EK v The Queen

[2010] NSWCCA 199

Reported Decision: 208 A Crim R 157

New South Wales

Court of Criminal Appeal

CITATION:	EK v R [2010] NSWCCA 199
HEARING DATE(S):	17 May 2010
JUDGMENT DATE:	8 September 2010
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 2; RA Hulme J at 23
DECISION:	(1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted but appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – particular offences – offences against the person – sexual offences – offences relating to the administration of justice – perverting the course of justice – CRIMINAL LAW – appeal against verdicts of a jury empanelled pursuant to s 19 Mental Health (Forensic Provisions) Act 1990 – whether a special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act is, for the purposes of s 306I(1) of the Criminal Procedure Act, “a new trial” or “new trial proceedings” – whether s 306I(1) operates to permit evidence given by complainant in earlier trial to be tendered – whether trial judge failed properly to direct jury in relation to evidence of second pregnancy and DNA evidence – appropriate instructions given – ground without merit, leave to rely upon it refused – whether error in finding it was an aggravating factor that sexual offences were committed in the complainant’s home – STATUTES – Acts of parliament – interpretation – general approaches to interpretation – purposive approach – whole Act to be considered – presumptions as to legislative intention
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Criminal Procedure Amendment (Evidence) Act 2005 Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 Interpretation Act 1987 Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) (1981) 147 CLR 297 Doggett v The Queen [2001] HCA 46 at [1]; (2001) 208 CLR 343 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463 R v Gazi Comert [2004] NSWCCA 125 R v Humphries [2004] NSWCCA 370 R v Knorr [2005] NSWCCA 70 R v MAJW [2007] NSWCCA 145; 171 A Crim R 407 R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 R v Young [1999] NSWCCA 166; 46 NSWLR 681 R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1 Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc & Ors [2000] NSWCA 65; (2000) 48 NSWLR 548 Subramaniam v R [2004] HCA 51; (2004) 211 ALR 1 Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 Warren v R [2009] NSWCCA 176
TEXTS CITED:	Australian Law Dictionary, Oxford University Press (2010) Butterworths Australian Legal Dictionary, Butterworths, (1997) Jowitt’s Dictionary of English Law, 3rd ed, Thomson Reuters (Legal) Limited, (2010) Macquarie Concise Dictionary, 4th ed (2006) Osborn’s Concise Law Dictionary, 10th ed, Sweet & Maxwell, (2005) Oxford English Dictionary 2nd ed, Clarendon Press (1989)
PARTIES:	EK (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2004/13473
COUNSEL:	A Norrie (Applicant) D Arnott SC (Respondent)
SOLICITORS:	JN Legal (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2004/13473
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	5 March 2009

2004/13473

McCLELLAN CJ at CL
SIMPSON J
R A HULME J

8 September 2010

EK v R

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J with respect to ground 1 and with R A Hulme J with respect to grounds 2 and 3 of the grounds of appeal. I agree with the orders proposed by R A Hulme J.

2 SIMPSON J: This is an appeal against the verdicts of a jury empanelled pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 that, on the limited evidence available, the appellant committed a series of eight offences, seven of them of a sexual nature against his daughter, to whom I will refer as “the complainant”.

3 The rather complicated history of the proceedings must be outlined.

4 The appellant was arrested on 3 March 2004 and charged with the sexual offences. Four counts were of aggravated sexual intercourse with a child between 10 and 16 years. The circumstance of aggravation was that the child was under his authority. One count was of aggravated indecent assault, of a child under the age of 16 years. Count 7 was aggravated sexual intercourse with a child above 14 years and below 16 years, the circumstance of aggravation again being that the child was under the appellant’s authority. The sexual offences were alleged to have been committed between January 2001 and November 2003. Count 8 was different in nature. It was a count of perverting the course of justice. This offence was alleged to have been committed between 1 March 2007 and 31 March 2007, after the appellant’s arrest and while he was in custody.

5 On 7 June 2007 the appellant was arraigned in the District Court before Keleman DCJ on an indictment containing all eight counts. He entered pleas of not guilty and a jury was empanelled. The trial proceeded for some weeks. The complainant was the first witness. She gave her evidence by closed circuit television.

6 As the trial proceeded, it became increasingly apparent that an issue existed concerning the appellant’s fitness to be tried. On 16 July 2007 Keleman DCJ discharged the jury without verdict. On 5 February 2008, after conducting an inquiry pursuant to s 10 of the Mental Health (Forensic Provisions) Act, Sweeney DCJ found the appellant was unfit to be tried. In accordance with the Mental Health (Forensic Provisions) Act, the appellant was referred to the Mental Health Review Tribunal, which found that he would not, within the period of 12 months, become fit to be tried.

