DS v R - [2012] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DS v Regina [2012] NSWCCA 159
Hearing dates: 30 March 2012
Decision date: 26 July 2012
Before: Beazley JA;
Harrison J;
McCallum J
Decision:
1. Appeal against conviction dismissed;
2. Grant leave to appeal against sentence;
3. Appeal against sentence allowed;
4. Confirm the sentences imposed in respect of counts 1 and 2;
5. Quash the sentences imposed in respect of counts 3 and 5;
6. Re-sentence the appellant in respect of counts 3 and 5 in the manner specified below, so that the sentences imposed on the appellant, including those imposed for counts 1 and 2, are as follows:
Count 2: A fixed term of 2 years to commence on 20 May 2009 and to expire on 19 May 2011;
Count 1: A fixed term of 2 years 6 months to commence on 20 November 2009 and to expire on 19 May 2012;
Count 3: A non-parole period of 3 years to commence on 20 May 2010 and to expire on 19 May 2013 and an additional term of 1 year to commence on 20 May 2013 and to expire on 19 May 2014;
Count 5: A non-parole period of 6 years 9 months to commence on 20 May 2012 and to expire on 19 February 2019 and a balance of term of 3 years 3 months to commence on 20 February 2019 and to expire on 19 May 2022;
7. Note that the earliest date on which the appellant is eligible for release is 19 February 2019.

Catchwords:
CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial was held according to law - Whether trial a nullity - Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) - Appellant not arraigned again after empanelment of jury - No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court's jurisdiction under s 130(2).

CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Motive to lie an issue for the jury's determination - Crown Prosecutor's address to the jury drew attention to complainant's response - Whether the Crown Prosecutor's address resulted in a miscarriage of justice - Crown Prosecutor permitted to refer to complainant's evidence - Impermissible for the Crown Prosecutor to indicate that the complainant had no motive to lie thereby suggesting the accused bore an onus to establish complainant was lying.

CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Whether trial judge's direction that there may be a number of reasons why a person has a motive to lie was inadequate - Trial judge directed jury to the complainant's response and reminded jury that Crown bore onus of proof beyond reasonable doubt - Trial judge's direction concluded that it was a matter for the jury to assess complainant's evidence - Trial judge's direction was adequate.

CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial judge erred by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions pursuant to the Evidence Act 1995, s 165 - Appellant's defence counsel specifically agreed to the terms of the direction that the trial judge proposed to give and in fact gave - Trial judge was not required to give a direction that contained the specific warning and information specified in s 165(2).

CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether an aggregation of the defects alleged in the grounds of appeal constituted a miscarriage of justice - Court not satisfied that there were defects in the conduct of the case - Appeal dismissed.

CRIMINAL LAW - Application for leave to appeal on sentence - Trial judge misstated the standard non-parole period for Crimes Act, s 61M(2) offence at the time the offence was committed - Trial judge assessed the offending conduct below the mid-range of objective seriousness - Error in statement of standard non-parole period led to error in the non-parole period imposed for the offence - Appeal allowed - Appellant re-sentenced.

CRIMINAL LAW - Application for leave to appeal on sentence - Trial judge erred in finding that the commission of the offences in counts 1, 2 and 3 in the home was an aggravating feature - Despite error no other sentence warranted in law in respect of counts 1 and 2.
CRIMINAL LAW - Application for leave to appeal on sentence - Length of total sentence imposed - Whether trial judge erred in not finding special circumstances - Trial judge had regard to the question of accumulation of sentences - Trial judge was not in error.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Jury Act 1977
Cases Cited: DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Doe v R [2008] NSWCCA 203; 187 A Crim R 328
EK v R [2010] NSWCCA 199
Ingham v R [2011] NSWCCA 88
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Palmer v R [1998] HCA 2; 193 CLR 1
R v Comert [2004] NSWCCA 125
R v E (1996) 39 NSWLR 450
R v F (1994) 83 A Crim R 502
R v Jovanovic (1997) 42 NSWLR 520; 98 A Crim R 1
R v Kotzmann [1999] VSCA 27; 2 VR 12
R v Preston (Court of Criminal Appeal, unreported 9 April 1997)
R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported)
Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: DS (Appellant)
Regina (Respondent)
Representation: Counsel:
W P Lowe (Appellant)
P Ingram SC (Respondent)
Solicitors:
M Rumore (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2008/17318
Publication restriction: No
Decision under appeal

Date of Decision:

2007-07-01 00:00:00

Before:

Syme DCJ

File Number(s):

2008/17318

Judgment

THE COURT: On 17 September 2009, the appellant was found guilty by a jury of the following offences:

Count 1: that, contrary to the Crimes Act 1900, s 61M(2), the appellant, between 1 July 1999 and 31 May 2000 assaulted TP and at the time of that assault, committed an act of indecency upon TP, who was then under 10 years of age, namely, 4 or 5 years of age. The maximum penalty for this offence is 10 years imprisonment.

Count 2: that, contrary to the Crimes Act, s 61O(2), the appellant, between 1 July 1999 and 31 May 2000 incited TP, who was then under 10 years of age, namely, 4 or 5 years of age, to commit an act of indecency upon him. The maximum penalty for this offence is 7 years imprisonment.

Count 3: that, contrary to the Crimes Act, s 61M(2), the appellant, between 1 February 2003 and 14 September 2003, assaulted TP and at the time committed an act of indecency upon TP, who was then under 10 years of age, namely, 8 or 9 years of age. The maximum penalty for this offence is 10 years imprisonment. A standard non-parole period of 5 years is prescribed by the Crimes (Sentencing Procedure) Act 1999: see Table to Pt 4, Div 1A.

Count 5: that, contrary to the Crimes Act, s 66EA(1) the appellant, between 25 July 2004 and 17 July 2007, engaged in conduct in relation to TP who was then a child under 18 years of age. The maximum penalty for this offence is 25 years imprisonment. A standard non-parole period of 10 years is prescribed by the Crimes (Sentencing Procedure) Act: see Table to Pt 4, Div 1A.

The jury returned a verdict of not guilty in respect of count 4, which alleged a contravention of the Crimes Act, s 66A.

The trial judge sentenced the appellant to a total effective non-parole period of 9 years 9 months commencing on 20 May 2009 to expire on 19 February 2019 and a total additional term of 3 years 3 months expiring on 19 May 2022.

The appellant appealed against his conviction and sought leave to appeal against sentence.

The conviction appeal

The appellant raised the following four grounds on his conviction appeal:

Ground 1: The trial of the appellant was not held according to law and was thus a nullity;

Ground 2: The Crown Prosecutor's address gave rise to a miscarriage of justice insofar as the address invited the jury to ask the question "why would the complainant lie?" in order to promote the acceptance of the complainant as a witness of truth.

Ground 3: The trial judge erred:

(a) in directing the jury as to "why would the complainant lie?"

(b) by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions;

Ground 4: Generally, there has been a miscarriage of justice.

Factual background

The appellant and the complainant's mother commenced a relationship in about 1998. At that time, the complainant was 4 years of age. The appellant and the complainant's mother had two children during the course of their relationship, the first born in 2001 and the second in 2002. The complainant's mother worked full-time as a nurse and the appellant looked after the complainant and, after their birth, the two children of the relationship, whilst she was at work. The relationship ended in early 2003.

The Crown case was that the appellant's offending conduct occurred over an extensive period from mid-1999 when the complainant was aged about 5 years until mid-2007, when the complainant was aged 13 years. The Crown contended that the offending conduct extended beyond the period of the relationship, as arrangements were in place for the purpose of the appellant having contact with his children. The appellant attended the house where the family was living for this purpose and, on occasions, drove the children to and from karate classes. The Crown case was that, at times, the appellant drove the complainant to these classes on her own.

The complainant's evidence and description of the offending conduct

The complainant gave three records of interview to the police: 17 October 2003, 20 July 2007 and 17 March 2009. Over the three records of interview, the complainant provided information to the police upon which the charges against the appellant were based. She gave a detailed description of what occurred on these occasions. The incidents constituting each of the charges of which the appellant was found guilty may be summarised as follows.

