Astill v The King

[2024] NSWCCA 118

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Astill v R [2024] NSWCCA 118

Hearing dates:

19 June 2024

Date of orders:

08 July 2024

Decision date:

08 July 2024

Before:

Bell CJ at [1];
Stern JA at [101];
Button J at [102].

Decision:

1. Refuse leave to appeal in relation to grounds 1 and 2 of the appeal against conviction pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2.        Refuse leave to appeal against sentence.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – tendency evidence – where tendency alleged was constituted by charged and uncharged acts – where no objection to directions raised at trial – whether jury should have been directed that tendency evidence comprised of the complainant’s own allegations could not be used as tendency evidence for the very same count or for any of the counts concerning that complainant – whether jury should have been directed that lack of satisfaction of any of the counts at the tendency stage would mean that a not guilty verdict should be returned in relation to that count – whether circumstances warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act 1986 (NSW)

CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – complaint evidence – whether jury should have been directed that complaint evidence could only be used for its credit purpose and not for its truth purpose – where no objection to directions raised at trial – where no limitation placed on use of complaint evidence pursuant to s 136 of the Evidence Act 1995 (NSW)

CRIME – appeals – appeal against sentence – manifest excess – where Applicant sentenced in relation to 34 counts which varied in duration and seriousness and related to a wide range of vulnerable victims

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW) s 253G(2)(a)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)

Crimes Act 1900 (NSW) ss 61J, 61M, 61O

Criminal Appeal Act 1912 (NSW) s 6(1)

Criminal Procedure Act 1986 (NSW) ss 161A, 166

Evidence Act 1995 (NSW) ss 66, 108, 136

Jury Directions Act 2015 (Vic) ss 61-62

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

Abusafiah v R (1991) 24 NSWLR 531 at 536; (1991) 56 A Crim R 424

Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288

BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537

Carbone v The King (No 2) [2024] NSWCCA 7

CL v R [2014] NSWCCA 196

Cox v R [2022] NSWCCA 66

CV v The King [2022] NSWCCA 264

Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150

Day v Rex (No 2) [2023] NSWCCA 312

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48

Director of Public Prosecutions v Marks [2005] VSCA 277

Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644

Director of Public Prosecutions v Roder [2023] VSCA 262

Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26

Greenhalgh v R [2017] NSWCCA 94

Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33

House v The King (1936) 55 CLR 499; [1936] HCA 40

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

JS v The Queen [2022] NSWCCA 145

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

PD v R [2012] NSWCCA 242

R v Bauer (2018) 266 CLR 56; [2018] HCA 40

R v Bohannan [2010] EWCA Crim 2261

R v Brown [2012] NSWCCA 199

R v Obeid (No 12) [2016] NSWSC 1815

R v Rae [2013] NSWCCA 9

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36

Vaughan v R [2020] NSWCCA 3

Zhou v R [2021] NSWCCA 278

Category:

Principal judgment

Parties:

Wayne Gregory Astill (Applicant)
The Crown (Respondent)

Representation:

Counsel:

T Bicanic (Applicant)
E Nicholson (Respondent)

Solicitors:

Penrith Criminal Law (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/56907

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of the names of, or any information tending to reveal the identity of any of, the 33 witnesses identified in orders made by the District Court on 15 October 2020. Pursuant to s 578A of the Crimes Act 1900 (NSW), there is also to be no publication of the names of, or any information tending to reveal the identity of, the complainants.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 August 2022; 31 March 2023

Before:

O’Rourke SC DCJ

File Number(s):

2019/56907

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant, Mr Wayne Gregory Astill, was a Senior Correctional Officer at the Dillwynia Correctional Centre (the Correctional Centre). He was charged with 51 offences involving interactions with some 13 female inmates at the Correctional Centre, including:

1. 13 counts of aggravated sexual assault, contrary to s 61J of the Crimes Act 1900 (NSW) (the Crimes Act) (counts 13, 15-21, 28-31 and 44).

2. 22 counts of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act (counts 1-4, 6, 8, 9, 11, 12, 23, 25-27, 34, 35, 39-41, 46, 47,49 and 50).

3. Three counts of aggravated act of indecency, contrary to s 61O(1A) of the Crimes Act (counts 5, 14 and 22).

4. 13 counts of misconduct in a public office, contrary to the common law (counts 7, 10, 24, 32, 33, 36-38, 42, 43, 45, 48 and 51).

The Applicant pleaded guilty to seven of the 13 counts of misconduct in public office and not guilty to all of the other counts. The Applicant also made admissions as to the factual basis of three of the counts of misconduct in public office by virtue of agreed facts which were put before the jury.

Following a trial in the District Court of New South Wales before O’Rourke SC DCJ (the trial judge) and a jury, the Applicant was found guilty of 27 counts (counts 2-6, 8-10, 14, 22, 23, 25-31, 33-35, 42, 44, 45 and 49-51) relating to nine complainants.

The trial judge imposed an aggregate sentence of 23 years imprisonment with a non-parole period of 15 years and 4 months.

By the time of closing addresses, the Crown relied on four specific tendencies of the Applicant “to act in a particular way towards female inmates at Dillwynia Correctional Centre while he was on duty as a Senior Correctional Officer”. The evidence identified in the tendency notice as supporting the tendencies alleged included the admitted conduct, the charged conduct and other uncharged conduct.

The Applicant sought leave to appeal from his convictions and sentence on the grounds that:

1. A miscarriage of justice was occasioned by the directions given to the jury concerning the Crown case on tendency.

2. A miscarriage of justice resulted from the failure to direct the jury that the complaint evidence could not be used for its “truth” purpose.

3. The aggregate sentence imposed was manifestly excessive.

Leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) was required in respect of the two grounds of appeal in relation to the convictions as no issue was taken during the trial with the directions given to the jury.

The Court held (Bell CJ, Stern JA and Button J agreeing), refusing leave to appeal in relation to the conviction appeal and otherwise dismissing the appeal in relation to sentence:

1. A direction that the jury could not use evidence given by one complainant to establish a tendency to support the charges in relation to that same complainant would have unduly increased the complexity of the jury’s task, encouraged a revisiting of the underlying body of evidence supporting the alleged tendency on the occasion of the jury’s consideration of each charge and been contrary to the High Court’s decision in Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 98 ALJR 644: [47].

2. The giving of a direction that, insofar as the tendency evidence included the same allegations in the indictment, lack of satisfaction at the tendency stage would mean that a verdict of not guilty would need to be returned in relation to that count would detract from the simple elegance of the approach mandated in Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 98 ALJR 644 and encourage the conflation of standards of proof: [48].

3. The trial judge directed the jury in terms which drew a distinction between evidence given by a complainant and support for that evidence from “other evidence” which necessarily included evidence of other witnesses and tendency evidence. Her Honour also gave clear and repeated directions about the need for the jury to give separate consideration to each charge: [50]-[53].

4. The jury did not need to be directed that, insofar as the Crown case on tendency relied upon the allegations in the indictment, it must be satisfied beyond reasonable doubt of those acts before engaging in tendency reasoning pursuant to s 161A(3) of the Criminal Procedure Act 1986 (NSW). The tendency evidence was not “indispensable” in the sense that a failure to prove the existence of the tendency would mean there was no case to go to the jury: [56].

ShepherdvThe Queen (1990) 170 CLR 573, Carbone v The King (No 2) [2024] NSWCCA 7; Davidson v R (2009) 75 NSWLR 150, referred to.

5. No miscarriage of justice arose as a consequence of the tendency direction given. The outcome of the jury’s deliberations was consistent with the members of the jury having conscientiously discharged their duty and followed the trial judge’s directions. The absence of any objection to the trial judge’s summing up to the jury also tended against any conclusion that the failure to give the tendency direction sought on appeal deprived the Applicant of a real chance of acquittal: [60]-[63].

Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531, De Silva v The Queen (2019) 268 CLR 57, CV v The King [2022] NSWCCA 264, Aravena v R (2015) 91 NSWLR 258, Greenhalgh v R [2017] NSWCCA 94, The Queen v Dookheea (2017) 262 CLR 402, referred to.

6. It was not possible to spell out from the passage of the Crown’s closing address relied on by the Applicant an intention by the Crown to confine its reliance on the complaint evidence to mere credibility purposes. In circumstances where the trial judge could have directed the jury that they could rely on the complaint evidence for its “truth” purpose, her Honour’s failure to do so operated to the Applicant’s benefit rather than detriment: [72]-[74].

7. The aggregate sentence was not manifestly excessive. Although it was a stern sentence, it was appropriately so and was neither in error nor unreasonable or plainly unjust: [99] (Bell CJ), [103] (Button J).

JUDGMENT

1. BELL CJ: The Applicant, Mr Wayne Gregory Astill, was a Senior Correctional Officer at the Dillwynia Correctional Centre (the Correctional Centre).

2. He stood trial in the District Court at Sydney before her Honour Judge O'Rourke SC (the trial judge) and a jury between 25 July 2022 and 25 August 2022 on an indictment which contained 51 offences involving his interactions with some 13 female inmates. The charges can be broken down as follows:

1. 13 counts of aggravated sexual assault, contrary to s 61J of the Crimes Act 1900 (NSW) (the Crimes Act) (counts 13, 15-21, 28-31 and 44).

2. 22 counts of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act (counts 1-4, 6, 8, 9, 11, 12, 23, 25-27, 34, 35, 39-41, 46, 47, 49 and 50).

3. Three counts of aggravated act of indecency, contrary to s 61O(1A) of the Crimes Act (counts 5, 14 and 22).

4. 13 counts of misconduct in a public office, contrary to the common law (counts 7, 10, 24, 32, 33, 36-38, 42, 43, 45, 48 and 51).

3. The Applicant was also charged with a further three back up and related offences pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act), namely:

1. Two counts of intimidation with intent to cause fear of physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and

2. One count of unlawfully delivering tobacco to an inmate contrary to s 253G(2)(a) of the Crimes (Administration of Sentences) Act 1999 (NSW).

4. The Applicant pleaded guilty to seven of the 13 counts of misconduct in public office (counts 7, 24, 32, 36-38, and 43) and not guilty to all of the other counts.

5. The charges of misconduct in public office took a broadly common form, identifying a date range and then alleging that between those dates, the Applicant “did misconduct himself in public office by engaging in an inappropriate sexual relationship with” various female inmates whilst he was a Senior Correctional Officer at the Correctional Centre.

6. The Applicant also made admissions as to the factual basis of counts 37, 38 and 43, which involved three complainants, by virtue of associated agreed facts which were put before the jury.

7. The Crown relied on a detailed tendency notice which identified the tendency sought to be proved as the Applicant’s “tendency to act in a particular way towards female inmates at Dillwynia Correctional Centre while he was on duty as a Senior Correctional Officer”, namely to:

“i.   Give favourable treatment to a female inmate, including the provision of contraband,

ii.    Make sexually suggestive comments to the inmate,

iii.   Put himself in a position where he is alone with a female inmate (or inmates) but where there is the possibility of being interrupted,

iv.   Engage in sexual acts with the inmates (including requests for sexual activity, sexual touching and sexual intercourse),

v.   Engage in the conduct above at (iv) without the consent of the inmate and

vi.  Intimidate any inmate who challenged his actions outlined above.” (Emphasis added.)

8. The evidence identified in the tendency notice as supporting the tendencies alleged included the admitted conduct, the charged conduct and other uncharged conduct. By the time of final addresses and the summing up, the Crown did not rely upon the sixth tendency in the tendency notice (although the underlying evidence remained relevant to one of the s 166 matters) and the fourth and fifth tendencies were effectively run together.

9. Paragraphs 5 and 6 of the tendency notice were as follows:

“The Prosecution seeks to adduce evidence in relation to each count on the indictment as cross-admissible against the other offences set out on the indictment. The Prosecution seeks to lead evidence of both charged and uncharged acts …

… the tendency evidence sought to be adduced bears upon facts in issue in this prosecution namely that the accused committed the offences alleged on the indictment.” (Emphasis added.)

10. There was no objection to the tendency evidence nor any objection to the trial judge’s directions in relation to the tendency material.

11. On 25 August 2022, the jury found the Applicant guilty of counts 2-6, 8-10, 14, 22, 23, 25-31, 33-35, 42, 44, 45 and 49-51. The counts for which he was convicted related to his interactions with some nine female inmates at the Correctional Centre. The convictions included five counts of aggravated sexual assault without consent involving two of the female inmates. The trial judge assessed the objective gravity of three of these five counts as being “at” or “around mid-range”, one as “above mid-range” and one as “well above mid-range”.

12. The Applicant was acquitted in respect of 17 charges, namely counts 1, 11-13, 15-21, 39-41, and 46-48.

13. On 31 March 2023, the trial judge imposed an aggregate sentence of 23 years imprisonment, commencing on 24 August 2022 and expiring on 23 August 2045, with a non-parole period of 15 years and four months, expiring on 23 December 2037.

Grounds of Appeal

14. The Applicant raises the following two grounds of appeal in relation to his conviction:

“Ground one: A miscarriage of justice was occasioned by the directions given to the jury concerning the Crown case on tendency.

Ground two: A miscarriage of justice resulted from the failure to direct the jury that the complaint evidence could not be used for its ‘truth’ purpose given the jury were directed that the complaint evidence could only be used in relation to the ‘credit’ purpose.”

15. The formulation of these grounds engages what has been described as the third basis or third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). In the language of Simpson AJA in Day v Rex (No 2) [2023] NSWCCA 312 at [75], a miscarriage of justice in the context of s 6(1) of the Criminal Appeal Act will occur:

“…where there is any departure from the entitlement of an accused person to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed, as a result of which the accused person has been deprived of chance that was fairly open to him (or her) of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514; [1955] HCA 59 (Fullagar J) …; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] ...”

16. In the language of Beech-Jones CJ at CL (as his Honour then was) in Zhou v R [2021] NSWCCA 278 at [22]:

“To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a ‘real chance’ that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J) or ‘realistically [could] have affected the verdict of guilt’ (at [123] per Gageler J) or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial' (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ).”

17. The nature of the grounds of appeal obviates the need to identify the detail of the individual offences for which the Applicant was found guilty, and also avoids the need to identify the individual complainants beyond the fact that each was a female inmate at the Correctional Centre during the Applicant’s tenure as a Senior Correctional Officer.

18. The Applicant also raises a sole ground of appeal in relation to the aggregate sentence imposed upon him, namely that it was “manifestly excessive both with respect to the maximum and minimum terms.”

19. The Applicant seeks the quashing of his convictions and a new trial on those counts upon which he was convicted.

Rule 4.15

20. The Applicant accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) applies to the two grounds of appeal in relation to the convictions as no issue was taken during the trial with the directions given to the jury which are now the subject of complaint.

21. In Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26 at [82]-[90], I set out the following principles in relation to r 4.15 of the Criminal Appeal Rules:

“The most extensive discussion of r 4.15 (formerly rule 4) in recent case law may be found in the judgments of Basten JA in Greenhalgh v R [[2017] NSWCCA 94] (Greenhalgh) and Bathurst CJ in Obeid v R [(2017) 96 NSWLR 155; [2017] NSWCCA 221] (Obeid).

In Greenhalgh, [at 7] Basten JA referred to the statement by McHugh J in Papakosmas v The Queen [(1999) 196 CLR 297; [1999] HCA 37 at [72]] that:

‘There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant.... Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant.’

Basten JA noted [at [8]] that this passage ‘provided a negative constraint on the grant of leave (‘[t]here is no case for the grant of leave under r 4 unless ...’ and ‘an appeal can only succeed if the Court of Criminal Appeal is satisfied that ...’) and had been relied upon in many later cases.