7 Where such circumstances apply, the provisions of the Mental Health (Forensic Provisions) Act (s 19) require that a “special hearing” be held. By s 19(2) the purpose of a special hearing is to ensure:

“… despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.”

8 The verdicts available following a special hearing are set out in s 22. They are:

“(1) …
(a) not guilty of the offence charged,
(b) not guilty on the ground of mental illness,
(c) that on the limited evidence available, the accused person committed the offence charged,
(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.”

9 On 9 February 2009 a special hearing opened in the District Court before Hock DCJ and a jury.

10 Section 21(1) of the Mental Health (Forensic Provisions) Act provides:

“ 21 Nature and conduct of special hearing
(1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.”

11 Section 306I of the Criminal Procedure Act 1986 provides:

“ 306I Admission of evidence of complainant in new trial proceedings
(1) If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.”

For added certainty, s 306I goes on to provide:

“(4) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant under this Division or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence.”

Section 306I appears in Pt 5 Div 4 of the Criminal Procedure Act . Part 5 deals with “Evidence in sexual offence proceedings”. Division 4 is headed “Special provisions relating to subsequent trials of sexual offence proceedings”. The purpose of s 306I is clear. It is to avoid the need for complainants, in circumstances where they have given evidence in a trial that has subsequently aborted, to give evidence (and be cross-examined) a second time.

12 The condition precedent to s 306I(1) is met. The trial of the appellant (before Keleman DCJ) was discontinued (for a reason other than the jury being unable to reach a verdict).

13 A question that immediately arose in the special hearing before Hock DCJ was whether s 306I(1) operated to permit the evidence given by the complainant in the trial before Keleman DCJ to be tendered. It was argued on behalf of the appellant, before Hock DCJ, that the special hearing was not, for the purposes of s 306I(1), “a new trial” or “new trial proceedings” and, accordingly, that the sub-section did not authorise the admission of the complainant’s evidence by the tender of the evidence she had given in the discontinued trial.

14 Hock DCJ admitted the evidence in that form. She held:

“… a special hearing is encompassed by the words ‘new trial proceedings’.”

She added, having referred to s 33 and s 34 of the Interpretation Act 1987:

“Given the purpose of the legislation [meaning s 306I(1)], there is in my view no reason that Parliament would have made an exception for complainants in special hearings, that is, that they would be required to give evidence in sexual assault cases more than once simply because the accused has been found unfit to be tried.”

15 The special hearing proceeded. On 5 March 2009 the jury returned verdicts. The transcript records the verdicts as “guilty” to each count. This is not strictly in accordance with s 22, which permits a verdict that, on the limited evidence available, the accused person committed the offence charged. However, that is of no present moment. The verdicts can be treated as within the meaning of s 22(1)(c).

16 By s 22(3)(c) such a verdict is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings. The appellant has exercised that right. He has pleaded three grounds of appeal. They are:

“1. That the learned Judge erred in ruling that Section 306I of the Criminal Procedure Act 1986 (NSW) was applicable to a special hearing.

2. That the learned Judge failed to properly direct the Jury on the use of the evidence of the second pregnancy and the DNA evidence.

3. That the learned sentencing Judge erred in finding that it was an aggravating factor pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that Counts 1-7 were committed in the home.”

Ground 1

17 The argument in this Court proceeded along the same lines as that in the District Court. That is, it was argued on behalf of the Crown that a special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act is, for the purposes of s 306I(1) of the Criminal Procedure Act, “a new trial” or “new trial proceedings”. Counsel for the appellant, seeking to rebut that argument, pointed to the absence of any reference in s 306I(1) to a “special hearing”, arguing that that absence indicates that the sub-section was not intended to apply to a special hearing.

18 I have concluded that both arguments focus upon the wrong issue. I tend to the view that the words “new trial” and “new trial proceedings” cannot be construed to extend to and incorporate a “special hearing”: for example, a special hearing cannot result in a conviction as a trial can. There are many other reasons into which it is not necessary to go. In this, I do not share the views expressed by R A Hulme J, whose judgment I have read in draft. However, I find it unnecessary to reach a concluded view in that respect.

19 In my opinion, the argument was misdirected. The key issue is to be found in s 21(1) of the Mental Health (Forensic Provisions) Act. That sub-section is unambiguous. By the very contrast it makes, it appears to recognise that a special hearing is not a trial. However, I see no reason to exclude evidentiary rules that would apply if the special hearing were “a new trial” or “trial proceedings” from a special hearing. Section 21(1) is explicit: a special hearing is to be conducted “as nearly as possible as if it were a trial of criminal proceedings”. If it were a trial of criminal proceedings, the evidence of the complainant would be admitted under s 306I(1). Section 21(1) therefore makes the evidence admissible in the same way in a special hearing.