The conduct upon which count 1 was based occurred between 1 July 1999 and 31 May 2000 when the appellant placed his finger on the outside of the complainant's vagina. The complainant said, "I think he rubbed it". The conduct occurred when she was living at Bligh Park when she was about 5 years of age, prior to the birth of her other two siblings, and the appellant was minding her whilst her mother was at work. The appellant told the complainant not to tell her mother.

The conduct upon which count 2 was based occurred between the same dates, also at the complainant's home at Bligh Park. The appellant put oil on the complainant's hand and had her rub his penis. The complainant was aged about 5 at this time and the conduct occurred before her siblings were born.

The conduct upon which count 3 was based occurred between 1 February 2003 and 14 September 2003 when the appellant placed his finger on the complainant's vagina and "rubbed it ... with his finger [for] about 10 seconds ... under [the complainant's] undies". The complainant had been playing on the computer and the appellant showed her how to get onto the internet. The complainant was aged about 8-9 years of age at this time and was living at St Clair. Again, he told the complainant not to tell her mother.

The conduct upon which count 5 was based involved five specific incidences of sexual abuse during the period 25 July 2004 and 17 July 2007, such as to constitute persistent sexual abuse of a child under the age of 18 within the meaning of the Crimes Act, s 66EA. The complainant was aged between 10 and 13 years of age at this time.

The five incidents were as follows:

(1) The appellant had taken the complainant to a park at Penrith to play. On the way home the appellant stopped the car and started touching the complainant and put his finger in the complainant's vagina;

(2) On a trip home from the shops, the appellant put two fingers in the complainant's vagina;

(3) Whilst driving the complainant to karate, the appellant pulled out his penis and caused the complainant's hand to touch it;

(4) Whilst driving home from karate, the appellant put his finger in the complainant's vagina;

(5) On another occasion whilst driving to karate, the appellant put two fingers in the complainant's vagina.

Evidence of KP

KP is the complainant's mother. It is convenient in the first instance to refer to KP's evidence for the purpose of establishing where the family was living at particular points of time. From about the end of 1999 until about May 2000, KP and the complainant were living at Bligh Park. KP was then in a relationship with the appellant, but they were not living together on a full-time basis. KP and the complainant then moved to Erskine Park where they lived until February 2002. The appellant lived with them and it was whilst they were living there that the two children of KP's relationship with the appellant were born.

In about late 2002 or early 2003, KP and the appellant moved to St Clair with the children. KP and the children returned to live at Erskine Park within about two weeks without the appellant.

KP gave evidence that she was working both day and night shifts of 12 hours during this time. The appellant frequently looked after the complainant and, following the birth of the two children of the relationship, all three children. On occasions, a friend looked after the complainant.

KP stated that in September 2003, the complainant told her something, as a result of which she requested LE to speak to the complainant. LE was a family friend and the mother of the complainant's cousin. KP said LE and the complainant went outside, where they remained for about an hour. She said that when LE and the complainant came back inside, LE told her that the appellant had "been doing inappropriate things" to the complainant. KP then rang the police.

KP said that the following day, LE had taken the complainant out and later, after having dropped her home, LE telephoned KP. KP said that LE was in tears and told her that the complainant "had described with a stick the size of [the appellant's] penis and that ... he put his fingers in her".

KP said that she then made further contact with the police and on 7 October 2003, she received a telephone call from the Joint Investigation Response Team (JIRT) and an arrangement was made for the complainant to be interviewed. KP said she was informed that as a result of the interview, the appellant would not be charged, because the complainant had not made any disclosure, but that the case would be left open. However, an AVO was made against the appellant identifying the complainant as the person in need of protection and citing that the complainant had told a friend that the appellant had been sexually assaulting her, the last occasion being seven months previously. An interim order was obtained on 8 September 2003 and a final order made on 28 October 2003. The appellant did not contest the AVO.

KP said that there were informal arrangements in relation to the appellant's contact with his children. Initially, those arrangements involved KP taking the children to the appellant's parents' home on a Friday afternoon and the appellant's parents returning the children on a Sunday afternoon. She said that over time, the appellant began accompanying the parents when the children were returned and that eventually, the appellant began bringing the children back personally. She said that as a result of that he commenced spending time at the home where she and the children, including the complainant, were then living.

KP gave evidence that the complainant, one of the complainant's siblings and a cousin commenced karate lessons on 19 April 2005. The karate lessons continued until sometime in January 2007. The appellant was coming to the home at this time to visit his children. KP said that she and her mother would drive the children to and from karate, but the appellant also often drove them. She said on occasions the appellant drove the complainant alone.

KP also gave evidence that on 27 March 2007, she received a telephone call from LT, whom she knew was then living with the appellant. She said LT "was hysterical, crying". LT said to "please not let [the complainant] go to the Easter Show" with the appellant.

KP met with LT the following morning. LT asked her whether "stuff had happened with [the complainant]". KP told her that "nothing was proven". KP said that LT then said "[w]ell he confessed everything that he's done and what he wanted to do to [the complainant]". KP said that she "went straight home and contacted DOCS". As she received no response and despite a follow-up telephone call, KP wrote to the Police Minister and to her local member, complaining about the previous investigation. In July 2007 she was contacted by an officer from JIRT and arrangements were made for the complainant to be interviewed.

KP accepted that her relationship with the appellant was "volatile ... on and off". She agreed in cross-examination that she had a "very bad break up" with the appellant in 2003 and that in September 2003 ("possibly September"), she wanted him out of the house. KP denied that just after the break up she had become aware that the appellant had made allegations about her to Centrelink and the ANZ Bank. She agreed that she took the complainant "to see JIRT" for the first time in October 2003, but denied she told the complainant what to say to the police. It is convenient to note that the complainant denied in cross-examination that her mother told her what to say in her record of interview. KP also disagreed that she had told the complainant what to say in the complainant's interviews with the police in July 2007 and March 2009.

KP rejected that she had been motivated to have the complainant and LT fabricate their evidence out of malice towards the appellant following their break up.

Evidence of LE

In about September 2003, LE had a conversation with the complainant. LE initiated the conversation after the complainant's mother requested her to speak to the complainant. The conversation between LE and the complainant took place in the garden at the complainant's home.

LE said that after some general conversation, she asked the complainant if "something had happened to her". The complainant told her that the appellant "had touched her private parts". LE said that the complainant "pointed to her lower region" when she said this. The complainant told her that the appellant "had put oil on her hands and made him touch his penis and that he had rubbed her vagina". The complainant said that this had occurred at Bligh Park in the appellant's room. LE said that whilst the complainant was telling her this, "she was pulling plants and things ... out of the garden, she was fiddling with her hands a lot, she seemed agitated".

LE spoke to the complainant again the following day. On that occasion, LE had taken the complainant for an outing to see LE's horses. Whilst they were out in a paddock LE asked the complainant whether she wanted to report the matter "to somebody important" or whether she just wanted LE to be there for her to talk to. The complainant said that she wanted LE "to tell somebody important".

LE said that on this occasion, she asked the complainant when was the last time that the complainant had touched her. The complainant said that it was at the house at St Clair while the appellant was at the computer and she was beside him. The complainant said that the appellant had "touched her on her private parts while he was staring at her".

LE also had a discussion on that occasion with the complainant as to the size of the appellant's penis. LE said that the complainant picked up a stick and said "This is the size of [the appellant's] penis". LE said the stick was "seven or eight inches" long.

LE made a report to DOCS shortly after this conversation.

In cross-examination, the appellant's defence counsel asked a series of questions about where the complainant's mother and children were living at particular times. He also confirmed that before LE spoke to the complainant, the complainant's mother had told her the appellant had sexually abused the complainant. It was not suggested to LE in cross-examination that the conversations between her and the complainant had not occurred. Nor was it suggested that LE's account of those conversations was in any way inaccurate.

Evidence of CP, the complainant's grandmother

The complainant's grandmother gave evidence that she was doing both karate and kickboxing at the same academy as the complainant and the other grandchildren were training. She said that the children were going to the academy on Tuesdays and Thursdays. Both she and the complainant's mother shared driving the children to the academy.

