PM v The Queen

[2017] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	PM v R [2017] NSWCCA 108
Hearing dates:	26 April 2017
Date of orders:	24 May 2017
Decision date:	24 May 2017
Before:	Hoeben CJ at CL at [1]; Price J at [2]; Fullerton J at [79]
Decision:	(1) An extension of time in which to seek leave to appeal is granted. (2) Leave to appeal is granted. (3) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – judge alone trial – whether extension of time to seek leave to appeal should be granted – whether significant forensic disadvantage direction was adequate – whether reversal of onus of proof – whether Murray direction was adequate – whether limited good character direction should have been given
Legislation Cited:	Crimes Act 1900, ss 59(1), 61J, 61M(1), 67, 76 Evidence Act 1995, ss 55, 165(1)(c), 165B, s 165(4), 165B(2)
Cases Cited:	Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 R v Murray (1987) 11 NSWLR 12 Kaifoto v R [2006] NSWCCA 186 House v The King (1936) 55 CLR 499; [1993] HCA 40 Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
Category:	Principal judgment
Parties:	PM (Appellant) Regina (Respondent)
Representation:	Counsel: Mr W. Flynn (Appellant) Mr E. Balodis (Respondent)   Solicitors: Ms M. Maltezos (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/120972
Publication restriction:	Non-publication order in relation to the name of the complainants and the witness JC and anything that might identify them.
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 2 December 2013 Before: Freeman ADCJ File Number(s): 2011/120972

Judgment

1. Hoeben CJ at CL: I agree with Price J and the orders which he proposes.

2. Price J: The appellant was tried before Freeman ADCJ without a jury in June and July 2013. He had entered pleas of not guilty to all seven counts on the indictment. Counts 1 to 4 were alleged to have been committed against the appellant’s niece, MP, whereas counts 5 to 7 were alleged to have been committed against his great niece, KM (MP’s daughter). A short summary of the trial is as follows:

3. Counts 1 and 2 were charges of indecent assault contrary to s 76 of the Crimes Act 1900.

4. Count 1 charged that between 1 January 1979 and 12 May 1980 at Croydon Park, the appellant assaulted MP and committed an act of indecency upon her. MP was 8 or 9 years old at the time.

5. It was the Crown case that at the time of this offence MP was living with her grandparents at Croydon Park in a bedroom she shared with her sister, JC. MP gave evidence that the appellant entered her bedroom, touched her breasts through her nightie, touched the inside of her leg and attempted to move aside her underpants.

6. MP testified that she told her grandmother (“Nan”) what had happened the following morning but her Nan did not believe it. MP said that on the next occasion she saw her mother following the incident, she told her about it, but wasn’t sure if her mother believed her or not.

7. Count 2 charged that between 1 January 1979 and 12 May 1980 at Camperdown, the appellant assaulted MP and committed an act of indecency upon her.

8. As to this count, the Crown case was that MP was staying overnight at the home of the girlfriend of one of her uncles in Camperdown. She was asleep in a room with JC and their cousin, T. MP gave evidence that the appellant rubbed her breasts with both hands.

9. It was MP’s evidence that when she returned to Croydon Park, MP told Nan what had happened. MP said that Nan later confronted the appellant, they had an argument in the kitchen over it and the appellant said that MP was a liar.

10. JC gave evidence that her sleep was disturbed by the feeling of a hand in her pants. She saw the appellant’s face and made out that she didn’t see him, thinking it would go away. The appellant put his hands back in her pants and inside her vagina. She described the incident as lasting about five minutes and did not see the appellant leave the room. She recalled MP saying something to her and cuddling into her that night, but she didn’t remember the conversation. JC could not recall the following day but recalled being questioned about the incident on a couple of occasions. JC remembered her mother saying, “[MP] said that [the appellant] came in and touched you last night”. JC replied, “I don’t remember”.

11. Evidence was given by M (MP’s aunt), which included a conversation that she had with MP’s mother when MP was aged 9 or 10 and living at Croydon Park. M had been taking T (her daughter) and JC to the Croydon Park home to spend time with the family. M testified that MP’s mother said to her, “No, I don’t want you taking [JC] there anymore.” When she asked why, MP’s mother said “[a]nd I wouldn’t leave your daughter there either”. M asked “Why? What’s wrong?” MP’s mother replied, “[b]ecause [the appellant] has interfered with [MP].” M asked, “[h]ow did you know that?” MP’s mother said, “[MP] told me that he’s done stuff to her”. When M asked if she was sure of that, MP’s mother replied, “[w]ell, I spoke to Mum about it and Mum doesn’t believe me anyway, so don’t leave your daughter there anymore”. M confirmed that this is what MP’s mother told her.

