GG v The Queen

[2010] NSWCCA 230

Reported Decision: 204 A Crim R 125

New South Wales

Court of Criminal Appeal

CITATION:	GG v Regina [2010] NSWCCA 230 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 June 2010
JUDGMENT DATE:	12 October 2010
JUDGMENT OF:	Beazley JA at 1; Buddin J at 119; Barr AJ at 120
DECISION:	1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted; 3. Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal – conviction – warning to jury – delay between offence and complaint – whether trial judge failed to properly direct the jury in relation to delay in complaint - CRIMINAL LAW – appeal – conviction – warning to jury – danger of convicting on uncorroborated evidence of complainant where such evidence cannot be adequately tested because of passage of time – whether trial judge should have warned the jury in accordance with Longman v R [1989] HCA 60, (1989) 168 CLR 79 - CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Criminal Procedure Act 1986, s 294AA - CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Evidence Act 1995, s 165B - STATUTORY INTERPRETATION – Criminal Procedure Act 1986 – Evidence Act 1995 – transitional provisions
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Rules, r 4 Criminal Procedure Act 1986 Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 Criminal Procedure Regulation 2005 District Court Rules 1973 Evidence Act 1995 Evidence Amendment Act 2007
CATEGORY:	Principal judgment
CASES CITED:	AJB v R [2007] NSWCCA 51; 169 A Crim R 32 Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 B v R [2008] NSWCCA 85 Crofts v R [1996] HCA 22; (1996) 186 CLR 427 Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566 DPP (NSW) v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46 Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540 Gould v Brown [1998] HCA 6; 193 CLR 346 Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 James v Robinson [1963] HCA 32; (1963) 109 CLR 593 Longman v R [1989] HCA 60; (1989) 168 CLR 79 MJL v Regina [2007] NSWCCA 261 Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435 Power v R [1974] HCA 26; (1974) 131 CLR 623 R v Adamcik (NSWCCA, 22 November 1996, unreported R v Hull (1989) 16 NSWLR 385 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Nicolaidis (1994) 33 NSWLR 364 R v Pearson (NSWCCA, 5 March 1996, unreported) R v Pollock [2005] NSWCCA 316 R v Taylor [2003] NSWCCA 194 Regina v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 Regina v Moon [2000] NSWCCA 534; 117 A Crim R 497 TJ v R [2009] NSWCCA 257 Truong v R [2004] HCA 10; (2004) 223 CLR 122
TEXTS CITED:	Archbold, Criminal Practice Pleading and Evidence Halsbury’s Laws of England 4th Ed vol 10
PARTIES:	GG (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 1997/6828
COUNSEL:	H Dhanji (Appellant) P Miller (Respondent)
SOLICITORS:	William O'Brien and Ross Hudson Solicitors (Appellant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1997/6828
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	23 June 2009

- 36 -

CCA 1997/6828

BEAZLEY JA
BUDDIN J
BARR AJ

12 October 2010

GG v Regina

Judgment

1 BEAZLEY JA: On 17 April 2009, the appellant was convicted by a jury of 3 counts of sexual intercourse without consent with a person under the age of 16 years contrary to the Crimes Act 1900, s 61D(1) and 2 counts of indecent assault on a child under the age of 16 years contrary to the Crimes Act, s 61E(1). The appellant was sentenced by the trial judge to a total sentence of 3 years 9 months with a non-parole period of 2 years 3 months.

2 The appellant appeals against conviction and seeks leave to appeal against sentence. The appellant advanced two grounds on the appeal against conviction: (1) that the trial judge erred in failing to adequately warn the jury in accordance with Longman v R [1989] HCA 60; (1989) 168 CLR 79; and (2) that the trial judge erred in failing to properly direct the jury in relation to the delay in complaint. On the appeal against sentence, the appellant contended that his Honour erred in failing to take into account the effect of cumulation.

3 The principal issue raised by the appeal against conviction is whether this trial was governed by the provisions of the Criminal Procedure Act 1986, s 294AA, introduced by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 and which came into force on 1 January 2007. Pursuant to that provision, a trial judge must not warn a jury that complainants as a class are unreliable witnesses.

4 The appellant contended that this provision did not apply: see the Criminal Procedure Act, Sch 2, Pt 12, cl 51 (the Criminal Procedure Act transitional provision). The Crown accepted that pursuant to the terms of the transitional provisions, s 294AA did not apply to this trial.

5 However, it contended that the effect of amendments to the Evidence Act 1995, s 165B introduced by the Evidence Amendment Act 2007, which commenced on 1 January 2009, was that a trial judge could, but was not obliged to, give a warning to the jury of the disadvantages to an accused person due to delay. The Crown submitted that in accordance with the Evidence Act, Sch 2, Pt 3, cl 17 (the Evidence Act transitional provision), s 165B applied to this trial. Whether or not s 165B applied depends upon the meaning of “commencement of proceedings” in the amended s 165B.

6 The Crown contends alternatively that the Criminal Appeal Rules, r 4 applied in any event, as the appellant had not sought a Longman direction at trial.

Background facts

7 The offences of which the appellant was convicted were committed against his stepdaughter between 1 March 1984 and 15 February 1986 when she was aged between 12 and 14. The complainant gave evidence that there were other occasions of sexual intercourse. She also gave evidence of an occasion in 1985 during a family picnic at Nundle State Forest when the appellant engaged in sexual activity with her.

8 In addition to the charges of which he was convicted, the appellant had been charged with 4 other counts of sexual intercourse and one count of sexual intercourse with a child under 16 and under authority. This last matter was alleged to have occurred in late 1987. The jury returned a verdict of not guilty in respect of these 5 further matters.

9 At the end of 1987, before she turned 15, the complainant spoke to a friend and told her that her stepfather was sexually molesting her. The friend corroborated this evidence. The friend said that she informed her own mother about the complainant’s allegation.

10 In early February 1988, following a complaint to DOCS, the complainant was interviewed at school by a DOCS case worker, in which she gave a history of sexual abuse by the appellant. The case worker informed the complainant’s mother on the same day. The complainant’s mother said that when she confronted the appellant with the allegation later that day, he “lowered his head” and she told him to leave. He said “I’m sorry”.

11 Shortly afterwards, the appellant wrote the following letter to the complainant:

“If you are reading this it is because you do not wish to talk to me. For that I don’t blame you and I think, or possibly I don’t, understand how you must feel.

I really don’t suppose that any words that I say can express my feelings of utter guilt and shame that I feel and the remorse for my actions that I am presently feeling.

… I wanted to treat you as my daughter and give you … as good a start in life as possible. How I’ve failed. Even if I had deliberately set out to try and make our years together tough for you I probably couldn’t have done a much better job.