She also said she "quite regularly" saw the appellant at karate and that she had seen him drive the complainant alone to and from karate. She said that on some occasions, he would also drive the other children home from karate with the complainant. In cross-examination, CP was challenged as to her evidence that the appellant had driven the complainant alone to and from karate. She was also challenged that the appellant had only taken the children to karate a few times, it being suggested that it was five times or less. CP rejected these challenges and confirmed her evidence that the appellant had driven the complainant on her own.

Evidence of LT

LT was the appellant's partner in 2007. She had had a previous relationship with him in 2004.

LT said that on occasions when she and the appellant were having sex, the appellant would say things like "Wouldn't you like to watch me have sex with [the complainant]?" and "get [the complainant] to basically have oral sex with me". She said that the appellant used the complainant's name when he made these comments. LT said that initially, when the appellant made such statements, she didn't know to whom he was referring. We will refer to this as the first admission.

In February or March 2007, LT had expressed an opinion to DH, a friend of the appellant, that she thought KP was being difficult about the appellant seeing his children. DH told LT that KP had taken the appellant "to court before about him touching the kids". LT said that later that day, the appellant had brought the subject up and said "It wasn't actually [the appellant's children] that [DH] was talking about. It was [the complainant] ... And it was true". We will refer to this as the second admission.

LT said the appellant told her about instances where he had taken the complainant to kickboxing and "he'd get her to touch him and he'd touch her". He told her that the complainant would touch his penis and he would touch her "vagina area". We will refer to this as the third admission.

She said the appellant spoke of another instance when the complainant was younger and couldn't turn on a tap in the bathroom when she was having a shower. She said that the appellant told her that when he helped her, "he used to get her to touch him on his penis". We will refer to this as the fourth admission.

LT also said that in the early part of 2007 she would drive to KP's home with the appellant when he was taking the children home as he had lost his licence. She said that he wasn't allowed to enter the premises and he would take the children to the gate. LT said the complainant met the children at the gate and she saw the appellant talking to the complainant and whilst doing so, "put ... his right hand down the front of his pants". We will refer to this as the fifth admission.

LT said she had another conversation with the appellant in relation to the Easter Show. She said the original arrangement was that he was going to take his own children, but that the arrangement changed to taking his own children and the complainant. She said that as the time got closer to the Easter Show, the appellant said to her "I might speak to [KP] and tell her the kids are a bit hectic at the Easter show and just take [the complainant] and then we have her all to ourselves". LT said that when he said this, the appellant "grunted and he thinks it's funny like". We will refer to this as the sixth admission.

LT said that she "kicked [the appellant] out a couple of days later". She said that she rang KP and told her "not to send the kids to the Easter show with [the appellant]".

LT made a statement to JIRT.

LT's credit was attacked in cross-examination. She had a criminal history for a range of offences, including offences of dishonesty. However, she rejected the assertion that her evidence was concocted as retribution for the acrimonious breakdown of her relationship with the appellant.

The appellant's evidence

The appellant gave evidence at the trial. He denied each of the charges.

He said that after his relationship with the complainant's mother ended in March 2003, he had made complaints about her to DOCS, Telstra and the ANZ Bank. He reported her to Centrelink "at a little bit later date". His evidence was that the complaints were:

"... about things that [the complainant's mother] had done [to him] ... [i]n relation to each of those different departments and organisations."

The appellant said that he complained to DOCS in April 2003, to Telstra and the ANZ Bank in September 2003 and to Centrelink "towards the end of 2003". He said that at the end of the October 2003, he informed the complainant's mother by text message that he had made these complaints. However, from her responses, he believed that the complainant's mother already knew about the complaints to the ANZ Bank and Telstra. The appellant denied that he had only made these complaints to "[get] in first", because he was concerned that the complainant would report the sexual offences to her mother.

The appellant denied the substance of LT's evidence. He also denied speaking to her about possible charges against him instigated by KP in relation to the complainant. He denied putting his hand inside his pants whilst talking to the complainant when returning his children on 25 March 2007.

He said that he had consented to a final order for the AVO because "it was easier". He said that he did not have a lawyer at the time. He acknowledged that the AVO related to complaints of sexual assault, but said that the AVO did not restrict his contact with his own children, nor did it restrict his contact with the complainant.

He said that after the AVO was made, he only took the complainant out on her own twice. The first was to Australia's Wonderland in late 2004 and the second occasion was to the Royal Easter Show in 2006. He denied that he took the complainant to a kids club at Penrith or to sporting fields at Penrith on her own. He agreed that he had driven the children home from karate but said this had occurred on about five occasions. He denied that he had driven the complainant on her own to or from karate.

Ground 1: that the trial of the appellant was not held according to law and was thus a nullity

The basis for that ground was the contention that the appellant was not arraigned in accordance with the mandatory requirements of the Criminal Procedure Act 1986, s 130(3)(b). It is necessary to explain the context in which that was said to be the case.

The appellant's trial was listed to commence on 7 September 2009 (a Monday). The trial judge (Syme DCJ) had previously been informed that there were legal issues to be determined before a trial with a jury could proceed. Accordingly, a jury panel was not summoned for that day.

At the outset of the proceedings, the Crown presented an indictment containing five counts and the appellant was arraigned on that indictment (the transcript records his having pleaded guilty to the fifth count but that is plainly an error). The proceedings were then adjourned to the following day, when the judge proceeded to hear and determine the legal issues.

In taking that course, her Honour was exercising the jurisdiction conferred by the Criminal Procedure Act, s 130(2) which provides (in respect of the Supreme Court and the District Court):

"(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial."

On the following day (the Wednesday), having given her rulings as to the legal issues, the trial judge empanelled a jury. The process by which that occurred was unexceptionable. The jury panel was brought into court. The Crown presented the indictment (evidently the same indictment as had been presented on the Monday). The appellant was arraigned on that indictment in the presence of the whole jury panel, as customarily occurs at the outset of a trial. He pleaded not guilty to all five counts. After taking the steps required under the Jury Act 1977, s 38(7), the trial judge then empanelled a jury.

Following the empanelment, the judge's associate placed the appellant in the jury's charge. In doing so, the associate did not read the charges again in full, referring to them globally as "the charges on the arraignment".

At the conclusion of the process, the Crown inquired whether it was the judge's practice not to re-arraign the accused "once the jury panel has been chosen". The judge evidently understood the question to refer to the process of placing the accused in the jury's charge, and the discussion that followed accordingly suffered from some confusion. In any event, it was made clear at the appeal in this Court that no point was taken in respect of the process by which the accused was placed in the jury's charge.

The appellant's only complaint as to the empanelment process is that he was not arraigned again after the jury had been empanelled. That was evidently the point the Crown was attempting to raise at the time.

The Crown told the judge that there are different practices as to whether to re-arraign the accused person following the empanelment of a jury. Assuming that is so, the Court is not aware of any requirement to re-arraign an accused person after empanelment and we can see no purpose or utility in doing so.

It was acknowledged on behalf of the appellant that there would have been no requirement to re-arraign after empanelment had the trial proceeded with a jury on the Monday. However, it was submitted that there is a mandatory requirement to do so when a judge exercises jurisdiction under s 130(2). The requirement was said to derive from s 130(3) of the Act, which provides:

"(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:

(a) the proceedings are part of the trial of the accused person, and

(b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial."

Mr Lowe, who appeared for the appellant, submitted that the phrase "when the jury is empanelled" on its proper construction means "after the jury is empanelled". In support of the contention that "when" means "after" in that context, he relied upon the definition of "when" in the Oxford Dictionary of English, 3rd ed, which notes that "when" used as a conjunction includes the following meaning:

"after which; and just then (implying suddenness): he had just drifted off to sleep when the phone rang."

There is no force in that contention. The clear purpose of the Criminal Procedure Act, s 130 is to permit the trial judge to hear and determine legal issues as part of the trial without the need first to empanel a jury. The vice to which that provision was directed was the inconvenience and expense of having a jury empanelled only to be sent away, sometimes for days or even weeks, while legal issues were determined that would inform the way in which the trial could be conducted (or indeed whether it could be conducted at all).

