SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: / Wilson v The QueenCitation: / [2016] ACTCA 56
Hearing Date: / 30 September 2016
DecisionDate: / 18 October 2016
Before: / Refshauge J
Decision: /
- The application for a stay of sentencing and for bailbe dismissed.
- The parties be heard as to consequential orders.
Catchwords: / APPEAL – CRIMINAL LAW – Sentencing – multiple historical child sexual assault and indecency convictions – stay of sentencing proceedings – bail – continuation of bail pending the hearing of the appeal – alleged inconsistencies of the verdicts – interventions by the trial judge – principles allowing interventions by the trial judge – consideration – poor health of the accused – serious medical condition – exceptional circumstances leading to a delay of sentencing
Legislation Cited: / Bail Act 1992 (ACT) s 9E
Corporations Act 2001 (Cth) s 588G(2)
Corrections Management Act 2007 (ACT)s 53
Court Procedures Rules 2006 (ACT)
Workplace Relations Act 1996 (Cth) s 298P(3)
Cases Cited: / ASIC v Edwards [2005] NSWSC 1278; 56 ACSR 290
Cook vTheQueen [2016] VSCA 174
Costa v The Queen [2013] VSCA 5
Construction, Forestry, Mining and Energy Union vHamberger Industrial Advocate [2001] FCA 1442
Galea v Galea (1990) 19 NSWLR 263
Jones v National Coal Board [1957] 2 QB 55
Lockwood vPolice (2010) 107 SASR 237
MacKenzie v The Queen (1996) 190 CLR 348
Masoud v The Queen [2000] FCA 435
Michael v Western Australia [2007] WASCA 100
Michel v The Queen [2010] 1 WLR 879
Nafranec v Nicol [2012] WASC 436
Nona v The Queen (No 3) [2012] ACTCA 60
Osland v The Queen (1998) 197 CLR 316
R v BJW (2000) 112 A Crim R 1
R v Brdarovski (2006) 166 A Crim R 366
R v Damic [1982] 2 NSWLR 750
R v Davies [1984] 3 NSWLR 572
R v De Marchi [1983] 1 VR 619
R v DM [2010] ACTSC 137
RvEsposito (1998) 45 NSWLR 442
R v Johnson [2015] QCA 270
R v Martin [2012] NSWSC 801
R v Mawson [1967] VR 205
R v Matthews (1984) 78CrApp R 23
RvMeyboom (2012) 256 FLR 450
R v Samani [2016] ACTCA 48
R v T, WA (2014) 118 SASR 382
RvWR [2009] ACTSC 93
Ratten v The Queen (1974) 131 CLR 510
RPS v The Queen (2000) 199 CLR 620
Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290
Singleton v Police [2009] SASC 41
Stott v The Queen [2016] ACTCA 36
Wright v The Queen [2016] NSWCCA 122
Yuill v Yuill [1945] P 15
Parties: / Brian Christopher Wilson(Appellant)
The Queen(Respondent)
Representation: / Counsel
Mr B Buckland (Appellant)
Ms M Jones (Respondent)
Solicitors
Ben Aulich & Associates (Appellant)
ACT Director of Public Prosecutions(Respondent)
File Number: / ACTCA 48 of 2016
Decision under appeal: / Court/Tribunal:ACT Supreme Court
Before:Elkaim J
Date of Decision:29 August 2016 – 9 September 2016
Case Title:R v Wilson
Court File Number:SCC 213 of 2015
REFSHAUGE J:
1.The applicant, Brian Christopher Wilson, was charged with 16 sexual offences against children said to have been committed between 1973 and 1999.
2.On 29 August 2016, he was arraigned and pleaded guilty to three of the charged offences and not guilty to the remaining 13.
3.He was thereupon tried before Elkaim J and a jury on the 13 charges and, on 5September 2016 was acquitted of one charge by direction. On 9 September 2016, he was found guilty by the jury on nine of the remaining offences and acquitted of three.
4.Elkaim J granted Mr Wilson bail until 8 October 2016 when he was required to surrender thereupon himself to ACT Corrective Services being then remanded in custody. The proceedings were listed for sentence on 9 November 2016.
