LJW v R

Case [2010] NSWCCA 114

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
LJW v R [2010] NSWCCA 114
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/00015395009

HEARING DATE(S):
7 May 2010

JUDGMENT DATE:
4 June 2010

PARTIES:
LJW  (appellant)
REGINA 

JUDGMENT OF:
Hodgson JA Johnson J Rothman J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0405

LOWER COURT JUDICIAL OFFICER:
Woods DCJ

LOWER COURT DATE OF DECISION:
19 September 2008

COUNSEL:
M C RAMAGE QC  (appellant)
S DOWLING  (Crown) 

SOLICITORS:
Mark Rumore  (appellant) 
S Kavanagh  (Crown)

CATCHWORDS:
EVIDENCE – Charge of aggravated sexual intercourse with a minor – Offence alleged to have occurred at night after the accused had driven the complainant and another boy to a friend’s house – Evidence that the accused had masturbated in the car while driving the boys to the friend’s house – Whether admissible as res gestae or as evidence of the accused’s state of mind. 
CRIMINAL LAW – Appeal against conviction – Alleged errors in directions – Points not taken at trial – Whether verdict unreasonable. 

LEGISLATION CITED:
Criminal Appeal Act 1912 s 5(1)(a)
Criminal Appeal Rules rule 4
Criminal Procedure Act 1986 s 294 and s 294AA
Evidence Act 1995 ss 97, 101 and 137

CATEGORY:
Principal judgment

CASES CITED:
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510
O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566
Rasic v R [2009] NSWCCA 202

TEXTS CITED:

DECISION:
(1)  Leave to appeal granted. 
(2)  Appeal dismissed. 

JUDGMENT:

- 31 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/00015395009

HODGSON JA
JOHNSON J
ROTHMAN J

4 JUNE 2010

LJW v R

Judgment

  1. HODGSON JA:  On 3 March 2008, the appellant was arraigned before Woods DCJ on charges that he: 

    1.Between 1 January 2006 and 30 April 2006 at Muswellbrook in the State of New South Wales, did have sexual intercourse with [the complainant], a child above the age of 10 years and under the age of 14 years, namely 12 years, in circumstances of aggravation, namely that at the time of the sexual intercourse the said [complainant] was under the authority of [LJW].

    ….

    2.Between 1 January 2006 and 30 April 2006 at Muswellbrook in the State of New South Wales, did have sexual intercourse with [the complainant], a child above the age of 10 years and under the age of 14 years, namely 12 years, in circumstances of aggravation, namely, that at the time of the sexual intercourse the said [complainant] was under the authority of [LJW].

    ….

    3.Between 30 April 2006 and 30 December 2006 at Heathcote in the State of New South Wales, did commit and [sic] act of indecency towards [the complainant], a child…

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Details
AGLC
LJW v R [2010] NSWCCA 114
Case
[2010] NSWCCA 114
Decision Date

CaseChat Overview and Summary

The appellant has appealed against his conviction on all counts of aggravated sexual intercourse with a minor, with the primary issue being the admissibility of evidence related to an incident in a car and alleged errors in jury directions. The appeal was heard in the Supreme Court of New South Wales, Court of Criminal Appeal. The main legal issues were whether the evidence of the appellant’s alleged actions in the car en route to Muswellbrook was admissible as res gestae or as evidence of the appellant’s state of mind, and whether there were errors in the directions given to the jury that were so significant as to render the verdict unreasonable.

The court considered that the evidence of the appellant’s actions in the car was relevant to his state of mind at the time of the alleged offences. The trial judge had ruled that the evidence was directly relevant to prove the state of mind of the accused in the course of the travel arrangements immediately preceding the alleged incident at Muswellbrook. The court concluded that the probative value of the evidence substantially outweighed any prejudicial effect, and thus it was admissible. Regarding the alleged errors in jury directions, the court found no grounds to support the claim that the verdict was unreasonable.

Ultimately, the appeal was dismissed, and leave to appeal was granted. The reasoning was that the jury had sufficient evidence to convict the appellant and the alleged errors in jury directions did not undermine the verdict.