I feel now as though a tremendous weight has been lifted off my shoulders now that you have been able to share your burden with someone else and in particular the person most important in your life Mum. Mum has many fine qualities not the least is her potential for understanding and feeling compassion for others. This has come as a severe shock to [her] and I ask you to also show compassion for her. I’m sure you both need to talk and come to terms with life at this stage and find strength within each other.

I don’t ask for and I don’t expect forgiveness from you … because what has been done cannot be undone. I have in the eyes of society and the law done an extremely unforgivable thing. I accept without question my wrongs and will shoulder all blame and accept also without question the punishment that society dictates that I must bear.

If you ever feel it in your heart to forgive me I will know you are a much better person than I could ever be.

I just wish that what happened could somehow be erased and the love that I should have felt for you … did not get spoilt and tainted like it did.”

12 The appellant did not return to the family home and left the district to live in Queensland.

Explanation of delay

13 The complainant complained to the police in 1996 and the police took statements from the other family members at that time. The evidence of the family members is referred to in more detail below. The appellant, who was then living in Cairns, was spoken to by police but he refused to engage in a formal interview. A summons was issued out of the Local Court at Tamworth and the appellant appeared pursuant to that summons on a number of occasions. He appeared at his committal in June 1997 and was committed for trial on a date to be fixed. However, he did not attend at his trial. The Court records showed that correspondence, supposedly directed to the appellant at an address in Queensland had been returned, unopened, to the Court. A bench warrant was subsequently issued.

14 As it turned out, the initial summons and the warrant had a different name and a different date of birth from the appellant’s. The person named in the warrant had died, which appears to explain why no steps were taken to execute the warrant. In 2008, the complainant ascertained that the appellant was still alive and she again contacted the police. following which the appellant was brought to trial. There was no suggestion during this period that the appellant had deliberately evaded police.

The trial and the presentation of the indictments

15 The matter had been originally called over in the Tamworth District Court in July 1997. It was called over on three occasions between November 1997 and January 1998. It was then listed for trial at Tamworth District Court on 6 April 1998. That was the occasion when the bench warrant was issued.

16 After the appellant’s arrest in 2008, the matter was listed for mention at the Sydney District Court. The matter was then listed before the Court on a number of occasions, including for bail applications and for the return of subpoena. On 15 December 2008 the matter was listed for trial, but was adjourned by consent and stood over for trial on 23 March 2009.

17 It appears that the first indictment prepared in the matter was signed and filed in the District Court on 26 November 2008 together with a notice of readiness to proceed in the District Court. The notice of readiness to proceed was filed pursuant to the Criminal Procedure Regulation 2005, cl 7(2). It stated that the prosecution was ready to proceed and a copy of the indictment was attached to the notice, in accordance with the Criminal Procedure Act, s 129. A copy of the notice of readiness to proceed and the signed indictment were forwarded to the appellant’s solicitor’s office under cover of a letter dated 26 November 2008.

The evidence at trial

18 In addition to the evidence of the complainant, the letter which is set out above and the evidence of the friend to whom the complainant complained in 1987, evidence was also given by the complainant's mother, the DOCS case worker, the complainant’s two brothers, as well as family friends and officers who interviewed the appellant in 1997 (when he confirmed that he wrote the letter).

19 The appellant gave evidence and also called one witness in support of his defence.

20 The complainant gave evidence of each of the counts upon which the appellant was charged.

21 The complainant’s friend gave evidence that there was an occasion, when she was with the complainant, when the complainant started to cry and said that her stepfather had sexually assaulted her for a number of years. The complainant told her that she was frightened to tell her mother about it. The friend told her own mother about it and the complainant stayed with the friend’s family for about a week at this time.

22 The matter came to the attention of DOCS in February 1988, when a complaint was made that the complainant had been sexually assaulted by her mother’s de facto's partner and she was frightened to stay at home when her mother was not there. The DOCS case worker interviewed the complainant at her school and obtained a history of abuse “over four years, last time day of week and before school finished [sic]”. According to the note taken by the case worker, the abuse took the form of:

“Sexual intercourse, fingering, fondling, dry intercourse, fellatio, cunnilingus … Once/twice a week over the first few years, then less number of assaults but worse in type.”

23 The complainant’s brother, D, gave evidence that after DOCS had become involved, the appellant came to his room, woke him up and said that he wanted to talk about “What I've done to your sister and your family”. D asked him what he meant and the appellant replied “About assaulting your sister and about what I’ve done to the family”. The appellant told D that he knew that what he had done was wrong, that he should not have done it, that he was sorry for it and that he wanted to get help.

24 The complainant’s younger brother, M, gave evidence that after the appellant left the house in 1988, he spoke to the appellant, who admitted that he had “been doing things” to the complainant. M asked him what he had been doing and the appellant said that he had been “touching the complainant in a sexual way, putting his hands on her genitals and doing stuff that he shouldn’t”. M also gave evidence of an occasion in about 1986 or 1987 when the locks on the doors in the house were being replaced and there had been an argument when the complainant had asked for a lock to be placed on her door, but the appellant had refused to do so.

25 The complainant’s mother gave evidence that, having formed a relationship with the appellant, she and her children lived with him and moved to a residence in Tamworth in about 1979. Initially, all the children occupied a room next to the room she and the appellant occupied. Within about 12 months, a “sleep out” was converted into a separate room for the complainant.

26 The complainant’s mother gave evidence of a family tradition of having take-away fish and chips on a Friday night and that one of or other of the children would usually accompany the appellant in picking it up. The complainant sometimes complained that she did not want to go with the appellant.

27 The complainant's mother also gave evidence of confronting the appellant with the allegation of sexually assaulting the complainant which is referred to above.

28 The complainant’s mother also gave evidence of an occasion when there was a family trip to the Nundle State Forest together with another family. She recalled that during this outing, all of the children had gone off in different directions and that during this period the appellant was not with her at the campsite.

29 C, an employee of the business run by the appellant, gave evidence that she had gone on an outing to the Nundle State Forest with her then partner, another friend, the appellant, the complainant’s mother, the complainant and her two brothers. C said that while they were at the State Forest, the appellant asked the complainant if she wanted to go for a drive, with the complainant driving the truck. She recalled that the appellant and the complainant were away for quite some time and that the others went looking for them. When the appellant and the complainant returned, C said that the complainant was “very, very cranky” when she got out of the vehicle. C said that the complainant slammed the door. C said that the appellant said that they had got bogged and that he had had to pull them out. C also gave evidence of occasions when the appellant would be in the pool with the children at his house. C remembered that on a few occasions the complainant came in from the pool being “really, really cranky” and swearing, and would walk into her room without speaking to anyone.

30 W was a friend of the complainant’s mother and knew the appellant. He gave evidence of an occasion when the appellant came to his house in his Landcruiser, which was packed for travelling. The appellant told him that he was moving north and that he had broken up with the complainant’s mother due to an “affair” that he had been having with the complainant.

