GBB v The Queen

[2019] NSWCCA 296

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

GBB v R [2019] NSWCCA 296

Hearing dates:

22 November 2019

Date of orders:

19 December 2019

Decision date:

19 December 2019

Before:

Basten JA at [1];
Macfarlan JA at [67];
Campbell J at [68]

Decision:

(1)   To the extent necessary, grant the appellant leave to appeal against his convictions on two counts of sexual intercourse with a child under the age of 10 years.

 

(2)   Dismiss the appeal against the convictions.

 

(3)   Grant the appellant leave to appeal against the sentence imposed on him in the District Court on 14 June 2018.

 

(4)   Dismiss the appeal against sentence.

 

(5) If the grant of bail pending determination of this proceeding does not now cease pursuant to s 12(1)(b) of the Bail Act 2013 (NSW), bail is revoked.

 (6)   Direct that the appellant be taken into custody to serve the unserved balance of the sentence.

Catchwords:

CRIMINAL LAW – sexual intercourse with child under 10 – young offender – assault by halfbrother – retraction of complaint in cross-examination – finding that complainant’s court evidence unreliable – counsel not informed of finding of unreliability during cross-examination – whether procedural unfairness

 

CRIMINAL LAW – conviction appeal – judge alone trial – judge determining reliability of evidence – failure to direct herself as to unreliability of complaint

  CRIMINAL LAW – appeal – sentence – custodial sentence – offender a minor with intellectual disabilities – whether denunciation of offending inconsistent with rejection of general deterrence – whether judge took offender’s vulnerabilities into account

Legislation Cited:

Bail Act 2013 (NSW), s 12
Children (Criminal Proceedings) Act 1987 (NSW), s 6, 10, 15A
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 8
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 12
Crimes Act 1900 (NSW), s 66A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), s 133
Criminal Procedure Legislation (Amendment) Act 1990 (NSW), Sch 1, cl 2
Evidence Act 1995 (NSW), ss 165, 165A, 165B

Cases Cited:

BM v R [2019] NSWCCA 223
Bromley v The Queen (1986) 161 CLR 315; [1986] HCA 49
Devaney v R [2012] NSWCCA 285
Filippou v The Queen (2015) 256 CLR 47; [2105] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
HT v The Queen [2019] HCA 40
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Muldrock [2012] NSWCCA 108
R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 1990

Category:

Principal judgment

Parties:

BG (Applicant)
Regina (Respondent)

Representation:

Counsel:
E Ozen (Applicant)
B Hatfield (Respondent)

  Solicitors:
Randall Legal (Applicant)
Office of Director of Public Prosecutions (Respondent)

File Number(s):

2017/124695

Publication restriction:

The Children (Criminal Proceedings) Act 1987 (NSW), s 15A operates to prohibit publication of any information which could tend to identify the complainant, the offender or their siblings, or is likely to lead to the identification of any of them, in a way which connects them with the criminal proceedings.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 June 2018

Before:

Baly SC DCJ

File Number(s):

2017/124695

Judgment

1. BASTEN JA: On 10 November 2017 the Director of Public Prosecutions charged the appellant with two counts of sexual intercourse with a child under the age of 10 years, pursuant to s 66A(1) of the Crimes Act 1900 (NSW). The child was his halfsister. Both acts occurred in the course of the evening of ANZAC Day in April 2017.

2. At the time of the offending, the appellant was some weeks short of his seventeenth birthday. The trial, before Judge Baly sitting without a jury, took place a year later; the appellant was sentenced shortly before his eighteenth birthday.

3. At the commencement of the proceedings in this Court, counsel for the appellant sought an order closing the court to members of the general public, pursuant to s 10 of the Children (Criminal Proceedings) Act 1987 (NSW). That section provides a general rule, subject to the court directing otherwise, excluding the public from the place where criminal proceedings are being heard, in the case of “criminal proceedings to which a child is a party”: s 10(1). The appellant is no longer a child and therefore the statutory exclusion is not engaged by reason of the appellant’s age. Whilst the complainant is still a child, she is not a party to the proceedings.

4. There are circumstances in which the public interest in open justice may be overridden by the closing of the court to members of the general public, even in criminal cases. [1] However, in the absence of powerful considerations in favour of such an order, especially in criminal proceedings, the public interest in open justice will preclude the making of such an order.

   1. See HT v The Queen [2019] HCA 40 at [43] (Kiefel CJ, Bell and Keane JJ), [85] (Gordon J).

5. No submissions were made as to whether the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Orders Act) applied to such an application. It provides for suppression orders, a term defined to mean “an order that prohibits or restricts the disclosure of information (by publication or otherwise).”[2] It is at least arguable that the Act is engaged by an application to prevent people obtaining information as to the proceedings in the court by excluding them from the room in which the proceedings are being conducted. Even if it were not applicable, the statement in s 6 that “a primary objective of the administration of justice is to safeguard the public interest in open justice” would apply and the grounds for making a suppression order contained in s 8(1) would remain relevant considerations.

