R v FDP

[2008] NSWCCA 317

Reported Decision: 192 A Crim R 8774 NSWLR 645

New South Wales

Court of Criminal Appeal

CITATION:	FDP v R [2008] NSWCCA 317
HEARING DATE(S):	05/12/2008
JUDGMENT DATE:	18 December 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Grove J at 1; Howie J at 1
DECISION:	1. The appeal against conviction is dismissed. 2. Application for leave to appeal is granted and the appeal allowed. 3. The sentences imposed in the District Court are quashed. 4. In lieu the appellant is sentenced as follows: On each of counts 2-4 - a fixed term of 15 months to date from 1 March 2007 and which expired on 31 May 2008. On count 1 - a non-parole period of 2 years 3 months to date from 1 December 2007 with a balance of term of 18 months. The appellant is eligible to be released to parole on 1 March 2010. On the s 166 matter - a fixed term of 6 months to date from 1 March 2007 and which expired on 30 September 2007.
CATCHWORDS:	Criminal Law - Appeal and New Trial - rule 4 - objection not taken to evidence - whether judge should have rejected evidence relying upon s 137 of Evidence Act - whether evidence prejudicial - Summing Up - whether judge failed to warn jury against tendency reasoning - Evidence - scope of s 137, whether requires judge to reject evidence where objection not taken - Sentencing - Malicious wounding and child abduction - whether sentences manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 - ss 33, 35, 87(1) Criminal Appeal Rules - r 4 Evidence Act 1995 - ss 41, 66, 116, 130, 137 Criminal Procedure Act 1986 - ss 108, 166, 275A, 281
CATEGORY:	Principal judgment
CASES CITED:	R v Moussa [2001] NSWCCA 427 Steve v R [2008] NSWCCA 231 R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 Papakosmas v The Queen (1999) 196 CLR 297 R v Villa [2005] NSWCCA 4 R v Reid [1990] NSWCCA 258 Dhanhoa v The Queen [2003] HCA 40 Gonzales v R [2007] NSWCCA; 178 A Crim R 232 R v Lyberopoulos [2002] NSWCCA 280 HML v The Queen [2008] HCA 16; 82 ALJR 723 O'Leary v The King (1946) 73 CLR 566 Wilson v The Queen (1970) 123 CLR 334 Harriman v The Queen (1989) 167 CLR 590 R v Quach [2002] NSWCCA 519 DJV v R [2008] NSWCCA 272 R v GK [2001] NSWCCA 413; 53 NSWLR 317 Seymour v R [2006] NSWCCA 206; 162 A Crim R 576 Hamid v R [2006] NSWCCA 302; 164 A Crim R 179 WNB v R [2006]NSWCCA 269
PARTIES:	FDP v Regina
FILE NUMBER(S):	CCA 2007/00005167
COUNSEL:	V Lydiard - Crown S Corish - Appellant
SOLICITORS:	S Kavanagh - Crown S O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0126
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ

2007/00005167

McCLELLAN CJ at CL
GROVE J
HOWIE J

THURSDAY 18 DECEMBER 2008

FDP v R

Judgment

Introduction

1 THE COURT: On 20 August 2007 the appellant was arraigned before a jury on an indictment containing four counts. The first count alleged that on 2 August 2006 the appellant maliciously wounded [the complainant] with intent to do grievous bodily harm. This was an offence contrary to s 33 of the Crimes Act 1900. The appellant pleaded not guilty to that charge. The complainant was the appellant’s wife. The three other counts on the indictment each alleged that on 2 April 2006 the appellant took a child with intent to remove the child from the lawful control of [the complainant], she being the person having parental responsibility for the child, without her consent. Each charge related to one of the three children of the appellant’s marriage to the complainant and alleged a breach of s 87(1) of the Crimes Act. The appellant pleaded guilty to each of these charges.

2 The trial proceeded on the first count. On 27 August 2007 the jury found the appellant not guilty of the offence under s 33 but convicted him of an alternative offence of malicious wounding contrary to s 35 of the Crimes Act. As a consequence on 9 November 2007 Judge Goldring (the Judge) sentenced the appellant to an overall sentence of 6 years 6 months from 1 June 2007 with an overall non-parole period of 4 years 6 months.

3 The appellant appeals against his conviction and seeks leave to appeal against sentence. The grounds of appeal in respect of the conviction are as follows:

Ground 1: The trial miscarried due to the admission of evidence:

(a) concerning the conduct of the appellant toward the complainant on 16 July 2006;

(b) of the making of an Apprehended Domestic Violence Order at Kogarah Local Court on 20 July 2006.

Ground 2: The learned trial Judge erred in failing to adequately direct the jury as to the use of the evidence concerning the events on 6 July 2006 and the making of ADVO on 20 July 2006.

The facts

4 The evidence at the trial can be very briefly stated. The appellant and the complainant had separated on 16 July 2006. On that date there had been an argument between them after the appellant forced his wife to allow him to read her e-mails. There was a discussion about a person named Jimmy who had been the subject of one or more of the e-mails. The complainant alleged that the appellant said, “I now understand all these people that you hear about that kill their wives and kids because that’s how you make me feel”. The complainant rang the police. She alleged that a short time later the appellant said, “I swear to God I’m going to take the kids and I’m going to do something stupid”. The complainant then rang the police a second time. She heard the appellant say to the children that they should get ready to go to the holiday house in Canberra. The family used to stay at a particular motel to which they referred as the “holiday house”. The police attended and advised the complainant to leave. She saw the police trying to remove the appellant from the house and he was fighting with them.