The appellant’s case at trial

31 The appellant denied each of the allegations of sexual assault which were the subject of the counts in the indictment. He also denied the details of the sexual assault alleged to have occurred whilst the family was on the outing at Nundle State Forest. He gave evidence that the complainant did not move into her own bedroom until shortly before her 11^th birthday, so that the earlier of the sexual assaults (counts 1-3) as alleged by her could not, on his evidence, have occurred. He agreed that there was a routine of having take-away on Friday nights, but said that the complainant’s mother would often get the food as he would be too tired after work.

32 The appellant’s case was essentially that the complainant and her mother were out to get him. He said there was an occasion about six months prior to the complainant making the allegations, when she said to him “I'm going to get you out of here” after she had witnessed an argument between her mother and the appellant in which the appellant had pushed the complainant’s mother. There had also been issues between the appellant and the complainant’s mother, and the complainant, in relation to the disappearance of money. The appellant had suggested to the complainant’s mother that they frighten the complainant by telling her that if she continued to steal money from them she would be sent away from the house. He said that both he and the complainant’s mother had acted on this basis and the complainant left the home for some time.

33 The appellant also said that after he had left the home following the complainant’s allegations, the complainant's mother told him on several occasions that she wanted the house and that if he did not sign it over to her, she would go to solicitors, that she was “going for half of his company” and that she would be pressing charges, which he understood was a reference to the allegations of assaulting the complainant. The appellant said that the complainant’s mother had made other threats of pressing charges if he did not give her money or other financial benefits that she demanded from him.

34 The appellant agreed that he had had a conversation with the complainant's brother D, but denied that he had admitted to sexually assaulting the complainant. Rather, the appellant said he told D that he was doing everything possible to get the situation sorted out and that he was “trying to get counselling for the family on it”. Likewise, the appellant admitted having a conversation with M, in which he did refer to the allegations made by the complainant and said that “in the eyes of the law [he did not] have a leg to stand on”. When asked what he meant by that, the appellant said that he was finding it very difficult to rebut the allegation, or to get his side of the story across, because he was not being believed. The appellant said he told D that he was hopeful the family would be able to resolve the situation and everything would be okay in the future.

35 The appellant agreed that an incident had occurred on the family outing at the Nundle State Forest. On his version, he was teaching the complainant how to drive and had taken her out on her own, as she was nervous of changing gears in front of her mother. He denied that he had sexually assaulted her on this occasion. Rather, the complainant had touched him. He said that they had come to a part of the track which was narrow and the complainant said that she did not know how to turn the vehicle around in the narrow space. He and the complainant swapped places, the complainant climbing across him as she moved from the driver’s seat to the passenger’s seat. As she was doing so, she reached down and touched him on the crotch. She then unzipped the fly on his trousers and put her hand inside. In his evidence in chief, he said that the complainant rubbed his penis on this occasion. In cross-examination, he said that the complainant touched him through his underpants and he told her to stop. In his evidence before the jury, he said that he was very ashamed of what happened.

36 The complainant denied this version of the incident at the Nundle State Forest.

37 The appellant denied that he made the admission to W of which W gave evidence.

38 The appellant also gave evidence about the letter he wrote to the complainant. He said that the letter only related to the incident at Nundle and the occasion he pushed the complainant’s mother over. He said that he was very upset and distraught that he had allowed the situation to get to the point that it did and said that he was feeling very guilty that he had allowed his stepdaughter to touch him in an inappropriate way and that he had allowed it to continue. He said that it should not have happened. He said that the reference in the letter about failing to give the complainant as good a start in life as possible, was a reference to the stealing incident and about insisting on teaching her a lesson. He explained the reference to “a tremendous weight being lifted from his shoulders” was a reference to both of them, as they both “felt very very guilty about what occurred” at Nundle. He said that the reference to the “severe shock” suffered by the complainant’s mother was because “her own daughter had sexual activity with” him.

39 P gave evidence that he had been employed by the appellant until late 1983. P then left the area, but returned some years later. He said that he bumped into the complainant’s mother in 1994 or 1995, and she asked him to visit her, which he did. He said that the complainant’s mother told him that the appellant had been molesting the complainant and that she had asked the appellant to sign the house into her name, otherwise she would press charges. He said that the complainant's mother said to him:

“I know how successful [the appellant] is and I know that he will get back on his feet just as soon as he can … I intend to have another go at him.”


The complainant's mother denied this conversation.

First issue on the conviction appeal: whether a Longman warning was required

40 In Longman the Court held, at [30], that:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.”

41 There was no dispute that the trial judge did not give a sufficient direction so as to comply with the law as stated in Longman.

42 The common law requirement specified in Longman was affected by the introduction of s 294AA, which provided:

“ 294AA Warning to be given by Judge in relation to complainants’ evidence

(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.

(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.

(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.”

43 Section 294AA was introduced by the Criminal Procedure Amendment (Sexual and Other Offences) Act. The Criminal Procedure Act transitional provision, Sch 2, Pt 12, cl 51 provided that:

“(1) The amendments made by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 do not extend to any proceedings commenced before the commencement of the amendments and any such proceedings may continue as if that Act had not been enacted.

(2) This clause does not apply to the amendments inserted by Schedule 1 [10] to the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 .”

44 In TJ v R [2009] NSWCCA 257 McClellan CJ at CL (Hidden J and McCallum J agreeing on this point) said, at [13], that:

“A trial on indictment commences when an accused person is arraigned: R v Nicolaidis (1994) 33 NSWLR 362 at 367; Gilham v The Queen [2007] NSWCCA 323; (2007) 178 A Crim R 72 at [78], [172] – [176]. The indictment is the originating process: R v Taylor [2003] NSWCCA 194 at [150], [155] – [156]; R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 at [30]; R v Janceski [2005] NSWCCA 281, 64 NSWLR 10 at [219] – [220]. However, the transitional provision does not operate in relation to trials but rather in relation to “proceedings”.

45 His Honour, at [22], concluded that:

“… the only available approach to the meaning of ‘proceedings’ in the transitional provisions, given the variety of contexts in which it must be applied, is that it does not operate with respect to a trial which follows the arrest and charging of the offender before 1 January 2007.”

46 As I have indicated, the Crown accepted that this was a correct construction of the transitional provision. In TJ the Court did not refer to the Criminal Procedure Act, ss 53 and 130 or to B v R [2008] NSWCCA 85 to which reference is made below. TJ, of course, dealt with a different transitional provision and the Crown accepted that the decision was correct in relation to that transitional provision. For the reasons which I discuss below, I do not consider that the decision in TJ applies to or is determinative of the decision in this case.

