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Court of Criminal Appeal 26 March 2021

DS v R

[2021] NSWCCA 52

Sexual offences
CRIME APPEALS LEAVE TO APPEAL AGAINST CONVICTIONS EXTENSION OF TIME CHILD SEX OFFENCES INDECENT ASSAULTS CRIME

Citation: DS v R [2021] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 26 March 2021
Judge(s): Basten JA; Walton J; Button J

Background

The applicant was convicted in the District Court in June 2017 on 14 counts of sexual assault and indecent assault against his stepdaughter, committed when she was aged between approximately six and 13 years. He was acquitted on two counts and the jury could not agree on a third. On 12 December 2017, he was sentenced to an aggregate term of 11 years' imprisonment with a non-parole period of six years, commencing from August 2015.

The applicant filed his application for leave to appeal against both convictions and sentence on 28 July 2020, approximately three years after the jury verdicts. He was unrepresented in the Court of Criminal Appeal and expressly declined to appear either in person or by audio-visual link.

The central issues were whether the verdicts were unreasonable or unsupported by the evidence, whether the mixed verdict sheet disclosed a fatal inconsistency, and whether the aggregate sentence was manifestly excessive having regard to the applicant's age, ill-health, and conditions of imprisonment.

  • Whether an extension of time should be granted, given the lengthy delay in filing caused by alleged safety risks while in custody
  • Whether the jury's mixed verdicts (14 convictions, 2 acquittals, 1 hung count) were logically irreconcilable and therefore constituted inconsistent verdicts
  • Whether the convictions were unreasonable or unsupported by the evidence
  • Whether the failure to adduce evidence of good character constituted a ground of appeal, given the applicant was represented at trial
  • Whether the aggregate sentence of 11 years was manifestly excessive in light of the applicant's personal circumstances and conditions of incarceration

Decision

Extension of time: The Court granted the extension to 28 July 2020. Although no affidavit was filed explaining the delay, the applicant's written submissions indicated he had been held with other prisoners unaware of his offending, creating a real risk of violence if those offences became known. The Director of Public Prosecutions did not oppose the extension. The Court also noted that the principal conviction ground, if successful, would likely result in acquittals rather than retrials, reducing the prejudice to the complainant from delay.

Inconsistent verdicts (Ground 2): The Court found the mixed verdicts were logically explicable. Where the applicant was found guilty of statutory alternatives rather than primary charges, the jury had clearly distinguished on the complainant's age at the time of the conduct. On the count involving alleged digital penetration, the complainant's evidence had trailed off at the critical moment during examination-in-chief and the prosecutor had not followed it up, making it entirely comprehensible that the jury accepted the massaging evidence but harboured doubt about penetration. The acquittals on two other counts were explicable by the inherent difficulty of isolating specific incidents from a pattern of repeated conduct occurring some 20 years earlier when the complainant was very young.

Unreasonable verdicts (Ground 1): The Court considered the prosecution evidence in detail, including a covertly recorded conversation in which the applicant made admissions and exhibited knowledge of the complainant's allegations consistent with guilt. The Court was satisfied there was sufficient evidence on which a reasonable jury, properly instructed, could be satisfied beyond reasonable doubt on each count returned. The complainant's evidence was detailed and broadly consistent, and the admissions provided significant corroboration.

Good character evidence (Ground 3): The Court noted the applicant was legally represented at trial. No adequate basis appeared for criticising trial counsel's decision not to adduce good character evidence, and the ground was not made out.

Sentence: The sentencing judge had expressly considered the applicant's age, ill-health, and conditions of imprisonment, including his placement in a protection unit. The judge found no evidence of direct threats or violence sufficient to warrant a further sentencing reduction. The indicative sentences for individual offences demonstrated a careful and proportionate assessment of serious, sustained offending against a child victim. The Court found no error and refused leave to appeal against sentence.

Orders Made

  • Extension of time granted to 28 July 2020 to seek leave to appeal against both convictions and sentence
  • Leave to appeal against convictions granted, but appeal dismissed
  • Application for leave to appeal against sentence dismissed

Key Takeaways

  • Mixed verdicts in a multi-count sexual assault trial are not necessarily inconsistent. Where the jury's distinctions track differences in the evidence, such as uncertainty about a complainant's age at the time of specific incidents or ambiguity in testimony about a particular act, those distinctions can be logically reconcilable.

  • A complainant's difficulty in isolating individual incidents from a sustained pattern of repeated offending, particularly where the conduct began in early childhood, can provide a rational basis for the jury to acquit on some counts while convicting on others, without those outcomes being irreconcilable.

  • The Court of Criminal Appeal confirmed that delay in filing an appeal caused by a genuine safety risk to an applicant while in custody may support a grant of extension of time, even in the absence of a formal affidavit, where the Director does not oppose and the surrounding circumstances are consistent with the explanation offered.

  • In assessing manifest excess, a sentencing court's express consideration of an applicant's age, ill-health, and protective custody arrangements, followed by a finding that no further reduction was warranted, will be difficult to disturb on appeal in the absence of identifiable error.

  • Under section 5 of the Criminal Appeal Act 1912 (NSW), leave to appeal against conviction is required where the proposed grounds do not raise a question of law alone. Leave was granted here but the appeal was nonetheless dismissed on its merits.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 276
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 306I
- Evidence Act 1995 (NSW), s 110

Cases:
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151