5 The complainant went with the police and an interim Apprehended Domestic Violence Order (ADVO) was taken out. The police then took her and the children to a refuge. On 20 July 2006 an ADVO order was made against the appellant by a magistrate at Kogarah Local Court. The appellant agreed to the making of that order without any admissions. A condition of the order was that the appellant not contact the complainant or the children directly.

6 On 23 July 2006 the appellant was given access to his children. This was arranged through the complainant’s parents. The complainant required that the appellant sign a document before he could see the children. He agreed to this and saw his children under the parents’ supervision.

7 On 2 August 2006 the complainant received a text message from the appellant that had been forwarded to her by her father. The message asked the father to arrange for the complainant to call him urgently. The complainant rang the appellant from a new mobile phone for which the appellant did not have the number. The appellant said, “I just want to talk to you, I just want to see you”. At first she declined to meet him but the appellant said that he had presents for the children. She agreed to meet him at the church where he had been given access to the children on the previous occasion.

8 The complainant went with the children to the church and met with the appellant. He gave the children the gifts he had for them. The appellant asked whether there was somewhere they could take the children to play. She and the children entered into the appellant’s vehicle and she directed him to a park. She told the jury that there was a playground near the refuge but she did want him to go there. After the appellant parked the car, the appellant and the complainant got out and spoke together about their relationship while one of the children played in the park. He asked whether there was any chance of them getting back together and she said, “No”. He suggested they take the children to McDonalds. They put the child into the car with the other two children. He told them to wait there because he wanted to talk to their mother.

9 According to the complainant the appellant placed his hand on her shoulder and led her to the back of the park. She thought he was going to hug or kiss her. He looked at the building behind her and, as the complainant turned around, she felt him take her mobile phone from her pocket. As she turned back toward him, he struck her to the face with the mobile phone in his hand. He then threw the phone away and struck her four more times to the head. She fell to the ground and she saw him with a knife moving toward her. She turned and the knife struck her in the shoulder. The appellant kept lashing at her with the knife and she started screaming. He then stood up, threw the knife away and ran toward the vehicle. She recovered her phone and ran after him trying to ring 000. The appellant drove off with the children. She fell to the ground screaming. A number of persons came to her assistance and she complained that she had been stabbed and that the appellant had taken her children.

10 The appellant gave a different account of the incident at the park. He gave evidence that the complainant had produced the knife. His version was that, when they reached the park, the three children got out to play. He and the complainant spoke together and she showed him her new phone. They then decided that it was time to go to McDonalds. He placed the three children into the vehicle while the complainant walked around the park with the phone in her hand. She called him over and he joined her. She took his hand and walked with him to the back of the park.

11 The complainant said to him, “This is the last time you are ever going to see your kids”. He was shaking and could not believe what she said. He saw the complainant holding a knife in her right hand with a tissue or handkerchief around it. She was waving it in circles in front of his face. She said, “Why don’t you go kill yourself, make it easier on every one?” He tried to flick the knife away but unbeknownst to him he cut himself on the blade. He lunged onto the complainant and she fell to the ground, landing on her back. He was able to wrestle the knife from her and threw it away. He then got up and ran to the car. The complainant was not screaming at that time. He was unaware that she had been stabbed.

12 The appellant took the children and went to Canberra. He eventually found a hotel that could take him and the children but it was not the “holiday home”. The next morning he saw a story about himself on the television. He rang 000 and spoke to an operator. He told her the name of the hotel. He then received a call from a police officer and he agreed to surrender to the police He was later arrested and extradited to this State. The appellant was legally represented at the police station where he was to be interviewed and in consultation with his lawyer produced a six-page statement giving his version.

13 At the trial the appellant gave evidence and called witnesses as to his good character.

Ground 1

14 It is contended that the evidence of the events on 16 July 2006 and the making of the ADVO order that have been outlined above should not have been admitted. Counsel for the appellant conceded that there was no objection and, therefore, r 4 of the Criminal Appeal Rules applies. In effect the appellant has to show that the introduction of the evidence resulted in a miscarriage of justice. During the course of the hearing and late in the address by counsel for the appellant, leave was sought to amend the grounds of appeal to add a ground that trial counsel was incompetent in not objecting to the evidence about which complaint is now made. The Court refused leave. The appellant had ample time to amend the grounds of appeal prior to the hearing. But more importantly the Court would not be prepared to consider such a ground of appeal without allowing trial counsel the opportunity of commenting upon the manner in which the trial was conducted. Yet nothing had been done by the appellant to obtain an affidavit of trial counsel to explain why he did not object to the evidence. This has been a not uncommon practice in this Court where r 4 arises notwithstanding what was said in R v Moussa [2001] NSWCCA 427 about that practice.

15 In these circumstances, before it could be said that a miscarriage of justice had been occasioned by the reception of the evidence, it would have to be very clearly shown to this Court that there was no possible tactical advantage to the defence in having the evidence before the jury and yet it presented a very clear and overwhelming prejudice to the appellant.

The decision in Steve v R

16 Because no objection was taken to the evidence, there was no occasion for the trial judge to consider the probative value of it or the danger of unfair prejudice arising from it; cf s 137 of the Evidence Act. Yet the appellant argues that the evidence to which the ground relates was either inadmissible or unfairly prejudicial such that it should never have been before the jury. Having regard to the issue raised in this appeal the Court brought to the attention of the parties, before the hearing, the decision in Steve v R [2008] NSWCCA 231 so that they could consider it and if necessary rely upon that decision or seek to distinguish it. The appellant embraced the decision. The Crown submitted that the decision should not be followed with regard to the interpretation of s 137 favoured by that Court.

