R v Davis [1999] NSWCCA 15 | Case summary

Directions concerning complainant's evidence: leave refused to argue this ground (1) The extent of any exploration of the evidence and of the issues, in the summing up, is to be assessed in the context of the trial itself. The trial judge is not required in every case to identify and repeat points made by defence counsel and the relevant evidence. Counsel should disclose whether they seek more from the judge by way of summary of the evidence and the submissions. RJC (NSW CCA 18 August 1998), Zorad (1990) 19 NSWLR 91, Condon (1995) 83 ACR 335, Domican (1992) 173 CLR 555, Williams (NSW CCA 9, 23 February 1999), considered.

1 SPIGELMAN CJ: I will ask Mr Justice Wood to give the first judgment. 2 WOOD CJ AT CL: The appellant was on 14 April 1997 indicted in the District Court at Muswellbrook on counts of indecent assault of a child under ten years (Crimes Act s 61M(2)); sexual intercourse with a child under ten years (s 66A); and incitement of a child under ten years to commit an act of indecency with himself (s 61O(2)). 3 The jury found him guilty in relation to each count, and he was sentenced, in relation to the second count, to a minimum term of penal servitude for six years with an additional term of two years. In relation to the other two counts, he was sentenced to concurrent fixed terms of imprisonment for two years. 4 It was the Crown case that the offences occurred on the same day, 4 May 1996, at the home of the appellant. Those premises were located some seven kilometres down a gravel road from the complainant's own home. A friendship had developed between her stepfather and the appellant over the period October 1993 to May 1996. 5 On Friday 3 May 1996 the appellant invited her stepfather over to his home for a drink. The complainant accompanied him and she stayed overnight with the appellant and his two sons. She was aged nine years at the time. 6 On the following afternoon the appellant, his sons and the complainant returned to her home. They remained there for a while, during which time the appellant and her stepfather consumed a quantity of alcohol, watched television and had a meal. Later the complainant left with the appellant and his sons to return to his home, it having been decided that the complainant could spend another night there. 7 During the journey home the appellant sat in the driver's seat of his vehicle; the complainant sat on his lap and took control of the steering wheel. While in that position the appellant put his hand up her shirt and touched her on the breasts. He asked her whether she liked it; she said, "No". That gave rise to the first count. 8 When they arrived at the appellant's home they all went to his bedroom to watch television. The boys sat on the floor. The appellant lay on his bed and the complainant sat at the end of the bed. The appellant told her to lie down and to roll on her side. He then asked her to take her clothes off. She refused to comply with that request. She said that the appellant then removed her clothes and placed his penis in her "bottom". He told her to roll over and he then placed his penis in her vagina. This gave rise to the second count. 9 After the appellant removed his penis he instructed the complainant to touch it. She refused, whereupon he grabbed her hand and tried to push it towards himself. She broke free of his grip. She was told to dress. She went to another room where she waited for a short while. This gave rise to the third count. 10 When the complainant saw that the appellant was asleep she left the house and walked home. She found her own home to be in darkness, so she climbed into the back seat of the family car where she went to sleep. She was awoken the following morning at approximately 11am by the appellant who, upon finding her missing, had gone looking for her. The appellant asked her why she had walked home. She said that she was scared of what he had done to her. He said, on her account, "You won't tell anyone, will you?" 11 The complainant's mother, who noticed that she seemed to be upset, asked her several times why she had walked home. She said to her mother, "If you really want to know, I walked home because Brian put his doodle in my minnie." Her mother asked her to pull down her underpants. She observed that her inner thighs and vagina were swollen and red. The complainant herself said that she experienced pain when urinating. Her stepfather was informed. He said to the appellant, "I'm not accusing you, Brian, but C has accused you of sexual assault." He added that she had said that the appellant had played with her breasts and had penetrated her. 12 The appellant denied the allegations and claimed that any touching was accidental and that it occurred during the drive home when she had been sitting on his knee. The appellant stayed for lunch and for dinner. During the afternoon the complainant's stepfather asked her to apologise to the appellant, which she did. Her mother at one stage asked the appellant whether he had done anything to her, to which he replied, "Oh, no, I wouldn't do anything like that." 13 On the following Tuesday the complainant's stepfather contacted police. The next day she was examined at Tamworth Base Hospital by Dr Donnelly. He gave evidence of observing a number of areas that were suggestive of tissue injury or hymenal interference, including areas of superficial abrasion that were five to seven days old in appearance. Some of those signs were consistent with sexual penetration. 