   2. Suppression Orders Act, s 3, suppression order.

6. In the present case, the Court was satisfied that the interests of both the appellant and the complainant were adequately protected by s 15A of the Children (Criminal Proceedings) Act, which prohibits the publication of material identifying the person, or likely to lead to his or her identification, in a way which connects the person with the criminal proceedings. [3] The restraint applies where the person was a child when the offence was committed, even if no longer a child at the time of the publication. [4] To assist in compliance with that obligation, neither the appellant’s name, nor that of the complainant is used in these reasons.

   3. Children (Criminal Proceedings) Act, s 15A(1) and (5).

   4. Ibid, s 15A(1)(a) and (4)(b).

Brief background to appeal

7. The prosecution alleged that, at about 8 o’clock in the evening on ANZAC Day 2017, the complainant was in the appellant’s bedroom at their home. The appellant described what happened in her own language which used the term “nuts” to refer to both her own genitals and the appellant’s penis. She identified each as their respective organs for urination (“wee wee”). Her evidence was that the appellant penetrated her vagina with his penis and then licked her vagina. In the course of these events, he told the complainant to lick his penis, which she did not do.

8. At home on the evening in question, were the complainant’s mother and father, together with four other young persons who were the children of the complainant’s father by a previous marriage, the oldest of whom was the appellant. The other three were his sisters, aged 11, 12 and 15 at the date of the alleged offending. All three of the complainant’s halfsisters gave evidence of complaints, as did her father and mother.

9. The mother gave evidence that a complaint had been made to her at 8 o’clock that evening when the complainant was on the toilet. She and the oldest halfsister took the complainant to Lismore Base Hospital that evening. The complainant and her mother stayed overnight at the hospital and saw paediatrician (Dr Schmidt) and a sexual assault counsellor the next day. The complainant’s father also gave evidence of an immediate complaint as the complainant came out of the toilet. He went to speak to the appellant, while the complainant’s mother took the complainant to the hospital.

10. The house in which the family were living had an upstairs flat used by the mother’s parents. They gave evidence that the mother had texted them at about 6am the following morning from the hospital and asked them to come. They also gave evidence of complaint by the complainant when they arrived at the hospital.

11. Senior Constable Kirby of Ballina Police conducted an interview with the complainant at 11.20am the following morning, 26 April 2017, when the complainant gave a detailed account of the conduct of the appellant.

12. There were elements of consistency and discrepancies within the complainant’s evidence. It is sufficient to note for present purposes that in the course of cross-examination of the complainant, counsel for the appellant obtained what he described as a recanting or retraction of part of her evidence at the very end of the cross-examination. The retraction related more clearly to the offence of cunnilingus.

Ground 1 – direction as to unreliable testimony

13. Section 133 of the Criminal Procedure Act 1986 (NSW) provides as follows:

133   Verdict of single Judge

(1)   A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2)   A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3)   If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

14. The trial judge identified an element of unreliability in the complainant’s testimony resulting from the retraction under cross-examination, which she took into account in assessing the complainant’s evidence. The appellant contended that in doing so the judge erred in law. Ground 1 read as follows:

“1. The trial judge erred in directing herself that the complainant’s in court testimony was unreliable pursuant to s 165 Evidence Act.”

15. The gravamen of the complaint was that the judge identified the elements of unreliability as attaching to the apparent retraction at the conclusion of the cross-examination. The appellant submitted that if there had been a jury, it would have been wrong to give the jury a warning of that kind, which was adverse to the interests of the accused. Accordingly, the judge erred in law in taking such a warning into account in her own assessment of the complainant’s evidence.

16. Sections 165 and 165A of the Evidence Act 1995 (NSW), so far as relevant, now read as follows:

165   Unreliable evidence

(1)   This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

…

(c)   evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

…

(2)   If there is a jury and a party so requests, the judge is to:

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

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

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

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

(4)   It is not necessary that a particular form of words be used in giving the warning or information.

(5)   This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child’s evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3).

…

165A   Warnings in relation to children’s evidence

(1)   A judge in any proceeding in which evidence is given by a child before a jury must not do any of the following:

(a)   warn the jury, or suggest to the jury, that children as a class are unreliable witnesses,

(b)   warn the jury, or suggest to the jury, that the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults,

(c)   give a warning, or suggestion to the jury, about the unreliability of the particular child’s evidence solely on account of the age of the child,

(d)   in the case of a criminal proceeding—give a general warning to the jury of the danger of convicting on the uncorroborated evidence of a witness who is a child.

(2)   Subsection (1) does not prevent the judge, at the request of a party, from:

(a)   informing the jury that the evidence of the particular child may be unreliable and the reasons why it may be unreliable, and

(b)   warning or informing the jury of the need for caution in determining whether to accept the evidence of the particular child and the weight to be given to it,

if the party has satisfied the court that there are circumstances (other than solely the age of the child) particular to the child that affect the reliability of the child’s evidence and that warrant the giving of a warning or the information.

