AS v The King

[2023] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AS v R [2023] NSWCCA 161

Hearing dates:

8 May 2023

Date of orders:

30 June 2023

Decision date:

30 June 2023

Before:

Basten AJA at [1];
Walton J at [47];
Hamill J at [48]

Decision:

(1)   Extend time for the filing of the notice of appeal to 28 November 2022;

(2)   Grant the applicant leave to appeal against his convictions in the District Court;

(3)   Dismiss the appeal.

Catchwords:

CRIMINAL PROCEDURE – conviction appeal – extension of time – lengthy delay – whether possibility of substantial injustice if extension refused

CRIMINAL PROCEDURE – multiple counts of sexual abuse of young girls – three co-offenders – tendency evidence against one co-offender relating to prior convictions for sexual offences with own daughter – application by applicant for separate trial refused – whether prejudice to applicant caused substantial miscarriage of justice

Legislation Cited:

Crimes Act 1900 (NSW), ss 66A, 66E

Criminal Appeal Act 1912 (NSW), ss 5, 10

Criminal Procedure Act 1986 (NSW), s 29

Cases Cited:

DR v R [2019] NSWCCA 320

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Category:

Principal judgment

Parties:

AS (Appellant)
Rex (Respondent)

Representation:

Counsel:
G Wendler (Appellant)
D Scully (Respondent)

Solicitors:
Monica McKenzie Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2013/000227199

Publication restriction:

Non-publication order in relation to names of offenders and family members; statutory prohibition on identification of complainants.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 August 2017; 23 March 2018

Before:

Girdham DCJ

File Number(s):

2013/00227199

JUDGMENT

1. BASTEN AJA: In August 2017, the applicant stood trial with two co-accused in relation to a series of sexual assaults on two young girls. The jury returned its verdicts on 23 August 2017. On 23 March 2018, Judge Girdham sentenced the applicant.

2. On 28 November 2022, well out of time, the applicant filed a notice of appeal, accompanied by an affidavit of his solicitor, explaining the delay. The single ground of appeal was expressed in the following terms:

“That there has been occasioned to the applicant, AS, a substantial miscarriage of justice by reason of the evidence concerning counts 31-35 on the indictment, such evidence was not admissible against the applicant and created impermissible prejudice to the applicant’s trial such that the applicant’s trial was unfair.”

3. The practical basis of the ground of appeal was the refusal of a judge conducting pre-trial hearings (Judge Traill) to allow the applicant’s charges to be severed from those of his co-accused, PV, who (with DR) was the subject of counts 31-34 and was the only person charged with count 35.

4. Counsel for the Director of Public Prosecutions opposed both an extension of time and the grant of leave to appeal, which was required pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). Both were opposed on the ground that the proposed appeal lacked merit.

Extension of time and leave to appeal

5. The Court has an unfettered power to extend time. ^[1] Nevertheless, in circumstances where it is likely that a successful appeal will result in a retrial, the Court should be wary of permitting late applications to challenge a guilty verdict. It is always likely that a retrial in relation to charges of sexual assault will be distressing to the victims and their families, but particularly to those who may be required to give evidence with respect to traumatic incidents which they have sought to put behind them. In the case of a lengthy delay, that factor is likely to be aggravated. In addition, there will be the potential for memories to have faded. Some of those considerations are reduced in relation to sexual assaults where the evidence of the child victim is by way of a pre-recorded interview. The possibility of the applicant having suffered a substantial injustice weighs in favour of an extension. ^[2]

   1. Criminal Appeal Act 1912 (NSW), s 10(1)(b).

   2. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [28]-[29] (French CJ, Hayne, Bell and Keane JJ).

