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Court of Criminal Appeal 26 June 2002

R .v. TO [2002] NSWCCA 247 revised - 5

[2002] NSWCCA 247

Also reported as (2002) 131 A Crim R 264
Sexual offences
CRIMINAL LAW EVIDENCE OF INDENTIFICATION PARADE WHETHER PROPERLY ADMITTED CRIMINAL LAW DNA EVIDENCE WHETHER PROPERLY ADMITTED

Citation: R v TO [2002] NSWCCA 247; (2002) 131 A Crim R 264
Court: NSW Court of Criminal Appeal
Date: 26 June 2002
Judge(s): Sheller JA, Barr J, Greg James J

Background

The appellant was convicted by a jury in the District Court on four counts of sexual intercourse without consent in circumstances of aggravation, the aggravation being the use of a knife. The offences were committed against three complainants across separate incidents between 1994 and 1996.

At first instance, Payne DCJ sentenced the appellant to a total effective sentence of 23 years with a minimum term of 16 years. The appellant challenged both the convictions and the sentences on appeal to the Court of Criminal Appeal.

The appeal raised concerns about the conduct of a police identification parade held at Campsie Police Station on the night of the appellant's arrest, as well as the admissibility of DNA evidence relied upon at trial.

  • Whether the trial judge erred in admitting identification parade evidence under ss 137 and 138 of the Evidence Act 1995, given the alleged composition irregularities in the parade
  • Whether the trial judge erred in refusing to withdraw the identification evidence from the jury during trial
  • Whether the DNA evidence was properly admitted, with particular reference to whether an appropriate database was used
  • Whether the total effective sentence was manifestly excessive and contrary to the totality principle

Decision

Identification parade evidence: The core factual dispute concerned whether the participants in the parade were sufficiently similar in appearance to the appellant. Evidence suggested that a majority of participants may have been Korean, while the appellant was Vietnamese. The trial judge preferred the interpreter's evidence that approximately seven Koreans were present, but nonetheless found that the probative value of the evidence was not outweighed by any danger of unfair prejudice for the purposes of s 137. The Court of Criminal Appeal agreed that the trial judge's approach was within her discretion, and no error was established in the admission or retention of that evidence.

DNA evidence: The appellant challenged the admissibility of DNA evidence, arguing that the database used for comparative analysis was not appropriate in the circumstances. The Court of Criminal Appeal found no error in the trial judge's ruling admitting the DNA evidence. The grounds relating to its admission, including the database challenge, were dismissed.

Sentence: The appellant conceded that the individual sentences were within range, but submitted that the cumulative effect was crushing and failed to reflect totality. Counsel also acknowledged a structural difficulty: the sentencing court lacked the power to impose partially concurrent and partially consecutive sentences, making strict compliance with High Court guidance on accumulation technically impractical. Barr J concluded, ultimately as a matter of impression, that the total effective sentence was not beyond what the criminality warranted, and that no error had been demonstrated.

Orders Made

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

Key Takeaways

  • An identification parade is not automatically inadmissible because its participants may not share identical ethnic or national backgrounds with the accused; the trial judge retains a discretion under s 137 of the Evidence Act 1995 to weigh probative value against the risk of unfair prejudice on the particular facts.
  • Sufficient evidence existed in the trial record to support the trial judge's conclusion that the composition irregularities in the parade did not render the identification evidence more prejudicial than probative.
  • The Court of Criminal Appeal confirmed that a challenge to DNA evidence on the basis of the database used will not succeed without establishing that an inappropriate database was in fact applied.
  • Where a sentencing court is structurally constrained from implementing partial concurrency, the totality principle does not automatically require wholly concurrent sentences; the ultimate assessment remains one of impression directed at whether the total reflects the overall criminality.
  • In dismissing the sentence appeal, the Court found that a minimum term of 16 years and total effective sentence of 23 years for four aggravated sexual assaults involving a knife, committed against multiple complainants on separate occasions, fell within the permissible range.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 114(2), 137, 138
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 55

Cases:
- Alexander v The Queen (1981) 145 CLR 395
- R v Fischer [2001] NSWCCA 380
- R v North (NSW Court of Criminal Appeal, 4 December 1998, unreported)
- Festa v The Queen [2001] HCA 72
- R v Milat (1996) 87 A Crim R 446
- R v Pantoja (1996) 88 A Crim R
- Pearce v The Queen [1998] HCA 57
- Mill v The Queen (1988) 166 CLR 59