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Court of Criminal Appeal 17 March 2023

WS v R

[2023] NSWCCA 52

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION POINT NOT RAISED BELOW NO MISCARRIAGE SENTENCING APPEAL AGAINST SENTENCE

Citation: WS v R [2023] NSWCCA 52
Court: Court of Criminal Appeal, NSW
Date: 17 March 2023
Judges: Beech-Jones CJ at CL; Davies J; Hamill J

Background

The applicant (referred to by pseudonym) was convicted after trial of 16 sexual offences against three children: the sister of a former partner, his niece, and his stepdaughter. The complainants were aged between five and 15 years at the time of the offending, which spanned approximately 17 years across two separate periods (1996 to 2000, and 2003 to 2013). The applicant was sentenced to an aggregate term of 21 years' imprisonment with a non-parole period of 14 years and six months.

At trial, the Crown adduced evidence of complaints made by each of the three complainants to other persons. The trial judge directed the jury that this complaint evidence could be used as "some evidence independent of the evidence given" by each complainant in the witness box. That direction had been prepared by the Crown and approved without objection by the applicant's counsel.

The applicant sought leave to appeal both conviction and sentence. On conviction, he argued the jury direction about complaint evidence was erroneous. On sentence, he argued the aggregate term was manifestly excessive.

  • Whether the trial judge erred in directing the jury that complaint evidence could be used as evidence of the truth of the facts asserted in the complaints.
  • Whether the use of the word "independent" in the jury direction was misleading or occasioned a miscarriage of justice.
  • Whether the aggregate sentence of 21 years' imprisonment was manifestly excessive having regard to the totality of the applicant's offending.

Decision

Conviction ground: The Court of Criminal Appeal refused leave to appeal against conviction. It held that the ground of appeal, as formulated, was misconceived. Where complaint evidence is admitted without restriction under the Evidence Act 1995 (NSW), it constitutes evidence of the facts asserted, not merely evidence going to consistency or credibility. The trial judge was therefore entitled to direct the jury that it could use the complaint evidence as proof of the asserted facts.

On the use of the word "independent," the Court accepted that the direction was technically flawed. Complaint evidence is not truly independent because its source, in each instance, is the complainant. However, Beech-Jones CJ at CL concluded the direction was simply pointing out that the complaints, made on separate occasions and outside the trial, were also available as evidence of the facts alleged. Hamill J emphasised that, given the precise identification of each piece of complaint evidence and the trial judge's repeated reminder that repetition does not make a statement more reliable, there was no real prospect the jury misused the evidence. The error did not occasion a miscarriage of justice.

Sentence ground: The Court granted leave to appeal but dismissed the appeal. It found the aggregate sentence was not manifestly excessive. The applicant had used his position within a family to repeatedly sexually abuse three vulnerable young girls over more than 15 years, and the offending had a profound impact on each of the complainants. The Court noted that, had the indicative sentences been accumulated rather than moderated into an aggregate, the resulting total could have been more severe. The aggregate term was therefore within the legitimate range and not plainly wrong or unjust.

Orders Made

• Dismiss the appeal against conviction
• Grant the applicant leave to appeal against the sentence imposed on 28 August 2020
• Dismiss the appeal against sentence

Key Takeaways

  • Where complaint evidence is admitted at trial without any limiting order under s 136 of the Evidence Act 1995 (NSW), it is available as evidence of the truth of the facts asserted, not solely as evidence of consistency.
  • Using the word "independent" to describe complaint evidence is technically inaccurate (since the source of the complaint remains the complainant), but that inaccuracy will not automatically occasion a miscarriage of justice, particularly where the trial judge has qualified the direction with appropriate warnings about the limits of repetition.
  • No miscarriage arises where a ground of appeal was not raised below, the impugned direction was approved by defence counsel, and the circumstances of the trial left no real prospect the jury misused the evidence.
  • In assessing whether an aggregate sentence is manifestly excessive, the Court of Criminal Appeal will consider whether a more severe outcome was readily conceivable through accumulation of indicative sentences. Where it is, the aggregate is less likely to be characterised as excessive.
  • Upholding the 21-year sentence, the Court of Criminal Appeal confirmed that prolonged, multi-victim sexual offending by a person in a position of family trust will attract a severe aggregate sentence that reflects the totality of the criminality involved.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Evidence Act 1995 (NSW), s 136

Cases
- Aryal v R [2021] NSWCCA 2
- BS v R [2021] NSWCCA 39
- Kassab (a pseudonym) v R [2021] NSWCCA 46
- Lee v R [2020] NSWCCA 244
- Long (a pseudonym) v R [2021] NSWCCA 212
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- SB v R [2020] NSWCCA 207
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64