5.Mr Wilson has now commenced an appeal against his convictions and has applied for a stay of the sentencing proceedings and for a continuation of his bail.
The law
6.The Court Procedures Rules 2006 (ACT) permit an appeal to be commenced against the conviction of an accused person prior to sentence being imposed. See RvMeyboom (2012) 256 FLR 450 at 454; [15],455-6; [30]. That, however, does not determine whether the appeal should be heard before sentence or that the sentencing proceedings should be stayed until the appeal against conviction is heard.
7.Indeed, in Nona v The Queen (No 3) [2012] ACTCA 60, I considered that, ordinarily, a stay of sentence should not be ordered merely because an appeal against conviction has been commenced.
8.That follows a line of cases commencing with R v De Marchi [1983] 1 VR 619, where the Full Court of Victoria had to consider whether to grant leave to appeal against a conviction before sentence had been passed. That was a slightly different situation from that here but the principles were appropriate.
9.The Court held at 622-4 that it was undesirable, inconvenient and wrong as a matter of policy for the application for leave to be heard before sentence had been passed.
10.This approach was followed in a non-criminal, but analogous, situation where proceedings for a penalty to be imposed following findings that conduct breaching regulatory provisions of a relevant enactment were sought to be stayed pending appeal against the findings of breach. In the industrial jurisdiction, the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union vHamberger Industrial Advocate [2001] FCA 1442, Lee, Finn and Mirkel JJ refused to grant leave to appeal from findings of the Trial Judge who had made declarations that certain unions and union officials had contravened s 298P(3) of the Workplace Relations Act 1996 (Cth), following the decision in R v De Marchi.
11.In a corporate context, Barrett J followed both decisions in ASIC v Edwards [2005] NSWSC 1278; 56 ACSR 290, when declining to stay penalty proceedings following the making of declarations as to contraventions of s 588G(2) of the Corporations Act 2001 (Cth) which the defendant had challenged on appeal.
12.A similar situation arose in Masoud v The Queen [2000] FCA 435 where, prior to the erection of the Alexander Maconochie Centre, convicted persons were transferred to prisons in New South Wales and removed from the Belconnen Remand Centre. In that case, an application by the accused, who had been found guilty by a jury and remanded in custody for sentence, was made to restrain his removal from Canberra to New South Wales. Miles J declined to make such an order relying on, inter alia, what had been said in R v De Marchi.
13.To interfere with the ordinary processes of the criminal law where sentence ordinarily follows from a finding of guilt is to fragment those processes which, as I explained in RvWR [2009] ACTSC 93, is highly undesirable. As Miles J said in Masoud vTheQueen at [11], there are “powerful reasons of policy” why an appeal against conviction should not proceed without sentence having been passed.
14.All these cases, however, acknowledge that there may be “most unusual circumstances” (Masoud v The Queen at [11]), “exceptional cases” (R v De Marchi at 622) where “injustice will be done” (ASIC v Edwards at [16]) in which it would be appropriate to proceed with an appeal against conviction prior to sentence and, in some cases, with sentencing proceedings being stayed.
15.Indeed, in R v De Marchi, the Court was prepared to proceed with the appeal itself in that case because “the points involved in this appeal were in very narrow compass.” It heard the appeal and dismissed it.
16.There are other circumstances. For example, in Costa v The Queen [2013] VSCA 5, there was an obvious “serious departure from the prescribed processes of the trial” caused by alleged improper communications between court staff and jurors such that it was appropriate to proceed with the appeal immediately.
17.In Nona v The Queen (No 3), it was held that, as the sentence date had been delayed and was unlikely to be able to be re-set prior to the appeal, it was appropriate to stay sentencing until after the appeal had been heard. I note that no question of the strength of his prospects of success on the appeal was relevant to that decision, despite it possibly being suggested during the hearing of this application.
18.The grant of a stay pending appeal has recently been considered in R v Samani [2016] ACTCA 48 at [8]-[10]. In large part, the grant of a stay will depend on whether the stay is necessary to preserve the subject matter of the litigation. Such a decision is a matter of discretion and, while special or exceptional circumstances may not be required (though they will under s 9E of the Bail Act 1992 (ACT), if bail is sought following the imposition of a term of imprisonment), the Court will carefully consider the balance of convenience and the rights and interests of the parties. The principles relating to the grant of bail following such a stay have been set out in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290.
