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Court of Criminal Appeal
New South Wales
Case Title: FB v Regina; Regina v FB Medium Neutral Citation: [2011] NSWCCA 217 Hearing Date(s): 9 August 2011 Decision Date: 30 September 2011 Jurisdiction: Before: Whealy JA at [1]
Buddin J at [163]
Harrison J at [164]Decision: 1. Appeal against conviction dismissed.
2. Crown appeal against sentence allowed.
3. In substitution for the sentence imposed in the District Court, sentence the respondent to a non-parole period of 6 years with a total term of 10 years imprisonment to commence on 9 August 2009.
4. The total term will expire on 8 August 2019 and the non-parole period will expire on 8 August 2015 on which date the respondent will be eligible for release on parole.Catchwords: CRIMINAL LAW - appeal against conviction - appellant convicted of aggravated sexual assault - admission of tendency evidence- tendency evidence concerned a further sexual assault - possibility of concoction between victims - media reports concerning appellant's misconduct - possibility of contamination - ground dismissed
CRIMINAL LAW - appeal against conviction - miscarriage of justice - incompetence of counsel - failure of legal representatives to adduce evidence of media reports concerning appellant's misconduct - media article relevant to admission of tendency evidence - ground dismissed
CRIMINAL LAW - appeal against conviction - credibility of complainant - inconsistent statements concerning alleged sexual assault - absence of complaint by victim when questioned - judge gave directions in relation to absence of complaint - trial judge found complainant had reason for denying sexual assault - ground dismissed
Legislation Cited: Evidence Act 1995 (NSW) ss 97, 101
Criminal Appeal Act 1912 (NSW) ss 5D, 6(1)Cases Cited: Hoch v The Queen (1988) 165 CLR 292 at 296, 297
Pfennig v R (1995) 182 CLR 461 at [40], 482 - 483
R v AH (1997) 42 NSWLR 702
R v Ford [2009] NSWCCA 306 at [58], [125]
BP v R; R v BP [2010] NSWCCA 303 at [108]
R v Smith (2008) 190 A Crim R 8 at [17]
R v Fletcher (2005) 156 A Crim R 308 at [67]
R v RM [2005] NSWCCA 413
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Colby [1999] NSWCCA 261 at [111]
Ratten v R (1974) 131 CLR 510
Mickelberg v R (1989) 167 CLR 259
R v Bikic [2002] NSWCCA 227
R v Abou-Chakake [2004] NSWCCA 356; 149 A Crim R 417
R v Poole [2006] NSWCCA 93
R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385
R v Ignjatic (1993) 68 A Crim R 333
MB v R [2009] NSWCCA 200
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Ali v The Queen [2005] HCA 8; 214 ALR 1
Robert Clee v R [2009] NSWCCA 18
R v Thompson [2002] NSWCCA 149 at [38]; 130 A Crim R 24
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Details
- AGLC
- FB v R [2011] NSWCCA 217
- Case
- [2011] NSWCCA 217
- Decision Date
CaseChat Overview and Summary
The case of FB v R involved an appeal against the conviction of the appellant, who had been found guilty of aggravated sexual assault. The appeal raised several issues related to the trial, including the admission of tendency evidence, the credibility of the complainant, and the competence of the defence counsel. The central dispute was whether the trial judge had erred in various respects that could have led to a miscarriage of justice.
The primary legal issues addressed by the court were whether the trial judge had improperly admitted tendency evidence under section 97 of the Evidence Act, whether the judge had failed to adequately consider the credibility of the complainant, and whether the defence counsel's failure to present certain media evidence amounted to incompetence. Additionally, the court examined whether the judicial questioning during the trial had unfairly influenced the outcome.
The court found that the trial judge had correctly admitted the tendency evidence as it had significant probative value in establishing the appellant's propensity towards similar offences. The court also determined that the trial judge had appropriately considered the credibility of the complainant and had not erred in his directions to the jury. Furthermore, the court concluded that the defence counsel's failure to present media evidence did not constitute incompetence and did not result in a miscarriage of justice. The court also held that the judicial questioning did not unfairly prejudice the appellant.
In conclusion, the appeal was dismissed, and the conviction was upheld. The court affirmed the trial judge's decisions and found no grounds for overturning the appellant's conviction.
The primary legal issues addressed by the court were whether the trial judge had improperly admitted tendency evidence under section 97 of the Evidence Act, whether the judge had failed to adequately consider the credibility of the complainant, and whether the defence counsel's failure to present certain media evidence amounted to incompetence. Additionally, the court examined whether the judicial questioning during the trial had unfairly influenced the outcome.