Reasons given for limiting appeals on points not taken at trial have included (i) a pragmatic consideration of the possible effect on the workload of the appellate court; (ii) the obligation of lawyers to take points in a timely fashion; (iii) the difficulty in judging the effect of an error in circumstances where it was not raised in the course of the trial; and (iv) that in circumstances where no objection was taken at trial, it might be inferred that, as understood in the context of the trial, the point did not have the significance alleged on appeal and the failure to raise it was not likely to have given rise to a miscarriage of justice [citing R v Tripodina (1988) 35 A Crim R 183 at 191–195, referred to by Basten JA in Greenhalgh at [9]. See also Germakian v R (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [13]: AP v R [2013] NSWCCA 189].

In Greenhalgh, Basten JA said [at [14]]:

‘… divorced from the understanding resulting from involvement in the trial, a claim that something should have happened which did not is hard to evaluate. If, in a clear case, a necessary element of a fair trial according to law was overlooked, leave should usually be granted. However, it is not possible to be prescriptive. It must, in some sense, be in the interests of justice that leave be granted; otherwise leave should be refused.’

One feature affecting the application of the discretion inherent in r 4 identified by Basten JA in Greenhalgh was the fact of legal representation at trial. In this context, his Honour identified the pellucid statement of principle by Gleeson CJ in Nudd v The Queen [(2006) 162 A Crim R 301; [2006] HCA 9 at [9]] (Nudd):

‘A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.... It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function.’

The importance of this statement of principle may be seen by its endorsement by the High Court in The Queen v Baden-Clay [(2016) 258 CLR 308; [2016] HCA 35 at [48]].

In Greenhalgh, Basten JA also noted [at [21]], in the context of his discussion of the question of leave under r 4, that in cases where no direction was sought, it will usually be a precondition to a grant of leave that the omitted direction should be expressly formulated. His Honour correctly observed that “[i]t will be difficult for the appeal court to assess the significance of the omission, being far removed from the context provided by the trial; it will be almost impossible if the terms of the proposed direction are not formulated.”

In Obeid, Bathurst CJ said [at [24]] that the discretion under r 4 “will be exercised in the applicant’s favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal.” The Chief Justice [at [25]] also agreed with Basten JA’s observation in Greenhalgh that if a necessary element of a fair trial according to law was overlooked, leave should generally be granted.”

22. Reference was also made in Gould to the following statement of principle in Abusafiah v R (1991) 24 NSWLR 531 at 536; (1991) 56 A Crim R 424:

“The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge’s attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge’s attention to that error (R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice.”

Ground 1 – tendency direction

23. The first ground of appeal was that a “miscarriage of justice was occasioned by the directions given to the jury concerning the Crown case on tendency”. As will be seen, the criticism was not of the directions per se but as to their completeness. Consistent with Greenhalgh v R [2017] NSWCCA 94 (Greenhalgh), Mr Bicanic, who argued a difficult case with considerable skill, formulated a supplementary direction which he submitted should have been made: see [33] below.

24. The Applicant made three distinct complaints which were said to give rise to a miscarriage of justice, namely:

1. “The directions to the jury did not conform with the confirmation by the Crown … and make plain that, in so far as the tendency evidence [was] comprised of the complainant’s own allegations in the indictment, it could not be used as tendency evidence (i) for the very same count or (ii) for any of the complainant’s own counts in the indictment (where the complainant had more than one count in the indictment alleging offences other than common law misconduct offences)”;

2. “…the jury … were not told that, in so far as the tendency evidence included the very same allegations in the indictment, lack of satisfaction at the tendency stage would mean that a verdict of not guilty would need to be returned in relation to that count or counts”; and

3. “The circumstances of this case warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act that, in so far as the Crown case on tendency relied upon the allegations in the indictment, the jury had to be satisfied beyond reasonable doubt of those acts before engaging in tendency reasoning.”

The directions given

25. The Applicant emphasised that, in the course of the trial, the learned trial judge had from time to time expressed concern at various aspects of the tendency case. This is in a sense true but her Honour’s concern arose from the fact that there were in fact four or five tendencies being relied upon by the Crown in a case with multiple complainants and multiple charges and not all tendencies were necessarily germane to all counts. As such, her Honour recognised that she had to be careful to be clear in her directions to the jury in relation to tendency. In the course of the hearing, the trial judge also clarified with the prosecutor that the Crown did not seek to rely for tendency purposes on evidence by a complainant on one count to support another count relating to the same complainant.

26. On 18 August 2022, prior to the trial judge commencing her summing up, the following further exchange occurred in relation to the tendency direction:

“HER HONOUR: And in relation to tendency direction, I’m proposing to give the tendency direction, or the tendency purpose of it, and the way the Crown wishes to use it in the same way that you’ve submitted.

CROWN PROSECUTOR: Yes.

HER HONOUR: So that there was five tendencies effectively, the bodies of evidence that you rely upon for that and that what you say it goes to – to proving the other counts?

CROWN PROSECUTOR: Yes.

HER HONOUR: Because you didn’t mention the cross admissibility of one complainant on another complainant. So I’m limiting it to what you’ve submitted it on.

CROWN PROSECUTOR: Very well.

HER HONOUR: And then I’ll give the steps I need to go through for each of those tendencies and then what they can and can’t do.”

27. The trial judge’s directions to the jury in relation to the tendency evidence commenced on 19 August 2022:

“Now, in considering the counts on the indictment, you are entitled to commence your deliberations with any count and therefore any complainant you wish. It is not the case that you must follow the complainant or the counts as set out in the indictment. It is simply a matter for you as to how you go about the process…

I have told you that you must give a separate consideration to each count on the indictment. Giving separate consideration to each count means that your verdicts might be the same or they might be different, and that makes sense when you think about it, because different issues are present in the evidence in relation to the ten complainants and, indeed, their individual counts. I have also directed you that subject to a direction relating to tendency evidence or tendency reasoning, you must consider and decide whether the Crown has proved each count on the basis only of the evidence directly relevant to that count and that complainant.”

28. Her Honour also said, immediately before posing the rhetorical question “So what is tendency reasoning and how might it apply?”:

“I have directed you that in considering each complainant’s evidence and whether the Crown has satisfied you as to the honesty and essential accuracy of their evidence in relation to a particular count, you are entitled to consider whether her evidence is supported by any other evidence before you. Now, such other evidence - includes the method of reasoning referred to by the parties as tendency reasoning. It is this type of reasoning that is the subject of the present direction.” (Emphasis added.)

29. In the emphasised passage, the trial judge drew a distinction between evidence given by a complainant and support for that evidence from “other evidence” which necessarily included evidence of other witnesses. Her Honour also explained that “such other evidence” included that which underpinned tendency reasoning. This observation is relevant to the first limb of appeal ground 1.

30. Her Honour went on to outline the four tendencies ultimately contended for by the Crown (see [7]-[8] above) as well as the three bodies of evidence upon which it relied as demonstrating those tendencies. Her Honour then recapitulated as follows:

“…the circumstances might arise where you would be entitled to take into account the content of what, for example, one complainant said in her evidence about the conduct of the accused towards her when you are considering whether the Crown has proved the truthfulness and reliability of what the other complainant has alleged in her evidence that forms the basis of a particular count on the indictment referable to another complainant. Now, whether those circumstances will in fact arise in the trial will depend upon whether the Crown is able to prove all necessary matters it must prove before tendency reasoning can be applied by all or any of you.”

31. The trial judge next gave the following direction as to what the Crown was required to prove before the jury could rely upon tendency reasoning:

“Before tendency reasoning could be used, the Crown must satisfy you of, however, two matters. So the Crown must prove - the two findings that you must make.