14 When interviewed by police on 9 May by way of a relatively detailed ERISP the appellant denied all the allegations. 15 No evidence was called at the trial in the defence case. It had, however, been put to the complainant in cross-examination that the appellant had not touched her or had sexual intercourse with her. The ERISP containing his denials was tendered in the Crown case. It was edited to some extent. 16 The appellant brings an appeal against his conviction and seeks leave to appeal against the severity of the sentence. Four grounds of appeal were raised. GROUND 1 - REFUSED TO GRANT LEAVE TO CROSS-EXAMINE THE COMPLAINANT UNDER S 409B OF THE CRIMES ACT 17 This ground was abandoned during the hearing, as a result of the appeal in HG (1999) HCA 2 having been dismissed on 9 February last. GROUND 2 - SUFFICIENCY OF THE DIRECTIONS CONCERNING THE COMPLAINANT'S EVIDENCE 18 No complaint was made at the trial concerning the sufficiency, or otherwise, of the evidence given in this regard. 19 The Crown case depended upon acceptance of the evidence of the complainant, who was nine years old at the time of the alleged offences. The appellant submitted on the appeal that a Murray warning (1987) 11 NSWLR 12 should have been given, and that, additionally, warnings concerning the reliability of the complainant's evidence should have been given pursuant to s 165(1)(c) of the Evidence Act by reason of her age; pursuant to s 165(1)(a) by reason of the fact that the complaint evidence was hearsay; and generally under s 165 by reason of the considerations discussed by this Court in Vawdrey CCA NSW 16 April 1998, unreported. 20 A Murray direction is appropriate where one witness stands alone in providing proof of the Crown case. That is not the present case, because there was evidence of other circumstances consistent with the complainant's evidence in the form of her distress and prompt complaint, as well as the medical evidence, and the fact of her night walk home over a lengthy distance. 21 The trial judge, with the consent of the parties, summed up without reference to the evidence. That was a course properly open to him under s 405AA of the Crimes Act, in a trial that had lasted three days, in which there were only six witnesses in the Crown case and none in the defence case. On one view, that approach worked in favour of the appellant, since it avoided the one-sided appearance that may have been presented by a reiteration of the evidence called by the Crown, and silence in relation to the defence. 22 Attention was, however, drawn to the observations of this Court in RJC CCA NSW 18 August 1998, unreported, as well as in Zorad (1990) 19 NSWLR 91 at 105 and Condon (1995) 83 ACR 335 as to the need for the jury to be instructed as to the issues of fact and law which arise in a trial, and where appropriate, to have the evidence to be related to those issues. 23 Those requirements are to be understood in the light of the explanation in Domican (1992) 173 CLR 555 at 561, which was discussed as recently as yesterday by this Court in Williams NSW CCA 9, 23 February 1999 unreported. 24 The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary the evidence and of the submissions, than the judge proposes. 25 The asserted inconsistencies in the complainant's evidence, which it was argued should here have been highlighted, related to the circumstance that in chief the complainant had said that the appellant had first put his penis in her "bottom", a matter which she agreed she had not mentioned to anyone before the trial; the fact that she gave different accounts of the position which she assumed on the bed, particularly whether she had been lying on her side or on her back when the appellant placed his penis in her vagina; the fact that in her evidence she made no mention of the appellant placing his tongue in her mouth or of his penis being erect during the sexual assault, even though she had mentioned those matters to police; and the circumstance that there had been some equivocation, on her part, as to whether she had been scared that she would get into trouble from her parents for having walked home at night. 26 Further, it was submitted that various matters that may have cast doubt on the credibility of her account should have been isolated and identified for the jury's assistance: namely, that the events were alleged to have occurred in the presence of the appellant's sons, who were apparently aged about seven and nine years; that the complainant had made no effort to call for help from them; that she had made no effort to complain to residents living near the appellant or in premises that she passed on her way home; that she had not complained to her parents immediately upon arriving home, or in the early hours of the following morning; and that the immediate reaction of her parents to the complaint was one of disbelief. 27 Most of these matters do not seem to me to rise above matters of detail, or to be inconsistencies of any real moment. 