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Tendency and Coincidence Evidence

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A general heading that is given to this type of evidence is called, “propensity” evidence – generally, evidence of this nature is adduced to prove that that an accused has a committed other past (either charged or uncharged) acts of the same or similar nature; or to place evidence into context. The most common use of this type of evidence is tendency and coincidence evidence in sexual assault trials. If it is proven that a person has a particular tendency or that the acts committed by the accused were so similar, so as not to be coincidental then that is another piece of circumstantial evidence that the jury can use to reason that the accused committed the offence/s charged. Further, this type of evidence can also potentially be used by a jury to assess witnesses credibility, if the propensity evidence is accepted.  

 

Evidence of other uncharged acts can be raised against an accused depending upon the use or purpose of the tender of the evidence, for example:

 

 

 

There is a further safe guard under s101 of the Evidence Act 1995, in that tendency or coincidence evidence cannot be adduced by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. Further, before such evidence is admissible it is incumbent for the prosecution to prove non-communication or collusion between the witnesses: see Hoch v The Queen [1988] HCA 50

 

 

 

Two cases (that are set out below) that demonstrate the rationale or reasoning behind tendency and coincidence evidence are: R v MM [2014] NSWCCA 144 and Versi Peter v R [2014] NSWCCA 206. Both of these cases being sexual assault cases where the tendency relied upon was that the accused had a sexual interest in the complainant. The case of Versi was appealed to the High Court however, special leave was refused by the High Court on the 14 August 2014.

 

The appeal to the High Court in the case of Versi attempted to rely upon the inconsistency between the trial judges directions and the Court of Criminal Appeal’s reasoning which essentially relied upon the improper reasoning that the judge’s directions were attempting to prevent. Hence, it possible that the jury reasoned in the same way, which demonstrates potential misuse of the evidence by the jury; which is essentially the definition of prejudicial evidence (R v Ford [2009] NSWCCA 306, R v Suteski [2002] NSWCCA 509 and R v MM [2014] NSWCCA 144).

 

However, to the author’s mind despite the potential improper reasoning against the trial judge’s directions, the directions were overly favourable to the accused. The crown should have been able to rely upon tendency across all counts and coincidence evidence (for count 2 – which was allowed). As the tendency evidence (if accepted) is potentially another circumstantial factor or piece of evidence that can be taken into account against the accused. Further, the jury should have been directed as to how such evidence could have been used in regards to assessing the credibility of witnesses.

 

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R v MM [2014] NSWCCA 144 (30 July 2014)

 

 

Court of Criminal Appeal

New South Wales

 

Case Title:

R v MM

 

 

Medium Neutral Citation:

[2014] NSWCCA 144

 

 

Hearing Date(s):

8/07/2014

 

 

Decision Date:

30 July 2014

 

 

Before:

Emmett JA; Price J; Fullerton J

 

 

Decision:

 

1 The appeal be allowed.

 

2 The decision of Neilson DCJ on 8 April 2014 to reject the evidence sought to be admitted be set aside.

 

3 The matter of admissibility of evidence be remitted to the District Court for determination in accordance with these reasons.

 

 

Catchwords:

CRIMINAL LAW – evidence – tendency evidence – admissibility – whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the respondent pursuant to s 101(2) of the Evidence Act 1995 (NSW) – whether judicial directions may ameliorate any prejudicial effect

CRIMINAL LAW – evidence – context evidence – admissibility – whether evidence of the respondent’s sexual mistreatment of the complainant other than on the occasion charged on the indictment made a relevant contribution to the context of the events charged in the indictment – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent pursuant to s 137 of the Evidence Act 1995(NSW)

 

 

Legislation Cited:

Crimes Act 1900 (NSW), ss 61D, 71, 78A

Criminal Appeal Act 1912 (NSW), s 5F(3A)

Evidence Act 1995 (NSW), ss 97, 101, 137

 

 

Cases Cited:

DAO v R [2011] NSWCCA 63; 81 NSWLR 568

DJV v R [2008] NSWCCA 272; 200 A Crim R 106

Gilbert v R [2000] HCA 15; 201 CLR 414

HML v R [2008] HCA 16; 235 CLR 334

House v R [1936] HCA 40; 55 CLR 499

KJS v R [2014] NSWCCA 27

Sokolowskyj v R [2014] NSWCCA 55

R v Ford [2009] NSWCCA 306; 201 A Crim R 451

R v Suteski [2002] NSWCCA 509; 56 NSWLR 182

 

 

Category:

Principal judgment

 

 

Parties:

Regina (Appellant)

MM (Respondent)

 

 

Representation

 

 

 

– Counsel:

Counsel:

S Dowling SC with A Sathanapally (Appellant)

T Gartelmann (Respondent)

 

 

– Solicitors:

Solicitors:

Office of the Director of Public Prosecutions (Appellant)

Garden & Montgomerie Solicitors (Respondent)

 

 

File Number(s):

2011/261524

 

 

Decision Under Appeal

 

 

 

– Court / Tribunal:

District Court

 

 

– Before:

Neilson DCJ

 

 

– Date of Decision:

08 April 2014

 

 

– Court File Number(s):

2011/261524

 

 

Publication Restriction:

Nil

 

 

 

JUDGMENT

 

1. THE COURT: This appeal is brought by the Crown under s 5F(3A) of the Criminal Appeal Act 1912 (NSW). Section 5F applies to, amongst other proceedings, proceedings for the prosecution of offenders on indictment in the District Court. Under s 5F(3A), the Attorney General or the Director of Public Prosecutions may appeal to this Court against any decision or ruling on the admissibility of evidence if the decision or ruling eliminates or substantially weakens the prosecution’s case. The present appeal concerns the admissibility of evidence sought to be tendered by the Crown in the prosecution of the respondent for offences under s 61D and s 78A of the Crimes Act 1900 (NSW), as they existed at the relevant time. The Crown sought to rely on the evidence as tendency evidence and as context evidence as well as constituting general admissions.

2. It is common ground that the rejection of the evidence would substantially weaken the prosecution case against the respondent.

Background

 

1. On 10 August 2011, the respondent was charged with one count of carnal knowledge of a child in 1973 or 1974, in contravention of s 71 of the Crimes Act. The child was the respondent’s sister. She was aged between 10 and 11 at the time of that offence. The respondent was aged 17 or 18. The respondent pleaded guilty to that offence in the Local Court on 11 May 2012.

2. The respondent was also charged with one count of sexual intercourse without consent, in contravention of s 61D of the Crimes Act, and with an alternative count of incest, in contravention of s 78A of the Crimes Act. At the time of that alleged offending (between September and December 1981), the complainant was aged either 18 or 19, her birthday being in October.

3. Section 61D of the Crimes Act provided that a person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to penal servitude, the maximum term of imprisonment varying according to whether the other person is under the age of 16 years. Under s 78A of the Crimes Act, so far as this case is concerned, a male who has carnal knowledge of his sister was liable to penal servitude for seven years.

4. The respondent was arraigned on 7 April 2014 in the District Court in respect of both offences and entered pleas of not guilty.

5. On 2 April 2014, the Director of Public Prosecutions gave notice to the respondent’s solicitors that the prosecution intended to adduce evidence of tendency pursuant to s 97(1) of the Evidence Act 1995 (NSW) in proof of both charges (the Tendency Notice). The Tendency Notice stated that the respondent was the person whose tendency was the subject of the evidence intended to be adduced and that the tendency sought to be proved was the respondent’s tendency to have a particular state of mind, namely a sexual interest in the complainant, and to act in a particular way, namely to have sexual intercourse with her.

6. On 7 April 2014, the respondent was arraigned before Neilson DCJ and entered pleas of not guilty to both charges. On the application of the Crown, his Honour was asked to determine the admissibility of the evidence identified in the Tendency Notice, and other evidence going to proof of the respondent’s continued sexual interest in and sexual misconduct towards the complainant before the case was opened to the jury. He rejected the tender of the evidence in its entirety.

7. The Crown appeals from that ruling, under s 5F(3A) of the Criminal Appeal Act.

8. In the Crown’s amended notice of appeal, which was filed in Court at the commencement of the hearing of the appeal without objection, the following grounds, as understood in the context of the submissions filed by the parties, are relied on:

◦                      His Honour erred in finding that evidence of the respondent’s sexual mistreatment of the complainant other than on the occasion charged on the indictment was not admissible as context evidence because it made no relevant contribution to the context of the events charged as Counts 1 and 2 on the indictment.

◦                      His Honour erred in excluding the evidence as tendency evidence.

◦                      His Honour erred in excluding evidence of the respondent’s admissions to carnal knowledge of the complainant.

◦                      His Honour erred in excluding the respondent’s general admissions in a lawfully intercepted telephone communication and his ERISP.

9. The Crown seeks orders vacating the rulings made on 8 April 2014 and orders that:

◦                      The evidence of the complainant of any sexual acts that did not relate to a count on the indictment is admissible as context evidence.

◦                      The tendency evidence sought to be led is admissible.

◦                      The respondent’s plea of guilty to the offence under s 71 is admissible as an admission that he had sexual intercourse with the complainant when she was aged 10.

◦                      The respondent’s general admissions in a recorded telephone conversation with the complainant of 25 July 2011 and his interview of 9 August 2011 are admissible.

The Evidence Sought to be Tendered by the Crown

 

1. The Tendency Notice identified the tendency evidence intended to be adduced by the Crown as consisting of the following:

◦                      Parts of four statements made by the complainant to police in early January 2011, detailing sexual activity between the respondent and the complainant during the period from 1973 to 1976.

◦                      Transcript of a lawfully intercepted telephone conversation between the complainant and the respondent on 25 July 2011, during which the respondent admitted to having had unwanted sexual contact with her when she was “a kid”, to “get his rocks off”.

◦                      A statement dated 25 November 2011 by a woman who had at relevant times been living with the respondent as his partner in which she reports that he had told her that there had been “incest between him and [the complainant]” but that he did not rape her.

◦                      Transcript of an electronically recorded interview of the respondent on 9 August 2011, in which he made various admissions when the police informed him that the complainant alleged that he had sexually assaulted her from 1973 through to 1980. The respondent said that he was exposed to magazines with a sexual content and that “everything was about sex at the time. It was the 60s and 70s”. The respondent said that he regretted having made “sexual advances” to the complainant. The respondent agreed that he had had penile vaginal intercourse with the complainant and digitally penetrated her. He said that he did not know when that had occurred or how many times it had occurred. He agreed that the complainant was somewhere between 11 and 13 at the time.

◦                      Evidence that the respondent pleaded guilty in the Local Court to the offence under s 71.

◦                       

2. In the event that the evidence was not admitted as tendency evidence, the Crown sought its admission as context evidence. The Crown also submitted that certain aspects of the evidence constituted general admissions, not of the offences charged, but in respect of earlier sexual activity between the complainant and the respondent. That was not pressed by the Crown on the hearing of the appeal and it is therefore unnecessary to deal with the admission of the evidence on that basis.

3. We are satisfied that the evidence was admissible as both tendency evidence and context evidence. In order to make clear the reasons for so finding, it is necessary to describe in a summary way the evidence that it was anticipated the complainant would give as outlined in her four statements.

The Complainant’s Evidence in Summary

 

1. During 1971, the complainant moved with her family to a house on the outskirts of Sydney, where she lived until 1983. When she was aged 8 or 9 and the respondent was aged 15, he would pinch her nipple through her clothes while they were swimming in the family swimming pool. When the complainant was aged 10 or 11 in 1973 or 1974, the respondent, who was then aged 17 or 18, would drive her to dance classes at which time he began putting his hand on her crotch, which later progressed to digital penetration of her vagina. On occasions the respondent would stop the car and rub his penis on the complainant’s vagina. The complainant cried and asked him to stop. She said that that occurred five or six times and on those occasions the respondent would ejaculate into a tissue.

2. The respondent also penetrated the complainant’s vagina with his penis in the car for one to three minutes and the respondent would ejaculate into a tissue. The complainant told the respondent to stop. One of those occasions was the subject of the charge under s 71 to which the respondent pleaded guilty.

3. In March 1975, the older brother of the complainant and the respondent was killed in a car accident. The complainant commenced high school at the beginning of 1975. On occasions when the respondent would drive her to school, he would pull over and attempt to have intercourse with her. The complainant took to wearing jeans under her school uniform and would tell the respondent that she had her period to deter him from assaulting her. On those occasions, the respondent would try to make the complainant masturbate him or touch him by grabbing her by the wrist and moving her hand towards his crotch.

4. Towards the middle of 1975, the complainant told the respondent that she was going to tell their parents what he had been doing to her. He persuaded her not to because it would mean that their parents would lose another son. The complainant said that she loved her parents deeply and did not want them to suffer, so she did not tell them about the respondent’s conduct towards her.

5. In 1976, after she had turned 14, the complainant began a relationship and convinced her parents to let her boyfriend move in with the family. She said that she did so as an “effective way” of keeping the respondent away from her. The sexual and indecent assaults ceased for a time.

6. Also in 1976, the respondent moved out of the family home to live with his girlfriend. However, they moved back to the family home in 1977, where they lived until 1978, when they separated. At about that time the complainant’s then boyfriend also moved out, with the result that the complainant and the respondent again shared the family home with their parents.

7. In about 1979, the respondent began driving the complainant to her TAFE course, which she attended two evenings a week. The respondent took her on his motorcycle and would put his hand on her knee while they drove. The complainant would then “smack or punch his hand hard”. The respondent would also drive the complainant to the city on weekends. On those occasions, he would also try to sexually touch the complainant but she resisted.

8. At some time in 1979, the respondent moved away from the family home with a woman with whom he had a child the following year. (It was to this woman that the respondent later admitted “incest” with the complainant.) Also in 1979, the complainant started a relationship with another man who moved into the family home. In December 1980, the complainant gave birth to her first child. In mid-1981, that relationship broke up and the father of the child moved out. At about that time, the respondent and his partner built a house on a vacant block of land adjacent to the family home, in which they resided.

9. At that time, the respondent was working as a carpenter. Between September and December 1981, he would regularly come into the complainant’s bedroom at about 5.00 am before he started work. The complainant would often wake to find the respondent in bed with her. She objected and told him to get out. However, she did not scream or shout, because she did not want to upset her parents and did not want them to separate. The complainant says that penile vaginal intercourse occurred four or five times and on these occasions the respondent would ejaculate into a tissue.

  1. The complainant said that she began locking the doors and windows of the house to prevent the respondent coming in, but her mother left the laundry door unlocked at night so that the respondent could come in to have his breakfast without waking his partner and his children. The complainant then put a lock on her bedroom door to prevent the respondent from getting into her bedroom.
  2. In 1981, the complainant’s parents left the family home and moved to northern New South Wales, leaving the complainant in the family home with her child. At night she would lock the windows and doors and have her child sleep with her to deter the respondent. When the respondent would knock on her window, she would shout at him to go away. There was no other episode of sexual offending alleged after that time.

The Evidence as Context Evidence

 

1. For reasons that are not clear, his Honour first considered the admissibility of the evidence as context evidence. He referred to the authorities dealing with the admission of relationship or context evidence, including, in particular, DJV v R [2008] NSWCCA 272; 200 A Crim R 106 where this Court emphasised that in order to determine the probative value of evidence tendered for that purpose, it is necessary to consider whether other evidence in the trial, and the issues to which that evidence gives rise, makes it relevant to prove the “true context” in which the alleged offending occurred including, where a sexual assault is alleged, a lack of immediate complaint or resistance.

2. After noting that the complainant in this case could explain her lack of complaint when the respondent sexually assaulted her in 1981 and her lack of resistance on those occasions by her fear of family breakdown, the primary judge concluded that the evidence made “no relevant contribution to the context of the event charged in the indictment”. No other reasoning was given for rejecting the evidence as context evidence. That approach both failed to address the interrelated bases upon which the Crown contended that the evidence was relevant and failed entirely to appreciate its significance to the issues likely to be raised at trial, including the complainant’s credibility.

3. Evidence of the relationship between a complainant and an accused, including evidence of other uncharged sexual acts, may be admitted to place charged offences in context and, in that way, to assist jurors to understand a complainant’s evidence where it might otherwise seem difficult to comprehend. It also may be admitted to explain what might otherwise seem to a jury to be an inexplicable, or fanciful, or single isolated incident. The probative value of context evidence may be substantial if, without it, the jury would be left with an unrealistic and entirely misleading picture of an apparently isolated assault (KJS v R [2014] NSWCCA 27 at [38]).

4. If a complainant is not permitted to place in a meaningful context the incidents about which complaint is made, and where s/he expresses no surprise or protest, or makes no immediate complaint when sexually or indecently assaulted, that conduct may be more understandable if the assaults are a common occurrence or the continuation and culmination of a consistent course of conduct over a period of years (see, eg, HML v R [2008] HCA 16; 235 CLR 334 at [2][11]; KJS at [32]-[41]).

5. In addition, the evidence might provide some explanation for the failure of a complainant to make immediate complaint. Without evidence of what in some cases is a slow process of habituating a complainant to unwanted sexual activity, the jury might well find it incredible that after an assault constituted by non-consensual sexual intercourse, no complaint is made (KJS at [32]-[34]).

6. Where evidence is not tendered as tendency evidence but is limited to providing the context in which the offending is said to have occurred (not, as it happens, in this case where the same evidence is tendered as tendency evidence), it is necessary to consider whether any issue has been raised, or is likely to be raised in the trial that makes the evidence relevant. This is necessary both to determine its admissibility and to enable an informed assessment of its probative value and any potential unfair prejudice under s 137 of the Evidence Act (DJV at [36]). Where there is a grave risk of the jury reasoning from context evidence to guilt of the accused in relation to the offences charged despite judicial direction that such reasoning is impermissible, s 137 of theEvidence Act may be invoked and the tender of the evidence rejected (DJV at [37]).

7. In this case, the evidence, when tendered as context evidence, was said to be relevant to the following issues that were likely to be raised in the respondent’s trial:

◦                      Lack of surprise on the part of the complainant when she found the respondent in her bedroom in 1981.

◦                      Lack of resistance to the sexual intercourse that followed.

◦                      The reasons for the complainant’s lack of immediate complaint.

◦                      The possibility that the jury might gain the false impression that the sexual assault occurred “out of the blue”.

◦                      The complainant’s evidence about her lack of consent and the respondent’s knowledge of her lack of consent.

8. His Honour either did not consider these issues at all or gave inadequate consideration to them. On that basis alone, the error contended for by the Crown in his Honour’s rejection of the evidence as context evidence is made out.

The Evidence as Tendency Evidence

 

1. His Honour then considered the admissibility of the evidence as tendency evidence. He noted that the tendency alleged was a tendency of the respondent to have a sexual interest in the complainant and to behave in a particular way with her, namely, to have sexual intercourse with her. His Honour accepted that the complainant’s evidence of the penetrative sexual assaults she had been subjected to as a child and young adolescent established that tendency and that the respondent had the state of mind attributed to him. He was also satisfied that the evidence had significant probative value. Thus, the primary judge was purporting to apply s 97(1)(b) of the Evidence Act. That section provides that evidence of a tendency that a person has or had is not admissible to prove that the person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

2. His Honour then considered s 101(2) of the Evidence Act, which operates as a further precondition to admissibility by providing, in this case, that tendency evidence about the respondent cannot be used against him unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on him.

3. His Honour expressed the view that if the evidence were admitted, the jury would be led to concentrate on the respondent’s past sexual misconduct towards the complainant, rather than the facts in issue in the trial, which we take to mean, so far as concerned the s 61D offence, whether sexual intercourse occurred and, if it did, whether it was consensual and, so far as concerns the s 78 offence, whether the respondent had sexual intercourse with the complainant, consent being no defence to that charge.

4. His Honour then observed that this trial was:

“…one of those cases where no matter how carefully or strongly one crafted directions there is always a possibility that at least one juror would not adhere to those directions and would be mesmerised by the extent of the accused’s past offending conduct”.

 

1. His Honour appears to have considered that the prejudice attaching to the admission of the evidence existed because of the possibility that a juror may disregard the directions on the limited use to which the tendency evidence could be put in considering whether the Crown had proved the guilt of the respondent. His Honour provided no explanation as to what cases he was referring to and why it was that this case was one such case and why, in his view, sufficiently clear and emphatic directions would not address the risk of a juror refusing to abide by judicial direction.

2. His Honour then identified certain facts that he considered attenuated the significance of the probative value of the evidence:

◦                      In the period from 1975/76 to 1981, the complainant went from being 13 or 14 years old to being 19 years old.

◦                      During that period, the complainant had two sexual relationships with young men and had a child.

◦                      The complainant and the respondent were becoming increasingly mature.

◦                      What his Honour described as a “vast difference” between conduct when the respondent was aged between 17 and 20, and conduct when he was aged 26.

3. His Honour gave no reasoned explanation, or any proper analysis, as to why these facts, either in isolation or combination, diminished the probative value of the evidence that he had earlier held to be significant under s 97.