47 The Criminal Procedure Amendment (Sexual and Other Offences) Act also amended s 294 to add a new para (c) to subs (2) and new subsections (3)-(5), so that s 294 then read:

“ 294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest:
(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or
(b) delay by that person in making any such complaint.

(2) In circumstances to which this section applies, the Judge:
(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
(b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and
(c) must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.

(3) However, if:
(a) the delay in making a complaint by the person on whom the offence is alleged to have been committed is significant, and
(b) the Judge is satisfied that the person on trial for the offence has suffered a significant forensic disadvantage caused by that delay, and
the Judge may inform the jury (but only if a party to the proceedings so requests) of the nature of the disadvantage and of the need for caution in determining whether to accept, or give any weight to, the evidence or question referred to in subsection (1).

(4) For the purposes of subsection (3) (b), the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:
(a) the fact that any potential witnesses have died or are not able to be located,
(b) the fact that any potential evidence has been lost or is otherwise unavailable.

(5) The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage.” (emphasis added)

48 The effect of the s 294(2)(c) was to eliminate the warning that was held necessary in Crofts v R [1996] HCA 22; (1996) 186 CLR 427. The new subsections (3)-(5) were the legislative overriding of the direction that Longman had said had to be given as a matter of law.

49 Subsequently, by the Evidence (Amendment) Act, s 294(3)-(5) were repealed. At the same time, the Evidence Act, s 165B was repealed and a new s 165B was inserted, which provided:

“ 165B Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(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 informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section:

(a) delay includes delay between the alleged offence and its being reported, and
(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:

(a) the fact that any potential witnesses have died or are not able to be located,
(b) the fact that any potential evidence has been lost or is otherwise unavailable.”

50 The Evidence Act transitional provision was contained in, relevantly, Sch 2, Pt 3, cl 17, as follows:

“ 17 Proceedings already begun

(1) Subject to this Part, an amendment made to this Act by the amending Act does not apply in relation to proceedings the hearing of which began before the commencement of the amendment.

(2) This Act, as in force immediately before the commencement of the amendment, continues to apply in relation to proceedings the hearing of which began before that commencement.”

51 Before dealing with the terms of the two transitional provisions and the meaning of ‘commencement of proceedings’, some further explanation of the legislative amendments made at this time is required.

52 A comparison of s 294(3)-(5) with s 165B as newly inserted into the Evidence Act reveals that s 294(3) is effectively replicated in s 165B(2) and (3); s 294(4) is reproduced in s 165B(7) (save for internal referencing); and s 294(5) is effectively replicated in s 165B(6)(b). It is also important to note that s 165B(6)(a) provides that, for the purposes of the section, delay includes delay between the alleged offence and its being reported.

53 The effect, therefore, of the new s 165B, is that for trials which commenced after 1 January 2009, even if a judge informs a jury that the accused has suffered a significant forensic disadvantage and the nature of that disadvantage in accordance with s 165B(2), the judge must not suggest to the jury that it would be dangerous or unsafe to convict solely because of the delay or because of any significant forensic disadvantage suffered because of the delay.

54 The question for decision before this Court, therefore, became whether, as the Crown contended, the reference in the Evidence Act transitional provision to “proceedings, the hearing of which began before the commencement of the amendment” is a reference to the commencement of the hearing once the indictment has been presented.

55 The appellant submitted that this construction was wrong and that the same meaning should be given to this provision as is given to the phrase “proceedings commenced” in the Criminal Procedure Act transitional provision. On the appellant’s submission, this meant that his trial was governed by Longman and not by s 165B.

56 The resolution of this issue requires a consideration of various provisions of the Criminal Procedure Act and the case law which has dealt with what is meant by “the commencement of criminal proceedings”.

57 The Criminal Procedure Act, Ch 3, Pt 3 is concerned with “Trial procedures”. “Proceedings” is not defined as such in the Act, but “criminal proceedings” are defined in Ch 3, Pt 3, Div 1 (“Listing”), s 121 to mean:

“(a) proceedings relating to the trial of a person before the Supreme Court or the District Court,

(b) proceedings relating to the sentencing of a person by the Supreme Court or the District Court, or

(c) proceedings relating to an appeal under the Crimes (Local Courts Appeal and Review) Act 2001 to the District Court in its criminal jurisdiction.”

58 For completeness reference should be made to the Evidence Act definition of “criminal proceeding”, which means:

“… a prosecution for an offence and includes:

(a) a proceeding for the committal of a person for trial or sentence for an offence, and
(b) a proceeding relating to bail”

59 The Criminal Procedure Act, s 122, which is also within Ch 3, Pt 3, Div 1, provides that the “Criminal Listing Director” in a court is to:

“… make arrangements for the listing of criminal proceedings that are to be heard and determined before the relevant court.” (emphasis added)

60 Chapter 3, Pt 3, Div 2, is entitled “Commencement and nature of proceedings” and contains ss 126-133. Pursuant to the Interpretation Act 1987, s 35, headings to Chapters, Parts and Divisions are taken to be part of an Act. Sections 126-129 deal with indictments as follows: signing the indictment: s 126; the manner of presenting an indictment: s 127; the Chief Justice’s directions as to classes of indictments to be presented in the District Court: s 128; and the time in which an indictment is to be presented: s 129.

61 Section 130 then provides:

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

62 “Arraignment” (which is not defined in the Criminal Procedure Act) is a term of ancient origin describing the process whereby an accused person is called for trial, the indictment read and a plea taken (see Archbold, Criminal Practice Pleading and Evidence).

63 The question as to when a trial begins depends upon both or either the common law or statute of the relevant jurisdiction: see Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566. In New South Wales, it has been held that that a trial does not begin until the accused person has been arraigned. As Gleeson CJ in R v Nicolaidis (1994) 33 NSWLR 364 explained, at 367, “[t]he arraignment marks the commencement of a trial by jury”. The Chief Justice observed there was a practice that accused persons were often arraigned more than once, the first time shortly after they had been committed for trial, so as to enable the court to embark upon the trial management of the matter. His Honour did not see anything amiss with this practice. The question for construction, however, was which arraignment was referred to in the statutory provision under construction.

64 In Nicolaidis, the Court was concerned with the meaning of the phrase “on or before arraignment” in the then Criminal Procedure Act, s 53, which provided that on or before the arraignment of an accused person, upon the application of that person, the court could give a sentence indication if the person was to plead guilty. The appellant applied for a sentence indication after he had been arraigned, but prior to arraignment in the presence of the jury in waiting.

65 There were three considerations that led Gleeson CJ to conclude that the section referred to the first arraignment. First, the phrase “on or before” indicated that something was to occur before, or at the latest upon, arraignment. After then it was too late. His Honour accepted the language was not intractable, but that view was reinforced by the concluding words of the section, which suggested that at the time of the sentence indication hearing, no plea had been entered.