The object of s 130(3) is to ensure that the accused, having been arraigned before the judge alone for the purpose of enlivening the court's jurisdiction under s 130(2), is arraigned again in the presence of the jury panel before the trial continues. It makes sense to impose such a requirement, since it merely ensures that the procedure upon empanelment is no different by reason of the court having adopted the procedure allowed under s 130(2).

Nothing in the language of the statute or the nature of the processes addressed in s 130 commends the construction contended for by the appellant. Arraignment is undertaken in the presence of the whole panel because that is the formal step that brings the accused to trial. An accused person must be arraigned as the first step because the plea determines the course of the trial (including whether a jury is required at all).

There is no purpose or utility in a second arraignment after empanelment in that circumstance. There is no practical advantage to an accused person in being arraigned a second time, and no disadvantage if he or she is not, having been arraigned usually only moments earlier in the presence of the jury panel. As acknowledged on behalf of the appellant, there is no requirement for a second arraignment in the circumstance where there is no legal issue to be determined in the exercise of the court's jurisdiction under s 130(2).

The Court rejects ground 1.

Grounds 2 and 3(a): the "why would the complainant lie?" issue

Grounds 2 and 3(a) are conveniently dealt with together, as they both relate to the treatment of the complainant's response "Why would I lie about that? I have no reason to lie" to a question asked of her in cross-examination. In dealing with this question, it is convenient first to refer to the evidence and the context in which it was given and then to deal with the case law before determining whether the appellant has established appealable error arising from the comments made by the Crown Prosecutor to the jury and from her Honour's directions to the jury.

The complainant had been cross-examined in respect of the deteriorating relationship between the appellant and the complainant's mother in 2003. This was also taken up with the complainant's mother. It was suggested to her in cross-examination that she had put the complainant up to making allegations against the appellant which were false, in retribution for the breakdown of the relationship with the appellant. The complainant agreed that her mother did not like the appellant at that time.

The complainant was then asked:

"Q. I'm going to ask you some questions now and I'm going to ask you whether you agree with what I'm saying or you don't agree. Do you understand that?

A. Yes

Q. [The appellant] never touched you in a sexual way?

A. I don't agree.

Q. [The appellant] never put his finger in your vagina?

A. I don't agree.

Q. [The appellant] never touched you on your vagina?

A. I don't agree.

Q. [The appellant] never made you touch him?

A. I don't agree.

Q. And the information that you've made and you've given in your three interviews, you were lying about what [the appellant] had done to you weren't you?

A. Why would I lie about that? I have no reason to lie." (emphasis added)

Immediately following the last question, the trial judge suggested that there be a pause and asked the complainant whether she would like to "take some time". The transcript records the complainant as saying "No", but her Honour asked, "Was that a yes?", to which "No verbal reply" was recorded on the transcript. The closed circuit television was then deactivated.

At that point, defence counsel informed her Honour that was the conclusion of the cross-examination of the complainant.

The case law

There is a clear line of authority, both in the High Court and in this Court, relating to the prohibition on suggesting to the jury that they might consider the rhetorical question "why would the complainant lie" in determining the guilt or innocence of an accused person. The appellant relied on that line of authority and, in particular, the decision of this Court in Doe v R [2008] NSWCCA 203; 187 A Crim R 328, where the authorities were summarised. The appellant contended that these authorities supported his argument that the Crown Prosecutor's comment to the jury relating to the complainant's answer was impermissible and that her Honour gave an inadequate direction to the jury in respect of that part of the complainant's evidence.

In Doe the Court was concerned with comments made to the jury by the Crown Prosecutor that the principal Crown witness "had no axe to grind". It was argued that this was equivalent to posing the rhetorical question "why would the complainant lie?" and thus as giving rise to:

"... the risk that, in the search for an explanation for why false allegations might be made against the accused, the onus of proof is transferred from the Crown to the accused." (per Latham J at [21], 335)

Latham J (Spigelman CJ and Hidden J agreeing) summarised the effect of the authorities on this issue as follows:

"59 Where there is no direct evidence of a motive to lie on the part of a central Crown witness, or evidence from which one can be reasonably inferred, a miscarriage of justice may be occasioned by:-

(i) cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case;

(ii) a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie;

(iii) a Crown submission to the jury which directly invites them to ask the question 'Why would he/she lie?' in order to promote the acceptance of the witness as a witness of truth;

(iv) a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect.

60 Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case."

This case does not fall directly within the factors referred to in (i)-(iv) above. Rather, the complainant's evidence was given spontaneously in response to an assertion put to her in cross-examination that she was lying. Accordingly, it is necessary to look behind the summary in Doe to the principal authorities from which the principles stated were derived. In this regard, it is sufficient to consider the statements of principle in R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported); R v Jovanovic (1997) 42 NSWLR 520; 98 A Crim R 1; and Palmer v R [1998] HCA 2; 193 CLR 1.

In Uhrig, a distinction was drawn between those cases where there was no evidence of an actual motive to lie, whether directly or inferentially, and those cases where there was such evidence. The Court (Hunt CJ at CL, Newman and Ireland JJ agreeing), adopting the statement of Sperling J in R v E (1996) 39 NSWLR 450, stated, at 462, that in cases where there was no evidence of motive it was illegitimate to pose the rhetorical question "why would the complainant lie?", as it implied its own answer. As Hunt CJ at CL explained:

"That leads the jury to infer that, there being no apparent reason, there was in fact no reason, and then to conclude that, as there was no reason to lie, the witness must be telling the truth ... In my view, that danger of such illegitimate speculation is a sufficient reason for saying that the rhetorical question should not be raised in such a case."

His Honour pointed out that where there was a motive to lie, either asserted in cross-examination or of which there was direct evidence, that "is a very relevant factor in assessing the witness' credit": see R v F (1994) 83 A Crim R 502. His Honour then stated:

"What this Court said in Regina v F and in Regina v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decisions in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessary consequence at all."

The next relevant authority is R v Jovanovic, which bore some similarity to the present case. In response to a question asked in cross-examination, the complainant answered "Why would I make up accusations like this if they never really happened?". The accused then cross-examined the complainant as to a specific motive she had for fabricating the allegation of sexual assault against the appellant. The appellant had raised the same motive in his record of interview.

The Crown, in address to the jury, said:

"You might wonder why, as this young boy said to you, why would I make these things up? You might wonder why has he got this man in his sights? Why would he accuse him of these terrible things?"

The trial judge gave the following direction to the jury in respect of this part of the Crown's address:

"Some argument has been put to you, in the course of the trial, about motivation, although that word has not been precisely used. Effectively, what has been put is now why would this young man make the allegations he has? A direction I want to put to you and to you quite emphatically is this. That is a reasonable argument to be put to you and, indeed, it would be quite unrealistic to think that you would not yourselves, as members of the community, think about that. You are perfectly entitled to do that, you are perfectly entitled to think about, now why would this young man make the allegations, just as much as you would be entitled to think about, now why would this accused deny them? It would be defying commonsense to think that those considerations would not cross your mind."

On appeal, this direction was held to be inadequate. Priestley JA (Sperling J agreeing, Cole JA dissenting) held, at 523, that:

"What was said in this paragraph must be tested by reference to the passage from the reasons of Hunt CJ at CL [in Uhrig]. It seems to me to follow from the way the legal position was stated by Hunt CJ at CL that the trial judge, in the above paragraph not only did not bring home to the jury that if they rejected the motive to lie which had been put forward by the appellant that did not mean the complainant was necessarily telling the truth, but also quite clearly left open to them as legitimate the inference that, if the complainant had no motive to lie, they could conclude that because of that alone, he was telling the truth. This created the danger of illegitimate speculation which Hunt CJ at CL in R v Uhrig said led to a miscarriage of justice.

This is sufficient to lead me to the same conclusion in regard to ground 3 of the appeal as that reached by Sperling J. I agree with him also that the correctness of R v E should not be considered in this case. I accept the way in which it was explained in R v Uhrig as correct."

Sperling J, at 535, added:

"Neither the reservation in R v E nor the reservation in R v Uhrig detract from the point that it is not permissible to invite the jury to bolster the complainant's credibility with an argument that there is no apparent reason for the complainant to have lied ...