The first finding is that one or more of those acts alleged actually occurred. In making that finding, you do not consider each of the acts in isolation but you consider all of the evidence and ask yourself whether you find that a particular act or acts relied upon actually took place. If you find that none of the acts occurred, then you must put aside any suggestion that the accused had any of those particular tendencies alleged by the Crown.

If you do find that one or more of those acts occurred, then you go on to consider whether, from that act or acts that you have found, you can conclude that the accused had the specific tendency or tendencies alleged. If you cannot draw that conclusion, then again you put aside any suggestion that the accused had a tendency that is being alleged by the Crown.

If you do not find that any of the acts - that is the three bodies of evidence relied upon for the tendency purposes - occurred, then tendency reasoning would not be available to you and you would have to disregard completely any suggestion that the accused had a particular tendency alleged by the Crown and decide the facts in dispute in relation to each count on the indictment without having regard to this method of reasoning called tendency reasoning.

However, if you, having found one or more of the acts, or one or more of the three bodies of evidence attributed to the accused occurred, then you must go on to consider the second matter the Crown must prove before tendency reasoning could be used by any or all of you. You must ask yourself whether, from the one or more acts or bodies of evidence you have found occurred, you can conclude that it or they reveal or demonstrate the particular tendency or tendencies alleged by the Crown…

If you cannot draw that conclusion by any of the acts or bodies of evidence you have found occurred, then you must also disregard completely any suggestion that the accused had a particular tendency or tendencies alleged by the Crown and decide the facts in dispute in relation to each count on the indictment without having regard to that method of reasoning. But, if having found one or more acts or bodies of evidence attributed to the accused occurred and from that finding you conclude that the accused was a person with one or more of those tendencies alleged by the Crown, you would be entitled to have regard to that fact of the existence of that tendency or tendencies when you are determining whether the Crown has proved the accused committed the specific acts alleged on the indictment.

You should bear in mind, however, that it is just one part of the evidence relied upon by the Crown. You should give it what weight you think it deserves in the context of all of the evidence before you.”

32. Her Honour’s directions as to onus and standard of proof and the need to consider each charge separately were not the subject of any complaint by the Applicant.

33. As noted above, the Applicant’s complaint was not so much with the form of the tendency direction in fact given but involved the contention that the directions given should have been supplemented by the following further direction:

“Although tendency reasoning may be a qualification to the earlier direction I gave you concerning separate consideration of each count, there is one further matter I must direct you on. As you have now heard, the Crown relies upon the allegations in the indictment in support of the Crown case on tendency. For example, the Crown relies upon the sexual allegations in the indictment in support of the proposed tendency that the accused engaged in sexual acts with inmates without consent. I must direct you that, in so far as the Crown relies upon these counts in the indictment in support of its case on tendency, each complainant's sexual allegation is relied on in relation to every other complainant, and not for the same complainant's allegation/s. And so, should you be satisfied of an act in the indictment when considering whether the accused had this proposed tendency, you must not use that same satisfaction when considering whether you are satisfied beyond reasonable doubt of the very same count, or the very same allegations by the same complainant. It may, however, be relevant to your consideration of one or more other allegations by another complainant. For example, satisfaction of the acts in counts 8 and 9 … in support of the Crown case on tendency could not be used when assessing counts 8 and 9 at the stage of considering whether these very same allegations have been proved beyond reasonable doubt. But it could be used potentially when assessing the other counts by the other complainants.”

34. As will be seen, this posited further direction was formulated prior to the High Court’s recent decision in Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 (Roder). Despite the Applicant’s submissions to the contrary, that decision tends strongly against his case under ground 1 of the appeal for the reasons explained more fully below. Before turning to consider the three limbs of the Applicant’s argument with respect to ground 1, some key aspects of the decision in Roder should be noted.

Roder

35. The accused in Roder was charged with 27 child sexual offences in relation to two complainants. The Crown relied on the 27 charged acts and six uncharged acts to support the existence of an alleged tendency on the part of the accused, as set out in a tendency notice, to have a particular state of mind and to act in a particular way in relation to the two complainants. The accused accepted that the charged and uncharged acts were cross-admissible as tendency evidence but sought a pre-trial ruling from the trial judge as to the form of the direction to be given to the jury on the standard of proof to be applied in relation to the charged acts for the purposes of determining whether the tendency was established.

36. The trial judge in Roder had proposed that:

“…the jury would be ‘instructed sequentially’ by, firstly, recommending that they decide whether the six uncharged acts occurred and, secondly, instructing them that, when considering the first charge, they apply the principles concerning tendency reasoning based on the uncharged acts that they accepted, then apply those principles to the second charged based on the uncharged acts that they accepted and the first charge if it was proved beyond reasonable doubt (and so on for each of the 27 charges).”

37. An appeal brought by the Director of Public Prosecutions (the Director) from the decision of the trial judge was dismissed by the Victorian Court of Appeal: Director of Public Prosecutions v Roder [2023] VSCA 262 at [17]-[18]. Their Honours made extensive reference to the decision of the High Court in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (Bauer) and the discussion, at [86], as to how trial judges should approach tendency evidence and directions to the jury in relation to uncharged acts relied upon to establish the tendency. What the High Court had said in Bauer included the following:

“…it is appropriate to say something further of the directions ordinarily to be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it. Where evidence is admitted on that basis, the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused’s guilt of that offence beyond reasonable doubt. Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria [See Jury Directions Act 2015 (Vic), ss 61-62, Beqiri v The Queen [2017] VSCA 112 at [121], [130].” (Footnotes omitted.)

38. There was also discussion in the Victorian Court of Appeal at [32]-[33] of a line of decisions of this Court which were distinguished on the basis of differences in statutory context.

39. Although the proposed direction in Roder and the discussion of it by the High Court occurred in the specific statutory context of ss 61-62 of the Jury Directions Act 2015 (Vic), the significance of the decision extends beyond that statutory context.

40. In upholding the appeal, the High Court rejected the Victorian Court of Appeal’s statement ([2023] VSCA 262 at [34]) that “the judge was correct to hold that the jury should be directed that every charged act relied upon by the prosecution as tendency evidence must be proved beyond reasonable doubt before it can be so used.” The High Court necessarily rejected the rationale which the Victorian Court of Appeal had proffered for that view, namely that:

“To direct differently would be to risk confusing, and unacceptably undermining, the criminal standard of proof. Indeed, we consider that to direct differently would be an invitation to the jury to indulge in an impermissible circular reasoning process, and to apply a less rigorous standard of proof to the charges on the indictment.”

41. The High Court pointed out in Roder at [28], that the discussion by Basten AJA in JS v The Queen [2022] NSWCCA 145 at [43], “correctly identifies the alleged tendency as an intermediate fact that is to be proved in its own right and then deployed in aid of the proof of each charge” and that “the direction should identify the evidence said to support the alleged tendency and invite the jury to consider whether that tendency has been established” with “the balance of the summing up given to the jury mean[ing] that there was ‘no risk … that the onus and standard of proof were not understood and properly applied’.”

42. At [37], under the heading “Content of directions”, the High Court said as follows:

“As this case concerns Victoria, the primary point of reference for determining the content of the appropriate directions in relation to tendency evidence is the Jury Directions Act. That said, it follows from the nature of tendency evidence that, in a case where the prosecution relies on both uncharged and charged acts to establish an alleged tendency of the kind under consideration here, a single separate tendency direction should ordinarily be given. Such a direction should not direct or invite the jury to make findings in respect of charged conduct, but instead should indicate the evidence relied on to support the alleged tendency, direct the jury to consider whether they are satisfied of the alleged tendency and then advise the jury that, if they are so satisfied, they can use that tendency in considering whether it is more likely that the accused committed the specific offences with which he or she is charged. Careful directions should be given to the jury as to the requisite onus and standard of proof as well as to the contents of the elements of the offence and the need for separate consideration of each charge.^” (Footnotes omitted.)