4. He also said that the gap between 1975/1976 and 1981 and the fact that there was little sexual activity, and no sexual intercourse, between the respondent and the complainant during that period, “must be borne in mind”. He provided no explanation as to why this was relevant to an assessment of the probative value of the evidence or why, in the circumstances of this case, the temporal gap was not adequately explained by the fact that the complainant was at that time in a relationship and a young mother and that the respondent had his own sexual partners.

5. His Honour concluded that the prejudicial effect of the evidence was not substantially outweighed by its probative value under s 101(2), and rejected the tender of the evidence as tendency evidence.

6. The prejudicial effect to which s 101(2) is directed must be understood as substantially the same as that to be considered under s 137 (Sokolowskyj v R [2014] NSWCCA 55 at [47]). It is not sufficient that the evidence is harmful to the interests of a defendant because it tends to establish the Crown case. That will be inevitable. Rather, the prejudice must be the risk of harm to the interests of the accused in a way that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way, such as provoking some irrational, emotional or illogical response, or giving the evidence more weight than it truly deserves (R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [56]; R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [116]).

7. In our view, the tendency evidence was highly probative, being critical to a jury’s understanding of the events in 1981 of which the charges on the indictment are representative. Without evidence that the respondent had sexually assaulted the complainant since she was a young child, interrupted only in her late adolescence when they had other sexual partners living in the same house, it would inevitably appear surprising to a jury that the respondent would, in effect “out of the blue”, enter his sister’s bedroom and attempt to have intercourse with her while she was asleep. In the same way, the complainant’s apparent lack of surprise at his conduct would likely be a significant issue in the jury’s assessment of the complainant’s evidence which, without evidence of his persistent sexual mistreatment of her over many years, would invite an uninformed assessment of her credibility.

8. The complainant’s consistent attempts to resist the respondent’s sexual mistreatment of her since she was a child and continuing into her adolescence was clearly relevant to the jury’s assessment of her lack of consent to sexual intercourse as an adult and the respondent’s full appreciation of her lack of consent.

9. Without the Crown being permitted to lead evidence of the earlier assaults, the complainant’s evidence that instead of telling her parents in 1981 that her brother had intercourse with her, she tried to handle the situation by locking the doors and windows of the family home and later installing a lock on her bedroom door and having her small son sleep with her, in effect that she attempted to handle the situation on her own as she had done since she was 10 or 11 years old, could not be readily appreciated. Finally, were the complainant not permitted to give evidence that when she told the respondent in 1975 that she would tell her parents about his sexual mistreatment of her he used the fact of their brother’s death and the terrible effect that that disclosure would have on the family in order to pressure her into silence, her failure to complain in 1981, namely, her fear of causing a family breakdown at that time, would not be able to be properly assessed.

  1. Other aspects of the evidence, being the telephone conversation between the respondent and the complainant, the statement by the respondent’s partner, the record of interview and the guilty plea, contain admissions by the respondent that would make it clear to a jury that the 1981 conduct was not an isolated incident that came out of the blue but was the culmination of years of unwanted sexual conduct by the respondent towards the complainant. Without the evidence of the relationship between the complainant and the respondent over a number of years, the jury would have an entirely distorted and artificial understanding of the events of 1981.
  2. The balancing task required by s 101(2) and s 137 involves the judge identifying the type of prejudicial effect to which the evidence might give rise and explaining why the probative value does or does not substantially outweigh that prejudicial effect (R v Ford at [64]). That balancing exercise requires the judge to consider the ameliorating effect of any directions that may be available and necessary to reduce any prejudicial effect (DAO v R [2011] NSWCCA 63; 81 NSWLR 568 at [104]). There is a fundamental assumption underpinning jury trials that jurors will act in accordance with directions, and directions against propensity reasoning are regarded as effective to ameliorate the potentially prejudicial effect of evidence of other misconduct (Gilbert v R [2000] HCA 15; 201 CLR 414 at [31]-[32]; R v Ford at [139]-[140]).
  3. While the respondent accepts that the primary judge correctly concluded that the evidence had significant probative value, he contends that the issue on this appeal is whether his Honour erred in determining that the probative value of the evidence did not substantially outweigh its prejudicial effect. The respondent contends that his Honour understood the nature of the exercise and took into account matters that were relevant to its determination.
  4. The respondent contends that the fact that he admitted certain aspects of the respondent’s prior conduct relied upon as tendency evidence was not determinative. He submits that the probative value of the evidence depended upon its capacity to affect the determination of the facts in issue, rather than questions of credibility and reliability or weight. Further, he says, the fact that aspects of the respondent’s conduct were admitted by him did not necessarily deprive the evidence of its prejudicial effect (citing Sokolowskyj v R).
  5. The respondent contends that the evidence that he had sexual intercourse with his sister would inevitably have a prejudicial effect. In particular, he says, evidence that he did so when she was a child may have a prejudicial effect of a differing nature and degree and was patently liable to provoke an emotional response on the part of the jury. He contends that the prejudicial effect of such evidence was capable of diverting the jury from a proper analysis of the evidence relating to the counts on the indictment, thereby potentially denying him the benefit of any reasonable doubt. He contends that the primary judge sufficiently identified that possible prejudicial effect of the evidence for the purposes of the necessary determination.
  6. Clearly enough, the evidence, including admissions on the part of the respondent, reveal the tendency asserted in the Tendency Notice and found by his Honour to be established, which is, in turn, highly probative of the question whether the respondent had sexual intercourse with the complainant in 1981 as alleged in the indictment. It is particularly cogent in circumstances where the only time when the respondent was not regularly assaulting the complainant was when he was not living at the home, or when she had a boyfriend living there.
  7. We are satisfied that the evidence has significant probative value in relation to the charges in the indictment and that there is nothing about the evidence that renders its potential for unfair prejudice incapable of amelioration by judicial direction. We do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent.
  8. The respondent submitted, and the Crown accepted, that the basis for appellate review of a determination pursuant to s 101(2) of the Evidence Act must be an error of one the kinds identified in House v R [1936] HCA 40; 55 CLR 499 (see R v Ford at [108]-[110]; DAO at [24], [104], [170]). It is evident from the above discussion that we are satisfied that the primary judge failed to have regard to two relevant considerations, namely, the directions that may have been available to reduce any potential prejudice to the respondent and the reasons for the gap in the respondent’s offending between 1975/1976 and 1981 and that he applied no reasoned analysis to the other aspects of the evidence (set out in [39] above) which attenuated the significance of the evidence. For those reasons, we are satisfied that his discretion miscarried.

Conclusion

 

1. It follows from the above that appeal should be upheld. The primary judge was clearly in error in rejecting the evidence as context evidence and as tendency evidence. We consider that:

◦                      The evidence of the complainant of any sexual acts that did not relate to a count on the indictment is admissible as context evidence;

◦                      The tendency evidence sought to be led is admissible;

◦                      The respondent’s plea of guilty to the offence under s 71 is admissible as an admission that he had sexual intercourse with the complainant when she was aged 10; and

◦                      The respondent’s general admissions in the recorded telephone conversation with the complainant of 25 July 2011 and his interview of 9 August 2011 are admissible.

The orders of the Court should therefore be as follows:

(1) The appeal be allowed.

 

(2) The decision of Neilson DCJ on 8 April 2014 to reject the evidence sought to be admitted be set aside.

 

(3) The matter of admissibility of evidence be remitted to the District Court for determination in accordance with these reasons.

1. During oral argument and in his judgment, his Honour made additional remarks that have recently been the subject of complaint by the Attorney-General to the Judicial Commission. In those circumstances, we consider it appropriate that a different judge preside at the trial.

**********

VERSI Peter v R [2013] NSWCCA 206 (14 November 2013)

 

 

Court of Criminal Appeal

New South Wales

 

Case Title:

VERSI, Peter v R

 

 

Medium Neutral Citation:

[2013] NSWCCA 206

 

 

Hearing Date(s):

16 August 2013

 

 

Decision Date:

14 November 2013

 

 

Before:

Basten JA at [1];

Adams J at [37];

Latham J at [201]

 

 

Decision:

 

(1) Leave to appeal against conviction is granted.

(2) The appeal against conviction is dismissed.

(3) Leave to appeal against the sentences imposed is granted.

(4) Appeal against the sentences is dismissed.

(5) On count 2 of the indictment the appellant’s fixed term is directed to recommence on 14 November 2013 and expire on 23 December 2013.

(6) On count 3 of the indictment, the appellant’s non-parole period is directed to recommence on 14 November 2013 and expire on 23 December 2014, with a balance of term of 12 months commencing on 24 December 2014 and expiring on 23 December 2015.

(7) The appellant is to be released on parole on 24 December 2014.

 

 

Catchwords:

CRIMINAL LAW – appeal against conviction – historical child sexual assault – verdict not unreasonable – errors in trial transcript – corrected by substantial agreement – appellate court not required to listen to transcript

 

EVIDENCE – tendency and coincidence evidence – confusing directions – coincidental “events” – appropriate coincidental reasoning

 

CRIMINAL LAW – appeal against sentence – manifestly excessive – whether sentence practices at the time of the offences should be applied

 

 

Legislation Cited:

Crimes Act 1900

Criminal Appeal Act 1912

Criminal Procedure Act 1986

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Probation and Parole Act 1983

Probation and Parole Regulation 1984

Sentencing Act 1989

 

 

Cases Cited:

AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32

Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284

HML v The Queen [2008] HCA 16; 235 CLR 334

Khoury v R [2011] NSWCCA 118

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348

MPB v R [2013] NSWCCA 213

Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493

Pearce v The Queen [1998] HCA 57 ; 194 CLR 610

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

PWB v R [2011] NSWCCA 84

R v Evans (1987) 8 NSWLR 540

R v Gent [2005] NSWCCA 370; 162 A Crim R 29

R v Hermann (1988) 37 A Crim R 440

R v Jenkins (1999) NSWCCA 110

R v Kennedy [2000] NSWCCA 527

R v Kirkman (1987) 44 SASR 591

R v Maclay (1990) 19 NSWLR 112

R v MJR [2002] NSWCCA 129; (2002) 130 A Crim R 481; (2002) 54 NSWLR 368

R v Morley [1985] WAR 65

R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497

R v O’Brien [1984] 2 NSWLR 449

R v Paivinen [1985] HCA 39; (1985) 158 CLR 489

R v Rogers (1987) 8 NSWLR 236

R v Storey [1978] HCA 39; (1978) 140 CLR 364

R v Watt [1988] HCA 58; (1988) 165 CLR 474

RLS v R [2012] NSWCCA 236

Rosenstrauss v R [2012] NSWCCA 25

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Weiss v R [2005] HCA 81; (2005) 224 CLR 300

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

 

 

Category:

Principal judgment

 

 

Parties:

Peter Versi (Applicant)

Regina (Crown)

 

 

Representation

 

 

 

– Counsel:

Counsel:

A Bellanto QC (Applicant)

P Ingram SC (Crown)

 

 

– Solicitors:

Solicitors:

Nyman Gibson Stewart (Applicant)

Director of Public Prosecutions (Crown)

 

 

File Number(s):

2009/201959

 

 

Decision Under Appeal

 

 

 

– Court / Tribunal:

District Court

 

 

– Before:

Taylor DCJ

 

 

– Date of Decision:

29 March 2012

 

 

– Court File Number(s):

2009/201959

 

 

 

JUDGMENT

 

3. BASTEN JA: The applicant, Peter Versi, was convicted by a jury on two counts of sexual misconduct involving his stepdaughter. He seeks leave to appeal against both his convictions and sentences. Leave is required with respect to the convictions because the grounds do not raise questions of law only:Criminal Appeal Act 1912 (NSW), s 5(1). For the reasons given by Adams J, there should be a grant of leave with respect to each of the convictions and the sentences.

4. Subject to the following qualifications, the appeals should be dismissed for the reasons given by Adams J.

Listening to tape of summing up

  1. Senior counsel for the applicant invited the Court to listen to the whole of the sound recording of the summing up, in order to assess grounds 2, 3 and 7, which allege that the directions with respect to coincidence and tendency evidence were confusing and misleading, as was the summing up generally. Adams J has declined the invitation to listen to the whole of the summing up but has acceded to the invitation to listen to those specific portions relating to coincidence and tendency evidence, to which objection was taken by the applicant.
  2. That approach is a pragmatic response in a case where the specific passages challenged are discrete and of limited duration. Nevertheless, there is a question as to whether as a matter of principle, this Court should accede to such invitations and, if so, in what circumstances.
  3. It is a matter of common experience that transcripts contain inaccuracies which can readily be identified and corrected by those involved in the proceedings. That fact involves no criticism of the highly competent and diligent transcription service: it is easy to mistake or mishear words where the subject matter is unfamiliar. Further, the quality of the sound recording is quite variable. Given these factors, it is commonplace for the trial judge to correct the transcript of the summing up, after it is made available to the court. However, that does not always occur and did not occur in the present case, possibly because the trial was presided over by an acting judge. As in the case of a transcript of evidence, corrections are made, not to remove infelicities of expression, but to ensure that what is recorded is what was in fact said. If there is a dispute as to what was said and the transcript has not been corrected by the trial judge, it may well be appropriate for the appeal court to listen to the sound recording. However, in the present case a corrected version of the transcript was prepared by the solicitors for the applicant and was provided to this Court without objection from the respondent. This Court should rely upon the corrected version, there being no dispute as its accuracy.
  4. There are omissions even in the corrected version. In some cases, if the omissions were thought to be of material words, it might be proper for this Court to listen to the recording to form its own view (to the extent possible) as to the missing words. However, if those who were present have been unable to decipher the recording, it would usually be unlikely that this Court would be better able. In the present case, it was not contended that any particular words noted as untranscribable were of critical importance.
  5. The Court is left in the position where it is being asked to listen to the recording, not to resolve any dispute as to what was said, nor to fill any omission, but to form a view as to whether the jury would have misunderstood or misheard directions which were, in their terms, adequate. That is a course which the Court should adopt only with great caution and when satisfied that some benefit can be obtained. One reason for such caution is that an appellate court cannot be sure that the sound recording will give an accurate impression of that which the jury heard. Factors such as the placement of the microphone will not be known.
  6. Further, although a judge’s summing up is a discrete part of the trial, it is often necessary to consider it in the overall context of the trial, which may include consideration of the evidence and the addresses of the prosecutor and defence counsel. If it were thought desirable to invite the appeal court to listen to the summing up, the practice might extend to inviting the court to listen to other aspects of the trial. There is an issue, however, as to the extent to which it is appropriate to invite an appeal court to place itself, as closely as possible, in the shoes of the jury. When addressing a ground challenging a verdict on the basis that it was unreasonable, or could not be supported, having regard to the evidence, it may be necessary for the appeal court to review the whole of the evidence. Nevertheless, the court must always make allowance (as indeed it must with a judge only trial) for the advantages of being present during the whole of the trial. The appeal court is not to replace the jury for the purposes of reconsidering the case afresh. Its role is more limited.
  7. Finally, such a request must be approached with caution on a pragmatic basis. A limited request in one case will expand in the next. If trials are video recorded in the future, appeal courts will be invited to watch the video recording rather than listen to the sound recording. The time required to deal with appeals will rapidly exceed the available resources.
  8. Bearing these factors in mind, I am not persuaded that this is a case in which it is appropriate to accede to the applicant’s request to listen to either the whole sound recording of the summing up, or discrete portions. The adequacy of the directions should be assessed on the basis of the agreed transcript.

Coincidence evidence

4. The rule with respect to the admissibility of coincidence evidence is formulated in the negative, namely that coincidence evidence is not admissible unless two conditions are satisfied: Evidence Act 1995 (NSW), s 98(1). The first condition is procedural (the giving of notice in writing); the second involves the satisfaction of the court that the evidence has “significant probative value”. The application of these conditions was not raised by the grounds of appeal concerning the directions as to the use of the evidence. However, the way in which the evidence can be used, if admitted, is identified in s 98(1) in the following terms (simplified to identify the principle), namely the purpose of the proposed tender is to prove “that a person did a particular act … on the basis that, having regard to any similarities in the events or the circumstances in which they occurred … it is improbable that the events occurred coincidentally”. Evidence adduced for that purpose is described in the Evidence Act as “coincidence evidence”: Dictionary, Pt 1 coincidence evidence. The term covers much of what under general law principles was described as “propensity” or “similar fact” evidence, although propensity evidence is also covered by what is now “tendency” evidence, dealt with in s 97. It is admissible if it has sufficient probative value, despite the fact that (prejudicially) it reveals the commission of some other offence, with which the accused is not charged, with the concomitant danger that the jury may reason improperly from satisfaction that the accused committed the uncharged offence to satisfaction that he was guilty of the offence charged. The term “coincidence” is not always apt to describe that which is otherwise improbable.

5. The evidence of the complainant with respect to count 2 was that the applicant asked the complainant to assist him with putting cream on his penis and testicles. The other incident, of which evidence was given by Ms SD1, to whom the applicant was also a stepfather when she was an adolescent, involved him inviting her into the bathroom and requesting her to hold his erect penis “so that he could fix his hernia”. Her evidence was that when she took hold of his penis he “proceeded to sort of grind his hips against my hand”.

6. The question for the jury was whether the incident with the complainant in fact occurred as she described. As explained in Pfennig v The Queen [1995] HCA 7;182 CLR 461 at 482 (Mason CJ, Deane and Dawson JJ):

“The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred.”

 

  1. Section 98 provides that “[e]vidence that 2 or more events occurred is not admissible” for the identified purpose unless the conditions already noted are fulfilled. A note to the section provides that “[o]ne of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding”: needless to say, s 98 is not a proscription of evidence of the event the subject of the charge. It is to be understood as a conditional exclusion of evidence of events involving misconduct by the accused on one or more occasions other than that the subject of the charge. That which is significantly probative of the charge is not the fact of other complaints, but proof that the other events occurred.
  2. No doubt there is a sense in which it is true to say that, absent communication between the witnesses, which might give rise to suggestion, collaboration or concoction, it is highly improbable that two individuals would describe separate events involving similar conduct on the part of the accused, unless that conduct had occurred. However, s 98 distinguishes between “evidence” and “events”. It is the improbability that “the events occurred coincidentally” (that is without a causal connecting factor, namely the involvement of the accused) which is the focus of the section. It would be artificial to base an exclusionary rule upon the similarity of evidence about one event with the similarity of evidence about another. The section does not, in any event, do that.
  3. This analysis departs linguistically from that of Adams J below, but not so as to affect the conclusion.
  4. I agree with Adams J that a direction that the jury be satisfied beyond reasonable doubt as to the allegations made by SD1 may have been unduly favourable to the applicant. It was not necessary for the jury to consider the evidence of the complainant and SD1 independently before considering the cumulative effect. It is possible that the jury might have entertained a reasonable doubt as to the truth of each allegation, considered alone: but if that were so, the jury would have been entitled to consider both together in order to be satisfied beyond reasonable doubt that the conduct the subject of the charge occurred, as described by the complainant. As explained by Gleeson CJ in HML v The Queen [2008] HCA 16; 235 CLR 334 at [29], generally “the law as to standard of proof applies to the elements of the offence, not particular facts.” Again speaking generally, “the indispensable link case apart, it is ordinarily neither necessary nor appropriate for a trial judge to give separate directions about the standard of proof of uncharged acts”: at [32]. The “indispensable link” in the present case was the complainant’s evidence as to the subject matter of the charge: the evidence of SD1 formed part of the web of circumstances which rendered it more likely that the complainant’s account was truthful and reliable. The evidence of the complainant and SD1 was, in that sense, mutually corroborative.

Opportunity for suggestion, collaboration or concoction

9. The probative force of the evidence of the two events depended upon the absence of any extraneous explanation. Evidence of opportunity for communication between the witnesses, occurring before they complained, would give rise to at least a possibility of communication about the events and, if not concoction, unconscious suggestion or moulding of memory. Such evidence would almost invariably be raised on the voir dire, as a basis for rejecting the evidence of the misconduct not the subject of a charge. No such issue was raised at trial, either on a voir dire or before the jury, in the cross-examination of either the complainant or Ms SD1. Nor was it raised on appeal.

  1. Absence of opportunity for concoction between two witnesses was not an element of the prosecution case against the applicant. Indeed, mere opportunity might not have affected the probative value of the evidence, absent evidence of actual communication about the allegations. There was, accordingly, no error or potential miscarriage arising from the fact that neither party raised the issue at trial. In those circumstances, it could not properly have been raised on appeal: cf Adams J at [135]-[142]. If raised it would have been rejected as misconceived, there being no error to which a response was required. It was not raised and need not be addressed.

Appeal against sentences

5. The applicant also sought leave to appeal against the sentences imposed for each offence.

6. The less serious offence (count 2) involved an act of indecency with a person under 16 years of age, contrary to the now repealed s 61E(2) of the Crimes Act 1900 (NSW). The maximum sentence for that offence was two years imprisonment. The sentence imposed by the sentencing judge was a period of six months imprisonment, by way of a fixed term.