Neither R v E nor R v Uhrig should be read as justifying an impermissible line of reasoning whenever the quite different question of a particular motive to lie is raised at a trial. That should only have to be stated to be apparent. The existence or non-existence of a particular motive to lie can be debated without inhibition at the trial without contravening the principle that truthfulness is not to be inferred from the absence of any apparent motive to lie."

Their Honours thus reiterated what Hunt CJ at CL had said in Uhrig.

Palmer was a case where a motive to lie was suggested to the complainant in cross-examination. The Court's concern was with the prejudicial impact of questions which were then asked of an accused in cross-examination. The complainant, in response to the question, "This is some sort of pay back on him for some indiscretion he doesn't even know about, isn't that right?" answered, "No, I am not lying" (see at [6]). The accused was then cross-examined by the Crown Prosecutor as to the lack of any motive the complainant had "as to why she would make this up". Whilst the questioning of the complainant was permissible, the cross-examination of the accused was held to be impermissible. The majority (Brennan CJ, Gaudron, Gummow and Kirby JJ) were not satisfied that the trial judge's directions had been adequate to neutralise the prejudicial effect of the cross-examination of the accused.

The appellant submitted first that the Crown Prosecutor's address to the jury exacerbated the "problem with the complainant's evidence" by his imprudent reference to it. The appellant further submitted that the effect of the authorities to which reference has been made was that the jury should have been directed that there was no onus on an accused to prove that the complainant had a motive to lie and that if they rejected any suggested motive, they should not thereby infer that the complainant had been telling the truth. The appellant complained that her Honour's direction covered the second limb, but she had failed to direct the jury on the first limb of this requirement.

The Crown submitted that in his address to the jury, the Crown Prosecutor had permissibly and appropriately drawn the jury's attention to the complainant's shocked reaction to the suggestion that she was lying. He had done so in a context of having stated to the jury that there was no onus on the appellant to prove anything, including that any witness was lying or had a motive to tell lies against him. It followed, on the Crown's submission, that there was nothing in the Crown Prosecutor's address that gave rise to a miscarriage of justice. The Crown submitted that the trial judge's directions were, in any event, adequate.

Crown Prosecutor's address to the jury

The complainant's evidence, "Why would I lie about that? I have no reason to lie" was given in the context of cross-examination about her mother's poor relationship with the appellant and in direct response to an allegation that she was lying. The case is, therefore, one where there was an allegation of a motive to lie, namely, as a form of retribution against the appellant. The appellant, in fact, submitted that motive to lie became a 'central theme' for the jury's determination.

Because motive to lie was an issue, the comments of Hunt CJ at CL in Urhig, referred above at [76]-[77], apply in determining both the appropriateness of the Crown Prosecutor's address to the jury and whether the directions given by the trial judge were adequate in the circumstances.

In his address to the jury, the Crown Prosecutor referred both to the complainant's answer and her presentation in the witness box at that time. He said:

"Just to return to that issue about lying. It was put by [defence counsel] to the complainant that she was lying when she made these allegations against the accused and you're entitled to consider that proposition. The Crown says it's clear she was telling the truth. First thing I'll point to, when it was put to her she said words to the effect of 'Why would I lie about that? I have no reason to lie.' In the Crown's submission she sounded incredulous. She sounded shocked that that was what was being put to her. And that response, that reaction is consistent with a person telling the truth confronted with that sort of question. And it was a genuine response in the Crown's submission. And she was genuinely upset about having been called a liar about all of these very serious matters that had happened to her as a child over a number of years and you saw her get upset as a result [of] it." (White 572)

Counsel for the appellant recognised that the complainant's answer had been in response to the cross-examiner's question, "you were lying", but submitted the answer was not truly responsive to the question asked. He pointed out that there was always a danger that such rhetorical evidence had the potential to start a chain of reasoning leading to the acceptance of the appellant's guilt. He submitted that in this case, the evidence was compounded by the way in which the Crown dealt with the evidence in his address to the jury. He contended that the Crown Prosecutor's statement was a direct invitation to them to accept the complainant's answer "Why would I lie? I have no reason to lie", so as to promote the acceptance of her as a witness of truth generally. The appellant contended, further, that the Crown Prosecutor's comment had the effect of undermining her Honour's direction that there may be a number of reasons why a person has a motive to lie.

This submission misconstrues the Crown Prosecutor's address. It was permissible for the Crown Prosecutor to refer to the complainant's evidence, just as it was permissible for the appellant's defence counsel to cross-examine the complainant to the effect that she was lying. It would have been impermissible for the Crown Prosecutor to indicate to the jury that the complainant had no motive to lie in a way to suggest that the appellant thereby bore an onus to establish that there was a motive, or that he bore an onus to establish that the complainant was in fact lying. However, the Crown Prosecutor did not cross that impermissible line. Rather, he referred to this evidence as an introduction to his invitation to the jury to accept the complainant as a witness of truth, having regard to the spontaneity of her answer and her upset with being called a liar in respect of her allegations against the appellant.

The appellant's further submission that the Crown Prosecutor's comment undermined the trial judge's direction should also be rejected. It misunderstands, or at least fails to reflect, the fundamental principle that it is the responsibility of the trial judge, by an appropriate direction, to correct any statement to the jury by the Crown or the defence that is wrong in law, is misleading or which may cause the jury to enter upon an impermissible mode of reasoning. Should such a statement be made to a jury, the question for consideration will be whether the trial judge's direction was adequate in the circumstances, not whether the trial judge's direction was undermined by an earlier comment made to the jury by the Crown Prosecutor or the defence.

Accordingly, ground 2 of the appeal is rejected.

Trial judge's direction to the jury

Notwithstanding that the Court has rejected ground 2, nevertheless, it remained necessary for her Honour to give a direction in respect of this part of the complainant's evidence.

The trial judge gave the following direction to the jury in respect of that evidence:

"Now Crown counsel referred when referring to [the complainant's] evidence as to [the complainant] exclaiming words something like 'why would I lie?'. He went on to tell you other things in this context. You may think it was an expression of frustration at the line of cross-examination rather than a question that begs an answer. It is a matter for you, however I am asked to give you a direction about that and I will do so. It may be that you will ask yourselves why this complainant ... would make up such a serious allegation against [the appellant]. I am going to give you directions in relation to that.

As you have been told the essential elements of the Crown Case must be proved beyond reasonable doubt or [the appellant] must be acquitted. If the case turns upon the evidence of [the complainant], you must be satisfied beyond reasonable doubt that she has told the truth. As you have been told it is your duty to decide whether you accept the evidence of a witness in whole or in part, [the complainant's] evidence is no exception to that. It would be wrong for you to conclude that [the complainant] is telling the truth because there is no apparent reason in your view for her to lie. People lie for all sorts of reasons, sometimes it is apparent, sometimes it is not, sometimes the reason is discovered, sometimes it is not, you cannot be satisfied that she is telling the truth merely because there is no apparent reason for her to have made up the allegations. There might be a reason for her to be untruthful that nobody knows about. As always it is an assessment of her evidence that is a matter for you. I am going to refer briefly to other evidence that was given."

The appellant contended, as already indicated, that her Honour's direction was inadequate. The trial judge correctly and clearly directed the jury on this question. Her Honour first drew the jury's attention to the particular evidence in respect of which she was giving a direction, that is, the complainant's response, "Why would I lie?" Her Honour reminded the jury that the Crown must prove its case beyond reasonable doubt. She directed the jury that:

"If the case turns upon the evidence of [the complainant], you must be satisfied beyond reasonable doubt that she has told the truth." (emphasis added)

Her Honour then stated that it would be wrong for the jury to conclude that the complainant was lying "because there is no apparent reason in your view for her to lie". Her Honour pointed out that the complainant may have "a reason ... to be untruthful that nobody knows about". Her Honour concluded that it was a matter for the jury to assess her evidence. The jury had already been told at the commencement of this particular direction that if the case depended upon the complainant's evidence, the jury had to be satisfied beyond reasonable doubt that she had told the truth.