The application
19.Ordinarily when a person has been convicted of a serious offence for which a sentence of imprisonment is inevitable or even highly likely, an accused person will, following the finding of guilt by a judge alone or a jury, will be remanded in custody pending sentence.
20.In this case, Elkaim J delayed Mr Wilson being remanded in custody for one month so that he could arrange his affairs prior to incarceration and to obtain a mental health report from a nominated psychiatrist in Sydney.
21.While such an approach is rare in Australia, so far as I am aware, it appears to be more common in the United States of America, where persons who have been sentenced to imprisonment may be directed to surrender to custody sometime in the future. I saw the fairness of granting some time in the community where there are matters to which a prisoner needs urgently or in fairness to address before serving a term of imprisonment in Stott v The Queen [2016] ACTCA 36.
22.There were, in this case, two bases on which it was said that the stay sought should be granted. In the first place, Mr Wilson was 75 years old, in poor health, showing signs of brain disease which might suggest the early stage of dementia, so that incarceration would be substantially harder on him than on other prisoners. Secondly, it was said that the prospects of success of the appeal were strong.
23.These matters were sufficient, it was submitted on Mr Wilson’s behalf, to justify the stay of the sentencing proceedings and his continued bail pending the hearing of the appeal. It was accepted that the appeal could not be heard until the sittings of the Court of Appeal in April 2017.
Mr Wilson’s health
24.As noted, Mr Wilson is 75. The offences were said to have occurred between 1973 and 1999. They were historical sexual assault cases.
25.Prior to trial, Mr Wilson was assessed by Associate Professor Tuly Rosenfeld, who advised Mr Wilson’s lawyers:
Mr Wilson’s C.T. scans show signs of brain disease. That suggests the early stages of dementia. It is not advanced enough to impact Mr Wilson’s trial however it may progress in the next few years and if Mr Wilson is found guilty I should see him again before his sentence hearing.
26.After sentence, further contact was made with Associate Professor Rosenfeld. He advised orally as to Mr Wilson’s current state of health:
He is generally in a bad way. He has signs of brain disease, heart problems and hypertension. He is overweight and doesn’t really look after himself.
If he’s put in gaol he won’t do very well. He may have trouble getting the medical attention he needs. He is not a healthy man.
27.As to his life expectancy, Associate Professor Rosenfeld advised:
If he has a long sentence his sentence will outlive him. If I was assessing his life expectancy for an insurance claim he is bad enough that I would discount the average by 50%. At 75, statistically he should live for about 5-10 years however I think he is likely to suffer some sort of terminal cardiac event or other terminal event in the next five years.
Prospects of success on the appeal
28.The Notice of Appeal set out four grounds of appeal. They were:
a)The verdicts of the jury in respect of counts 4, 6, 7, 9, 10, 11, 12, 15 and 16 are unsafe and/or unsatisfactory.
b)The verdicts with respect to counts 5 and 6 on the Indictment are inconsistent and illogical and suggest the jury engaged in impermissible reasoning;
c)The learned Trial Judge unfairly and inappropriately interfered with the
cross-examination of LT resulting in a miscarriage of justice;
d)The evidence with respect to count 16 is not capable of proving the offence with which the appellant was charged.
29.Understandably and appropriately, counsel addressed only grounds (b), (c) and (d). It would be only in the rarest of circumstances, on an application such as this, that it would be possible to make a realistic assessment of the prospects of success of a ground that verdicts of guilty on nine counts on an indictment were unsafe and unsatisfactory.
30.I am reminded of what I said in Sherd v The Queen at 300; [53], that it is neither possible nor desirable to try the appeal on the application for a stay or for bail. See also R v Martin [2012] NSWSC 801 at [20].
31.Nevertheless, where, as here, a significant reliance is placed on the prospects of success of the appeal as part of the justification for the grant of bail, it is necessary to have regard to these issues.
