Citation: Regina v Bell [2002] NSWCCA 2 revised - 28/02/2002
Court: New South Wales Court of Criminal Appeal
Date: 1 February 2002
Judges: Handley JA, O'Keefe J, Smart AJ
Background
The applicant was convicted after trial on 28 sexual offences against five boys under the age of 16, involving charges of homosexual intercourse with a male between 10 and 18 years, indecent assault, and related offences. Following those jury verdicts, he pleaded guilty to a further 16 offences on a second indictment involving 13 additional victims, and asked for 31 further offences to be taken into account on sentencing. In total, 75 offences were committed against 18 boys over a period spanning approximately 1978 to 1991.
The applicant had previously filed a Notice of Abandonment of an earlier appeal against his convictions. He subsequently sought leave to withdraw that notice, an extension of time to appeal out of time, and leave to appeal against the convictions. He appeared in person before the Court of Criminal Appeal.
The sentencing judge imposed a complex series of cumulative and concurrent sentences. The primary sentences included a fixed term of four and a half years, a further fixed term of three and a half years, and a head sentence of six years with a minimum term of two and a half years, resulting in a total effective sentence extending to May 2011.
Legal Issues
- Whether the applicant should be granted leave to withdraw his Notice of Abandonment of the earlier conviction appeal
- Whether leave to appeal against the convictions out of time should be granted
- Whether alleged fresh evidence warranted reopening the matter, where the relevant facts were known at the time
- Whether tendency and coincidence evidence had been properly admitted at trial
- Whether the trial judge erred in refusing to order separate trials
- Whether adverse pre-trial and trial publicity had caused a miscarriage of justice, notwithstanding jury directions
- Whether the jury's verdicts were reasonable and supported by the evidence
- Whether the witnesses' credibility was undermined by alleged discrepancies and difficulties in dating events from many years earlier
- Whether the potential for victims' compensation claims by complainants contaminated their evidence
Decision
The Court refused leave to withdraw the Notice of Abandonment and refused leave to appeal against convictions out of time. Smart AJ (with Handley JA and O'Keefe J agreeing) concluded that even if those procedural hurdles had been overcome, the appeal against conviction would have been dismissed in any event.
On the question of alleged fresh evidence, the Court found that the relevant facts had been known to the applicant at the relevant time and therefore did not meet the threshold for fresh evidence capable of supporting withdrawal of the abandonment.
The Court rejected challenges to the admission of tendency and coincidence evidence, found no error in the trial judge's refusal to order separate trials, and dismissed concerns about witness credibility arising from difficulties in dating events that had occurred many years earlier. The Court observed that such difficulties are an ordinary feature of proceedings involving historical sexual offences against children.
On the publicity ground, the Court accepted that there had been adverse pre-trial and trial publicity, but found that appropriate jury directions had been given to overcome its potential effect. On the victims' compensation issue, the Court noted that a victim's legal entitlement to claim compensation does not contaminate that person's evidence, and that the evidence would only be tainted if it were driven by a desire to obtain money regardless of the truth. No credible evidence of collusion among complainants to that end was established. The Court concluded that the verdicts were reasonable and amply supported by the evidence, and that no miscarriage of justice had occurred.
Orders Made
- Leave to withdraw Notice of Abandonment of appeal against convictions refused
- Leave to appeal against convictions out of time refused
Key Takeaways
- A victim's exercise of a legal right to claim victims' compensation does not, of itself, contaminate that victim's evidence; contamination arises only where the evidence is shown to be driven by financial motivation regardless of the truth.
- Difficulties in precisely dating historical sexual offences that occurred many years before trial do not, without more, undermine the credibility of complainants or render jury verdicts unreasonable.
- In dismissing the conviction challenge, the Court of Criminal Appeal confirmed that adverse pre-trial and in-trial publicity does not automatically give rise to a miscarriage of justice where the trial judge has given appropriate directions to the jury.
- No error was established in the admission of tendency and coincidence evidence, or in the refusal to order separate trials, in proceedings involving multiple complainants and an extended pattern of offending.
- Where an applicant seeks to withdraw a Notice of Abandonment on the basis of alleged fresh evidence, the Court will refuse leave if the relevant facts were known to the applicant at the time the notice was filed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including ss 61E, 78K, 78T, 81, 578
- Evidence Act 1995 (NSW)
Cases:
- R v Cartwright (1989) 17 NSWLR 243
- R v Jeffery (NSWCCA, unreported, 16 December 1993)
- R v Brandy (NSWCCA, unreported, 28 October 1996)
- R v Combe (NSWCCA, unreported, 24 April 1997)
- R v Young [1999] NSWCCA 275
- R v Lock (1997) 91 A Crim R 356
- R v M J White [1999] NSWCCA 336
- R v Smith [2000] NSWCCA 468
- R v Giam (1994) 104 A Crim R 426
- S v The Queen (1989) 168 CLR 266
- Pfennig v The Queen (1995) 182 CLR 461
- Hoch v The Queen (1988) 165 CLR 292
- R v PH (NSWCCA, unreported, 4 March 1994)
- R v Milat (NSWCCA, unreported, 26 February 1998)
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Gipp v The Queen (1998) 194 CLR 106
- Fleming v The Queen (1998) 197 CLR 250
- R v Bell (NSWCCA, unreported, 8 October 1998)