The only difference in this direction from what was said to be necessary in Uhrig was that it was stated in a different order from that indicated in Uhrig. That is not sufficient for a conclusion that her Honour's direction was inadequate. In our opinion, her Honour stated both components of the Uhrig direction in a way that was clear and comprehensible.

Ground 3(b): the trial judge erred by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions

Ground 3(b) relates to the evidence of the Crown witness, LT. There were six conversations between the appellant and LT that possibly constituted admissions. Those conversations have been identified above at [36]-[41].

The appellant's defence counsel cross-examined LT to the effect that she had concocted her evidence of admissions and had colluded with the complainant's mother to give false evidence. It was implicit in the cross-examination that LT had given false evidence in retribution for the bad breakdown of LT's relationship with the appellant.

At trial, the appellant's defence counsel sought a direction pursuant to the Evidence Act 1995, s 165 in respect of LT's evidence. That section applies, inter alia, to evidence of admissions: see the Evidence Act, s 165(1)(a) and Pt 3.4 relating to admissions.

Section 165(2) provides:

"If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it."

Section 165(3) provides:

"The judge need not comply with subsection (2) if there are good reasons for not doing so."

There was lengthy discussion between the trial judge and the appellant's defence counsel as to the evidence in respect of which admission the direction was sought and the terms of the direction that was to be given. The appellant's defence counsel sought a direction in relation to the second conversation, regarding David Hunt; the third conversation, regarding kickboxing; and the fourth conversation, regarding the shower. The appellant's defence counsel indicated his agreement with the trial judge as to the direction that she proposed to give in relation to each of these conversations.

The appellant's defence counsel did not specifically seek a direction pursuant to s 165 in relation to the first conversation. Nonetheless, the trial judge raised the matter with counsel and indicated the terms of the direction that she proposed to give in relation to that conversation. The appellant's defence counsel did not seek any further or alternate direction in relation to that matter.

The trial judge gave directions to the jury in relation to these four conversations that reflected what she had discussed with the appellant's defence counsel.

In his written submissions on the appeal, the appellant first noted that the trial judge had directed the jury that tendency evidence, which evinced sexual interest in the complainant, had to be proved to the satisfaction of the jury to the standard of beyond reasonable doubt: see DJV v R [2008] NSWCCA 272; 200 A Crim R 206 at [31]. In this respect, her Honour directed the jury that they could not rely on the evidence that LT gave regarding any conversation she had with the appellant or what she observed, unless they were satisfied beyond reasonable doubt that she was telling the truth about those matters.

The appellant's submissions then drew attention to the following directions her Honour gave regarding the evidence of admissions:

"Before any part of the statement alleged to have been made may be used as evidence against [the appellant] ... you must be satisfied that [the appellant] and [LT] had the conversation with [the appellant]. If you are not so satisfied, then you should disregard the statement and it should not form any part of your consideration in the evidence against him. If you are however so satisfied that the statement was made, then you must consider what it meant.

The statement only becomes evidence against [the appellant] if you are satisfied that he has, in saying the things he said or by the circumstances in which he said them, acknowledged the truth of the facts asserted in the statement as you find them to mean. If you find those matters satisfied, then it does become evidence against the accused."

The appellant complained that this direction related only to whether the jury would accept that the admission had been made and, if made, its reliability. The appellant contended that her Honour failed to properly direct the jury in accordance with the requirements imposed by s 165(2). In this regard, the appellant submitted that the section mandated: a direction that the evidence may be unreliable: s 165(2)(a); an explanation as to the matters which may cause it to be unreliable: s 165(2)(b); and a direction as to the need for caution in determining whether to accept the evidence and the weight to be given to it.

The appellant submitted that the matters that warranted the giving of a warning included LT's convictions, including those relating to dishonesty, the acrimonious nature of the breakdown of her relationship with the appellant, the fact that she had given an affidavit in support of the complainant's mother's Family Court proceedings as well as the omission of relevant matters in court documents which called for inclusion.

However, in the exchange with the trial judge, the appellant's defence counsel expressly agreed that the direction that he was seeking in relation to the second admission was in respect of these matters. More importantly, the appellant's defence counsel accepted that as he had informed the jury in his address of these matters and thus why they wouldn't act on those alleged admissions, it was not necessary for her Honour to canvas those matters in her direction.

It is apparent from the trial transcript that the appellant's defence counsel had not only made a strident attack on the credibility of LT, but was well apprised of the provisions of the Evidence Act, s 165. He made a specific application for a direction pursuant to the section. However, in the course of the discussion with the trial judge, he specifically agreed to the terms of the directions that ought to be given. Her Honour confirmed the terms in which she proposed to direct the jury the following day. The appellant's defence counsel agreed with the direction that was to be given. In these circumstances, the trial judge was not required to give the jury a direction in terms that encompassed the specific warning and information specified in s 165(2).

The same occurred with the directions in respect of the other admissions.

In those circumstances, ground 3(b) should also be rejected.

Ground 4: miscarriage of justice

The appellant contended that even if each of the above grounds failed individually, the combination or aggregation of the defects alleged in the several grounds of appeal constituted a miscarriage of justice. He submitted that "[d]espite the strength of the Crown case, the appellant did not have, as he was entitled to have, a fair and proper trial".

The appellant referred to R v Kotzmann [1999] VSCA 27; 2 VR 12 in support of this submission, but did not direct the Court's attention to any particular portion of that judgment. Having read the decision, it appears that the intended reference was to the reasons of Batt JA in respect of a ground of appeal in which it was alleged that the trial judge's summing up to the jury was unbalanced. However, that does not appear to be the nature of the present complaint.

As the appellant's submission recognised, although the outcome of the trial was dependent upon the jury's acceptance of the evidence of the complainant, the complainant's evidence was credible and well able to be accepted by the jury in satisfaction of the guilt of the appellant on the requisite standard of proof beyond reasonable doubt. There were early complaints made by the complainant. Her evidence was not undermined by the cross-examination. The evidence of the other witnesses, although subject to strenuous challenge, was not undermined in any way that militated against its acceptance.

In any event, the Court is not satisfied that there were defects in the conduct of the case as alleged by the appellant. It follows that ground 4 should also be rejected.

Leave to appeal on sentence

Trial judge's general remarks on sentence

The appellant was convicted of four offences for which the trial judge sentenced the appellant as follows:

Count 2: A fixed term of 2 years commencing on 20 May 2009 and to expire on 19 May 2011.

Count 1: A fixed term of 2 years 6 months commencing on 20 November 2009 and to expire on 19 May 2012.

Count 3: A term of 8 years commencing on 20 May 2010 and to expire on 19 May 2018, consisting of a non-parole period of 6 years commencing on 20 May 2010 and to expire on 19 May 2016 and a balance of term of 2 years to commence on 20 May 2016 and to expire on 190 May 2018.

Count 5: A term of 10 years commencing on 20 May 2012 and to expire on 19 May 2022 consisting of a non-parole period of 6 years 9 months commencing on 20 May 2012 and to expire on 19 February 2019 and a balance of term of 3 years 3 months to commence on 20 February 2019 and to expire on 19 May 2022.

The appellant raised three grounds of appeal should leave to appeal be granted:

(1) The trial judge misstated the standard non-parole period for an offence under s 61M(2) at the time of commission of count 3.

(2) The trial judge erred in finding that the commission of the offence in the home was an aggravating feature.

(3) The trial judge erred in not finding special circumstances.

The Crown conceded grounds 1 and 2. Accordingly, leave to appeal should be granted at least in respect of those two grounds. Although the Crown conceded error, it will be necessary to consider grounds 1 and 2 in more detail, as the nature of the error may impact upon whether this Court should re-sentence the appellant.

It is convenient, however, to refer first to her Honour's remarks on sentence generally and then to deal with the remarks that are relevant to the proposed specific grounds of appeal.

The trial judge stated that when considering the objective seriousness of the offences as a whole, there were many features common to all or most of them. Her Honour observed that as the individual offences, especially those that occurred between 1999 and 2003, were part of a series of similar events or a course of conduct that continued whilst the complainant's mother was at work, there was no basis to extend leniency that otherwise might have flowed to the appellant when imposing sentence.