43. The Court had earlier in its reasons noted that a new and alternative form of possible direction had been raised in the course of oral argument before it, namely that “the jury should be directed that, when considering the respondent's guilt for each particular charge, they could not use the direct evidence of the corresponding charged act as part of the body of evidence relied on by the prosecution to support the alleged tendency.” The Court said at [33]-[34] that:

“The same submission was made in Rassi, and that submission immediately confronts the same difficulty as it did in that case, namely that such a direction would make the jury's task vastly more difficult. In the ordinary course, the jury receive a separate tendency direction and then directions emphasising the necessity to be satisfied of each element of each offence charged beyond reasonable doubt. During the summing up, the trial judge will refer the jury to the way in which the parties have set out their respective cases and identify the evidence necessary to assist the jury in determining the issues in the trial. In doing so, it can be expected that the trial judge will identify the particular alleged act of the accused relied on by the prosecution for each charge.

To give effect to the respondent's alternative submission, the trial judge would be required to give the jury a tendency direction at each point in the summing up where a particular charge is being addressed. In doing so, the trial judge would have to direct the jury that, in considering whether the prosecution has established that charge beyond reasonable doubt, they must exclude from their consideration so much of the tendency evidence relied on that consists of direct evidence of that charge. Directions of this kind would require the jury to repeatedly revisit their own reasoning and conclusions in relation to the existence of the tendency in relation to each successive charge. The complexity of the jury's task would significantly increase as the jury proceed through their consideration of each charge. As was noted in Rassi, the only means of avoiding this would be to direct the jury that they can only rely on evidence of charged acts as tendency evidence if they are satisfied that evidence has been proved beyond reasonable doubt, a proposition that has already been rejected.” (Footnotes omitted.)

44. The number, content and length of directions should not overcomplicate the jury’s task which will always be complex where there are multiple counts relating to multiple complainants. The High Court in Roder strongly indicated that there should be one tendency direction coupled with faithful reference by the trial judge to the evidence relied upon to establish the tendency and accompanied by clear directions as to onus and standard of proof as well as to the contents of the elements of the offence(s) and of the need for separate consideration of each charge.

Consideration

45. In relation to the first limb of the Applicant’s argument in relation to ground 1 set out at [24(1)] above, it was correct that the Crown, in the course of the trial, made it plain to the trial judge that it was not relying on evidence given by one complainant to establish a tendency in order to support the charges against that same complainant.

46. The question raised by this aspect of ground 1 was whether, in addition to various directions given by the trial judge including (but not confined to) her tendency directions, the jury should have been directed that it could not use evidence given by one complainant to establish a tendency to support the charges against that same complainant by means of a direction to the effect of that set out at [33] above.

47. In my view, it was not necessary for the trial judge to have given a supplementary direction of the kind sought and, in light of Roder, it would probably have been wrong of her Honour to do so. Counsel for the Applicant sought to distinguish Roder on the basis that, in the present case, the Crown had imposed a cross-admissibility limitation on itself, such that the supplementary direction contended for in respect of tendency was warranted. To have given such a direction, however, would have unduly increased the complexity of the jury’s task, encouraged a revisiting of the underlying body of evidence supporting the alleged tendency on the occasion of the jury’s consideration of each charge and would have produced some of the other vices referred to in [34] of Roder.

48. The same observation may be made in relation to the second limb of the Applicant’s argument under ground 1 which was that the jury were erroneously not directed that, insofar as the tendency evidence included the very same allegations in the indictment, lack of satisfaction at the tendency stage would mean that a verdict of not guilty would need to be returned in relation to that count or counts. The giving of such a further direction would detract from the simple elegance of the approach mandated by Roder and encourage the conflation of standards of proof which that decision was at pains to minimise.

49. As Stern JA observed in the course of the hearing of the current appeal, the alternative direction advanced in the current case as being necessary in the circumstances of the case to prevent a miscarriage of justice was not in substance very different from the alternative direction put forward in Roder: see [43] above. The High Court in Roder made it plain that such a form of direction was not appropriate or desirable for a number of reasons. The trial judge’s direction to the jury set out at [31] above, namely that, if it was not satisfied that a particular tendency or tendencies had been established by the Crown, then tendency reasoning would not be available and the jury should disregard the tendency and decide the facts in dispute in relation to each count without resort to that method of reasoning, was clear, orthodox and consistent with Roder.

50. But even putting Roder to one side, although the trial judge (perhaps understandably) did not use the language of cross-admissibility and limits on it in that part of her summing up which has been reproduced at [28] above, her Honour did direct the jury in terms which would appear to have satisfied the concern raised by counsel for the Applicant, drawing a distinction between evidence given by a complainant and support for that evidence from “other evidence”, which necessarily included evidence of other witnesses and tendency evidence: see [28] above.

51. The passage from the summing up set out at [30] above also mitigates strongly against the Applicant’s attack on the trial judge’s tendency direction and undercuts any need for the supplementary direction posited after the event. When this matter was raised in argument on the appeal, Mr Bicanic, who appeared for the Applicant, accepted that the passages from the summing up set out at [28] and [30] above “go some way of potentially conveying to a jury that there are some limitations here”.

52. The only real response given in relation to what the trial judge said in the passage from the summing up set out at [30] above was that it was of limited significance because it was simply provided by the trial judge as an example to the jury. In circumstances where no further direction was sought at trial, and in light of the concession noted at [51] above, that is not a compelling response.

53. Mr Bicanic also submitted that the “proposed direction on this first issue would be entirely consistent with the separate consideration direction that was given, and it would have highlighted to the jury in another way, perhaps more forcefully and explicitly, in black and white, that this type of reasoning is not permitted for you.” The trial judge gave clear and repeated directions about the need for the jury to give separate consideration to each charge. Those directions did not lack clarity such that they needed to be reinforced by the further direction which the Applicant contended for.

54. The Applicant also placed reliance on s 161A(3) of the Criminal Procedure Act in support of his first ground of appeal, the contention being that “in so far as the Crown case on tendency relied upon the allegations in the indictment, the jury had to be satisfied beyond reasonable doubt of those acts before engaging in tendency reasoning.” It was said that they should have been directed as such. Section 161A provides:

“161A    Direction not to be given regarding tendency or coincidence evidence

(1)   A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.

(2)   If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.

(3)   Subsection (1) does not apply if a court is satisfied—

(a)   there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and

(b)   evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.”

55. The High Court in Roder at [29] observed that s 161A(3) relaxes the prohibition in s161A(1) in the circumstances contemplated by ShepherdvThe Queen (1990) 170 CLR 573 at 584-585; [1990] HCA 56. Section 161A recognises that tendency evidence will not usually form an indispensable link in the chain of reasoning to guilt but is a form of circumstantial evidence which, generally speaking, only need be proved on the balance of probabilities.

56. The terms of s 161A(3) were not engaged in the present case where there was direct evidence from each of the relevant complainants as well as, in relation to some of the counts, additional contemporaneous complaint evidence, documentary evidence in the form of some of the complainants’ diary entries, evidence of other correctional officers and various admissions made by the Applicant. In other words, the tendency evidence was not “indispensable” within the meaning of Shepherd in the sense that failure to prove the existence of the tendency would mean that there was no case to go to the jury: see Carbone v The King (No 2) [2024] NSWCCA 7 at [13]; Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [74].

57. If the direct evidence of the complainant was not accepted in relation to particular counts, there would be no significant possibility of the jury relying on the tendency evidence to establish guilt, especially where appropriate directions were given to the jury as to onus and standard of proof and the need by the jury to determine each count separately. Such directions were given in the present case, and the 17 counts which were not made out illustrated their efficacy. As submitted by Ms Nicholson for the Crown:

“…it was made abundantly clear throughout the directions that … even if the jury were satisfied of the tendency, unless they were also satisfied of the direct evidence about that count beyond reasonable doubt, they could not convict.”