20 For s 306I to apply, it is not necessary that the special hearing be “a new trial” or “new trial proceedings”. It is merely necessary to hypothesise the manner in which a new trial would be conducted, and translate that to the special hearing. The arguments before Hock DCJ and in this Court were predicated on a false premise.

21 I would reject Ground 1 of the appeal.

22 In relation to Grounds 2 and 3, I agree with the disposition proposed by R A Hulme J.

23 R A HULME J: Ground 1 involves a contention that the trial judge erred in ruling that s 306I of the Criminal Procedure Act 1986 was applicable to a special hearing and thereby permitted the Crown to tender the record of the evidence the complainant gave at an earlier aborted trial. The argument is, in essence, that a special hearing conducted pursuant to the Mental Health (Forensic Provisions) Act 1990 is not a trial and so a special hearing which is conducted following an earlier aborted trial is not within the meaning of “new trial proceedings” in s 306I.

24 Since first drafting my reasons for concluding that there is no merit in this ground I have had the benefit of reading in draft the judgment of Simpson J. I respectfully agree that s 21(1) of the Mental Health (Forensic Provisions) Act renders the evidence of the complainant admissible under s 306I at a special hearing. I am also, however, of the view that even if the argument advanced on behalf of the appellant was not misconceived, it nevertheless should be rejected. Given there is agreement with the reasons of Simpson J, I can state the reasons for my alternative view in much briefer terms.

25 The starting point is the purpose of s 306I. It appears in Chapter 6 Part 5 Division 4 of the Act. The provisions of Division 4 are concerned with “subsequent trials of sexual offence proceedings” and were inserted in the Act by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006. The provisions mirror, to a very large extent, those of Division 3 which are concerned with “retrials of sexual offence proceedings” and was inserted by the Criminal Procedure Amendment (Evidence) Act 2005. Both Divisions are restricted in their application to proceedings that include a charge for a prescribed sexual offence: see s 306A and s 306H.

26 I agree with Simpson J that it is clearly the purpose of s 306I to avoid the need for a complainant to give evidence at a trial subsequent to one that has been aborted. The corresponding provision in Division 3, contained in s 306B, was obviously intended to meet the same objective but in respect of retrials after the quashing of a conviction on appeal.

27 The appellant contends that if it had been the intention that s 306I should apply to a special hearing then the section would contain an explicit statement to this effect. There are three possible explanations for the absence of any such explicit reference.

28 The first is that Parliament deliberately refrained from extending the operation of the provisions of Chapter 6 Part 5 Division 4 to special hearings. If this is the case, the rationale for doing so, having regard to the purpose of the provisions, is not apparent.

29 Counsel for the appellant suggested one possible reason and it was to the following effect. If a trial has been discontinued out of a concern that the accused was not fit to be tried, and that turns out to be the case, it must follow that the instructions, if any, which may have been given to counsel appearing for the accused in that trial may have been compromised by the accused’s mental incapacity. The record of the complainant’s evidence, in particular any cross-examination, may not be as favourable to the accused as it might otherwise have been. Accordingly, there was good reason for excluding a special hearing from the operation of s 306I.

30 The problem with this argument is that it ignores two safeguards that appear in Division 4 that are well suited to meet such a situation. Section 306I(5) (in contrast to s 306B(5) in Division 3) provides that a court has a very wide discretion to decline to admit the record of the original evidence, having regard to certain specified matters including a consideration of the “interests of justice” and “any other matter the court thinks relevant”. Section 306J (in contrast to s 306C in Division 3) provides that the complainant may be compellable to give further evidence. The discretion to hold the complainant compellable is a wide one, again extending so far as to include a consideration of the “interests of justice”.

31 The reason suggested on behalf of the appellant for Parliament deliberately excluding special hearings from the operation of s 306I is of no validity. I can discern no other logical reason for it to have done so.

32 The second possibility is that Parliament made no reference to special hearings in s 306I because its provisions apply to such proceedings without any need to explicitly say so. The judgment of Simpson J provides a logical reason for this. An alternative explanation is that special hearings are in fact “trial proceedings” and that a special hearing conducted following an earlier trial constitutes “new trial proceedings”.

33 Section 33 of the Interpretation Act 1987 requires that a construction that would promote the underlying purpose or object of a provision is to be preferred to one that would not. Generally as to this approach to statutory interpretation see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 per Brennan CJ, Dawson, Toohey and Gummow JJ at 408; Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc & Ors [2000] NSWCA 65; (2000) 48 NSWLR 548 per Spigelman CJ at [107] – [108]; and Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Commonwealth) (1981) 147 CLR 297 per Mason and Wilson JJ at 320-321. Having regard to the clear purpose of the provision in s 306I I am of the view that it should be construed so as to include special hearings for two reasons.

34 First, a special hearing is a form of trial. No attempt was made in the submissions of the appellant to define what a “trial” was for the purposes of s 306I. It certainly does not appear to be a term of art, capable of precise definition applicable to every instance of its use.