17 In Steve this Court held that s 137 was mandatory so that a trial judge has an obligation to reject evidence where its probative value is outweighed by the danger of unfair prejudice notwithstanding that no objection had been taken to it during the course of the trial, see per Beazley JA at [60], quoting from Heydon JA in R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44, at 47, and at [82].

18 It should be noted that there is no reference to r 4 in the judgment of Beazley JA notwithstanding that no objection was taken to any of the evidence that was the subject of the grounds of appeal. It may be the case that the Crown did not rely upon r 4 as there is no reference to it in the summary of the Crown arguments contained in the judgment of her Honour. Beazley JA concluded at [87] that “the Court cannot be satisfied that no substantial miscarriage of justice has occurred”. But had r 4 been invoked, the appellant would have had to satisfy the Court that there had been a miscarriage of justice notwithstanding the failure of defence counsel to take any objection to the evidence: Papakosmas v The Queen (1999) 196 CLR 297 per McHugh J at 319; R v Moussa above at [63]; R v Villa [2005] NSWCCA 4 at [77].

19 Nor is there any reference in the reasoning of the Court to the decision of this Court in R v Reid [1990] NSWCCA 258 or the decision of the High Court in Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1. It is apparent that the Court’s attention was not brought to either of these important decisions that deal with the interpretation of evidentiary provisions in legislation in this State. We note that there is no reference to Reid in the judgment of Heydon J in Le and Dhanhoa was a judgment delivered after Le was decided

20 Reid was a case concerned with the application of what was then s 424A(2) of the Crimes Act (now s 281 of the Criminal Procedure Act) dealing with the admissibility of admissions by suspected persons. At trial no objection had been taken to the evidence of the admissions made by the appellant notwithstanding that the procedures set out in s 424A had not been complied with. On appeal it was argued that the section operated to exclude the evidence even though objection had not been taken at trial. In dismissing that argument Spigelman CJ stated:

[3] The legislative history and significance of s424A of the Crimes Act is set out by Wood CJ at CL in R v Horton (1998) 45 NSWLR 426. The section was cognate with, and commenced operation at the same time as, the new Evidence Act (NSW) 1995. S424A represents an important public policy, which this Court will enforce.

[4] The operative words in s424A(2) are "Evidence of an admission is not admissible unless ...". The submission was made that this provision operated in accordance with its literal meaning, and accordingly, should be given effect even though no objection to the admission of the evidence was taken on behalf of the accused at the trial.

[5] The Parliament was well aware, particularly in the context of legislation cognate with the general amendments to the scheme of evidence contained in the Evidence Act 1995, that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence. The words "is not admissible" should be construed as meaning "is not admissible over objection". The usual practice in the course of trials was part of the total context in which Parliament used these words and the narrow literal interpretation propounded on behalf of the Appellant is not appropriate.

Greg James J agreed with the judgment of the Chief Justice.

21 This interpretation of the words of that provision has been applied on a number of occasions by this Court to later re-enactments of the provision in its various guises. The most recent was in Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232.

22 In R v Lyberopoulos [2002] NSWCCA 280 the Court was concerned with the provision as it then appeared in s 108 of the Criminal Procedure Act. In that case a police officer, Constable White, gave evidence of a conversation he allegedly had with the appellant near a motor vehicle and of the conduct of the appellant in relation to a bag in which drugs had been found. At his trial the appellant gave evidence denying the evidence of Constable White. Hulme J, with the concurrence of Mason P and Simpson J stated (our underlining),

[40] The statements were made in the course of official questioning and the offence was of a type which fell within para(c) of subs1 and thus the statements were, within the terms of s108 not admissible.

[41] However, no objection was taken to the evidence. It is trite law that statutory provisions to the effect that evidence is not admissible normally mean "not admissible over objection" and that interpretation has been given to the predecessor of s108, then s424A of the Crimes Act - R v Reid [1999] NSWCCA 258 See also R v Spathis; R v Patsalis [2001] NSWCCA 476 at [416-417]

[42] Reliance was also placed on s90, s135 and s137 of the Evidence Act. The first 2 of these sections confer a discretion on the court and the reasons that inspired the Court in R v Reid to construe the expression "not admissible" as it did, mean that no error occurred when the evidence was given without objection.

[43] S137 is cast in somewhat different terms, providing as it does that:-
"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."


[44] It is clear that the evidence of Constable White as to both the statements of the Appellant and his actions in grabbing the black sports bag and in unlocking it, had at least if Constable White was believed, substantial probative value. And while there were arguments against the acceptance of his evidence and it was contradicted in part by the evidence of the Appellant, there is no particular reason to think that he would not be believed. There was no significant attack otherwise on his credibility.

[45] And I am unable to see any "danger of unfair prejudice". Whatever the meaning or operation of the phrase, it could not include the jury's belief in Constable White nor, at least in the absence of some unusual circumstances - and there were none - the possibility that the jury might believe him. Neither can there be unfairness or the danger of unfairness in the admission of evidence obtained when the procedures envisaged by s108 of the Criminal Procedure Act were not being followed, when the opportunity exists, but is not taken, to object to that evidence .

23 Another, apparently, mandatory provision dealing with a trial judge’s obligations in relation to evidence was considered in Dhanhoa. In this case the High Court was concerned with the interpretation of s 116 of the Evidence Act. That section literally requires a trial judge to give certain information set out in the section whenever “identification evidence”, as defined in the Act, is admitted.

