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Court of Criminal Appeal 14 February 2025

Warton v R

[2025] NSWCCA 5

Sexual offences

Citation: Warton v R [2025] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 14 February 2025
Judges: Adamson JA, Ball JA, Fagan J

Background

The applicant, a Community Corrections Officer, was convicted by jury of three sexual offences committed against a woman he supervised on parole. The offences occurred on 7 March 2019 during a home visit and involved sexual touching and penile/vaginal sexual intercourse without consent, each aggravated by the applicant's position of authority over the complainant. He was sentenced to an aggregate term of six years and six months' imprisonment.

The complainant gave evidence at the first of three trials, and that recorded evidence was replayed at the subsequent two trials under s 306I of the Criminal Procedure Act 1986 (NSW). Before the third trial commenced, the applicant sought an order under s 306J of that Act to recall the complainant for further cross-examination on two matters: her Facebook activity in 2014, and a 2018 interaction with police during which she made a statement about not driving a vehicle that police had observed her drive. Both matters were accepted as relevant only to the complainant's credibility.

The applicant sought leave to appeal on two grounds: first, that the trial judge erred in refusing to allow the further cross-examination; and second, that the sentencing judge erred in her treatment of the applicant's criminal history when assessing whether he was entitled to a sentencing discount for good character. The applicant had a criminal history but no recorded convictions at the time of the offences.

  • Whether the trial judge erred in refusing to order the complainant's recall for further cross-examination under s 306J of the Criminal Procedure Act 1986 (NSW), specifically whether the proposed evidence could "substantially affect the assessment of the witness" under s 103(1) of the Evidence Act 1995 (NSW)
  • Whether the sentencing judge erred by declining to afford the applicant the leniency otherwise available to a person of good character, on the basis of his criminal history despite an absence of recorded convictions
  • The meaning of "good character" in the sentencing context, and in particular whether it extends to a person who has engaged in criminal conduct but holds no convictions

Decision

Ground 1: Refusal to recall the complainant

The Court of Criminal Appeal applied a correctness standard in reviewing the trial judge's refusal, consistent with Hayne v R [2024] NSWCCA 97 and WX v R (2020) 102 NSWLR 467. The Court confirmed that the proposed cross-examination on the Facebook material and the 2018 police interaction was properly excluded under s 103(1) of the Evidence Act, which requires that evidence adduced solely to challenge credibility have "substantial probative value." The Court found neither item of proposed evidence met that threshold. Because the evidence was inadmissible under s 103(1), it was unnecessary to separately consider the requirements of s 306J of the Criminal Procedure Act. The Court granted leave to appeal on this ground but dismissed the appeal.

Ground 2: Criminal history and good character at sentence

The Court identified two senses in which the expression "good character" operates in sentencing. In its positive sense, good character refers to a history of good works and community contribution. In its negative sense, it can mean either an absence of prior convictions specifically, or more broadly an absence of prior criminal or blameworthy conduct. The relevant sense in any given case depends on context.

In this case, the only sense in which good character was raised at the trial and sentence hearing was the narrow negative sense of the absence of prior recorded convictions. The trial judge accepted the applicant had no prior convictions but was entitled to take into account his antecedents, which showed he had nonetheless engaged in criminal conduct. The trial judge expressly acknowledged the absence of recorded convictions but was not obliged to ignore the underlying conduct. The Court found this approach orthodox, and no error was established. Leave to appeal against sentence was refused.

Orders Made

  • Leave to appeal granted on ground 1
  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • Under s 103(1) of the Evidence Act 1995 (NSW), evidence adduced solely to challenge a witness's credibility is inadmissible unless it has "substantial probative value." Proposed cross-examination on stale Facebook posts and an ambiguous interaction with police did not meet that threshold.
  • Where s 103(1) renders proposed further cross-examination inadmissible, there is no need to separately address the requirements of s 306J of the Criminal Procedure Act 1986 (NSW) governing recall of witnesses in trials involving recorded evidence.
  • The concept of "good character" in sentencing carries both positive and negative dimensions. Its precise meaning depends on the context in which it is used, and courts must identify which aspect is engaged in any particular case.
  • An absence of recorded convictions does not compel a sentencing court to disregard a criminal history demonstrating actual criminal conduct. The sentencing judge remained entitled to take those antecedents into account, even while acknowledging the absence of convictions.
  • No error was established in the sentencing judge's approach, and the Court noted she had in any event given the applicant some credit in relation to rehabilitation and reoffending prospects by reference to his limited criminal history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61KD
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A
- Criminal Procedure Act 1986 (NSW), ss 306I, 306J
- Evidence Act 1995 (NSW), Pt 3.7, s 103

Cases
- Bauer v The Queen (2018) 266 CLR 56; [2018] HCA 40
- Hayne v R [2024] NSWCCA 97
- R v El-Azzi [2004] NSWCCA 455
- R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
- R v I R Hall (No 2) [2005] NSWSC 890
- R v Levi (Court of Criminal Appeal (NSW), 15 May 1997, unreported)
- R v Price [2005] NSWCCA 285
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Saunders v R [2022] NSWCCA 174
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142