6. In support of the application for an extension of time, the applicant’s solicitors (who were not the solicitors originally instructed by him) provided a history of steps taken to obtain legal aid and to obtain counsel to appear for him. Some weight should be given to those matters. A further factor was that one of the co-accused, DR, had appealed (unsuccessfully) with respect to a similar allegation of miscarriage resulting from the joinder of his charges with those of the same co-accused, PV. ^[3]

   3. DR v R [2019] NSWCCA 320 (Brereton JA, Hoeben CJ at CL and Cavanagh J agreeing).

7. For reasons which will be explained, there is sufficient substance in the ground of appeal to warrant consideration by this Court. The Director’s ground of opposition is therefore not determinative. Rather, weighing the matters adverted to above, the appropriate course is to grant an extension of time up to the date of filing the notice of appeal, namely 28 November 2022.

8. In DR, the Court considered that leave was not necessary with respect to a ground in similar terms, but would have granted leave to appeal had it taken a different view. ^[4] Accordingly, leave to appeal should be granted.

   4. DR at [17].

Summary of charges on indictment

9. The two children involved may be identified as Kerry and Jenny (not their true names). Kerry was born on 14 June 2003. She was described as having an intellectual disability. Her mother later married DR. On 9 August 2006, they had a daughter, Jenny. DR was thus the father of Jenny and the stepfather of Kerry. (The mother and DR had two further children, both boys.)

10. The applicant, AS, was married to DR’s sister. Jenny was thus his niece and Kerry a step-niece. PV was a friend of DR. Evidence was tendered at trial that PV had earlier committed (and been convicted of) a number of offences involving sexual assaults on his own daughter. That evidence was admitted as tendency evidence in relation to the counts brought against him. The evidence was not admitted as against AS, and, it was accepted by the Director, had no rational connection with the guilt of AS. There was no charge alleging that AS and PV had been jointly responsible for any of the offending.

11. The indictment contained 35 counts. Seventeen counts related to the applicant alone and a further six involved the applicant and DR jointly. Seven counts concerned DR alone and a further four counts involved DR and PV. Only count 35 related to offending by PV alone.

12. Dealing with the charges against the applicant alone, two were expressed to be alternatives. Thus, count 19, laid under s 66A(2) of the Crimes Act 1900 (NSW), alleged that the applicant had sexual intercourse with Kerry, a person then under the age of 10 years, she being a person under the authority of the applicant. At the time of the alleged offending, s 66A(2) involved an aggravated form of the offence, the circumstance of aggravation relied on being that the victim was under the authority of the alleged offender: s 66A(3)(d). Count 20 alleged, in the alternative to count 19, that the applicant did assault Kerry and at the time of such assault committed an act of indecency on Kerry, a person then under the age of 16 years. Count 19 also allowed a statutory alternative verdict: if the jury were not satisfied that the circumstance of aggravation had been made out, it could convict of the non-aggravated offence under s 66A(1): s 66E(2).

13. Of the 17 offences charged against the applicant individually, 11 related to Kerry and six to Jenny. Of the six offences for which he was charged jointly with DR, three related to each of the girls. Of the individual offences, the applicant was acquitted of six, the alternative count 20 fell away, and he was convicted of the remaining ten, although with respect to the aggravated offence under count 19, the jury convicted of the statutory alternative.

14. There was no suggestion that the jury did otherwise than consider the evidence with respect to each count separately. There being no complaint of inconsistency or inappropriate compromise on the part of the jury, the disparate verdicts suggest that the jury’s consideration of the counts involving the applicant was not in fact overwhelmed by any prejudicial effect of the evidence relating to PV. That is not a dispositive consideration, but it is a factor which will be borne in mind in due course in assessing the claim of irreparable prejudice.

15. The other factors which must be considered in this respect are (i) the nature of the offending alleged against the applicant, (ii) the nature of the prejudicial material involving PV, and (iii) the directions given to the jury by the trial judge.

Nature of offending by applicant

16. The conduct of the applicant may fairly be summarised as an extended period of opportunistic sexual abuse of both complainants. The earliest allegations, involving Kerry, related to periods commencing in June 2012 and extended to August 2013. In June 2012, Kerry turned nine. The earliest allegation involving Jenny occurred during a period between August and November 2012 when she would have been six years of age.

