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Court of Criminal Appeal 6 September 2024

LH v R

[2024] NSWCCA 165

Sexual offences
CRIME A PPEALS A PPEAL AGAINST CONVICTION RIGHT TO SILENCE CONSCIOUSNESS OF GUILT REASONING APPEAL DISMISSED CRIME

Citation: LH v R [2024] NSWCCA 165
Court: Court of Criminal Appeal, New South Wales
Date: 6 September 2024
Judge(s): N Adams J (leading judgment); Sweeney J and R A Hulme AJ (agreeing)

Background

The applicant was convicted at his second trial (the first having ended in a hung jury) on three counts of sexual offending against his biological daughter, who was ten years old at the time of the offending. The offending occurred between December 2019 and July 2020 and comprised two counts of sexual touching of a child under s 66DB(a) and one count of aggravated sexual intercourse with a child under authority under s 66C(2) of the Crimes Act 1900 (NSW). He was acquitted of a second s 66C(2) count.

The applicant had participated in an electronically recorded interview (ERISP) prior to trial and also gave evidence before the jury. An aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years and 3 months was imposed. He sought leave to appeal against both conviction and sentence.

Prior to the second trial, defence counsel indicated she did not intend to revisit any rulings from the first trial, including a ruling permitting the Crown to rely on each count as tendency evidence. The identified tendencies were a sexual attraction to his daughter and a propensity to act on that attraction.

  • Whether the Crown prosecutor's cross-examination and closing address occasioned a miscarriage of justice, including by commenting on the applicant's failure to deny allegations, inviting impermissible consciousness of guilt reasoning, and drawing inferences unsupported by the evidence
  • Whether the trial judge erred in directing the jury that it could rely on consciousness of guilt reasoning arising from the applicant's demeanour in his ERISP and his failure to mention the maternal grandmother in one of his answers to police
  • Whether the trial judge erred by failing to direct the jury that no unfavourable inference could be drawn from the applicant's alleged failure to immediately deny the allegations in his ERISP
  • Whether the trial judge's tendency directions amounted to a denial of procedural fairness and occasioned a substantial miscarriage of justice
  • Whether the sentencing judge breached the De Simoni principle by taking into account aggravating matters that would have attracted the more serious charge of persistent sexual abuse under s 66EA of the Crimes Act

Decision

Crown prosecutor conduct. The Court found no miscarriage of justice arising from the Crown prosecutor's conduct. The applicant had not exercised his right to silence; he participated in an ERISP and gave evidence at trial. The Crown prosecutor was entitled to test the veracity of the applicant's answers. Although the Court was not persuaded that the ERISP responses clearly constituted failures to deny the allegations, any potential prejudice was addressed by the trial judge's directions, including an Edwards direction (a direction explaining the limited basis on which silence or equivocal responses may be used against an accused). The Court rejected the proposition that the jury was precluded from drawing any adverse inference from the applicant's responses when assessing his credibility, noting that defence counsel had also relied on those same answers to support the applicant's credibility.

Consciousness of guilt directions. No error was found in the way the trial judge left consciousness of guilt to the jury. The jury was entitled to assess the manner of the applicant's denials, and the trial judge gave protective directions about demeanour, summarised the defence submissions, and required the jury to be satisfied of all matters in the Edwards direction before using demeanour in the manner the Crown urged. These directions adequately protected the applicant.

Tendency evidence and procedural fairness. The Court dismissed the procedural fairness complaint, noting that defence counsel at trial, being best placed to evaluate whether any unfairness arose, had expressly informed the trial judge that there was no such unfairness. That contemporaneous assessment, made in the atmosphere of the trial, weighed heavily against the applicant's position on appeal. The Court also noted that most of the complaints raised on appeal had not been raised at trial, engaging r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), which requires a higher threshold before an appellate court will act on grounds not raised below.

Sentence appeal. The Court found no breach of the De Simoni principle, which prohibits a sentencing judge from taking into account circumstances of aggravation that would have constituted a more serious offence. The sentencing judge had assessed the objective seriousness of each offence separately and had not used the language of s 66EA or found that the applicant had an "unlawful sexual relationship" as defined in that provision. The Court held that the existence of s 66EA does not prevent a sentencing judge, when sentencing for multiple discrete offences, from having regard to the nature of the relationship between offender and victim in assessing objective seriousness.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence dismissed

Key Takeaways

  • Where an accused participates in a recorded police interview and gives evidence at trial, the Crown is entitled to test the veracity of the answers given, and the jury may draw adverse inferences about credibility from those answers, provided appropriate directions are given.
  • An Edwards direction, combined with protective directions about demeanour and a summary of the defence position, can adequately address the risk of unfair prejudice from consciousness of guilt reasoning based on an accused's ERISP responses.
  • Procedural fairness complaints about tendency evidence directions will face significant difficulty on appeal where defence counsel at trial expressly informed the trial judge that no unfairness had arisen.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that sentencing for multiple discrete sexual offences does not engage the De Simoni principle merely because the same conduct could have been charged as the more serious offence of persistent sexual abuse under s 66EA, provided the sentencing judge does not find the elements of that offence or give undue weight to matters that constitute its aggravating features.
  • Most of the applicant's complaints had not been raised at trial, engaging the threshold under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, which the applicant was unable to overcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66C(2), 66DB(a), 66EA, 578A
- Evidence Act 1995 (NSW), ss 20, 89, 97
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35
- Huxley v The Queen (2023) 98 ALJR 62; [2023] HCA 40
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Crockford v R [2022] NSWCCA 115
- Day v R (No 2) [2023] NSWCCA 312
- PC v R (2022) 108 NSWLR 181; [2022] NSWCCA 107
- *ZA