66 Secondly, his Honour was of the opinion that if the appellant’s argument was correct, it would mean that the relevant arraignment would include that which occurs in front of the jury waiting to be empanelled. His Honour was of the opinion that it was difficult to accept that the legislature contemplated that the expression “on arraignment” would have a meaning that covered the commencement of the trial in this sense.

67 Finally, his Honour found it persuasive that the sentence indication was intended to be a pre-trial procedure. As his Honour observed, the process was to assist pre-trial case management and to sort out sooner, rather than later, matters that would ultimately proceed to trial. His Honour considered that consistently with that interpretation, the section was to be read as referring to the first arraignment following committal for trial.

68 There are numerous other statements in the authorities that the trial commences on the arraignment. Thus in Truong v R [2004] HCA 10; (2004) 223 CLR 122 at [110], Gummow and Callinan JJ observed that “it is with the arraignment that, in ordinary usage, the trial may be said to have commenced”. See also R v Adamcik (NSWCCA, 22 November 1996, unreported); R v Pearson (NSWCCA, 5 March 1996, unreported); R v Taylor [2003] NSWCCA 194 at [155]; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [219]-[220], [232]; R v Pollock [2005] NSWCCA 316 at [79]-[80]; DPP (NSW) v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46 at [103].

69 These statements must now be read having regard to the terms of s 130. Clearly, under the section, the term ‘arraignment’ means the taking of the plea, as the presentment of the indictment is separately referred to in the section and the bringing of the accused person before the court is a necessary precondition to both those matters.

70 Jurisdiction is the authority to adjudicate or decide: Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 627 per Toohey J; Gould v Brown [1998] HCA 6; 193 CLR 346; Pelechowski v Registrar, Court of Appeal [1999] HCA 19; 198 CLR 435; and Halsbury’s Laws of England 4^th Ed vol 10 par 314 describes jurisdiction as the authority “which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision”.

71 The effect of s 130, therefore, is that the Supreme and District Courts have jurisdiction once the indictment is presented and the accused person is arraigned, and may engage in pre-trial processes prior to the empanelment of the jury.

72 However, the appellant relies upon the Criminal Procedure Act, s 53 in support of his argument that criminal proceedings commence, in effect, upon arrest, or at least at some point prior to the committal. Committal proceedings are defined in the Criminal Procedure Act, s 3 to mean:

“… a hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence.”

Pursuant to the Criminal Procedure Act , Ch 3, Pt 2, s 47 committal proceedings are commenced by the issue and filing of a court attendance notice. The court attendance notice has replaced the processes of informations and summonses to which reference is made in R v Hull (1989) 16 NSWLR 385, which is considered below.

73 Importantly for the present argument, the Criminal Procedure Act, s 53 provides that:

“ 53 When proceedings commence

(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.

…

(3) Nothing in this section affects any other Act or law under which proceedings are taken to have commenced on another date.”

74 The appellant places particular reliance upon this provision in support of his argument that “proceedings” commence in the manner described by McClellan CJ at CL in TJ. Section 53 is contained within Ch 3, Pt 2, which is headed, “Committal proceedings”. However, the word “proceedings” and not “committal proceedings”, is used in s 53. On one view, the use of the word “proceedings” in circumstances where on every other occasion where the word “proceedings” is used in Pt 2 it is accompanied by the word “committal”, it might be thought that s 53 was meant to extend to criminal proceedings generally, as defined in s 121. On that approach, I would have seen the purpose of s 53 as being directed to mark the commencement of any limitation period. That would explain its rather clumsy presence within Pt 2.

75 However, the meaning of s 53 has already been decided by this Court: see B, where Spigelman CJ, (James and Howie JJ agreeing) held that s 53, in its context, deals only with a court attendance notice for committal proceedings and not generally. This was apparent both from the headings to the various Parts to the Chapter, as well as the particular Divisions. In the case of Div 3, in which s 53 appears, the heading was “committal proceedings” and the context of the Division as a whole was that it related only to committal proceedings. The Court also accepted, as the trial judge Whealy J had held, that the decisions of the Court of Criminal Appeal in Janceski and Taylor had made it clear that criminal proceedings in the Supreme Court (and I would add the District Court: see s 130) commenced as soon as the indictment is presented and the accused is arraigned on the indictment. The effect of s 130, therefore, is that proceedings on indictment are not commenced at any earlier date.

The Criminal Procedure Act transitional provision

76 The meaning of ”proceedings” in the Criminal Procedure Act transitional provision was considered by this Court in TJ. As I have said, the Crown accepts the correctness of that decision. Nonetheless, it is necessary to consider the decisions to which McClellan CJ at CL referred to see if they throw any light on the question of construction here, namely, the meaning of “proceedings, the hearing of which began before the commencement of the amendment”.

R v Hull

77 The first of the authorities referred to by McClellan CJ at CL was Hull. In that case, the Court was concerned with a time limit for the laying of an information under the Poisons Act 1966, s 45B. The respondent was discharged at the conclusion of the committal hearing in the matter, at which time the Crown sought to lay an ex officio indictment. One question that needed to be resolved in the proceedings was whether the term “information” in the legislation included an indictment. That was resolved in the affirmative. The next matter that called for resolution was whether an ex officio indictment issued after the respondent was discharged by the Magistrate at committal was caught by the statutory time bar.

78 The Court (Gleeson CJ, Grove and Studdert JJ agreeing) rejected the argument that the issue of an ex officio indictment after discharge on committal was a further step in the proceedings which remained on foot and was thus brought within the statutory time limit. Rather, the order for discharge brought the criminal proceedings to an end and the presentation of an ex officio indictment was an attempt to commence fresh proceedings.

79 In the course of reaching that conclusion, Gleeson CJ, at 390, considered the manner in which “criminal proceedings” are commenced in New South Wales as follows:

“Criminal proceedings in this State are ordinarily, although not always, initiated by members of the police force or other officers who are charged with duties in relation to law enforcement. There are, broadly speaking, three methods by which the police or other law enforcement officials ordinarily proceed once a decision has been made that a person should be charged. In serious cases it is common for the proceedings to be commenced by arrests without warrant. A person who has been arrested must be taken before a magistrate without delay. The arrested person may be questioned and then charged. A second method involves the issue by a justice of a warrant for the arrest of a person where an information has been sworn before a justice. Such an information, which is usually laid by a police officer or other law enforcement official, will then result in an issue of a warrant. A third method, which can be used whether the offence in question is indictable or summary, involves the issue by a justice of a summons requiring the appearance in court of the person named in the information.”

Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550

80 The decision in Hull was applied by the New South Wales Court of Appeal in Allerton v Director of Public Prosecutions. In that case, the Court was concerned with the following phrase in the Costs in Criminal Cases Act 1967, s 3(1)(a): “if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts”. The Court (Kirby P, Meagher and Handley JJA) stated, at 557, that “when one of the three methods described by Gleeson CJ [in Hull] is invoked … the criminal proceedings are instituted”.

