior ruling on the admissibility of tendency evidence, made before the empanelment of a jury, binds the trial judge at a subsequent retrial under s 130A of the Criminal Procedure Act 1986 (NSW), unless a party invokes the interests-of-justice exception.
  • Where an aggregate sentence is imposed and some constituent convictions are later quashed, the Court of Criminal Appeal may reduce the aggregate sentence in broadly proportionate terms to reflect the removal of those counts, applying the approach in Turner v R [2017] NSWCCA 304.
  • In sentencing following a partial appeal, the Court deferred formal resentencing where neither party had made submissions on the sentencing consequence of a mixed outcome on the grounds of appeal, preserving the opportunity for both sides to be heard.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 130A, 306B
- Evidence Act 1995 (NSW), ss 97, 101

Cases:
- BC v The Queen [2015] NSWCCA 327; 257 A Crim R 340
- BC v The Queen [2016] HCASL 166
- Hughes v The Queen [2017] HCA 20; 92 ALJR 52
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Johnson v The Queen [2018] HCA 48; 92 ALJR 1018
- McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DAO v R (2011) 81 NSWLR 558; [2011] NSWCCA 63
- BP v Regina; SW v Regina [2006] NSWCCA 172
- R v ALH (2003) 6 VR 276; [2003] VSCA 129
- Turner v R [2017] NSWCCA 304
- DS v R [2018] NSWCCA 195
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221