28 The suggested criticism relating to the absence of complaint, or calls for assistance from the appellant's sons might have had some relevance had the children, particularly the appellant's children, been older or more mature. The absence of complaint to neighbours, or to the girl's parents on getting home, seems to me understandable in the circumstances of the time and place. Her parents' reaction, even if one of disbelief, was immaterial to an assessment of her reliability. It is not, in fact, evident that they did disbelieve her, since the matter was pursued appropriately and promptly by report to the police, followed by medical examination. 29 The fact of the girl's age might usually have been mentioned to the jury, but it was a matter that must have been patently obvious to them, and it needs to be assessed in the light of the rest of the evidence, including that supportive of her account. 30 The circumstance that trial counsel expressed his satisfaction with what was left, after having had one item added to the relatively brief summary which his Honour did give of his closing submissions, is a powerful indication that what was said was sufficient. The summary given was, in fact, a little more comprehensive than that extended to the Crown case. 31 Counsel for the appellant on the appeal drew our attention to the decision of this Court in BD (1997) 94 ACR 131 where Hunt CJ at CL said: "The fact that the evidence is hearsay will attract the obligation upon the trial judge imposed by s 165 of the Evidence Act to warn the jury that the evidence may be unreliable, to explain why that is so, and to warn of the need for caution in determining whether to accept the evidence and the weight to be given to it." (at 139) 32 Properly understood, there can be no quarrel with that observation. However, what his Honour did not expressly make clear is that the "obligation", referred to in the first sentence, is that which arises under s 165(2) of the Act, namely, where a party, in a jury trial, makes a request for the appropriate warning. The passage is not to be understood as suggesting that there is a universal obligation, independent of any request, to give warnings of the kind referred to in s 165. 33 The need for a warning, absent any request by counsel, is discretionary and depends upon the judge's assessment, whether in the light of the evidence, and the way the trial has been conducted, a question arises as to reliability, such as to call for a warning, out of fairness to the accused. 34 In the present case there was no request and the matter fell to be considered in the light of that principle. 35 I would refuse leave under r 4 of the Criminal Appeal Rules to argue this ground. Before parting from this ground I do however observe that, in the summing-up his Honour makes no mention of whether the evidence of complaint went to proof of the fact asserted, or was relevant only in relation to the complainant's credit. The complaint, having been made within twenty-four hours, was "fresh in the memory" of the complainant at the time it was made, within the meaning of s 66 of the Evidence Act. Graham (1999) 157 ALR 404. It was admissible, as evidence of the truth of what was said, as well as a matter going to credibility, in the light of authority current at the time of the trial. Its availability for the first of those purposes is subject to re-examination in the pending appeal to the High Court in Papakosmas. GROUND 3 - DIRECTIONS CONCERNING THE ELECTION OF THE APPELLANT NOT TO GIVE EVIDENCE 36 The trial judge gave lengthy directions in relation to this matter, as follows: "Members of the jury while I am on the question of the evidence, I want to give you a direction about a particular matter. The accused in this case elected not to give evidence. The accused could have given evidence either on oath or affirmation in the witness box, as any other witness, and if he had, his evidence would have been taken into account along with all of the other evidence by you. Now I wanted to give you this direction, and it is a direction of law, which I am required to give you by the decided cases. The failure of the accused to give evidence is not an admission of guilt. You are not allowed to regard it as an admission of guilt. The accused's right to silence, his right to remain silent, which is a right that we all have if any allegation of crime is made against us, but his particular right to remain silent means that no inference of guilt can be drawn from his failure to say or do anything in his defence. That arises because of the presumption of innocence, I think which I told you about at the beginning of the case, and which is the reason why the burden of proof is on the Crown, because there is a presumption of innocence. The whole idea of this trial is that it is the Crown adducing evidence to show you that the presumption of innocence should, by your verdict of guilty, be set aside. But until your verdict of guilty, there is a presumption of innocence, that is if you reach such a verdict. The accused has a right to remain silent, and it extends to this trial as well as other periods of time between the accusation and the trial itself. As you know he has not always exercised that right of silence and he took part in an interview with the police