Moreover, as also submitted by Ms Nicholson, the fact that tendency evidence may have made the Crown’s case stronger did not make it an intermediate fact indispensable to proof of the Crown’s case.

No miscarriage of justice

58. None of the three separate but related arguments advanced by the Applicant in support of the first ground of appeal gave rise to a miscarriage of justice.

59. In his submissions in reply, the Applicant acknowledged that the Crown did not close on the basis that the tendency evidence was cross-admissible “for their own counts”. In other words, this is not a case where injustice arose because of an uncorrected departure by the Crown from the way it had indicated it would put its case so that the Applicant was caught by surprise with consequent prejudice and a resulting miscarriage of justice.

60. It is plain from the pattern of verdicts, i.e. the jury not convicting the Applicant on all counts and not convicting on all counts relating to the same complainant, that the jury was astute to deal with each charge separately as directed by the trial judge and did not treat the tendency evidence in an unthinking, uncritical or uniform way. The trial judge’s instructions to the jury included the following:

“…you must, of course, subject to my direction on tendency, consider each charge separately on the indictment, as I directed you earlier. And giving separate consideration to the individual counts means that you are entitled to bring in verdicts of ‘guilty’ on one count and ‘not guilty’ on some other counts if there is a logical reason for that outcome.”

61. The outcome of the jury’s deliberations was consistent with the members of the jury not only conscientiously having discharged their duty but also understanding and following the trial judge’s directions.

62. So, too, the absence of any objection to the form or terms of the trial judge’s summing up to the jury tended against any conclusion that there was a “real chance” that the failure to give the direction now sought as part of the tendency directions given “affected the jury's verdict” or deprived the Applicant of a real chance of acquittal on those counts upon which he was convicted: see the authorities referred to at [15]-[16] above. In Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [54], Kiefel CJ, Keane and Steward JJ observed that:

“Within our system of justice, save for exceptional cases, ‘parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue’. While it is true that, as Kiefel CJ, Bell, Gageler and Gordon JJ said in De Silva v The Queen:

‘[t]he failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice’,

their Honours went on to say:

‘The absence of an application for a direction may ... tend against finding that that risk was present.’”

See also De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [35]; CV v The King [2022] NSWCCA 264 at [49]; Greenhalgh at [42]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121].

63. Certainly, the failure to raise an objection by defence counsel is a “cogent consideration” in the context of assessing whether a miscarriage of justice has been established: The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37] (Dookheea). Thus, to Beech-Jones CJ at CL’s observation in Cox v R [2022] NSWCCA 66 at [48] that “the matters raised by counsel for an accused at the trial … are often a sure guide to the true potential prejudice that the relevant event might have caused” may also be added “and the matters not raised”, at least where no question of competency of trial counsel is relied on: see Dookheea at [37]. No submission was made going to the competency of trial counsel in the present case.

64. For the above reasons, I would refuse leave to appeal in relation to ground 1 pursuant to r 4.15 of the Criminal Appeal Rules. But, in any event, I would have dismissed ground 1 of the appeal had leave been granted.

Ground 2 – complaint evidence

65. The second ground of appeal was that a “miscarriage of justice resulted from the failure to direct the jury that the complaint evidence could not be used for its ‘truth’ purpose given the jury were directed that the complaint evidence could only be used in relation to the ‘credit’ purpose.”

66. The complaint evidence in question was admitted as evidence which was relevant and within the exception to the hearsay rule pursuant to s 66 of the Evidence Act 1995 (NSW) (Evidence Act). It was made clear at the time of its admission that it was not being tendered for the purposes of re-establishing witness credibility within s 108 of the Evidence Act and no limitation was placed on its use pursuant to s 136 of the Evidence Act.

67. Counsel for the Applicant accepted that this ground of appeal was premised upon the Crown having confined its reliance on complaint evidence to questions of credibility and that, it having done so, it was incumbent on the trial judge to make clear to the members of the jury that they could not rely upon the complaint evidence to establish the truth of or to corroborate other evidence going towards the establishment of the individual charges beyond reasonable doubt.

68. The Crown did not accept that premise and, for the reasons set out below, the premise was flawed such that this ground must fail. Moreover, in circumstances where the trial judge could have, and probably should have (but by apparent oversight did not), directed the jury that they could rely on the complaint evidence for “truth” purposes, subject to their accepting the particular complainant as a reliable witness, her Honour’s failure to do so enured to the benefit, rather than to the detriment, of the Applicant such that it could not be said that a miscarriage of justice flowed from the direction that was in fact given.

65. As already noted, the Applicant’s argument was predicated on the contention that the Crown only relied upon the complaint evidence for “credibility” and not “truth” purposes. This contention was not sustainable on an examination of the trial transcript.

66. The Applicant’s whole argument was founded on the following sentence in the Crown Prosecutor’s closing address which it was said confined the Crown’s case in the use of complaint evidence to the limited purpose of re-establishing credibility. That passage which, in its transcription at least, was not entirely clear, was as follows:

“Complaint, you might think, consistent with what she told you, and consistent with it having happened, what she described Mr Astill having done to her.”

71. Apart from the fact that, from its context, this statement by the Crown Prosecutor related only to one of the complainants, the phrase “and consistent with it having happened” manifested a use of the evidence for “truth” purposes, consistent with its admission as an exception to the hearsay rule.

72. Put simply, it is not possible to spell out from the extracted passage relied upon an intention by the Crown to confine its reliance on the particular complaint evidence to mere credibility purposes. Still less is it possible to discern from that single sentence an intention to confine the Crown’s reliance on the balance of the complaint evidence adduced in the trial from various other inmates to a credibility or non-truth purpose.

73. In this respect, Ms Nicholson, who appeared for the Crown, took the Court to numerous other passages in the Crown’s closing address where it was clear that other complaint evidence was being used for truth purposes. For example:

• “there is support to be found in what she said happened to her”; and

• “She goes from having that incident where he’s tried to kiss her, and goes and reports it to a number of women … and says, ‘This is what’s happened.’ I’ll come to their evidence tomorrow but there’s a number of descriptions of [her] being visibly upset at the time. Now, I would suggest to you …she was upset because she was molested in the way she said.”

74. Ground 2 must fail for this reason alone, but even if it had some merit, the trial judge’s failure to direct the jury that it could use the evidence as support for the truth of the matters charged and about which contemporaneous complaint had been made operated to the benefit rather than the detriment of the Applicant. For this reason, as well as those set out in [58]-[63] in respect of ground 1, no miscarriage of justice arose.

75. For the above reasons, leave to appeal in relation to ground 2 of the appeal should be refused, but even if leave were not refused, I would have dismissed this ground of appeal.

The sentence appeal

76. The sole ground of appeal relating to the Applicant’s sentence was to the effect that the sentence imposed by the trial judge was “manifestly excessive both with respect to the maximum and minimum terms.” Consideration of a challenge to a sentence on such a ground must begin with an acknowledgment that there is no single correct sentence, and that sentencing is not a mathematical exercise but, rather, requires an instinctive synthesis involving the balancing of many different and conflicting features: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [84].

77. The principles in relation to challenges to an aggregate sentence on the basis that it is manifestly excessive are well-established and are conveniently expressed in the decision of RA Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

78. In JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39]-[40], RA Hulme J gave further useful guidance in relation to appellate review of aggregate sentencing exercises including that:

• A principal focus in a challenge alleging manifest excess in an aggregate sentence is on the totality of the criminality involved: Vaughan v R [2020] NSWCCA 3 at [91]; R v Brown [2012] NSWCCA 199 at [37]; R v Rae [2013] NSWCCA 9 at [42]-[46], [62], [69].

• Indicative sentences, while not amenable to individual appeal, may nonetheless be a guide to whether error is established in relation to the aggregate sentence.

• Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537 at [252]-[254].