17. Dealing only with the counts on which the applicant was convicted, count 9 was a charge of aggravated indecent assault in the course of which the applicant was alleged to have touched and rubbed Kerry’s bottom and vagina. The evidence was that Kerry got into the applicant’s bed and lay on her side. The applicant then lay behind her, pulled his pants down and pulled out his penis, and rubbed his hands on her bottom. She felt his hand was “wet and yuck and gross”. She said that the applicant had “previously told her that he drinks milk and milk comes out of his doodle”.

18. Jenny described count 10 as occurring after she had been playing outside and the applicant had called her inside. She thought it was lunchtime. He was in bed and they had a rest, she was lying on a blanket on her side wearing her pyjamas. He pulled her pants down when she was asleep and she felt his hands on her hips. She described the activity as “his rude part” touching “her rude part”. She identified the terms as referring to where boys and girls did a wee wee. She described his body as moving back and forth whilst his rude part had touched her rude part. She described something “like milk” coming out of his rude part and going all over her bum. Count 10 was an offence of aggravated sexual intercourse with a child under 10 under the applicant’s authority.

19. Count 12 was a further count of indecent assault involving Kerry while she and the applicant were both naked in the bath. He had asked her to come into the bathroom to get him a towel and then to get undressed which she did, he placed her in the bath with her lying on top of him with her back on the top of his body. He then hugged her and moved his bottom up and down against her.

20. Count 17 and 18 were related. Whilst Kerry and the boys were in the lounge room at the applicant’s house, he put on a pornographic movie depicting a girl and a boy having sex. As the actors had sexual intercourse, the applicant simulated sexual intercourse with her by lying on top of her and moving his body up and down against her. They were both naked. The incident was said to have occurred after the bath incident. Count 17 involved an allegation of assault accompanied by an act of indecency; count 18 was the offence of grooming by showing a pornographic movie. Count 19 was a continuation of those events in the course of which the applicant took hold of his son’s penis and placed it in Kerry’s mouth.

21. Count 21 also occurred in the applicant’s lounge room, in circumstances where he told Jenny to suck his penis. That did not happen but count 21 involved inciting a person under 10 to commit an act of indecency.

22. Counts 22, 23 and 24 related to Jenny. Count 22 alleged an act of fellatio in the bedroom, count 23 a further act of fellatio the same day in the toilet and count 24 alleged that the applicant went into the bedroom where the children other than Jenny were sleeping and played a pornographic movie as he masturbated. The first act involved the applicant taking Jenny into his bedroom and pushing her under the blanket, down to his penis and making her put it in her mouth until she had white stuff on her tongue. She said that “the white stuff comes from his dick” and tasted like “yucky milk”. She said that she had burped and then “spewed” and it went all over his bed.

23. Count 23 involved Jenny going to the toilet, followed by the applicant who pulled his pants down and put his penis straight into her mouth. She said that “the white stuff went on her forehead”. At that stage her aunt came in and told the applicant to get out.

24. Count 24 involved the applicant forcing Jenny to watch a movie of a little girl sleeping with her father when her father started to have sex with her. The applicant was “doing gross stuff to his son’s blanket, sexing the blanket.”

25. The six counts (25-30) involving the applicant and DR in company and occurred in a context where the applicant and DR had sex with at least four other girls (who were named) in turn over a period of three days. Both complainants gave evidence of “milk” being put into the girls’ mouths and various acts of penile/vaginal intercourse and acts of fellatio. Count 25 involved Kerry, and occurred the day before Jenny’s birthday party. Kerry said that the applicant and DR got rope and tied the rope around the back of the girls’ hands and tied it to a fish tank. She said that when it was her turn, DR got on top of her, kissed her and touched her breasts and put his finger in her vagina. Count 26 involved penile/anal penetration by the applicant of Jenny and, count 27, penile/anal penetration of Kerry by the applicant. Counts 29 and 30 involved further acts of penile/vaginal and penile/anal penetration respectively of Kerry. In relation to count 26, Jenny described herself as lying on the bed on her side when the applicant told her to take her clothes off or he would smack her. She said she was crying quietly whilst lying on her side naked and he put his penis in her anus. Count 27 involved penile/anal penetration of Kerry during Jenny’s birthday party. She described the applicant doing sex to her whilst another of the girls was lying down with them. DR also came into the room at the time. Kerry alleged that she and Jenny were in the applicant’s son’s bedroom watching a movie when he dragged her from the bedroom to the lounge, on her back. She said that he took her clothes off and then lay on top of her, kissed her on the legs and penetrated her vagina with his penis (count 29); he then digitally penetrated her anus, which was count 30. Kerry said that whilst that was happening to her, DR was doing similar things to Jenny on the other lounge. That was count 28 of which the applicant was acquitted.