which you have heard and of which you have a transcript. In that case he did not exercise his right to silence. Those answers to the questions in that interview with the police you must of course keep in mind, was not on oath, and was not subject to cross-examination. So you have not seen the accused testify on oath or be subjected to cross-examination. Now the only effect that his failure to give evidence may have on you is this. His failure to give evidence here may affect the value or weight that you give to the evidence of some or all of the witnesses who have testified in the trial if you think the accused was in a position to himself give evidence about the matter. His failure cannot be treated as an admission. His failure to give evidence. But it may enable you to give, to help you to evaluate the weight of other evidence in the case, that he has not give evidence. I do not want to be more specific than that, because it is a matter for you, but let me give you an example that is not related to this case to show you what I mean. If the case was one of speeding, and a police officer got in the witness box and said he was doing 100 kilometres an hour in a 60 kilometre area, and the accused, although the defendant, although he pleaded not guilty, did not testify, the judge hearing the case might say, well he has not gone into the box and contradicted that. He could have. But to put it another way, to give you the converse situation, if the defendant had gone into the witness box and said, no, that's not true, I've got a very good speedometer in my car and I was only doing 60, it would make it - those two different situations would make the magistrate's evaluation of the policeman's evidence either more difficult or easier. It is not an easy concept I know that. The accused has remained in the dock as is his right. You cannot treat that as an admission of guilt. But the fact that he has not given testimony may assist you when you come to evaluating the other evidence in the case. If when you go outside you find you have not understood what I have said at all, you must come back and ask me again, but I think you have probably got some idea what I mean, at least I hope you understand it completely. Even if the evidence that you are concerned with was evidence that was dealt with in his interview with the police, the value or weight that you give to that particular piece of evidence, may have been affected one way or another if you had observed the accused himself giving evidence. If you had seen his demeanour in the witness box, if you had heard what he had to say, if you had seen him cross-examined, all of that may have affected the way in which you look at other evidence in the case. I will just repeat that last direction again. Even if the matter of evidence that concerns you was a matter dealt with in the interview between the accused and the police, the value or weight that you give to a particular piece of evidence may have been affected one way or another if you had observed the accused himself testify on that point." 37 This ground of appeal is to be considered in the light of s 20(2) of the Evidence Act, which provides: "The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned." 38 The appellant acknowledged that this section permits judicial comment upon the election of an accused not to give evidence, although it does not require such a direction to be given. Reliance was placed upon the decision of this Court in OGD (1997) 98 ACR 151 where Gleeson CJ, in considering the kind of comment that would now be appropriate, subject to the qualification expressed in the second sentence of s 20(2), identified three general principles as follows: "First, the failure of an accused person to give evidence cannot be treated as an admission, by conduct, of guilt. The reason is that, if it were otherwise, the legal right to silence would be negated (Weissensteiner (1993) 178 CLR 217 at 229; 259-260)." ... "Secondly, it is commonly appropriate to instruct a jury that failure to contradict or explain incriminating evidence, in circumstances where it would be reasonable to expect it to be in the power of an accused to do so, may make it easier to accept, or draw inferences from, evidence relied upon by the Crown." "Thirdly, it is ordinarily necessary to warn a jury that there may be reasons, unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence, remains silent." 39 Turning to the qualification upon the right to comment which is contained in the second sentence of s 20(2), his Honour said: "it is to be observed that what is prohibited is the making of a suggestion concerning the defendant's reason for failing to give evidence. This is consistent with the general law. There is, however, a difference between a judge making a suggestion to a jury concerning an accused's reason for taking a certain course at a trial, and the judge raising for consideration, with appropriate warnings, matters which relate to that subject. The prohibition appears to be aimed principally at giving statutory support to the first of the general principles referred to above. It must not be suggested to the jury that they can regard a failure to give evidence as an implied admission of guilt. It also reinforces the third of the above principles, emphasising the need to warn a jury that there may be a number of reasons, not known to them, why an accused chooses not to give evidence." 