(3)   This section does not affect any other power of a judge to give a warning to, or to inform, the jury.

17. In 2001 in R v Stewart,[5] Spigelman CJ identified a number of difficulties in ascertaining the proper scope of s 165 as then in force. Following the observations of Gleeson CJ and Hayne J in Papakosmas v The Queen,[6] he declined to obtain assistance in resolving such questions by analysis of the pre-existing common law. The Chief Justice continued:

“[9] The proposition that the pre-existing common law is unlikely to be of assistance in construing s 165 is reinforced by the scope of the matters contained within it.”

5. (2001) 52 NSWLR 301; [2001] NSWCCA 260.

6. (1999) 196 CLR 297; [1999] HCA 37 at [10].

18. Stewart was decided before the commencement of the original ss 165A and 165B in July 2002. The current provisions were substituted in 2007 so as to amalgamate the original two sections into the present s 165A. (The new s 165B deals with a different topic (delay in prosecution).) Section 165(6) was introduced with ss 165A and 165B.

19. In order to understand the relevance of these provisions in the present case, it is necessary to identify the “warning” given by the trial judge with respect to the complainant’s evidence.

20. The police interview with the complainant was admitted as her evidence-in-chief. The judge also received a transcript of the complainant’s evidence “as an aide to the recording.” [7] The judge noted that, on a number of occasions in the interview, the complainant described the conduct in question as “[the appellant] put his nuts in my nuts and he was trying to get me to lick his nuts and he was trying to get me, you, him to lick mine.” [8] The judge continued:

“At [Q46 in the interview] she was asked what nuts are, and she said, ‘Like, big, long things’, and she said, ‘like, when they're boys,’.”

When given a blank figure and asked to put a circle around the part she was referring to, she circled the genital area of a boy. The judge continued: [9]

“The drawing is a circle with a line at about the 7 o'clock position, and a small area of shading at about the 12 o'clock to 1 o'clock position. As she was doing her drawing, the complainant said, ‘And he has hair up there’ ….”

7.    Judgment, 26/04/18, p 7.

8.    Judgment, p 8; Q 40 of police interview.

9.    Judgment, p 8.

21. The complainant was “then given a picture of a girl, and she marked her ‘nuts’ by placing a circle in the genital area”.

22. In describing the complainant’s conduct during the video-recorded interview, the judge said that she “spoke in a loud and clear voice. There was a certain amount of animation, that I would describe as anger, in her voice.” [10]

    10.    Judgment, p 9.

23. During the trial, shortly before the critical passage in the cross-examination, said to involve a retraction of her evidence, at least with respect to count 2 (cunnilingus), the judge deactivated the closed circuit television and allowed the complainant to rest. During the short adjournment, counsel for the accused (Mr Watts) told the judge that “I’m at the end of the cross-examination now … I’m going to raise one further point that is raised in the ERISP in relation to one of the sisters, and then just put generally that [the accused] didn’t touch your wee wee and didn’t lick your wee wee, and then I propose to leave it.” [11] That course was taken after the break. Counsel commenced with questioning as to an earlier occasion, identified as follows, “a completely different day, some time before, did you say to [your sister] something like, ‘[he] put my knackers in his knackers.’” [12] She answered “Yes.” She further agreed that that had occurred some six weeks before the ANZAC Day incident. [13] The cross-examination then continued with a change in time which was not immediately telegraphed: [14]

    11.    Tcpt, 16/04/18, p 56(45)-(50).

    12.    Tcpt, p 57(32).

    13.    Tcpt, p 57(48).

    14.    Tcpt, p 58(1)-(37).

“Q. Now, … [the accused] didn't lick your wee wee, did he?

A. No.

Q. On Anzac day, he didn't touch you on the wee wee, did he?

A. No.

Q. Why did you say to the police officers that he did?

A. Well‑‑

HER HONOUR: I'm just going to come in here, Mr Watts.

Q. …, can I ask you, did [the accused] touch your wee wee?

A. Well, by accident.

Q. Did he lick your wee wee?

A. No.

Q. Did he put his nuts in your nuts?

A. Yes.

…

WATTS

Q. When you say his nuts, do you know any other name for that part of his body, …?

A. I don't know.

Q. I just asked about Anzac Day last year – so the day before you went to the hospital that night. Do you understand…

A. Yes.

Q. [The accused] didn't touch your nuts with his nuts on that day, did he?

A. No.

Q. Why did you tell the police the next day that he did?

A. I forgot.”

24. The cross-examination concluded at that point, but after a discussion with the prosecutor, leave was granted to Mr Watts to reopen his cross-examination. Six further questions were asked, the effect of which was that the complainant had seen the accused at the swimming pool on an occasion when his pants had fallen down as he came out of the pool and she could see that he had “a little bit of hair above his knackers”. [15]

    15.    Tcpt, p 59(30)-(49).

25. The judge then said there would be “another couple of questions, and then we’ll be finished”, to which the complainant responded: “Because I'm very, very tired.” [16] The further questioning extended over some six pages of the transcript. Most of it was inconclusive. The re-examination ended with the following exchange: [17]

“Q. Now, Mr Watts said to you that [the accused] didn't ever lick your wee‑wee. Remember him saying that to you? Did [the accused] ever lick your wee‑wee?