35 Dictionary definitions of “trial” are broad: see Oxford English Dictionary 2nd ed, Clarendon Press (1989); Macquarie Concise Dictionary, 4th ed (2006); Butterworths Australian Legal Dictionary, Butterworths, (1997); Osborn’s Concise Law Dictionary, 10th ed, Sweet & Maxwell, (2005); Jowitt’s Dictionary of English Law, 3rd ed, Thomson Reuters (Legal) Limited, (2010); and Australian Law Dictionary, Oxford University Press (2010). The definition in the latter is the broadest:

The final determination of a contested legal proceeding in a hearing in a court.

36 None of the definitions derived from the sources just mentioned would exclude a special hearing under the Mental Health (Forensic Provisions) Act from the concept of a “trial”.

37 Judicial pronouncements about special hearings, whilst not concerned directly with any question as to whether they are a “trial”, have included references to them as such. In Subramaniam v R [2004] HCA 51; (2004) 211 ALR 1 at [12], Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ referred to the proceedings at first instance as a “trial by special hearing” and thereafter repeatedly referred to the proceedings as “the trial”. In Warren v R [2009] NSWCCA 176 at [12], Hidden J referred to the appellant not having given evidence at “the trial” when the proceedings had been a special hearing. In R v Knorr [2005] NSWCCA 70, Spigelman CJ referred to the appellant as having “stood trial at a special hearing” and later, upon upholding the sole ground of appeal, came to consider whether to order a “new trial”.

38 I take from the foregoing that there is nothing that precludes the characterisation of a special hearing as a “trial”. They are not mutually exclusive forms of proceedings. What is determinative is the context in which the term is used. In my view a special hearing is a form of trial for the following reasons:

A It is required to be conducted “as nearly as possible as if it were a trial of criminal proceedings” except as provided by the Mental Health (Forensic Provisions) Act : s 21(1). Trials are conducted according to the rules of evidence and procedure provided by both statute and common law. Section 306I is, of course, a statutory provision concerned with the admissibility of evidence. It is easy to contemplate that some matters of procedure might need to be modified in a special hearing to accommodate the accused’s mental incapacity. On the other hand, it is difficult to envisage rules as to the admissibility of evidence being modified.

B A special hearing has the same characteristics of a normal criminal trial. They include the following:


(a) The proceedings are before a judicial tribunal, comprised of a judge, with or without a jury.

(b) There is a formal arraignment of the accused: R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1 per Spigelman CJ at [3].

(c) There is a plea to the charge, albeit taken to be one of not guilty: s 21(3)(a).

(d) The presentation of evidence and addresses by counsel are in the same order and fashion and according to the same rules (subject to the issue raised in this appeal). In this respect, it has the attributes of a normal criminal trial which is “conducted as a contest between the prosecutor … and the accused”: Doggett v The Queen [2001] HCA 46 at [1]; (2001) 208 CLR 343 per Gleeson CJ at [1].

(e) The verdict, by either judge or jury, represents the determination of the charge on the criminal standard of proof as to whether the accused committed the offence charged (or any alternative): s 19(2).

(f) The available verdicts – not guilty, not guilty on the grounds of mental illness, the accused committed the offence charged, or the accused committed an alternative offence to the offence charged (the latter two termed a “qualified finding of guilt” (s 22(3)(a)) – represent a final determination of the allegation brought by the prosecution.

(g) Whilst there are some differences in the terminology used to describe the events that occur following verdict, the practical effect of any verdict is largely the same as the equivalent at a normal criminal trial.

(h) Rights in respect of an appeal to this Court in relation to the “qualified finding of guilt” (s 22(3)(a)), a finding of not guilty by reason of mental illness (s 22(2)), and the imposition of either a “limiting term” or some other penalty (s 23), are the same as they are in respect of a normal criminal trial (see s 22(3)(c), s 23(3) and also the inclusive provisions in s 2(2) and s 5(2) of the Criminal Appeal Act 1912).

39 It is necessary, of course, in construing the term “new trial proceedings” in s 306I to have regard to the entire Act in which it appears: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [69].

40 The Criminal Procedure Act contains provisions relating to the conduct of criminal proceedings generally (e.g. Chapter 2 Part 3), as well as for summary proceedings in both the Local Court and Supreme Court (Chapter 4), committal proceedings (Chapter 3 Part 2), and criminal proceedings in the District Court and Supreme Court (Chapter 3 Part 3). It is unnecessary to descend into a detailed analysis of the various provisions but the conclusion is that “trial” is used in the Act to distinguish proceedings from those which are “summary”, “committal” or “preliminary”. There is no justification for reading down the words in s 306I any further so as to limit them to proceedings relating to an accused person who is fit to be tried, or proceedings that are described in the Mental Health (Forensic Provisions) Act as a “normal trial of criminal proceedings”.

