GAC v Regina, WC v Regina - [2007] NSWCCA 287

No judgment structure available for this case.

Reported Decision: 178 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: GAC v Regina, WC v Regina [2007] NSWCCA 287

HEARING DATE(S): 27 July 2007

JUDGMENT DATE:
10 October 2007

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Harrison J at 3

DECISION: In the matter of GAC; appeal dismissed. In the matter of WC; appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal allowed in part. Sentences imposed in respect of counts 5, 6 and 7 quashed. See paragraph 76.3 for new sentences imposed. A NON-PUBLICATION ORDER APPLIES TO THIS JUDGMENT.

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - whether evidence of police interview of complainant in 1995 wrongly admitted – whether probative value outweighed by prejudice to accused – relevance of delay in complaint – no direction sought by counsel for accused – Crown address – whether improper – no criticism by trial judge – no request for remedial direction – whether verdict unreasonable having regard to delay in complaint – whether jury should have had reasonable doubt having regard to evidence contradicting complainant – more than inconsistence or contradiction required – complainant's evidence not demonstrably or arguably unreliable or incredible – jury's verdict plainly open – CRIMINAL LAW – sentence – accumulation – head sentence reduced by fifty per cent – failure to give effect to special circumstances – non-parole period reduced from 7 years to 5 years

LEGISLATION CITED: Crimes Act 1900 - ss 61E(1A), 61I, 61M(1), 66A, 66C(2)
Crimes (Administration of Sentences) Regulation 2001 - reg 216(1)

CASES CITED: Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Chidiac v The Queen (1990) 171 CLR 432
Jones v The Queen (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30
Livermore v R [2006] NSWCCA 334
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 163 CLR 454
Palmer v The Queen 66 ALJR 270
R v Heather May Attard [2004] NSWCCA 376
R v Cramp [2004] NSWCCA 264
R v Dellapatrona (1993) 31 NSWLR 123
R v LWP [2003] NSWCCA 215
R v Ralph and George (1988) 37 A Crim R 202
Whitehorn v The Queen (1983) 152 CLR 657

PARTIES: GAC (Appellant)
Regina (Respondent)
WC (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3151 (formerly 2007/587); 2006/5082 (formerly 2007/1620

COUNSEL: A Francis (Appellant GAC)
C A Davenport SC (Appellant WC)
P G Ingram (Respondent)

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of New South Wales (Appellant GAC)
W P O'Brien (Appellant WC)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0060

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 9 August 2006 (date of sentence)

2007/3151 (formerly 2007/587)
2006/5082 (formerly 2007/1620)

SPIGELMAN CJ
SIMPSON J
HARRISON J
10 October 2007

GAC v Regina, WC v Regina

Judgment

NON-PUBLICATION ORDER

A general non-publication order applies to this judgment.

1 SPIGELMAN CJ: I agree with Harrison J.

2 SIMPSON J: I agree with Harrison J.

3 HARRISON J: The appellants GAC and WC were charged with the following offences: -

Crimes Act

4 On 6 June 2006 a jury in the District Court of New South Wales at Port Macquarie found the appellants guilty. The jury returned a verdict of guilty on all seven counts in relation to WC and verdict of guilty on counts 2, 3 and 4 in relation to GAC.

5 On 9 August 2006 his Honour Garling DCJ sentenced WC to the following terms of imprisonment:

5.1 On count 1 to a non-parole period of 12 months to date from 2 June 2006 and expire on 1 June 2007 with a balance of term of 12 months to date from 2 June 2007 and expire on 1 June 2008.

5.2 On count 2 to a non-parole period of 2 years to date from 2 June 2006 and expire on 1 June 2008 with a balance of term of 2 years to date from 2 June 2008 and expire on 1 June 2010.

5.3 On count 3 to a non-parole period of 12 months to date from 2 June 2006 and expire on 1 June 2007 with a balance of term of 12 months to date from 2 June 2007 and expire on 1 June 2008.

5.4 On count 4 to a non-parole period of 18 months to date from 2 June 2008 and expire on 1 December 2009 with a balance of term of 18 months to date from 2 December 2009 and expire on 1 June 2011.

5.5 On count 5 to a non-parole period of 12 months to date from 2 June 2006 and expire on 1 June 2007 with a balance of term of 12 months to date from 2 June 2007 and expire on 1 June 2008.

5.6 On count 6 to a non-parole period of 2 years to date from 2 December 2009 and expire on 1 December 2011 with a balance of term of 2 years to date from 2 December 2011 and expire on 1 December 2013.

5.7 On count 7 to a non-parole period of 18 months to date from 2 December 2011 and expire on 1 June 2013 with a balance of term of 18 months to date from 2 June 2013 and expire on 1 December 2014.

6 The first date upon which WC will become eligible for release on parole is 1 June 2013.

7 On 9 August 2006 his Honour Garling DCJ sentenced GAC to the following terms of imprisonment:

7.1 On count 2 to a non-parole period of 2 years and 6 months to date from 2 June 2006 and expire on 1 December 2008 with a balance of term of 1 year and 6 months to date from 2 December 2008 and expire on 1 June 2010.