40 It was submitted that his Honour erred in relation to the third of those general principles, since the jury were not informed that there may be reasons unknown to them why the accused, even if otherwise in a position to contradict or to explain the evidence, remained silent at his trial. 41 It was submitted that his Honour also erred in not taking up the suggestion in OGD (at 159 to 160), to enquire of counsel, in the absence of the jury whether directions should be given. The reason for that course, which his Honour described as a "practical matter", and one that was "prudent", lies in the opportunity which it gives to trial counsel "to suggest to the judge possible reasons for the accused's silence (or the failure to call a witness) which may not have occurred to the judge, and to debate the fairness of the direction". 42 In this regard Gleeson CJ in OGD drew attention to the dilemma, which might arise for an accused, when deciding whether or not to give evidence, particularly when facing more than one charge. "The present case provides a good example of circumstances which demonstrate the need for caution. The appellant was charged with multiple offences. It was quite possible that he had an answer to one of the charges but not to the others. It was also possible that his answer to one of the charges would have involved him in making admissions in relation to others. This was hardly a consideration which trial counsel for the accused would have wished to draw to the attention of the jury. It was, however, a consideration which should not have been overlooked by the trial judge. The explanation for the failure of the appellant to give evidence might have been that he was faced with a dilemma to which he responded by saying nothing." 43 It is to be observed that, in the third of the general principles, it was said that "ordinarily" it will be necessary to refer to the possibility that the accused may have reasons for remaining silent. Trial judges should not overlook this clear admonition that ordinarily they should include this aspect, within any direction that is given including a comment upon the failure of the accused to give evidence: Bargwanna CCA NSW 15 June 1998. The principle was not expressed in absolute terms, and the consequence or significance of its omission, therefore, needs to be considered when the point arises on appeal, in the context of the case and in the light of the contentious assessment of trial counsel. Moreover, it must not be overlooked that this trial was held some two months before the decision in OBD was handed down, so that the trial judge did not have the benefit of its guidance. 44 The reasons that were suggested in this present appeal, as having possibly impacted upon the decision of the appellant to my mind were, at best, speculative and not such as would have caused the trial judge to not give the direction, or to modify it. In particular, I am of the view that the appellant was not at risk of being cross-examined in relation to the reasons that he had offered in the ERISP (and that were edited from the record tendered), for the girl going home. So far as any answer to a question put to him along those lines, might have involved some disclosure by him of the fact that another complaint of a similar kind, had been made against him, which might possibly have come to the notice of the complainant in the course of a chat between the appellant and her parents, that would inevitably have been excluded by reason of its prejudicial effect. 45 The election to rely upon the ERISP in lieu of giving evidence, being a second matter suggested as a possible reason for the election, is a matter to which I will turn in a moment. I am not, however, convinced that it could rationally have been considered as an alternative or a substitute for sworn evidence. Nor am I convinced that the fact that the appellant had been previously convicted in a trial for sexual assault (of which he was acquitted after a successful appeal), in which he had given evidence, was a matter of much significance; that if raised, it would have led to the comment not being made, or to some modification of it. Although it would have been far better for his Honour to have referred to the possible existence of reasons why the accused may have made the election, I am not persuaded, particularly in the light of the failure of trial counsel to take the point, that the appellant suffered any miscarriage of justice by reason of the omission. 46 The appellant next submitted that the case was not one in which a Weissensteiner (1993) 178 CLR 217 direction should have been given. The direction that was in fact given accorded with that stated in Weissensteiner, and with the second of the general principles enunciated in OGD. 47 Some faint complaint was made to the effect that the example his Honour gave, in relation to this aspect of the direction, was not particularly helpful, since it depended upon the hypothetical motorist having had available an independent mechanical device in the form of a speedometer, which could have supported his case. Analogy or example are not always of value for this kind of direction, although that given did serve to explain the point. Moreover, in the present case it was the fact that there was more than the evidence of the complainant to be considered. Her parents' evidence also fell to be examined by the jury, and the comment as to the election of the appellant was equally applicable to any assessment by the jury of their evidence. 