WC v The Queen

Case [2015] NSWCCA 52


Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

WC v R

Medium Neutral Citation: 

[2015] NSWCCA 52

Hearing Date(s): 

14 November 2014

Decision Date: 

2 April 2015

Before: 

Meagher JA at [1]; 
Simpson J at [42];
Wilson J at [43]

Decision: 

1. Extend to 11 August 2014 the time for the applicant to give notice of appeal and of application for leave to appeal.
2. Refuse the applicant leave under r 4 of the Criminal Appeal Rules to raise grounds of appeal 1 and 2.
3. Refuse the applicant leave to appeal against the aggregate sentence imposed on 15 April 2013.

Catchwords: 

CRIMINAL LAW – appeal against conviction – aggravated indecent assault – Crimes Act 1900 (NSW) s 61M(2) – whether primary judge erred in admitting recorded evidence from a prior trial of a witness not the complainant – whether admission led to a substantial miscarriage of justice

CRIMINAL LAW – sentence – aggravated indecent assault – Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(k) – aggravation of sentence where offender abused a position of trust or authority in relation to the victim – whether sentencing judge accounted for the same underlying conduct twice in considering ‘trust’ and ‘authority’

Legislation Cited: 

Crimes Act 1900 (NSW), s 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), 21A(2)(k)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 306; Div 4 Pt 5
Evidence Act 1995 (NSW), s 159
Criminal Appeal Rules, r 4
Criminal Procedure Regulation 2010, cl 24

Cases Cited: 

Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232
FP v R [2012] NSWCCA 182
Lazaris v R [2014] NSWCCA 163
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Picken v R; R v Picken [2007] NSWCCA 319
R v FDP [2008] NSWCCA 317; 74 NSWLR 645
MRW v R [2011] NSWCCA 260
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
R v Tripodina (1988) 35 A Crim R 183

Category: 

Principal judgment

Parties: 

WC (Appellant)
Regina (Crown)

Representation: 

Counsel:
G Scragg (Applicant)
J Girdham (Crown)

Solicitors:
Dena Lenz (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 

2011/268820

Decision under appeal: 

 Court or Tribunal: 

District Court of New South Wales

  Jurisdiction: 

Criminal

  Date of Decision: 

15 April 2013

  Before: 

Letherbarrow DCJ

  File Number(s): 

2011/00268820

JUDGMENT

  1. MEAGHER JA: On 8 November 2012, WC was convicted of three offences of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act1900 (NSW). Each offence was committed on P, the daughter of his de facto partner, who was 12 years of age at the time those offences were committed in August 2011. The trial at which WC was convicted was the fourth trial commenced in relation to those charges.

  2. The second of those trials commenced on 17 October 2012. P and her younger sister,…

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WC v The Queen [2015] NSWCCA 52
Case
[2015] NSWCCA 52
Decision Date

CaseChat Overview and Summary

The appellant, WC, appealed against his conviction and sentence for aggravated indecent assault. The appeal was heard by the NSW Court of Criminal Appeal. The central issue was whether the primary judge erred in admitting recorded evidence from a prior trial of a witness, S, who was not the complainant, and whether this led to a substantial miscarriage of justice. A secondary issue was whether the sentencing judge accounted for the same underlying conduct twice in considering the aggravation of sentence where the offender abused a position of trust or authority in relation to the victim.

The court found that the primary judge did not err in admitting the recorded evidence of S. The evidence was hearsay and not made admissible by the provisions of Pt 5, Div 4 of the Criminal Procedure Act because S was not the or a complainant in the relevant proceedings. The court further found that the admission of this evidence did not lead to a substantial miscarriage of justice. The court also found that the sentencing judge did not account for the same underlying conduct twice in considering the aggravation of sentence. The court found that the sentencing judge properly considered the abuse of trust and authority as separate factors in determining the sentence.

The appeal was dismissed. No orders were made regarding sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Count 3. This offence (which was the first in time) occurred on a weekend early in August 2011, whilst WC was at home with P and her sister was in the shower. P was lying on her stomach on a lounge in the lounge room. WC came into the room and laid on top of her and commenced to “dry hump” her before rolling her on to her back and pulling her pants down. WC then pulled his own pants down and placed his penis on top of P’s vagina and continued to “hump” her until he ejaculated on her stomach.Ground 1: Error admitting DVD evidence of SGround 2: Admission of DVD evidence of S by consent resulted in a substantial miscarriage of justice These two grounds may be considered together. The following submissions were made in support of them. First, it is said that S’s evidence (excluding the JIRT interview) was hearsay and not made admissible by the provisions of Pt 5, Div 4 of the Criminal Procedure Act because S was not the or a complainant in the relevant proceedings. All of that is correct. Section 306I provides that the hearsay rule does not prevent the admission of a record of the original evidence of a complainant, such as P, in a new trial proceeding, such as was the fourth trial. It did not, however, apply to the admission of S’s evidence in that trial. Secondly, and for the reason that it was hearsay, it was submitted that the trial judge erred in admitting that record of S’s evidence. It is acknowledged that this evidence was not objected to. That is fatal to WC’s argument that its admission involved any error on the part of the trial judge. The hearsay rule (Evidence Act 1995 (NSW), s 59) is a rule that excludes evidence of an out-of-court statement or representation as proof of the existence of a fact asserted by that statement or representation. In its terms, s 59(1) provides that such evidence “is not admissible”. As Giles JA observed in Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232 at [24], those words (which are also used in ss 76, 97, 98, 102 and 114 as well as other provisions of that Act) “are to be contrasted with “is not to be adduced” in ss 118 and 119 and similar directory words in other provisions”. In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Spigelman CJ said at [149] that ordinarily “not admissible” in the Evidence Act means “not admissible over objection”. That construction of those words is now well accepted. See the cases cited by Giles JA in Gonzales v R at [26] as well as R v FDP [2008] NSWCCA 317; 74 NSWLR 645 (McClellan CJ at CL, Grove and Howie JJ) and Lazaris v R [2014] NSWCCA 163 (Bellew J, Hoeben CJ at CL and Adamson J agreeing). In Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at [20], Gleeson CJ and Hayne J note that evidence declared by the Evidence Act to be not admissible in certain circumstances, or unless certain conditions are fulfilled, is often not the subject of objection for various reasons: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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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