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Court of Criminal Appeal 30 June 2023

AS v R

[2023] NSWCCA 161

Sexual offences
CRIMINAL PROCEDURE CONVICTION APPEAL EXTENSION OF TIME LENGTHY DELAY THREE CO OFFENDERS

Citation: AS v R [2023] NSWCCA 161
Court: Court of Criminal Appeal, NSW
Date: 30 June 2023
Judges: Basten AJA; Walton J; Hamill J

Background

The applicant was tried jointly in the District Court in August 2017 with two co-accused, DR and PV, in relation to a series of sexual offences against two young girls, Kerry and Jenny (pseudonyms). The applicant was DR's brother-in-law, making the girls his niece and step-niece. The indictment contained 35 counts across all three accused. The applicant faced 17 counts individually and a further six jointly with DR.

A significant feature of the trial was that PV had prior convictions for sexual offences against his own daughter. Those prior convictions were admitted at trial as tendency evidence against PV alone. The trial judge had also refused a pre-trial application by the applicant to have his charges severed from those of PV. The applicant was ultimately convicted of ten counts, acquitted of six, and the jury returned mixed verdicts.

In November 2022, more than five years after sentencing, the applicant filed a notice of appeal. He argued that the joint trial with PV, and the admission of the tendency evidence against PV in the same proceeding, had caused him a substantial miscarriage of justice.

  • Whether the Court should grant an extension of time to file the appeal, given the lengthy delay of approximately five years.
  • Whether leave to appeal against conviction was required, and if so, whether it should be granted.
  • Whether the refusal to sever the applicant's charges from PV's caused the applicant impermissible prejudice amounting to a substantial miscarriage of justice.
  • Whether the tendency evidence admitted against PV alone infected the fairness of the applicant's trial.

Decision

Extension of time and leave to appeal: The Court extended time and granted leave, noting that the possibility of a substantial injustice weighs in favour of allowing late applications. Some weight was given to the applicant's difficulties in obtaining legal aid and counsel. However, the Court cautioned that late conviction appeals in sexual assault matters carry real costs: retrials are distressing for victims, memories fade, and the risk of harm is aggravated by lengthy delays. The Court found sufficient substance in the ground of appeal to warrant consideration on its merits.

Severance and prejudice from the joint trial: The central question was whether evidence admitted solely against PV, particularly his prior convictions for offending against his own daughter, created prejudice that irreparably tainted the applicant's trial. The Crown had expressly accepted that the tendency evidence had no rational connection to the applicant's guilt. The trial judge gave detailed directions instructing the jury to consider the evidence relating to each accused separately and to treat the tendency evidence as relevant only to PV's counts.

Jury verdicts as a relevant indicator: The Court noted that the jury returned disparate verdicts on the applicant's counts, acquitting him on six charges while convicting on ten. This pattern indicated that the jury was capable of, and did, consider each count individually. It was inconsistent with a jury overwhelmed by spillover prejudice from the PV tendency evidence.

Overall conclusion: No unfairness was established. The pre-trial decision to refuse severance was not shown to have caused a substantial miscarriage of justice. The trial judge's directions adequately addressed the risk of prejudice, and the jury's conduct in returning mixed verdicts supported this conclusion. The appeal was dismissed.

Orders Made

  • Time for filing the notice of appeal extended to 28 November 2022.
  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that refusing severance does not automatically result in a substantial miscarriage of justice, even where highly prejudicial tendency evidence is admitted against a co-accused.
  • A late conviction appeal in a sexual assault case carries significant practical weight against granting an extension: retrials are distressing for victims, and long delays increase the risk of faded memories and further harm.
  • Where tendency evidence is admitted solely against one accused and expressly acknowledged to have no rational connection to a co-accused, clear jury directions can be sufficient to protect the fairness of the co-accused's trial.
  • Disparate jury verdicts on individual counts can serve as a relevant, though not conclusive, indicator that the jury was not overwhelmed by prejudicial material relating to a co-accused.
  • Hamill J observed that, in practice, this Court would be unlikely to refuse an extension of time in any case where it identified a material trial error and could not conclude that no substantial miscarriage of justice had occurred.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A, 66E
- Criminal Appeal Act 1912 (NSW), ss 5, 10
- Criminal Procedure Act 1986 (NSW), s 29

Cases:
- DR v R [2019] NSWCCA 320
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37