81 The Court further held, at 557, that there was no authority for:

“… the view that the ‘institution’ of proceedings on indictment occurs at the trial. Indeed, the contrary would appear to be indicated, given the purposes of the Act.”

The Court identified the purposes of the Act as including the provision of a certificate which would give rise to an entitlement to the payment of the costs of a successful defence of a criminal prosecution. The Court observed that such costs will begin to run soon after the charge is laid.

82 Their Honours concluded, at 558, that the word “instituted” in the section meant when the criminal justice system was put in motion, which was by one of the three procedures described in Hull. The Court recognised that in Hull, the Court was not concerned with the same legislation and, in particular, was not concerned with the meaning of the word “instituted” in the Costs in Criminal Cases Act. However, the Court noted that in Hull the Court was concerned with the way in which a criminal process was initiated. Accordingly, as the Costs in Criminal Cases Act was designed to provide a certificate for costs in such a process, what was said in Hull was appropriately applied to give meaning to the word “instituted” in s 3(1)(a).

Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368

83 In Attorney-General for New South Wales v TCN Channel Nine Pty Ltd the question in issue was whether the respondent was guilty of contempt of court. The contempt related to the broadcast of a television program likely to interfere with the administration of justice in connection with a murder trial. For the purposes of determining that question, the Court was concerned with the question of when the proceedings in a court were “pending”. The Court (Gleeson CJ, Kirby P and Priestley JA) referred to James v Robinson [1963] HCA 32; (1963) 109 CLR 593 where Windeyer J stated, at 614-615:

“The word ‘pending’, in this context, is used in its ordinary legal sense as meaning that the trial or proceedings have been commenced and not completed. The rule applies equally to civil and to criminal proceedings. Once a matter becomes sub judice , and while it remains sub judice , comment that could influence judgment is unlawful. That is the basis of the rule. Lord Parker CJ recently stated it as follows: ‘… it is clear on the authorities that proceedings are pending in this sense from the time that a person is charged, even though he has not been committed for trial … Once a person is under arrest a court has become seised of the case, because the arrested man must be taken before a magistrate.”

84 These cases represent a long line of authority that a criminal proceeding commences at the point of arrest, the issue of a warrant or the issue of a summons. However, whether or not that line of authority applies depends upon the issue in a given case and, in particular, must yield to any relevant statutory provision that applies to the case at hand.

85 It is necessary at this point to return to the Evidence Act transitional provision, cl 17 and the Criminal Procedure Act, s 130. The Crown’s position is that, pursuant to s 130, the indictment is the originating process in criminal proceedings in the District Court and the Supreme Court and the arraignment marks the commencement of the trial: see cases referred to at [68] above. Accordingly, on the Crown’s argument, when the Evidence Act transitional provision refers to “proceedings, the hearing of which began before the commencement of the amendment”, it is referring to the hearing of the trial and not to some anterior point in time which marks the commencement of the criminal process.

86 There is no doubt that the presentment of the indictment and arraignment of the accused person marks the commencement of the trial. The question for consideration, however, is whether the Evidence Act transitional provision refers to particular proceedings, such as committal or trial, or bail proceedings, or whether it is directed to the initiation of proceedings. Put another way, the question is whether the reference to proceedings in cl 17 should be read so as to apply to the particular proceeding, the hearing of which has begun, in this case, once the indictment has been presented, or whether it applies to a proceeding from its initiation.

87 The matter appears to have first been considered by this Court in Pearson. In that case, the Court was concerned with the question whether a trial judge ought to have granted a stay of criminal proceedings in circumstances where civil proceedings had also been instituted. The trial judge held that a person who had possession of documents subject to legal professional privilege, could not be compelled to produce the documents on a subpoena issued on behalf of an accused person in criminal proceedings. However, the trial judge granted a conditional stay of the criminal proceedings. The Crown appealed against that order and the accused appealed against the refusal by the trial judge to grant a permanent stay, on the basis that he was not able to have a fair trial in the absence of having access to the subpoenaed documents. In the meantime, the Evidence Act came into force. Gleeson CJ (Smart and Sully JJ agreeing) stated:

“As to whether the Evidence Act 1995 applies, there is no agreement between counsel. However, the savings and transitional provisions which are relevant produce the consequence that the Evidence Act 1995 applies in relation to proceedings, the hearing of which began before 1 September 1995. In the case of a criminal trial upon indictment, the hearing of the proceedings relevantly begins at the time of arraignment. If, for example, this Court heard today an appeal against the conviction of a person, allowed the appeal, and ordered a new trial, then as at present advised I see no reason why the provisions of the Evidence Act 1995 would not apply to the new trial.”

88 There are other authorities which support that approach. In Janceski Howie J stated, at [219], that:

“… the presentation of an indictment and the arraignment of the accused before the jury panel is a step in the proceedings that marks the commencement of the trial.”

89 In Pollock Simpson J (Howie and Rothman JJ agreeing) commented upon the transitional provisions to the Evidence (Consequential and other Provisions) Act 1995 which contained, in Sch 2, cl 2, a provision in the same terms as the Evidence Act transitional provision under consideration here. Her Honour noted that the transitional provision in the 1995 amending legislation raised the question as to when a criminal proceeding begins. Her Honour referred to the comments of Gleeson CJ in Pearson that a criminal trial begins upon arraignment. Her Honour considered that on that view, as the applicant in Pollock would have to be re-arraigned, the Evidence Act would apply to any new trial. Her Honour found it unnecessary to finally determine that matter.

90 In Taylor, the question arose whether the Crimes Amendment (Self-Defence) Act 2001 applied to the trial of the respondent. The amending legislation effected significant changes to the law of self-defence which was favourable to an accused person on trial for the offence of murder. The transitional provision in the amending legislation provided, relevantly:

“(2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.”

91 The issue arose in Taylor because the Crown had presented three indictments against the accused. The first indictment was presented and the accused arraigned prior to the commencement of the new provision. However, the trial did not proceed on that day and was stood over for some months. It was during this intervening period that the legislation was enacted. Subsequently, a new indictment was presented, in exactly the same terms as the first, but signed by a different Crown Prosecutor and dated on the same day as it was presented. Again, that trial did not proceed on that day. The following day, a fresh indictment dated that day was presented.