41 It is also of some note that nowhere in the Mental Health (Forensic Provisions) Act is it said that a special hearing is not a trial. Indeed, the only distinction made is that a special hearing is not a normal criminal trial. Section 19(2) provides that the purpose of a special hearing is to ensure, “despite the unfitness of the person to be tried in accordance with the normal procedures” that the person is acquitted unless it can be proved that the person committed the offence charged (or some alternative). Section 21(4) requires the court to explain to the jury certain things, including that the accused “is unfit to be tried in accordance with the normal procedures”. The assessment of penalty following a finding that the person committed the offence involves a consideration of what penalty might have been imposed if the special hearing had been “a normal trial of criminal proceedings”: s 23. I do not regard the provision in s 21(1) that “a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings” to amount to a statement by the legislature that it is not, in fact, a trial.

42 The third possibility is that Parliament omitted to make specific provision for s 306I to apply to special hearings through inadvertence. This would seem most unlikely. Parliament also did not make such specific provision in a number of other sections of the Act that deal with the admissibility of evidence “at trial”: see, for example, ss 285, 286, 288 and 289. If the appellant’s contention is correct, the inapplicability of s 306I to special hearings is not the only anomalous or absurd result.

43 Assume, however, the correctness of the appellant’s contention that special hearings are not “trial proceedings” and that the legislature omitted explicit reference to them in s 306I through inadvertence. Upon the principles of statutory construction discussed in authorities such as Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 per Mahoney JA at 283, Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 per McHugh JA at 302, and R v Young [1999] NSWCCA 166; 46 NSWLR 681 per Spigelman CJ at [3] – [31], I am of the view that “trial proceedings” should be construed so as to overcome the inadvertence and promote the obvious purpose of the provision.

44 I agree that ground 1 should be rejected.

Ground 2 – Failure to properly direct jury in relation to second pregnancy and DNA evidence

45 The essence of the contention raised in connection with this ground is that there is a risk that the jury may have reasoned that DNA evidence directly established the guilt of the appellant in respect of count 7, whereas it was incapable of doing so. The trial judge, therefore, should have given the jury a direction to avoid the adoption of any such process of reasoning. No such direction had been sought and so leave to rely upon this ground is required: Rule 4 Criminal Appeal Rules.

46 Some further elucidation of the evidence is necessary.

47 The complainant lived with her mother who she claimed mistreated her. She ran away from home at the age of 12 to live with her father. Her father’s household included her elder brother, Y, her father’s then wife and a younger half-brother who at that stage was an infant. From the time she commenced living with her father she was confined to the house. She did not attend school. The appellant taught her religion and the Arabic language. Her evidence was to the effect that, for a time, she was content to comply with his requirements in this respect so as to avoid the possibility of being returned to her mother. She had been reported, apparently by her mother, as a missing person. She also came to accept that it was not permissible to disobey her father.

48 The complainant’s evidence was that she got on reasonably well with her father for the first year but then he commenced to sexually abuse her. Her older brother and stepmother were in the house during these times because they were not allowed to go out either. The Crown Prosecutor described the situation in his closing address as being akin to the occupants being under “house arrest”.

49 The Crown case was that the seven counts of sexual or indecent assault occurred between the beginning of 2001 and end of 2003, when the complainant was aged 13 to 15. She gave evidence of other acts of sexual intercourse which occurred on a frequent basis. There was also evidence that she had fallen pregnant in the middle of 2003. She said that her father took her to a doctor who performed a termination procedure. After a short break, the sexual activity resumed and she fell pregnant again.

50 On 2 December 2003 the complainant was taken into the care of the Department of Community Services after police forced entry to the home. The second pregnancy was terminated on 30 December 2003. Dr Peter Johnson, who performed the procedure, gave evidence that conception occurred nine weeks earlier, plus or minus a week. That would place it as having occurred at some time in the period 21 October to 4 November 2003. I note, however, that the Crown Prosecutor submitted to the jury in his closing address that conception occurred in the first or second week of October 2003.

51 The case for the appellant was that he had not committed any sexual or indecent assault upon the complainant. Further, he contended that the perpetrator of sexual abuse upon the complainant was her older brother. Y was called in the Crown case. He denied, as the complainant had denied, that he had been involved in any act of sexual intercourse with her.

52 A DNA analysis was carried out on material recovered from the second termination procedure. Counsel then appearing for the appellant at the special hearing objected, unsuccessfully, to this evidence being admitted. No complaint has been made in the appeal concerning that ruling. A forensic biologist, Ms Virginia Friedman, gave evidence to the effect that the DNA analysis indicated that there was a high degree of likelihood that the appellant was responsible for the second pregnancy and that Y was excluded. Professor Boettcher gave evidence in the defence case that Y could not be excluded, although he conceded that it was “unlikely” that Y was the father.

