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Court of Criminal Appeal 12 October 2022

TS v R

[2022] NSWCCA 222

Sexual offences
CRIME EXTENSION OF TIME IN WHICH TO APPEAL 35 PROPOSED GROUNDS OF APPEAL APPEAL AGAINST CONVICTIONS MISCARRIAGE OF JUSTICE APPREHENSION OF BIAS OF JUDGE

Citation: TS v R [2022] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 12 October 2022
Judges: Basten AJA; Fullerton and Garling JJ

Background

The applicant, TS, faced 132 charges arising from the persistent sexual abuse of his stepdaughter, KS, over approximately four years from when she was aged 12 to 16. The charges included aggravated sexual assault, sexual intercourse with a child, indecent assault, producing and possessing child abuse material, and administering an intoxicating substance. TS also faced two counts of indecent assault against a second stepdaughter, JS.

Police recovered SD cards containing videos and photographs of TS performing sexual acts on KS, including footage in which KS was unconscious. The prosecution alleged TS had administered Travacalm Original to both KS and her mother, RL, to facilitate the offending. TS pleaded guilty to all charges involving conduct captured on camera but maintained at trial that KS was merely asleep in the relevant videos, and that it was KS who had drugged RL.

TS was unrepresented at the 15-day trial. The jury convicted him on all remaining charges except one count of administering an intoxicating substance to RL. On 22 November 2017, he was sentenced to an aggregate of 32 years' imprisonment with a non-parole period of 24 years. TS appealed both his convictions and sentence on 35 grounds, with the appeal heard more than three years after the original verdict and sentencing.

  • Whether the trial judge's conduct gave rise to a reasonable apprehension of bias, in particular through references to "grooming" and interventions during cross-examination
  • Whether the trial judge denied TS procedural fairness as a self-represented accused, including by refusing an adjournment, failing to advise him of rights to object to evidence, and permitting a prosecution closing address
  • Whether the jury's verdicts on the 22 counts of administering an intoxicating substance were unreasonable or unsupported by the evidence
  • Whether errors in sentencing, including reference to inapplicable standard non-parole periods and a factual error affecting culpability, required resentencing
  • Whether, on resentencing, a lesser aggregate sentence was warranted

Decision

Apprehended bias: The court confirmed that where guilt is determined by a jury, the relevant question is whether a reasonable juror might have apprehended that the judge had formed a fixed opinion as to the accused's guilt. The judge's pre-trial reference to "grooming" occurred in the absence of the jury and amounted to an explanation of how the prosecution was likely to characterise the relationship, not an expression of the judge's own view. Interventions during cross-examination reflected the judge's proper role in assisting an unrepresented accused to formulate relevant questions, and one mistaken intervention did not reveal prejudice. No apprehended bias was established.

Procedural fairness: The court held that while a trial judge has an obligation to explain relevant legal matters to an unrepresented accused, the judge is not an adviser or advocate and must remain impartial. The refusal of an adjournment on day four was within the judge's discretion, given that reasonable opportunities to obtain representation had already passed. The judge was not obliged to advise TS of the basis on which he might object to a particular piece of evidence. The prosecution's decision to address the jury, though perhaps uncommon where an accused is unrepresented, was neither unlawful nor did it produce a miscarriage of justice on the facts.

Unreasonable verdicts: Fullerton and Garling JJ reviewed the whole trial transcript and viewed each of the video exhibits. They found the jury's verdicts on the sedation charges were soundly based, describing the grounds of appeal on this issue as having no merit whatsoever. The combination of the video evidence showing KS's condition and expert evidence supporting an inference of sedation, together with TS's own admissions as to the sexual acts, left no proper basis to doubt the verdicts.

Sentence: The court found two errors warranting resentencing. The sentencing judge had applied standard non-parole periods to offences of sexual intercourse with a child that did not attract such periods at the time of offending, and the later legislative amendments did not operate retrospectively. The sentencing judge also made a factual error in treating ejaculation as increasing objective seriousness by reference to a risk of pregnancy that the evidence did not support. Despite these errors and the grant of leave to appeal on sentence, the court determined that no lesser aggregate sentence than 32 years was warranted and dismissed the sentence appeal accordingly.

Orders Made

  • Extension of time to appeal the convictions refused, subject to the limited grant below
  • In respect of grounds 1, 1A and 2(iv): time to appeal the convictions extended to 14 December 2020, leave to appeal granted, and the appeal dismissed
  • In respect of the aggregate sentence imposed on 22 November 2017: leave to appeal granted and the appeal dismissed

Key Takeaways

  • Where guilt is determined by a jury, apprehended bias is assessed by reference to whether a reasonable juror might have concluded the judge prejudged the accused's guilt, not simply whether the judge expressed views in the abstract.
  • A trial judge assisting a self-represented accused is required to explain relevant legal matters and ensure a fair trial, but that obligation does not extend to giving legal advice about the specific basis on which particular evidence might be challenged.
  • Refusing an adjournment application is within the trial judge's discretion where the accused has already had reasonable opportunities to obtain legal representation and a further adjournment is unlikely to change that position.
  • Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, discounts for guilty pleas are to be taken into account and applied at the level of indicative individual sentences, not applied to or calculated against the aggregate sentence itself. This was confirmed by Fullerton and Garling JJ by reference to prior CCA authority.
  • Identifying standard non-parole periods for offences that did not attract them at the time of offending constitutes a material error engaging the resentencing discretion, but an appellate court conducting resentencing may still conclude that no lesser sentence is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38, 61J, 61M, 66C, 66EA, 66EB, 73
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW), Sch 2
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 53A, 54A, 54B, Sch 2 cl 68
- Criminal Procedure Act 1986 (NSW), ss 141, 142, 149, 294, 306N, 306P
- Evidence Act 1995 (NSW), ss 66, 97, 99, 108, 136, 137, 165, 165B, 177, 192
- Surveillance Devices Act 2007 (NSW), s 7

Cases:
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v EJ Smith [1982] 2 NSWLR 608
- R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309
- MS v R [2017] NSWCCA 252 (not followed on prosecution address issue)
- Glare v R [2015] NSWCCA 194
- Bao v R [2016] NSWCCA 16
- Elsaj v R [2017] NSWCCA 124
- PG v R [2017] NSWCCA 179
- Hofer v The Queen [2021] HCA 36; 95 ALJR 937
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2