7.2 On count 3 to a non-parole period of 9 months to date from 2 June 2006 and expire on 1 March 2007 with a balance of term of 9 months to date from 2 March 2007 and expire on 1 December 2007.

8 The first date upon which GAC will become eligible for release on parole is 1 June 2010.

9 WC appealed against his conviction on two grounds: -

9.1 The trial judge erred in admitting evidence of a meeting between the complainant and police in 1995.

10 WC also sought leave to appeal against the sentence imposed upon the single ground that the sentencing judge erred in failing to give effect to his finding of special circumstances.

11 GAC appeal against her conviction on three grounds: -

11.1 His Honour erred in admitting evidence of an interview of the complainant by the police in 1995.

11.2 The trial miscarried as a result of the Crown Prosecutor’s address.

11.3 The verdict was unreasonable.

12 The appellants were in a de facto relationship. GAC was the complainant's mother and WC was her stepfather. WC is blind. The Crown alleged that WC committed a very large number of sexual offences against the complainant, some of which were the subject of specific counts in the indictment and many others were referred to in relationship or context evidence. GAC also committed sexual offences against the complainant. These were on a less frequent basis, but occurred approximately once or twice per month over many years from when the complainant was about five years of age until she was about 14 years of age.

The evidence wrongly admitted ground

13 The complainant and her sister D went to a local high school. In 1994 or 1995 police came to the school. The complainant gave evidence of being in a room with her sister with two police officers and a school counsellor. Somebody had approached her in the classroom and she left the class and went to a small room near the front office. When she got there she was met by her sister. When she entered the room two police officers and the school counsellor were present.

14 The complainant gave evidence that she had a conversation with the police officers. She did not disclose to them anything that had been happening to her. She said that during the course of the conversation she heard WC and GAC at the front office. Apparently they always turned up at the school at recess. They entered the room. At that point the conversation between the complainant and her sister and the police came to an end. The complainant said that she did not tell the police what had been happening to her because she was scared of what WC might do to her if she did so. She said she was scared of him hurting her because of what he had done previously. It was common ground that neither the complainant nor her sister complained at this time of any sexual misconduct.

15 The complainant gave evidence of a further incident a couple of weeks later when WC walked her home in a "very, very angry" mood. GAC was on the other side of her. WC took her into the bedroom, asked her what she had said and who she had told, but she replied that he had not told anyone anything. WC said that he would kill her or have somebody do it on his behalf. He slapped her on the bottom with a black shoe about six times causing her pain.

16 The appellants submitted that the Crown sought to lead this evidence upon the basis that the complainant did not make any complaint to the police because the appellants interrupted the interview as well as on the basis that, after the interview, WC beat her. This evidence was, according to the Crown, an explanation as to why no complaint had been made until 2004.

17 The Crown case was that, from the time the sexual assaults commenced in 1987, WC made threats. There are allegations of threats by WC throughout the complainant’s evidence. According to the Crown case, therefore, this evidence was merely another piece of evidence that provided a reason why the complainant did not tell anyone about the assaults. However, in the appellants’ submission, the Crown also sought to suggest that the reason that she did not complain on the day in question was associated with the fact that the appellants interrupted the interview.

18 It was put on behalf of the Crown to the learned trial judge in the following way:

“CROWN PROSECUTOR: Yes your Honour, the Crown seeks to lead the evidence from [the complainant] that she was approached by the police and questioned as she describes, that she didn't complain to them and that the - well the circumstances under which she didn't complain to them, that is the accused, both accused attended the school mid interview and interrupted it and that she was subsequently examined by the accused and found wanting and beaten.”

19 The evidence was objected to. The reasons for this are encapsulated in the following submission:

“FLANNERY: Yes. But your Honour in my submission there isn't really a way to stop the prejudice. Your Honour directing [the jury] that they're not to take any notice of the fact that the police came and asked specific questions or calling [the complainant's sister] to say that she had no basis for ringing Operation Paradox, would not in my submission stop the jury using it as some sort of corroboration of the complainant's account. In circumstances where all those years had gone by up until then, in which she made no complaint, in my submission the prejudice is much greater than the value of, or whatever value there is in that evidence.”

20 His Honour decided the matter as follows:

“HIS HONOUR: I don't need to hear from you any further Mr Crown I'll allow you to lead that evidence. I believe that's very important evidence. One of the big matters I’ve got to deal with in this trial will be complaint, that is lack of complaint. I've got to give very strong reasons - sorry, very strong directions relating to that and I believe that the Crown is entitled to lead this evidence. I note that the Crown will have discussions with each of you as to whether there is a way it can be led. I will certainly tell the jury not to speculate and if what I understand is correct, that is research indicates that juries listen to judges, and it may have some effect, but I think it is fair that on this important topic that the Crown does lead it and I think its probative value would outweigh the prejudicial value.”