92 It was in the accused’s interests to bring himself within the new legislation. He argued, therefore, that the proceedings for the murder with which he had been charged had not commenced until the time the last indictment was presented. If that was correct, the statutory self-defence provision applied. This argument was rejected both by the trial judge and on appeal, on the basis that the indictment upon which the accused was first arraigned had not been brought to a conclusion in any of the recognised ways that proceedings on an indictment may be brought to a conclusion. However, in the course of considering that issue, Bell J (Spigelman CJ and Miles AJ agreeing), observed, at [150], that “the indictment is the originating process in criminal proceedings” in the District and Supreme Courts. Bell J noted that the Criminal Procedure Act, s 130 confers jurisdiction on the Court with respect to the conduct of proceedings on indictment. Her Honour concluded, at [154], that the transitional provision was:

“… directed to the institution of “proceedings for the offence” (other than committal proceedings). The institution and conduct of proceedings on indictment … is governed by the provisions of the Criminal Procedure Act and the common law to the extent that the latter is not altered by the former.”

93 In those circumstances, her Honour concluded that the proceedings for the offence of murder in the case at hand were instituted on the date on which the indictment was first presented and the accused arraigned on that indictment.

94 In Adamcik, the appellant was convicted of attempting to obtain a financial benefit by making a false statement. Prior to the empanelling of the jury, the trial judge heard an interlocutory application in respect of the admissibility of certain evidence. Between the determination of the interlocutory hearing and the empanelling of the jury, the Evidence Act was introduced. At the trial, the appellant sought to adduce evidence going to the credit of a principal witness. Such evidence was inadmissible under the pre-Evidence Act law. A question arose whether the Act had made the evidence admissible. The trial judge held it had not.

95 On appeal, Barr J (McInerney J agreeing, Mahoney ACJ deciding the appeal on a different point) held that the Evidence Act had no application to the trial. His Honour referred to the terms of the transitional provision and concluded, at 18, that:

“… the hearing of this proceeding began when his Honour commenced to consider the admissibility of evidence on the voir dire. The indictment was presented then – see District Court Rules Pt 53, r 11(1): see also Newell v The King (1936) 55 CLR 707; R v Nicolaidis (1994) 33 NSWLR 364.”

96 The appellant contended that Adamcik did not necessarily support the Crown’s position that s 165B applies to this case. In the first place, the appellant pointed out that it was not necessary to consider whether the proceedings had commenced at some anterior time, as discussed in Hull, as it was sufficient for the decision that the indictment had been presented prior to the commencement of the Evidence Act. Accordingly, the Court did not have to consider what would have been the position if the indictment had been presented after the commencement of the Evidence Act.

97 I am not persuaded by this argument. The point in issue in Adamcik was whether the hearing of the proceedings had commenced before or after the commencement of the Act. If the appellant’s submission on this issue is correct, it would have been a foregone conclusion that the proceedings had commenced before the commencement of the Evidence Act. It is apparent from Barr J’s reasoning that the Evidence Act operated on the hearing of proceedings, that is, the hearing of the trial.

98 Secondly, the appellant submitted that all that Adamcik established was that where an indictment had been presented prior to the commencement of the Evidence Act (in that case for the purposes of a voir dire), the subsequent presentation of the indictment before the jury does not commence the hearing of the proceedings. This argument is of particular relevance in the present case, as an indictment was presented pursuant to the District Court Rules 1973, Pt 53, r 10D, in November 2008, prior to the introduction of s 165B. However, it is implicit, or at least can be presumed, that the accused in Adamcik had been arraigned prior to the voir dire. There would have been no purpose in having a voir dire in relation to the admissibility of evidence at trial for a person who had not entered a plea, notwithstanding that the accused person would have been arraigned again later, prior to the empanelling of the jury. The purpose of the earlier arraignment, as Gleeson CJ explained in Nicolaidis, was to give the court jurisdiction to hear the preliminary evidentiary and other arguments.

99 I am not persuaded that Adamcik stands for the proposition for which the appellant principally contended, that is, that the subsequent presentation of the indictment before the jury and, I infer, the arraignment at that time does not mark the commencement of the proceedings. Even though the purposes of pre-trial processes such as occurred in Adamcik is to assist in the efficient running of the trial, as Mahoney ACJ pointed out in his judgment, evidentiary rulings given at the pre-trial stage are preliminary only. There may be circumstances which require those rulings to be revisited in the hearing proper.

100 However, I accept that the position is not clear and it may be that the hearing of the trial commences upon the first arraignment after the indictment has been presented. Notwithstanding that there may be some uncertainty on this point, it does not affect the position in this case, as the appellant was not arraigned prior to 1 January 2009. Accordingly, it is not necessary to finally determine whether a trial, that is, a criminal proceeding on indictment, commences at the time of the first arraignment, regardless of whether that was in the presence of the jury to be empanelled. In the appellant’s case, the hearing of his trial commenced on 23 March 2009, after the commencement of s 165B.

101 Notwithstanding the perhaps unresolved question whether a trial commences on the first arraignment, the indictment having been presented at that time, or when the indictment is presented and the accused person arraigned in front of the jury, as Howie J held in Jancevski, these authorities demonstrate that when legislation, such as the Evidence Act transitional provision cl 17, refers to “proceedings the hearing of which began before the commencement of the [provision or Act]”, the intended reference is to the hearing of the particular proceeding such as the trial itself.

102 The Criminal Procedure Act, Ch 3, Pt 3, Div 2 contains those provisions which govern the commencement of proceedings on indictment. By contrast, the Evidence Act is concerned with the evidence which is to be adduced at a particular hearing. When the Evidence Act transitional provision refers to a proceeding the hearing of which has commenced, I am of the opinion that, on its proper construction, it is referring to the hearing of a particular proceeding, in this case, a trial on indictment.

When was the indictment presented?

103 The appellant contended if his submission, that the criminal proceedings against him commenced at the time of his arrest, was incorrect, in any event, the proceedings commenced at the presentment of the indictment, which occurred when the indictment was filed on 26 November 2008: see the Criminal Procedure Act, s 127; and the District Court Rules, r 10D. The combined effect of those provisions is that an indictment may be presented by filing a copy with the registrar. Whilst that submission is correct, it does not meet the provisions of the Criminal Procedure Act, s 130, discussed above, which provides that the court does not have jurisdiction until there has been both the presentment of the indictment and the arraignment of the accused.

Ground 2: failure to properly direct the jury in relation to the delay in complaint

104 Ground 2 was advanced on the basis of the Criminal Procedure Act, s 107 that applied to the giving of directions as to complaint. That provision required the trial judge to warn the jury that delay in complaint did not necessarily indicate that the allegation that the offence was committed was false and that there were good reasons why a person may hesitate to or refrain from making a complaint. It did not obviate the requirement to give a direction that nonetheless the jury could take into account delay in assessing the complainant’s credibility: see R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [175] 120.

105 The trial judge reminded the jury in relation to complaint by referring to the evidence of the complainant, her friend and the DOCS officer to the effect that the complainant made a complaint within two to four months of the last alleged sexual assault and indicated to the jury that the Crown relied upon that evidence as supporting the complainant’s credibility.

