WC v R [2015] NSWCCA 52 | Case summary

The grounds of appeal

The grounds of appeal are: Ground 1: His Honour erred in admitting into evidence the DVD evidence of S. Ground 2: The admission into evidence of the DVD evidence of S by consent resulted in a substantial miscarriage of justice. Ground 3: The sentences are manifestly excessive or some other sentence should be imposed by reason of error in assessing the objective seriousness of the offences.
The DVD of S's evidence included the JIRT interview conducted by an investigating authority which, because S was a child and accordingly a "vulnerable person", was admissible under s 306U(1) of the Criminal Procedure Act 1986 (NSW). In argument WC's counsel accepted that evidence of the interview was admissible and focused on the recording of S's oral evidence which was undoubtedly hearsay evidence when tendered at the fourth trial.
Because each of grounds 1 and 2 is concerned with a decision of the trial judge as to the admission of evidence and no objection was taken on behalf of WC to that decision, r 4 of the Criminal Appeal Rules applies. Accordingly leave is required to raise those grounds. Generally speaking, that leave should not be granted unless there is shown to have been a miscarriage of justice or an irregularity in the conduct of the trial which involved such a departure from the essential requirements of the law that it goes to the root of the proceedings: per R A Hulme J (McClellan CJ at CL and Schmidt J agreeing) in FP v R [2012] NSWCCA 182 at [69] - [73] citing Picken v R; R v Picken [2007] NSWCCA 319 at [21] and R v Tripodina (1988) 35 A Crim R 183 at 191.
Before addressing these grounds and the question of leave (which in the case of the sentencing appeal is required by s 5(1)(c) of the Criminal Appeal Act 1912 (NSW)), it is necessary to refer briefly to the nature of the three offences charged and the significance of S's evidence in relation to the second of those offences. The circumstances of offending
The three offences were committed in August 2011 at the residence in which WC was then living with his de facto partner and her children, P and S.
Count 1. On the morning of 18 August 2011 WC was lying on the lounge in the lounge room with one of his arms protruding out from the arm of the lounge. P, who was dressed in her school uniform, walked past the applicant who used his protruding hand to grab hold of her on the outside of her clothing in the area of her vagina. P said that WC's fingers were "wiggling or moving like when someone tickles you". This touching took some seconds. P then walked away.
Count 2. This offence was said to have been witnessed by S, then aged 10 years. It occurred on the afternoon of the same day as the first count and after WC had picked up P and her sister from their respective schools and whilst their mother was not at home.
P's evidence was that she, her sister and WC were playing a Wii computer game in the lounge room when WC started to tickle her. At this point she said she was lying on the floor on her stomach and WC then pulled down her pants and underpants, kissed her on the bottom, pulled down his own pants and then placed his penis between the cheeks of her bottom. P said WC then "humped" her by moving his penis backwards and forwards on her bottom until he ejaculated. Before this event P said WC also placed one hand on the outside of her vagina and the other inside her clothing and squeezed her breast area. P said that by the time her pants had been pulled down her younger sister had left the room.
S's evidence given at the second trial differed in several respects from that of P. In particular, she gave no account of WC touching her sister's vagina or breasts or kissing her buttocks. S's evidence was that she remained in the room after P suggested that she had left. S described that she then saw WC masturbating while kneeling behind P.
Count 3. This offence (which was the first in time) occurred on a weekend early in August 2011, whilst WC was at home with P and her sister was in the shower. P was lying on her stomach on a lounge in the lounge room. WC came into the room and laid on top of her and commenced to "dry hump" her before rolling her on to her back and pulling her pants down. WC then pulled his own pants down and placed his penis on top of P's vagina and continued to "hump" her until he ejaculated on her stomach. Ground 1: Error admitting DVD evidence of S Ground 2: Admission of DVD evidence of S by consent resulted in a substantial miscarriage of justice
These two grounds may be considered together. The following submissions were made in support of them.
First, it is said that S's evidence (excluding the JIRT interview) was hearsay and not made admissible by the provisions of Pt 5, Div 4 of the Criminal Procedure Act because S was not the or a complainant in the relevant proceedings. All of that is correct. Section 306I provides that the hearsay rule does not prevent the admission of a record of the original evidence of a complainant, such as P, in a new trial proceeding, such as was the fourth trial. It did not, however, apply to the admission of S's evidence in that trial.
Secondly, and for the reason that it was hearsay, it was submitted that the trial judge erred in admitting that record of S's evidence. It is acknowledged that this evidence was not objected to. That is fatal to WC's argument that its admission involved any error on the part of the trial judge.
The hearsay rule (Evidence Act 1995 (NSW), s 59) is a rule that excludes evidence of an out-of-court statement or representation as proof of the existence of a fact asserted by that statement or representation. In its terms, s 59(1) provides that such evidence "is not admissible". As Giles JA observed in Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 at [24], those words (which are also used in ss 76, 97, 98, 102 and 114 as well as other provisions of that Act) "are to be contrasted with "is not to be adduced" in ss 118 and 119 and similar directory words in other provisions". In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Spigelman CJ said at [149] that ordinarily "not admissible" in the Evidence Act means "not admissible over objection". That construction of those words is now well accepted. See the cases cited by Giles JA in Gonzales v R at [26] as well as R v FDP [2008] NSWCCA 317; 74 NSWLR 645 (McClellan CJ at CL, Grove and Howie JJ) and Lazaris v R [2014] NSWCCA 163 (Bellew J, Hoeben CJ at CL and Adamson J agreeing).
In Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at [20], Gleeson CJ and Hayne J note that evidence declared by the Evidence Act to be not admissible in certain circumstances, or unless certain conditions are fulfilled, is often not the subject of objection for various reasons: Counsel for an accused person may have any one of a number of reasons for not objecting. A trial judge ordinarily will not know why no objection is taken, and may have no right to enquire. Counsel might decide not to object simply because he or she knows that that accused, upon giving evidence, will admit that the identification evidence is correct. The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection.
The trial judge did not err in admitting the record of S's evidence in chief, cross-examination and re-examination at the second trial in circumstances where there was no objection to it.
Thirdly, it was contended that in admitting that evidence, the trial judge did not comply with s 190 of the Evidence Act. Subsections 190(1) and (2) are relied upon: (1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of: … (c) Parts 3.2 - 3.8, in relation to particular evidence or generally. (2) In a criminal proceeding, a defendant's consent is not effective for the purposes of subsection (1) unless: (a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel, or (b) the court is satisfied that the defendant understands the consequences of giving the consent.
It was submitted that by not rejecting the record of S's evidence as excluded by the hearsay rule the trial judge was to be taken to have dispensed with the application of s 59 in Pt 3.2 in relation to that evidence in circumstances where WC's consent to the making of such an order was not effective because neither of the conditions in subs 190(2)(a) and (b) was satisfied.
This argument must be rejected simply because in admitting the relevant evidence the trial judge made no order under subs 190(1). Nor was it necessary for him to do so. The hearsay evidence was not admissible over objection and no objection was taken. It was not necessary to dispense with the application of s 59 in order to admit the evidence.
The analysis so far addresses the respects in which it was argued that there was error on the part of the trial judge.
Finally, it is submitted that there was a miscarriage of justice involved in the admission of S's evidence in circumstances where it was not admissible if objected to and WC's counsel and the Crown apparently proceeded upon the wrong assumption that s 306I applied to the admission of the record of S's evidence given in the earlier trial. In support of that submission the applicant relies upon the notice given by the Director of Public Prosecutions on 26 October 2012. That notice described the evidence of both P and S as having been given by "the complainant" in the second trial. That description, to be understood as referring to the complainant in the fourth trial, was incorrect in relation to S.
A defence counsel's conduct of a trial may bring about a miscarriage of justice entitling the accused to a new trial. It will do so if by that conduct the accused has been deprived of a fair trial according to law. That might occur if, for no valid reason, defence counsel fails to cross-examine material witnesses or to address the jury, per McHugh J in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [76]; or gives wrong advice as to the accused's entitlement to give evidence: per Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [17].
In cases where that is said to have occurred the question whether there was a miscarriage of justice involves the following considerations (per McHugh J in TKWJ at [79]): First, did counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, "it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence". The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
It is argued on behalf of the applicant that his counsel's conduct in not objecting to the tender of the record of S's evidence resulted in an unfair trial because S was a material witness and that failure meant that S was not cross-examined.
There are several difficulties for this submission. The first is that the admission of the evidence did not carry with it the consequence that the opportunity to cross-examine S in the fourth trial was lost. The transcript indicates (esp tcpt 31/10/12, p 57) that defence counsel proceeded on the basis that she was able to apply to cross-examine P or S in the fourth trial. That was consistent with the provisions of s 306J which make the "complainant" compellable to give further evidence if that is necessary "in the interests of justice". The second is that the record of S's evidence included her earlier cross-examination. That evidence, as was conceded in oral argument, was in some respects inconsistent with P's evidence, and to that extent was relied upon by the applicant.
Thirdly, the applicant does not point to any particular matters which could or should have been put to S by way of further cross-examination in the fourth trial. On the contrary, it was conceded that whether any answers elicited in a further cross-examination of S would have assisted the applicant's defence in any material respect was "speculative". Fourthly, Div 4 of Pt 5 of the Criminal Procedure Act permitted S, as a vulnerable person, to give evidence by means of a closed-circuit television facility. Accordingly had she given evidence in the fourth trial, that evidence was still likely to have been seen by the jury via a closed-circuit television facility. Finally, the transcript of the trial (tcpt 26/10/12, p 18) also indicates that defence counsel carefully considered the evidence of S before it was tendered in the third trial. In the circumstances, defence counsel no doubt made a forensic choice to rely upon the earlier cross-examination as admitted in the fourth trial. That choice is not shown to have been ill advised let alone to have been inconsistent with the competent conduct of the defence case.
The applicant has not established that there was a material irregularity in the conduct of the trial or that there is any significant possibility that the conduct complained of affected the outcome of the trial.
For these reasons the basis upon which leave might be granted under r 4 to raise grounds 1 and 2 has not been made out.

