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Court of Criminal Appeal 9 July 2020

WG v R; KG v R

[2020] NSWCCA 155

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE APPEALS APPEAL AGAINST CONVICTION

Citation: WG v R; KG v R [2020] NSWCCA 155
Court: Court of Criminal Appeal, New South Wales
Date: 9 July 2020
Judge(s): Bathurst CJ; Fullerton J; Fagan J

Background

The two applicants, a father (WG) and mother (KG), were convicted at trial of numerous sexual offences against their daughter over a period of 14 years, beginning when the complainant was five years old. WG was convicted of 73 counts and sentenced to an aggregate term of 48 years with a non-parole period of 36 years. KG was convicted of 13 of 16 counts and sentenced to an aggregate term of 16 years with a non-parole period of 11 years.

The offending included aggravated sexual assault, aggravated indecent assault, and related offences. Much of WG's alleged conduct was accompanied by extreme violence and occurred in a structure on the family property referred to as "the shed." The family was heavily involved in athletics, with WG coaching the complainant and her sisters.

At trial, evidence was given by the complainant, both applicants, the complainant's sisters, friends, police officers, and medical experts. A gynaecologist, Dr Norrie, conducted an examination of the complainant and gave evidence. A second doctor, Dr Nittis, assisted by taking photographs at that examination but did not give evidence. Near the end of jury deliberations, the trial judge received a report that one juror felt bullied by others, but rejected an application to discharge the jury. Both applicants appealed against their convictions and sentences.

  • Whether the prosecution's failure to call Dr Nittis as a witness resulted in a miscarriage of justice
  • Whether the absence of new evidence at trial constituted a miscarriage of justice
  • Whether the jury's verdicts were unreasonable
  • Whether the trial judge erred in refusing to discharge the jury following allegations of juror bullying
  • Whether the decision to conduct a joint trial, and the volume of charges, caused a miscarriage of justice
  • Whether the sentencing judge erred in giving no weight to WG's good character
  • Whether the sentencing judge failed to properly address non-exculpatory duress, rehabilitation prospects, mental health, and victim impact statements in sentencing KG
  • Whether the sentences imposed on both applicants were manifestly excessive

Decision

Failure to call Dr Nittis: The Court held that the prosecution was not obliged to call Dr Nittis. The prosecutor's duty to call all witnesses necessary to give a complete account of events does not extend to calling an expert retained by or associated with the defence who disagrees with a Crown expert. Critically, Dr Nittis did not dispute Dr Norrie's factual observations but reached different conclusions from the same material. Rule 89 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) does not expand the common law position to require the Crown to call all available expert witnesses regardless of who retained them. Even if the Crown should have called Dr Nittis, no miscarriage of justice resulted: Dr Nittis was available to be called by WG and did not address the critical basis of Dr Norrie's conclusions.

Unreasonable verdict (majority): Bathurst CJ and Fullerton J, forming the majority, dismissed the unreasonable verdict ground. The relevant question on appeal is whether it was open to the jury to reach the verdict it did, not whether a different verdict was available. The complainant gave clear and consistent evidence, supported by powerful corroborative evidence, including tendency evidence that WG had a sexual interest in his daughters. The jury had the advantage of observing the witnesses give evidence and received detailed directions on delayed complaint. It was open to the jury to accept the complainant's account and reject the applicants' evidence.

Unreasonable verdict (Fagan J dissenting): Fagan J dissented on this ground in relation to WG. His Honour concluded that the complainant's evidence was unreliable to the extent that the jury could not exclude the reasonable possibility that her account was a product of psychiatric exaggeration, and that the corroborative evidence was insufficient to overcome those doubts. However, as the majority dismissed this ground, the appeals against conviction were dismissed.

Sentence appeals: The Court dismissed WG's sentence appeal. On KG's sentence, Fagan J (with whom the other judges agreed in part) found that five of the indicative sentences and the aggregate were excessive, observing that the sentencing judge may inadvertently have conflated the gravity of KG's offending with the extreme depravity of WG's, attributing to KG a broader complicity than the charges warranted. Despite this, the majority did not grant the sentence appeal in terms that altered the final outcome: both sentence appeals were dismissed.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed (for both WG and KG, on both conviction and sentence).

Key Takeaways

  • The Court of Criminal Appeal confirmed that the prosecution's duty of fair presentation does not require the Crown to call an expert witness retained by or associated with the defence, even where that expert reaches different conclusions from a Crown expert in the same discipline.
  • Where a proposed expert witness does not dispute the factual observations of a Crown expert but merely draws different inferences, the failure to call that witness is unlikely to constitute a miscarriage of justice, particularly where the defence had access to call that witness itself.
  • On an unreasonable verdict ground, the appellate court's task is to assess whether the verdict was open to the jury, giving appropriate weight to the jury's advantage in observing witnesses, not to substitute its own assessment of credibility.
  • A majority of two to one dismissed the unreasonable verdict ground: the dissent by Fagan J illustrates that, even in cases turning substantially on complainant credibility, a conviction is not automatically unreasonable, but the issue remains one where different reasonable judges may reach different views.
  • In sentencing where multiple offenders are involved in related abuse, sentencing courts must take care not to attribute the criminality or depravity of one offender to another, as inadvertent conflation of this kind may produce indicative sentences and an aggregate that are excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 89
- Jury Act 1977 (NSW), s 73A

Cases:
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
- R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
- Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
- Gilham v R [2012] NSWCCA 131
- Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Pell v The Queen [2020] HCA 12
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- KG v R [2015] NSWCCA 33
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53