26. It is necessary to compare and weigh this evidence of repeated serious acts of sexual abuse of the two girls described above against the evidence called in relation to PV. It may be noted that the pre-recorded evidence of Kerry took four hours and fifty minutes and that the JIRT interviews for Jenny lasted a total of eight hours and forty-five minutes. With breaks and interruptions, the period over which the jury were exposed to this evidence of the complainants was considerably longer than the times of the recordings. ^[5]

    5. Tcpt, 11/07/17, p 86.

Tendency evidence - PV

27. The tendency evidence in relation to PV was contained in a documentary form in Ex 40. It contained a statement of agreed facts and was tendered on day 21 of the 26-day trial. The statement was read to the jury, but before that happened the judge explained the significance of the facts being agreed and continued: ^[6]

“May I emphasise, I should have said, that the agreed facts are admissible only in the Crown case against [PV]. They play no part in the Crown case against the accused, [DR], or the accused man, [AS].”

6. Tcpt, p 761(46).

28. The statement recorded that, on 7 December 2000, PV had pleaded guilty to four charges of sexual intercourse with his daughter, with a further six admitted offences being taken into account on sentence. The victim in each case was PV’s daughter. The daughter made a complaint to her mother that she had been sexually molested by her father for a long period. Count 1 related to sexual intercourse with a child between the ages of 10 and 14 years and took place when the daughter was 12 years old. Each of the four offences of sexual intercourse occurred in the period from January 1996 to September 1999. The further six offences each involved aggravated indecent assault, commencing in January 1992 and continuing until December 1998. Each involved PV rubbing his erect penis against his daughter or, on one occasion, having his daughter masturbate him.

29. After the statement had been read to the jury, the trial judge gave a lengthy and detailed explanation of how the tendency evidence could be used, not for the purpose of punishing PV for conduct which was not before the Court in the counts on the indictment, but as demonstrating that he had a sexual interest in young girls, upon which he had in the past acted. The judge again emphasised that the agreed facts played no part in the prosecution case against DR and AS. ^[7]

    7. Tcpt, p 762-763.

30. Although little attention was paid in this Court to the charges involving DR and PV (and not the applicant) it was part of the applicant’s case that they, in combination with exhibit 40, gave rise to significant prejudice to the applicant. Two points should be made in that regard. First, it was said that evidence was adduced by PV’s counsel at trial that PV was on a Child Protection Register and that the applicant was aware of that. Further, PV had been a friend of DR for some eight years, DR being the applicant’s brother-in-law. The girl’s mother gave evidence that DR was aware that PV was a child sex offender. The applicant’s wife gave evidence that she knew PV. ^[8]

    8. Tcpt, p 365(10)-(15).

31. The fact that PV was charged with five offences to which the applicant was not a party does not, of itself, demonstrate that the material relevant to those offences was prejudicial to the applicant. There were offences committed only by DR, which were also before the jury, as to which no issue is raised. As to an offence of penile/vaginal penetration by DR committed on Kerry (count 31), penile/anal penetration by PV at the same time as count 31 (count 33), each was similar in kind to some of the 23 offences involving the applicant. Kerry’s evidence that DR and PV were penetrating her genitalia and anus simultaneously may make count 33 the most serious count on the indictment. (Counts 32 and 34 were alternative counts to 31 and 33 respectively.) The sole count involving PV alone, which occurred in September 2013 whilst the family was away, was count 35. Jenny was in the house with PV and PV called her into Kerry’s room, put her on the bed on her side and “sexed” her. The incident was briefly recounted, but at the end there was a knock on the door, answered by Jenny, and the police arrived and asked to speak to PV.

