Citation: Greenaway v R [2021] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 1 November 2021
Judge(s): Macfarlan JA; Walton J; Wilson J
Background
The appellant was a former officer in the NSW juvenile justice system who was tried in the District Court on 26 counts (and two alternatives) relating to physical and sexual assaults against six young female inmates between 1964 and 1973. Five complainants were housed at the Parramatta Girls Training School between 1964 and 1967, when the appellant was the relieving deputy superintendent. A sixth complainant was an inmate at the Ormond School between 1971 and 1973, when the appellant was superintendent. The complainants were aged between 12 and 18 at the time of the alleged offences.
After directed not-guilty verdicts on four counts and jury acquittals on a further six, the jury returned majority guilty verdicts on 18 counts. The offences included common assault, assault occasioning actual bodily harm, indecent assault, rape, and buggery under the Crimes Act 1900 (NSW) as it then stood. The trial judge imposed an aggregate sentence of 20 years' imprisonment with a non-parole period of 10 years.
The appellant sought leave to appeal against both conviction and sentence. The conviction appeal raised five grounds, focusing primarily on the admissibility and use of tendency evidence and the exclusion of a defence witness. The sentence appeal contended the aggregate term was manifestly excessive.
Legal Issues
- Whether the trial judge erred in admitting uncharged sexual acts alleged against one complainant (DC) as tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW)
- Whether the trial judge erred in admitting uncharged sexual acts alleged against another complainant (RF) as tendency evidence
- Whether the jury direction on the standard of proof to be applied to uncharged acts before using them as tendency evidence was erroneous
- Whether tendency evidence relating to the Parramatta Girls Training School counts and the Ormond School counts was properly admitted as cross-admissible
- Whether the trial judge erred in excluding proposed defence evidence from a psychologist witness (Dr de Plevitz) under s 192A of the Evidence Act
- Whether the aggregate sentence of 20 years was manifestly excessive
Decision
Tendency evidence (Grounds 1 and 2): The Court of Criminal Appeal considered whether the uncharged sexual acts attributed to the appellant in relation to complainants DC and RF had significant probative value under s 97 of the Evidence Act, and whether that probative value was substantially outweighed by prejudicial effect under s 101. The Court applied a correctness standard of review. The Court found no error in the trial judge's admission of those uncharged acts as tendency evidence: the nature of the acts, the specific circumstances of the institutional setting, and the appellant's position of authority over vulnerable inmates gave the evidence the required significant probative value.
Jury direction on standard of proof for uncharged acts (Ground 3): This ground was raised for the first time on appeal, requiring leave. The Court considered the standard of proof the jury was required to apply before relying on uncharged acts as tendency evidence in a multi-complainant case. The Court found no error in the direction given, or no error causing a substantial miscarriage of justice, and declined to grant leave or dismissed this ground.
Cross-admissibility between the two schools (Ground 4): The Court examined whether the similarities between the alleged conduct at the Parramatta Girls Training School and the Ormond School were sufficient to permit tendency evidence from each institution to be cross-admissible with respect to the other. The Court was satisfied that the common features, including the institutional context, the appellant's positions of authority, the vulnerability of the complainants, and the nature of the alleged conduct, provided a sufficient basis for cross-admissibility. This ground was rejected.
Exclusion of the psychologist witness (Ground 5): The proposed defence evidence from Dr de Plevitz, a psychologist who worked at the Parramatta School, concerned different inmates and a different officer from those the subject of the charges. The Court held that this evidence was not relevant within the meaning of s 55 of the Evidence Act because it could not rationally affect the assessment of the probability of any fact in issue, and was therefore properly excluded by the advance ruling made under s 192A.
Sentence appeal (Ground 6): The Court applied the House v The King error standard. All three judges found no House error in the sentencing judge's approach. The delay between the offending and prosecution was found not to operate as a mitigating factor; rather, the sentencing judge correctly concluded that the delay substantially benefited the appellant by allowing him to live without the consequences of conviction during his earlier life. The Court noted the sentencing judge had regard to contemporary sentencing patterns as required and applied an appropriately generous variation to the statutory ratio. Given the seriousness of the course of offending, the appellant's gross abuse of his position of authority, and the extreme vulnerability of the complainants, the Court unanimously held the aggregate sentence was not manifestly excessive.
Orders Made
Based on the orders section provided, all three judges agreed on the same disposition. The specific formal orders are not fully reproduced in the text provided, but the judgment records that:
- All grounds of appeal against conviction were dismissed
- The appeal against sentence was dismissed
Key Takeaways
- Under ss 97 and 101 of the Evidence Act 1995 (NSW), uncharged sexual acts may be admitted as tendency evidence in a multi-complainant historical offending case where the significant probative value arising from the nature of the conduct and its institutional context is not substantially outweighed by prejudicial effect.
- Cross-admissibility of tendency evidence across offences committed at different institutions and at different times can be established where sufficient common features exist, including the offender's role of authority, the vulnerability of the victims, and the character of the alleged conduct.
- Proposed evidence from a witness is not relevant under s 55 of the Evidence Act, and is properly excluded under an advance ruling made pursuant to s 192A, where it concerns conduct by a different person against different complainants from those in the proceedings.
- In sentencing for historical offences involving significant delay, a court is not required to treat that delay as a mitigating factor where the delay operated to the benefit of the offender and was substantially caused by the offender's own conduct in selecting vulnerable victims and seeking to silence them.
- No error was established in the aggregate sentence of 20 years imposed for a serious course of institutional offending by a person in a position of authority over highly vulnerable young people, with some offences carrying a maximum penalty of life imprisonment.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 55, 97, 100, 101, 192A
- Crimes Act 1900 (NSW), ss 59, 61, 63, 76, 79
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 142
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Key Cases:
- House v The King (1936) 55 CLR 499 (standard for appellate intervention in sentencing)
- Hughes v The Queen (2017) 263 CLR 338 (tendency evidence)
- IMM v The Queen (2016) 257 CLR 300 (tendency evidence)
- HML v The Queen (2008) 235 CLR 334
- McPhillamy v The Queen [2018] HCA 52
- Papakosmas v R (1999) 196 CLR 297
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- ABR (a pseudonym) v R [2020] NSWCCA 33
- Hamilton v R [2020] NSWCCA 80
- Obeid v R (2017) 96 NSWLR 155