48 It is true, as I have observed, that the appellant had provided a detailed account of the relevant events in the ERISP. In the course of that interview, he had repudiated the complainant's allegations but had otherwise confirmed certain surrounding circumstances. It is fair to say that it was a comprehensive interview, although he maintained a denial of any misconduct. It was, at one stage, submitted during the submissions an appeal that it gained credence because it was a spontaneous denial of the allegations. That is not entirely correct. The existence of an allegation of sexual assault on the night of 4 May had come to light several days earlier. He had been directly confronted with it by the girl's mother and stepfather. He could not be said to have been taken by surprise, or to have responded spontaneously in those circumstances, when approached by the police. 49 Moreover, I do not accept the proposition that the fact that an appellant has participated in an ERISP, which is before the jury, necessarily militates against giving a Weissensteiner direction. 50 The account given by an accused to police in an ERISP is far from being the equivalent of sworn evidence in a trial. I do not consider it appropriate to add a gloss to the second general principle in OGD, to the effect that a Weissensteiner direction should not be given where an ERISP is before the jury, even where the ERISP is detailed. 51 His Honour did appropriately remind the jury, in relation to the ERISP, that it was unsworn and had not been the subject of cross-examination. To my mind that was an appropriate course. It is necessary that a trial judge place before the jury the fact that an ERISP, once admitted into evidence, is available to them as evidence of the truth of the facts asserted by the accused. To not remind the jury of that circumstance would constitute an error and would potentially be unfair to the accused. However, to elevate an ERISP to the equivalence of sworn evidence, and to refrain from an observation of the kind here made would be similarly erroneous, and, on this occasion, unfair to the Crown. 52 I am unpersuaded that any risk of miscarriage of justice arose in relation to this aspect of the summing-up. 53 There is some doubt as to whether trial counsel did flag an objection to the Weissensteiner direction: It is clear that the topic of a comment, as to the appellant's election not to give evidence, was the subject of discussion during the morning of the final day of evidence. The discussion is not fully recorded, but sufficient appears to make it plain that his Honour did in fact give counsel an opportunity to consider whether a direction should be given, and as to its terms. 54 In those circumstances, even allowing for the uncertainty which arose as to the precise submission advanced by counsel, I am unpersuaded that any of the errors identified by counsel were made good in relation to this ground. GROUND 4 - VERDICT UNSAFE AND UNSATISFACTORY 55 The submission in this regard did not depend upon the proposition that the jury ought to have entertained a reasonable doubt upon the evidence led. Rather, it was submitted that, as a result of the cumulative effect of the remaining matters, the verdict was unsafe and unsatisfactory in the extended sense discussed by Gaudron J in Gipp (1994) 72 ALJR 1012 at 1016. I am unpersuaded that there is any merit in those other grounds. As a consequence, I am of the view that this ground should fail. 56 However, before parting from that ground, I do draw attention to a matter that was raised peripherally in relation to one of the other grounds, concerning a preliminary observation by his Honour in the following terms: "And you are bound by my rulings of law because what I am saying to you, this is the way it works if I quickly explain it to you. All I am saying to you is being recorded. Every word I say to you is recorded and if I say something wrong the parties can seek redress in another court. They can seek redress in an appeal, in a series of appeal courts. And so if I say something wrong, there is a way of redressing that. But if you do not take notice of what I tell you, and you go out to the jury room and apply some other rule other than the one I give you, no-one will ever know about it, because I tell you now your deliberations are secret, they are not recorded anywhere, and indeed after this case is over you have a right to keep your deliberations secret, forever and a day." 57 This was a curious and distinctly unhelpful observation. It would have been entirely erroneous if it was purporting to be understood as an invitation to the the jury that they could, if they wished, ignore his Honour's directions on the law with immunity. I am not, however, persuaded that it had that flavour, or that it conveyed a message along that lines. On the contrary, it needed to be understood in its full context, and particularly in the light of the passage which followed, in the following terms: "And so you see it is very important that you follow my directions of law because then if I misdirect you, another court can consider whether there has been a miscarriage of justice". 