24 After setting out the relevant statutory provisions, Gleeson CJ and Hayne J in a joint judgment stated (footnotes have not been reproduced):

[18] Although counsel for both parties to the present appeal began by accepting that the provisions of s116 are "mandatory", upon further consideration they acknowledged that, in a context such as the present, such a description may be question-begging. It is the content of the mandate that must be decided.

[19] If read literally, and apart from its statutory context, s116 could be taken to mean that a judge is always required to inform the jury that there is a special need for caution before accepting identification evidence whenever identification evidence has been admitted, even if the reliability of the evidence is not in dispute. That would be absurd. If a witness claims to have seen an accused at a particular place on a particular occasion, and the truth of that assertion is not questioned or in any way put in issue, then ordinarily there is no special need for caution before accepting the evidence. The common law principle, expressed in the passage from Domican quoted above, contains the obvious qualification that the warning is to be given where the reliability of the evidence of identification is disputed. The same qualification is implied in s116; if it were otherwise the provision would offend common sense.

[20] S114 and s115, like many other provisions of the Evidence Act, declare that evidence of a certain kind is not admissible in certain circumstances, or unless certain conditions are fulfilled. Yet evidence of a kind to which those sections refer may not be the subject of objection. Counsel for an accused person may have any one of a number of reasons for not objecting. A trial judge ordinarily will not know why no objection is taken, and may have no right to enquire. Counsel might decide not to object simply because he or she knows that that accused, upon giving evidence, will admit that the identification evidence is correct. The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection. It is the duty of the prosecution, in its case, to lead the whole of the evidence to which the accused is required to make answer. It will often appear, in the course of a defence case, that some, perhaps much, of that evidence is not in dispute. In that event, it will be appropriate for a judge to point that out to the jury.

[21] Reference was made in Festa v The Queen to in-court acts of identification. They provide a well known example of potentially unreliable identifications. Yet such identifications are often received into evidence, without objection, simply because they are not in dispute. When that occurs, it is only in the most technical sense that there is any question of "accepting" the evidence.

[22] To give s116 a literal meaning would produce a consequence that is wholly unreasonable. The statutory requirement to give the jury certain information is to be understood in the light of the adversarial context in which the legislation operates, and the nature of the information the subject of the requirement. So understood, the provision means that the information referred to is to be given where the reliability of the identification evidence is disputed.

25 In the joint judgment of McHugh and Gummow JJ the following is stated:

[53] The obligation imposed by s116 must be read in the context of the adversarial system of criminal justice. It is not to be supposed that, in enacting that section, the legislature intended that juries be given directions concerning identification evidence when identification was not an issue. It is not to be supposed that the legislature intended a trial judge to give a direction that was not relevant to the issues in the case. Not only would it be a waste of curial time and effort but the giving of an irrelevant direction would be likely to confuse the jury who understandably would be puzzled as to what significance the direction had.


Callinan J was also of the view at [91] that s 116 could not be given a “universally mandatory construction”.

26 We note by way of contrast the provision presently contained in s 275A of the Criminal Procedure Act in relation to improper questions. Section 275A(1) states that a court in criminal proceedings “must disallow a question put to a witness in cross-examination or inform the witness that it need not be answered” if the court is of the opinion that the question is of a particular nature as set out in the subsection. Section 275A(4) permits a party to object to such a question. But s 275A(5) states:

However, the duty imposed upon the court by this section applies whether or not an objection is raised to a particular question.

27 This is a clear indication, if any be needed, that Parliament understood that courts would not generally be under an obligation to reject a question to which no objection was taken and did not intend generally that other obligations imposed upon a trial judge in relation to the admission or reception of evidence would apply except where an objection is taken to the evidence. Section 275A can be compared with s 41 of the Evidence Act, which does not apply to criminal proceedings, that permits a court to disallow an improper question but does not purport to impose a duty on a court to do so irrespective of whether objection is taken to the question.

28 With respect, we find the argument contained in paragraph 20 in the judgment of Dhanhoa set out above compelling in rejecting the notion that, generally speaking, a trial judge should take upon himself or herself the role of determining the admissibility or reception of evidence to which no objection is taken by a lawyer representing an accused person. There may be provisions that unambiguously impose such an obligation on a court by the wording of the section, for example s 275A, or by reason of its subject matter; for example provisions concerned with the exclusion of evidence in the public interest such as s 130. But we do not believe that s 137 falls into either of those categories and therefore, imposes an obligation on a trial judge to reject evidence of his or her own motion where no objection is taken and the accused is legally represented. There may be exceptional situations where a trial judge is compelled to intervene in order to prevent a miscarriage of justice, but there is in our opinion no provision of the Evidence Act that requires such intervention.

29 So far as s 137 is concerned, we do not understand how a trial judge could reliably undertake the balancing exercise that the section requires between the probative value of the evidence and the danger of unfair prejudice without a complete understanding of both the Crown and defence cases and the arguments to be addressed to the jury by the parties. Yet the section is engaged when the Crown first introduces the evidence that is later impugned in this Court. This difficulty is alone sufficient to lead us to the conclusion that s 137 cannot operate to oblige a judge to reject evidence that may later be seen in the context of the whole of the trial to have resulted in a miscarriage of justice.

30 Strictly speaking it was unnecessary for the Court in Steve to determine the issues raised by construing s 137 as it did. However, nothing we have written is to be taken as suggesting that the decision was in any way erroneous in finding that the trial miscarried by the reception of the evidence in the circumstances of that particular case. Nor does it necessary follow that a miscarriage of justice would not have been found had r 4 been applied. However, we respectfully disagree with the finding that the miscarriage of justice arose from the failure of the trial judge of his own motion to reject evidence to which no objection had been taken by the solicitor for the defence.