21 The appellants submitted that, in permitting the Crown to call this evidence, his Honour failed properly to determine what the probative value of the evidence was or to determine whether it was outweighed by the danger of unfair prejudice to the appellants. The appellants contended that the probative value of the evidence was slight. The allegations against WC were of assaults between 1987 and 1993. Six of the seven counts in the indictment were alleged to have been committed before 1995. The complainant gave evidence of constant threats by WC throughout the period of the assaults. There was therefore no reason why her evidence of being struck by the shoe could not have been led by the Crown as another example of threats or violence meted out by WC to prevent the complainant from reporting the crime. The evidence about the police attending the school resulted in the complainant asserting that she had made no complaint to the police at that time because she was scared of what WC would do if she told anybody.

22 The appellants submitted that the danger of this evidence was that it would lead the jury to speculate about why the police attended the school in the first place. The trial judge stated that he would tell the jury not to speculate about the matter but he never did so. The jury was therefore left with a piece of evidence, said to have been corroborated by the school counsellor who was present, but with no proper directions as to the way in which they should use it. Moreover, the trial judge misquoted the evidence to the extent that he asserted WC had assaulted the complainant when he got her home when in fact her own evidence was that the assault took place some two weeks after the event.

23 Furthermore, it was submitted that while it was the Crown's contention that the evidence of the interview was relevant for a limited purpose, namely, that the beatings before the interview and some time after it explained the complainant’s failure to speak up about the abuse, the evidence of the interview at the school itself and the circumstances in which it came to an end were not probative of the reason that the complainant did not complain.

24 The complainant gave evidence that she did not complain to police on the occasion of the interview because of previous abuse. There was a substantial amount of evidence before the jury from her concerning that. The interview was an opportunity that she did not take to disclose the other assaults. The appellants contended that it is important to note that the complainant did not assert during the interview that she was afraid to speak to the police, or indeed anyone else, about her family, and she did not assert in her evidence at trial that she would have complained about the abuse if the appellants had not interrupted the interview.

25 The appellants submitted that the admission of this evidence cast suspicion upon the circumstances surrounding the purpose of the interview and upon the events leading up to it, an inference exploited by the Crown during the course of his address.

26 The Crown submitted that the probative value of the evidence was that it provided a further explanation for the lengthy delay between the time of the interview in August 1995 and the complaint in 2004. That explanation was that the complainant was dissuaded from complaining earlier than she did partly because of the effects of the beating WC gave her some weeks after the interview when questioning her about whether she had said anything about sexual abuse to the police during the interview. According to the Crown, the evidence of the interview had substantial probative value in relation to the issue of delay in complaint.

27 For example, the evidence that there had been such an interview provided an explanation for, and relevant background to, the beating subsequently administered to the complainant by WC, which itself provided part of the explanation for her not complaining between the time of the interview in August 1995 and 2004. Secondly, the evidence that the interview had involved police officers specifically focused attention upon the efficacy of the steps taken before August 1995 by WC to prevent the complainant from making any report of the sexual abuse to anyone in authority. Having regard to the other evidence she gave in relation to the threats and assault by WC prior to the interview with police in 1995, the evidence that she did not complain after the interview and beating with the shoe, because she was scared of what WC might do, was not unfairly prejudicial to the appellants.

28 The singular point of difference is that the interview should have been mentioned in evidence at all. The appellants were concerned that the jury might infer that police attendance at the school was itself a response to complaints of sexual abuse by the appellants and that the manner in which the interview came to an end was also consistent with guilt. This would explain why counsel appearing for WC explored the subject of the interview only briefly during cross-examination of the complainant and presumably why counsel appearing for GAC did not explore the matter in cross-examination of her at all. There had been no suggestion in the complainant’s evidence in chief that either of the appellants had caused the interview to come to an end or that they had removed her and her sister from the interview. The evidence remained that way following cross-examination.

29 There was other evidence as well. For example, the school counsellor gave evidence about the interview and of her observation that neither of the appellants "appeared upset about the girls being spoken to". She also gave evidence that there were many reasons for such interviews and counsel for neither appellant sought to explore the matter further. Another teacher at the school gave evidence that during the time that the appellants’ children attended it, they came to see them at the school regularly during recess and lunchtime. Accordingly, the appellants’ attendance at the school at recess or lunchtime when the interview occurred was unexceptional.

30 During the course of the Crown's closing address, his Honour specifically raised with both defence counsel whether a direction against speculation in relation to the police interview on 14 August 1995 was still sought. In the events that occurred, neither counsel sought any such direction. This is unsurprising. Having lost the initial battle to exclude the evidence in the first place, it is understandable that counsel would not wish the matter to be referred to specifically, and therefore possibly re-emphasised, by the trial judge at the end of the trial.

31 In the course of his Honour’s summing up there were in fact two references to the police interview in 1995. Each was in the context of the absence of complaint until 2004, and neither incorporated any reference to what might have been the reasons why police were at the school or why they became involved in the interview.

32 In my opinion the probative value of the evidence was high. Delay in complaint was a serious issue in the trial. It was potentially a significant obstacle for the Crown to overcome and was correspondingly a matter upon which each of the appellants could have been expected to place great reliance in their defence. Evidence of an isolated beating of the complainant would have had little, or on another view no, relevance to the purpose for which the Crown sought to lead it. In fact, the beating took place at a time reasonably close to the interview and significantly in relation to it. So much is revealed from the complainant’s evidence of what passed between her and WC in the moments leading up to it.