A. No.

Q. Mr Watts said to you that [that accused] didn't ever touch your nuts with his nuts. Did he do that? Did he touch your nuts with his nuts?

A. Yes.

Q. Was that the same day you went to hospital or a different day?

A. The same day.”

16.    Tcpt, p 60(8).

17.    Tcpt, p 65(35)-(44).

26. It would be difficult for this Court to assess these answers, given the double questions put to the witness. The understanding of the witness may have been clearer to a court observing the evidence being given.

27. Having referred to the evidence of the complainant in some detail, the judge noted the extent of the reliance placed on her evidence by the prosecution and said that, “[e]ssentially, if I do not accept the complainant’s evidence beyond reasonable doubt, I must find the accused not guilty.” [18]

    18.    Judgment, p 14.

26. The judge then turned to the defence case, noting that counsel had submitted that the denial in cross-examination “amounts to a retraction of her complaint about Count 2 and also, perhaps, to a lesser extent, Count 1.” [19] The judge identified the evidence as to the retraction and the concomitant inference that the complainant had made a false complaint to members of her family, to the medical personnel, and to police. [20] Noting the prosecutor’s submission that weight should be given to the police interview, rather than the evidence in cross-examination, the judge stated: [21]

“I find that the evidence given by the complainant in this Court should attract less weight than the evidence comprised by the answers the complainant gave to the police in her interview, which became the complainant's evidence-in-chief.”

She proceeded to give reasons for that finding.

19.    Judgment, p 15.

20.    Ibid.

21.    Judgment, p 16.

29. The judge explained her reasons in the following terms: [22]

“Firstly, the complainant gave her evidence-in-chief a day after the alleged events, at a time when the events of ANZAC Day were fresh in her mind. She gave her evidence in Court almost a year later, and at a time when the events of ANZAC Day were, obviously, less fresh. Secondly, it is clear to me that the complainant had been examined for some time when she made her retractions. Earlier in her evidence, she told the Crown Prosecutor that what she said in her interview was what [the accused] had done to her. It is clear that she had already watched her interview, although it is not clear, precisely, when that had taken place. …

Breaks were taken, and while I do not have precise times available to me, I do know that she spent the bulk of the first day of the trial in the witness room. I watched her become increasingly distracted. I saw the following behaviour: putting a blanket over her head, constantly drinking, looking around the room, and I noted, at page 23 of the transcript, that she put her hands over her ears.

After watching the interview, she was asked questions, during which she said that [the accused] had done the things she told the police about. The retractions came at a time towards the end of her cross-examination, a short time after which she volunteered ‘because I'm very, very tired,’…. Thirdly, I have already remarked upon the way in which the complainant gave her answers to police. She, it seems to me, was clear and adamant that the young person had put his nuts in her nuts and had licked her nuts. This was not a reluctant complainant. On the contrary, she was forthright and determined.

…

I give far less weight to what the complainant said in her unsworn evidence. I find that the retractions made in the complainant's evidence are not reliable. In making these observations and findings, I make no criticism whatsoever of the cross-examination, or the length of it.”

22.    Judgment pp 16-17.

30. The judge accepted the defence submission that some parts of the complainant’s evidence exhibited confusion. She continued: [23]

“It is abundantly clear to me that [the complainant] was not accurate as to timing. It is abundantly clear that she did conflate some events. However, again going back to the content of the police interview, I find that there was no confusion as to what the complainant said [the accused] did to her. On the contrary, she clearly states that he ‘put his nuts’ ‑ also described as his long thing’ ‑ in her ‘nuts’ or ‘long thing’. She is clear as to the fact that his ‘nuts’ or ‘long thing’ is his penis. She is clear that her ‘nuts’ or ‘long thing’ refers to her genitals. She is clear as to the fact that his ‘nuts’ were put into her ‘nuts’.

She is clear that he licked her ‘nuts’. The markings on the two drawings are clear. It is clear that she represents his penis going into her genitals and represents that he licked her genitals. I have no doubt, at all, that the complainant was both truthful and accurate in the account that she gave to police, that became her evidence-in-chief in this case.”

23.    Judgment, p 18.

31. It is the next passage in the judgment which became the subject of the challenge in ground 1 of the appeal. It should be set out in full and reads as follows: [24]

    24.    Judgment, pp 18-19.

“Before moving to other aspects of this case, I pause to consider whether to give myself a warning under s 165(A)(2) [sic] of the Evidence Act. It is submitted that I should warn myself:

‘That the evidence of the complainant may be unreliable because of the retractions made by the witness during her evidence and her inability to adequately explain why she had said those things that she later retracted as referred to above re the Murray direction.’

