AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 2 October 2020

Pethybridge v R

[2020] NSWCCA 247

Sexual offencesPublic order & justice offences
CRIMINAL PROCEDURE LIES DIRECTIONS TO JURY CONSCIOUSNESS OF GUILT CHARACTER EVIDENCE GOOD CHARACTER

Citation: Pethybridge v R [2020] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 2 October 2020
Judges: Payne JA (with Fagan J and Cavanagh J agreeing)

Background

The applicant, a former Salvation Army employee, was charged with 18 counts of historic sexual misconduct against eight complainants, all of whom had contact with him through the Salvation Army. The counts were severed into two separate trials. Following the first trial, he was convicted on all but one count; following the second, he was convicted on all but one count (which was dismissed by direction). He was sentenced to an aggregate term of 15 years imprisonment with a non-parole period of 10 years.

The applicant sought leave to appeal against both his convictions and his sentence. The conviction appeal raised three grounds, each concerning a different aspect of the trial judge's conduct or rulings across the two trials.

  • Whether the trial judge in the first trial erred by directing the jury that it could treat three alleged lies as reflecting consciousness of guilt, when the Crown had only relied on one of those alleged lies for that purpose.
  • Whether the trial judge in the first trial erred by refusing to allow the applicant to adduce evidence of his lack of prior convictions, even though the Crown did not oppose the admission of that evidence.
  • Whether the trial judge in the second trial erred by directing the jury on coincidence reasoning when the Crown's closing address had relied on tendency reasoning rather than expressly invoking coincidence reasoning.
  • Whether the aggregate sentence of 15 years imprisonment was manifestly excessive, and whether the sentencing judge erred in assessing the objective seriousness of certain counts.

Decision

Ground 1: Consciousness of guilt direction. The Crown in the first trial put only one alleged lie to the jury as reflecting consciousness of guilt. The trial judge directed the jury on three alleged lies in that context, including matters relating to alleged incidents at Holsworthy and Orange. The Court held that those additional matters formed no part of the Crown case, and it was therefore unnecessary and inappropriate for the trial judge to give an Edwards direction about them. The direction constituted an error.

Ground 2: Good character evidence. The Court held that evidence of an absence of prior convictions is a recognised aspect of good character, and that such evidence is relevant to a fact in issue because good character almost always assists an accused's defence. The Crown had not opposed admission of the evidence. Despite this, the trial judge refused to admit it, apparently because the judge was aware of other allegations then outstanding. The Court found this was an error of law and that the wrongful exclusion caused a miscarriage of justice. This ground succeeded and the convictions from the first trial were quashed.

Ground 3: Coincidence reasoning direction. Although the Crown's closing address did not use the word "coincidence" explicitly, both a tendency notice and a coincidence notice had been served before trial. The Court found that coincidence reasoning was sufficiently raised by the Crown's address, and that defence counsel understood it to have been so raised. The trial judge's coincidence direction was therefore not an error. The Court noted, however, as a general principle, that trial judges should not advance Crown arguments that the Crown itself did not put.

Sentence appeal. Ground 1 of the sentence appeal was rendered moot by the quashing of the first trial convictions and remittal for retrial. On ground 2, the Court indicated it would not have found the aggregate sentence manifestly excessive had it been necessary to decide the point. The Court re-sentenced the applicant on the second trial counts only, imposing an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 9 months.

Orders Made

  • Leave to appeal granted on all grounds.
  • Conviction appeal allowed on grounds 1 and 2; dismissed on ground 3.
  • Convictions from the first trial quashed.
  • Aggregate sentence imposed following both trials quashed.
  • In lieu thereof, an aggregate sentence of 4 years imprisonment imposed on the second trial counts, commencing 2 August 2018, with a non-parole period of 2 years and 9 months (first eligible for parole 1 May 2021).
  • Indicative sentences identified for individual counts in the second trial (counts 1, 3, 4, 5, and 6).
  • First trial matters remitted to the District Court arraignment list on 9 October 2020.

Key Takeaways

  • An Edwards direction (directing a jury that a lie may reflect consciousness of guilt) is only appropriate where the Crown has actually relied on that alleged lie for that purpose. Giving such a direction about matters the Crown did not put to the jury constitutes an error.
  • Evidence of an absence of prior convictions is a recognised aspect of good character and is relevant to a fact in issue at trial. Excluding it without a proper basis, particularly where the Crown consents to its admission, constitutes a wrong decision on a question of law capable of producing a miscarriage of justice.
  • A trial judge should not advance coincidence or tendency reasoning on behalf of the Crown where the Crown itself has not relied on that reasoning in its address to the jury.
  • Where both tendency and coincidence notices have been served, and coincidence reasoning is sufficiently implicit in the Crown's closing address, a trial judge's direction on coincidence is not rendered erroneous merely because the Crown did not use the precise word "coincidence."
  • Quashing convictions from one of two severed trials does not automatically render the aggregate sentence imposed across both trials manifestly excessive; the Court of Criminal Appeal may re-sentence on the surviving convictions while remitting the quashed matters for retrial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E, 65, 66C, 76, 413
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, r 4
- Criminal Procedure Act 1986 (NSW), ss 141, 142
- Evidence Act 1995 (NSW), ss 55, 110, 135

Cases:
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15
- TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46
- R v Meher [2004] NSWCCA 355
- Hughes v R [2018] NSWCCA 2
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28