33 The question that introduced this evidence was as follows: -

34 That question was not objected to. The complainant then proceeded to give the evidence referred to earlier about being led home by the appellants and taken by WC to his bedroom where she was beaten and threatened.

35 The exercise of his Honour's discretion to admit the evidence was not in the circumstances something that in my opinion resulted in an unfair trial. There is a clear and obvious distinction between evidence that is prejudicial in the sense that it creates an unfairness that is incapable of correction by appropriate rulings or directions, and evidence that is prejudicial only in the sense that it is arguably probative of guilt or of a fact in issue which the Crown must prove to establish guilt. Clearly in the present case, the appellants were sensitive about the circumstances that led the police to visit the school. However, the evidence from the school counsellor and the teacher tends to suggest that the police visit was likely to have been benign and was sufficient to counterbalance the possible harmful effects of unwarranted speculation about it. No evidence was led as to why it was that the police attended the school and not all possible views about the reason for it were inimical to the interests of the appellants.

36 For example, it was clearly open to counsel who appeared for the appellants at the trial to explore with the school counsellor the various reasons that may have existed for interviews of the type in question. Such cross-examination could have elicited the fact that such interviews did not necessarily involve allegations of sexual impropriety. A direction from the trial judge that the jury should not speculate about the reasons for the interview could also have been sought. None of these steps was taken. Undoubtedly these matters were considered and rejected for forensic reasons. A review by this Court of those decisions is not warranted in the circumstances of the present case.

The Crown prosecutor’s address ground

37 The relevant portion of the Crown's address to the jury is as follows: -

“The Crown says that was a farce wasn't it, the parents being allowed to simply walk into the school and down into the room where this interview’s taking place. You may think that if that's the best we can do in those days, [the complainant] had every reason to be terrified, even at school sitting in a room with two police, she's not safe from the accused getting into the room and removing her. It's appalling. And I'm talking about the system, if that what it was.”

38 The appellants contend that the only rational inference that can be drawn from that submission is that "the system" failed the complainant because she was there to be "saved" from the appellants, but that ultimately the police acquiesced, under pressure from the appellants, and suspended what was an investigation into their sexual improprieties. The appellants submit that the only inference can be that if the system was "appalling" and "failed" the complainant, it was because the interview was part of an investigation into the appellants’ conduct. This was precisely the type of prejudice which counsel for the appellants had envisaged would be created by the admission of the evidence in the first place. In particular, this was because the Crown's submission was not in any sense limited or confined for an explanation of the delay in complaint. On the contrary, it was a submission that invited the jury to reason and to conclude that the system had failed the complainant because the appellants were guilty. It was submitted that this was significantly different to the neutral interpretation that the Crown had indicated he proposed to draw from the evidence if admitted: see par [18] above.

39 The appellants further complain that no directions were given by the trial judge to ameliorate the harmful effects of the Crown's address; nor were any directions given in relation to the manner in which the jury should approach that evidence generally.

40 However, these submissions must be considered in context. Despite indications given by him at the time of the ruling to admit the evidence about the interview, his Honour did not give directions in the summing up against speculation in relation to why the police attended the school on 14 August 1995 to interview the complainant and her sister. During the Crown’s final address, his Honour specifically raised with both defence counsel whether the direction against speculation in relation to the interview was still sought. Counsel appearing for WC indicated that she wished to consider the matter further. Counsel appearing for GAC made no comment. The final address of the Crown and of counsel for each appellant proceeded thereafter to completion. Finally, at the conclusion of enquiries made his Honour in relation to any directions that the parties would seek, counsel for each of the appellants informed his Honour that no direction in relation to the interview would be sought.

41 Notwithstanding this material, it was conceded by the Crown in this Court that the language adopted by the Crown in the court below should have been modified. It was said to be "regrettable" that the impugned passage tended to confuse and to compound a number of disparate considerations of varying degrees of relevance.

42 The Crown conceded that, if taken literally, the remarks tended to elide the evidence that the appellants attended the front desk of the school and were taken to the interview room and left with the complainant. On the contrary, the evidence was that the appellants had attended the school and had been shown to the interview room. There was no evidence that the appellants or either of them had "removed" the complainant. The evidence was that the complainant's participation in the interview had ceased.

43 It was also conceded by the Crown that the offending passage involved "a number of unfortunate flourishes". In defence of what had been said in the court below, the Crown contended that what was intended was no more than an observation that the complainant had good reason to be concerned about the threats made to her by WC because the circumstances demonstrated that she could not be confident of avoiding the appellants even in an interview at her school in the presence of her sister, two police officers and a school counsellor. Moreover, it was submitted that the impugned paragraph, whilst containing remarks that were both inaccurate, unnecessary and certainly not neutral, was patently insufficient in the atmosphere of the trial to elicit any rebuke from the trial judge or to provoke an application by defence counsel, either for a discharge of the jury or a remedial direction. According to the submission, it did not follow by any means that the only rational inference available to be drawn from the passage was that the police were at the school to save the complainant from the appellants but failed to do so by allowing her to be removed from it and that, thereby, a police investigation was frustrated.