53 The Crown relied upon the evidence of the other acts of sexual assault by the appellant upon the complainant as context evidence: see, for example, Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 463. On the other hand, the appellant’s counsel submitted in his closing address to the jury that if they accepted that it was a reasonable possibility that Professor Boettcher was correct, that is that Y could not be excluded as being responsible for the second pregnancy, then, given the stark choice between the perpetrator of the abuse being either the appellant or Y, the Crown case in respect of all of the alleged sexual offences fell “like a house of cards”. There was inherent danger in this submission. It suggested an “all or nothing” style of reasoning. If the jury rejected the evidence of Professor Boettcher, there was a risk that they could reason that the appellant must have been guilty of all of the sexual offences. It was therefore imperative that clear and precise directions were given to the jury as to the permissible and impermissible uses of the context evidence.

54 During the course of the replaying of the recording of the complainant’s evidence the judge gave the jury a direction and warnings which contained all of the elements that are suggested in the Criminal Trial Courts Bench Book published by the Judicial Commission of NSW. She repeated that direction and those warnings in largely the same terms during the course of her summing up. No complaint was made by the appellant’s then counsel about what her Honour said on either occasion and no further direction was sought.

55 The judge made no reference to the DNA evidence when directing the jury as to the context evidence. She dealt with the context evidence immediately after she had given the jury directions about the elements of each of the seven sexual or indecent assault counts and reminded the jury of the evidence that related to them. After she had given the context evidence direction and warnings, she proceeded to deal with some other legal directions before summarising some of the evidence that was independent of the complainant. It was in this context that she reminded the jury of the evidence of Ms Friedman and Professor Boettcher and the submissions that had been made about it in the closing addresses of counsel. She concluded by saying:

In summary, if you accept Ms Friedman’s evidence that [Y] is excluded, the DNA evidence supports the complainant’s account as to the accused having sexual intercourse with her. If you find that there was a reasonable possibility that Professor Boettcher’s evidence is correct, and that [Y] is not excluded, then the DNA evidence does not provide any confirmation of the complainant’s allegation. It is, in effect, neutral and you would put it to one side.

56 Further reference was made to the DNA evidence during the very brief review that immediately followed of the prosecution and defence cases in relation to the sexual and indecent assault counts.

57 What the judge said about the DNA evidence was expressed as being generally relevant to whether the complainant’s account should be accepted. That was consistent in large part with the way the parties had conducted the hearing, it involving a question primarily concerned with whether it was the appellant or Y who was responsible for engaging in sexual activity with the complainant. Importantly, however, the judge also gave directions to the jury as to the need to consider their verdicts in relation to each of the counts separately, notwithstanding they were being heard together. She informed them that they need not return the same verdicts on each count and that they could accept part of the complainant’s evidence while rejecting other parts. She directed them, in terms suggested in R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, that any doubt they experienced in relation to the complainant’s reliability concerning any of the allegations must be taken into account when considering her evidence of other allegations. The directions she gave concerning the context evidence included:

You must not substitute the evidence of any other act for the evidence of the specific offences in the indictment. In other words, that evidence that I have taken you to in respect of each of the seven counts is the precise evidence on which the Crown relies in respect of each of those counts and it is on that evidence and that evidence alone, you must be satisfied beyond reasonable doubt before you could return a verdict on the particular count you are then considering. So you must not substitute the evidence of any other act that the complainant spoke about for the evidence of the specific offence in the indictment. You must not reason that because the accused may have done something wrong in a sexual sense to the complainant on another occasions (sic), that he must have done so on the occasions in the indictment. (SU 32-33).

58 I am satisfied that any danger of the jury being diverted from a proper consideration of the context evidence by the general terms of what defence counsel and her Honour said about the DNA evidence was averted by these precise and clear instructions.

59 Counsel for the appellant accepted that the judge had given appropriate directions and warnings to the jury concerning the context evidence. However it was contended that her Honour “failed to give the jury a specific direction on the use of the evidence of the second pregnancy and the DNA evidence” and that this led to a miscarriage of justice, “given that it was temporal to count 7”. Reliance was placed upon R v Beserick (1993) 30 NSWLR 510 at 515-516 in which Hunt CJ at CL said that if evidence of uncharged acts is admitted, “an explanation should invariably be given to the jury” as to the purpose for which the evidence is admitted, together with a warning that the jury should not substitute evidence of other sexual activity for the specific activity which is the subject of the offence(s) charged, or adopt propensity reasoning.