7. The more serious offence (count 3) was sexual intercourse with a person between 10 years and 16 years of age, whilst under the offender’s authority, contrary to s 66C(2) of the Crimes Act (now repealed). The sentencing judge imposed a period of two years three months imprisonment, with a non-parole period of 15 months. The sentence on this count was fixed to commence three months after the first sentence and was thus cumulative upon 50% of the first sentence. The non-parole period for the second sentence constituted 55% of the sentence period for that offence.

8. It is not in doubt that the applicant was properly to be sentenced according to the law as it stood at the time of the offences.

9. The only relevant ground of appeal was that, “[t]he sentence was manifestly excessive and outside the appropriate range”. There were in fact two sentences and the applicant’s submissions addressed both, and the element of accumulation.

  1. The applicant’s submissions noted that the complainant was aged 11 or 12 years at the time of the first offence, namely count 2. (She was born on 29 January 1974 and the offence was identified in the indictment as occurring between 15 November 1985 and 22 April 1986: she was thus approximately 12 years of age.)
  2. The submissions noted that the conduct was less serious than “an indecent assault”, referring to s 61E(1) of the Crimes Act, as then in force. That was true, however the sentence under s 61E(1) was, relevantly, a maximum term of six years or triple that for the offence charged as count 2.
  3. The submissions also noted that counts 2 and 3 involved two discrete occasions and were not a part of an ongoing course of conduct or persistent abuse. That was so, but that consideration tended to support an element of accumulation.
  4. Count 3 involved the more serious offence, namely sexual intercourse by digital penetration of the vagina. That was said to have occurred in a period commencing at the end of the period with respect to count 2, namely between 20 April 1986 and 31 December 1989. On one view, the seriousness of the offence might have been reduced if the complainant were almost 16 years of age, rather than if she were 12 years of age. However, in resisting any element of accumulation, the applicant submitted that both offences occurred when the complainant was 12 years of age. That implied that the offences occurred within a limited timeframe, but also that the more serious conduct of sexual intercourse occurred when the complainant was younger rather than older.
  5. The applicant did not challenge any particular aspect of the reasoning of the sentencing judge, which set out with some care the objective circumstances of the offending and the circumstances of the applicant. It is, accordingly, not necessary to repeat those considerations.
  6. There was no attempt in the submissions to explore the relevant sentencing principles with respect to long past offences, nor did any aspect of the challenge made by the applicant raise such matters. It is sufficient to note that these offences occurred in the period between the commencement of the Probation and Parole Regulation 1984 (NSW) on 28 February 1984 and its repeal on 25 September 1989, during which period both the head sentence and the non-parole period were subject to reduction, “in step in a proportionate sense”, as explained by the Court in R v Maclay (1990) 19 NSWLR 112 at 118G.
  7. Not only were the offences committed at a time when there was no longer any legal need to prescribe a non-parole period which was less than half the head sentence, but, in the ordinary run of events, the offender would not have faced sentencing until after the commencement of the 1989 Act. It follows that there is no need to take account of principles which might have operated prior to the “truth-in-sentencing” reforms. In these circumstances, and given the statements as to the appropriate course to be taken in imposing sentences after the commencement of the Sentencing Act 1989 in Maclay, the Court should consider an appropriate sentence by reference to the statutory guidelines (including the maximum sentence for each count), the range of conduct covered by a particular offence the subject of each count and other sentencing principles which were relevant at the time at which, had a timely complaint been made, the offender would probably have stood sentence. No issue as to perceived “patterns of sentencing” arise in this case: see MPB v R [2013] NSWCCA 213 at [31], addressing the principle stated in Maclay.
  8. The trial judge noted that there was no evidence of remorse or contrition on the part of the offender. Not only did the offender deny the offences at trial, but he had (and forewent) an opportunity to accept that his conduct was wrong and had disturbed the complainant in 1988, when she was aged 14 years and had raised her complaints with a psychologist. There was a subsequent attempt to resolve issues within the family through the offices of a second psychologist, but again the applicant was unable or unwilling to accept the consequences of his own misconduct. This was not a case in which the applicant was required to confront allegations of sexual misconduct for the first time 25 years after the events.
  9. It is appropriate to treat the six month fixed term sentence with respect to count 2 as equivalent to a non-parole period. However, there is a range within which the hypothetical head sentence could fall. For example, there is no particular reason to assume that a significant period of parole was intended, in circumstances where, because of the further sentence to be imposed, the offender would not be released to parole on that sentence. On the assumption that the non-parole period was likely to be in the order of two-thirds of the head sentence, one would infer a head sentence of nine months. It is not possible to say that such a sentence would be outside an available range, although it might be at the high end of the range. The applicant has failed to demonstrate that the sentence in fact imposed was manifestly excessive.
  10. With respect to the sentence on count 3, a more severe sentence was imposed, reflecting the fact that the maximum term for the offence was 10 years imprisonment.
  11. While it is true that this was not an offence at the high end of the spectrum of conduct covered by former s 66C(2), sexual intercourse without consent involving a degree of force would have attracted a higher maximum penalty. Although the conduct involved a relatively short period of time, I would not describe it as “momentary”, language which would tend to suggest inadvertence and which would undoubtedly belittle the nature of the offending. It is true that personal deterrence will have a limited role to play in a case such as this. The applicant is no longer in a position of authority with respect to children in his household and is unlikely to be in such a position again. Questions of general deterrence must weigh more heavily.
  12. While there may be different views as to the appropriate sentence in such a case, there was no material put before this Court to demonstrate that the sentence in fact imposed was outside the appropriate range. Accordingly, while there should be a grant of leave to appeal against sentence, the appeal must be dismissed.
  13. ADAMS J:

Introduction

 

  1. On 31 August 2011 the applicant was found guilty on two counts following a trial of an indictment containing four counts. The counts involved sexual misconduct against his stepdaughter then aged under 16 years. He was convicted on count 2, being the commission (between 15 November 1985 and 22 April 1986) of an act of indecency upon a person under the age of 16 years, an offence under s 61E(2) of the Crimes Act 1900 (since repealed) and of count 3, the commission (between 22 April 1986 and 31 December 1989) of sexual intercourse with a child between the ages of 10 and 16 years and under his authority, an offence under s 66C(2) of the Crimes Act (since repealed). The former offence carried a maximum penalty of 2 years imprisonment and the latter 10 years penal servitude. The jury was unable to reach a verdict on counts 1 and 4. The applicant was sentenced in respect of the count 2 offence to a fixed term of 6 months imprisonment commencing on 29 March 2012 and concluding on 28 September 2012. On count 3 he was sentenced to imprisonment for a non-parole period of 15 months commencing on 29 June 2012 and concluding on 28 September 2013 with a balance of term of 12 months, concluding on 28 September 2014. The overall sentence was 2 years and 6 months with a non-parole period of 1 year and 6 months.
  2. The applicant was on bail during his trial and following the jury’s verdict on 31 August 2011. Bail was not continued when he was sentenced on 29 March 2012 but, on 16 August 2012, the applicant was granted bail in the Supreme Court. In the result, the only period of custody served by the applicant was between 29 March and 16 August 2012.
  3. The applicant seeks leave to appeal against his conviction and sentence.

The grounds of appeal against conviction

 

2. These are as follows –

◦                                          (1) There was a miscarriage of justice in that the procedure prescribed in s 279 of the Criminal Procedure Act 1986 was not followed in respect of the applicant’s wife.

◦                                          (2) There was a miscarriage of justice in that the directions to the jury on coincidence evidence were confusing and inappropriate.

◦                                          (3) There was a miscarriage of justice in that the direction to the jury on tendency was unclear, confusing and misleading.

◦                                          (4) The verdicts on counts 2 and 3 were unreasonable and cannot be supported by the evidence.

◦                                          (5) There was a miscarriage of justice in that the guilty verdict on count 3 was inconsistent with a failure to agree on a verdict in respect of count 4.

◦                                          (6) The trial judge erred in admitting the evidence of SD1 as evidence of coincidence relevant to count 2.

◦                                          (7) There was a miscarriage of justice in that the directions by the trial judge, in addition to the directions on tendency and coincidence, were confusing and misleading when considered separately or in combination.

3. The consideration of ground one requires only a brief reference to the pertinent facts and I deal with that matter first. Otherwise, given the scope of the remaining grounds of appeal, it will be necessary to summarise the evidence in some detail.

Ground one – Mrs Versi’s evidence

 

2. The applicant’s wife was called as a witness for the prosecution on the fourth day of the trial. On the previous day the Crown prosecutor had indicated that it might be necessary to cross-examine her on some parts of her evidence pursuant to s 38 of the Evidence Act 1995. No reference was made either to s 18 of the Act, which deals with compellability of spouses in criminal proceedings or to s 279 of the Criminal Procedure Act 1986, which deals with compellability of spouses in relation to a number of specific offences including a “child assault offence” of the kind with which the applicant had been charged.

3. Shortly after the learned trial judge commenced his summing up, the Crown prosecutor pointed out to the trial judge that s 18 of the Evidence Act had been overlooked and needed to be addressed. This was an error since s 19 of the Act provides that s 18 did not apply in respect of proceedings for an offence to which s 279 of the Criminal Procedure Act applied. Without descending into unnecessary detail, s 18 of the Evidence Act permits the spouse to object to being required to give evidence as a witness for the prosecution and, in certain circumstances, must not be required to give evidence. On the other hand, s 279 of the Criminal Procedure Act provides that the spouse is compellable to give evidence in the proceedings unless there is an application to be excused from doing so, which may be allowed but only where the matters in subsection 279(4) are satisfied, namely the application to be excused is made voluntarily, that the evidence sought from the spouse is relatively unimportant or can be otherwise proved and that the offence is a minor one. It is clear that neither of the last two elements applied in this case and, accordingly, had the applicant’s wife sought to be excused under this provision, the application must have been refused. As it happened, the wife was called, without objection, to give evidence on the voir dire as though s 18 applied. She said, in effect, that she wished to give evidence and had not intended to decline to do so. There the matter lay, no further application as to it being made, and the judge proceeded with the summing up.

4. It is submitted by Mr Bellanto QC, for the applicant, that this “ex post facto approach” was inappropriate and amounted to a departure from the requirements of a trial according to law. In my view, this submission should be rejected. Since s 18 was not applicable and therefore s 279 applied and there was no application within s 279(3) by the applicant’s wife to be excused from doing so, no question of compellability actually arose. The admittedly unorthodox calling of the applicant’s wife to give evidence on the voir dire during the summing up was, therefore, of no moment. No injustice was occasioned to the applicant by this unconventional procedure. It amounted to a mistaken and immaterial, but fortunately short, interruption in the trial.

5. This ground of appeal has no merit.

The prosecution evidence of the charges

 

1. In order to deal with the other grounds of appeal, it is necessary to set out in some detail the evidence given in the trial.

2. The complainant gave evidence by videolink. She was born on 29 January 1974. She came to know the applicant when she was about seven years old, he having commenced a relationship with her mother. Eventually he moved into their home in Mosman where her younger brother Nicholas also lived. She was then going to primary school.

3. The complainant said she recalled an incident that occurred when she was about eight years old when the applicant was tucking her into bed one night. This occurred before the applicant and her mother were married. (Therefore before she was seven and a half, although she later became somewhat uncertain about the timing of this event.) At the time she was sharing a bedroom with her brother, although she did not remember her brother being in the room at the time. She said that the applicant tickled her while he was tucking her in, starting on her body (which it seems he often did) “but then proceeded to put his hands down my pants and tickle my vagina and made jokes about the fact that I was getting pubic hair”. She could not remember exactly what he said. In cross-examination, the complainant said she believed her mother and the applicant were unmarried at this time but agreed that they were in fact married in October 1981, when she would have been seven and a half years of age. The fact of the marriage was used by her as a guide to the timing of the incident but she was sure that she was eight years old at the time and had started to grow pubic hair. This incident was charged in count 1, upon which the jury was unable to agree. Her mother’s evidence about another incident (involving turpentine – see below) was that it occurred at the second house and, thus in late 1983, when the complainant was at least nine and a half years of age. She clearly remembered that at this time the complainant did not have pubic hair.

4. The complainant said that the family moved house when she was about nine years old by which time the applicant and her mother were married. There was family discussion about renovating the house, involving new bedrooms and a new kitchen. She said that about the time of the move, she had showers with the applicant on numerous occasions, encouraged by her mother. She remembered one distinct occasion, when she was about nine years old, when she was in the shower with the applicant alone. He had an erection and, not knowing what it was at the time, she asked him what it was. She did not remember his response but “I think he just sort of turned around and tried to hide it”.

5. The complainant said that at the time they moved she was often ill and had been prescribed a lot of antibiotics which, apparently, gave rise to secondary symptoms of thrush, requiring treatment with creams. She said that her mother would ask the applicant to examine her vagina because she was complaining about it hurting or itching “and so he would sort of, you know, I guess like a doctor like way, inspect my vagina”. She said that it happened on a few occasions when her mother was also in the house. She said, “it was done in a way that sort of portrayed him as a bit of a – not a medical person but someone who was knowledgeable about the body and its ailments”. This was not the subject of a charge.

6. In November 1985 the applicant and the complainant’s mother had twins. She said that her mother went away with them to “a Tresillian type place”, at least once but she was not sure for how long. During one such occasion, when she was 11 or 12 years old, at Queenwood School (where she started in 1984 in year five, the twins being born in 1985 when the complainant was in year six) she had been playing tennis with her brother in the street one afternoon. She said that she went inside the house to ask the applicant if he could come out to play. She said that he asked her to come up to the bedroom where he was and, going in, “he then asked me to assist with him putting cream on his penis and testicles” while he laid back on the bed and instructed her on how to apply the cream. The complainant said she “didn’t feel very happy about it or comfortable with it and I remember trying to, you know, finish as quickly as I could. I’m not really sure how it ended, I just remember getting out of the bedroom and then he stayed there, so I left on my own”.

7. The complainant said that, when they moved to the second house, she was given a bedroom which she occupied for most of the time until perhaps year 11 or 12 although she remembered studying for the HSC in a different room. The second house was a two-storey house with her and her parents’ bedrooms always on the first floor. However, there was an extension of the ground floor and the first floor space later constructed, at which time her parents moved into a different bedroom. The complainant did not remember when this was done. However, the incident involving the application of the cream occurred in her parents’ first bedroom. In cross-examination, the complainant stated that she did not recall that the applicant’s penis was particularly hard at the time; it was lying along his pubic bone and facing up towards his head. She said at the time she did not know what an erection was. She said that when she saw her mother (who had been away at Tresillian or elsewhere getting assistance for the twins and perhaps not overnight) she did not tell her about the incident because she was confused and shocked and felt she could not trust her mother not to tell the applicant.

8. Other evidence showed that the complainant’s mother stayed overnight at Tresillian for five days between 18 and 23 January 1986 so that the complainant would not have been at school at the time. However, the complainant said that she was sure that the incident occurred some time at the end of 1985 or early 1986 when her mother was not in the house. The complainant’s mother gave evidence that, after her stay at the Tresillian centre, she would go there for a couple of hours during the day so she could sleep whilst they minded the twins and would be back at home during the day because of the school holidays. Records showed that the complainant’s mother attended day visits at the Tresillian centre between 29 January and 22 April 1986. This act of indecency was that charged in count 2.

9. The next incident allegedly occurred when the complainant was about 12 years old, in 1986 when she was in year seven. In an exam period during the year she became very anxious and was not able to sleep so she went into her mother’s room, asking for a cuddle. The complainant said that her mother got “quite cranky with me and asked if Peter could go and sort it out… So I wasn’t allowed to stay”. She went back to her bedroom and got into bed, followed by the applicant. They were underneath a doona. He lay beside her and started to cuddle her –

“And then he whispered into my ear, ‘This is what you should do when you can’t get to sleep’ and I didn’t know what he meant by that, but he then put his hand down my pants and began to masturbate me for quite a while, and I didn’t know what was happening. I just froze really. I just didn’t know what to do. I felt terrible, but I just didn’t know what to do.

He was moving his finger around my clitoris for a while and around the labia minora and he would also a few times stick his finger into the opening of my vagina just partially and then move back up to sort of move his finger around my clitoris and the, you know, the labia area of my vagina.”

(The complainant said that she did not know the anatomical terms at the time, but learnt about them later.) The complainant said that she recalled saying to the applicant repeatedly that she was okay and he could go, feeling that she was unable to be very assertive. Eventually he left. This offence is charged in count 3 of the indictment.

 

1. The complainant said that, shortly after, within days, again she was unable to sleep, being very anxious and went into her mother’s bedroom again –

“I just remember the same thing but this time I felt absolute dread because I sort of knew what might happen as opposed to the first time where I really didn’t know what was going to happen and he came again into my bed and put his hand down my pants and did the same thing, masturbated me but this time I remember my mum came down the hallway and interrupted and he pulled his hand out of my pants very quickly which was the first indication that I had that let me know that he really knew that what he was doing was wrong and then I realised it was very wrong too.

It was the same as the first time, fingers moving round my clitoris sort of in a circular motion, down around the inner areas of the labia and then dipping into the opening of my vagina so just one finger and just sort of dipping it in.”

 

1. In cross-examination the complainant said that she believed the bedroom door was partially open. She did not recall her mother coming into the bedroom but she knew it was her mother because she saw her and her mother asked if everything was okay. Following this incident, the complainant did not go again into her mother’s bedroom for a cuddle in the middle of the night.

2. Obviously anticipating evidence from the complainant’s mother, Mr Odgers SC for the applicant put to the complainant in cross-examination that there was only one occasion when her mother told the applicant to help the complainant go to sleep. The complainant denied this, saying, “I believe that it happened more than once and definitely twice”. She also disagreed that the applicant was in her room for two minutes at most, saying that “it felt like about 15 minutes” on both occasions. She described the second occasion as “a very similar scenario” adding, “although I believe the second time I felt absolute dread about what may happen if he came to my bedroom. And I believed that I tried to stop it, I said, ‘No, no I’ll be okay, it’s fine, don’t worry about it, I’ll be okay’, but he came anyway”. In her statement to police the conversation about not worrying and being okay was made after she had returned to the bedroom and the applicant was there with her.

3. One of the issues in the trial concerned the timing of the counts 3 and 4 incidents. The complainant’s best recollection was that they occurred after the renovations which, she believed, had occurred in 1986. However, she also stated that she was sure that she was 12 years old at the time and attending Queenwood School. She accepted that the house was renovated in stages and that the last stage was the construction of her parents’ new bedroom, which commenced in 1988 and continued until 1989. The builder informed the investigating police officer that the work was carried out in stages over a number of years, the major works being carried out in about 1988 and 1989. The complainant said that, when questioned about whether she became aware from conversations with police that there was a question mark about this date, it was possible her recollection of the position of her bedroom was not as sure as she thought it was. The Crown contended that the complainant was mistaken as to when the events giving rise to counts 3 and 4 occurred, submitting they occurred prior to the major renovations and not after. In short, the Crown submitted that the complainant’s evidence as to her age when these incidents occurred should be accepted in preference to her placement of them by reference to the renovations.

4. An additional occasion led by the Crown, though it was not the subject of any charge, occurred when the complainant was 14 and “was really controlling what I was eating”. She said that she was in the bathroom and the applicant had said to her, “Mum’s asked me to come up here to talk to you… Why are you doing this… to yourself?… You know that I think you’re beautiful” and gave what the complainant described as “a really sort of sleazy sloppy kiss on my forehead while I was in the bath naked alone”. She said, in effect, that she remembered thinking that the applicant was inappropriately attracted to her and knew it was wrong and that she also knew it was wrong “but it was a very uncomfortable situation for me. I felt really vulnerable and just horrible”. Cross-examination proceeded on the basis that it was accepted that there was an occasion when she was in the bathroom and the applicant had said words to the effect of her evidence, but that he did not enter the bathroom at all, and did not kiss her on the forehead; furthermore, it was put to the complainant that at that time there was in fact no bath in that bathroom. She rejected these three propositions. (Mrs Versi gave evidence to the effect of the cross-examination, which I deal with below.)

Complaint

 

1. The complainant said that the first person she told about the applicant’s misconduct was her brother Nicholas. She was 12 at the time and Nicholas was 10. She said that they were together in her bedroom with the door closed. She said that she was not sure what she told him but said “there had been inappropriate sexual behaviour from Peter, and I remember his response was along the lines of, ‘Oh no, not this too’.” As she understood it, this was only a reference to something that concerned him but otherwise it had no sinister connotation. Nicholas gave evidence that, when he was 11 or 12, before the renovations had begun he was in the complainant’s room when she told him that “she had to rub cream on Peter’s penis”. His response was to say, “Oh, no, not another thing”. Nothing else was said on that occasion. In another conversation which occurred between them after the complainant’s and Nicholas’ father had died (5 August 1995) when he was 20 years of age she told him that “he would come in at random times in the night and masturbate her. And – that again she looked at me”, as he felt, to ask “Is this right?”

2. In year seven or eight the complainant said that she also told her friends Pip Smith and Donna Duggan (who was not called) but could not recall what she said to them. The former gave evidence that, when she was about 12 years old and in about year seven, she and the complainant were at the latter’s house when the complainant told her that her stepfather had put his fingers inside her vagina and massaged her. The complainant also gave evidence that she wanted to tell her science teacher, a few days after the bedroom incidents but felt unable to do so.

