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Court of Criminal Appeal 18 December 2020

Prasad v R

[2020] NSWCCA 349

Sexual offences
EVIDENCE HEARSAY HEARSAY EXAMINE COMPLAINANT APPEALS A PPEAL AGAINST CONVICTION

Citation: Prasad v R [2020] NSWCCA 349
Court: Court of Criminal Appeal, NSW
Date: 18 December 2020
Judge(s): Macfarlan JA at [1]; Wilson J at [158]; N Adams J at [196]

Background

The appellant was convicted at a judge-alone trial in the District Court of four counts of aggravated sexual assault against a 61-year-old woman with a borderline-mild intellectual disability and significant physical impairments, who lived alone and required daily carer support. The offences were alleged to have occurred on 2, 4 and 11 May 2017. The complainant died on 24 July 2018, before the trial commenced, from causes unrelated to the charges.

Because the complainant was unavailable to give evidence, the Crown's case depended substantially on two police video-recorded interviews she had given shortly after the alleged offences. The trial judge admitted one of those interviews into evidence as an exception to the hearsay rule under s 65 of the Evidence Act 1995 (NSW). The appellant was convicted of Counts 2, 3, 4 and 5 and sentenced to an aggregate term of 15 years and 6 months imprisonment with an 11-year and 6-month non-parole period.

On appeal, the appellant challenged the admission of the interview evidence, argued that all four verdicts were unreasonable, and contended that the sentence was excessive. The Crown cross-appeal on sentence was not separately pursued given the Court's decision to re-sentence.

  • Whether the trial judge misapplied s 65(2)(c) of the Evidence Act (hearsay exception where the maker of a representation is unavailable) and the High Court's approach in Sio v The Queen (2016) 259 CLR 47
  • Whether the trial judge wrongly defined the "circumstances" in which the relevant representations were made for the purposes of s 65(2)(c)
  • Whether the trial judge erred in declining to exclude the interview under s 137 of the Evidence Act (exclusion of evidence where danger of unfair prejudice outweighs probative value), including whether he took into account an irrelevant consideration
  • Whether the verdicts on Counts 2, 3, 4 and 5 were unreasonable and unsupported by the evidence
  • Whether the sentencing judge erred in finding the offences were planned and targeted because of the victim's vulnerability
  • Whether the aggregate sentence was manifestly excessive

Decision

Admission under s 65(2)(c): The Court held that the trial judge did not misapply Sio or take an impermissible "global approach." The Court confirmed that the assessment of reliability under s 65(2)(c) requires attention to the circumstances in which the representations were made, and that the trial judge had appropriately focused on those circumstances. Prior inconsistent representations by the complainant were relevant to the weight to be given to the evidence at trial, not to the threshold admissibility question under s 65(2)(c); they did not form part of the "circumstances" in which the representations were made.

Section 137 exclusion: The Court rejected the argument that the inability to cross-examine the complainant automatically generated unfair prejudice outweighing probative value. It acknowledged that the trial judge's reference to "public interest" in prosecuting serious crimes was an irrelevant consideration, but found this error was not material to the outcome. The probative value of the interview evidence was high, and the danger of unfair prejudice did not outweigh it.

Unreasonable verdicts: The Court allowed the appeal on Counts 2, 4 and 5. All three judges were satisfied that the evidence was insufficient to exclude reasonable doubt on the question of whether the complainant consented to the sexual acts alleged in those counts. The conviction on Count 3 (penile/anal penetration on 4 May 2017) was upheld. The evidence on that count, including the complainant's statements and the circumstances of the assault, was such that the trial judge was entitled to be satisfied beyond reasonable doubt that the complainant did not consent and that the appellant knew she was not consenting.

Re-sentencing on Count 3: Wilson J conducted the re-sentencing exercise on Count 3 alone, as the aggregate sentence fell away once Counts 2, 4 and 5 were set aside. The Court imposed a sentence of 8 years imprisonment with a non-parole period of 6 years, backdated to 18 May 2017. Wilson J identified the offence as one of serious gravity involving forcible anal rape of a cognitively and physically vulnerable victim, noted the appellant's lack of remorse and his criminal history (including prior domestic violence offences), and found that both general and specific deterrence were significant sentencing considerations.

Orders Made

  • Leave to appeal granted to the extent necessary
  • Appeal against convictions on Counts 2, 4 and 5 allowed; convictions quashed and verdicts of acquittal entered on those counts
  • Appeal against conviction on Count 3 dismissed
  • Appeal against the aggregate sentence allowed
  • Appellant re-sentenced to 8 years imprisonment on Count 3, commencing 18 May 2017 and expiring 17 May 2025, with a non-parole period of 6 years expiring 17 May 2023

Key Takeaways

  • Under s 65(2)(c) of the Evidence Act, the "circumstances" relevant to the high probability of reliability are those surrounding the making of the representation itself. Prior inconsistent statements by the same person bear on the weight to be given to the evidence at trial, not on the threshold admissibility question.
  • A trial judge's erroneous reference to an irrelevant consideration (such as "public interest" in prosecuting serious crime) when applying s 137 will not necessarily vitiate the ruling if the error was not material to the ultimate conclusion on probative value versus unfair prejudice.
  • In confirming the s 65(2)(c) analysis, the Court of Criminal Appeal applied the Sio framework and confirmed that a "global approach" to reliability is impermissible: the analysis must focus on the specific circumstances in which each representation was made.
  • Acquittals were entered on three of four counts because the evidence, assessed as a whole, did not exclude reasonable doubt on consent. The strength of the evidence differed count-by-count, and the Court assessed each count separately rather than treating the verdicts collectively.
  • Sentencing for aggravated sexual assault on a cognitively and physically vulnerable victim, accompanied by a lack of remorse and a relevant prior criminal history, calls for substantial weight on both general and specific deterrence in the re-sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61P
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), ss 59, 65, 137

Cases:
- Sio v The Queen (2016) 259 CLR 47
- IMM v The Queen (2016) 257 CLR 300
- The Queen v Dickman (2017) 261 CLR 601
- Pell v The Queen [2020] HCA 12
- M v The Queen (1994) 181 CLR 487
- Filippou v The Queen (2015) 256 CLR 47
- R v Baden-Clay (2016) 258 CLR 308
- Libke v The Queen (2007) 230 CLR 559
- SKA v The Queen (2011) 243 CLR 400
- Festa v The Queen (2001) 208 CLR 593
- Fox v Percy (2003) 214 CLR 118
- Warren v Coombes (1979) 142 CLR 531
- R v Ambrosoli (2002) 55 NSWLR 603
- R v Markuleski (2001) 52 NSWLR 82
- Priday v The Queen [2019] NSWCCA 272
- You, Jae Bok v The Queen [2020] NSWCCA 71