44 The trial judge gave more than one direction to the jury that they must determine their verdicts on the basis of the evidence in the trial and upon nothing else. The Crown cited three examples of this in his Honour's opening remarks and two examples in his summing up. However, the Crown's principal submission was that if there were a perceptible risk that the jury might have regarded anything said to them by counsel for the prosecution as an invitation to speculate upon the reasons why the police were interviewing the complainant, appropriate applications could, and more particularly should, have been made to the learned trial judge. For example, his Honour could have been asked to require the Crown to redress the situation in the balance of his address following the next adjournment or to give remedial directions in the summing up or to discharge the jury. None of these applications was made.

45 This situation should be compared with what occurred in Livermore v R [2006] NSWCCA 334 at par [19] as follows:

“[19] Immediately after the Crown's address, the appellant's counsel at trial sought a discharge of the jury on the basis that the Crown Prosecutor's expressions of personal opinion, and in particular what was said to be an "improper attack" on the Crown witness Mick, could not be corrected by directions from the trial judge. The appellant's counsel's submissions referred to “the Crown, clothed in the authority of the office of the Crown, presenting himself as representing the community and presenting his case fairly, repeatedly [expressing] disparaging personal views of a prosecution witness”. In the alternative, counsel sought directions in the clearest and strongest terms in the hope that the jury might disregard those views. The discharge application was refused, but the trial judge indicated he would give appropriate directions in the summing up.”

46 In Libke v The Queen [2007] HCA 30 Hayne J restated the duty of a prosecutor as a Minister of Justice at pars [71] - [72] as follows: -

“[71] A criminal trial in Australia is an accusatorial and adversarial process. In that process, prosecuting counsel has a role that is bounded by long-established duties and responsibilities. Those duties and responsibilities are summarised when it is said that "[t]he duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice". In the Supreme Court of Canada, Rand J described the role of the prosecutor as being:

with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings

A central, even the central, element in that role is "ensuring that the Crown case is presented with fairness to the accused ".

[72] The prosecution case is to be presented in the context of an adversarial process in which each side "is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked". But again, there are boundaries to that process. The choices that have been described are to be made "subject to the rules of evidence, fairness and admissibility". As Dawson J said in Whitehorn v The Queen :

the judge's role in that system is to hold the balance between the contending parties

Whitehorn,

Richardson v The Queen

47 It is unnecessary for present purposes to compare the matters complained of in these two cases with the passage that is the subject of concern in the present case. For my part, the passage complained of is not, in the scheme of things, particularly offensive or particularly significant. It does not cross the boundary between what is and what is not acceptable.

48 More fundamentally, however, counsel for the appellants at trial did not object to what was said and did not seek to have the trial judge deal with it in any of the ways to which I have referred. Accordingly, it could not be said that the trial judge failed or refused to intervene at the request of the appellants in any relevant way. Counsel for the appellants took a particular approach and no criticism of that approach is taken in this Court. Nor, in my opinion, could it be. The appellants would appear clearly to have adopted the view, and presumably to have had the benefit of the fact, that the less that was said about the issue of the visit to the school the better. There is in my opinion a tension between a submission in this Court that the trial miscarried as the result of the Crown’s address, and a calculated decision made during the trial to make no complaint about it.

49 This ground of appeal fails.

The verdict was unreasonable

50 The complainant alleged that on a number of the occasions when she was assaulted her older sister was also assaulted. She alleged that the first time that this occurred was when she was eight or nine years old and her sister was twelve or thirteen. The complainant alleged that the appellants were each involved in the assault. In all, the complainant alleged that her older sister was involved in about ten of the assaults and GAC took part in about four of them. In cross-examination the complainant conceded that in her statement she had told the police that her older sister had involved in somewhere between twenty and twenty five of the assaults. She then stated that her current recollection was that it was around twenty.

51 None of these acts formed part of the charges on the indictment. However, the Crown relied upon this evidence as part of the "relationship" or as "context" evidence against GAC. Before the commencement of the trial, the Crown sought and was given leave to cross-examine the complainant's older sister upon the basis that she was an unfavourable witness. She was called by the Crown and denied being involved in any sexual activity with either of the appellants. The complainant's older sister gave evidence that she was very close to the complainant and shared a room with her for the majority of their childhood.

52 The first complaint made by the complainant was to her husband. In that complaint she only made reference to WC. The complainant later told another of her sisters. The complainant's husband gave evidence that the only complaint made to him was about WC. The complainant's other sister also gave evidence regarding the complaint made to her. That was in a telephone call initiated by the complainant in which she only made allegations against WC. In a subsequent conversation, the complainant referred to allegations against WC and told her in another conversation that GAC "didn't know" about the assaults by WC. It was in a later conversation that the complainant made allegations against GAC.

53 It was submitted that in light of the evidence given by the complainant's older sister, together with her failure to complain to her husband or, initially, to her sister, about sexual assaults by GAC, the jury should have had a reasonable doubt about GAC's guilt. In essence, the submission was that the jury should have had a reasonable doubt as a result of the gradual or cascading disclosure of the allegations made by the complainant against GAC.