3. The complainant said that she did not tell her mother about the incidents because she did not trust her. She believed that she would tell the applicant about it as that had been what she did in the past whenever she tried to talk to her about anything confidentially. The complainant said that she was scared of the applicant, who was the authority in the house and very controlling, and at times aggressive and violent. She said that he “used to scream at me a lot and really didn’t feel that I could handle that”.

4. Towards the end of 1988 (although in cross-examination she accepted that it was possible that it was the end of 1989), when the complainant was in year nine, she and her brother were taken by their mother to see a psychologist, Dr Margeson-Towndrow in Bondi Junction because, as the complainant put it, she was an anxious child and her mother believed that she was not coping with the divorce. She had not yet told her mother about the applicant’s misconduct. The complainant thought there was more than one session. She spoke to the psychologist alone. She recalled, after general conversation about her life, the psychologist asked, “Is there anything else that’s troubling you?” The complainant said that she asked if she had to keep confidential anything that she told her and, after being assured that it was just between them, told the psychologist what had happened involving the applicant. The psychologist, as it appeared to the complainant, was obviously quite concerned and mentioned that she needed to try and find a safe place for the complainant to live, mentioning the possibility of going into boarding school. At no time did the psychologist mention telling the complainant’s mother about it.

5. It appears that on the next day or so Dr Margeson-Towndrow spoke to the complainant’s mother about the issue. The complainant did not give evidence of exactly what she understood the psychologist had said. I gather, however, that she believed it was about the applicant’s sexual misconduct. (Mrs Versi gave evidence about what she was told, which I summarise below.) The complainant said that she was at her father’s house for the weekend and her mother called her “quite hysterical and very determined to find out what it was that I needed to tell her”. The complainant said she would tell her when she got home and that the conversation occurred in the late afternoon or early evening of that day.

6. It seems from this that the psychologist had told the complainant’s mother that there was an important issue but did not explain what it was. The complainant said that she does not remember exactly what she told her mother but she remembered her mother saying that she was sorry that this had happened, to leave it with her and she would sort it out. The complainant remembered feeling very relieved. However, on the following day, “I was absolutely in the biggest strife of my life”. She said that her mother was no longer supporting her but obviously supporting the applicant who had denied any misbehaviour and they both accused the complainant of “making it up to cause trouble to destroy the family”. She said that they screamed and yelled at her to think about the consequences of the applicant going to gaol and how that might affect the twins. She said she was terrified and “just felt like I’d been thrown into the deep end of a swimming pool with absolutely no one there to support me or back me up and I just didn’t know what to do”. She said her mother and the applicant screamed at her “Get on the phone and ring [the psychologist]”. So she telephoned and said, “Just forget about it… It didn’t happen. Just forget about it. I’ll be okay, I’ll be okay”. She was unsure about what happened at that point but later (shortly after, as I understand it) they all went to Dr Margeson-Towndrow’s office for what the complainant described as a “sort of a mediation session”. She said that she went in to see the doctor independently whilst her mother and the applicant waited in the hallway outside “but I don’t really remember how it was sort of finalised or resolved. I just don’t know what happened but it just was from that day on kind of swept under the carpet really”.

7. In cross-examination, it was put to the complainant that she “did not in fact recant either to [her mother]… or to Dr Margeson-Towndrow”. She answered, “I don’t have any recollection of that” and, shortly after, said that she was not sure that she said to her mother that the allegations she had made were not true. She said that, after the call to the psychologist and telling her that the allegations were not true the topic was heatedly discussed again between her, her mother and the applicant, during which, although she could not remember the details, she said “my stepfather actually admitted that he had crossed the line and made a mistake, but that he was just trying to help me, and I don’t remember my Mum’s response to that, but obviously that satisfied her”. She did not remember him elaborating. In her statement to police of 5 September 2008 the complainant had said –

“During this conversation Peter acknowledged in front of my Mum that he had molested me or touched me inappropriately. Peter said, ‘I know I might have crossed the line and made a mistake, but I was just trying to help her and teach her how to get sleep’.”

The complainant confirmed that this was her memory of the conversation. (As is clear from the above, the complainant had not mentioned the applicant’s admission when giving her evidence-in-chief of these conversations.) She was not aware that the applicant ever confessed in any way to Dr Margeson-Towndrow of wrongdoing.

 

1. Evidence was admitted from the investigating police officer as to her conversations with Dr Margeson-Towndrow, who informed her that she used to practice in the Bondi Junction area but only kept patient records for seven years and did not have anything relating to a child with the complainant’s name or any recollection of a patient by that name. She said that she saw approximately 500 children a year.

2. The Crown tendered a letter dated 19 May 1991 which the complainant said she found in her diary. (There is no reference to it in the diary and the fact that it was written on that date depends entirely on the complainant’s evidence to that effect.) The letter says –

“I am sick of living like this. I want a normal family.

We are living under a time – bomb – Peter. He is irrational, unpredictable and selfish. I hate him.

No body believes me about what he did to me. No one ever speaks about it. I think they have just dismissed it as me making up the whole story. I hate the way he has so much control over my life and so much dominance over mum, when I know what he is really like. I feel sorry for mum, because she has to put up with it for many years to come. But as soon as I leave school, my first priority is to leave home to get away from Peter.”

 

1. The complainant’s evidence about her attitude to her stepfather was, as I understand it, not so much that she hated him, although she did at the time she wrote the letter, but “there were times when I was very scared of him and frightened by him and confused by him and that I didn’t like him very much at times.” She was taken to the fact that her mother had divorced her father, although she was very young being only four at the time, and thought that she would have been happier had they remained together but she had no real recollection of what it was like when they were together. She resented somewhat the fact that the applicant loved his twins more than she and her brother, although she also loved them. This cross-examination was designed, as I understand it, to demonstrate some motive for the making of false allegations against the applicant.

2. During 1993, the complainant moved out of home for six months, renting a unit with a friend and supporting herself with a part-time job whilst she was studying. She then moved back home because she was planning to defer university in 1994 and travel overseas with her boyfriend and could not afford to pay rent and support herself at university. There was an altercation between her and the applicant when he threw out a model she had made for her studies and the complainant then went to stay with her father and grandmother until she went overseas. Towards the end of 1993 she spoke to her father’s wife, Cheryl (implicitly though it is not altogether clear) about what the applicant had done and told her that she wanted to tell her father but that Cheryl asked her not to because he would be very upset about it and she worried what he might do since he and the applicant did not have a good relationship. Her father died in 1995.

3. The next occasion that the complainant spoke to a professional person about what had happened, of which she gave evidence, was when she was about 19 (thus, about 1993) and went to see her general practitioner, Dr Phelps (whose married name was Fronzek) and explained that she had been abused by her stepfather although she did not go “into a huge amount of detail”. She was referred to a counsellor, Ms Janet Alexander. The complainant could not recall whether she gave Ms Alexander any details or merely spoke about the allegations in general terms. She saw her several times before a mediation session took place with her mother, during which her mother became very upset and angry with her and accused her of causing trouble and stormed out of the room. The complainant said that she found this traumatic and difficult to deal with. She said that she could not recall whether she went back to see Ms Alexander to “have a bit of a debrief, but given the negative experience of it, I didn’t feel like I wanted to go back”.

4. In cross-examination (again, I think to deal with matters which were expected to come from her mother) she said that she had no recollection of seeing Ms Alexander in 1990. She was further asked in cross-examination –

“Q. I want to suggest to you that you did go to see her and that after counselling with her, that you did retract – on that occasion, the allegations that you made about Mr Versi?

A. I have no memory of that.

Q. I want to put to you that you in that period when you were being counselled by Jan Alexander, you were expressly asked if Peter touched you inappropriately and you replied, ‘No nothing like that’, do you recall that conversation?

A. I don’t recall that at all.”

 

1. Also during cross-examination, she said that she did not recall asking Ms Alexander to keep everything she was told confidential or telling her that she did not want to go to court. When the mediation session proved ineffective, she did not go to the police at that time because –

“I just don’t remember anyone ever suggesting that that’s what I should do and I, you know, had had such a bad track record of disclosing it and not being believed that I really didn’t know that that’s what I should do.”

The evidence of Ms Alexander

 

1. Ms Alexander specialised in individual and family therapy. From mid 1991 she started working in Neutral Bay, initially at a townhouse and then in premises almost next door. Her practice was to keep all her files and she had no records of consultations with the complainant or her mother prior to 1994. Her records showed that the complainant was referred on 21 October 1994 for counselling in relation to issues involving child sexual abuse and emotional abuse by Dr Fronzek (whose referral letter was produced). She first saw the complainant on 26 October 1994 when, amongst other things, she obtained a fairly extensive family history. Her notes were tendered and admitted without objection. Ms Alexander believed that 1994 was the first time she met either the complainant or her mother for two reasons: first, that the referral note starts a file and, if she had already seen them the file would already have been in existence and would simply have continued; the other reason was that she could remember Dr Fronzek called and said her she was referring the complainant to her and asked whether she would take the case, partly because the family was well known (although they were not well known to Ms Alexander). In cross-examination, Ms Alexander said that she did not believe that she had misplaced any file, perhaps because of the move, and that her usual practice was always to have a file, even if she only saw a person on one occasion. She conceded that, in retrospect, she had possibly encountered the complainant’s mother socially but definitely had no real awareness of her until 1994.

2. In substance Ms Alexander’s evidence was that her memory relied entirely on the notes, which to some degree were abbreviated and in shorthand. In effect, she translated them onto the record. The following sets out what she said in point form –

26 October 1994

Consultation with the complainant and also her mother

– The complainant lived with her mother until two years earlier.

– The complainant’s father lives in Palm Beach and that she didn’t see him.

– She told her mother about the child sexual abuse/assault when she was 14. She was at first believed and then not.

– The first person she told was a doctor.

– The abuse started at age 8 and ended at age 14.

– Her mother abused and yelled at her and as a result the complainant asked the doctor to not pursue the case to welfare.

– The applicant verbally abused her.

– Her mother denies the effect of the abuse on her.

– The effect of the abuse was that (1) she was angry with the applicant and with her mother for not protecting her. She wants her mother to understand and be sorry; (2) she has nightmares about the applicant which occurred more often when she lived in the house; (3) she felt sadness about the loss of her childhood; (4) she was more moody and would snap if treated badly.

– She would pretend that it didn’t happen.

– There had been a bad argument in May and had not seen or spoken to the applicant since.

– She had gone overseas between June and September where she was often upset and realised she needed to confront her issues.

– The complainant’s aim was to seek to get her mother to believe her, and to tell her father.

– The complainant’s mother said: “Not to feel like I’m on trial all the time” and that the complainant doesn’t get angry about small things.

– The complainant wanted her mother to accept that something had happened, and that what they talked about was not to go beyond the counselling room

– The complainant’s father would be angry if he knew; that he was a cold and lazy father who made promises but didn’t keep them; he found it hard to express love.

– The step-father has admitted to being in bed and masturbating the complainant to “help you get to sleep”; 2 times in bed with the complainant; gave a prolonged kiss on the forehead; made her stand up in the bath when naked and anorexic at 14 years of age; the complainant started the apple diet at age 13 and was vomiting between 16 and 17 years of age.

– The complainant wanted: (1) that the matter not go to court; (2) to establish a comfortable relationship with her mother; (3) to increase her self-esteem and become more positive about herself.

– Dr Margeson-Towndrow in Bondi Junction – that the applicant apologised and admitted masturbation of the complainant to the counsellor i.e. Dr Margeson-Towndrow.

 

1. At a follow up session on 25 November 1994 the following was noted –

Consultation with the complainant’s mother and the applicant

– The complainant had glandular fever in Year 7 and was in bed for 6 weeks; she was depressed; suffered urinary tract infection; in hospital in March Year 12 HSC – Tired for many years; Year 9 Ascham (left Queenwood)

– The applicant very angry about the complainant’s rudeness and behaviour towards her mother; also her messiness; he was close to her when she was younger; accepted her as his but did not interfere with her relationship with her father.

 

1. On 2 December 1994 there was a further session with the applicant and the complainant’s mother during which the former appeared very angry about the allegations of abuse but nothing appears to have been resolved. That was the last meeting involving Ms Alexander.

2. (It seems strange – and it was not explained why this was so – that, despite the references in the notes to consultations both with the complainant and her mother, nothing is noted about what the latter was asked, if anything, or her reaction to the allegations. The only statements noted were that Mrs Versi did not want to feel as though she was “on trial all the time” and that the complainant did not get “angry about small things”. However this oddity was not the subject of questioning, so I say no more about it.)

After 1994

 

1. There was further evidence from the complainant about the relationship with her mother after 1994, the complainant saying that she tentatively rebuilt her relationship with her mother on the basis that she did not “rock the boat” and respected the applicant as her husband. The family went on a trip to Italy, and she enjoyed herself, although she and her brother did not stay in the same accommodation as her mother and the applicant and the twins. Although the applicant gave her away at her wedding, she felt obliged to accept the applicant’s suggestion that he walk her down the aisle because he and her mother were paying for much of the wedding. After the birth of her first child in August 2002, she asked her mother to visit her, but denied inviting the applicant to come and stated that she felt uncomfortable when he did so. She asked her mother to baby sit on one occasion for a few hours, possibly more than once, but felt uncomfortable about leaving her daughter there.

2. Over the years a number of postcards and cards were sent by the complainant to her mother and the applicant including father’s day cards and birthday cards, which contained handwriting as well as the conventional printed message expressing warm affection. The complainant said that she continued to love her mother even though her mother did not support her.

The complainant’s mother

 

1. The complainant’s mother was called by the Crown. She married the applicant in October 1981, having separated from the complainant’s father about two years previously. At the time of their marriage they lived in a house in Mosman with the complainant and her younger brother and, in 1983 they moved to the second house in which there were two upstairs bathrooms, one of which was renovated when Mrs Versi was pregnant with the twins. By the end of the renovation there was a new bedroom and an additional bathroom. Before the renovations, the applicant’s and Mrs Versi’s bedroom was next door to the complainant’s, the doors being a couple of metres away but afterwards it was on the other side of the house.

2. On 15 November 1985 the complainant’s mother and the applicant had twins. Mrs Versi said that sex education was given whilst the complainant was in year five. She went to the information night and thought it was “far reaching for very young children”. She had spoken to the complainant about menstruation and told her that if anyone touched her inappropriately she should tell her. She also gave the complainant some books to read. It may be that year five was year four, when the complainant was nine years old. Mrs Versi said that her relationship with the complainant until 1987, when she turned 13, was a close and happy one. She said that the complainant was a worried and anxious child. On occasion she would talk about her feelings towards her father and stepmother and sometimes criticise them. Mrs Versi agreed that the applicant at times would raise his voice or lose his temper at home.

3. So far as attending Tresillian with the twins was concerned, she confirmed that she was there between 18 and 23 January 1986, which period included a weekend. She believed that the complainant and her brother stayed with their father during this occasion. There were also other visits to a Tresillian centre early in 1986 but she did not stay overnight and would always be home before the complainant and her brother were home from school. She said that the applicant was a “fabulous stepfather to the children” and she had no concerns about leaving him in charge of them.

4. Mrs Versi said that the applicant did occasionally suffer from rashes and would have to apply a cream and there was one occasion when, following the children and the applicant playing tennis out in the street they came upstairs because the applicant needed to apply some cream to a rash. The children told him to hurry up because they wanted to go and play more tennis. Mrs Versi said that she gave the applicant some cream. He went into the bathroom. The children were running around in and out of the house. Mrs Versi said that she was on the other side of the hallway upstairs with the twins and the applicant put the cream on and said, “I can’t play tennis anymore. My leg’s too sore”. The children were “disappointed and they were still nagging him and we all went downstairs”. She said that the rash was not in the genital area, but more like the upper leg/ groin area. It was not on his testicles or his penis. She had on occasion seen cream being applied by the applicant to a rash in that area. Her evidence is somewhat unclear about this but it may have been that the door was open whilst the applicant entered the bathroom to apply the cream. Mrs Versi did not believe that the complainant and her brother had played tennis with the applicant in the afternoon after school when she was not home, because he would have been at work.

5. In relation to the bathroom incident, when the alleged kissing occurred, Mrs Versi stated that she recalled one night after dinner asking the applicant to speak to the complainant after the evening meal when the complainant had gone to the bathroom and she was worried that she was going to make herself vomit since she was worried about her weight at the time. She said that the complainant was not really listening to her at this time. She asked the applicant, “Can you please go and tell her because I think she’s going to put her finger down her throat straight after dinner. Can you please knock on the door and tell her that she’s beautiful and she’s thin enough as she is”. She said that she stood at the bottom of the stairs so she could see what happened. The complainant was about 13 or 14 at this time. She said that he did not go into the bathroom but stayed in the hall. She was cross-examined (with leave) by the Crown about her statement to the police in which she said that she “was present standing behind Peter”. She said that she meant by that statement that she was standing behind him downstairs and could see him. Mrs Versi could not recall whether the bathroom door was open or closed at this time. She said that there was no bathtub in that bathroom. She was adamant that the applicant did not enter the bathroom.

6. So far as the allegations in counts 3 and 4 are concerned Mrs Versi confirmed that she had tried to get the complainant to sleep a few times that night and asked the applicant to help her. She said that the applicant would not have gone into the complainant’s room unless she asked him to and, generally, if he went into the room to say goodnight she would be with him. She said that the applicant had never gone into the complainant’s room in the middle of the night and did not recall an occasion when the complainant came into her bedroom in the middle of the night because she was upset or nervous and could not sleep. She confirmed that there was a period whilst the complainant was a student at Queenwood when the complainant had trouble sleeping. She recalled an occasion (because it was a “very difficult night”) when the complainant came out into the hall after having been put to bed, telling her and the applicant how much she was having trouble going to sleep. (She later said the complainant “must” have come into the bedroom, but she did not recall this.) Mrs Versi said that she put her to bed many times and tried to calm her down but “had run out of steam, so to speak, so I said to Peter… ‘Can you please see what you can do to help her go to sleep?'” She said that she lay in bed awake because she never went to sleep until the children were settled. The applicant was gone for a minute or so and came back to bed. She said that it could not have been for as long as 15 minutes since she would have got up to see what was happening. Nor was it 10 minutes; it was much shorter. She said that it was not possible that she fell asleep before he returned. She said she did not walk to the complainant’s bedroom at any time before the applicant returned. She did not recall any other occasion except for this one time. She said that there was never an occasion when she walked down the hallway to the complainant’s bedroom and asked something like, “Is everything okay”. Nor could she recall any occasion where she asked the applicant to help the complainant go to sleep but the complainant said not to worry and she would be okay.

7. So far as Dr Margeson-Towndrow is concerned, Mrs Versi said that she took the complainant to see her when she was about 15 because she thought that the complainant would benefit from someone to talk to, since she was a teenager from a divorced family. She did not go with the complainant. After the session, she was called in and Dr Margeson-Towndrow told her that there had been some incidents in their home that she thought were improper. The instances that she mentioned were, firstly, when the complainant had accidentally sat in turpentine that had tipped out from a bottle, the second where the applicant had gone to the bathroom to tell her that she was beautiful and must not lose anymore weight, the third that she had been asked to put some cream on his private area because he had a rash and a fourth where he had gone to her bedroom one night when Mrs Versi had asked him to put her to sleep. Mrs Versi said that the complainant was not there when this conversation with Dr Margeson-Towndrow occurred.

8. Shortly after receiving this information, although she could not say exactly when, Mrs Versi spoke to the complainant. She said that she was “pretty hysterical. My whole world had crashed down, so I couldn’t believe that normal things that had happened in my household were suddenly something that I should think were sinister”. She said that she spoke to the complainant either at home or in a telephone call and the applicant was not present. She could not remember what the complainant said at this time. She said that she could not recall taking the complainant back to Dr Margeson-Towndrow. She said that there were no meetings or mediation sessions with Dr Margeson-Towndrow involving her and the complainant or the applicant and the complainant. She could not recall whether the applicant himself went to see Dr Margeson-Towndrow. However, she later said that it was possible that she and the applicant went with the complainant to see Dr Margeson-Towndrow for some kind of mediation. After the initial conversation with the complainant she agreed that there must have been other conversations in the house which “was in turmoil” involving her, the complainant and also the applicant in the day or days immediately after she became aware of the allegations. She said that when she saw the complainant at home she did not recall saying to her that she was very sorry that this had happened and to leave it to her to sort out although she did not deny that it was possible she said that. She said that what she had been told by Dr Margeson-Towndrow turned her world upside down and made her feel hysterical. She agreed that it is possible that she screamed at the complainant and also that the applicant did so. She denied that she threatened the complainant in any way or accused her of trying to destroy the family or that the applicant had done either of these things. She did nothing to attempt to force the complainant to recant the allegations nor, so far as she saw, did the applicant do so. She did not tell her to ring Dr Margeson-Towndrow to recant nor, so far as she was aware, did the complainant recant at that time. The applicant did not make any kind of admission of inappropriate touching of the complainant. She said that there were probably many conversations because the household was “in total turmoil” but that she did not recall any occasion when she, the complainant and applicant were having a discussion and the applicant said, “yes, he had crossed the line and made a mistake but that he was just trying to help [the complainant]” but, if it occurred, she did not remember it. She later said, “I guess it’s possible. It’s a very long time ago”. In cross-examination by Mr Odgers she said this conversation had not taken place in her presence. She said that it was possible that she said to the complainant, “Why are you doing this? I can’t – I can’t deal with this”. This occurred such a long time ago and she could not recall all the conversations she had.