Did a miscarriage arise in the present case?

31 The present appeal can be determined on the basis that r 4 applies and, therefore, the onus is upon the appellant to show to the Court how, in the absence of objection from an apparently competent defence counsel, the admission of the evidence as to what happened on 16 July or the making of the ADVO led to a miscarriage of justice.

32 It should be noted that the defence put forward by the appellant was not without some difficulties for defence counsel. According to the appellant it was the complainant who brought the knife to the park and threatened him with it. Yet it was the complainant who ended up with a not insignificant stab wound to the shoulder as well as some other minor injuries. Rather than complain to the police about the complainant’s behaviour, the appellant took the children to Canberra. The common experience of the jury might, at least to a prima facie view, lead them to believe that the person who produces a knife is not likely to be the person who is injured by it. Particularly, where as here, the appellant was saying that the complainant in effect managed to wound herself. The evidence of the treating surgeon was that it was unlikely to have been self-inflicted.

33 The appellant stated that the Crown case depended upon the evidence of the complainant and that the jury were directed that they needed to be satisfied of the complainant’s evidence beyond reasonable doubt. However, there was some support for the complainant’s account in the evidence of the persons who came upon the scene and the complainant’s statement to them that her husband had stabbed her. This was evidence admissible under s 66 of the Evidence Act as hearsay evidence and was available to the jury as evidence of the truth of what the complainant asserted. In our opinion the jury would clearly have recognised the probative value of that evidence, even though there was no direction to this effect given by the trial judge. There was also a Triple 0 call made by the complainant shortly after the incident that the Crown sought to use to support the truthfulness of her account. This material would not have made defence counsel’s task any easier in seeking to raise with the jury the reasonable possibility that the complainant produced the knife and wounded herself.

34 The submission on behalf of the appellant is that the combined evidence of the incident occurring on 16 July and the making of the ADVO presented the jury with evidence of a court order restraining the appellant from violent conduct toward the complainant. The argument is that this evidence “negated the impact of the evidence of good character” led by the appellant and it supported the complainant’s account of the incident of 2 August by suggesting that the appellant had “a propensity to behave in a violent or threatening manner to the complainant”.

35 The submission was made that the evidence of the incident on 16 July and the making of the ADVO was irrelevant to any issue before the jury especially in light of the fact that the appellant had pleaded guilty to the offences in relation to his abduction of the children. It was further submitted that the evidence of what occurred on 16 July was “akin to evidence of uncharged criminal conduct” and hence gave rise to the concerns expressed by members of the High Court in HML v The Queen [2008] HCA 16; 82 ALJR 723. It was argued that the ADVO gave “explicit support to the uncharged conduct and the account of the complainant”.

36 In our opinion the evidence of what occurred on 16 July and the making of the ADVO was clearly relevant to what occurred thereafter including the incident on 2 August. It was an example of background or context evidence that explained why the parties did what they did and said what they did both before and on the 2 August. It set the scene for the incident that gave rise to the charges. For example, the evidence explained why the appellant could not have direct contact with the complainant or the children and the arrangements that had to be made for his access to the children through the complainant’s parents.

37 It is the type of evidence that was recognised at common law in a series of cases including O’Leary v The King (1946) 73 CLR 566; Wilson v The Queen (1970) 123 CLR 334 and Harriman v The Queen (1989) 167 CLR 590. Such evidence has been admitted as evidence either of the relationship between the accused and some other person or of a connected series of events such that what occurred at one particular point in time in that relationship or in that series of events was relevant to a determination of what occurred at another point in time when the offence was committed. This type of evidence continues to be admissible under the Evidence Act: R v Quach [2002] NSWCCA 519.

38 The kind of evidence considered in HML, that is evidence of allegations of uncharged sexual activity between the complainant and the accused, is derived from this type of evidence but has its own peculiarities such that it has been treated with considerable circumspection by the courts. This is because its potential to prejudice the accused is extremely high and because of the difficulty in circumscribing the use to be made of the evidence to avoid it being used improperly as propensity evidence when it is not tendered for that purpose. It is the grave potential for prejudice arising from that kind of evidence that has resulted in special rules being adopted by some members of the High Court for the introduction and use of that evidence. For example it appears now to be the law that, if that type of evidence is to be used by the jury for tendency reasoning, it must be proved beyond reasonable doubt; see DJV v R [2008] NSWCCA 272. There has been no suggestion that any other type of propensity evidence has to be proved to that standard.

39 However the category of evidence into which the events of 16 July and the making of the ADVO fall has never been considered as propensity evidence even though it is admitted to explain the conduct giving rise to the criminal charges by reference to conduct on another occasion. Nor has it ever been seen to carry with it the type of prejudice that has accompanied the introduction of uncharged sexual activity in child sexual assault cases. In the present case, unlike evidence of the type considered in HML, there can be no concern that the jury could reasonably have used the evidence for propensity reasoning. The Crown in opening described it as “background”. It was never elevated to anything more than that either in addresses or in the summing up.

40 However, the incident on 16 July was also clearly relevant to the major issue before the jury: who of the appellant or the complainant might have brought a knife to a meeting between them in the context of the ongoing matrimonial disharmony? If the jury accepted the complainant’s account of the incident on 16 July, the statement attributed to the appellant about men feeling like killing their wives and children was obviously of significance in this regard. The only prejudicial aspect of the evidence was that it was probative of the prosecution case that the appellant produced the knife. It was evidence as to the appellant’s state of mind arising from his marital problems at a time relatively proximate to the incident the subject of the trial.