79. As Adamson J (as her Honour then was) explained in CL v R [2014] NSWCCA 196 at [55], regard may be had to indicative sentences in a challenge to the alleged excessiveness of an aggregate sentence since if one or more indicative sentences is excessive, it may explain why (if it be the case) an aggregate sentence is excessive. In the present case, it was (significantly) not submitted that any of the indicative sentences set out in the table below were excessive. (The table, which was provided in the Applicant’s written submissions, sets out information relevant to the 34 counts in relation to which the Applicant was sentenced, identifying the 12 complainants to whom the offences related not by name or initial but by the letters A-L.)

Count	Offence	Max penalty	Plea/discount	Indicative sentence	Objective gravity (ROS 24ff, 37)
2 (A)	Agg indecent assault	7 years SNPP 5 years	NG	6 months	Towards the lower end
3 (A)	Agg indecent assault	7 years SNPP 5 years	NG	9 months	Below mid-range
4 (A)	Agg indecent assault	7 years SNPP 5 years	NG	10 months	Just below mid-range
5 (A)	Agg act of indecency	3 years	NG	2 months	Well in low range
6 (A)	Agg indecent assault	7 years SNPP 5 years	NG	11 months	Around mid-range
7 (A)	Misconduct in public office	Common law (at large)	G 10%	18 months	Below mid-range
8 (B)	Agg indecent assault	7 years SNPP 5 years	NG	3 months	Low range
9 (B)	Agg indecent assault	7 years SNPP 5 years	NG	3 months	Lower end of range
10 (B)	Misconduct in public office	Common law (at large)	NG	16 months	Below mid-range
14 (C)	Agg act of indecency	3 years	NG	3 months	Just below mid-range
22 (C)	Agg act of indecency	3 years	NG	14 months	Above mid-range
23 (C)	Agg indecent assault	7 years SNPP 5 years	NG	18 months	Above mid-range
24 (C)	Misconduct in public office	Common law (at large)	G 10%	2 years	Above mid-range
25 (D)	Agg indecent assault	7 years SNPP 5 years	NG	9 months	Below mid-range
26 (D)	Agg indecent assault	7 years SNPP 5 years	NG	18 months	At mid-range
27 (D)	Agg indecent assault	7 years SNPP 5 years	NG	2 years 6 months	Well above mid-range
28 (D)	Agg sexual assault without consent	20 years SNPP 10 years	NG	7 years NPP 4 years 7 months	At mid-range
29 (D)	Agg sexual assault without consent	20 years SNPP 10 years	NG	7 years NPP 4 years 7 months	Around mid-range
30 (D)	Agg sexual assault without consent	20 years SNPP 10 years	NG	8 years NPP 5 years 4 months	Above mid-range
31 (D)	Agg sexual assault without consent	20 years SNPP 10 years	NG	8 years NPP 5 years 4 months	Around mid-range
32 (D)	Misconduct in public office	Common law (at large)	G 25%	2 years	Above mid-range to high
33 (E)	Misconduct in public office	Common law (at large)	[NG]	20 months	At mid-range
34 (F)	Agg indecent assault	7 years SNPP 5 years	NG	18 months	In the lower range
35 (F)	Agg indecent assault	7 years SNPP 5 years	NG	18 months	In the lower range
36 (F)	Misconduct in public office	Common law (at large)	G 10%	15 months	Below mid-range
37 (G)	Misconduct in public office	Common law (at large)	G 10%	20 months	Above mid-range
38 (H)	Misconduct in public office	Common law (at large)	G 10%	20 months	Above mid-range
42 (I)	Misconduct in public office	Common law (at large)	NG	18 months	Extremely serious (ROS 32)
43 (J)	Misconduct in public office	Common law (at large)	G 10%	2 years 6 months	Above mid-range
44 (K)	Agg sexual assault without consent	20 years SNPP 10 years	NG	9 years NPP 6 years	Well above mid-range
45 (K)	Misconduct in public office	Common law (at large)	NG	18 months	At mid-range
49 (L)	Agg indecent assault	7 years SNPP 5 years	NG	12 months	Below mid-range
50 (L)	Agg indecent assault	7 years SNPP 5 years	NG	18 months	Just below mid-range
51 (L)	Misconduct in public office	Common law (at large)	NG	16 months	Below mid-range

80. The trial judge also found one of the s 166 back up charges, that relating to intimidation, to be proved beyond reasonable doubt and to be “objectively serious”: see [3] above.

81. The multiplicity of charges for which the Applicant was convicted, although varying as to their duration and seriousness, spanned a wide range of victims, all of whom were extremely vulnerable. This was a case where, as the trial judge noted at ROS 30, “the facts reveal behaviour which was part of a wide pattern of conduct: R v Gould [1999] NSWCCA 177 at [12].”

82. The following extracts from the trial judge’s remarks on sentence should also be noted. At ROS 30, her Honour noted that:

“Whilst all statutory offences included the element of being under his authority - the vulnerability and the degree of each female victim, as an inmate in a correctional facility in which the offender was either a Senior or indeed Chief Correctional Officer was under his absolute direction and control and the power disparity cannot be understated nor ignored. The victims had no where to turn to and when they mounted courage to turn to someone else in authority they were effectively ignored and dismissed.”

83. At ROS 36-37, her Honour said:

“In relation to the misconduct charges, as was indicated earlier, they are all objectively very serious examples of the offence. Some are more serious than others, particularly where they involve not only an inappropriate sexual relationship but the bringing of contraband and other banned items into the correctional centre, which clearly undermines those fellow colleagues of the offender who are ardently abiding and enforcing the established rules and regulations of the prison for their own and the inmates’ safety.

For clarity, I have been very careful in ensuring I have not double counted where the offending involves or includes the acts on the indictment. I consider the similar statutory offence applicable as a reference point to a degree but the offending here clearly goes above and beyond what is contemplated in those particular sections.

Whilst I consider it a very difficult and somewhat impossible task to categorise where the objective seriousness lies in these offences - in light of having no maximum penalty - I will endeavour to do so; count 7, 10, 36, 51 below mid-range; counts 24, 37, 38, 43 above mid-range; count 32 above mid-range to high; counts 33 and 45 at mid-range.”

84. At ROS 42, her Honour continued:

“In relation to general and specific deterrence, in relation to the misconduct counts, in each case the necessity for the sentence to reflect considerations of general deterrence and denunciation predominate over other sentencing considerations, as there is a strong need to deter those in public office from contemplating actions that damage or undermine government institutions and to denounce those who are convicted of doing so: R v Obeid (No 12) [2016] NSWSC 1815.”

85. In R v Obeid (No 12) [2016] NSWSC 1815 at [4], Beech-Jones J referred to the decision of Nettle JA in Director of Public Prosecutions v Marks [2005] VSCA 277 who said (at [35]):

“Although it may be that the offence of misconduct or misfeasance in public office is seldom charged, it was the appropriate offence with which to charge the respondent. Unlike the narrower offences of bribery and extortion, the offence of misconduct in public office is not primarily concerned with abuse of position for pecuniary gain, but rather, as a common law offence, it gives expression to principles attributed to Lord Mansfield: that a man accepting an office of trust concerning the public is answerable criminally to the Crown for misbehaviour in the office; and that, whereas breach of trust, fraud and imposition in a matter concerning the public is as between individuals only actionable, between the Crown and the subject it is indictable. The object is to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office; does not abuse intentionally the trust reposed in him.” (Footnote omitted.)

86. In R v Bohannan [2010] EWCA Crim 2261 at [64], Leveson LJ, Davis J and Lloyd Jones J held, in relation to cases involving the common law offence of misconduct in public office, that:

“…punishment and deterrence are always important elements in these cases: not only must police officers be deterred from misconduct, but also the public must see that condign punishment will be visited on police officers who betray the trust reposed in them and do not live up to the high standards of the police service.”