54 However, the jury was well seized of the delay in complaint generally as well as the fact that the complainant had not included GAC in the initial complaint either to her sister or to her husband. The Crown submitted that the failure of the complainant to include GAC in her initial disclosure is explicable having regard to the nature of the allegations she was making against WC and the apparent emotional pull involved in making disclosures to her husband and to her sister. While relevant to the reliability of the complainant's evidence, the absence of allegations involving GAC at the time of the initial complaint did not preclude the jury from returning a verdict of acquittal provided that they were otherwise convinced beyond a reasonable doubt about GAC's guilt.

55 Arguably the evidence of the complainant's older sister could have created a reasonable doubt in the minds of the jury, either alone or in combination with the unfolding nature of the complaint against GAC. This is classically a jury question. It will not always be the position that every part of the evidence led in support of a Crown case will be wholly consistent with every other part. It is trite to observe that juries regularly evaluate conflicts between evidence led by the Crown and evidence led on behalf of the accused. Their task extends to making a similar evaluation of the whole of the Crown case. Something more than the existence of a contradiction or an inconsistency needs to be demonstrated before reaching a conclusion that the verdict was unreasonable.

56 At the heart of this ground of appeal is the contention that the complainant’s evidence was rendered so wholly unreliable by its alleged inconsistencies and contradictions that this Court would conclude that the jury should not have preferred it to that of her older sister and could not have been satisfied beyond reasonable doubt of the guilt of either of the appellants.

57 The principles which this Court should apply in cases such as this are as follows: -

57.1 Where a ground of appeal asserts that the verdict is unreasonable or cannot be supported by the evidence, the question for the court is whether it thinks that, upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at 493; Jones v The Queen (1997) 191 CLR 439;

57.2 This is a question of fact: M v The Queen (supra) at 492;

57.3 A verdict can be set aside on this ground notwithstanding that there was evidence upon which the accused could, as a matter of law, have been convicted: Whitehorn v The Queen (1983) 152 CLR 657; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Palmer v The Queen 66 ALJR 270;

57.4 The court must assess both the nature and the quality of the evidence, its reliability as well as its credibility: Morris v The Queen (1987) 163 CLR 454 at 463;

57.5 The court must pay full regard to the fact that the jury is the body entrusted with the prime responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses: Chamberlain v The Queen (No 2) (supra);

57.6 The court is not bound by the findings of the jury as to the credibility of witnesses, although the court must take into account the advantage of the jury in having seen and heard the witnesses. It will be infrequent that the court will set aside a verdict because a Crown witness lacked credibility or reliability: Chidiac v The Queen (1990) 171 CLR 432 at 444;

57.7 The court may set aside a verdict where the Crown witness was not worthy of belief and the evidence given by the witness was uncorroborated: R v Ralph and George (1988) 37 A Crim R 202;

57.8 The court may set aside the verdict where the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force so that, even taking into account the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: M v The Queen (supra);

R v Dellapatrona

58 It is obvious that the jury were satisfied with the complainant's explanation for the delay in making any complaint about the sexual misconduct of the appellants. In forming its view that the delay was explicable, the jury clearly had the benefit of seeing and hearing the complainant give evidence. This included cross-examination by counsel for each of the appellants. It is not a criticism of this cross-examination to observe that no significant attack upon the complainant's credibility was made. Appropriate questions were put to the complainant from time to time to suggest that the evidence she gave was untrue or that her recollection was flawed. A fair reading of the transcript does not give the impression that the complainant was exposed as a manipulative liar.

59 The fact that the complainant did not make complaints about GAC until later than her original complaints about WC may be explicable on a number of grounds. WC was the complainant's stepfather. Having regard to the number of occasions upon which the complainant alleged he had assaulted her, WC was the principal offender. It was open to the jury to form the view that the complainant may for that reason, or for other reasons, have been most anxious to reveal his role first.

60 Secondly, the jury may have formed the view that the complainant harboured a disinclination in the first instance to reveal the extent of her mother's involvement. To whatever extent their relationship may have been damaged by what occurred, the complainant was and remains GAC's daughter. Some remnants of that relationship may have retarded her initial ability to complain. Understandable embarrassment or shame may have been a factor that was absent, or less prominent, with respect to WC.

61 The complainant's evidence also contained specific details of sexual conduct involving her mother that the jury may have considered enhanced the likelihood of her mother's involvement in the ways alleged. For example, the complainant gave evidence of an incident involving the use of what was described as a strap on dildo. The complainant described how she was required to wear this device when she was a young girl and how the straps had to be adjusted to her smaller size. The complainant's mother was involved in the sexual activity that followed. This is the type of detail that the jury might reasonably have concluded was unlikely to be fabricated.

62 There was clearly evidence before the jury upon the basis of which, taken as a whole, they could have been satisfied beyond reasonable doubt of the guilt of the appellants. The complainant's evidence was not demonstrably or even arguably unreliable or incredible. Nor has it been demonstrated that, for some reason, the complainant was not worthy of belief.