41 Had the appellant’s wife been found stabbed to death and the question of who was responsible had been the issue before a jury, it would clearly be relevant that a short time before the killing the appellant was expressing the thought that her conduct was capable of provoking a man to kill his wife and family. So too in the present trial it was relevant in the determination of the prosecution allegation that the appellant stabbed the complainant even though ultimately the jury found that he did not intend to inflict grievous bodily harm. But, although relevant, it was not propensity evidence. It was simply evidence of the appellant’s reaction to his marital problems that were continuing up until the time of the incident giving rise to the charges.

42 In this regard we do not believe that the making of the ADVO order impermissibly or unfairly bolstered the credibility of the complainant’s account of the incident on 16 July, especially when the jury was made aware that the appellant had consented to the order “without making any admissions”. That phrase was used a number of times during the course of the trial. In opening the Crown said:

[The appellant] did not oppose the making of that order and, indeed, made no admissions in respect to the alleged conduct that the Crown says took place on 16 July, last year.

43 In opening the case for the appellant, defence counsel said:

Our case is quite simply that he consented to an AVO on 20 July, that’s about two weeks before the event……….

He also referred to the incident of 16 July and said:

There was no threat made by [the appellant] against the children, and we would ask you ultimately to infer that it was a pretext to get her out of the house, get the children out of the house and begin an independent life away from [the appellant].

44 The complainant in evidence explained to the jury how the ADVO came to be made, and the negotiations involved in relation to whether the children should be the subject of the order, and whether she would get access to the family vehicle. It was clear from her account that the order had been the result of an agreement reached between the appellant and the complainant.

45 The statement made by the appellant in consultation with his lawyers and read aloud in the recorded interview commenced:

An AVO by consent without admissions was granted on 20th of July 2006.

46 The appellant gave evidence about the making of the ADVO and he also told the jury about the negotiations between him and the complainant carried out by lawyers at the courthouse. He accepted that his lawyer told him that he could have a hearing and contest the application but he was advised to agree to it. There was a series of questions about what he understood that agreeing to the order “without making admissions” meant. The appellant said:

….[his lawyer] tried to explain it to me saying you are agreeing [to] it but you’re not, you’re agreeing to the AVO but you’re not agreeing to doing what she said, so I understood that and it seemed like the right thing to do at the time so we just made it easy for everyone.

His counsel confirmed with him that he in agreeing to the ADVO was not agreeing with the complainant’s allegations and that the ADVO was made with consent. The appellant commented, “yeah straight away, five minutes and out”.

47 We have no doubt that the jury would have understood that the ADVO was in effect an arrangement made between the complainant and the appellant without any decision being made by the court about what happened on 16 July. The making of the ADVO was incapable of having any effect upon the jury‘s assessment of the credibility of the complainant.

48 For evidence to be rendered inadmissible under s 137, there must be a real risk of the evidence operating unfairly against the accused: R v GK [2001] NSWCCA 413; 53 NSWLR 317. We are unable to see any risk of the jury misusing the evidence of the events of 16 July or the making of the ADVO.

49 Nor do we see how the reception of that evidence improperly affected the jury’s evaluation of the appellant’s good character. His character was never in issue. But the evidence as to the incidents of 16 July was admissible regardless of what implications it carried for the accused’s character.

50 But even if the arguments now mounted against the reception of this evidence had any merit, it would not follow that there has been a miscarriage of justice. The appellant has to confront the fact that no objection was taken to the evidence yet there can be no real suggestion that defence counsel was otherwise incompetent in the manner in which he defended the appellant. It is clear from his address to the jury, that defence counsel used the evidence to what he saw was the appellant’s advantage. This was not a case of defence counsel having to make the best of evidence that was admitted over objection.

51 In effect defence counsel, in the latter part of his address to the jury, sought to portray the complainant as a person controlling the appellant through the use of the incident on 16 July (although counsel refers to 15 July) and the ADVO. He was attempting to persuade the jury that the events of 16 July was not as serious as the complainant made out but that she used that incident and the appellant’s agreement to the resulting ADVO to manipulate him and his access to the children.

52 Part of what he said is as follows:

………All that matters at the end of the day between these two people are their children and arrangements as to how they’re going to be cared for and who’s going to see them. That’s what you might think is the real issue. Who is controlling that? [The complainant]. How does he see his kids? She gives him written consent, she picks the time, she picks the location, she picks the day, she picks the circumstances. He agreed to all of that in the AVO. You might think there is something funny about the AVO and the events of 15th.

53 Defence counsel then went on to remind the jury of evidence of the complainant’s father that he did not think that the incident on 16 July was “a marriage busting event”. He submitted to the jury that the appellant did not think very much happened on that date except that he was “bundled out of his house and his wife apparently relocated immediately”. He continued in this vein through the events leading up to the incident in the park. He told the jury that the appellant was “exposed to her whim” in relation to his desire to see the children. He used this to attack the credibility of the complainant and to support his client’s version of events.

54 We are satisfied that the first ground of appeal is without merit. Counsel’s decision not to object to the evidence of the incident of 16 July and the ADVO was not wrong but in any event fell well within his discretion to conduct the defence as he saw fit and did not deprive the appellant of a chance of an acquittal: see Seymour v R [2006] NSWCCA 206; 162 A Crim R 576 at [20] to [21].

Ground 2

55 The second ground contends that the trial judge failed to adequately direct the jury in relation to the evidence of the incident on 16 July and the ADVO. Again the appellant is faced with the difficulty that defence counsel asked for no further directions.