9. Mrs Versi said that she knew Ms Alexander both in a professional capacity and as a friend (rather meaning, I think, as an acquaintance). She first met her in her professional capacity in 1990 after having seen Dr Margeson-Towndrow. She said that the complainant had counselling with Ms Alexander as did she and the applicant. They all had counselling together. This was in 1990 and definitely not in 1994. She said that during the 1990 counselling sessions, they addressed all the issues raised by Dr Margeson-Towndrow which were resolved. She said that, when the complainant was asked whether the applicant had touched her inappropriately she said, “Nothing like that”. Mrs Versi said that she believed that innocent situations had, in effect, been misconstrued so that is why, after having given the matter a great deal of thought, they went to Ms Alexander in 1990, shortly after seeing, as I understand it, Dr Margeson-Towndrow. She said that as she recalled it, the complainant was still at school, which she left in 1991. What she described as “this resolution” was obtained with Ms Alexander before the complainant did her HSC, which was in 1991.

  1. Mrs Versi said that the complainant lived at home until 1993 and she never observed anything abnormal about her behaviour towards the applicant. Nor has she seen the applicant ever being violent towards the complainant. She said that they helped the complainant when she moved out of home in 1993, that the complainant then returned and moved out again in 1994. She did not recall any incident involving the applicant throwing a model, which the complainant had made, out the front door. Mrs Versi said that she saw Ms Alexander again in 1994 because she was traumatised over the falling out with the complainant following a big argument, which resulted in the complainant leaving the home. She said that the argument, was about the complainant’s behaviour. She was being argumentative, abusive and had struck Mrs Versi. She went to Ms Alexander for help alone without the complainant.
  2. In 1994, when Mrs Versi went to Ms Alexander following the falling out with her daughter, she became aware at some point that the complainant was again making allegations of inappropriate behaviour by the applicant and she went to see Ms Alexander with him. There was some discussion of the allegations which were angrily denied by the applicant. Mrs Versi could not recall a counselling session with the complainant and could not recall any of the things recorded in Ms Alexander’s notes. At no point did the applicant make any kind of admission of touching the complainant inappropriately.
  3. As to the complainant’s wedding, Mrs Versi said that Nicholas had wanted to give the complainant away and the complainant said to him, “just butt out, I don’t want you to get involved, I want Peter to walk me down the aisle”. When her child was born, Mrs Versi said that the complainant called and asked if she and the applicant could go, saying, “are you sure you want both of us to come?” and that the complainant replied “yes I want you and Peter to both come immediately”.
  4. Mrs Versi also gave evidence, that in the early 90s (as I understand it, occurring on a number of occasions) when, the complainant “would come into our bathroom when she had two other bathrooms to use and sit on the loo when he was in the shower and I was at the basin… chatting to us at the same time like she was just a normal daughter”.

Evidence of SD1

 

1. The evidence of SD1 was admitted in relation to count 2 only, as coincidence evidence. She was born in 1965 and her younger sister in 1968. When she was five years old her parents separated and, in January 1975, her mother married the applicant. In 1979, when she was 13 and in year eight at school, they moved to a second house. The incident in respect of which she was called to give evidence was related by her as follows –

“Q. As best you can, [SD1], can you describe what you recall happening in relation to that incident?

A. Yes, I came home from school one afternoon, I was on my own. I proceeded down the hallway of our house at… The bathroom was on the right-hand side as I came down the hallway and as I passed the bathroom on the way to probably the kitchen, I observed Peter in the bathroom. I could see him facing the mirror. He was wearing his bathrobe and I could see the reflection in the mirror that he was naked. He called me in. He said he was having trouble with his hernia. I was aware that he had a hernia, I didn’t know the exact details but I believed it was, you know, in his groin area. As l drew closer to the bathroom I could see that there was a – that the bathroom basin was full of water. He called me over and asked me to hold his – I noticed his penis was erect and he wanted me to hold his penis so that he could fix his hernia. I did that. I came up to his right-hand side and used my right hand to hold his penis. He then proceeded to sort of grind his hips against my hand. I had to adjust my grip a few times because it was quite awkward. After a while I started to feel very uncomfortable so I said I didn’t want to do it any more and I stopped, and then I left the bathroom. I can’t remember if he said anything to me but I just remember feeling very uncomfortable and wanting to remove myself from the situation.”

 

1. Nothing like this had occurred previously nor, up to the time the applicant and her mother had separated in about mid 1980, did it happen again. Nor did her sister ever mention to her that anything like this had occurred to her. The applicant did not tell her not to say anything. Following the separation SD1 and her sister visited the applicant for a while at her mother’s insistence, but she found the visits uncomfortable. She did not see the applicant after the end of 1980. Although SD1 was upset about the effect of the divorce on her mother, she denied any feelings of hostility or animosity towards the applicant.

2. SD1 said that she came to make the statement following enquiries made by the investigating officer of her mother. She was informed by the officer about allegations of sexual impropriety against the applicant but not given any detail in respect of them. The officer’s evidence was to the same effect.

Evidence of the applicant

 

1. The applicant’s evidence commenced with the allegation made by SD1. The applicant denied that this event occurred. He agreed that in 1979 he had a problem with an inguinal hernia, which he had for six or seven years.

2. The applicant denied ever showering with the complainant and ever having tickled her and touched her in the vaginal area. He gave evidence also about an incident in which the complainant spilt some turpentine whilst working on a cabinet in the carport. The complainant sat in it and it burnt her. The applicant was not present at the time although he heard some yelling and screaming. Mrs Versi asked him to carry the complainant upstairs because she was too heavy for her to do so. He said he took her up to the bathroom and Mrs Versi attended to her, he assumed by washing her. He said that he did not touch her inappropriately in any way. So far as the complainant suffering from thrush at various times during her childhood, he denied ever touching her vaginal area to treat this condition. He recalled a time when Mrs Versi stayed overnight at a Tresillian centre for a number of days shortly after the twins were born. He recalled that during this period both the complainant and her brother went to stay with their father. He recalled playing tennis in the street on occasions with the complainant and Nicholas, although not specifically on any occasion when Mrs Versi was not at home. He did recall playing tennis in the street at a time when he had a heat rash problem on one occasion. He said that he stopped playing and went inside the house. He said the inside of his leg close to his groin but also quite a way down the leg started to bleed so he asked Mrs Versi for something to put on it that might help. He said that he had been doing a lot of running and sport and it had started some days before. She brought him some cream which he applied to the area in the upstairs bathroom. He said at the time the children were running around because they were trying to get him to go back to play tennis but he thought they came up to the hall outside the bathroom. He said that he never asked the complainant to place cream on his penis and testicles.

3. He recalled an occasion when the complainant came into their bedroom saying that she had trouble sleeping and Mrs Versi told him to go with her to her bedroom. He said that Mrs Versi had been to see her many times that night and they were both awake. Eventually Mrs Versi asked him to go to see if he could get her to go to sleep and he did so. He said that he got up, put on some clothes of some kind which he could not recall, and went to the complainant’s bedroom for perhaps up to two or three minutes. He went to find out what was wrong and why she was not going to sleep and would have asked her what was wrong. He denied getting into bed with her and touching her around the vaginal area. He said it was not possible that he was in the room for 15 minutes. He does not recall any other occasion when Mrs Versi asked him to go into the complainant’s bedroom to help her go to sleep.

4. The applicant recalled an occasion when the complainant had gone upstairs after dinner. Mrs Versi was concerned about her losing weight and asked him, because he seemed to have less conflict with the complainant to “go and tell her not to lose any more weight and that she looked lovely or beautiful or nice or whatever. I don’t remember the exact words”. The applicant said he went upstairs and got her attention, he did not know if he knocked on the door or the door was partly or fully open and, when the complainant said “Yes” he told her what Mrs Versi had asked him to tell her. He said that he did not enter the bathroom. He then went downstairs and Mrs Versi thanked him. In cross-examination he said that it was possible that there was an occasion when the children were playing tennis on the street and their mother was not at home but insisted that, on the occasion when he had the heat rash, Mrs Versi was at home. In cross-examination the applicant explained that standing at the top of the stairs put him about three quarters of a metre or a metre – the width of the hall – away from the door. His recollection was that Mrs Versi was downstairs, at the bottom of the stairs where, he supposed, she couldn’t be seen by her daughter. He could not recall whether he knocked or not. He said that the complainant opened the door, he thought in her underwear. He explained that the complainant was not in the bath because there was no bath in that bathroom. The adjacent bathroom, however, did have a bath.

5. The applicant first became aware of the allegations about sexual misconduct in 1989 or 1990 after Mrs Versi took the complainant to see a psychologist in Bondi or Bondi Junction (obviously, Dr Margeson- Towndrow). Mrs Versi told him about the allegation. He was not present at the time. There were conversations about the allegations between him, Mrs Versi and the complainant. He denied making any admissions to the complainant, his wife or the psychologist. He agreed in cross-examination that he attended Dr Margeson-Towndrow’s rooms with the intention of speaking to her about the allegations, but she would not go into detail about them. When he was first made aware of the allegations he was shocked and angry that anything of that kind could be said about him. He said that when he spoke to the complainant about the allegations he was “pretty angry because what had been said was so horrible and against everything I believe” and agreed that he had probably yelled such things as, “Well, how can you say these things?… they’re not true”. He denied forcing the complainant to ring the psychologist and say her allegations were not true. He was not aware that the complainant made a telephone call to Dr Margeson-Towndrow and, certainly, he had not instigated her to do so. He denied saying to the complainant that she would destroy the family and he might go to gaol and also denied saying to Mrs Versi and the complainant that he had crossed the line and made a mistake and was trying to help the complainant.

6. The applicant recalled attending sessions with Ms Alexander when the complainant’s allegations were discussed. He said that the first time was not November 1994 but was 1990. He went with Mrs Versi and the complainant. Mrs Versi and the complainant went into her room whilst he waited outside. They came out, some discussions still taking place the subject of which he could not recall but (I take it Ms Alexander) asked the complainant “whether I had touched her vagina” and she said, “No nothing like that”. The applicant said that he did not recall seeing Ms Alexander in 1994 although it was possible that he did and that he told her that he was angry about the complainant’s behaviour and rudeness towards her mother, that she was messy, that he was close to her when she was younger, that he accepted her as his own child and that he did not interfere with her relationship with her father. He said that the consultations occurred after the complainant left following a fight with her mother. They started, he said, “because we needed some help as a family again because we needed to talk about the big fight and then I think that’s when we found out that she’d raised all these things [which she had raised in 1990] again.” He accepted that he also saw Ms Alexander in 1994, possibly in November when he made a number of complaints about the complainant’s behaviour. He did not make any admissions of misconduct during those sessions.

7. So far as what occurred after 1994 was concerned, it was broadly speaking, similar to the evidence given by Mrs Versi.

Character evidence

 

1. I do not propose to set out the evidence given under this head. It is sufficient to say that there were five witnesses called by the applicant, many of whom had seen him interacting in various family and social settings with the complainant over many years. The interaction did not demonstrate any lack of affection between the applicant and the complainant. Their evidence was not sought to be controverted by the Crown. The witnesses had known the applicant and his family for many years. Their evidence was, as far as this kind of evidence usually goes, comprehensive and persuasive.

The prosecution address to the jury

 

1. The prosecutor, after general submissions about the onus and standard of proof, commenced by a thorough and detailed analysis of the complainant’s evidence, in light especially of Mrs Versi’s evidence, dealing with each of the sexual allegations, including of course, those which comprised the charges. She outlined the complaints to demonstrate how they were consistent in substance with the complainant’s evidence. The prosecutor submitted that this material comprised six points: the complainant’s evidence; the complaint evidence; Ms Alexander’s notes; the evidence of Mrs Versi; the evidence of the accused; and the character evidence. Lastly, she moved to the evidence of SD1. It is, I think, important to note that she submitted, as to the use which the jury might make of this evidence –

“There is such a similarity between those two acts and I’m specific – number 2 on the indictment, not the others, number 2 – and the circumstances in which they occurred … There is such a similarity that because of the improbability that those things happened coincidentally you can use that to establish that the accused committed count 2 because coincidence is not a likely explanation. So that’s the way you can use that evidence.”

The prosecutor then suggested that, although it was a matter for the jury, they might start with count 2 because, if they were satisfied that the applicant was guilty of that charge, that they could be satisfied that the accused had a sexual interest in the complainant, which could inform their consideration of the other counts.

 

1. The address finished with quotations from the evidence of the complainant as to her attitude towards the applicant and her motive for bringing the allegations of misconduct forward.

The defence address to the jury

 

1. After some general remarks about the charges and the onus and standard of proof, Mr Odgers pointed to the difficulties facing an accused in having to deal with allegations of wrong doing that was said to have occurred 30 years ago and submitted that an accused in that situation could only do four things, all of which the accused had done. These were, in substance: first, to show how the allegations had changed over the years, adversely reflecting on the honesty and reliability of the complainant; second, to demonstrate that some of the allegations were false, also to adversely reflect on her reliability and honesty; third, to give evidence and subject himself to cross-examination; lastly, to call character evidence. Mr Odgers then pointed to 20 matters which, he submitted, demonstrated significant problems with the complainant’s evidence. I do not intend to list them here. It is sufficient to say that they were, though of varying importance, all worthy of consideration. They were succinctly and persuasively put and supported by accurate references to the evidence. Not surprisingly, he relied heavily on the evidence of Mrs Versi where it contradicted that of the complainant and also cited what he contended were inconsistencies and implausibilities in the complainant’s evidence. He sought to demonstrate that the complainant was hostile to the applicant from an early age for reasons that had nothing to do with any alleged sexual impropriety, referring to various parts of the evidence that, he contended, demonstrated this to be so. He pointed to the applicant’s own evidence denying the allegations and the powerful character evidence called on his behalf.

2. So far as SD1 was concerned, Mr Odgers emphasised the fact that the applicant was not charged with the event of which she gave evidence and that what she said occurred could not overcome what he described as the many, many problems with the account of the complainant. He specifically referred to two matters which he wished to highlight: the first was that, in respect of the incident charged in count 4, her highly implausible memory for detail regarding something that occurred 31 years ago, pointing to her being able to recall that the palm of her hand was facing down and that the applicant’s legs were slightly bent because of the height of the bathroom vanity; and, secondly, despite SD1’s denials about this, he submitted it was clear that she had and still has considerable animosity to the applicant, referring to a number of matters surrounding the break up with her mother, his entering into a new relationship quickly afterwards with someone with whom she did not like and the miscarriage suffered by her mother, all of these matters being in her statement to police when they had nothing to do with his misconduct. Although SD1 said that these things were mentioned in order to “anchor a time when the incident… occurred”, Mr Odgers pointed out that there was no need to do this as there was no dispute or question mark about the fact that the separation occurred in 1980 and these details, which were not the subject of any enquiry by the police officer taking the statement, were completely gratuitous and indicated her ill will towards the applicant.

The summing up

 

1. The trial judge commenced his directions to the jury immediately following the conclusion of Mr Odgers’ address, commencing about 12.30pm. The directions were completed by the end of the afternoon, when his Honour adjourned the trial, directing the jury to return the following morning to commence its deliberations.

2. The summing up commenced with a brief recitation of the counts on the indictment and then covered general directions which it is not necessary to analyse: they were in the conventional terms, covering the respective responsibilities of the judge and jury, the distinction between honesty and reliability, the permissibility of accepting the whole or part of a witness’ evidence, the distinction between counsel’s addresses and evidence, the necessity to consider the totality of the evidence, not only that to which the judge refers or to which counsel has referred, the need for each juror to participate in the consideration of the evidence and the determination of the issues, the onus and standard of proof and, finally, the need for unanimity. His Honour then went to each count, explaining the legal elements of each and the facts upon which the Crown relied to establish the applicant’s guilt. There then occurred the interruption to which I have referred relating to the compellability of Mrs Versi. The following exchange occurred concerning the content of the summing up –

“HIS HONOUR: … Now counsel, I have been through your address. I will characterise them in this way: I think there were six points you directed the jury’s mind to.

CROWN PROSECUTOR: Yes your Honour.

HIS HONOUR: I wouldn’t propose to go through your final address in a way that is sometimes appropriate where there are a series of different —

CROWN PROSECUTOR: Yes.

HIS HONOUR: — to draw to the jury’s attention. So far as Mr Odger’s is concerned, it’s a similar situation. You delineated the 20 points and made the not proved beyond reasonable doubt submission.

ODGERS: Yes.

HIS HONOUR: So, if you have any objection tell me, but that was my assessment of it. In other words, I think you both made the issues very clear.

CROWN PROSECUTOR: [Raised the possible need for a clean copy of the transcript, should the jury want a copy of it.]

HIS HONOUR: … It would be advisable to produce a clean copy of the transcript. Similar to the point I just made that there’s a lot of detail concerning a limited number of circumstances… [And] for a judge to select some of the evidence and not others and it could be confusing for them.”

 

1. At this point a note was received from the jury as to the meaning of indecency in the counts. After discussion with counsel, the judge gave an uncontroversial answer to this question. His Honour then moved to what was, in substance, a chronology of events starting with the birth date of the complainant, her parents’ separation, her mother’s subsequent marriage to the applicant, that she had a brother younger than her by about two years and subsequently twin siblings. He mentioned the homes occupied by the family. This, described as “background evidence”, was not in dispute.

2. The trial judge then moved to the first count, briefly explaining the elements and the Crown case in relation to them before moving to the context in which the alleged offence occurred, dealing with the complainant’s recollection of where they were living at the time and her school year to date the offence, the Crown case that Mrs Versi attended a Tresillian nursing clinic for a week or so with the twins and that during this time the children remained in the house under the care and supervision of the applicant. His Honour then said –

“The witnesses have given their evidence… [by question and answer] and have been carefully cross-examined by the accused’s counsel. In both the addresses of counsel they, in order to assist you, went through a lot of the detail of the evidence and the chronology with you so it is not my intention to repeat that detail. What I am trying to do is to make sure that you understand the essential ingredients of the offence and how the Crown makes out its case and the arguments that counsel have put to you and other direction[s] of law that you need to take into account when considering the evidence during your deliberations.”

 

1. His Honour then moved to count 2, briefly outlining the Crown case and then adding –

“Now it is usual in, within, people’s recollection and in trials in the experience of this Court that there are variations in the detail so I have given you the way the Crown outlined the case. Now if the evidence departs from that, that is when you have to decide and Mr Odgers carefully pointed out a number of points, whether or not they are recollection, misrecollections, that will, poor recollections of memory, inaccuracy, or whether there are some deliberate purpose in the evidence being different from what, how, the Crown opened the case but it is up to you to evaluate that when you consider the evidence.”

(I have accepted the transcript prepared by the applicant’s solicitor for the purposes of this appeal, it being agreed that the transcript prepared by the court reporters was inaccurate in some respects. It will be seen in this example that there appear to be some repetitions or “stutters” on occasion. I am satisfied that the jury would have well understood that this was merely where the judge had corrected himself as his Honour moved through the directions. The meaning of what his Honour said is clear enough. I will deal later with the general complaint about lack of clarity in the directions. The above passage is set out in response to the complaint that the trial judge did not adequately put the defence case to the jury. For present purposes, the passage cited is the only reference to the defence case on count 2 made by the trial judge.)

 

1. The judge completed his account of the facts relied on by the Crown in relation to count 2 and the necessity to prove that this was indecent according to community standards. His Honour then referred to the renovations and moved on to counts 3 and 4, briefly describing the alleged acts and how, on the Crown case, the offences came to be committed. His Honour made no mention of the defence’s criticisms of the evidence of the complainant in relation to these charges.

2. The trial judge then took up the coincidence evidence of SD1.

3. In addition to the contention, articulated in ground six, that this evidence was inadmissible, it was also contended (as stated in grounds two and seven) that the directions on this question were confusing and misleading. Here, again, I have used the transcription of the applicant’s solicitor of the summing up, setting out the material parts that seem to deal with this particular criticism. The relevant passage is as follows –

“I will turn first to what is called, ladies and gentlemen, the coincidence evidence. This is an important direction, as are the others, but what I am going to say is may not be familiar to you in your day to day lives so it requires particular attention. The accused is charged only with the offences stated in the indictment. You have before you evidence that the Crown relies upon as establishing that he committed the offences, that is accused [pause] complainant. However, you also had evidence before you that the, um, act…, um the accused is alleged to have inappropriately had contacts with… [SD1], that conduct being of allegedly the sexual kind. Now, when we consider what is described as coincidence evidence we consider the similarity between the acts and the circumstances. The Crown case here is that the circumstances were stepfather, stepdaughter in the home. The acts were involved the, each person touching the stepfather’s penis, a further circumstance being the alleged purpose of a spurious medical reason. That evidence is before you because sometimes there may be such a similarity between two different acts and the circumstances in which they occurred which I have identified that a jury may be satisfied that the person who did one act must have done the other. Now when I say “other” it is important to communicate to you that it is not the others as alleged. It is only count 2 in the indictment because it is count 2 in the indictment that refers to the acts involving the touching of the penis in the medical circumstances that are said to be spurious. You mustn’t take… [SD1]’s evidence, …[SD1]’s evidence into account when you are reasoning in respect of counts 1 and 3 and 4 and if during your discussions it drifts into that then you should correct the position.