This is a reference to p 3 of the defence submission, insofar as directions are concerned. The submission then goes on to state:

‘This aspect of her evidence, when coupled with her limited ability to express herself due to her age means that there is a need for caution in determining whether to accept the evidence of the complainant, and for caution when determining what weight can be given to her evidence because it may be unreliable.’

I think there is merit to this submission. I think that the evidence of the complainant given in this Court could well be unreliable for the reasons I have given, and I warn myself, accordingly. Frankly, it is the version given to the police that was played as the complainant's evidence that I find reliable, for the reasons that I have given. I decline to give myself a warning as to the complainant's evidence-in-chief. As to the second part of the submission, I do not, in fact, think that the complainant did have a limited ability to express herself. For a five year old, I think she was quite articulate, and could express herself quite adequately.”

32. On one view, this reasoning is flawed: how can a warning as to unreliability effectively be taken into account after the evidence has been analysed and a conclusion reached as to reliability? On the other hand, the judge is only to give a warning under s 165A(2) if satisfied that there are circumstances that affect the reliability of the child’s evidence and that warrant the giving of a warning. Accordingly, the obligation to warn is not engaged until the judge herself has made that assessment. Similarly, the obligation to warn under s 165 depends on the judge’s satisfaction that the evidence is “of a kind that may be unreliable” (subs (1)) and that the qualification in subs (3) is not engaged.

33. The source of this dilemma is to be found in the awkward language of s 133(3) of the Criminal Procedure Act requiring a judge sitting without a jury to take a warning into account if the law requires a warning to be given to a jury in any such case. [25] However, the primary purpose of warnings, under the general law, is to alert a jury to a danger that evidence might be unreliable where the danger is not necessarily obvious to a person without experience in criminal law and trial procedure. [26] It may reveal a degree of conceptual confusion if s 133(3) required the judge to give herself a warning which is required because a jury, unlike the judge, does not have relevant experience in a particular area. [27] However, s 133(3), though awkwardly expressed, does not in terms require the judge to give herself the warning she would give to a jury. Rather, the judge is “to take the warning into account” in dealing with the matter. [28] Unlike subs (2), subs (3) does not prescribe matters to be contained in the judge’s reasons, although an absence of reasons regarding the subject matter of a potential warning may lead to an appeal on the ground that s 133(2) has not been complied with. [29] More importantly, s 133(3) is best read as involving an ellipsis: properly construed, what the judge must take into account is the subject matter of any required warning, that is, in this case, the potential unreliability of the complainant’s evidence and the particular reasons why it may be unreliable. Having identified a relevant source of unreliability, the judge must give consideration to the weight to be given to the particular evidence. If the judge undertakes that exercise, she will have complied with the obligation under s 133(3) in relation to the power to give a warning in accordance with s 165A. As explained in Filippou:

“[52] … Such directions are principles of law within the meaning of s 133(2) and therefore, in the case of trial by judge alone, must be applied. But it is sufficient if a judge’s reasons show either expressly or by implication that they have been so applied.”[30]

25. Originally s 33 inserted by the Criminal Procedure Legislation (Amendment) Act 1990 (NSW), Sch 1, cl 2; the legislative history for the bill is uninstructive: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 1990 at 9160-9161.

26. See generally, Brennan J in Bromley v The Queen (1986) 161 CLR 315 at 324; [1986] HCA 49; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [52] (French CJ, Bell, Keane, Nettle JJ).

27. But see Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27].

28. Fleming at [31].

29.    Fleming at [32], [33]; Filippou at [81] (Gageler J).

30. See also Gageler J at [81].

34. The appellant’s submissions on the appeal relied on two propositions. The first was that the warning as to unreliability sought by the accused at trial did not relate to her recantation in her oral evidence at the end of the cross-examination, but rather her evidence as a whole. Secondly, the warning given under the general law was never intended to apply to evidence favourable to the accused, but rather to reliance upon evidence unfavourable to the accused, with the risk of an unfair trial and a miscarriage of justice in the event of conviction.

35. Both propositions may be accepted; they do not, however, demonstrate that there has been a miscarriage of justice in this case for the purpose of s 6(1) of the Criminal Appeal Act 1912 (NSW). A judge sitting alone is not required by law to assess the evidence differently from an assessment which would be made by a jury if there were one. Accordingly, the judge was required to assess the reliability of both the evidence-in-chief of the complainant (being the police interview) and the evidence given in cross-examination. She was required to consider whether elements of that evidence were unreliable, and if so, to determine what weight to give to it. It is entirely artificial to excise the obligation to take a warning into account from that overall consideration. The prosecutor submitted that the evidence-in-chief was reliable, and the recantation not; the accused submitted that the recantation must have given rise to a reasonable doubt as to the reliability of the evidence-in-chief. The fact that the accused did not suggest that the recantation was unreliable did not mean that the judge was obliged not to consider its reliability.

