Citation: Giovanni Romano v R (a pseudonym) [2019] NSWCCA 49
Court: Court of Criminal Appeal, NSW
Date: 18 March 2019
Judges: Simpson AJA, Walton J, Button J
Background
The appellant and the complainant were formerly married and had two children together. Following their separation in 2013, the appellant continued to visit the complainant in a different town to see the children. The events giving rise to the charges occurred on 2 June 2014, when the complainant alleged the appellant sexually assaulted her in her vehicle after he collected her from the airport on her return from an overseas holiday. DNA evidence placed the appellant's semen on the complainant's body and on the rear seat of the vehicle.
Before trial, both the Crown and defence counsel indicated they would seek to lead evidence of prior consensual sexual activity between the parties, relying on an exception in s 293 of the Criminal Procedure Act 1986 (NSW) that permits such evidence where it relates to an existing or recent relationship. The trial judge and both counsel were expressly aware that this line of questioning carried the risk that the complainant might disclose earlier allegations of sexual misconduct or domestic violence, which the Crown had chosen not to lead.
During cross-examination, the complainant gave a non-responsive answer to a question about consensual sexual contact after separation, saying the sexual contact "was never consensual." An application for a discharge of the jury was refused. The trial proceeded, and the appellant was convicted. He appealed against both conviction and sentence.
Legal Issues
- Whether the complainant's non-responsive answer in cross-examination, which implied prior non-consensual sexual conduct by the appellant, was so prejudicial that the trial judge erred in refusing to discharge the jury.
- Whether defence counsel subsequently addressed the jury in a manner that was inappropriate or constituted error.
- Whether the trial judge misdirected the jury in relation to defence counsel's final address.
- Whether the sentencing judge adopted an inappropriate degree of implicit cumulation when constructing an aggregate sentence from three indicative sentences.
- Whether the sentencing judge failed to give adequate transparent consideration to the question of concurrency and accumulation between the indicative sentences.
Decision
On the conviction appeal, the Court found no error in the trial judge's refusal to discharge the jury. All parties had anticipated the risk of a non-responsive answer before cross-examination began. After the complainant's answer, defence counsel put to her directly that the answer was "completely untrue," and the complainant denied this. The Court was satisfied that the steps taken were sufficient to address the prejudice and that the trial continued on an appropriate basis.
The Court rejected the grounds directed at defence counsel's conduct in final address and at the trial judge's directions concerning that address. No error warranting appellate intervention was identified in either respect.
On the sentence appeal, the Court considered whether the aggregate head sentence of seven years, which extended 18 months beyond the longest indicative head sentence of five years and six months, reflected improper implicit cumulation. The Court held that the modest degree of cumulation was plainly open to the sentencing judge. The additional offences, including non-consensual breast contact and the act of forcefully pulling the complainant to the ground, involved criminality distinct from and additional to the primary penetrative offence.
The Court also dismissed the argument that the sentencing judge had failed to consider concurrency transparently. The aggregate head sentence of seven years was materially less than the sum of the three indicative head sentences (eight years two months), which itself demonstrated that partial concurrence had been factored into the exercise of discretion. Both grounds of appeal against sentence failed.
Orders Made
- Leave to appeal against conviction granted.
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- A complainant's non-responsive answer during cross-examination does not automatically warrant a jury discharge, particularly where the trial judge and both counsel had identified and discussed the risk of such an answer before the questioning began.
- Where defence counsel directly challenges the non-responsive answer as untrue in the presence of the jury, a trial judge may reasonably conclude that a discharge is not the necessary remedy.
- Under s 293 of the Criminal Procedure Act 1986 (NSW), evidence of prior sexual activity between an accused and a complainant may be admissible where it relates to a relationship that was existing or recent at the time of the alleged offence, but introducing such evidence carries a corresponding risk of opening broader and potentially prejudicial lines of testimony.
- In the context of an aggregate sentence, implicit cumulation beyond the longest indicative head sentence is not necessarily erroneous; it may be justified where individual offences involve qualitatively distinct harm or criminality.
- Sufficient transparency in the concurrency analysis can be inferred from the fact that the aggregate head sentence is less than the arithmetic sum of the indicative head sentences, even where the sentencing judge did not set out the reasoning in express terms.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 141(1)(b), 143, 293
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases:
- Browne v Dunn (1894) The Reports 67
- Jeffree v R [2017] NSWCCA 72