Her Honour considered that many of the offences were "opportunistic" and did not involve a great deal of planning. However, given that there was a break of some years in the periods in which the offending occurred and that after expiry of the AVO, the appellant recommenced his offending conduct, her Honour found that there was "some premeditative knowledge that [the complainant] was likely to be available for abuse". Her Honour also considered that LT's evidence of the appellant putting his hand down his trousers whilst talking to the child in the period when there was no direct contact with the complainant, was evidence of "a continued depraved attitude to [the complainant] between the offending years".

In her Honour's opinion, the family context in which the offending occurred was an aggravating feature involving a breach of trust. Her Honour noted that the offending continued even after a complaint had been made to the police, conduct which her Honour described in terms of "the arrogance of this continued offending".

Her Honour noted that good character was not relied upon but nonetheless observed that up until the commission of the first offence in 1999, the appellant had no prior offences of this nature. However, her Honour found that to be of little assistance to him. Her Honour also noted that save for the offence committed whilst he was under a supervised s 12 bond for a driving offence, his criminal antecedents were not an aggravating feature that would deprive him of leniency.

The appellant had exhibited no remorse and her Honour held that a finding could not be made that there were positive prospects for rehabilitation, "at this time at least".

There was no delay in the making of the complaints and her Honour considered that the earlier offences, of which complaint was made and which were expressly the basis of the AVO, compounded his later offending. Her Honour accepted that the complainant had been seriously affected by the commission of the assaults upon her. She had suffered anxiety and continuing psychological and relationship problems. Her Honour found that the damage so caused was significant, although noted, correctly, that it was not a separate instance of aggravation.

In summary, therefore, there were no mitigating circumstances in favour of the appellant and the individual offences were serious. The appellant does not argue that the sentences imposed, either individually or in combination, were manifestly excessive. Rather, he raised the three alleged errors in the sentencing process.

Ground 1: wrong statement of standard non-parole period

The first error alleged by the appellant was her Honour's incorrect statement of the standard non-parole period in respect of count 3. The Crown conceded this error. The standard non-parole period applicable to the s 61M(2) offence at the time of its commission was 5 years, not 8 years as stated by her Honour. Her Honour sentenced the appellant to a non parole period of 6 years for this offence. She did so in circumstances where she had found that the offence was just below the mid range of seriousness.

The appellant submitted that the error was such that this Court was required to re-sentence him in respect of count 3. The appellant also submitted that the error impacted upon the sentence imposed for count 5.

Although her Honour did not expressly say so, it is apparent that her assessment of the objective seriousness of the offence was the reason she set a non-parole period that was less than the standard non-parole period. Apart from a general submission that no lesser sentence was warranted in law, the Crown did not otherwise advance any submission relating to her Honour's assessment of the objective seriousness of the offence.

Her Honour sentenced the appellant prior to the High Court's decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Prior to Muldrock, sentencing judges followed the approach to sentencing sanctioned by this Court in Regina v Way [2004] NSWCCA 131; 60 NSWLR 168. That approach involved first assessing where on the hypothetical range of objective seriousness the individual offence lay and then calculating the non-parole period of the sentence by reference to that assessment. If the offence lay in the mid-range of seriousness, the assumption was that the starting point for the non-parole period was the prescribed standard non-parole period. In other words, s 54B(2) was considered to be mandatory in its operation.

However, in Muldrock, the High Court confirmed the principle it had stated in Markarian v R [2005] HCA 25; 228 CLR 357, namely, that in determining the appropriate sentence to be imposed for a particular offence, the sentencing judge was required to identify all factors relevant to the sentence, discuss their significance and then make a value judgment as to the appropriate sentence, given all the factors in the case.

The operation of that principle in circumstances where a standard non-parole period is prescribed requires the sentencing court to have regard to the standard non-parole period as one of the factors relevant to sentence, but not to adopt it as a starting point. The High Court stated, at [27] 132:

"Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as 'the non-parole period for an offence in the middle of the range of objective seriousness'. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."

The Court continued, at [28]-[29] 132:

"Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.

A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to 'mak[ing] a record of its reasons for increasing or reducing the standard non-parole period' is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences."

In sentencing the appellant, her Honour considered the objective circumstances of the offending before determining its objective seriousness. In doing so, she did not include any matters relevant to the subjective circumstances of the appellant. That may have been because, as her Honour's remarks reveal, there were no relevant subjective circumstances. Nonetheless, no criticism can be made of her Honour's remarks to that point. However, it is apparent that her Honour too prescriptively tied the non-parole period to the standard non-parole period.

Having imposed a non-parole period of 6 years, her Honour imposed an additional term of 2 years. Her Honour thus imposed a total sentence of 8 years for an offence where the maximum term was 10 years imprisonment, in circumstances where her Honour had assessed the offending conduct to be below the mid range of objective seriousness. That sentence reflected the error she made in respect of the standard non-parole period and was excessive.

The sentence imposed in respect of count 3 is also challenged on the basis that her Honour erroneously took into account as an aggravating factor, that the offence was committed in the complainant's home: see ground 2. That challenge, which is discussed below, has been made out. Accordingly, in determining whether some other sentence is warranted in law: see Criminal Appeal Act 1912, s 6, that factor will not be relevant.

Apart from a general submission that no lesser sentence was warranted in law, the Crown did not submit that the offending in respect of count 3 was of a more serious nature than her Honour determined. Nor did the appellant submit that, apart from the error in treating the fact that the offence occurred in the home as an aggravating feature, her Honour took into account extraneous or irrelevant factors in determining the objective seriousness of the offence.

Putting aside the likely error in imposing a non-parole by reference to the standard non-parole period in the way described, we consider her Honour's characterisation of the offending was correct. However, because of the error, it is necessary to consider whether some other sentence is warranted in law.

In the Court's opinion, some other sentence is warranted. The total sentence imposed by her Honour was 80 per cent of the maximum sentence for an offence that she characterised as being below the mid-range of objective seriousness. Although it is not necessary in accordance with the principles stated in Muldrock to make a determination in those terms, her Honour's finding correctly reflects the objective seriousness of the offence. In re-sentencing the appellant for this offence, the relevant matters are that this was the first occasion the appellant had directly touched the complainant, count 1 having involved touching on the outside of the complainant's underwear and count 2 having involved the appellant causing the complainant to rub oil on his penis. The appellant's conduct on this occasion exhibited a heightened and more serious degree of sexual conduct on and towards the complainant. Further, as found by her Honour, there were no relevant mitigating features to which regard must be had. In all the circumstances, the sentence we consider ought to be imposed for count 3 is a non-parole period of 3 years and an additional term of 1 year.

Although this sentence is considerably lower than that imposed by the trial judge, the Court considers it properly reflects the appellant's criminality on this occasion and can only reiterate that her Honour's sentencing process was erroneous, it would appear, because of her adherence to the standard non-parole period, adjusted downwards to take into account her assessment of the objective seriousness of the offence being just below the mid-range.

Ground 2: treating the commission of the offence in the home as an aggravating feature

The trial judge treated as an aggravating circumstance in respect of the offences in counts 1, 2 and 3 the fact that the offending conduct occurred in the home. At the time of each of those offences, the appellant was in the complainant's home, either by invitation, or because he was then living with the complainant's mother. The appellant submitted that the trial judge erred in two respects in finding that the commission of the offence in the home was an aggravating feature.

First, the fact of the offence occurring in the victim's home is only an aggravating feature pursuant to the Crimes (Sentencing Procedure) Act s 21A(2)(eb) if the offender is not otherwise lawfully in the home: see Ingham v R [2011] NSWCCA 88. In that case, McClellan CJ at CL (James and Davies JJ agreeing) noted, at [112], that there is a clear line of authority in the Court that s 21A(2)(eb) does not operate to aggravate an offence in that circumstance: see R v Comert [2004] NSWCCA 125; EK v R [2010] NSWCCA 199 at [79] (per R A Hulme J, McClellan CJ at CL and Simpson J agreeing). See also R v Preston (Court of Criminal Appeal, unreported 9 April 1997).

Secondly, s 21A(2)(eb) was inserted into the Act by the Crimes (Sentencing Procedure) Amendment Act 2007 with effect only from 1 January 2008, that is, after the offending conduct.