63 In my opinion, the jury verdict was not only not unreasonable, it was plainly open. The third ground of appeal fails.

The sentence appeal

64 At pages nine and ten of his remarks on sentence the learned trial judge dealt with special circumstances in the case of WC. Relevantly, those remarks are as follows: -

“It is argued that in each case special circumstances exist. The Crown does not dispute that special circumstances exist. WC is blind. I have a statement from [a senior welfare officer] who says a custodial sentence, considering his disability and the charges for which he has been found guilty, will be particularly difficult. The first reason is that he is aboriginal and should be placed as close as possible to his family. He will be forced to remain in the cell because of the charges and because of his blindness. This is very stressful for him as he cannot watch television or read as a distraction.

There is then some information about present conditions. As a protection offender he will be denied education programs or any way of earning a little money. Phone calls to his family will be difficult because of stricter times he has access to a phone. If he is allowed into a yard with other offenders he has problems with not being able to see people around him, he could be attacked, for whatever reason, without seeing his assailant.

There can be no doubt that a term of imprisonment on a man with no sight will cause him significant problems. It will be much more difficult for him to serve his sentence than for others.

. . . In addition, WC has not been sentenced to a term of imprisonment before and he will no doubt need some assistance and rehabilitation when released.

65 Even though his Honour may have intended to reduce the head sentences in each case by 50 per cent, the partial accumulation of the sentences resulted in an effective aggregate non-parole period that was approximately 83 per cent of the overall term. The effect of this can be seen most clearly from the last bar on the chart in Figure 1.

66 Counsel for WC conceded that this case clearly “warranted a measure of accumulation”. However, any amount of accumulation of any one or more of the sentences will necessarily result in an aggregate non-parole period that will always exceed 50 per cent of the overall term.

67 In R v LWP [2003] NSWCCA 215, the Chief Justice said: -

“[21] I am satisfied, bearing in mind that the sentence for one of the offences is of considerable length, that a lesser sentence is warranted with respect to that offence, and that a lesser non-parole period is warranted with respect to that offence, in the light of the finding of special circumstances. The issue that arises is the determination of the effective sentence looking at the sentence for this particular offence in the context of the sentences for the other two offences.

[22] The exercise by his Honour of the sentencing discretion did not miscarry, save in carrying his intended result into effect. The difficulty arose by reason of the sentencing structure and the partial accumulation of the three different sentences. The non-parole period for Count 2 commenced at the expiration of the two year non-parole period for Count 1. The non-parole period for Count 3 commenced after the expiration of six months of the eighteen months non-parole for Count 2.

68 In R v Heather May Attard [2004] NSWCCA 376, this Court dealt with a case of accumulation where the overall non-parole period which resulted was almost 80 per cent of the head sentence. Buddin J stated at [21]: -

“[21] For present purposes it is necessary to refer only to the individual sentences imposed in respect of counts 1 and 3. In each case the sentencing judge imposed a non-parole period which was in accordance with the normal statutory proportion, that is 75% of the head sentence. However, when the later sentence was accumulated upon the earlier sentence, the consequence was that the overall non-parole period produced was almost 80% of the head sentence. Although there is no prohibition against the setting of a non-parole period which is more than 75% of the head sentence, there is no reason to believe that that is the result which his Honour intended in the present case. Indeed the indications are to the contrary. Moreover, this Court has intervened on a number of occasions in which the accumulation of sentences has produced an outcome similar to that which has occurred in the present case. See R v Simpson (1992) 61 A Crim R 58; R v Close (1993) 31 NSWLR 742; R v Bolamatu [2002] NSWCCA 454; R v LWP [2003] NSWCCA 215; R v Keen [2004] NSWCCA 86; R v Jammeh [2004] NSWCCA 327.”

69 On behalf of the Crown it was submitted that his Honour’s intention was to reduce the head sentence by 50 per cent. However, it is somewhat unclear precisely what that submission means. The question remains, 50 per cent of what? For example, no part of any of the sentences is 50 per cent of the maximum prescribed penalty for that offence. All that is clear is that his Honour equated in every case the non-parole period and the balance of the term.

70 The Crown submitted that having regard to what is described as "the amelioration of the aggregate term to 50 per cent of the starting point sentence and a further amelioration of the individual non-parole periods to 50 per cent rather than 75 per cent of the individual sentences", very substantial weight, including possibly an element of double counting, was given to the "special circumstances" that were found: see R v Cramp [2004] NSWCCA 264 per Spigelman CJ at [34]. It was further submitted that the principle of totality required the learned trial judge to set individual sentences and then consider the aggregate term and aggregate non-parole period to ensure that both were appropriate to the totality of the criminality for which WC was to be sentenced. The Crown submitted that his Honour intended to set the ratio of the aggregate non-parole period to the aggregate term at approximately 83 per cent, which is what he did.

71 It does not appear to me, however, that the result achieved by his Honour’s approach in this case is the one that he intended. In my opinion, some other penalty is warranted in law and should have been passed.

