Citation: R v Davis [1999] NSWCCA 15 revised
Court: NSW Court of Criminal Appeal
Date: 24 February 1999
Judge(s): Spigelman CJ; Wood CJ at CL; McInerney J
Background
The appellant was convicted by a jury in the District Court at Muswellbrook of three sexual offences against a nine-year-old child: indecent assault, sexual intercourse with a child under ten, and incitement of a child under ten to commit an act of indecency. The offences were alleged to have occurred on the same day in May 1996 at the appellant's home, where the child had been staying overnight.
The appellant was sentenced to a minimum term of six years' penal servitude with an additional term of two years on the principal count, with concurrent fixed terms of two years on the remaining counts.
He appealed to the Court of Criminal Appeal against the conviction and sought leave to appeal against the severity of his sentence.
Legal Issues
- Whether the trial judge gave sufficient directions to the jury about the reliability of the child complainant's evidence, including whether a warning under s 165 of the Evidence Act 1995 (NSW) was required
- Whether the trial judge's directions regarding the appellant's election not to give evidence were adequate
- Whether the verdict was unsafe and unsatisfactory
- Whether the sentence was manifestly excessive
Decision
Directions on the complainant's evidence: The Court refused leave to argue this ground. Wood CJ at CL, with whom the other judges agreed, held that the adequacy of a summing-up must be assessed in the context of the trial as a whole. A trial judge is not required in every case to repeat each point made by defence counsel or to catalogue all relevant evidence. Counsel who want more from the judge by way of evidentiary summary or submissions should say so at the time. On the question of a s 165 reliability warning, the Court confirmed that such a warning is discretionary in the absence of a party's request: the obligation under s 165(2) only arises when a party in a jury trial actually requests it. Otherwise, the judge must assess whether the circumstances genuinely call for such a warning in fairness to the accused.
Directions on the election not to give evidence: The Court accepted that a proper direction ordinarily requires mention of the possibility that an accused may have legitimate reasons for remaining silent. The trial judge's omission to refer to that possibility was an error. However, the Court found that no miscarriage of justice resulted. The Court also addressed whether the appellant's participation in an ERISP (a recorded police interview) before the jury affected the analysis, concluding that a recorded police interview is not equivalent to sworn evidence at trial and does not necessarily preclude the giving of a direction of the kind discussed in Weissensteiner.
Unsafe and unsatisfactory verdict: The Court found the verdict was not unsafe and unsatisfactory in the extended sense discussed in Gipp, and dismissed this ground.
Sentence: The Court granted leave to appeal against sentence but dismissed the appeal. Wood CJ at CL observed that assessing manifest excess requires reference to the prescribed statutory maximum and the objective circumstances of each case, including the number of victims, the duration of offending, and the nature and extent of the sexual invasion. Penile or vaginal penetration of a child was identified as significantly more serious than many other forms of conduct falling within s 66A. The sentence, while high, was found to be within the accepted range. The three matters raised as "special circumstances" justifying a different proportion between minimum and additional terms (a first custodial sentence, alcohol dependence, and access to treatment programmes) were each rejected, partly because adequate support existed within the prison system and partly because the appellant's maintained denial of the offences cast doubt on his motivation to engage in treatment.
Orders Made
- Leave to appeal against sentence allowed
- Appeal against conviction and sentence dismissed
- Sentence and conviction below confirmed
Key Takeaways
- A trial judge's summing-up must be assessed in the full context of the trial: no obligation exists to rehearse every defence submission or piece of evidence in every case, and counsel carry some responsibility to seek further directions if needed.
- Under s 165(2) of the Evidence Act 1995 (NSW), the obligation to give a reliability warning to a jury only arises where a party in a jury trial requests it; absent such a request, the warning remains discretionary and depends on whether fairness to the accused calls for it.
- A direction on an accused's election not to give evidence will ordinarily need to acknowledge that legitimate reasons may exist for silence, but an omission to do so will not automatically produce a miscarriage of justice.
- An accused's participation in an ERISP that is before the jury does not necessarily displace the need for a Weissensteiner-style direction, as a recorded police interview is not equivalent to sworn evidence at trial.
- In dismissing the sentence appeal, the Court confirmed that comparisons with sentencing statistics and careful attention to the objective circumstances of each individual case are the appropriate framework for assessing whether a sentence for child sexual offences is manifestly excessive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 61O(2), 405AA
- Evidence Act 1995 (NSW), ss 20, 66, 165
Cases:
- RJC (NSW CCA, 18 August 1998)
- Zorad (1990) 19 NSWLR 91
- Condon (1995) 83 ACR 335
- Domican (1992) 173 CLR 555
- Williams (NSW CCA, 23 February 1999)
- BD (1997) 94 ACR 131
- OGD (1997) 98 ACR 151
- Bargwanna (NSW CCA, 15 June 1998)
- Weissensteiner (1993) 178 CLR 217
- Gipp (1994) 72 ALJR 1012
- Marr (NSW CCA, 4 March 1993)
- H (1994) 74 ACR 41
- Boyd (NSW CCA, 25 July 1995)
- Brooker (NSW CCA, 21 February 1996)
- Moore (NSW CCA, 12 April 1994)
- Walker (NSW CCA, 26 August 1994)
- Latu (NSW CCA, 6 July 1993)
- Ibbs v The Queen (1987) 163 CLR 447