60 The direction suggested in Beserick was a part of what the judge said to the jury, twice.

61 There was no evidence that identified with any precision the time when the count 7 incident occurred. It seems to have been generally understood to have been proximate to the time when the intercourse occurred which resulted in the second pregnancy. The indictment alleged that it occurred in the period 1 October 2003 to 16 November 2003 and there was the evidence estimating that the conception occurred between 21 October and 4 November 2003. At no stage did the Crown contend that the second pregnancy resulted from the intercourse that comprised count 7. Indeed, in his opening address the prosecutor told the jury in specific terms that the Crown did not allege that the incident relied upon for count 7 was that which brought about the pregnancy.

62 The complainant’s evidence concerning the count 7 incident included that it occurred at a time when, “my periods stopped again and yeah I do think that I got pregnant again”. She told her father that she was going to have a shower and, “he came into the shower with me and he said I might bring it down, like I might bring your periods down”. She understood him to mean that he would do something that would have the effect of aborting the pregnancy. She then recounted how he had penile/vaginal intercourse with her in the shower. She said it only lasted for “a couple of minutes” and he did not ejaculate. This evidence, in itself, tends to suggest a clear distinction between the count 7 intercourse and that which caused the pregnancy.

63 The prosecutor dealt with the DNA evidence in his opening address (although there was a later objection to its admissibility). He explained that it was relevant to rebut an anticipated assertion that it was Y who was “the assailant”.

64 Counsel for the appellant was asked to identify anything said in the course of the evidence or addresses to suggest that the jury might take into account the second pregnancy in their consideration of count 7. He identified a passage of the prosecutor’s closing address where the count 7 incident was referred to immediately before there was a reference to the second pregnancy. I take the submission to be that because the two events were dealt with in sequence, the jury may have understood there to be a direct connection. Upon a reading of the entire address, however, I am not persuaded that the jury would have understood what the prosecutor was saying in this way. In this passage, he had set out in chronological order the seven sexual offences and reminded the jury of the evidence upon which each was based. He continued, “There is other evidence in this chronology …”, and then referred to the evidence which indicated that conception in respect of the second pregnancy was estimated to have occurred at a particular point in time. Mentioning the events in chronological order would not have lead the jury to think that any of them had any direct connection with those that either preceded or succeeded them.

65 The appellant’s counsel also pointed to a later passage in the prosecutor’s closing address in which he referred to a number of features of the evidence, including (implicitly) the DNA evidence, that were “consistent with a course of sexual conduct that specifically relates to the seven charged sexual acts alleged by [the complainant]”. Whilst I am not sure what the prosecutor meant by that submission, I am not persuaded that it contained a suggestion that the DNA evidence was specifically relevant to the count 7 incident.

66 I am satisfied that the jury would have well understood that there was a distinction between the events the subject of the specific charges and all of the other events that were described by the judge as “other acts of alleged misconduct of a sexual nature”. There being no suggestion that the second pregnancy resulted from any particular charged act, there is no doubt in my mind that the jury would have taken it to have been a result of one of the “other acts”.

67 I am satisfied that the concern now raised on behalf of the appellant was not a realistic concern at the hearing. Counsel then appearing for the appellant certainly did not see fit to seek any direction of the type that it is now contended should have been given. With the benefit of hindsight, albeit limited to a review of the evidence in the pages of the transcript, I am not persuaded that there is any risk that the jury would have reasoned that the DNA evidence directly established the appellant’s guilt in respect of count 7.

68 I do not believe there is merit in this ground. I would refuse leave to rely upon it.

Ground 3 – Error in finding it was an aggravating factor that the sexual offences were committed in the complainant’s home

69 The learned trial judge set an aggregate limiting term of 11 years. This was in respect of:

● Counts 1 to 3: aggravated sexual intercourse with a child above 10 years and under 16 years (s 66C - maximum penalty 10 years);

● Counts 4 to 5: aggravated sexual intercourse with a child above 10 years and under 16 years (either s 66C(2) or (4) – 10 years – see below);

● Count 6: aggravated indecent assault (s 61M(1) - 7 years);

● Count 7: aggravated sexual intercourse with a child aged 14 or 15 (s 66(4) - 12 years); and

● Count 8: perverting the course of justice (s 319 - 14 years).

70 In relation to counts 4 and 5, the complainant was aged 15 at the time but during the period alleged the offence in s 66C(2) (aged range 10 to 16 years) was split between new s 66C(2) (age range 10 to 14 years) and s 66C(4) (age range 14 to 16 years). The maximum penalty was increased at the same time but the lesser penalty in former s 66C(2) of 10 years applies: R v MAJW [2007] NSWCCA 145; 171 A Crim R 407 at [27].

71 The judge set limiting terms ranging from 3 years to 6 years with a stepped approach to partial accumulation resulting in the aggregate of 11 years.