56 The simple point argued is that the trial judge should have directed the jury that the incident of 16 July and the making of the ADVO could not be used in the assessment of the veracity of the complainant. The simple answer is that there was no reason for the trial judge to give such a direction.

57 It was for the jury to determine whether to accept the evidence of the complainant in her account of what occurred on 16 July. If they did then, as we have noted, the evidence of what the accused said supported the complainant’s account of what happened on 2 August and who produced the knife. If they did not believe the complainant’s account of 16 July or they were unable to form any view about it, then it would not have assisted them in determining whether she was telling the truth about what she said was an attack upon her. This is a matter of common sense and well within the jury’s understanding of how to use the evidence of 16 July without being instructed about it by the Judge.

58 In the context of the evidence about the making of the ADVO we find it impossible to see how the jury would have used the evidence to support the complainant’s account. As we have already noted in dealing with ground 1, the jury could have had no misunderstanding as to how the ADVO came to be made and that it said absolutely nothing about whether the complainant’s account of the incident on 16 July was true or not.

59 It is further argued that the trial judge should have directed the jury against propensity reasoning. The appellant relied upon the directions required when evidence of other sexual acts has been introduced in child sexual assault cases as context evidence warning the jury against using the evidence for tendency reasoning. As we have already noted, that type of evidence has a very strong potency to be prejudicial to the accused and this is why the courts have been so astute to ensure that it is received only in appropriate cases and that the jury are directed as to the limitations of its use. The evidence in this case did not have the same potency to prejudice. In any event there was in our view no real likelihood of the jury using tendency reasoning to conclude that it was the appellant who took the knife to the meeting.

60 The trial judge could have said more about the relevance of the evidence of the incident on 16 July but it would not have been to the appellant’s advantage because the Crown were not relying upon the evidence as proof of the appellant’s state of mind as it might have done. The Crown had described it as “background” and the evidence was not otherwise relied upon to prove that it was the accused who brought the knife to the park.

61 The second ground has no merit and, therefore, the appeal against conviction should be dismissed.

Sentence

62 As we have already noted the appellant was sentenced to an overall term of imprisonment of 6 years 6 months with a non-parole period of 4 years 4 months. That overall sentence was made up as follows: on each of the offences of taking a child contrary to s 87(1), a non-parole period of 2 years with a balance of term of 1 year 3 months commencing 1 June 2007, and on the offence of malicious wounding, a non-parole period of 3 years commencing on 1 December 2008 with a balance of term of 2 years. The appellant is eligible to be released to parole on 30 November 2011. There was also a related matter under s 166 of the Criminal Procedure Act for a breach of an apprehended violence order for which the appellant was sentenced to a fixed term of 12 months to date from 1 June 2007 and expiring on 31 May 2008.

63 There is only one ground of appeal being that the sentences imposed are manifestly excessive.

64 The appellant was born on 28 August 1976 in Australia of Italian parents. He had no prior convictions. There was little in his background of relevance and he has close relationships with his father, his mother having died in 1996, and his elder siblings. He has been employed mainly as a truck driver and there was a reference from his employer in evidence offering to re-employ him. He married the complainant in 2000, and although the marriage was for the main part happy, the appellant began to suspect his wife of infidelity. This led to matrimonial disharmony and the incident of 16 July.

65 When interviewed for a pre-sentence report the appellant maintained his innocence of the malicious wounding offence. He said he took the children because he “did not know what [the complainant] was going to do”. The officer preparing the report came to the opinion that the appellant was trying to place blame on the complainant and lacked insight.

66 There was before the Judge a report from a psychologist that indicated that the appellant need “ongoing treatment for longstanding symptoms of depression and anxiety which have been aggravated by his incarceration”. At the time of being interviewed the appellant was suffering “significant depression, anxiety and low self-esteem”. The psychologist was of the opinion that with appropriate medical treatment and psychotherapy the appellant’s prognosis was positive.

67 The Judge found that the appellant was “extremely fond of his children” and that they were a major part of his life. He stated:

I am satisfied beyond reasonable doubt that the abduction of the children was to some extent premeditated. I have also found that he took the knife with him, although I am not satisfied beyond reasonable doubt, and I could not be in view of the jury’s verdict, that he intended to use it……………….


He held that the appellant resented losing the children, he blamed his wife and he “decided to take the law into his own hands”. The Judge went on:

In this country we have a complex system of family law, which is designed to protect the interests of both children and their parents. The offender decided to fly in the face of this system. I am not just talking about the Family Law Act, but I am talking about the laws relating to domestic violence.

68 The Judge determined that the offences were “very serious’ and that both general and personal deterrence were important factors in arriving at the appropriate sentence. His Honour referred to the decision of this Court in Hamid v R [2006] NSWCCA 302; 164 A Crim R 179 that was concerned with sentencing for offences amounting to domestic violence and the approach to be taken by the courts. In that case Justice Johnson, with whom the other members of the Court agreed, stated:

86 In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC.

69 In respect of the child abduction offences the Judge stated that the sentence without the pleas of guilty would have been 4 years. The sentences also took into account “his custody before trial and the restrictive bail conditions”. The appellant had served 3 months before being released to bail. The Judge also found special circumstances resulting from the fact that his time in custody would be more difficult because of depression and the fact that he would have no contact with his children.