36. There are three further matters which are relevant to ground 1. First, there is a factual consideration: the trial judge had heard other evidence of early complaint from the complainant’s father, mother, and three halfsisters. She was entitled to take that material into account, as she did, in considering the reliability of the complainant’s evidence.

37. Secondly, although the appellant submitted that a warning as to unreliability was required by law if there had been a jury, it is not clear that that was the case. Ground 1 in the notice of appeal referred to a warning under s 165; however, s 165(6) removes the obligation, and indeed the power, of the judge to give a warning under that provision in relation to the reliability of a child’s evidence which “may be affected by the age of the child.” Such a warning may only be given in accordance with s 165A(2) and (3). Section 165A(2) and (3) do not impose an obligation to give a warning in particular circumstances. It is apparent that the second element of the warning sought by counsel for the accused fell into that category.

38. On one view, the first warning sought did not come within the category of warnings “affected by the age of the child”, because it asserted unreliability based on the retractions in the witness box. The judge, inevitably, dealt with that specific issue: she considered each of the matters identified in s 165(2). Nothing would have been advanced had she expressed herself in that respect in the terms of a warning she would have given had there been a jury, where the assessment she in fact undertook would have been in accordance with any such warning.

39. Although the issue was not explored in argument, it is by no means easy to identify the scope of s 165(6) and s 165A. If a child’s evidence is said to be unreliable because “affected by the age of the child”, it must mean more than unreliability “solely on account of the age of the child”, or any warning would be prohibited by s 165A(1)(c). However, when a particular warning will not fall within s 165(6) will be difficult to determine, because age will usually be a significant factor and thus affect reliability.

40. Thirdly, it is important to recall that the question on appeal is not one of technical compliance with a statutory provision, but whether any arguable failure to comply has given rise to a miscarriage of justice. As explained by Brennan J in Bromley: [31]

“The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer[32] ‘partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind’ …. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick C.J. said in Kelleher[33] :

‘The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play.’”

Where, in a judge alone trial, the reasoning of the judge reveals that she undertook precisely the assessment which would have been required by the jury in accordance with an appropriate warning, had there been a jury, it is not possible to conclude that there has been a miscarriage of justice.

31.    Bromley at 324.

32. Regina v Spencer [1987] AC 128 at 135.

33. Kelleher v The Queen (1974) 131 CLR 534 at 543; [1974] HCA 48.

41. For all of these reasons, ground 1 must be rejected.

Ground 2 – procedural unfairness

42. As discussed in the course of oral submissions, the substance of this ground was obscure. On one reading, it implied that the judge, having asked questions by way of clarification, was bound to accept the answers; alternatively, she was not entitled to reject the answers on the basis that the complainant was tired when she was answering the questions.

43. The written submissions suggested a third possibility, briefly identified as follows: [34]

“If the trial judge had reached a conclusion, at this point, that the complainant was lacking the capacity to answering the questions, including those asked by the trial judge, as a matter of procedural fairness further questioning ought to have been adjourned.”

34.    Appellant’s written submissions, 26 August 2019, par 27.

44. The appellant contended orally that the judge should have stopped the proceedings at that stage to allow the child a break and “raised with the parties during that break, her concern that the child’s answers were tainted because the child was struggling, she was tired.” [35] However, there was no material to support the submission that the trial judge at any stage during the complainant’s evidence reached a conclusion that the complainant lacked the capacity to answer questions. It is clear that, as described in the judgment,[36] she took careful account of the state of the complainant whilst giving evidence. She had concerns as the evidence proceeded that the complainant was losing concentration and growing tired, there being no challenge to her observations in that regard. There were several adjournments in fact granted in the course of the complainant’s evidence; nothing was said on appeal to support the proposition that the failure to grant a further adjournment involved procedural unfairness to the accused.

    35.    Tcpt, 22/11/19, p 12(30).

    36. See [29] above.

45. Indeed, so far as a further adjournment was concerned, the retraction was to be found in the answers to the ninth and tenth questions asked after the commencement of that period of evidence and was followed seven questions later by a further adjournment. The witness described herself as “very, very tired” after the second adjournment. The period between rests was probably less than 10 minutes. There was no realistic possibility of a further adjournment.

46. The oral submissions also approached the matter partly on a different basis, namely that the trial judge should have informed counsel if she proposed to reject the retractions elicited in cross-examination, confirmed in answer to questions from the judge, and in part repeated in re-examination. The point was raised as follows: [37]

“So, yes, it is a procedural fairness point and it’s a point that really requires me to rely on, as your Honour puts it, a conflation of propositions, that there’s a point at which a trial judge is making observations as proceedings go on. She later makes clear that as that was occurring she is concerned, she is so concerned that in the trial she asks questions of the witness but at no point is the power to ameliorate that problem by pausing the proceedings or indeed raising with defence counsel that those answers elicited might have the problem that those answers were elicited simply because the child was tired and may not have understood which would have given defence counsel an opportunity to address it in another way.”

