HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, Raymond Pethybridge, was arraigned on an indictment containing 18 counts relating to historic sexual misconduct against eight different complainants, all of whom came into contact with the applicant during his employment with the Salvation Army. The original indictment was severed into two trials. Following the first trial, the applicant was found guilty of all counts with the exception of one count which was charged as an alternative. Following the second trial, the applicant was found guilty of all counts with the exception of one count which was subject to a verdict of not guilty by direction. The applicant was sentenced to an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years.
The applicant sought leave to appeal against both conviction and sentence. There were three grounds in the conviction appeal.
Ground 1 - In relation to the first trial, the applicant submitted that the trial judge erred in his direction to the jury about consciousness of guilt. The trial judge gave a direction that it was open to the jury to find that the applicant had lied in three respects and, if the jury so concluded, they could further conclude that he did so from a consciousness of guilt. However, the Crown had only put to the jury that it was open to them to find that the applicant had lied from a consciousness of guilt in one respect.
Ground 2 - In relation to the first trial, the applicant submitted that the trial judge erred in refusing to allow the applicant to adduce evidence by consent of his prior good character. The Crown Prosecutor did not oppose the applicant being permitted to adduce evidence that he had no convictions prior to the first trial. However, the trial judge expressed concerns about being aware that there were "allegations outstanding" and rejected the admission of the evidence about the applicant's lack of prior convictions.
Ground 3 - In relation to the second trial, the applicant submitted that the trial judge erred in directing the jury about coincidence reasoning. Despite serving both a tendency and coincidence notice prior to the trial, the applicant submitted that the Crown in making its closing address to the jury relied on tendency reasoning but not coincidence reasoning. The issue raised was whether the trial judge erred in instructing the jury about both tendency and coincidence reasoning.
As to the sentence appeal, the applicant submitted that the sentencing judge erred in assessing the objective seriousness of some counts (ground 1) and that the aggregate sentence of imprisonment imposed was manifestly excessive (ground 2).
As to the conviction appeal, the Court held, granting leave to appeal and upholding the appeal in part:
Per Payne JA (Fagan J and Cavanagh J agreeing):
- As to ground 1, the allegation that the applicant's evidence about alleged incidents in Holsworthy and Orange were lies told in consciousness of guilt formed no part of the Crown case. It was, in those circumstances, unnecessary and inappropriate for the trial judge to give to the jury an Edwards direction about those matters: [58].
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40; Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, considered and applied.
- The trial judge erred in giving the jury a direction that they could take the evidence about alleged incidents in Holsworthy and Orange into account as evidence of lies reflecting a consciousness of guilt: [58], [66].
- As to ground 2, the evidence that the applicant had no prior convictions was relevant to a fact in issue: [73]. Evidence of good character almost always helps an accused person's defence: [74]. The absence of prior convictions has long been understood as an aspect of good character: [75].
Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15; TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied.
- The trial judge erred in excluding the evidence of the absence of prior convictions which was to be adduced by consent. The evidence was admissible: [82].
- The applicant has established that the trial judge made a "wrong decision on any question of law", being the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW). The rejection of evidence caused a miscarriage of justice: [85].
- As to ground 3, trial judges should refrain from advancing an argument in support of a Crown case that was not put by the Crown: [97].
R v Meher [2004] NSWCCA 355, applied.
- However, here there was a tendency and a coincidence notice served prior to the trial. Whilst the Crown Prosecutor did not specifically use the word "coincidence" in his closing address, it was clear that he was raising coincidence reasoning for consideration by the jury: [98].
- As the issue was sufficiently raised by the Crown and understood to have been so raised by counsel for the applicant, the trial judge's direction to the jury about coincidence reasoning was not an error: [102].
As to the sentence appeal, the Court held, granting leave to appeal and dismissing the appeal:
- As ground 1 of the sentence appeal related to counts in the indictment in the first trial, where the Court set aside the convictions and remitted the applicant for a re-trial, it was inappropriate to say anything about that ground: [106].
- As to ground 2 of the sentence appeal, if it were necessary to decide, the Court would not have concluded that the applicant had established that the aggregate sentence was unreasonable or plainly unjust: [109].
Hughes v R [2018] NSWCCA 2, applied.