Jury’s directions

32. As noted above, at the time Ex 40 was tendered, the trial judge immediately gave directions to the jury that the evidence was not relevant to the conduct of DR or AS. Exhibit 40 was then read to the jury and the judge again gave detailed directions both as to the use the jury could make of that evidence as against PV and as to its irrelevance with respect to DR and AS.

33. At the commencement of the summing up, the jury was directed in standard terms as to the need to deliver separate verdicts with respect to each accused and each count. On day 3 of the summing up (15 August 2017) the judge returned to the issue of the use which could be made of Ex 40 as tendency evidence and continued: ^[9]

“As I instructed you at the time, those agreed facts were tendered and that material plays no role in the Crown case against [DR] or [AS] and you must have no regard to it whatsoever in relation to this direction in relation to them.”

9. Summing up, 15/08/17, pp 26-27.

34. The tendency directions were detailed and clear and no complaint is made about them. The directions dealt separately with tendency evidence in relation to each accused. Having dealt with DR and AS, the judge adjourned for a short break before dealing with PV. ^[10]

    10. Summing up, 15/08/17, pp 32-33.

35. The jury retired to consider its verdicts on the afternoon of 15 August, shortly after lunch and continued on 16 and 17 August. On the morning of Friday, 18 August, the judge received a note seeking “further clarification on the application of tendency and coincidental [coincidence] reasoning”. ^[11] As no issue had been raised with her earlier directions, the judge repeated those directions, including the direction that Ex 40 played no role in the prosecution case against DR and AS and that the jury “must have no regard to it whatsoever in relation to them”. ^[12]

    11. Summing up, 18/08/17, p 1.

    12. Summing up, 18/08/17, pp 4-5.

Legal principles

36. As has been noted, the original application for severance of the counts in the indictment was determined at a pre-trial hearing. That hearing was conducted by Traill DCJ, not Girdham DCJ who conducted the trial. The hearing, and the resulting pre-trial judgment delivered on 30 March 2017, dealt with separate trial motions brought by each of the accused, together with challenges to the tendency and coincidence notices with respect to each accused. In a comprehensive judgment (running to 78 pages) the judge set out the submissions and provided a summary of the evidence relating to each count in the indictment. It is not necessary to revisit any of that material, although clearly the pre-trial motions addressed counts which were the subject of acquittals or were not determined. Judge Traill noted that in oral argument counsel for the applicant did not press separation from DR, but only from PV. ^[13] Relevantly for present purposes, the judge considered whether the admission of tendency evidence in relation to PV was so prejudicial that DR and AS would not get fair trials with PV. ^[14] The judge commenced by noting both the accepted principle (and supporting studies confirming the factual foundation for the principle) that juries would abide by directions.

    13. Judgment, 30/03/17, p 50.

    14. Ibid, p 71.

37. The evidence of PV’s daughter was given separate and precise consideration, and involved a far more extensive set of documents than the statement of agreed facts which ultimately became Ex 40. The documents included detailed complaints by the daughter and two records of interview by PV. Such evidence, if given in that form, would have been a far more powerful (and potentially prejudicial) part of the trial than the form in which the evidence was ultimately given as a two-page statement of agreed facts.

38. It is not in dispute that it was open to the court to hear together charges involving a number of offences and two or more accused persons, although separate trials should be ordered where it is in the interests of justice to do so: Criminal Procedure Act 1986 (NSW), s 29. In accordance with s 29(2)(c), there was no doubt that the offences formed part of a series of offences of the same or similar character.

39. In this Court, the Director adopted, without demur from the applicant, the principles set out by Brereton JA in DR at [18]-[27]. Three points are of present importance. First, this Court, considering the matter from the perspective of a trial which has been completed, stands in a different position from that of the trial judge and, to an even greater extent, that of a judge dealing with a pre-trial application. Accordingly, it is not merely a matter of reviewing the earlier decision to refuse separation of counts or accused.