72 The sexual offences were acts committed over a period of almost 3 years, between 1 January 2001 and 16 November 2003 when the complainant was aged 13 to 15. They involved penile vaginal intercourse (count 1), the insertion into the vagina of an implement (count 2), cunnilingus (count 3), anal intercourse (count 4), penile vaginal intercourse (count 5), pulling down the complainant’s pants and looking at her vagina (count 6), and another act of penile vaginal intercourse (count 7). They were not isolated acts and occurred in the context of ongoing sexual abuse upon the complainant who was virtually captive in the family home.

73 The act of perverting the course of justice concerned a letter the applicant wrote from gaol to the complainant in an attempt to persuade her to withdraw her allegations. It was intended to be delivered to the complainant by a third party but was handed to police instead. The limiting term set for that offence was totally subsumed within others.

74 The judge noted that the sexual intercourse the applicant had with his daughter was unprotected, even after she became pregnant the first time, and that during the three year time frame the complainant was isolated from the community and was used by the applicant for his own sexual gratification. She also said, and this gives rise to the ground of appeal:

It is an aggravating factor under s 21A in respect of counts 1 to 7 that they were committed in the home of the complainant.

75 As to the applicant’s personal circumstances, her Honour noted that he was 58 years of age and had no previous convictions. She referred to the psychiatric assessments before her in reports by Professor Quadrio and Dr Westmore. They were both of the view that diagnosis was complex. Professor Quadrio’s opinion included that it was likely the applicant was suffering from a chronic mental illness, a psychotic condition, possibly paranoid schizophrenia, possibly schizoaffective disorder. Her prognosis for him was not positive and she was of the view that because of his lack of insight and concern for others he would continue to pose a risk of harm to others in the long term.

76 The judge regarded general deterrence as being of less importance because of the applicant’s mental state and she accepted Dr Westmore’s opinion that he would find prison more onerous than many other inmates. She also took into account the considerable delay in the matter being finalised, the applicant having been arrested and refused bail some five years earlier.

77 In noting the maximum penalties for the offences the judge said, erroneously, that the maximum penalty for the offence in count 6 was 10 years and that the offence was against s 61M(2). She was misled, obviously inadvertently, by the Crown Prosecutor who provided this misinformation in written submissions. Regrettably, counsel then appearing for the applicant concurred with the prosecutor. Section 61M(2), at the relevant time, provided for an offence concerning a victim under the age of 10. The offence the applicant committed was against s 61M(1) and the correct maximum penalty was 7 years. Although there is this error as to the correct maximum penalty I am not of the view that it had any real bearing upon the overall “sentencing” exercise. The judge set a limiting term of 2 years imprisonment for count 6 with the same commencement date as the 5 year term she set for count 5 so it was totally subsumed.

78 The judge also referred to the standard non-parole period applicable for the count 6 offence of 5 years. Such a period applied, in the relevant period, to the offences in both s 61M(1) and 61M(2) so the error as to the correct statutory provision had no bearing. The judge gave reasons for not imposing the standard non-parole period, they being that she assessed the offence as falling below the mid-range of objective seriousness and the applicant’s psychological state, but there was no occasion for her Honour to be setting a non-parole period at all: s 23 Mental Health (Forensic Provisions) Act 1990.

79 In support of the contention that the judge was wrong to regard the sexual offences as being aggravated by the fact that they were committed in the home of the complainant, reliance was placed upon R v Gazi Comert [2004] NSWCCA 125, in which this Court (Hidden and Hislop JJ, Sully J dissenting) stated that where a complainant and an offender reside together the fact that an offence occurred in the home was not an aggravating factor. That case was concerned with the common law treatment of aggravating factors, s 21A(2)(eb) not being inserted in the Crimes (Sentencing Procedure) Act 1999 until 1 January 2008, but nothing turns on that. Whether at common law or in terms of the statutory provision, it is an aggravating circumstance where an offender intrudes into the home and not where the offender and the complainant reside together. Again, the judge was misled by submissions by the then Crown Prosecutor and by the concurrence of the applicant’s former counsel.

80 In this Court the Crown submitted that what her Honour really had regard to were “circumstances demonstrating the gross breach of trust the applicant had committed towards the complainant who thought she had found a safe haven and the psychological helplessness in which she found herself”. This Court characterised an identical finding in R v Humphries [2004] NSWCCA 370 in such a manner.

81 Whether or not that is correct, I am not of the view that, if there be error, it had any significant influence upon the limiting terms set, either individually or in their aggregate. When regard is had to the gravity of the applicant’s misconduct in relation to his daughter over such a lengthy period of time, with her vulnerability being enhanced by her enforced isolation from society, the limiting terms are relatively modest and so too is the degree of partial accumulation. On any view, no lesser sentence was warranted and should have been passed: s 6(3) Criminal Appeal Act 1912.

82 I propose the following orders:

(1) Appeal against conviction dismissed.

(2) Leave to appeal against sentence granted but appeal dismissed.

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