Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: VERSI, Peter v R [2013] NSWCCA 206 Hearing dates: 16 August 2013 Decision date: 14 November 2013 Before: Basten JA at [1];
Adams J at [37];
Latham J at [201]Decision: (1) Leave to appeal against conviction is granted.
(2) The appeal against conviction is dismissed.
(3) Leave to appeal against the sentences imposed is granted.
(4) Appeal against the sentences is dismissed.
(5) On count 2 of the indictment the appellant's fixed term is directed to recommence on 14 November 2013 and expire on 23 December 2013.
(6) On count 3 of the indictment, the appellant's non-parole period is directed to recommence on 14 November 2013 and expire on 23 December 2014, with a balance of term of 12 months commencing on 24 December 2014 and expiring on 23 December 2015.
(7) The appellant is to be released on parole on 24 December 2014.
Catchwords: CRIMINAL LAW - appeal against conviction - historical child sexual assault - verdict not unreasonable - errors in trial transcript - corrected by substantial agreement - appellate court not required to listen to transcript
EVIDENCE - tendency and coincidence evidence - confusing directions - coincidental "events" - appropriate coincidental reasoning
CRIMINAL LAW - appeal against sentence - manifestly excessive - whether sentence practices at the time of the offences should be appliedLegislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Probation and Parole Act 1983
Probation and Parole Regulation 1984
Sentencing Act 1989Cases Cited: AJB v R [2007] NSWCCA 51; (2007) 169 A Crim R 32
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
HML v The Queen [2008] HCA 16; 235 CLR 334
Khoury v R [2011] NSWCCA 118
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MPB v R [2013] NSWCCA 213
Mraz v The Queen (1955) 93 CLR 493
Pearce v The Queen [1998] HCA 57 ; 194 CLR 610
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
PWB v R [2011] NSWCCA 84
R v Evans (1987) 8 NSWLR 540
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Hermann (1988) 37 A Crim R 440
R v Jenkins (1999) NSWCCA 110
R v Kennedy [2000] NSWCCA 527
R v Kirkman (1987) 44 SASR 591
R v Maclay (1990) 19 NSWLR 112
R v MJR [2002] NSWCCA 129; (2002) 130 A Crim R 481; (2002) 54 NSWLR 368
R v Morley [1985] WAR 65
R v Moon [2000] NSWCCA 534; (2000) 117 A Crim R 497
R v O'Brien [1984] 2 NSWLR 449
R v Paivinen [1985] HCA 39; (1985) 158 CLR 489
R v Rogers (1987) 8 NSWLR 236
R v Storey (1978) 140 CLR 364
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Details
- AGLC
- Versi v R [2013] NSWCCA 206
- Case
- [2013] NSWCCA 206
- Decision Date
CaseChat Overview and Summary
In the case of Versi v R, the appellant, Versi, was appealing against his conviction and sentence for historical child sexual assault. The appeal was heard in the High Court of Australia. The respondent, R, was the state of New South Wales, represented by the Crown Solicitor. The appeal raised two main issues: the first concerned the handling of coincidence evidence in the trial, and the second addressed the severity of the sentence imposed.
The court was required to determine whether the trial judge's directions to the jury regarding the use of coincidence evidence were appropriate and whether the sentence imposed was manifestly excessive. The coincidence evidence in question related to incidents other than those forming the basis of the charges, but which had some similarities. The court had to consider whether the trial judge's directions were confusing and whether the coincidence evidence was properly admitted and used.
The court found that the trial judge's directions to the jury concerning the coincidence evidence were not in themselves grounds for appeal, as the admissibility of the evidence had not been challenged. The court also found that the evidence was appropriately admitted and used by the jury to assess the credibility of the complainant's account of the alleged assault. Regarding the sentence, the court concluded that while the sentence was severe, it was not manifestly excessive, taking into account the nature and circumstances of the offences and the need for general deterrence. The court emphasised that the sentence practices at the time of the offences should not be applied to the current appeal.
The High Court dismissed the appeal against both conviction and sentence, upholding the trial decision in its entirety.
The court was required to determine whether the trial judge's directions to the jury regarding the use of coincidence evidence were appropriate and whether the sentence imposed was manifestly excessive. The coincidence evidence in question related to incidents other than those forming the basis of the charges, but which had some similarities. The court had to consider whether the trial judge's directions were confusing and whether the coincidence evidence was properly admitted and used.
The court found that the trial judge's directions to the jury concerning the coincidence evidence were not in themselves grounds for appeal, as the admissibility of the evidence had not been challenged. The court also found that the evidence was appropriately admitted and used by the jury to assess the credibility of the complainant's account of the alleged assault. Regarding the sentence, the court concluded that while the sentence was severe, it was not manifestly excessive, taking into account the nature and circumstances of the offences and the need for general deterrence. The court emphasised that the sentence practices at the time of the offences should not be applied to the current appeal.
The High Court dismissed the appeal against both conviction and sentence, upholding the trial decision in its entirety.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The rule with respect to the admissibility of coincidence evidence is formulated in the negative, namely that coincidence evidence is not admissible unless two conditions are satisfied: Evidence Act 1995 (NSW), s 98(1). The first condition is procedural (the giving of notice in writing); the second involves the satisfaction of the court that the evidence has "significant probative value". The application of these conditions was not raised by the grounds of appeal concerning the directions as to the use of the evidence. However, the way in which the evidence can be used, if admitted, is identified in s 98(1) in the following terms (simplified to identify the principle), namely the purpose of the proposed tender is to prove "that a person did a particular act ... on the basis that, having regard to any similarities in the events or the circumstances in which they occurred ... it is improbable that the events occurred coincidentally". Evidence adduced for that purpose is described in the Evidence Act as "coincidence evidence": Dictionary, Pt 1 coincidence evidence. The term covers much of what under general law principles was described as "propensity" or "similar fact" evidence, although propensity evidence is also covered by what is now "tendency" evidence, dealt with in s 97. It is admissible if it has sufficient probative value, despite the fact that (prejudicially) it reveals the commission of some other offence, with which the accused is not charged, with the concomitant danger that the jury may reason improperly from satisfaction that the accused committed the uncharged offence to satisfaction that he was guilty of the offence charged. The term "coincidence" is not always apt to describe that which is otherwise improbable. The evidence of the complainant with respect to count 2 was that the applicant asked the complainant to assist him with putting cream on his penis and testicles. The other incident, of which evidence was given by Ms SD1, to whom the applicant was also a stepfather when she was an adolescent, involved him inviting her into the bathroom and requesting her to hold his erect penis "so that he could fix his hernia". Her evidence was that when she took hold of his penis he "proceeded to sort of grind his hips against my hand". The question for the jury was whether the incident with the complainant in fact occurred as she described. As explained in Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 482 (Mason CJ, Deane and Dawson JJ): Section 98 provides that "[e]vidence that 2 or more events occurred is not admissible" for the identified purpose unless the conditions already noted are fulfilled. A note to the section provides that "[o]ne of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding": needless to say, s 98 is not a proscription of evidence of the event the subject of the charge. It is to be understood as a conditional exclusion of evidence of events involving misconduct by the accused on one or more occasions other than that the subject of the charge. That which is significantly probative of the charge is not the fact of other complaints, but proof that the other events occurred.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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