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8
Court of Criminal Appeal 22 July 2020

Allen v R

[2020] NSWCCA 173

Sexual offencesPublic order & justice offences

Citation: Allen v R [2020] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 22 July 2020
Judge(s): Bell P; Davies J; Button J

Background

The appellant was convicted by a District Court jury on 30 of 36 counts on an indictment. Twenty-five of those counts were offences under the Child Protection (Offenders Registration) Act 2000 (NSW), consisting of failures to comply with reporting obligations imposed on persons listed on the Child Protection Register (referred to throughout as the "reporting offences"). The remaining counts alleged aggravated indecent assault, acts of indecency, accessing child pornography, and grooming in relation to two teenage complainants during a two-day car trip and visit to Coffs Harbour in late February 2017.

Before trial, the appellant applied to sever the reporting offences from the sexual offence charges. The concern was that having both sets of charges tried together would inevitably signal to the jury that the appellant had previously been convicted of an offence serious enough to place him on the Child Protection Register. The trial judge refused the application, taking the view that an appropriate jury direction would cure any prejudicial effect. That decision became the central issue on appeal.

The appellant was sentenced to an aggregate term of 5 years and 6 months' imprisonment, with a non-parole period of 3 years and 6 months. He sought leave to appeal his conviction on two grounds: the refusal to sever the counts, and alleged incompetence of his trial counsel.

  • Whether the trial judge's refusal to sever the reporting offences from the sexual offence charges caused a miscarriage of justice, either because the decision itself was wrong or because the directions given to the jury were inadequate.
  • Whether the fact that the jury acquitted the appellant on some sexual offence counts meant no miscarriage of justice had occurred.
  • Whether trial counsel's conduct, including a failure to address the jury on certain reporting offence counts, amounted to incompetence that gave rise to a miscarriage of justice.

Decision

The Court allowed the appeal and quashed the convictions on the sexual offence charges, but the three judges diverged on the precise basis for doing so.

Bell P and Davies J held that the trial judge did not err in refusing to sever the counts. The cross-admissibility of evidence and the fact that the two young complainants would have had to give evidence twice on overlapping matters if the charges were separated were highly relevant considerations justifying a joint trial. However, Bell P and Davies J found that the trial judge failed to give any specific or sufficiently strong direction telling the jury that the appellant's status as a registrable person, and any inferences that might be drawn from it about his character or tendency, had to be put entirely aside when considering the sexual offence charges. That omission was not cured by the generic directions given, and it resulted in a miscarriage of justice.

Button J took a different path to the same outcome. His Honour held that the trial judge erred at the anterior step by refusing to sever the counts at all. In Button J's view, the presence of the reporting offences on the indictment denied the appellant a fair trial of the sexual charges, and no direction that could have been given would have remedied that prejudice. His Honour added that any specific direction addressing the Register would have carried a real risk of making the problem worse rather than better.

All three judges agreed that the appellant's partial acquittals on the sexual offence counts did not resolve the miscarriage of justice. The inference inevitably drawn from the presence of the reporting offences could have unconsciously tipped the balance on the counts where a guilty verdict was returned. All three judges also agreed that the appellant failed to establish that trial counsel's conduct was incompetent or gave rise to a miscarriage of justice.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on the sexual offence charges quashed.
  • Aggregate sentence set aside.
  • New trial ordered in respect of the sexual offence charges.
  • Appellant resentenced to 18 months' imprisonment in respect of counts 2 and 4 to 25 of the indictment (the reporting offences on which he was convicted).

Key Takeaways

  • Joining child sex offender register charges to substantive sexual offence charges on the same indictment carries a significant risk of prejudice, because the jury will necessarily infer the accused has a prior conviction serious enough to warrant registration.
  • Where a trial judge refuses to sever such counts, the absence of a specific, strong direction telling the jury to disregard the accused's registrable status when deliberating on the sexual offences can, by itself, constitute a miscarriage of justice, even if general tendency or prejudice directions were given.
  • Partial acquittals on the sexual offence counts are not a complete answer to a miscarriage of justice argument: unconscious prejudice may still have influenced the verdicts on the counts where the jury convicted.
  • Button J's observations offer a more stringent position: in some cases, the prejudice arising from joining such counts is incurable by any direction at all, and severance is the only appropriate remedy.
  • No miscarriage of justice arises from counsel's failure to address the jury on particular counts unless incompetence is positively established; strategic or forensic choices made at trial will not readily meet that threshold.

Legislation and Cases Referenced

Legislation:
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 17(1), 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 58
- Criminal Appeal Act 1912 (NSW), ss 5F, 7(1A)
- Criminal Procedure Act 1986 (NSW), ss 21(2)(a), 29(1), Pt 3 Div 7
- Evidence Act 1995 (NSW), ss 97, 98, 101, 136, 137

Key Cases:
- Crofts v R (1996) 186 CLR 427
- DAO v R (2011) 81 NSWLR 568
- DSJ v R; NS v R [2014] NSWCCA 77
- Gilbert v R (2000) 201 CLR 414
- House v R (1936) 55 CLR 499
- Kalabasi v State of Western Australia (2018) 264 CLR 62
- KRM v R (2001) 206 CLR 221
- McPhillamy v R (2018) 361 ALR 13
- Nudd v R (2006) 225 ALR 161
- R v Bartle (2003) 181 FLR 1
- R v Birks (1990) 19 NSWLR 677
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62