37.    Tcpt, p 15(5).

47. The conflation problem was that the ground assumed that the judge had reached a conclusion that the retractions were unreliable at or about the time that they were made; however, that conclusion could only be established by reference to the reasoning in the judgment. In any event, that reasoning did not demonstrate that the trial judge had formed any view as to how she would deal with the complainant’s evidence when it was given. It is patently implausible that she had formed a firm view when the brief retractions occurred, which were inconsistent with the entirety of the earlier evidence given by the complainant. Furthermore, as the judge knew at that time, there were several more days of evidence, together with addresses, yet to come.

48. There was no substance in the complaint of procedural unfairness.

Grounds 3 and 4 – unreasonable verdicts

49. Grounds 3 and 4 in the notice of appeal alleged that each verdict was unreasonable. If separately pursued, those grounds would have raised important questions as to the manner in which such grounds operate with respect to a judge alone trial, where detailed reasons have been given. [38] As it was, these grounds were said to depend entirely upon success with respect to grounds 1 and 2. [39] Those grounds having failed, grounds 3 and 4 must be rejected.

    38. Fleming at [26].

    39.    Tcpt, p 20(5).

Conclusion – verdicts

50. To the extent necessary, the appellant should have leave to appeal from his conviction on the two counts of sexual assault; the appeal against the convictions should, however, be dismissed.

Appeal against sentence

51. On 14 June 2018 the trial judge sentenced the appellant to an aggregate sentence for the two offences comprising a total term of 2 years and 1 month, commencing 13 June 2018 and expiring 12 July 2020. A non-parole period was specified of 1 year, 14 days to expire on 26 June 2019. Having lodged an appeal, the appellant was granted bail on 30 July 2018 and has enjoyed conditional liberty since that day.

51. In her sentencing judgment the trial judge gave careful and detailed attention to the appellant’s background and educational history. She also noted that he had been diagnosed with intellectual and psychological conditions, adopting a passage from the report of a clinical psychologist, Ms Kathleen Davey, in the following terms: [40]

“[The appellant’s] profile can be summarised as an adolescent with three lifelong and overlapping neurodevelopmental conditions (intellectual and developmental disabilities) who has lifelong impairments impacting on his functioning, socially, academically and vocationally. His profile appeared consistent with Autism Spectrum Disorder, associated with Attention Deficit/Hyperactivity Disorder (level 1 requiring support in social communication, and level 1 requiring support for restricted, repetitive behaviours) with accompanying intellectual impairment.”

40.    Judgment on sentence, p 10.

53. Although the appellant did not give evidence, the judge was satisfied that his disabilities had materially contributed to his offending conduct. [41] With respect to sentencing, she stated: [42]

“While it is necessary to emphasise rehabilitation as an important sentencing purpose, it is in the end difficult to make any real assessment as to the likely prospects of this young person’s rehabilitation. … It is hoped that, with treatment and education as recommended by Ms Davey, his prospects are good.”

41.    Judgment, p 11.

42.    Judgment, p 13.

54. After being taken to the sentencing decision of R v Muldrock, [43] which the judge considered of limited assistance, the judgment continued:

“This young person must be sentenced for what he did, and he must be sentenced in light of the particular circumstances that are relevant to him. In the result, the gravity of the offence involving penile penetration dictates that the young person must be sentenced to imprisonment, in my view.

The community regards the sexual abuse of a young child as abhorrent, and while I do not place weight upon general deterrence, it is still important, in my view, to denounce the young person’s conduct in the strongest of terms. I cannot accept that a community-based sentence is appropriate.

The sentences that I do impose do elevate rehabilitation over deterrence, and that is why they are sentences that bear little relationship to the maximum available penalties. While it is the case that the young person’s moral culpability is reduced for these offences, I cannot accept that the offence whereby the young person penetrated the genitalia of a four year old with his penis, such that he caused her an injury, is appropriately to be dealt with in any way other than by imposition of a full time custodial sentence.

In relation to both counts, I consider that the s 5 threshold [44] is crossed. Although the aggregate sentence that I intend to impose will be one that does exceed two years by a very small amount, I want to make it clear that Count 1, the act of penile intercourse, will have an indicative sentence of two years, but I would not regard it as appropriate to impose a sentence other than a full time custodial one, simply because of the seriousness of that count.

If Count 2 stood on its own, I would have considered alternatives to full time custody. There are two offences here, and I must sentence for each offence, and then consider the issue of accumulation. Both offences were committed at the one time, and I infer that they were probably minutes or seconds apart. I consider it appropriate to impose a very slight degree of accumulation.”

43. [2012] NSWCCA 108.

44. Referring to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring consideration of all possible alternatives before imposing a penalty of imprisonment.

55. The notice of appeal identified a single ground with respect to the sentencing, namely that the judge erred by finding that “the weight to be given to the principle of denunciation was not ameliorated by the applicant’s mental illness.” The written submissions in support of that ground contended that there was inconsistency between the correct rejection of general deterrence as having a significant role and the adoption of the need to denounce the conduct in the “strongest of terms.” Referring to Devaney v R,[45] it was submitted that both general deterrence and denunciation ought to have been significantly attenuated.