The court found that the trial judge had correctly admitted the tendency evidence as it had significant probative value in establishing the appellant's propensity towards similar offences. The court also determined that the trial judge had appropriately considered the credibility of the complainant and had not erred in his directions to the jury. Furthermore, the court concluded that the defence counsel's failure to present media evidence did not constitute incompetence and did not result in a miscarriage of justice. The court also held that the judicial questioning did not unfairly prejudice the appellant.
In conclusion, the appeal was dismissed, and the conviction was upheld. The court affirmed the trial judge's decisions and found no grounds for overturning the appellant's conviction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
There were a number of grounds of appeal originally filed, although two were abandoned prior to the appeal hearing. The grounds ultimately relied on were as follows:- Ground 1: The trial judge erred in admitting the tendency evidence of a witness, MD, pursuant to section 97 of the Evidence Act . Ground 3: The trial judge failed to take into account matters adverse to the credibility of the complainant in accepting her evidence. Ground 4: Excessive judicial questioning created a real danger that the trial was unfair. Ground 5A: There was a miscarriage of justice due to the failure by the legal representatives of the appellant to adduce evidence of the specific contents of media reports relating to the witness, MD. Ground 6: The verdict was unreasonable and incapable of being supported by the evidence. Grounds 1 and 5A are related. I shall deal with them together. I shall deal with each of the remaining grounds separately. On 26 May 2010, the appellant was arraigned before the trial judge. The appellant pleaded not guilty to the charge I have identified earlier. Thereupon, the trial judge embarked upon a pre-trial hearing of an application by the Crown to admit the evidence of a young woman "MD" as tendency evidence. Before his Honour for the purpose of the application was a statement of SE dated 17 September 2009, and the Record of Interview. The statement of MD dated 14 December 2009 was admitted without objection on the voir dire as Exhibit 2. It was common ground that the appellant had pleaded guilty before North DCJ in November 2009 to 5 counts of sexual intercourse with MD contrary to section 73 of the Crimes Act 1900. The argument proceeded before the trial judge on the next day, 27 May 2010. On 28 May 2010, his Honour made a determination in favour of the Crown in relation to the proposed tendency evidence. His Honour stated (at page 19 of his Honour's reasons):- [The evidence] discloses that he has a tendency for having a sexual desire for underaged girls who are his pupils or were his pupils and were under his care and he acted upon such sexual desire by providing them with drugs and thereafter taking advantage of them. The trial judge held that the evidence was relevant and that it did disclose a tendency and that it had "significant probative value". In that regard, his Honour said (at page 20):- I have gone through in some detail the comparison between MD's evidence and that of the complainant's. In my view the vast majority of what is disclosed is, to use the old formula, a striking similarity between both accounts and accordingly in my opinion by reason of that similarity, there is a significant probative value to MD's evidence. His Honour also determined that the probative value of the tendency evidence substantially outweighed any prejudicial effect which it might have on the accused. In those circumstances, the ruling was that the Crown would be permitted to tender the statement of MD in the trial. Following this ruling, the trial proper commenced. The Crown made a brief opening. The evidence of the complainant, SE, was taken by way of closed-circuit television from a remote location. The DoCS interview, to which I have made earlier reference, was played as her evidence-in-chief at the trial. Her evidence, including cross-examination, continued up to and including 1 June 2010. The complainant's mother gave evidence on 2 and 3 June 2010. On 8 June 2010, MD's mother gave evidence, and then later in the day, MD herself was called and gave both evidence-in-chief and was cross-examined. MD's evidence-in-chief generally accorded with the contents of the statement that had been before the trial judge on the earlier voir dire application. The nature of her evidence was summarised in the Crown submission in this appeal, and no objection has been taken to its accuracy. In general terms, the evidence was as follows:- MD went to the same school as SE in Grafton when the appellant was the school principal. MD was two years older. In December 2007 when she was 16 years old, she was staying with the appellant and his family at his home for a week. MD woke one morning with a headache. The appellant gave her a glass of water and two round tablets and told her to take them because they would make her feel better. MD believed that the tablets were Panadol. After taking the tablets, the appellant told her to lie down. MD then lay down and fell asleep shortly afterwards. The next thing she remembered was waking up with her pyjama shorts pulled down and the appellant licking her vagina. MD was shocked. The appellant then took her pants off and got on top of her and had sexual intercourse with her by putting his penis in her vagina. Later that day the appellant told MD it was her fault and that she had caused him to do it and if she told anybody that would hurt his family and they would probably kill him. MD said that the appellant had sex with her several times in different parts of the house over the next week whilst she was staying there.
Decision
Reasons for decision
BUDDIN J
HARRISON J
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Ratio Decidendi
Legal Principle Established
Established by: BUDDIN J, HARRISON J
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