87. Returning to the Remarks on Sentence, the trial judge said (at 45):

“In relation to the question of remorse. It is abundantly clear from the Sentence Assessment Report that the offender has little if any, insight into his offending behaviour concerning the sexual assaults. He does express some regret in relation to the misconduct charges. He claims, in relation to the sexual or indecent assaults, he was ‘manipulated’ by one victim and he ‘entertained’ other victims who were craving male intimacy and was pressured into performing sexual favours. To make this abundantly clear, I do not accept such claims. And, so, a feature of the material before me is that the offender still maintains his denial of guilt in these matters regardless of the strength of the Crown case, the victims’ evidence and the verdicts of the jury.

…

But his lack of remorse is relevant- not because it is an aggravating feature that he is not sorry for what he has done, but because there is no mitigation flowing from the offender saying that he was sorry for the harm that he caused the victims - those under his care.”

88. Later, at ROS 46, her Honour said:

“The planning, the ability to do acts in a custodial setting without any apparent detection from other officers, the repetition of it, the number of victims, all demonstrate the offender manipulated the system, abused his power for his own selfish purposes - it was not due to any mental health issues. I have taken them into account, however, in my finding of special circumstances.”

89. In an important passage in her Remarks on Sentence, her Honour said at 48-49:

“I also intend to proceed to sentence the offender by way of an aggregate sentence, pursuant to s 53A of the Crimes (Sentencing Procedure) Act. It is necessary to ensure that the aggregation of the sentences adjust an appropriate measure of the total criminality involved, and the aggregate non-parole period must reflect the minimum period of time it is required to be served by an offender, having regard to the purposes of sentencing.

It will be apparent I have made a finding of special circumstances, such that the ratio between the aggregate non-parole period and the aggregate head sentence has been adjusted to some extent. I understand my finding results in a variation of one of around 66% - this is intentional. The reasons for this are the fact there will be a degree of accumulation, it is his first custodial sentence and his time in custody will be more onerous than it would otherwise be due to his previous occupations, his mental health issues, his age and COVID-19.

I recognise that the unavoidable prospect of the sentence is that the offender may die in gaol. A just and appropriate sentence must accord due recognition to the human dignity of the victims, the public expectation of those in public office to perform their roles appropriately and the legitimate interest of the general community in denunciation and punishment of someone who offends in this way.

The effect of the sentences is one in which exercise of my sentencing discretion I have determined represents a proper period of incarceration for the total criminality involved in the offences.”

90. It was candidly submitted on behalf of the Applicant that, given that he was convicted of 34 serious criminal offences committed over a period of time against multiple complainants, the primary judge was “justified in imposing a stern sentence” and the “ultimate aggregate sentence needed to reflect a degree of notional accumulation”. However, it was put that the “seriousness of the offending should not be seen to swamp or overwhelm the sentencing exercise”. That submission was to emphasise the importance of the totality principle to which her Honour properly referred and plainly applied as part of her overall sentencing discretion.

91. Her Honour’s sentencing discretion was no doubt also informed by the fact that that “[t]he maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence”: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. Here, five of the offences for which the Applicant was convicted involving two victims carried a maximum penalty of 20 years with a standard non-parole period of 10 years. One of those offences (count 44) was assessed as being “well above mid-range” in terms of its objective seriousness. In respect of this count, her Honour described the offending as “aggressive” and “forceful”, and “accompanied by threats”: at ROS 29.

92. It was submitted by the Applicant in relation to these five counts (counts 28-31 and 44), which attracted the highest indicative sentences specified by the trial judge, that they overlapped with the common law misconduct offences such that there should inevitably have been a degree of notional concurrency. It was also put that there should have been a degree of notional concurrency between counts 30 and 31 because those offences occurred during the same incident.

93. So much may be accepted as a matter of principle. A major difficulty with the submission, however, was that, having regard to the indicative sentences, the trial judge’s sentencing plainly did involve a degree of notional concurrency and, in light of the number of offences and the indicative sentences, quite a high degree of notional concurrency. Her Honour was also conscious, in specifying the indicative sentences, of the need to not double count where the offending comprehended by the common law offences involved or included the acts on the indictment: see [83] above.

90. The Applicant submitted that the severity of the overall aggregate sentence diluted the benefit that the Applicant received, namely discounts of 10-25%, for his guilty pleas in relation to the seven common law misconduct offences. It was put that those pleas encompassed “a great deal of admitted criminal offending against seven individual complainants” and that “this circumstance was not afforded the significance it deserved”. I would not accept this submission. Whilst it is true that there were some admissions, the Applicant nonetheless pleaded not guilty to some five further common law misconduct offences involving five separate victims, as well as pleading not guilty to all 44 of the statutory charges.

91. The Applicant’s argument in relation to what was described as the “dilution” of the benefit of the limited pleas essentially entailed a complaint, in the context of a challenge to the aggregate sentence, of insufficiency of weight being afforded to the pleas. The Applicant’s candid submission that:

“Although it is not entirely principled to speak in terms of ‘weight’, it is respectfully submitted that this circumstance was not afforded the significance it deserved in the ultimate synthesis”

was telling. Even if it were possible to identify the weight that was given to the pleas in the context of the aggregate sentence imposed (and the Applicant accepted that some weight was given to these matters, the trial judge expressly referring to the pleas), an appellate court reviewing a sentence must in general defer to the sentencing judge on such questions absent a clear error of law or fact, as House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain.

96. A similar observation (and criticism) may be made of the Applicant’s submission in relation to the significance given by the trial judge in the exercise of her sentencing discretion to the fact that the Applicant “will be at risk and most probably placed in some form of protective custody”: at ROS 46. It was not put that her Honour did not take this matter into account but simply asserted that, as a subjective factor, it was not afforded the significance that should have been attributed to it. That this essentially reduced to an argument going to questions of weight may be seen in the Applicant’s written submission that “it appears to have played a very insignificant role in the ultimate synthesis”.

97. It was additionally argued that the trial judge’s finding at ROS 42 that “specific deterrence has a huge role to play in this matter” was incongruous with her Honour’s acceptance at ROS 45 that “[i]n light of [the Applicant’s] age, mental [and] physical health and the sentence to be imposed … he is unlikely to reoffend or have the opportunity to do so.” This apparent incongruity was not raised as a separate ground of appeal and, whatever force it may have had had it been so raised, it cannot distract from the broad question raised by the third ground of appeal, and the principles to be applied by an appellate court when considering a challenge to a sentence on the ground that it was manifestly excessive.

98. The offences for which the Applicant was sentenced involved 12 separate victims, all of whom were in an extremely vulnerable position. The period of the offending ranged between six weeks (count 45) and nearly five years (count 42). Counts 7 and 36 involved offending with a duration of over a year. Counts 10, 24, 32, 33 and 42 involved offending which, in each case, occurred over a duration of between two years and five years. The Applicant exploited the vulnerability of the victims in a deliberate, repetitive and systematic way in respect of which he showed no remorse. His actions involved a gross and continuing breach of trust, damaging in immediate terms to the inmates (as reflected in the victim impact statements). In broader terms, the offending was a violation of public trust and corrosive of respect for and confidence in the administration of justice. As the trial judge held, the Applicant held a high office within the Correctional Centre and exploited his rank and position for his own sexual gratification.

99. Although the sentence was a stern one, it was appropriately so and was certainly not “so far outside the range of sentences available that there must have been error”. Nor was it “unreasonable or plainly unjust”: see [77] above.

Orders

100. The orders of the Court are as follows:

1. Refuse leave to appeal in relation to grounds 1 and 2 of the appeal against conviction pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. Refuse leave to appeal against sentence.

101. STERN JA: I agree with the Chief Justice.

102. BUTTON J: I agree with the Chief Justice as to all grounds of appeal against conviction and sentence.

103. Regarding the proposed sentence appeal: the offending constituted an egregious undermining of the legitimacy of the criminal justice and custodial systems. The aggregate sentence, although very stern, cannot be said to be erroneous.

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Decision last updated: 08 July 2024