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Court of Criminal Appeal 13 November 2019

Priday v R

[2019] NSWCCA 272

Sexual offencesAssault & violence
EVIDENCE HEARSAY EXCEPTIONS CRIMINAL TRIAL MAKER OF REPRESENTATIONS DECEASED S 65(2)(B) EVIDENCE ACT APPEALS

Citation: Priday v R [2019] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 13 November 2019
Judges: Macfarlan JA (leading judgment); Johnson J and Lonergan J agreeing

Background

The appellant was convicted by a District Court jury in August 2017 of assault occasioning actual bodily harm and aggravated sexual intercourse without consent. Both offences related to events on 20 November 1994, when the complainant was 13 years old. The appellant had separately pleaded guilty to having sexual intercourse with a child aged between 10 and 14, but that plea was not accepted by the Crown in full satisfaction of the charges.

The complainant died in England in 2004 and was therefore unable to give evidence at trial. Her accounts of the alleged assault were admitted as hearsay through statements she made on the night of the alleged offences: one to a medical practitioner at a children's hospital and one to a detective at a police station. The appellant's DNA had been matched to a semen sample collected that night.

The appellant's case at trial was that the sexual intercourse was consensual and that he did not assault the complainant. On appeal, he challenged the admission of the hearsay evidence, various jury directions, the conduct of the Crown prosecutor's closing address, and the competence of his own trial counsel. He also sought leave to appeal against sentence.

  • Whether the complainant's out-of-court representations to the doctor and police officer were properly admitted under s 65(2)(b) of the Evidence Act 1995 (NSW), on the basis that they were made in circumstances making fabrication unlikely
  • Whether the trial judge erred in applying s 137 of the Evidence Act when weighing probative value against the danger of unfair prejudice
  • Whether misdirections on the mental element of consent in relation to the sexual assault count resulted in a substantial miscarriage of justice
  • Whether irregularities in the Crown prosecutor's closing address caused the trial to miscarry
  • Whether trial counsel's alleged incompetence caused a miscarriage of justice
  • Whether the sentencing judge failed to take the appellant's deprived upbringing into account when assessing moral culpability

Decision

Hearsay evidence (Ground 2): The Court found the trial judge had correctly admitted the complainant's representations under s 65(2)(b) of the Evidence Act. The representations were made soon after the alleged events, to persons in authority (a doctor and a detective), and the complainant presented with injuries consistent with what she reported. The Court rejected the argument that the trial judge had adopted an impermissible "compendious approach" to the s 65(2) requirements as condemned in Sio v The Queen (2016). It also found no error in the s 137 balancing exercise, noting that some procedural disadvantage to an accused is an inevitable feature of hearsay evidence and does not automatically tip the balance against admission.

Jury misdirection on consent (Ground 8): The trial judge misstated, in both written and oral directions, the mental element required of the Crown regarding the appellant's belief as to consent. The Court acknowledged the misdirection was real. However, applying the principles in Kalbasi v Western Australia (2018) 264 CLR 62, it concluded there was no substantial miscarriage of justice: the evidence so firmly supported the jury's verdicts that the erroneous direction could not realistically have affected the outcome.

Crown prosecutor's address and trial counsel's competence (Grounds 9 and 10): The Court examined the specific passages of the Crown address said to be improper and found they did not cause the trial to miscarry. On the question of trial counsel's alleged incompetence, the Court found the appellant had not established that counsel's conduct fell below an acceptable standard or that any identified failing had caused a miscarriage of justice.

Sentence appeal: The Court refused leave to appeal against sentence. The sentencing judge was not asked at first instance to give particular weight to the appellant's upbringing in mitigation, and a party is generally bound by how the case was conducted at the hearing. In any event, the Court found no demonstrated error: the reports before the sentencing judge had been considered, and the evidence disclosed a degree of stability in the appellant's home environment that did not compel a finding of meaningfully reduced moral culpability.

Orders Made

  • Leave to appeal against conviction granted to the extent necessary
  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • Under s 65(2)(b) of the Evidence Act 1995, hearsay representations made by a now-deceased complainant may be admitted where the circumstances of the making, including the presence of physical corroboration, the identity of the recipient, and the proximity to the alleged events, render fabrication unlikely.
  • A trial judge's erroneous direction on the mental element of a sexual assault offence does not automatically produce a substantial miscarriage of justice. Following Kalbasi v Western Australia (2018) 264 CLR 62, the Court of Criminal Appeal assessed whether the error could realistically have affected the verdict in light of the whole of the evidence.
  • Some procedural disadvantage arising from the unavailability of a deceased witness for cross-examination is an inherent feature of hearsay evidence and does not, of itself, require exclusion under s 137 of the Evidence Act.
  • Appellate criticism of a sentencing judge's failure to address a mitigating factor will generally not succeed where the sentencing party never raised that factor at first instance; parties are bound by the manner in which the case was conducted below.
  • No error was established in the Crown prosecutor's closing address or in trial counsel's conduct sufficient to demonstrate that the trial miscarried.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61HA, 61J(1), 61M(1), 61R, 66C(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 65(2), 137

Cases:
- Kalbasi v Western Australia (2018) 264 CLR 62
- Sio v The Queen (2016) 259 CLR 47
- Sio v The Queen (2015) 249 A Crim R 533
- TKWJ v The Queen (2002) 212 CLR 124
- Nudd v The Queen (2006) 80 ALJR 614
- Krakouer v The Queen (1998) 194 CLR 202
- R v Ambrosoli (2002) 55 NSWLR 603
- R v Phan (2001) 53 NSWLR 480
- R v Birks (1990) 19 NSWLR 677
- Roach v R [2019] NSWCCA 160
- Avery v R [2015] NSWCCA 50
- Proudman v Dayman (1941) 67 CLR 536
- Warren v Combes (1979) 142 CLR 531