The Crown contends there is such a similarity between the acts and the circumstance and the circumstances in which they occurred that because of the improbability of the events occurring coincidentally it establishes that the accused committed the act that is the subject of the offence because coincidence is a very unlikely explanation for the similarity or similarities. In this case the Crown says that provided you are satisfied beyond reasonable doubt that the conduct… [SD1] complains of then that act and the circumstances in which it were done was so similar to the act that the Crown amounts to in count 2 in the indictment you would conclude that the accused must have committed the offence with which he has been charged. It is important to note that evidence of such a pattern of behaviour can only be used in the way the Crown asks you if you are firstly satisfied that the accused did the other act beyond reasonable doubt. You must be satisfied that the conduct alleged by… [SD1] occurred and be satisfied beyond reasonable doubt before in your reasoning it can assist in deciding whether or not the acts or the conduct alleged in count 2 in the indictment occurred…” [Emphasis added.]

 

1. His Honour then dealt with tendency evidence in the following way –

“Now the next area that I want to take your minds to is that of tendency evidences. You may have heard in your general life experience when dealing with coincidence fact, evidence striking similarity. Evidence of tendency can be admitted. The Crown contends that the accused has a tendency to have a particular, to act in a certain way. The Crown says that the conduct alleged in the indictment with respect to counts 1, 3 and 4 demonstrate that the accused had a sexual interest in the complainant and that he was willing to act upon it. By proving that the accused had this sexual interest and he is willing to act upon it the Crown argues that you will find it more likely he committed acts charged in the indictment. Evidence of an accused person having a tendency can only be used in the way the Crown asks you to use it. If you first make two findings beyond a reasonable doubt and the Crown Prosecutor made this clear to you, the first finding is that you are satisfied beyond reasonable doubt that an act was committed or acts were committed. In making that finding you do not consider each of the acts in isolation but you consider all the evidence and ask yourself whether you are satisfied that a particular act relied upon actually occurred. If you cannot find that any of these acts is proved beyond reasonable doubt then you must put aside any suggestion that the accused had a sexual interest in the complainant and was willing to act upon it and decide the case on the remaining evidence. If you do find beyond reasonable doubt that one or more of these acts occurred then you go on to consider the second finding. You ask yourself whether from the act or acts that you have found proved you can conclude beyond reasonable doubt that the accused had the sexual interest in the complainant and that, and he was willing to act upon it. If you cannot draw that conclusion beyond reasonable doubt then again you must put aside any suggestion that the accused had that tendency, and I will state that in a more summarised way. If having found one or more of the acts to have been proved, that is the acts in the indictment I have just referred to beyond reasonable doubt, and if you can conclude beyond reasonable doubt that the accused had this sexual interest in the complainant that the Crown, alleges and that he is willing to act upon it you may use that in considering whether the accused committed the offences charged. Now in other words, you can consider, if you are satisfied beyond a reasonable doubt that a complaint was made out and the two matters I just identified to you. You can use that in considering other charges. It is important to give you two warnings in respect of that because you probably would follow from what I have just said. And the first is you must not substitute or replace the evidence of the other acts for the evidence of the specific charges and very importantly you must not reason that simply because the accused may have done something wrong to the complainant, on another, on another occasion he must have done so on the occasion charged and that re-emphasises your responsibility to consider each charge separately and return separate verdicts in respect of each charge and if the evidence you are not persuaded the evidence is sufficient with respect to one particular charge you can bring in a verdict of not guilty in respect of that charge. If you are persuaded beyond reasonable doubt the charge is made out then you bring a verdict of guilty. But subject to the direction I am just giving you, you can use in your discussions a circumstance of other charges in the indictment. But it is something about which you must we would ordinarily say exercise considerable care and caution in doing that. I would put it to you this way you must be disciplined in doing that and not let your deliberations stray into employing material in some inappropriate way because it is fundamental that these charges are being heard together as a matter of convenience and you mustn’t reason that because if you are satisfied that one occasions occurred he must have done others.”

 

1. His Honour then dealt with the evidence of complaint and delay and the prejudice suffered by the defence because of that delay, giving warnings in respect of the latter about which no complaint is made. His Honour then returned to the matters of coincidence and tendency –

“So you have the evidence of [SD1] that is required to be proved beyond reasonable doubt before you can amend it [sic]. You’ve got the evidence of the various charges finding one beyond reasonable doubt you can employ the tendency approach that I have directed you about.” (Emphasis added)

 

1. His Honour then mentioned, in relation to counts 3 and 4, that it was alleged by the Crown that these offences occurred upon the complainant in her bedroom at the second house while she was attending Queenwood school and submitted that the complainant was mistaken about whether or not the renovations were complete at that time and accepted that they must have occurred, on her evidence, before the renovations. His Honour noted, in relation to this matter, that “the accused’s counsel, in his list of points has pointed to the difference in the evidence and asks you to take that into account in evaluating the complainant as a reliable witness” and added, “It is perhaps a good example of the process that you are going to have to go through of evaluating inconsistencies and differences and attributing to them a value”.

2. The judge then referred to the evidence of Mrs Versi but only to point out that it was usual for the party calling a witness to be able to cross-examine that witness “who appears to be unfavourable” and that the cross-examination was not pursued in any vigorous way but, rather, the prosecutor was attempting to bring out what was actually in Mrs Versi’s mind. His Honour said, “The question is what she said to the prosecutor and what she said to the accused’s counsel and what do you make of it”. Aside from stating that Mrs Versi’s evidence “touches many of the issues which you have to decide and the reliability of the complainant in particular and the accused who gave evidence to you” his Honour did not enter at all into her testimony.

3. The judge then gave a direction on the right to silence, which the applicant exercised when the police sought to interview him, moving on to the alleged admissions made by the applicant, denied both by him and Mrs Versi. He directed the jury that they could not be relied on unless the jury were satisfied that the admissions were in fact made and what was meant by them.

4. After giving directions as to the use to be made of the evidence of good character, his Honour moved to counsel’s addresses, commencing with that of the Crown prosecutor. This was briefly summarised as having “concentrated on six areas”: firstly, the evidence of the complainant who, although in some things was mistaken, for example the date of the renovations, was doing her best to tell the truth; secondly, the evidence of complaint, referring to Mrs Versi’s evidence in this context; thirdly to the evidence of the character witnesses; fourthly, acceptance of the onus of proof being on the Crown; then the evidence of SD1 as coincidence evidence and lastly references to the evidence in more detail, asserting that the complainant had not told lies or made false allegations, stated the truth about the matters described in relation to counts 1 and 4, told Dr Margeson-Towndrow about it, when “it was brushed under the carpet”, and then went to Ms Alexander in 1994 where it did not go very well, her mother walking out and the complainant was disappointed and hurt once more, that she was estranged for a time and decided to restore her relationship with her mother on a superficial level.

5. With respect to Mr Odgers’ submissions to the jury, the judge said that it was in many ways a similar and appropriate approach, urging that the jury could not be satisfied beyond reasonable doubt that any one of the charges was made out. His Honour made a brief additional reference the defence address and concluded.

6. Mr Odgers sought a Markuleski direction, which the judge gave. The Crown prosecutor sought a direction that good character did not provide a defence and to remind the jury that no inference could be drawn adverse to the applicant because the complainant gave her evidence by way of CCTV, which his Honour also gave.

Grounds two and six – the coincidence evidence

 

1. This evidence was led only on count 2. Two points were taken on the appeal in respect to this matter: the first concerned the admissibility of the evidence of SD1 as coincidence evidence, it being submitted at trial that it was so prejudicial as to give rise to the risk that it would be used by the jury in their consideration of the other counts; the second, was that the language used by the trial judge would have confused the jury. In respect of the latter contention, Mr Bellanto for the applicant conceded that there was no legal error as such in the direction.

2. The relevant provisions of the Evidence Act, for present purposes, are as follows –

98 The coincidence rule

(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

(2) …

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

Essentially, as I understand it, it was submitted on behalf of the applicant that the evidence of SD1 was so prejudicial in respect of counts 1, 3 and 4 that its probative value in relation to count 2 was substantially outweighed by its prejudicial effect as it would be likely to divert the jury from a proper consideration of the evidence solely relating to the other counts. This problem was illustrated on appeal by reference to the suggestion in the Crown prosecutor’s closing address that the jury should start with considering count 2. Accordingly, it was submitted, the hurdle imposed by s 101, requiring the probative value of the evidence to substantially outweigh its prejudicial effect was not overcome.

 

1. I do not accept this submission. If it were correct (and it must be) that a determination of the applicant’s guilt of any one, two, or three of the counts in the indictment established that the applicant had a sexual interest in the complainant, then that evidence could be used as supporting the Crown case on the remaining count or counts as one of the circumstantial facts which the jury was entitled to take into account. Of course, merely because a person has a sexual interest in a child does not mean that that person has committed some sexual misconduct in relation to the child but it is, nevertheless, a fact able to be taken into account. (This, of course, is tendency evidence; I will come to the applicant’s complaint about the directions in this regard shortly.) Furthermore, the guilt of the applicant in respect of count 2 (or, for that matter, of the other counts) necessarily involved satisfaction beyond reasonable doubt that he was lying (at, in all likelihood, that his wife’s evidence was unreliable) in respect of that offence and the jury would be entitled to use that finding in considering the other counts.

2. It should be observed, however, that there was confusion about the alleged coincidental events, although not any confusion identified by the applicant on the appeal. The fact that the applicant misconducted himself in the particular manner charged was in dispute. If it were proved independently of the evidence of SD1, then resort to any coincidence was otiose. The relevant events here which were coincidental was not the sexual conduct itself but the circumstances alleged by SD1 and the complainant, and the facts that the applicant was the stepfather of both girls, who were of the similar young age. If there had been no opportunity for them to have conferred or jointly concocted their complaints, it was open to the jury to consider that the similarities were such that it was highly improbable that the witnesses were telling lies. That this is so is demonstrated by the obvious conclusion that would arise if, (to take an extreme case for argument’s sake) SD1 had given evidence that some time prior to the complainant making her complaint about being asked to apply cream to the applicant’s private parts, she had told the complainant about what the applicant had asked her to do. The mere fact that the two complaints related to what might be regarded as strikingly similar circumstances would not, plainly enough, have sufficient probative value to make the evidence of SD1 admissible and it must have been rejected. It should also be noted that both alleged acts – that is to say that involving SD1 and that involving the complainant were in dispute. There was no independent evidence supporting the evidence of either. At base, the true matter upon which reliance was put by the prosecution was that, since both complaints were (to use the vernacular) so uncannily similar, it should be inferred that (absent the possibility of communication) no other inference is, than that the conduct occurred was reasonably open.

3. It was therefore unnecessary that the jury should be persuaded that the applicant had in fact misconducted himself with SD1. The process of reasoning was much simpler: if the accounts were so similar and contained such unusual features as to make accidental coincidence very unlikely, then the complainant’s evidence was powerfully supported and the applicant was guilty of the offence under consideration. The fact that he was also – by parity of reasoning – guilty of the same misconduct so far as SD1 was concerned was an interesting but immaterial fact. I have used the term “very unlikely”, since it is not necessary, as I think, to prove that an innocent explanation was not reasonably possible, merely that it gave substantial support for the evidence whose reliability was in question.

4. The distinction between cases in which the coincidental events are not in dispute and cases in which they are in dispute was explained in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 by Mason CJ, Deane and Dawson JJ at 482 (references omitted) –

“An important distinction is to be drawn between cases such as the present case in which the ‘similar facts’ are not in dispute and cases in which such facts are in dispute. Thus as their Honours [Mason CJ, Wilson and Gaudron JJ] said in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at 295 –

‘Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.’

Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged …. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused…”

 

1. The note to s 98 of the Evidence Act says that the evidence might still be admissible even if the occurrence of one of the events was disputed. The example given by the ALRC report explicates the kind of situation in which this might be so –

“For example, if the Crown has evidence that the accused committed another substantially similar crime, the evidence could go to the jury on the basis that, if satisfied beyond reasonable doubt that: (i) the accused committed the other substantially crime; and (ii) that the same person committed that crime and the crime charged the jury should be satisfied that it was the accused who committed the crime which he or she is charged.”

Many variations on this theme can easily be posited but none of them are similar to the circumstances in this case.

 

1. Accordingly, the trial judge was, with respect, correct to allow the evidence of SD1 to be tendered as evidence of such similarity as to lend substantial support to the evidence of the complainant. Since, if the jury were satisfied that count 2 were proved beyond reasonable doubt, they were entitled to use that finding as establishing the existence of a sexual interest in the complainant, that resulting circumstantial fact could be used in its consideration of whether the applicant had committed the other charges, there was no merit in the objection to its admissibility. As to the risk that the jury might simply move from being satisfied that the applicant had misconducted himself with SD1, or for that matter, was guilty of count 2, to being satisfied of his guilt on the other counts, his Honour directed them that they must not so reason. It is not contended that these directions were erroneous.

2. However, the coincidence directions (particularly the italicised portion in the quotation above) invited the jury to move directly from being satisfied that the applicant had acted towards SD1 as she alleged, to the consequential guilt of the applicant on count 2 of the indictment. The correct line of reasoning identified above – namely that, if the conduct described by SD1 and the complainant bore such particular or unusual features as to render it very unlikely that fabrication (or, perhaps, confabulation) was an explanation of their similarity, then they were entitled to regard the coincidental accounts as supporting the truthfulness of the complainant’s evidence about the offence – was not put to the jury. At the same time, the judge’s direction that it was necessary to be satisfied beyond a reasonable doubt that the applicant had misconducted himself with SD1’s evidence before the coincidence between her account and that of the complainant could be used, favoured the defence. His Honour did not say (though in my view it would have been correct to do so) that the coincidental account of the complainant could be used to support the evidence of SD1.

3. I have mentioned that the evidence of SD1 could only be significant as coincidence evidence if it were proved that there was no opportunity for communication between her and the complainant (or, if there were, that neither communicated their complaint to the other). It is obvious that the parties did not direct their attention to this issue. It will be seen from my summary of the evidence that it would seem most unlikely that there were any such communications, the sense of the evidence being that the two families remained very much separated and there being no suggestion of any interaction. It is significant, as it seems to me, that Mr Odgers did not deal, whilst questioning SD1 or in address, with the question of the coincidence or the possibility of communication but, rather, concentrated on the contention that SD1 fabricated her accusation, motivated by hostility for the applicant. (Of course, if it were indeed independently made, that she happened to be hostile to the applicant, if true, would not weaken its coincidental force.) If the fact of non-communication were in issue, the prosecution bore the onus of proving it, as essential to an assessment of the cogency of the coincidence evidence. It seems, however, that it was simply accepted that communication had not occurred and the case was approached by prosecution and defence on that basis. The trial judge (with respect, rightly) did not advert to this matter in the directions to the jury.

4. (I note that perhaps the evidence of SD1 was also tendency evidence, but it was not proffered on this basis and it is not useful to explore this possibility.)

5. So far as confusion in expression is concerned, I have (at the request of applicant’s counsel) listened to the recording of the summing up on this matter. It is enough to say that I do not accept that there was a realistic risk that the jury would have been confused by what the judge said or the manner in which he said it. I note that Mr Odgers made no complaint about this matter at the close of the summing up.

6. It follows that the directions as to coincidence evidence were in error but for reasons other than that raised on the applicant’s behalf.

7. We have not had the benefit of submissions from the parties on the significance of what in my view is an error in the coincidence directions. It is, of course, not possible to know whether the jury’s verdict as to count 2 involved relying on the evidence of SD1 beyond reasonable doubt or whether they simply believed the complainant. A reading of the transcript does not suggest, it should be stated in fairness, any reason why SD1’s evidence should not have been accepted but, of course, this Court has not had the opportunity of seeing her give evidence.

8. I would conclude, at all events, that the applicant has not lost “a chance which was fairly open to him of being acquitted” (per Fullagar J, Mraz v The Queen[1955] HCA 59; (1955) 93 CLR 493 at 514) or “a real chance of acquittal” (per Barwick CJ, R v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376): seeWilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, per Brennan, Dawson, Toohey JJ at 371-2. However, in Weiss v R [2005] HCA 81; (2005) 224 CLR 300; 80 ALJR 444; 158 A Crim R 133; 223 ALR 662 the High Court pointed out (at [40]) that care that must be taken with these formulations of the statutory test. The Court described the task of the Court of Criminal Appeal as follows (omitting references) –

“That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.”

 

1. Recognising the “natural limitations” arising from considering only the written record, I conclude that the coincidence between the two complaints is such that it should be concluded beyond a reasonable doubt that the complainant’s evidence in respect of count 2 is truthful and reliable and that of the applicant cannot be accepted nor, to the extent that it impinges on this matter, can that of Mrs Versi. There is no reason to suppose that the jury disregarded the judge’s emphatic warning to the jury that the coincidence evidence concerned only count 2. Accordingly, it is not necessary to consider further whether the error I have identified infected, as it were, the jury’s conclusion as to count 3.

2. Accordingly, despite the error as to the use of the coincidence evidence, “no substantial miscarriage of justice” was actually occasioned and I would apply the proviso in s 6(1) of the Criminal Appeal Act 1912. Grounds two and six should be rejected.

The tendency directions

 

1. The tendency identified as available following proof of one or more of the counts was that the applicant had a sexual interest in the complainant and was willing to act upon it. The judge warned the jury that this was the only way in which a finding of guilt could be used. (This was rather favourable to the applicant, since the jury were also entitled to draw adverse findings as to honesty in respect of the applicant and, at least, as to reliability in respect of Mrs Versi, if they found the applicant guilty of one or more of the charges.) His Honour warned the jury that they were not to substitute or replace the evidence of the other acts which they found were committed for the evidence of the specific charges and emphasised that the jury must not reason that because the accused had committed one offence or more on another occasion, even if that is an occasion for which he had been charged, he must have done so in respect of the particular charge under consideration. Certainly, the global way in which the trial judge dealt with the consequences of a guilty finding on one charge for the other charges did not make for clarity. It is obvious that one would only need to consider tendency where there was an outstanding charge under consideration. I am quite satisfied that the jury would have understood this. Again, no application was made for any redirection by Mr Odgers for the applicant. I am satisfied that there was no material misdirection and certainly no miscarriage arose from it.

2. The ground of appeal, as pressed on appeal, rested on what was submitted to be unclear or confused directions as to the use to which the evidence of tendency might be put. At Mr Bellanto’s request, I have listened to this part of the summing up. I would accept that there were some obscurities and misspeaking. However, they were not such as to have led to any real risk that the jury might have been confused or misled. I am fortified in this conclusion by the fact that Mr Odgers did not seek any redirection upon this ground. Ground three is rejected.

Ground seven – the summing up as a whole

 

1. Mr Bellanto urged the Court to listen to the recording of the entire summing up, submitting that this would make good the applicant’s complaint of the risk that the jury was confused about the matters which they were required to heed. No specific arguments were made concerning confusion as to any parts other than coincidence and tendency and there is nothing in the transcript dealing with the other issues that suggests any real risk of confusion, so I have declined to accede to counsel’s request. I see nothing in the transcript provided by the applicant to suggest that the occasional misspeaking was such as to give rise to a real risk that the jury were misled or confused either as to the facts or the law.

2. The applicant points to the direction by the judge that, “If you are not persuaded the evidence is sufficient with respect to one particular charge you can bring a verdict of not guilty in respect of that charge”, submitting that it was a misstatement of the onus of proof. (The emphasis on the word “can” is to identify the source of the alleged error, not to suggest that the trial judge emphasised this word: the thrust of the direction was to emphasise the importance of distinguishing between charges.) This direction, although not happily phrased, would have been understood in light of the emphatic direction given earlier by the judge –

“In a criminal trial there is only one ultimate issue, has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer with respect to any of the charges in the indictment is yes, the appropriate guilty verdict; if the answer is no, the verdict must be not guilty.” [Emphasis added]

No redirection was sought in relation to this matter, not surprisingly. I do not think for a moment that the jury might have laboured under the misapprehension that, even if they were not persuaded of the sufficiency of evidence as a charge, they could still convict. It is also submitted that the following passage diluted the standard of proof –

“By proving that the accused had this sexual interest and that he is willing to act upon it the Crown argues that you will find it more likely he committed acts charged in the indictment.”