70 It was submitted on behalf of the appellant that the child abduction offences were to the lower end of the scale notwithstanding that the Judge found that they were premeditated to a degree. Reliance was place upon the decision of this Court in WNB v R [2006] NSWCCA 269. The facts in that matter are that the appellant, who was the natural father of the child, took the child out of the care and control of the Minister for Community Services by removing the child from a family gathering. The appellant then took the child to Queensland where the child lived with the appellant and the natural mother. Eventually the police located the appellant and he was arrested. The appellant was sentenced to imprisonment for 18 months with a non-parole period of 9 months. This Court intervened because of the manner in which the offence had been charged alleging a taking between 11.05 and 11.15am at Morisset. The Court held it could not take into account the detention of the child in Queensland. The sentence imposed was reduced to 12 months with a non-parole period of 6 months.

71 Nothing can be gleaned about the appropriateness of the sentences in the present case from that imposed in WBN because of the unusual nature of the charge in that case. In the present case apart from the ADVO the appellant would have been entitled to have custody of the children. But he knew about the order as he had consented to it. He knew its terms and he knew that the children were to be in the care and control of his wife. He carried out the threat he made on 16 July to “take the kids”. The Judge found that the offence was premeditated to a degree. On the other hand it was he who notified the police of his location and waited there while the police found him and took him into custody. There is not the slightest suggestion that the children were in anyway mistreated. Clearly seeing himself as part of a news item on the television brought the appellant to his senses.

72 We appreciate the discretion that resides in a sentencing judge particularly when he or she has conducted a trial and has a greater sense of the subtleties of the facts and personalities than might be obtained from reading the papers. However, as against a maximum penalty of 10 years, a starting sentence of four years is in our opinion manifestly too severe. It could not have reasonably been more than three years notwithstanding a degree of premeditation. This is made apparent by putting to one side the facts surrounding the stabbing and the method by which the appellant obtained the children. Had the appellant only been charged with the abduction offences, we cannot accept that a sentence of four years would have been appropriate for a person of prior good character who had the children for a short period of time, and who notified the police of his whereabouts voluntarily so that the children could be recovered. With respect we do not see sufficient, if any regard, being paid to the importance of this latter fact. The Judge stated that the break up of the family “has had a very profound effect on [the appellant] leading him to unwise actions”. Any gaol penalty imposed upon such a person presents strong denunciation of the offence and reflects a significant measure of general deterrence.

73 We appreciate that the sentences for the child abduction offences were to be served concurrently with the sentence for the malicious wounding offence except for a period of 18 months, but the reduced sentences we would impose affect the totality of the criminality and the degree to which the sentences for these offences should be served cumulatively with the sentence on the first count. Because of the sentence we intend to impose for the offence of malicious wounding, it is appropriate to impose a fixed term sentence for each count being the equivalent of the appropriate non-parole period for each of these offences. We have given the appellant the benefit of a discount of 15 per cent for his pleas. The sentence is backdated 3 months for pre-sentence custody.

74 Similarly we are of the view that a sentence of five years as against a maximum penalty of seven years was excessive for the offence in count 1. The difficulty is that as at the time of sentencing the appellant the maximum penalty for malicious wounding was the same as for maliciously inflicting grievous bodily harm, yet the most serious wounding will inevitably amount to grievous bodily harm. Grievous bodily harm can cover injuries of very great seriousness amounting to little less than death, such as where the victim is left so seriously brain injured as to be in a vegetative state. On the other hand a wounding can be on its face a most minor injury because of the definition of “wound”. We note that under the present scheme of offences of wounding and the infliction of grievous bodily harm, the maximum penalty for wounding is still 7 years imprisonment, see s 35(4), but the maximum penalty for the infliction of grievous bodily harm is imprisonment for 10 years, s 35(2).

75 There were clearly aggravating factors present here in that the appellant was in breach of a court order protecting the complainant, it was a case of domestic violence, he brought a knife to the scene intending to use it in some way even if not to inflict injury of a serious kind, and there were several stabs aimed at the complainant even though only one connected. The physical injury inflicted was relatively minor although the psychological reaction of the complainant was understandably severe. The complainant had a two and a half centimetre laceration to her left upper arm that penetrated to the fatty structures under the skin. The wound was stitched. There was no suggestion of any permanent injury or scarring. She also had a number of superficial lacerations. As with all cases where the gravamen of the offence is the injury inflicted, that will generally be a very significant factor in determining the appropriate sentence. The Judge made no finding as to whether the malice was intent or recklessness but by reason of the nature of the weapon used and the number of stabbing actions we would find that the appellant intended to inflict some injury although not grievous bodily harm. In our opinion the proper sentence could not have reasonably been more than 3 years 6 months.

76 We have found special circumstances for the reasons given by his Honour. We intend that the appellant will serve an overall sentence of 4 years 6 months with an overall non-parole period of 3 years from 1 March 2007

77 In determining the sentences now to be imposed upon the appellant we have taken into account material tendered for this purpose as to the courses in which the appellant has been involved during the period of his imprisonment and his behaviour otherwise while in custody. This material shows a commitment by the appellant to make the most of his period in custody towards his rehabilitation.

78 The orders of the Court are:

1. The appeal against conviction is dismissed.


2. Application for leave to appeal is granted and the appeal allowed.

3. The sentences imposed in the District Court are quashed.

4. In lieu the appellant is sentenced as follows;

On each of counts 2-4: a fixed term of 15 months to date from 1 March 2007 and which expired on 31 May 2008.
On count 1: a non-parole period of 2 years 3 months to date from 1 December 2007 with a balance of term of 18 months. The appellant is eligible to be released to parole on 1 March 2010.
On the s166 matter: a fixed term of 6 months to date from 1 March 2007 and which expired on 30 September 2007.
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