106 His Honour then stated:

“Just because a person says something on more than one occasion does not mean that it is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions; if it is false, it is false and the accused has clearly in his evidence indicated that it is false. The Crown submits that you take this into account in determining that question, which I have repeated before, as to whether or not you are satisfied beyond reasonable doubt of the truth of the evidence of the complainant or as I have also put to you before, you are to ask yourself the question of whether there is any reasonable possibility that the accused did not do what the Crown alleges against him. It is a matter to be taken into account.”

107 The direction his Honour gave was effectively in the terms sought by the appellant’s trial counsel. His Honour made no reference to delay, nor did he direct the jury that they could use delay in assessing the complainant’s credibility. The appellant contended he was entitled to such a direction. The Crown accepted that his Honour's direction did not comply with Crofts and accepted that, as a matter of fairness, such a direction was sometimes required. This, of course, was the point of Markuleski.

108 However, in this case, the trial judge did not given the statutory direction and the Crown contended that in the circumstances, there appears to have been tactical considerations in the appellant’s trial counsel not seeking a Crofts direction. This seems to be what counsel for the appellant at trial was indicating when he said:

“I don’t seek that part of the Longman direction that goes to the delay affecting the credibility of the complainant, largely because she does indeed make complaints within two to four months of the last event. Secondly, of course, I think amendment 294(a) or (aa), I don’t have it in front of me, recently indicates that the simple effluxion of time is not a sufficient ground for your Honour giving that direction, but it is more the issue that there was reasonably recent complaint back in 1988. But the second part of the direction occurs because she didn’t say anything to the police until 1996.”

109 Had the appellant’s counsel sought such a direction at trial, it was likely that the statutory direction would have been given. However, this might have resulted in a more extensive direction being given, noting the relative recency of complaint to the latest offence. Such a direction would not have been in the appellant’s interests. The Crown submitted that the position taken by the appellant’s counsel at trial was thereby likely to have been tactically driven. In any event, the Crown relies upon the Criminal Appeal Rules, r 4.

110 The appellant contends that there was no tactical reason why the appellant would not have sought the correct direction and the failure of trial counsel to do so should properly be viewed as an oversight. Having regard to the fact that the appellant’s trial counsel gave specific attention to the directions sought, and having regard to the comments he made to the trial judge referred to above, it is difficult to see that there was no tactical base for the decision not to seek such a direction and that the failure to do so was buried in the refuge of trial oversight. There was no evidence advanced to support this proposition.

111 In my opinion, the appellant has not established that there was any miscarriage caused by the failure to give the direction. The credibility of the complainant was directly in issue at the trial. The trial judge’s directions to the jury adverted to this, so that the jury could have been under no apprehension about that matter. In any event, there was significant corroboration of the complainant's evidence. I am also of the opinion that, having regard to the manner in which this issue was dealt with at trial and the specific stance taken by trial counsel, the Court ought not to grant leave to raise the matter on appeal at the instance of different counsel.

The sentence appeal

112 The appellant also seeks leave to appeal against sentence on the basis that the trial judge failed to take into account the effect of cumulation. The appellant submitted:

“… his Honour imposed a total sentence of 3 years 9 months with a non-parole period of 2 years 3 months, which was the result of the following individual sentences:

Count 4: 9 months to date from 25 December 2008;

Count 6: 12 months to date from 25 March 2009;

Count 7: 18 months to date from 25 March 2009;

Count 8: 2 years, with a non-parole period of 1 year to date from 25 June 2009;

Count 9: 3 years, with a non-parole period of 18 months to date from 25 September 2009”

113 The trial judge correctly observed that he was required, in imposing sentences upon the appellant, to have regard to the sentencing practices at the time of the commission of the offences: Regina v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; Regina v Moon [2000] NSWCCA 534; 117 A Crim R 497. His Honour, in his remarks on sentence, at 8, noted that the practice of the Court as at the time of the commission of the offences was to fix a non-parole period of between one third and 50 per cent of the head sentence. Thus, in respect of counts 8 and 9, his Honour fixed a non-parole period of 50 per cent of the sentence imposed in respect of each of those counts.

114 The appellant submitted that the sentencing practice at the time of the commission of offences was one which related to setting the proportion of the non-parole period to the total sentence. It was submitted this was apparent from the sentences that were in fact imposed in AJB v R [2007] NSWCCA 51; 169 A Crim R 32; and Featherstone v R [2008] NSWCCA 71; 183 A Crim R 540. The appellant complains that as a result of his Honour's partial cumulation of sentences, the overall non-parole period imposed by his Honour was 60 per cent. It was submitted this was unintended because, in his remarks on sentence, at 9, his Honour said:

“Born on 28 June 1949 ... he is now sixty years of age. The result upon imprisonment and also a result in his possible removal to New Zealand [sic]. These are factors which I have taken into account considering it appropriate that the non parole period should be a period of 50 per cent of the head sentence.”

115 The Crown submitted that these remarks are equivocal and were not intended to refer to the aggregate sentence. Rather, they were intended to refer to the non-parole period in proportion to the head sentence imposed for each of counts 8 and 9. The Crown further submitted that in any event, whilst the practice at the time of the commission of the offences was to set a non-parole period of between one half and one third of the total sentence, this was not paid heed to strictly. Indeed, in Featherstone, the effective non-parole period was 55 per cent of the aggregate sentence and in some of the cases reviewed by Bell J in that case, the effective non-parole period, also exceeded 50 per cent.

116 Further, the Crown pointed out that in MJL v Regina [2007] NSWCCA 261 Hidden J (Campbell JA and Smart AJ agreeing) imposed an effective non-parole period longer than one might have expected had the appellant in that case been sentenced proximate to the time of the commission of the offences. In that case, Smart AJ, at [43], observed that since Power v R [1974] HCA 26; (1974) 131 CLR 623, the non-parole period was the minimum period of imprisonment that the particular crime that had been committed called for.

117 In my opinion, the Crown's submissions should be accepted. It is apparent that his Honour's remarks, at 9, were a reflection of the individual sentences and non-parole periods imposed in respect of counts 8 and 9 and to which we have referred in the previous paragraphs. In my opinion, his Honour had not intended to impose a non-parole period of 50 per cent of the total aggregate sentence. In any event, I am of the opinion that the total sentence imposed and the non-parole period imposed by his Honour was appropriate and no other sentence is warranted in law.

118 The orders I propose are:

1. Appeal against conviction dismissed;

2. Leave to appeal against sentence granted;

3. Appeal against sentence dismissed.

119 BUDDIN J: I agree with Beazley JA.

: I agree with Beazley JA.

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27/09/2011 - Incorrect citation - Paragraph(s) [49], [68], [95], [98]