It seems to me that this statement of the matter was correct. The Crown did not argue that the presence of the sexual interest established the applicant’s guilt but was a fact to be borne in mind together with all the other facts in relation to each charge which, in the Crown’s submission would lead to a guilty verdict.

 

1. Accordingly, I would reject ground seven.

Ground five

 

1. This ground relies on the ex facie inconsistency between the guilty verdict on count 3 and the failure to agree on a verdict in respect of count 4.

2. In MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 367-8, Gaudron, Gummow and Kirby JJ quoted the following statement from R v Kirkman(1987) 44 SASR 591 per King CJ at 593 (with whom Olsson and O’Loughlin JJ agreed) –

“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”

Their Honours commented at 368 (references omitted) –

“We agree with these practical and sensible remarks.

… Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.”

 

1. It is sufficient to say in this case that the circumstances of each charge, as related by the complainant, differed somewhat. In relation to count 3, the jury must have accepted that the applicant had gone to the complainant’s bedroom at the instance of Mrs Versi when the complainant had said that she was finding it difficult to sleep, entered her bed and committed the sexual assault which she described. The second interference in her bed, which the complainant said occurred only within a day or two of the first, was cut short by her mother coming into the hallway close to the door and asking if everything was all right. Considering the proximity of the two occasions, a juror may have thought that it was possible that the complainant had confabulated and had not been prepared to accept that her memory was reliable as to two events of the same kind happening in a short space of time. Furthermore, Mrs Versi agreed there had been one occasion such as that described by the complainant when she had sent the applicant into the bedroom to settle her. Although she said he was only away for two minutes, this might well reasonably have been regarded by the jury as an unreliable qualification, given the lapse of time and Mrs Versi’s own expressed (indeed, apparent) difficulty in accepting that her husband had misconducted himself in any way. There was no such support, however, for the second incident. Furthermore, as the Crown submitted, the evidence of penetration was somewhat less clear in relation to count 4 where the complainant’s initial description, though it referred to masturbation, did not make any reference to penetration. She said that when her mother “came down the hallway and interrupted… he pulled his hand out of my pants very quickly” although when specifically asked by what she meant by masturbation on the second occasion the complainant said that it was the same as the first time and gave a description which would amount to penetration. I am not persuaded that the verdict on count 3 is relevantly inconsistent with the failure to agree on a verdict on count 4.

2. In my view, this ground of appeal should be rejected.

Ground four

 

1. It is submitted for the applicant, in substance, that the complainant’s evidence was so unreliable both when considered by itself but also when the evidence of Mrs Versi and the applicant are taken into account, together with the character evidence, that the verdict should be set aside as unreasonable or one that cannot be supported, having regard to the evidence: s 6(1) of the Criminal Appeal Act. The relevant principles have most recently been discussed by the High Court of Australia in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400. French CJ, Gummow and Kiefel JJ summarised the position as follows (references omitted) –

“The task of the Court of Criminal Appeal

[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.

[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen, McHugh, Gummow and Kirby JJ stated that the reference to ‘unsafe or unsatisfactory’ in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.’

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant’s police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.

[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make ‘an independent assessment of the evidence, both as to its sufficiency and its quality’: In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

‘In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”

Their Honours considered that, in the judgment under appeal, this Court had “concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence… [which] inquiry is not what is required by s 6(1) of the Criminal Appeal Act” (at [20]). Their Honours went to point out that, on appeal, “the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported” [22].

 

1. It must certainly be accepted that the prosecution case in respect of each count depended on the acceptance by the jury of the evidence of the complainant as to its truth, accuracy and reliability. There is no doubt that the complainant was mistaken as to the date of the renovations which was one (but certainly not the only) marker for the dating of the acts alleged in counts 3 and 4. Her evidence was also contradicted on a number of significant matters by her mother, quite apart from the applicant’s denials. One might accept that in some cases a mother in the position of Mrs Versi finds it impossible to accept that her husband has committed sexual misconduct against a child, especially a child of their’s and, has perhaps, closed her eyes to what an unbiased witness might have thought was at least problematical behaviour. It is, however, an altogether different matter for a witness such as Mrs Versi to fabricate evidence which, in respect of a number of matters, must have occurred if the complainant were telling the truth, though it is possible perhaps that some other differences with the complainant’s evidence (accepting that evidence to be true for the sake of this discussion) were perhaps reconstruction and confabulation, driven (as it were) in favour of the applicant by her strongly held opinion that he was entirely innocent. Other relevant matters reflecting on the complainant’s evidence are the delay in complaint, not altogether satisfactorily explained; the lack of consistency in the nature of the complaints made from time to time; and the implausibility of the applicant making any admissions, especially admissions to Mrs Versi whose attitude to the allegations, as recounted to her, had that occurred, is even more unlikely. It is fair also to observe that, as mentioned above, a number of the witnesses called to give character evidence also gave evidence about the apparent normality, indeed mutual affection, which they observed between the applicant and the complainant during family occasions when the witness was present over significant periods of time. However, that evidence may have been discounted as superficial, given the undisputed evidence of allegations made by the complainant to third parties.

2. A number of other criticisms concerning matters which the complainant could not recall and unclear recollections were enumerated in the applicant’s submissions to this Court. It is unnecessary, as I think, to repeat here all the defence arguments or, for that matter, the countervailing matters put by the Crown.

3. In significant part, there is nothing in the evidence of the applicant and Mrs Versi in particular which, so far as the transcript goes, suggests that the evidence they gave on the important issues was not truthful or reliable and, on my reading, their evidence does not demonstrate significant inconsistencies or implausibilities, nor hallmarks of, as it were, putting their heads together to fabricate untruths. But it cannot be denied that the jury in this case had a very substantial advantage over this Court in assessing the significance of these matters.

4. Leaving aside the evidence of SD1, so far as one can judge from the transcript, it is fair to say, I think, that there are sound reasons for concluding that the evidence of the complainant as to counts 2 and 3 was not so persuasive as to dispel the significant doubts raised by a number of seeming implausibilities and inconsistencies. However, to my mind (to adopt the language of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487), these doubts are resolved by the “jury’s advantage in seeing and hearing the evidence”. Making full allowance for these advantages, I do not think that “there is a significant possibility that an innocent person has been convicted”.

5. Accepting that I may have underestimated the problems with the complainant’s evidence, the decisive matter which I have found convincing is the evidence of SD1. As I have mentioned, SD1 was cross-examined to suggest that she was motivated by her dislike of the applicant to fabricate the account she gave of his misconduct towards her. I have explained that this does not really deal with the significance of the coincidence evidence. That coincidence can only be explained by some communication between the complainant and SD1 of which there was no evidence or any material which might lead to a suspicion of joint concoction. I have previously mentioned the absence of any focus on this question but I think that, reading her evidence fairly, it is inconsistent with the reasonable possibility of this occurring. It is one thing, as it seems to me, to come forward with a distasteful allegation out of resentment or dislike, however strong, but quite another to fabricate it. Accepting that the Crown did not seek to adduce evidence on this matter, nevertheless the defence did not suggest to the complainant that she had any communications at all with SD1 nor was it put to SD1 that she had communications with the complainant.

6. In the result, I am of the view that the coincidental accounts given by the complainant and SD1 cannot be explained by the reasonable possibility of joint concoction. This must lead, to my mind, to the rejection of the evidence of the applicant and Mrs Versi in respect of count 2. I hasten to add, in fairness to Mrs Versi, that this is not to say that her evidence about an instance in which the applicant applied cream in their bedroom as deposed to by her was untrue, but it certainly leaves open the possibility of an instance such as that described by the complainant, when she was not present. Taking the coincidence evidence into account – and bearing in mind the problems with the complainant’s evidence – I am persuaded beyond reasonable doubt that the applicant is guilty of count 2.

7. This conclusion has the effect of very significantly changing the conclusion which one might otherwise draw from reading the evidence of the applicant and, for that matter, the evidence of Mrs Versi: as it were, the calculus of assertion and denial. It shows that the applicant’s denial of the cream application incident is false, a finding as to his credibility which can and should be used to assess the credibility of his denials, otherwise apparently believable, in respect of the other counts. It also shows, that Mrs Versi’s evidence on this point is either unreliable or irrelevant, possibly reflecting reconstruction over the years fuelled by her opinion about the applicant’s innocence. Moreover, once it be accepted beyond reasonable doubt that the applicant was guilty of count 2, this demonstrates a sexual interest in the complainant which makes it more likely that her evidence about the other incidents is truthful.

8. Accordingly, I consider that “the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged” (see SKA at [21]). Furthermore, if it be relevant, I am myself persuaded beyond reasonable doubt of the applicant’s guilt of the charges of which he was convicted. It follows that this ground of appeal must be dismissed.

Imbalance in the summing up

 

1. This was not a ground of appeal. In the course of his submissions on ground two, Mr Bellanto (as he put it) interrupted himself to observe, in effect, that the summing up was imbalanced in the sense that the trial judge referred to the prosecution case in some detail and made little reference to the way in which the defence put its case. This is not the appropriate way in which to take a substantive point of appeal and it should be inferred that no such error forms part of the appeal. I note, in passing, that very experienced counsel took no such point at the trial.

Conclusion on the appeal against conviction

 

1. I would therefore grant leave to appeal but dismiss the appeal as to each conviction.

The appeal against sentence

 

1. I have had the advantage of reading the judgment of Basten JA (with whom Latham J agrees) concerning this ground of appeal. Their Honours would grant leave to appeal but dismiss the appeal. With respect, I do not agree with this outcome. The following are my reasons for this conclusion.

2. The applicant was aged 62 years and 8 months as at the date of sentence. On count 2 of the indictment the applicant was sentenced to a fixed term of 6 months imprisonment commencing on 29 March 2012. Considering the fixed term as a notional non-parole period and assuming the same variation of the ratio between the full term and non-parole period that was applied to the effective non-parole period and the overall sentence (60 per cent) the starting point for this sentence was 10 months. On count 3, the applicant was sentenced to a non-parole period of 15 months commencing on 29 June 2012 (hence, accumulated by 3 months on the sentence for count 2) with a balance of term of 12 months. Accordingly, the overall sentence was 2 years and 6 months with an effective non-parole period of 1 year and 6 months. The statutory ratio between non-parole period and overall term was, therefore, 60 per cent rather than 75 per cent. (I refer below to the special circumstances that led to this calculation.)

3. The ground relied on for the appeal against sentence was that it was manifestly excessive and outside the appropriate range, the applicant submitting also: the sentences should not have been accumulated; the primary judge erred in his Honour’s assessment of objective seriousness; excessive weight was given to the requirement of general deterrence; the sentences were higher than those which would have been imposed at the time the offences were committed; and the sentencing judge erred in failing to apply to the non-parole periods the same calculation that would have been used at the time of the offences.

The objective features

 

1. There was no dispute in this Court as to the facts found by the primary judge. His Honour noted that the applicant was the stepfather of the complainant, and the offences thus constituted an abuse of his position of trust and authority. So far as count 2 was concerned, his Honour found that the applicant procured the complainant, then “a 10 year old or thereabouts”, to rub cream onto his genitalia as he lay on a bed. (Although no point is taken in this regard, the indictment specified an age of 11 or 12 years, and the evidence was inconsistent with any earlier age.) The judge said he did not fully accept that the applicant’s claim of the presence of a rash and for some “assistance of a medical kind” was a ruse. He considered that “what happened… [was a] spontaneous or impulsive reaction”. In respect of count 3, the judge found that the complainant, being unable to sleep, went into the bedroom of her mother and the applicant to ask her mother for a cuddle. Her mother woke up and asked the applicant to deal with the complainant. He took her back to her bedroom, got into the bed with her and, whispering words along the lines of, “this is what you do when you can’t get to sleep” put his hand down her pants and briefly placed his finger inside her vagina, in the words of complainant, he “sort of dipped it in”.

2. The judge accepted as correct the Crown’s submission that the offences were spontaneous, although there was “some evidence of inappropriate context… when the offender kissed and cuddled the complainant inappropriately” and added –

“Other than to say the misconduct was spontaneous it is difficult on the evidence to reach firm conclusions as to the offender’s motive.”

His Honour found that the offences did not represent an ongoing course of conduct or persistent abuse towards the complainant.

 

1. It was submitted on behalf of the applicant that the “facts could be fairly described as falling at the lower end of objective seriousness”. The judge considered that the force of this submission “is very much reduced having regard to the age of the complainant”, making no distinction between the offences. Referring to the aggravating matters listed in s 21A of the Crimes (Sentencing Procedure) Act 1999 and, having noted in relation to the victim’s age and vulnerability and the applicant’s abuse of trust and authority, that the former was an element of both offences and the latter an element of count 3, his Honour said –

“It was not the worst case by any means but was very serious misconduct of a sexual kind against a child… What was involved here were two discrete acts against the one victim twenty-five years ago. “

 

1. The judge declined to find that the applicant had committed an offence against SD1 since it could not be known whether the jury so found in reasoning to the conviction on count 2. Of course, it was therefore a matter for his Honour to decide and he was entitled to take into account, for this purpose, the coincidence evidence. Be that as it may, no point was taken by the Crown in this respect. The conclusion that the offending conduct appeared to be out of character was thus somewhat favourable to the applicant, although it is fair to observe that the evidence supported the conclusion that the applicant had not committed any other offences.

2. Dealing with subjective factors, the judge noted that the offender had no previous convictions, was between 36 and 40 years of age at the time of the offences and found, since they were committed, the applicant had been of “impeccable character” despite his having “commonly been in situations which provided the opportunity for misconduct”. He accepted that the applicant had undertaken “considerable community work in particular raising funds for worthy causes”. Although the not guilty plea and the applicant’s continued denial of guilt precluded a finding of remorse, his Honour concluded, in light of his good conduct since the offences, it “is very unlikely that any re-offending will occur” and that “there is no present sign, indication or suggestion that the offender is in the category of persons who have an ongoing sexual interest in children”. His Honour concluded that, the “minimal” chance of re-offending diminished “slightly” the role of personal deterrence and consequently the length of the sentence. As well, the applicant “is entitled to a slight reduction in the sentence that otherwise would have been imposed for his good character over the past twenty years or so”. In respect of general deterrence, his Honour said –

“In cases of sexual misconduct against children, any sentence imposed must embrace a very substantial element of general deterrence. This is particularly so where the offender is in a position of trust”.

The complainant’s age

 

1. I have already mentioned the judge’s reference to the age of the complainant when the offence in count 2 was committed. The situation so far as count 3 is concerned is not so simple. The age of the complainant at the time of the offence, as particularised in the indictment, was 12, 13, 14 or 15 years. Furthermore, if the complainant had been 15 years of age at the time, given that the charge in the indictment extended to 31 December 1989 and the fact that the complainant’s 16th birthday would have been 29 January 1990, she may have only been a few months short of her 16th birthday when the offence was committed. The evidence was conflicting as to the date of the offence, the Crown’s case being that it was earlier than the date indicated by the complainant’s evidence.

2. This issue was not taken up directly in the sentence proceedings. In the context of a submission as to whether concurrent or partially cumulative sentences should be imposed, the prosecutor submitted that, in accordance with sentencing practice at the time of the offences (if committed within a short period, which was conceded) the Crown would support a wholly concurrent sentence. The judge responded, “Yes, I accept that.” In his written submissions, senior counsel for the applicant had conceded that the age of the complainant at the date of both offences was about 12 in the context of submitting that the sentences should be concurrent. In the result, however, the judge accumulated the sentence on count 3 by 3 months on the sentence imposed on count 2. The reason given for this course was that it was “appropriate”. His Honour did not refer to, let alone make any finding about, the age of the complainant at the time of the count 3 offence or the time frame of the offences or, for that matter, the correctness of the submission as to the practice at the time of the offences. Considering his Honour’s reasons as a whole (particularly the observations as to what was demonstrated by the table of cases) I have concluded, with respect, that his Honour simply decided that, despite the past practice in this respect, the sentences should be accumulated to some degree.

Delay

 

1. The judge noted that it is not uncommon in child sexual assault cases for there to be a substantial delay between the offences and the laying of charges. He mentioned the young age of the complainant at the time of the offences and briefly set out the evidence as to complaint and the responses of the applicant and Mrs Versi. Although there was no reference to the reasons for delay after the complainant became an adult, as I understand the effect of his Honour’s reasons, the delay in bringing the charges was not due to any tardiness of the authorities and hence this factor was immaterial.

The sentencing practice at the time of the offences

 

1. The judge observed that the sentences should accord with “the sentencing standards current at the time” of their commission, citing R v MJR [2002] NSWCCA 129; (2002) 130 A Crim R 481; (2002) 54 NSWLR 368 and AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32 at [39]. Referring to a schedule of old sentences together with some prior cases which were relied on in submissions by the applicant’s counsel, his Honour said this material should not be applied “in a mechanistic way”, adding that it showed the “continuing requirement to impose sentences that recognise the objective seriousness of sexual assault” and the “applicable sentencing standards expressed in prior cases emphasise the importance of general deterrence in cases of sexual misconduct”. His Honour made no reference to the general level of sentencing shown in the material, nor specifically to the practice as to non-parole periods.

2. The judge found special circumstances applied, stating –

“The present practice is not necessarily to reduce the sentence on account of any executive policy of remissions that might have applied to the offender had he been sentenced when the Probation and Parole Act made such provisions. However, those circumstances justify a finding of special circumstances quite apart from the other subjective features which may have produced the same finding. Although not determinative, other factors indicative of special circumstances include the offender’s age, [and] the fact that this is his first time in custody.”

Character, deterrence and delay

 

1. The consideration of these questions requires some further discussion of the relevant principles.

2. The first of these matters concerns the character evidence tendered by the applicant. This was unusual because of the number of witnesses who provided written testimonials and those who gave evidence at the sentence proceedings. It is fair to say, I think, that neither the testimonials nor the evidence was formulaic. The witnesses all expressed their disbelief that the person whom they thought they knew well could have committed the offences of which he was convicted. There was also convincing evidence that, over many years, the applicant had participated to a significant degree in fundraising for and providing services to charities and their events including Rotary, The Royal Children’s Hospital, The Starlight Foundation and Stepping Stones House. He received a commendation award for instigating and organising, as a private citizen, substantial financial contributions and material support for the SES, police and volunteers engaged in rescue operations in the Thredbo landslide disaster in 1996. Accordingly, the applicant’s otherwise good character involved more than mere absence of prior or subsequent convictions and what might be regarded as private virtue. Nor were his “good works” used to provide an opportunity for the commission of the offences.

3. A useful starting point for considering the significance of good character in connection with sentencing an offender for sexual offences is Ryan v The Queen[2001] HCA 21; (2001) 206 CLR 267, where the applicant (a priest for many years) had pleaded guilty to nine counts of indecent assault, three counts of sexual intercourse with a person under the age of 16 years knowing that he was not consenting, one count of gross indecency, one count of indecency, with 39 additional offences taken into account. The appropriate principle is, as McHugh J said (at [25]) –

“If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances.” [Original emphasis.]

 

1. Not surprisingly, and given the nature and extent of Ryan’s offences, “his otherwise good character could only be a small factor to be weighed in the sentencing process” (McHugh J, ibid [33]). The two identified features in this regard were, firstly, that whilst Ryan was doing “good works” he was at the same time committing grave offences and, secondly, the “good works” at the heart of his claim of good character were the priestly duties in the course of which he committed the offences and of which he took advantage to do so. Accordingly, although Ryan was certainly entitled to some leniency, he was not entitled to significant leniency (ibid [35]). To the same effect see Callinan J at [174] citing, with approval, R v Hermann (1988) 37 A Crim R 440, an appeal against a sentence of an offender of apparent good character who had sexual intercourse with his stepdaughter on a number of occasions over a period of three years. Where Lee J (with whom McInerney J agreed; Kirby ACJ dissenting) said (at 448) –

“So far as the question of good character is concerned, it has been pointed out in other cases that, where the event is not an isolated one, it is difficult for the court to give a great deal of consideration to an accused’s ‘previous good character’, for the truth of the matter, as the evidence has disclosed, is that whilst appearing to have a good character and others believing so, he has over a lengthy period been committing a heinous crime on a helpless child. To give to an applicant’s so-called ‘previous good character’ much weight in such circumstances is to give an appearance that the court is conceding to a parent or person in loco parentis or within the family unit some right to use a child for sexual pleasure at will. Of course, when the offence is an isolated one, the matter of the good character of the applicant as a factor in mitigation may be given a much greater degree of significance.” [Emphasis added.]

Callinan J referred also (Ryan at [175]) to the reduction of the effect of good character where a series of crimes are deliberately and carefully planned and executed (citing R v Morley [1985] WAR 65).

 

1. Although it is fair to say that it is appropriate in cases of child sex offences to limit the significance of the offender’s otherwise good character, the extent of so doing is not fixed: the particular facts are important. Thus, in R v Kennedy [2000] NSWCCA 527, Howie J (Simpson J agreeing) said –

“[21] It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.

[22] Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant.”

See also R v Gent [2005] NSWCCA 370; 162 A Crim R 29 per Johnson J (with whom McClellan CJ at CL and I both agreed) at [45] – [69].

