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10
Court of Criminal Appeal 8 July 2024

Astill v R

[2024] NSWCCA 118

Sexual offencesPublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION MISCARRIAGE OF JUSTICE DIRECTIONS TO JURY TENDENCY EVIDENCE

Citation: Astill v R [2024] NSWCCA 118
Court: Court of Criminal Appeal, New South Wales
Date: 8 July 2024
Judges: Bell CJ; Stern JA; Button J

Background

The applicant was a Senior Correctional Officer at Dillwynia Correctional Centre who stood trial in the District Court on 51 charges arising from his interactions with 13 female inmates. The charges included 13 counts of aggravated sexual assault, 22 counts of aggravated indecent assault, three counts of aggravated act of indecency, and 13 counts of misconduct in public office. He pleaded guilty to seven misconduct counts and not guilty to the remainder.

Following a jury trial before O'Rourke SC DCJ in August 2022, the applicant was convicted of 27 counts relating to nine complainants. The trial judge imposed an aggregate sentence of 23 years imprisonment with a non-parole period of 15 years and 4 months.

The applicant sought leave to appeal against both his convictions and sentence. The conviction appeal focused on the adequacy of the trial judge's jury directions on tendency evidence and complaint evidence. Because no objection had been raised at trial to either direction, leave to appeal was required under the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

  • Whether the jury should have been directed that a complainant's own allegations could not be used as tendency evidence in support of the very count to which those allegations related
  • Whether the jury should have been directed that, if not satisfied of an allegation at the tendency-reasoning stage, it must return a not guilty verdict on the corresponding count
  • Whether a direction under s 161A(3) of the Criminal Procedure Act 1986 (NSW) was required, given that the tendency evidence overlapped with allegations in the indictment
  • Whether the jury should have been directed that complaint evidence could only be used for the purpose of assessing the complainant's credibility, not for its truth
  • Whether the aggregate sentence of 23 years imprisonment was manifestly excessive

Decision

Tendency directions: The Court refused leave to appeal on both tendency-related sub-grounds. Directing the jury that a complainant's own evidence could not be used as tendency evidence to support the count concerning that same complainant would, the Court found, have unduly complicated the jury's task, encouraged the jury to revisit the same body of evidence repeatedly, and been contrary to the High Court's decision in Director of Public Prosecutions v Roder [2024] HCA 15. Similarly, directing the jury that non-satisfaction at the tendency stage would compel a not guilty verdict on the corresponding count would have encouraged a conflation of the standards of proof and would have detracted from the straightforward approach mandated by Roder.

The Court noted that the trial judge had clearly distinguished between evidence given by a complainant and corroborating "other evidence," and had repeatedly directed the jury to consider each charge separately. The tendency evidence was not "indispensable" in the sense used in Shepherd v The Queen (1990) 170 CLR 573, so no s 161A(3) direction was required. The absence of any trial objection to the summing-up also weighed against any conclusion that the omission of the additional directions had deprived the applicant of a real chance of acquittal.

Complaint evidence directions: The Court rejected the second ground. The Crown's closing address could not be read as having confined reliance on the complaint evidence to credibility purposes alone. More significantly, the trial judge's failure to direct the jury that it could use complaint evidence for its truth purpose operated in the applicant's favour, not to his detriment. No miscarriage of justice arose.

Sentence: The Court refused leave to appeal against the aggregate sentence. While acknowledging the sentence was a stern one, the Court found it was appropriate given the nature of the offending: 12 victims, all in extremely vulnerable positions, subject to deliberate, repetitive, and systematic exploitation over periods ranging from six weeks to nearly five years, involving a gross and continuing breach of public trust. The sentence was neither outside the available range nor unreasonable or plainly unjust.

Orders Made

  • Leave to appeal against conviction on grounds 1 and 2 refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
  • Leave to appeal against sentence refused

Key Takeaways

  • Following Director of Public Prosecutions v Roder [2024] HCA 15, no direction is required telling a jury that a complainant's own allegations cannot be used as tendency evidence to support the count relating to that same complainant; such a direction would add complexity and risk conflating proof standards.
  • Where tendency evidence overlaps with allegations in the indictment, a s 161A(3) direction requiring the jury to be satisfied of the tendency acts beyond reasonable doubt is not compelled unless the tendency evidence is truly "indispensable" to the prosecution case in the Shepherd sense.
  • A failure to limit complaint evidence to its credibility purpose does not constitute a miscarriage of justice where the omission operated in the accused's favour rather than to his detriment.
  • In dismissing the sentence appeal, the Court confirmed that an aggregate sentence will not be set aside on manifest excess grounds unless it falls outside the range of available sentences or is unreasonable or plainly unjust, even where it is acknowledged to be stern.
  • The absence of any trial objection to jury directions is a significant factor weighing against a conclusion that the omission of those directions deprived an applicant of a real chance of acquittal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61J, 61M, 61O
- Criminal Procedure Act 1986 (NSW) ss 161A, 166
- Evidence Act 1995 (NSW) ss 66, 108, 136
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15
- Crimes (Administration of Sentences) Act 1999 (NSW) s 253G(2)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
- Jury Directions Act 2015 (Vic) ss 61-62

Cases:
- Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Shepherd v The Queen (1990) 170 CLR 573
- Carbone v The King (No 2) [2024] NSWCCA 7
- Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- CV v The King [2022] NSWCCA 264
- Greenhalgh v R [2017] NSWCCA 94
- House v The King (1936) 55 CLR 499; [1936] HCA 40