58 The message which I think the jury would have gained is that they must not ignore the directions on the law, since if they did take that course it would not be possible for the error that they then made to be corrected on appeal. Its purpose was to underline the importance of applying the law as the trial judge explains it, not to weaken that direction. 59 Having said that, I would not seek to encourage a similar direction or observation being made in other trials. 60 It follows that the appeal against conviction should, in my view, be dismissed. SENTENCE 61 The prescribed maximum sentence for the second count was penal servitude for twenty years. The offence involved in that count was serious and involved a child of tender years, as well as an abuse of the trust, which her parents had placed in the appellant, as her minder for the night. It is true that there was no threat of physical violence beyond that involved in the act of penetration. It is also the fact that the three offences may properly be regarded as a continuing event without any element of premeditation. 62 None of those circumstances, however, excuses or minimises the sexual violation of a nine year old girl. 63 Whether or not the sentence was manifestly excessive should be considered against the prescribed maximum penalty of twenty years. Senior counsel for the appellant has provided a very useful table of cases which show a wide range of sentences, either confirming or varying on appeal sentences that have been imposed at first instance for s 66A offences. In relation to those cases involving penile/vaginal penetration for which overall terms have been affirmed or substituted on appeal, (including Crown appeals where the principle of double jeopardy applies), it can be seen that the sentence falls within the range. In that regard I make reference to Marr CCA NSW 4 March 1993 where, following a plea of guilty, an overall term of eight years was fixed on appeal; H (1994) 74 ACR 41, where again following a plea of guilty an overall sentence of eleven years was imposed; Boyd CCA NSW 25 July 1995, where following a verdict of guilty an appeal against the severity of a sentence of five years was dismissed; and finally, Brooker CCA NSW 21 February 1996, where following a plea of guilty, on a Crown appeal, an overall sentence of seven years was imposed. 64 Similar or longer sentences to that imposed in the present case are also to be seen in appeals where there have been pleas of guilty to offences involving digital penetration, fellatio or cunnilingus: eg Moore CCA NSW 12 April 1994 (nine years); Walker CCA NSW 26 August 1994 (ten years) and Latu CCA NSW 6 July 1993 (eight years). 65 Each case must necessarily be understood upon its own facts, and by reference particularly to the objective circumstances, including the number of victims involved, the duration of the offence, and the extent of sexual invasion seen. 66 In Ibbs v The Queen (1987) 163 CLR 447 at 451 the High Court rejected the proposition that each kind of sexual penetration as defined in the section, there under consideration, was to be regarded as neither more nor less heinous than another. The Court said such a proposition cannot be accepted. It appears to me that any other view would beggar common sense, and that penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct uncompassed within s 66A. On my assessment, although the sentence is high, as can be seen upon comparison with the sentencing statistics, it is not one that was out of range. Moreover, I am not persuaded that the case was one where there were special circumstances requiring a departure from the usual proportion. 67 The three matters identified in this regard were the fact that this was the first sentence of imprisonment for the appellant; secondly, that he had a dependence on alcohol; and thirdly, that outside the gaol system he might benefit by a therapeutic sexual offender treatment programme. 68 In my view none of those matters constitutes special circumstances. In particular, there is within the prison system more than sufficient by way of counselling for alcohol problems. Further, the opportunity of two years on parole is sufficient so as to permit the appellant to participate in a therapeutic treatment programme if he is so motivated. In that regard, considerable doubt must arise as to his motivation, since he maintains his innocence of the offence and denies that he is in fact a sex offender requiring treatment. 69 Accordingly, the formal orders I would propose are that leave to appeal against sentence be allowed, but that the appeal against conviction and sentence be dismissed and that the sentence and conviction below be confirmed. 70 SPIGELMAN CJ: I agree with Justice Wood's reasons and the orders he proposes. 71 MCINERNEY J: I agree. 72 SPIGELMAN CJ: The orders are as Justice Wood has indicated.

R v Davis

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (2)

Cases Cited (7)

Cited By (23)