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Court of Criminal Appeal 29 April 2019

Alexander (a pseudonym) v R

[2019] NSWCCA 79

Sexual offences
CRIMINAL PROCEDURE TRIAL SELF REPRESENTED ACCUSED REPRESENTED ACCUSED DUTY OF THE TRIAL JUDGE TO SELF

Citation: Alexander (a pseudonym) v R [2019] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 29 April 2019
Judge(s): Payne JA (principal judgment); Button J and Lonergan J (agreeing)

Background

The appellant, referred to throughout as "Alexander" to protect the identity of his daughter (the complainant), was convicted in the District Court at Parramatta following a judge alone trial. He was self-represented at trial and had successfully applied for a judge alone trial over the Crown's opposition. His daughter was 10 years old at the time of the offending.

Alexander was convicted on 10 counts: seven involving aggravated sexual intercourse and three involving indecency or indecent assault. The offences occurred across two locations in 2013, when the complainant was living with Alexander and was entirely dependent on him. He was sentenced to a total of 14 years' imprisonment, with a non-parole period of 9 years and 9 months.

Alexander appealed both his conviction and his sentence on four grounds, including that the trial judge failed to assist him adequately as a self-represented accused, that a count was decided on an unpleaded factual basis, that the complainant's evidence was not scrutinised carefully enough, and that his mental health was not properly considered at sentencing.

  • Whether the trial judge failed to provide procedural fairness to the unrepresented accused, particularly by not adequately explaining that recordings of telephone conversations may have been unlawfully made under the Surveillance Devices Act 2007 (NSW) and potentially admissible only under s 138 of the Evidence Act 1995 (NSW)
  • Whether the primary judge made a finding on count 14 on a factual basis not relied upon by the Crown, thereby denying Alexander the opportunity to respond to the case against him
  • Whether the primary judge failed to scrutinise the complainant's evidence with sufficient care, including findings about inconsistencies between her two interview accounts and whether she had been manipulated by a third party
  • Whether the sentencing judge erred by failing to treat Alexander's pre-existing anxiety and depression as a relevant mitigating factor

Decision

Ground 1: Procedural fairness and the telephone recordings

Fresh evidence led on appeal established that six telephone conversations had been recorded in contravention of the Surveillance Devices Act 2007 (NSW). This meant they were only admissible, if at all, under s 138 of the Evidence Act 1995, which permits unlawfully obtained evidence to be admitted where the desirability of admitting the evidence outweighs the undesirability of admitting it. The Court accepted that the trial judge's explanation to Alexander about the potential admissibility of one of the recordings was incomplete.

However, the Court found no miscarriage of justice. None of the recordings contained material relevant to any issue actually in dispute at trial. Even if the trial judge had fully explained the s 138 pathway, the evidence would not have assisted the defence. The Court also found that Alexander's medical reports were raised by the trial judge but Alexander himself did not assert they were relevant to any issue. No procedural unfairness was established on any of the sub-particulars under Ground 1.

Ground 2: Whether the Crown case shifted on count 14

Alexander argued that the primary judge convicted him on count 14 by reasoning that relied on a chronological sequence of events not advanced by the Crown. The Court of Criminal Appeal rejected this. The indictment and the complainant's evidence were both consistent with the primary judge's factual findings about the sequence. The Crown case was never limited to a particular order of events, and no miscarriage of justice arose.

Ground 3: Scrutiny of the complainant's evidence

The primary judge had explicitly directed herself that the complainant's evidence required careful scrutiny. The Court found that inconsistencies between the complainant's first and second interviews were satisfactorily explained by differences in her age and level of understanding at the time of each interview. The finding that there was insufficient time for the complainant to have been improperly influenced by her aunt was also upheld. Ground 3 was dismissed.

Ground 4: Mental health and sentencing

The sentencing judge had found that there was no evidence Alexander's anxiety and depression had played a causative role in the offending. The Court of Criminal Appeal agreed that this finding was correct on the evidence before the sentencing judge. The absence of a causal link between a mental illness and the offending is a recognised basis for giving that condition reduced weight in mitigation.

Orders Made

  • Leave to appeal granted
  • Conviction appeal dismissed
  • Sentence appeal dismissed
  • Suppression and non-publication orders made for 20 years, prohibiting publication of any information tending to identify Alexander or his family in connection with the proceedings, applying to all media across the Commonwealth

Key Takeaways

  • A trial judge's duty to assist a self-represented accused does not, by itself, produce a miscarriage of justice where incomplete procedural guidance is given, provided the missing information would not have affected the outcome of the trial.
  • Under Bandao v R [2018] NSWCCA 181, telephone recordings made in contravention of the Surveillance Devices Act 2007 (NSW) are inadmissible unless admitted through the discretionary gateway in s 138 of the Evidence Act 1995 (NSW).
  • In dismissing the Ground 2 argument, the Court confirmed that a Crown case is not confined to a particular sequence of events unless the indictment or conduct of the trial expressly limits it to one.
  • Inconsistencies between a child complainant's accounts given at different ages do not automatically diminish credibility; the court may have regard to developmental differences in assessing their significance.
  • No error arises at sentencing where a judge finds that a pre-existing mental health condition had no causative connection to serious sexual offending, and accordingly declines to treat it as a meaningful mitigating factor.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 133, 293
- Evidence Act 1995 (NSW), s 138
- Surveillance Devices Act 2007 (NSW), ss 7, 12
- Telecommunications (Interception and Access) Act 1979 (Cth), s 7
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- Bandao v R [2018] NSWCCA 181
- Chamseddine v R [2017] NSWCCA 176
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Ewen v R [2015] NSWCCA 117; 250 A Crim R 544
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46
- Mickelberg v R (1989) 167 CLR 259
- MS v R [2017] NSWCCA 252
- R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534
- R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34
- R v SJH [2010] NSWCCA 32
- Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426
- Sepulveda v R [2006] NSWCCA 379; 167 A Crim R 108