CEV v The Queen

[2006] HCATrans 378

[2006] HCATrans 378

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D4 of 2005

B e t w e e n -

CEV

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 9.01 AM

Copyright in the High Court of Australia

KIRBY J:  

Background

The applicant was tried on indictment in Darwin on five counts involving sexual offences complained of by his stepdaughter.  He was acquitted by the jury of two offences and convicted of three others.  Those three all related to events that happened in a single set of incidents on 16 June 2001 when it was alleged that the applicant administered a drug to his stepdaughter to cause her to lose resistance to, and to have difficulty in remembering, the sexual events the subject of the charge.

Following the guilty verdicts, the trial judge (Thomas J) convicted the applicant and, notwithstanding strong character evidence, sentenced him to a total of eleven years imprisonment with a non-parole period of seven years and nine months. 

The applicant appealed to the Court of Criminal Appeal of the Northern Territory.  In August 2005 that Court (Mildren, Riley and Southwood JJ) extended time; dismissed the appeal against conviction; but allowed an appeal against sentence.  The Court reduced the applicant’s sentence to permit a partial measure of concurrence in the serving of the separate sentences.  It adjusted the overall sentence to nine years imprisonment, considering that a minimum term of six years should be served.

The applicant has now sought special leave to appeal to this Court.  His application challenges both his conviction and sentence.  As to the conviction, the applicant persists in complaints about the directions given by the trial judge to the jury concerning the prior allegedly inconsistent statements of the complainant; the suggested inconsistency in the guilty and not guilty verdicts returned by the jury; the suggested error in the directions given by the trial judge when the jury announced that they were at first unable to reach agreement on all counts; and the assertion that the verdicts of guilty were unsafe and unsatisfactory.  As to sentence, despite the adjustment of the sentence imposed at first instance by the Court of Appeal due to its severity, the applicant seeks further correction and adjustment by this Court.

Disposition

We have carefully considered the applicant’s written case, the reasons of the Court of Criminal Appeal and the course of the trial as disclosed in the record.

The differing verdicts returned by the jury are fully explicable by reference to the different events to which the counts severally related.  The complaint about the second event was made to the police almost immediately.  The differentiation is explicable within the evidence called at trial:  MacKenzie v The Queen (1997) 190 CLR 348.

The directions on the inconsistency of prior complaints, given by the trial judge, were, as the Court of Criminal Appeal found, adequate and conformable with authority.

The direction to the jury to persist with their deliberations, despite initial disagreement, conformed with the instruction of this Court in Black v The Queen (1993) 179 CLR 44. The verdicts of guilty were not unsafe and unsatisfactory. Nor do they call for the intervention of this Court.

It is true that the sentence imposed on the applicant was very severe and that, for the offences alleged and proved, a lesser sentence, with greater concurrence of the individual components, would have been proper and open to a judge exercising a sound sentencing discretion.  However, the Court of Criminal Appeal has already adjusted the sentences.  No issue of general principle suggests the need for this Court to intervene in this case.  Nor are we convinced that, by the challenges on the conviction or sentence, that a miscarriage of justice has occurred.

It follows that the application for special leave must be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 9.04 AM THE MATTER WAS CONCLUDED