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21
Court of Criminal Appeal 29 April 2020

Scott v R

[2020] NSWCCA 81

Sexual offences
CRIMINAL LAW SEXUAL INTERCOURSE CUNNILINGUS NEW EVIDENCE PRESENTED ON APPEAL WHETHER EVIDENCE ESTABLISHED ALIBI WHERE TIME NOT OF THE ESSENCE

Citation: Scott v R [2020] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 29 April 2020
Judge(s): Brereton JA, Hamill J, Fagan J

Background

The applicant (referred to by the pseudonym "Scott" pursuant to a statutory suppression requirement) was convicted in the District Court after a jury trial of three counts of assault with an act of indecency on a child under 16 years and one count of sexual intercourse with a child under 10 years. The complainant was his 8-year-old granddaughter. The conduct alleged involved the applicant kissing the child on or near her vagina on multiple occasions during overnight visits to his home in the second half of 2016, with the final and most serious incident occurring on 20 December 2016.

The complainant's initial disclosure was made to her mother the day after the final incident, prompted by a remark from her younger brother. Part of the mother's conversation with the complainant was recorded on the mother's telephone and later played to the jury. The complainant was also interviewed by police and gave pre-recorded evidence before the trial.

The applicant was sentenced in the District Court to an aggregate term of 6 years with a non-parole period of 3 years and 6 months. He sought leave to appeal both the conviction and the sentence on multiple grounds.

  • Whether the guilty verdicts were unreasonable or unsupported by the evidence, including the audio-visual recordings and transcripts played to the jury
  • Whether trial counsel's failure to lead alibi evidence from the applicant or his wife constituted incompetence that deprived the applicant of a chance of acquittal, resulting in a miscarriage of justice
  • Whether new alibi evidence presented on appeal was capable of establishing an alibi, particularly given the indictment specified a range of dates rather than precise times
  • Whether the sentencing judge erred in declining to find extra-curial punishment or exceptional hardship to the applicant's wife
  • Whether the aggregate sentence of 6 years was manifestly excessive, having regard to the applicant's age, medical conditions, good character, and the circumstances of the offending

Decision

Conviction grounds dismissed. The Court rejected the submission that the verdicts were unreasonable. It noted the significant advantages the jury held in assessing the audio-visual recordings, including the ability to observe gestures and demeanour that were not captured by the written transcripts. The Court of Criminal Appeal was not persuaded that the jury's conclusions were not open on the totality of the evidence.

Alibi grounds dismissed. The applicant's new evidence on appeal was directed at showing he and his wife were absent from the home at certain times. However, the Court found this did not establish an alibi for the offences charged. The indictment specified broad date ranges rather than precise times, meaning time was not of the essence. The absence of the couple from the home on particular occasions within that range did not foreclose the jury's findings. No miscarriage of justice was established arising from counsel's failure to call alibi evidence.

Sentence grounds: partial success. The Court rejected the specific grounds relating to extra-curial punishment and hardship to the applicant's wife, finding no error in the sentencing judge's conclusions on those matters. However, the Court found the aggregate sentence of 6 years was manifestly excessive in all the circumstances. The Court accepted that the offending was an extraordinary and inexplicable aberration in an otherwise blameless life, that the applicant was elderly and in poor health, that imprisonment in these circumstances constituted severe punishment, and that the sentencing purposes of general deterrence and community protection carried little weight. The Court also took into account the impact of the COVID-19 pandemic on conditions of incarceration and the applicant's particular vulnerability.

Re-sentencing. The Court re-sentenced the applicant to an aggregate term of 5 years, with a non-parole period of 2 years and 6 months. Fagan J agreed with the proposed sentence, observing separately that 6 years with the non-parole period imposed was excessive given the applicant's age, health concerns, and the nature of the offending.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence allowed
  • Sentence imposed in the District Court quashed
  • In lieu thereof: aggregate sentence of 5 years commencing 5 June 2018 and expiring 4 June 2023, with a non-parole period of 2 years and 6 months expiring 4 December 2020
  • Applicant eligible for release to parole at expiration of the non-parole period

Key Takeaways

  • Appellate courts must exercise particular caution when reviewing audio-visual evidence played to a jury: the Court of Criminal Appeal emphasised that gestures observed by the jury but not reflected in transcripts may carry significant weight, reinforcing the advantages the jury holds over an appellate court reviewing a written record.

  • Where an indictment charges offences across a range of dates rather than at a precise time, evidence that the accused was absent from the relevant location on particular occasions within that range will not necessarily establish an alibi. The indictment's framing is central to assessing whether alleged alibi evidence is capable of raising a reasonable doubt.

  • Failure by trial counsel to call available alibi evidence does not automatically constitute a miscarriage of justice. The Court examined whether the uncalled evidence could have made a difference and concluded it could not, given the date-range framing of the charges.

  • In sentencing an elderly offender with serious medical conditions and no prior criminal history, the Court of Criminal Appeal confirmed that the sentencing purposes of general deterrence and community protection may carry diminished weight where the offending is a profound anomaly and reoffending is assessed as improbable.

  • The impact of COVID-19 on prison conditions, and an offender's particular vulnerability to those conditions, was treated as a relevant consideration in assessing the overall severity of a sentence, contributing to the Court's conclusion that the original term was excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61M(2), 66A(1), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5A), 53A(2)(b)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Criminal Appeal Act 1912 (NSW), s 7(1)
- Evidence Act 1995 (NSW), s 66
- COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)

Cases:
- Pell v The Queen [2020] HCA 12
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Betts v The Queen (2016) 258 CLR 420
- Gately v The Queen (2007) 232 CLR 208
- Nudd v The Queen [2006] HCA 9
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- Papakosmas v R (1999) 196 CLR 297
- Guo v The Queen [2020] NSWCCA 40
- R v Daetz [2003] NSWCCA 216
- R v AJP [2004] NSWCCA 434
- CF v R [2017] NSWCCA 318
- AH v R [2015] NSWCCA 51
- R v Allpass (1993) 72 A Crim R 561
- R v Abbott (1985) 17 A Crim R 355