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Court of Criminal Appeal 12 September 2022

Ramsey v R

[2022] NSWCCA 197

Sexual offences
UNREASONABLE VERDICTS NEW EVIDENCE VERDICT NOT UNREASONABLE APPEAL AGAINST SENTENCE SPECIAL CIRCUMSTANCES MANIFEST EXCESS

Citation: Ramsey v R [2022] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 12 September 2022
Judges: Beech-Jones CJ at CL, Wilson J, Fagan J

Background

The appellant was convicted by a District Court jury in September 2019 on four counts of indecent assault and one count of sexual intercourse without consent. All five offences occurred in early 2017 and involved a single complainant, a 16-year-old male (JM), who had been residing with the appellant after a period of family conflict. The appellant was 37 years old at the time of the offending.

The offending took place on multiple occasions while JM slept at the appellant's home. JM gave evidence that he woke to find the appellant fondling his penis, and on one occasion performing oral sex on him. The appellant's case at trial was that the acts were consensual.

Following conviction, the appellant was sentenced to an aggregate term of six years' imprisonment with a non-parole period of four years. He appeared self-represented on appeal and challenged both the conviction and the sentence across a combined total of sixteen grounds.

  • Whether untendered phone records and evidence from uncalled witnesses constituted fresh evidence capable of raising a reasonable doubt as to guilt
  • Whether the trial judge erred in granting leave for the complainant to refresh his memory
  • Whether evidence admitted at trial was improperly used for a hearsay purpose
  • Whether the jury's verdicts of guilty were unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in considering special circumstances and the appellant's subjective circumstances, including his criminal record, willingness to engage in rehabilitation, and character evidence
  • Whether the aggregate sentence of six years was manifestly excessive

Decision

Untendered evidence and new evidence grounds: The Court found that the phone records and evidence from witnesses not called at trial were not "fresh" evidence because they could readily have been adduced by the appellant during the trial itself. Applying Ratten v The Queen (1974) 131 CLR 510, the Court assessed whether, taking the most favourable view of all the evidence including the putative additional evidence, a jury would likely have acquitted the appellant. It concluded that no reasonable doubt as to guilt was raised, and that an acquittal would not have been a likely outcome.

Conduct of trial grounds: The Court found no error in the trial judge granting leave for the complainant to refresh his memory, noting no objection was raised at trial. The evidence complained of as hearsay was not used for a hearsay purpose and was not objected to during the proceedings. The Court was satisfied the appellant was fairly tried according to law.

Unreasonable verdict grounds: Applying M v The Queen (1994) 181 CLR 487 and Dansie v The Queen [2022] HCA 25, the Court found it could not be said the verdicts were unreasonable or unsupported by the evidence. The Court gave proper weight to the jury's advantage as the body primarily entrusted with determining guilt or innocence.

Sentence grounds: The Court found no error in the sentencing judge's treatment of special circumstances, the appellant's criminal record, or his stated willingness to engage in rehabilitation programs. The sentencing judge was entitled to find that the appellant's lack of empathy, insight, or remorse raised a reservation about whether he could benefit from such programs. The appellant's post-sentence deterioration in mental health was a post-sentence consideration and could not be used to establish error in the sentence imposed. Taking all relevant factors into account, the aggregate sentence was not manifestly excessive.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • Evidence that could have been obtained and adduced by the defence during the original trial does not qualify as "fresh" evidence for the purposes of a new evidence ground on appeal, even if it was not ultimately tendered.
  • In assessing a new evidence ground, the relevant test requires the Court to take the view most favourable to the appellant of all available evidence and consider whether a jury would likely have acquitted: Ratten v The Queen (1974) 131 CLR 510 applied.
  • Unreasonable verdict grounds require the appellate court to give proper allowance for the jury's advantage as the primary fact-finder; the threshold is whether the verdict is one that a jury, acting reasonably, could not have reached.
  • A sentencing court may legitimately take into account a lack of empathy, insight, and remorse when assessing the likelihood of benefit from rehabilitation programs, even where the offender has expressed willingness to participate.
  • Post-sentence mental health deterioration occurring after the original sentencing decision is not a matter that can found a ground of appeal asserting error in the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 61KC
- Evidence Act 1995 (NSW)

Cases:
- Dansie v The Queen [2022] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35