 

1. I would also add, though perhaps it does not need mentioning, that obviously the nature and extent of the character evidence must also be taken into account. In this case, that evidence, together with the isolated and aberrant nature of the two offences calling for sentence, indicates, to my mind, that it should be given somewhat more than slight weight.

2. The second issue concerns the complainant’s age at the date of the offence in count 3. There can be no doubt that, as a general rule, the younger the victim of a sexual assault, the greater is its objective seriousness: see, for example, PWB v R [2011] NSWCCA 84 per Beazley JA (as her Honour then was) (at [11]), where her Honour observed (references omitted) –

” … [The] case law recognises the seriousness of sexual offending against younger persons, including, as a general proposition, that the younger the child, the more defenceless and vulnerable the child will be. The case law, over the last two decades at least, is consistently to the effect that in sexual offence cases, the younger the child, the more serious the criminality”.

Her Honour added (see [12]) that the particular vulnerability of a child of young years is recognised by the principle that, even where the age of the victim is an element of the offence, the age of the child within the specified range is still material.

 

1. Although the evidence would not justify a finding, adverse to the applicant, that the complainant was aged less than 15 years at the time of the count 3 offence, as mentioned above, senior counsel for the applicant, at first instance, submitted that the complainant was about 12 years of age at the time of both offences. As mentioned above, the judge made no finding about this. However, it should be inferred that his Honour acted upon the basis of the agreed position. This question was not agitated in the appeal except in the sense that it was submitted by the applicant that the sentences should have been concurrent and by the Crown that the accumulation was appropriate. In my view, this Court should proceed on the basis put by the parties in the sentence proceedings.

2. The third important consideration is the significance of delay, both as to the weight to be given to personal and general deterrence and the effect of the sentencing practices as they applied at the time of the offences.

3. It is appropriate to accept the primary judge’s findings that the two offences were isolated and the applicant poses no risk of re-offending. The following observation of Howie J (with whom the other members of the Court agreed) in Regina v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497 applies –

“[81] … In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court.”

These observations were repeated by his Honour (with whom the other members of the Court agreed) in AJB v Regina [2007] NSWCCA 51; (2007) 169 A Crim R 32. Commenting on the practice in 1982 (until the commencement of the Sentencing Act 1989) that a non-parole period was fixed somewhere between a third and half of the term of the sentence, his Honour said (at [39]) –

“… [One] consideration in determining …[the] non-parole period was the seriousness of the offence and the requirement of general deterrence. General deterrence was not a significant matter in the applicant’s case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct.”

 

1. Furthermore, in light of both the isolated and aberrant character of the offences, the absence of subsequent offending, and the minimal likelihood of re-offending, it was also appropriate to sentence the applicant on the basis that personal deterrence is a factor of little significance.

2. Noting the observation of Howie J in AJB at [31] that it was not appropriate for the Court “to try to replicate, not only the sentencing practices of 1982, but also the executive practices of that time in respect to the treatment of prisoners”, Basten JA (with whom RS Hulme and Schmidt JJ agreed) said inRosenstrauss v R [2012] NSWCCA 25

“[11] The remission system operated not pursuant to the general law, or executive act (although there were areas of discretion) but pursuant to regulations made under the Prisons Act 1952 (NSW) and, at the relevant time, the Prisons Regulation 1968 (NSW). The entitlement to ‘ordinary’ remissions varied depending upon whether the offender had previously served a period of imprisonment of three months or more. If so, he or she was entitled to remission of one-quarter of the sentence period; if not, the entitlement to remission was one-third of the sentence period. (The relevant provisions are conveniently found in Smith v Corrective Services Commission (NSW) [1980] 2 NSWLR 171 at 183-185, in the judgment of Hope JA; see also Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134 and Green v Corrective Services Commission (NSW) [1982] 1 NSWLR 327.)

[12] As explained by Gleeson CJ, Hunt and Loveday JJ in Maclay, it was established principle that the sentencing judge should not increase the sentence to counteract the effect of anticipated remissions on the period to be served. However, that did not mean that the court ignored the anticipated remissions. With the introduction of the parole system pursuant to the Parole of Prisoners Act 1966 (NSW), it became necessary for the sentencing judge to take account of the likely diminution on account of remissions in order to avoid ‘the absurd result that a prisoner would be, as a result of the remissions system, released before the expiration of the non-parole period specified by the sentencing judge, with the result that the non-parole period would be rendered nugatory’ [13] There might be a nice question as to whether it would now be necessary to consider the sentencing practices at the date of the offending, or as at the date of likely sentencing. With the commencement of the Probation and Parole Act 1983 (NSW), the absurdity which had previously existed was removed by providing for remissions to apply to the non-parole period. The result was, again in the words of the Court in Maclay, that ‘all marched precisely in step in a proportionate sense’: at 118G. However, the courts held that ‘neither in relation to head sentences nor in relation to non-parole periods were sentencing judges to increase terms to negative the effect of remissions that would be applied to them’: Maclay at 120D.

[14] Applying the law, rather than executive practice, a sentencing court, whether in 1981 or 1984, would have fixed a non-parole period on the assumption that the overall ‘sentence period’ would be reduced not only by one-third, on account of ordinary remissions, but also for ‘earned’ remissions and, in all probability, other remissions which might accrue from time to time, such as ‘special strike remissions’, designed to recognise the increased harshness of imprisonment during periods of industrial action by prison officers, which were not uncommon.”

Accordingly, since in that case the sentencing judge’s imposition of a non-parole period at two thirds of the overall term, which would not have accorded with sentencing practice at the time of the offending, error was demonstrated and the non-parole period should be fixed at one third to one half of the head sentence (see also RLS v R [2012] NSWCCA 236 at [86] – [93]). The present case, to my mind, is no different in substance. Here, of course, the offences were committed after the commencement of the Probation and Parole Act 1983, so that the fact that the non-parole periods would have been reduced by the application of remissions must be ignored.

 

1. Since, under the Probation and Parole Regulation 1984, remissions applied also to the non-parole period (as they did to the sentence) it was not appropriate for a sentencing judge to make allowance for the likely reduction in the head sentence by way of remissions, as this reduction would have been effected pursuant to the Regulation. Moreover, the judge was not able to take into account the possibility or likelihood of the reduction by increasing the non-parole period which was imposed: R v O’Brien [1984] 2 NSWLR 449; R v Paivinen [1985] HCA 39; (1985) 158 CLR 489. In 1986, however, s 21A was inserted into the Probation and Parole Act entitling the judge to order, in effect, that the remissions otherwise applicable, should not be applied in a particular case where to do so “was desirable by reason of the nature of the offence or the antecedent character of the [offender]”, so that the full non-parole period imposed would be served. The effect of this provision was undermined by this Court’s decisions in R v Rogers (1987) 8 NSWLR 236 andR v Evans (1987) 8 NSWLR 540, that it was inappropriate in any circumstances for a sentencing judge to exercise the power conferred by s 21A. In R v Watt [1988] HCA 58; (1988) 165 CLR 474 the High Court held that this approach amounted to an abdication of jurisdiction and the section should be applied according to its terms. In R v Maclay (1990) 19 NSWLR 112; 46 A Crim R 340 this Court held, considering the situation after remissions were removed by the Sentencing Act 1989, that there should not be a reduction in sentences in an attempt to adjust for that removal.

2. Spigelman CJ (with whom Grove and Sully JJ and Newman AJ agreed, Mason P contra) concluded, in R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368;(2002) 130 A Crim R 481 at [31] that it was appropriate for a court to take into account –

“… the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender.”

As Garling J (Basten JA (with additional comments) and R A Hulme J agreeing) said, in MPB v R [2013] NSWCCA 213 at [80] – [81] this principle has been regularly applied by this Court, though not without difficulty. His Honour went on to summarise the present position –

“[82] The difficulty arises because the sentencing court is being asked to reflect sentencing patterns or practices from earlier times, in a sentence being imposed at a much later time. In order so to do, the court must have a clear picture of what those earlier sentencing patterns and practices were. And, that picture must be as comprehensive as is possible.

[83] In some circumstances, it will be possible for the relevant sentencing pattern to be capable of being readily discerned. As cases such as Shore, Featherstone v R [2008] NSWCCA 71; (2008) 183 A Crim R 540, PWB v R [2011] NSWCCA 84; 216 A Crim R 365, and Magnuson [[2013] NSWCCA 50] show, a comprehensive identification of similar cases, or else references to readily available statistical databases may assist in establishing earlier sentencing patterns. But, as experience shows, such sources need to be considered with some care because of inherent difficulties with them. For example, are the cited cases truly representative of those decided over the period, or else how is it that the statistical tables or analyses provided take into account, and identify, the wide variations in objective criminality and subjective circumstances. Statistical tables of sentencing outcomes are always to be treated with care.

[84] However, if a sentencing pattern is readily, and reliably discernable, then such material ought be put before the sentencing court for it to be taken into account. Ordinarily, it is not to be thought that a sentencing court will know, without assistance, what earlier sentencing patterns were. Much less is it to be ordinarily thought to be appropriate that material of this kind is not put before a sentencing judge and then is deployed on an appeal to this Court.

[85] Whether or not such a sentencing pattern can be reliably discerned, other historical matters relevant to sentencing practice can be identified, and ought be considered as part of the sentencing process. One such historical matter is the then existing statutory regimes under which a person would have been sentenced, including whether the legislation provided for, or else sentencing practices reflected, non-parole periods of a specific length or ratio to the overall sentence: see AJB v The Queen [2007] NSWCCA 51 169 A Crim R 32 at [36][38] per Howie J, Adams and Price JJ agreeing; MJL v R [2007] NSWCCA 261 at[27] per Hidden J, Campbell JA agreeing, at [43]-[48] per Smart AJ, Rosenstrauss v R [2012] NSWCCA 25 at [16] per Basten JA.

[86] However, in ascertaining any legislative provisions which may impact upon sentencing practices, the court does not engage in understanding the impact, if any, of executive practices on sentence. A ready example was the, now discontinued, executive practice of granting remissions to prisoners with respect to their head sentence: see AJB at [31]. Even if this practice was not truly an executive one, the operation of the remission system ought not be reflected in sentences which are imposed now: Rosenstrauss at [10]-[12] per Basten JA, R S Hulme and Schmidt JJ agreeing.”

 

1. His Honour went on to refer to the use of judicial recollection as providing a basis for or a confirmation of the existence of a sentencing practice or pattern and the problems with this course. The position as to non-parole periods is quite different. It is accepted that sentences imposed prior to the Sentencing Actof 1989 involved non-parole periods usually in the order of one third to one half of the head sentence and a sentencing judge should take this into account in considering whether there are special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act justifying a reduction of the non-parole period which would otherwise apply.

2. In this case another feature is material. As I have already mentioned, it was submitted by the prosecutor to the primary judge that, were his Honour to hold (as it was submitted he should) that the two offences were committed within a relatively short time span, the applicable sentencing practice at the time of their commission would have been that the sentences would have been wholly concurrent. Even though there are substantial problems with a judge applying his or her recollection of past sentencing patterns, as it happens my own recollection coincides with the agreed position taken in the sentencing proceedings. In my view, that position should be accepted and applied by this Court. At the same time, the overall sentence must reflect the total criminality involved in both offences.

3. The applicant provided the sentencing judge with case summaries of indecent assault offences more or less similar to those here under consideration, which were committed in the 1970’s and 1980’s, a list of sentences passed between 1970 and 1985 for the offence of indecently assaulting children (many of which involved other sexual offences including intercourse), a list of sentences passed between 1992 and 2006 for offences committed through that period under s 61M(1) and (2) of the Crimes Act 1900, a table of indecent assault cases where non-custodial sentences had been passed between 1990 and 2005 and, lastly, a table of sentences under s 66C(2) (sexual intercourse with a child between 14 and 16 years, under authority) passed between 1986 and 2003. The possible utility of this material was significantly reduced by the lack of any attempt at analysis. It is not for the Court to construct the argument to which the tender of such material is directed. Nevertheless, the overall picture leaves me with the distinct impression that the sentences imposed at about the time of the offences were somewhat lower than would now be imposed, even after adjusting for the increased maximum penalties. Also produced were Judicial Commission statistics of sentences passed between 2006 and 2012, which do not distinguish cases on the basis of the applicable legislation. Since the legislation had significantly changed between that which applied to the offences under appeal and these dates, the statistics are not useful.

Conclusion

 

1. With respect, it seems to me that the sentencing judge overstated the weight that needed to be given to the considerations of personal and general deterrence and understated the significance of the applicant’s good character. Furthermore, given that a non-parole period of between a third and a half of the head sentence would have applied at the date of the offences, his Honour’s application of a ratio of 60 per cent, without an explanation for doing so, and where nothing in the facts argues for such a differentiation is also, with respect, an error.

2. To my mind, the sentences here are not manifestly excessive, either individually or overall. However, error having been demonstrated, this Court must consider for itself whether lesser sentences are warranted and, if so, to impose them in lieu of the sentences under appeal: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284.

3. Certainly the age of the complainant at the time of the offences is a significant component. For all that these offences were at the lower end of the scale of objective seriousness, they were inherently grave, involving a breach of trust and sexual interference with a young child whose personal integrity, it was the duty of the applicant to protect, and the abuse of which exposed her to long term adverse consequences. For these reasons, I consider that a sentence of imprisonment is appropriate.

4. So far as count 2 is concerned, the abuse of the applicant’s authority increases the seriousness of the offence. The maximum sentence of 2 years imprisonment must apply to acts of indecency of much greater gravity, involving children of a much younger age than 11 or 12 years and direct intimate interference with their physical integrity, together with the use of force and threats. This offence was disgusting and humiliating but involved no threat or force, was over quickly and there was no interference with the complainant’s person. With respect, this was not only not “the worse case by any means” but, having regard to the range of circumstances comprehended by the section, was well within the lower range of objective gravity. Such a finding would seem to be inconsistent with the starting point of ten months, bearing in mind, furthermore, that the scale of available sentences is not linear by any means.

5. In respect of the count 3 offence, this also involved no threat or force and was momentary. The extent of interference was slight, indeed the least capable of constituting the offence. The (somewhat uncertain) age of the complainant was approximately midway between the ages contemplated by the section. This offence also was very much at the lower end of objective seriousness for offences comprehended by the section.

6. I have already referred to the relevant subjective features. The applicant is now something over 64 years of age. It is appropriate to apply a non-parole period of between a third and a half of the overall head sentence, the special circumstances within the meaning of s 44(2) of the Sentencing (Criminal Procedure) Act 1999 comprising the sentencing practices at or about the time of the offences together with the applicant’s age. Having regard to the consideration to which Howie J referred in Moon (quoted above), it seems to me that the appropriate ratio is in the order of 40 per cent. Following his sentence on 29 March 2012, the applicant was granted bail in the Supreme Court on 16 August 2012. He has thus spent 141 days in custody, which should be taken into account in the manner envisaged by ss 18 and 28A of the Criminal Appeal Act 1912.

Proposed orders

 

1. I would propose the following orders –

                        (1) Leave to appeal against conviction is granted.

                        (2) Appeal against conviction is dismissed.

                        (3) Leave to appeal against sentence is granted.

                        (4) The appeal is upheld, the sentences are quashed. In substitution therefore, the following sentences are imposed –

                                    (i) on count 3, the appellant is sentenced to a non-parole period of nine months imprisonment and a balance of term of one year and three months;

                                    (ii) on count 2, the appellant is sentenced to a fixed term of four months.

Disposal of the appeal

 

1. As the appellant was granted bail pending the outcome of this appeal, the sentences under appeal, in accordance with ss 18 and 28A of the Criminal Appeal Act 1912 must be directed to recommence on the date of this judgment, the appellant being required to serve the balance of the sentences (rounded down slightly). Accordingly, the Court makes the following orders –

                        (1) Leave to appeal against conviction is granted.

                        (2) The appeal against conviction is dismissed.

                        (3) Leave to appeal against the sentences imposed is granted.

                        (4) Appeal against the sentences is dismissed.

                        (5) On count 2 of the indictment the appellant’s fixed term is directed to recommence on 14 November 2013 and expire on 23 December 2013.

                        (6) On count 3 of the indictment, the appellant’s non-parole period is directed to recommence on 14 November 2013 and expire on 23 December 2014, with a balance of term of 12 months commencing on 24 December 2014 and expiring on 23 December 2015.

                        (7) The appellant is to be released on parole on 24 December 2014.

2. LATHAM J: I agree that the conviction appeal and the sentence appeal ought be dismissed for the reasons provided by Basten JA. I provide these additional reasons for joining with Basten JA with respect to the sentence appeal.

3. As Basten JA notes, the sole ground of appeal against the applicant’s sentence was that “the sentence was manifestly excessive and outside the appropriate range”. The assertion that the sentence is outside the “appropriate” range adds nothing to the submission that it was manifestly excessive. The written submissions relied upon by senior counsel do not distinguish between the sentences imposed for the individual offences and/or the aggregate sentence.

4. There is nothing in the written submissions that explicitly attributes error in the findings made by the sentencing judge. To the extent that Adams J has inferred from the applicant’s written submissions a number of errors, I would draw attention to the following matters.

5. The height of the submission in relation to the accumulation of the sentence for count 3 on the sentence for count 2 to the extent of 3 months is :-

any penalty on count 2 should have been properly absorbed within the penalty on count 3. They occurred when the complainant was aged approximately 12 years and there is no need, in fairness, to apply the principle of totality. The totality approach is appropriate where there are a large number of offences and where the offences are not closely related in time and nature and where there is more than one victim.

 

1. The determination to partially accumulate sentences is an exercise of the sentencing discretion. The judge was required to impose an appropriate sentence for each offence, having regard to the relevant maximum penalty, and then consider, in the exercise of his discretion, how best to structure the sentences in order to arrive at an aggregate sentence which appropriately reflected the totality of the applicant’s criminality : Pearce v The Queen [1998] HCA 57 ; 194 CLR 610 at [45]. It is not a question of fairness to the applicant. It is not the law that the principle of totality is only “appropriate” in the circumstances described by the applicant. The applicant does not (and could not correctly) submit that it was not open to the sentencing judge to partially accumulate the sentences. Unless the applicant can demonstrate that the discretion to do so miscarried in the House v The King sense, there is no error. Of course, that is a distinct consideration from the question whether the aggregate sentence is manifestly excessive.

2. The applicant’s submissions on the objective gravity of each offence simply state that counts 2 and 3 are “at the lower end of the scale of objective seriousness”. The judge’s finding was that the submission that the applicant’s conduct (on each occasion) fell at the lower end of objective seriousness was “very much reduced having regard to the age of the complainant. It was not the worse case by any means but was very serious misconduct of a sexual kind against a child.” (I agree with Adams J that this Court should approach the appeal against sentence on the basis that the complainant was about 12 years of age at the time of each offence.)

3. Clearly, his Honour assessed the objective gravity of each offence as above the lower end of the scale, whilst accepting that the conduct was spontaneous or impulsive. The applicant does not submit that the judge took into account any irrelevant consideration or failed to take into account a relevant consideration. The assessment of the objective gravity of an offence is part of the process of instinctive synthesis. Moreover, it is not necessary to make a detailed or specific assessment of where an offence falls on a notional scale where the offence does not carry a standard non parole period : Khoury v R[2011] NSWCCA 118 at [71] to [74] per Simpson J (Davies J and Grove AJ agreeing) ; Zreika v R [2012] NSWCCA 44 at [46] per Johnson J (McClellan CJ at CL and Rothman J agreeing). The applicant has not demonstrated any error and has not submitted that the judge’s finding in general terms was not open to him.

4. The applicant’s submissions with respect to specific and general deterrence consist of general statements of principle that do not advance any error on the part of the judge. The delay between the commission of the offences and sentence, the applicant’s prospects of rehabilitation and the low risk of re-offending were all addressed by the judge in his remarks on sentence. The applicant’s reliance upon delay fails to take account of earlier efforts by the complainant to report the offences.

5. The applicant’s reliance upon Simpson J’s comment in R v Jenkins (1999) NSWCCA 110 at [38] that “his Honour rightly considered general deterrence to be an important factor in the sentencing decision but, in my view, he allowed that single factor to override, to an impermissible degree, the applicant’s favourable subjective circumstances, and particularly the finding that he was unlikely to re-offend”, is also misplaced. That statement explains and supports a finding by her Honour that the sentence under consideration was manifestly excessive, a proposition that was rejected by every other member of that bench (Spigelman CJ, Wood CJ at CL, Newman and Hulme JJ). In any event, Simpson J was not laying down a statement of principle. Her Honour was merely dealing with the circumstances of that particular case.

6. In the instant case, the judge’s observation that “in cases of sexual misconduct against children, [particularly where the offender occupies a position of trust] any sentence imposed must embrace a very substantial element of general deterrence” is entirely orthodox. There is nothing in that statement that demonstrates the attribution of excessive weight to that factor.

7. As for the assertion that the sentences and non parole period imposed were higher than those imposed at the time of offending, I agree with Basten JA that perceived patterns of sentencing in 1985 and 1986 play no part in this application.

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