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Court of Criminal Appeal 18 September 2024

Lincoln v R

[2024] NSWCCA 173

Sexual offences

Citation: Lincoln v R [2024] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 18 September 2024
Judges: Mitchelmore JA, Cavanagh J, Chen J (Chen J delivered the principal judgment; Mitchelmore JA and Cavanagh J agreed)

Background

The applicant stood trial in the District Court on six counts of historical sexual offending against two complainants, a younger sister and her older brother, alleged to have occurred between 1969 and 1976 when the complainants were aged between nine and fifteen years. The complainants had come to know the applicant through their older brother (RS) as members of a Catholic Youth Organisation. The jury returned guilty verdicts on three counts: an act of indecency on the younger complainant when she was nine years old, rape of that same complainant, and an act of indecency on the male complainant. The jury was unable to reach a verdict on the remaining count and its alternative.

On 24 March 2023, the trial judge sentenced the applicant to an aggregate term of ten years imprisonment with a non-parole period of six years. The applicant then sought to appeal both his conviction and his sentence.

A significant feature of the trial was the Crown's use of tendency evidence. The Crown served a tendency notice relying, in part, on evidence from RS about an incident at the applicant's home in Strathfield, in which the applicant had allegedly touched RS on the genitals when RS was approximately sixteen years old. Although a charge relating to that incident had been withdrawn before trial, the evidence was nonetheless admitted as tendency evidence, and no objection was raised by defence counsel at trial.

  • Whether the evidence relating to the Strathfield incident was wrongly admitted as tendency evidence, on the basis that RS may have been eighteen or older at the time, and therefore the evidence could not support a tendency toward sexual interest in children aged between nine and sixteen years
  • Whether the wrongful admission of that evidence, if established, resulted in a substantial miscarriage of justice
  • Whether the trial judge's direction to the jury permitting tendency reasoning based on that evidence was erroneous
  • Whether the trial judge gave legally sufficient reasons for finding that the offending caused substantial emotional harm to the younger complainant
  • Whether the aggregate sentence of ten years imprisonment was manifestly excessive

Decision

Tendency evidence grounds (Grounds 1, 2 and 3)

Because no objection had been raised at trial, the applicant required leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 to raise these grounds on appeal. The Court noted that, under s 97(1)(b) of the Evidence Act 1995 (NSW), the probative value of proposed tendency evidence must be assessed by taking that evidence at its highest, assuming the jury will accept it. Questions of credibility or reliability are not relevant at that threshold stage.

The applicant's central argument was that the evidence uniformly showed RS was eighteen or older at the time of the Strathfield incident, meaning it could not support a tendency toward sexual interest in children. The Court rejected this. Cross-examination had produced evidence placing the incident in 1971, when RS was approximately sixteen years old. That body of evidence, taken at its highest, was capable of establishing the asserted tendencies and the evidence was therefore admissible. With Ground 1 failing, Grounds 2 and 3, which each depended on Ground 1 succeeding, also fell away. Leave to appeal on the conviction grounds was refused, as no miscarriage of justice had arisen and no necessary element of a fair trial had been overlooked.

Reasons for substantial emotional harm finding (Ground 4)

The applicant contended the trial judge failed to give adequate reasons for finding the offending caused substantial emotional harm to the younger complainant, a finding relevant to the applicable maximum penalties. The Court found the criticism had no substance. During the sentencing hearing, counsel for the applicant had expressly conceded that the court would find substantial harm based on the victim impact statement. That concession was recorded in the sentencing remarks. Given the concession, the reasons provided were legally sufficient.

Manifest excess (Ground 5)

The Court examined the indicative sentence for the rape count and the aggregate sentence overall. The sentencing judgment was found to be detailed and comprehensive, with the trial judge correctly identifying the statutory framework, the maximum penalties, the objective seriousness of the offending, and the applicant's subjective circumstances. The aggregate sentence and the non-parole period were both within the range reasonably available and were neither plainly unjust nor manifestly excessive.

Orders Made

  • Leave to appeal against conviction refused
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 97(1)(b) of the Evidence Act 1995 (NSW), the probative value of tendency evidence must be assessed by taking that evidence at its highest; questions of credibility and reliability of the proposed tendency evidence do not arise at the admissibility stage.
  • Where evidence is not uniform in establishing a particular fact, a court assessing admissibility must consider the full body of evidence, including material elicited in cross-examination, before concluding the evidence is incapable of supporting an asserted tendency.
  • Failing to object to the admission of evidence or to a jury direction at trial is a significant obstacle to raising those matters on appeal; leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 will not be granted unless the applicant demonstrates a real chance of acquittal was lost or a necessary element of a fair trial was overlooked.
  • Where defence counsel at a sentencing hearing concedes a finding (such as substantial emotional harm), that concession is recorded in the sentencing remarks and can provide legally sufficient reasons for the trial judge's finding on that issue.
  • An aggregate sentence must reflect the totality of the criminality involved; in dismissing the sentence appeal, the Court of Criminal Appeal confirmed that neither the aggregate term nor the non-parole period will be disturbed unless plainly unjust, unreasonable, or outside the range reasonably available to the sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 63, 71, 76, 81
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 97(1)(b)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Bektasovski v R [2022] NSWCCA 246; (2022) 407 ALR 125
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Geraghty v R [2023] NSWCCA 47
- Golding v R [2024] NSWCCA 129
- Franklin v R [2019] NSWCCA 325
- Greenaway v R [2021] NSWCCA 253
- Kelly v R [2021] NSWCCA 154
- Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233
- Aryal v R [2021] NSWCCA 2
- Boatswain v R [2019] NSWCCA 238
- Caristo v R [2011] NSWCCA 7
- Ker