    45. [2012] NSWCCA 285.

56. It is true that in Devaney Allsop P addressed the role of mental illness which contributes to the commission of an offence as reducing the offender’s moral culpability and therefore the weight to be placed upon denunciation, punishment and general deterrence. [46] There was, as the President noted, well established authority for that principle. However, denunciation may take different forms. Some judges in imposing sentences for serious crimes consider it appropriate to use strong language to express the sense of moral outrage likely to be felt by members of the community in relation to such offending. It should not be assumed, however, that such expressions are necessarily reflected in the punishment imposed. Where circumstances properly demand an amelioration of the effect to be given to such statements, the question will be whether the punishment imposed was wrongly affected by the statement of denunciation.

    46.    Devaney at [30], [64], [81], [90], and also [147] (Campbell J).

57. In the present circumstances, it is not possible to draw the inference that such a connection arose. The judge correctly noted that the sentence bore little relationship to the maximum sentence for the offences, being life imprisonment. She also noted, correctly, that the standard non-parole period of 15 years did not apply to a young person. Further, she had regard to the principles set out in s 6 of the Children (Criminal Proceedings) Act. Finally, it is clear that in identifying an indicative sentence of 2 years’ imprisonment with respect to the count involving penile penetration, she gave full weight to the psychological and developmental conditions which contributed to the offending.

58. Reading the sentencing judgment as a whole, the appropriate conclusion is that, although she thought it appropriate to publicly denounce the conduct in the strongest of terms, that step did not lead to error in the quantification of the punishment imposed.

59. Further, while acknowledging that the trial judge referred to all the relevant considerations, the appellant submitted that “more was required”, referring to the decision of this Court in BM v R. [47] When pressed as to the error alleged, counsel submitted that “this was not a case that compelled a full-time custodial result” and, particularly, in circumstances where the appellant had been rejected for a special diversionary program because he was “too vulnerable”. [48]

    47. [2019] NSWCCA 223; tcpt 22/11/19, p 21(5).

    48.    Tcpt, p 22(10)-(15).

60. There were two elements to this submission. The first suggested that the objective seriousness of the conduct did not warrant fulltime imprisonment; the second, that if the appellant’s vulnerability prevented his placement with the Community Justice Program operated by Family and Community Services (NSW) it must also have rendered him unsuitable for fulltime imprisonment.

61. Neither limb of the submission can be accepted. As noted in BM, the Court will be slow to interfere with the assessment by the sentencing judge of the objective seriousness of the conduct. Particularly is that so in circumstances where the reasoning of the judge explains the basis of the assessment and there is no challenge to that reasoning. It cannot be said that treating the offence as one demanding fulltime imprisonment was manifestly unreasonable; patently, it was not.

62. The report from the Director of the Community Justice Program depended on the conclusion that (i) the CJP “does not have appropriate accommodation services to support [the appellant’s] needs without putting him at significant risk of harm” and (ii) his “needs in the community, vulnerability and age” rendered him unsuitable for the intensive residential service which might otherwise have been appropriate. It is by no means clear what elements of the appellant’s vulnerabilities and age rendered him unsuited to the Community Justice Program. The statements of the Director, contained in Ex 3 in the sentencing proceedings, were briefly adverted to by counsel in address, but not on the basis upon which reliance is now placed. [49]

    49.    Tcpt, 14/06/18, p 15(5).

63. There is no doubt that the sentencing judge understood the issues militating against a sentence of fulltime custody and, separately, in favour of a sentence of less than 2 years, which could have been suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act1999 (NSW), as in force at the date of the sentencing. There is no doubt that the sentencing judge was conscious of the options available to her, the objective circumstances of the offending and the subjective circumstances of the offender. In circumstances where the sentence was not said to be manifestly excessive, nor could it be, there is no basis for intervening.

64. The appellant should have leave to appeal against the sentence imposed on him, but the appeal must be dismissed.

65. It follows that the appellant must now be returned to custody to serve the outstanding portion of the non-parole period imposed upon him in the District Court.

66. The Court makes the following orders:

1. To the extent necessary, grant the appellant leave to appeal against his convictions on two counts of sexual intercourse with a child under the age of 10 years.

2. Dismiss the appeal against the convictions.

3. Grant the appellant leave to appeal against the sentence imposed on him in the District Court on 14 June 2018.

4. Dismiss the appeal against sentence.

5. If the grant of bail pending determination of this proceeding does not now cease pursuant to s 12(1)(b) of the Bail Act 2013 (NSW), bail is revoked.

6. Direct that the appellant be taken into custody to serve the unserved balance of the sentence.

67. MACFARLAN JA: I agree with Basten JA.

68. CAMPBELL J: I agree with Basten JA.

**********

Endnotes

Decision last updated: 19 December 2019