Ground 3: Sentence manifestly excessive or involved error in assessing the objective seriousness of the offences

The broad question raised by this ground of appeal is whether the applicant has demonstrated that the total effective sentence and non-parole period were, in the circumstances, unreasonable or plainly unjust. However, by his written and oral submissions, the applicant focused on a narrower question, submitting that he had been "double punished" because the sentencing judge took into account as aggravating factors that the offences involved a gross breach of trust and that the complainant was under his authority. In support of that submission, the applicant referred to the decision in this Court in MRW v R [2011] NSWCCA 260 at [77] - [79].
Section 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that the aggravating factors to be taken into account in sentencing include, if relevant, that the "offender abused a position of trust or authority in relation to the victim". In MRW v R Bathurst CJ noted that abuse of trust and abuse of authority are distinct concepts, although commonly arising out of the same facts: at [77]. The applicant submits that the sentencing judge must be taken to have considered both to be aggravating factors and erred in doing so.
That submission is made relying upon particular passages from the sentencing judge's remarks on sentence. In particular, in relation to count 1, the sentencing judge noted that the Complainant was "under the offender's authority at the time and the offence involved a gross breach of trust" (ROS 15/04/13, p 12). In relation to each of the second and third counts the sentencing judge considered each also to have "involved a gross breach of trust" (ROS 15/04/13, p 13).
In my view a fair reading of these remarks indicates that the sentencing judge took into account, in relation to each offence, that it involved a gross breach of trust. In relation to the first offence, his Honour observed that the gross breach of trust arose because P was, at the time it was committed, under the offender's authority. This did not involve taking the same underlying conduct into account in two ways. That argument cannot be made in relation to the second and third counts because of the different language used and the remarks confirm that in relation to each offence the relevant conduct has been considered to involve an aggravating factor only because of the gross breach of trust involved.
The applicant does not submit that there are any other bases upon which a total effective sentence of five years and six months with a non-parole period of three years and six months was manifestly excessive when regard is had to all of the circumstances referred to by the sentencing judge.
For these reasons leave to appeal against the aggregate sentence should be refused.

WC v R

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