This ground was also conceded by the Crown.

Notwithstanding that her Honour erred in taking into account the fact that the offending occurred in the home as an aggravating feature in respect of counts 1 and 2, we have concluded that no other sentence is warranted in law in respect of those sentences.

As already indicated, the appellant is to be re-sentenced in respect of count 3 because of her Honour's error in respect of the standard non-parole period. In determining the appropriate sentence in respect of that count, the fact that the offending occurred in the home has not been included as an aggravating factor.

Ground 3: failure to find special circumstances

The appellant submitted that the trial judge erred in failing to take into account the length of the total sentence imposed, given the partial accumulation of the sentences, as a matter warranting consideration as a special circumstance such that there should have been a variation to the statutory ratio.

The Crown submitted that her Honour gave attention to the question of accumulation in her following remarks.

"In relation to the issue of accumulated sentences, I advise that it is intended to adjust the period of parole supervision on the final accumulated offence to reflect the appropriate ratio on the total sentence and of course there will be some accumulation in relation to each of these sentences."

The Crown's submission on this ground should be accepted. Her Honour gave consideration to whether there should be an alteration to the statutory ratio given that there had been some accumulation of sentences and gave her reasons for the approach she took to that question. Her neither overlooked the question of accumulation as alleged, nor did she err in her approach she took to that question. Leave to appeal against sentence on this ground is not granted.

The re-sentence issue

The Court has stated its view as to the sentence that ought to be imposed in respect of count 3. That requires a re-sentencing in respect of that offence. The question then arises whether that re-sentence will have any impact upon the total sentence imposed. Her Honour partially accumulated each of the sentences imposed. The sentence thus imposed was a total effective non-parole period of 9 years 9 months and a total additional term of 3 years 3 months.

The Court has reached the conclusion on the re-sentence that the periods of partial accumulation ordered by her Honour were appropriate and resulted in a total effective sentence both by way of a non-parole period and an additional term that was appropriate in all the circumstances. Accordingly, the Court has imposed the same periods of accumulation as ordered by the trial judge. The result is that on the re-sentence there will be no difference to the total sentence that was imposed by the trial judge.

The Court makes the following orders:

1. Appeal against conviction dismissed;

2. Grant leave to appeal against sentence;

3. Appeal against sentence allowed;

4. Confirm the sentences imposed in respect of counts 1 and 2;

5. Quash the sentences imposed in respect of counts 3 and 5;

6. Re-sentence the appellant in respect of counts 3 and 5 in the manner specified below, so that the sentences imposed on the appellant, including those imposed for counts 1 and 2, are as follows:

Count 2: A fixed term of 2 years to commence on 20 May 2009 and to expire on 19 May 2011;

Count 1: A fixed term of 2 years 6 months to commence on 20 November 2009 and to expire on 19 May 2012;

Count 3: A non-parole period of 3 years to commence on 20 May 2010 and to expire on 19 May 2013 and an additional term of 1 year to commence on 20 May 2013 and to expire on 19 May 2014;

Count 5: A non-parole period of 6 years 9 months to commence on 20 May 2012 and to expire on 19 February 2019 and a balance of term of 3 years 3 months to commence on 20 February 2019 and to expire on 19 May 2022;

7. Note that the earliest date on which the appellant is eligible for release is 19 February 2019.

**********

Decision last updated: 26 July 2012

Medium Neutral Citation:	DS v Regina [2012] NSWCCA 159
Hearing dates:	30 March 2012
Decision date:	26 July 2012
Before:	Beazley JA; Harrison J; McCallum J
Decision:	1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence; 3. Appeal against sentence allowed; 4. Confirm the sentences imposed in respect of counts 1 and 2; 5. Quash the sentences imposed in respect of counts 3 and 5; 6. Re-sentence the appellant in respect of counts 3 and 5 in the manner specified below, so that the sentences imposed on the appellant, including those imposed for counts 1 and 2, are as follows: Count 2: A fixed term of 2 years to commence on 20 May 2009 and to expire on 19 May 2011; Count 1: A fixed term of 2 years 6 months to commence on 20 November 2009 and to expire on 19 May 2012; Count 3: A non-parole period of 3 years to commence on 20 May 2010 and to expire on 19 May 2013 and an additional term of 1 year to commence on 20 May 2013 and to expire on 19 May 2014; Count 5: A non-parole period of 6 years 9 months to commence on 20 May 2012 and to expire on 19 February 2019 and a balance of term of 3 years 3 months to commence on 20 February 2019 and to expire on 19 May 2022; 7. Note that the earliest date on which the appellant is eligible for release is 19 February 2019.
Catchwords:	CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial was held according to law - Whether trial a nullity - Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) - Appellant not arraigned again after empanelment of jury - No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court's jurisdiction under s 130(2). CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Motive to lie an issue for the jury's determination - Crown Prosecutor's address to the jury drew attention to complainant's response - Whether the Crown Prosecutor's address resulted in a miscarriage of justice - Crown Prosecutor permitted to refer to complainant's evidence - Impermissible for the Crown Prosecutor to indicate that the complainant had no motive to lie thereby suggesting the accused bore an onus to establish complainant was lying. CRIMINAL LAW - Appeal against conviction - Sexual assault offences -Complainant's response during cross-examination "Why would I lie about that?"- Whether trial judge's direction that there may be a number of reasons why a person has a motive to lie was inadequate - Trial judge directed jury to the complainant's response and reminded jury that Crown bore onus of proof beyond reasonable doubt - Trial judge's direction concluded that it was a matter for the jury to assess complainant's evidence - Trial judge's direction was adequate. CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether trial judge erred by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions pursuant to the Evidence Act 1995, s 165 - Appellant's defence counsel specifically agreed to the terms of the direction that the trial judge proposed to give and in fact gave - Trial judge was not required to give a direction that contained the specific warning and information specified in s 165(2). CRIMINAL LAW - Appeal against conviction - Sexual assault offences - Whether an aggregation of the defects alleged in the grounds of appeal constituted a miscarriage of justice - Court not satisfied that there were defects in the conduct of the case - Appeal dismissed. CRIMINAL LAW - Application for leave to appeal on sentence - Trial judge misstated the standard non-parole period for Crimes Act, s 61M(2) offence at the time the offence was committed - Trial judge assessed the offending conduct below the mid-range of objective seriousness - Error in statement of standard non-parole period led to error in the non-parole period imposed for the offence - Appeal allowed - Appellant re-sentenced. CRIMINAL LAW - Application for leave to appeal on sentence - Trial judge erred in finding that the commission of the offences in counts 1, 2 and 3 in the home was an aggravating feature - Despite error no other sentence warranted in law in respect of counts 1 and 2. CRIMINAL LAW - Application for leave to appeal on sentence - Length of total sentence imposed - Whether trial judge erred in not finding special circumstances - Trial judge had regard to the question of accumulation of sentences - Trial judge was not in error.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Jury Act 1977
Cases Cited:	DJV v R [2008] NSWCCA 272; 200 A Crim R 206 Doe v R [2008] NSWCCA 203; 187 A Crim R 328 EK v R [2010] NSWCCA 199 Ingham v R [2011] NSWCCA 88 Markarian v R [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Palmer v R [1998] HCA 2; 193 CLR 1 R v Comert [2004] NSWCCA 125 R v E (1996) 39 NSWLR 450 R v F (1994) 83 A Crim R 502 R v Jovanovic (1997) 42 NSWLR 520; 98 A Crim R 1 R v Kotzmann [1999] VSCA 27; 2 VR 12 R v Preston (Court of Criminal Appeal, unreported 9 April 1997) R v Uhrig (Court of Criminal Appeal, 24 October 1996, unreported) Regina v Way [2004] NSWCCA 131; 60 NSWLR 168
Category:	Principal judgment
Parties:	DS (Appellant) Regina (Respondent)
Representation:	Counsel: W P Lowe (Appellant) P Ingram SC (Respondent) Solicitors: M Rumore (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2008/17318
Publication restriction:	No
Decision under appeal	Date of Decision: 2007-07-01 00:00:00 Before: Syme DCJ File Number(s): 2008/17318