40. Secondly, the exercise to be undertaken with hindsight is whether the applicant has suffered prejudice from the admission of evidence tendered only against a co-accused. The real risk of such prejudice will arise particularly in cases where the effect of such evidence will tend to bleed into the consideration of the case against the applicant, because of the lack of clear distinction in practical terms between the evidence admissible with respect to one as opposed to that admissible only with respect to the other.

41. Thirdly, once the potential prejudice is identified, the effect of the directions in fact given by the trial judge should be reviewed to determine whether, on the assumption that the jury took them into account to the best of their ability, they were sufficient to remove or reduce the potential prejudice, so that it may properly be disregarded in assessing whether the trial was unfair.

Application of principles

42. In substance, the possible prejudice arises in the following way. On the one hand, the evidence of PV’s abuse of his own daughter, established by his own admissions and his conviction and sentence, provide powerful evidence as to the truth of the complaints made against him by Kerry and Jenny. However, that material was patently separate from the evidence implicating the applicant. In addition, the fact that the bulk of the offending involved only DR or AS (or the two of them together) renders it quite improbable that the separate offending of PV had a significant effect on the jury’s deliberations with respect to the applicant. The consistency of the girls’ evidence provided a strong case against the applicant without any reference to the conduct of PV.

43. At one point the applicant submitted that “[t]he PV tendency evidence allied with the evidence of a joint criminal enterprise between DR and PV in counts 31-34 created a Banquo’s ghost effect in the trial”. ^[15] However, that inference is contradicted by the jury’s request for clarification of the tendency directions and by the discrimination demonstrated in the verdicts. Thus, the jury acquitted both DR and PV with respect to count 33, suggested above to have been the most serious of the charges. Further, a similar degree of discrimination was demonstrated in the not-guilty verdicts with respect to seven counts involving either the applicant alone, or DR and the applicant in company. When taken with the strong directions by the trial judge, the possibility of an improper prejudicial effect may properly be dismissed.

    15. Applicant’s written submissions, 28 November 2022, par 53.

44. It was arguable that Ex 40 had a second, indirect operation. Thus, to the extent that Ex 40 supported the veracity and reliability of the complainants’ evidence with respect to PV, it provided indirect support for their evidence with respect to DR and AS. That is because the activities complained of constituted a series of similar offences arising from interconnected events involving three men who undoubtedly had access to the children at the places and over the times at which the alleged offending took place. However, as the respondent’s case was not presented in this way, such indirect assistance in relation to the credibility of the complainants must be disregarded. There is no reason to think the jury relied on it for this purpose.

Conclusion

45. No unfairness has been demonstrated in the trial of the applicant by the joint hearing of the charges involving PV, nor the admission against PV alone of Ex 40.

46. The Court should make the following orders:

1. Extend time for the filing of the notice of appeal to 28 November 2022;

2. Grant the applicant leave to appeal against his convictions in the District Court;

3. Dismiss the appeal.

47. WALTON J: I agree with Basten AJA.

48. HAMILL J: I have read the draft judgment of Basten AJA. I agree with the orders his Honour proposes and with his reasons. I have nothing to add except to make one observation by reference to the presiding Judge’s discussion of the applicant’s need for an extension of time. That observation is that, while the matters referred to by his Honour at [5], are important considerations when an appeal (or applicant’s for leave to appeal) is brought out of time, I cannot imagine a case where this Court would refuse to extend time if it came to view that there was a material error in the trial process and did not consider that “no substantial miscarriage of justice has actually occurred”: Criminal Appeal Act 1912 (NSW). In the present case, as Basten AJA’s judgment shows, there was no error in the trial (or pre-trial) process and the joinder of the counts, and the conduct of the applicant’s trial jointly with PV, did not result in any unfairness to the applicant.

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Endnotes

Decision last updated: 30 June 2023