Orders

Orders of the court

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Background

Background to the litigation

The appellant has appealed from his conviction on all counts. The appeal is not brought on a question of law alone, so leave to appeal is required: Criminal Appeal Act 1912 s 5(1)(a); Rasic v R [2009] NSWCCA 202 at [2], [12]. Leave to appeal should be granted but, for the reasons that follow, in my opinion the appeal should be dismissed. Background facts It is convenient first to set out some background facts, and relate them to the Crown allegations. The complainant is a boy born in late 1993. His mother GS is the sister of the appellant’s wife ML. In 2006, the complainant was living with GS and his father FS in their house at Heathcote. The complainant was at all material times a very close friend of ML’s son GL, born in 1994. GL was the appellant’s stepson. In 2006, GL was living with ML and the appellant in their house, also at Heathcote. The appellant was born in 1946. In about March or April 2006, the appellant drove the complainant and GL to Muswellbrook, and the three of them stayed overnight there at the home of Kevin and Jennifer Lecky, friends of the appellant. On the second day of the visit, the appellant with the complainant and GL picked up a dog called Widget from Mrs Lecky’s daughter, which was to be a pet for GL. On the night after they had driven to Muswellbrook, the appellant, the complainant and GL all slept in the one bed. The Crown allegation was that on that occasion the appellant anally penetrated the complainant (count 1) and performed fellatio on him (count 2). On many occasions during 2006 the appellant went to GL’s house. Count 3 concerned a Crown allegation that on one of these occasions, after April 2006 but months before 31 December 2006, when the appellant and complainant were the only ones present in GL’s bedroom, the appellant masturbated himself. Count 4 concerned a Crown allegation that on 31 December 2006, the appellant masturbated in the presence of the complainant in the home of MB, a friend of GL. A few days before 31 December 2006, a serious verbal dispute occurred at the appellant’s home between the appellant and the complainant’s father FS, which resulted in the appellant phoning the police to get FS to leave his property. FS left the property before the police arrived. FS later went to Engadine Police Station, and the police took no action. On the evening of 31 December 2006, the complainant’s parents went with the complainant’s grandparents to the city to see the New Year’s Eve fireworks, leaving the complainant and GL at their home at Engadine. The parents and grandparents returned about 2 am on 1 January 2007. The Crown evidence (which it appears was not disputed) was that the complainant in the presence of GL then complained to his parents that the appellant had raped him. The police then became involved, and the police recorded an interview with the complainant on 5 January 2007. They recorded an interview with GL on 7 January 2007. The police then interviewed the appellant on 18 January 2007, and the video of that interview was tendered in evidence in the case. Outline of Crown case

Evidence

Evidence Before The Court

I will consider in turn the following issues: (1)The question of admission of evidence (ground 2). (2)Questions concerning directions (grounds 3 to 5 and ground 8). (3)The question of whether the verdicts were unreasonable (ground 9). Error in admitting evidence? (ground 2) At the outset of the trial, counsel for the accused objected to evidence being led of what had taken place in the car on the way to Muswellbrook. The trial judge ruled that the evidence was admissible, giving the following reasons: In the course of the accused's interview with police, exhibit VD 1A, dated 18 January 2007, the accused said this, in answer to question 584. The question was: "Q.584. In relation to you touching your penis on the drive up to Muswellbrook, what exactly did [the complainant] say to you? A. He said to me, I believe, 'Oh, while you thought I was asleep, I think I saw you masturbate'. Q.585. And what exactly did you say to him? A. I said to him, 'Um, you might have seen me with my hand down the front of my trousers'." The incident alleged to have occurred in the car preceded the event after they arrived at Muswellbrook which is alleged to have occurred in a bedroom. They were staying with some friends of the accused, people called the Leckies, and there were various guest bedrooms apparently. The two boys slept in one room together and the accused saw fit to join them, and the events of various of the counts in the indictment are said to have occurred on that bed, essentially an act of sexual intercourse. The Crown has given to the accused a tendency evidence notice, exhibit VD 1C, but supplementary to that, since the current Crown came into the matter, there has also been provided exhibit VD 1D, a supplementary notice. Both of the forms of notice were drafted, it seems to me, for more abundant caution; however, it appears to me that the evidence is, in any event, directly relevant. It is directly relevant to prove the state of mind of the accused in the course of the travel arrangements immediately preceding the alleged incident at Muswellbrook. The state of mind of the accused is clearly a relevant issue in the trial and it seems to me that the sequence of events leading up to the arrival and the sleeping arrangements at Muswellbrook are one sequence of events – to use the old formula, res gestae. In any event, even if they were not part of the one sequence of events and admissible as to state of mind, which is my view, I have no doubt that the requirements of part 3.6 of the Evidence Act are satisfied, and it seems to me that none of the disabling considerations which might exclude the evidence are applicable here. The probative value of the evidence is powerful. Any prejudicial effect is not unfair, and in any event, the very important probative value substantially outweighs any prejudicial effect that the evidence might have on the accused. The accused, it would appear from the evidence before me at this stage, in fact himself raised the issue with the police, no doubt as a pre-emptive explanation. Whether it satisfies a jury in due course is a matter to be determined. But I would allow the evidence.

Decision

Reasons for decision

Having regard to all these considerations, this is not in my opinion a case where it can be said that the jury ought to have entertained a reasonable doubt. Conclusion For those reasons, in my opinion the following orders should be made: (1) Leave to appeal granted. (2) Appeal dismissed. JOHNSON J: I agree with Hodgson JA. ROTHMAN J: I agree with Hodgson JA. **********

Ratio Decidendi

Legal Principle Established

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