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Court of Criminal Appeal 19 March 2021

BS v R

[2021] NSWCCA 39

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION AND SENTENCE APPEAL DISMISSED

Citation: BS v R [2021] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 19 March 2021
Judges: Hoeben CJ at CL, Davies J, Fagan J

Background

The applicant, a man aged 72 at the time of the offending, was convicted of four offences involving two complainants who were his grandnieces by marriage, aged seven and twelve. The offences occurred during a family visit to the applicant's Sydney home on 4 January 2016 and included indecent assault by tongue kissing and digital penetration of the younger complainant. Both complainants made immediate disclosures to their parents during the car trip home that same day.

The applicant stood trial before Judge Pickering SC and a jury of twelve in the District Court, pleading not guilty. He did not give evidence at trial, though his daughter gave evidence for the defence claiming she had been present throughout the relevant incidents.

The jury returned guilty verdicts on four counts. The applicant was sentenced to an aggregate term of five years and six months' imprisonment, with a non-parole period of three years. He then appealed against both conviction and sentence on three grounds.

  • Whether the trial judge misdirected the jury by describing the complainants' complaint evidence as "independent of" their in-court testimony, potentially suggesting the complaints came from a source independent of the complainants themselves.
  • Whether the trial judge erred in admitting, on sentence, a written statement containing hearsay that impugned the applicant's character, in circumstances where the applicant had not raised good character.
  • Whether the aggregate sentence of five years and six months was manifestly excessive.

Decision

Ground 1: Jury direction on complaint evidence. The Court considered the trial judge's direction that the complaints made by the two complainants to their parents could be used as "some evidence independent of the evidence given to you of that incident by either complainant when they gave their evidence here in Court on the TV screens." Davies J, with whom Fagan J agreed, held that the impugned sentence, read in context and alongside two further clarifying sentences in the summing up, did not constitute a misdirection. Fagan J added that even considered in isolation, the phrase "independent of" would reasonably have been understood by the jury to mean that the complaint evidence was separate from and additional to the in-court testimony, not that it came from a source independent of the complainants. The Court was satisfied no miscarriage of justice arose.

Ground 2: Hearsay statement on sentence. A written statement by a family member (AA), which incorporated a hearsay account from another person (N), was tendered and admitted during sentencing proceedings. The Court accepted that the statement contained inadmissible hearsay and should not have been admitted in that form. However, applying the relevant legal tests, the Court concluded that the error did not warrant intervention. The statement had not been tendered to attack the applicant's character, and the sentencing judge had not relied upon it for that purpose. The Court also noted that the residual discretion not to interfere with the sentence was exercised in any event, in part due to factors including the applicant's health concerns relating to COVID-19.

Ground 3: Manifest excess. The Court rejected the submission that the aggregate sentence was unreasonable or plainly unjust. Applying the standard that a sentence is manifestly excessive only where it is clearly outside the range of appropriate sentencing dispositions, the Court found no such error was established on the facts of this case.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A jury direction on complaint evidence does not constitute a misdirection merely because it uses the phrase "independent of," provided the summing up as a whole makes clear that the evidence corroborates rather than independently originates the complainants' accounts.
  • Fagan J reaffirmed that courts should not attribute to jurors an irrational or commonsense-deficient reading of a judge's directions; jurors are presumed capable of understanding directions in their proper context.
  • Where inadmissible hearsay is wrongly admitted on sentence but the sentencing judge did not rely on it for an impermissible purpose, the Court of Criminal Appeal may decline to intervene if no substantial injustice results.
  • In dismissing the manifest excess ground, the Court applied the established principle that an aggregate sentence will only be set aside where it is shown to be unreasonable or plainly unjust, not merely where a different sentencing outcome might have been available.
  • The decision confirms that each ground of a conviction and sentence appeal must be assessed on its own merits, and that procedural errors at sentencing do not automatically lead to resentencing where the error had no material effect on the outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules 1952, r 4
- Evidence Act 1995 (NSW), s 4

Cases:
- Papakosmas v The Queen (1999) 196 CLR 297
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413
- R v Alvarez [2011] NSWCCA 33; (2011) 209 A Crim R 297
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- DV v R [2017] NSWCCA 276
- SB v R [2020] NSWCCA 207
- R v Scott [2020] NSWCCA 81
- RC v Regina [2020] NSWCCA 76
- Farkas v R [2014] NSWCCA 141
- Parkinson v R [2016] NSWCCA 49
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Elfar [2003] NSWCCA 358
- Regina v Skuse (NSW Court of Criminal Appeal, 24 October 1996, unrep)