32.The first matter dealt with was ground (b). Counts 5 and 6 on the indictment were both counts of assaulting a young girl, DN, who was under the age of 10 and, at the same time, committing an act of indecency on her. The jury acquitted Mr Wilson of count 5 and convicted him of count 6.
33.The events which constituted those counts were described by DN in her evidence as follows:
What happened this day that you were 10? --- I had been playing outside and I needed to go to the bathroom and there was only two bathrooms in the house. [Mr Wilson] was asleep. He had been working shift work. Somebody was in the main bathroom and I desperately needed to go. So I snuck into [Mr Wilson’s] bedroom, to [Mr and Mrs Wilson’s] bedroom, despite the door being closed and I went to the bathroom.
...
So tell us what happened? --- So when I went to the bathroom I obviously woke him up, and I hadn’t turned any lights on or anything like that but he asked who it was and I said that it was me and he called me around to his side of the bed, which was around the far side from the en suite door, and he asked me if I had any pubic hair yet and I shrugged. I remember shrugging and saying, ‘I don’t know,’ because I did have pubic hair, just, and I didn’t actually – wasn’t aware that that was normal. So I was embarrassed, I guess. So I just shrugged. So he put his hand down my pants and felt around and said that I surely must have noticed that and then he began fingering me and then he pulled me forward for a kiss and then told me that I could do better than that with the kiss and opened my mouth and used his tongue, all the while with his hand down my pants, and then he was encouraging me with the kiss and asking me if that felt good.
Had anyone kissed you like that before? --- No.
Had anyone touched your genital area like that before? --- No.
34.On the Crown case, the kiss constituted count 5 and the touching of the pubic hair and the vagina constituted count 6. The acts were said to have occurred in 1984 or 1985.
35.It was submitted that, in the evidence of DN, all of her references to this incident involved reference to both conduct; one was not mentioned by DN without the other; they were never mentioned by her as separate incidents.
36.Thus, it was submitted, the acquittal of Mr Wilson on count 5 was inconsistent with the conviction on count 6. If DN was not believed as to count 5, she could not be believed as to count 6.
37.That the credibility of DN in the trial was in issue can be seen from the cross-examination which included a challenge to the possibility of these events occurring as they were said to have occurred because, it was put to DN, Mr Wilson had, by the time of these events, finished doing shift work as he was transferred to another position in 1981 and was, at the time, not doing shift work when the events were said to have occurred. It was further put to her that, when Mr Wilson was doing shift work, DN was too young to have had pubic hair and that, by the time she had pubic hair, he was not doing shift work. DN agreed that, at the time she had pubic hair, he was not doing shift work. DN also agreed that, at the earlier period she would not have had pubic hair, but that “there might have been periods [after he officially finished shift work] that he did do shift work or overtime”.
38.Mr Wilson’s evidence was that from the late 1960s, he did work on a shift basis until January 1981. During that time, for some shifts he would be at home and “deliberately stay up until just before ‘the kids came home ... [and] go to bed then’. He denied that his new job thereafter required any shift work.
39.Further, DN did not give evidence that she consented to the kiss but not to the vaginal touching, which it was submitted, may have explained the different verdicts. I am not at all certain that a young person’s consent will provide a defence to an indecent assault, even though consent in certain circumstances does negate an important element of the offence of common assault. Because there was no such evidence, I do not have to consider the matter further.
40.DN’s mother gave evidence. This included some evidence of complaint by DN. In that evidence, however, DN’s mother mentions that DN told her that Mr Wilson had:
[p]ut his hand down her pants and said to her, you know, ‘Have you reached puberty yet?’
41.There was no mention in her evidence of DN mentioning the kiss.
42.This is obviously a strong submission by counsel for Mr Wilson, that the verdicts on the two counts are inconsistent, in accordance with the principles explained in MacKenzie v The Queen (1996) 190 CLR 348 at 369-70. In this case, it seems the inconsistency asserted is said to be a factual inconsistency.
43.This requires, however, that the Court must conclude that no reasonable jury properly instructed and whose members have applied their minds to the evidence could have arrived at the two different verdicts: Osland v The Queen (1998) 197 CLR 316 at 357-8; [120]. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury has properly performed its function required at law, then that conclusion will usually be accepted: Mackenzie vTheQueen at 376.