72 As I understand his Honour’s reasons, he intended to bring about the result that the non-parole period was 50 per cent of the head sentence. That was understandable in view of the strong case for a finding of special circumstances that he identified. As is often the case where the Court must sentence for multiple offences, there can be no mathematical precision in achieving the overall result required by the application of the principle of totality and a finding of special circumstances, on the one hand, and the need to impose appropriate sentences for each individual offence, on the other hand.

73 There is no warrant to interfere with the effective head sentence of 8 years and 6 months. However, the effective non-parole period should be reduced from 7 years to 5 years. This does not fully reflect his Honour’s intention of a 50 per cent reduction. In my opinion a lower non-parole period would not adequately reflect the criminality of the long course of offending behaviour. Furthermore, although the community and WC would benefit from a lengthy period of supervision on parole, by force of reg 216(1) of the Crimes (Administration of Sentences) Regulation 2001, his supervision on parole could not extend beyond three years.

74 The effective non-parole period I have indicated is best achieved by quashing the sentences on counts, 5, 6 and 7 and substituting the following:

(a) Count 5: a non-parole period of 12 months from 2 December 2009 to expire on 1 December 2010 with a balance of term of 12 months from 2 December 2010 to expire 1 December 2011.

(b) Count 6: a non-parole period of 6 months from 2 December 2010 to expire on 1 June 2011 with a balance of term of 3 years and 6 months from 2 June 2011 to expire on 1 December 2014.

75 In the matter of GAC I would dismiss the appeal.

76 In the matter of WC I would make the following orders: -

76.1 The appeal against conviction is dismissed.

76.2 Grant leave to appeal against the sentences imposed; allow the appeal in part.

(a) On count 5 sentence the appellant to a non-parole period of 12 months from 2 December 2009 to expire on 1 December 2010 with a balance of term of 12 months from 2 December 2010 to expire 1 December 2011.

(b) On count 6 sentence the appellant to a non-parole period of 6 months from 2 December 2010 to expire on 1 June 2011 with a balance of term of 3 years and 6 months from 2 June 2011 to expire on 1 December 2014.

*******

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Citations

GAC v Regina, WC v Regina [2007] NSWCCA 287

Most Recent Citation

CPW v R [2009] NSWCCA 105

Cases Citing This Decision

3

Kalache v R [2011] NSWCCA 210

Kwon v R [2011] NSWCCA 58

CPW v R [2009] NSWCCA 105

Cases Cited

15

Statutory Material Cited

2

R v Livermore [2006] NSWCCA 334

Libke v The Queen [2007] HCA 30

M v the Queen [1994] HCA 63

CITATION:	GAC v Regina, WC v Regina [2007] NSWCCA 287
HEARING DATE(S):	27 July 2007
JUDGMENT DATE:	10 October 2007
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 2; Harrison J at 3
DECISION:	In the matter of GAC; appeal dismissed. In the matter of WC; appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal allowed in part. Sentences imposed in respect of counts 5, 6 and 7 quashed. See paragraph 76.3 for new sentences imposed. A NON-PUBLICATION ORDER APPLIES TO THIS JUDGMENT.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction and sentence - whether evidence of police interview of complainant in 1995 wrongly admitted – whether probative value outweighed by prejudice to accused – relevance of delay in complaint – no direction sought by counsel for accused – Crown address – whether improper – no criticism by trial judge – no request for remedial direction – whether verdict unreasonable having regard to delay in complaint – whether jury should have had reasonable doubt having regard to evidence contradicting complainant – more than inconsistence or contradiction required – complainant's evidence not demonstrably or arguably unreliable or incredible – jury's verdict plainly open – CRIMINAL LAW – sentence – accumulation – head sentence reduced by fifty per cent – failure to give effect to special circumstances – non-parole period reduced from 7 years to 5 years
LEGISLATION CITED:	Crimes Act 1900 - ss 61E(1A), 61I, 61M(1), 66A, 66C(2) Crimes (Administration of Sentences) Regulation 2001 - reg 216(1)
CASES CITED:	Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Chidiac v The Queen (1990) 171 CLR 432 Jones v The Queen (1997) 191 CLR 439 Libke v The Queen [2007] HCA 30 Livermore v R [2006] NSWCCA 334 M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454 Palmer v The Queen 66 ALJR 270 R v Heather May Attard [2004] NSWCCA 376 R v Cramp [2004] NSWCCA 264 R v Dellapatrona (1993) 31 NSWLR 123 R v LWP [2003] NSWCCA 215 R v Ralph and George (1988) 37 A Crim R 202 Whitehorn v The Queen (1983) 152 CLR 657
PARTIES:	GAC (Appellant) Regina (Respondent) WC (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3151 (formerly 2007/587); 2006/5082 (formerly 2007/1620
COUNSEL:	A Francis (Appellant GAC) C A Davenport SC (Appellant WC) P G Ingram (Respondent)
SOLICITORS:	S O'Connor, Solicitor for the Legal Aid Commission of New South Wales (Appellant GAC) W P O'Brien (Appellant WC) S Kavanagh, Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/31/0060
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	9 August 2006 (date of sentence)