12. M gave evidence of asking her mother (Nan) if it was true, to which her mother said, “No, don’t be silly. He wouldn’t do that. [MP] tells lots of fibs…”

13. Count 3 was a charge of carnal knowledge contrary to s 67 of the Crimes Act.

14. Count 3 charged that between 1 January 1979 and 12 May 1980 at Croydon Park, the appellant did carnally know MP, a girl then under the age of 10 years, namely 8 or 9 years.

15. It was the Crown case that the appellant committed this offence at the Croydon Park home while MP’s grandmother was working night shift. MP gave evidence that the appellant entered her bedroom, took her pants off and had penile-vaginal intercourse with her, whilst holding his hand over her mouth.

16. MP’s evidence was that she did not tell her Nan about this occasion as it had made no difference at any other time. She did tell her mother about the incident at some stage.

17. Count 4 was a charge of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.

18. Count 4 charged that between 1 January 1983 and 31 December 1983 at Burwood the appellant assaulted MP, thereby occasioning actual bodily harm to her.

19. The Crown case was that on the day that MP was expelled from Burwood Girls High School, the appellant arrived in Ms C’s green panel van. MP gave evidence that the appellant got out of the panel van and started belting her. After dragging her into the panel van, he continued to hit her. MP said that Ms C stood back and watched the lot happen.

20. Ms C, who had known the appellant, gave evidence that she had picked up MP from school in her own car on one occasion. The Crown was granted leave to cross-examine Ms C as an unfavourable witness. Ms C agreed that she was driving a green panel van. She denied that the appellant got out of the panel van and started hitting MP. She also denied that he dragged MP into the back of the panel van and continued hitting her there, but agreed that MP was taken from school to the Croydon Park home.

21. MP made a statement to police in September 2011. MP became aware in 2011 that KM had made allegations of her own about the appellant to police. She said that this factored into her decision to complain to the police herself. MP said that prior to that, she had attempted to discuss the incidents with JC and T (in addition to her mother and Nan).

22. The offences against KM were alleged to have been committed at Villawood between 30 September 1998 and 1 March 1999, when KM was 11 years old. Count 5 was a charge of sexual intercourse in circumstances of aggravation without consent contrary to s 61J of the Crimes Act. Counts 6 and 7 were charges of aggravated indecent assault contrary to s 61M(1) of the Crimes Act.

23. The Crown case was that the appellant entered KM’s bedroom, and whilst in her room, touched her vaginal area, digitally penetrated her and touched her breasts.

24. KM gave evidence of complaining to her friend, CC immediately after the event and then to another friend, CM. Both CC and CM gave evidence which supported KM’s evidence. KM made a statement to police about the matter in 2010.

25. During his evidence in the trial, the appellant denied that it was possible that he had done the things alleged by MP and KM but had no memory of it. He denied the allegations that had been made against him. It was his case that MP’s allegations were fabricated and motivated by a pre-existing hatred of him. The appellant said that he first became aware of MP’s allegations when he was in custody in 1982.

26. Through cross-examination by the appellant’s counsel, it was suggested in the appellant’s case that Nan would not have allowed MP’s allegations to go unreported. The appellant’s brother, B agreed in cross-examination that his mother was experienced in child welfare through her work as a welfare officer at the Minda Remand Centre and her involvement in looking after the grandchildren. B agreed in cross-examination that MP had a very close relationship with his mother, who used to dote on the grandchildren.

27. Upon completion of the evidence and submissions from the Crown and the appellant’s counsel on 19 July 2013, judgment was reserved until 1 August 2013. On that day, the appellant was found guilty of all counts.

The Grounds of Appeal

28. Having abandoned the appeal against sentence, there are four grounds of appeal against conviction. They are as follows:

“Ground 1: His Honour failed to properly or adequately direct himself regarding the forensic disadvantage suffered by the accused relating to missing school records and deceased witnesses – namely the mother and grandmother of the First Complainant and/or proceeded on an irrational basis with respect to evidence of complaint.

Ground 2: The Trial Judge erred in directing himself regarding the relevant principles of law with respect to the First Complainant’s evidence in the context of the onus of proof falling squarely on the Crown.

Ground 3: The Trial Judge erred in failing to adequately direct himself with regards to the direction pursuant to R v Murray and in failing to adequately direct himself regarding the reliability of evidence of the First Complainant.

Ground 4: the Trial Judge erred in allowing evidence that the [a]ccused had been “charged but not convicted” of sexual assaults and/or of failing to direct himself as to the proper use that could be made of this evidence.”

29. Grounds 1 to 3 relate to the appellant’s convictions in respect of the offences committed against MP

30. A notice of intention to appeal was filed on 5 December 2013. The appellant did not apply for an extension of time. A further notice of intention to appeal was filed on 16 January 2017, however, this notice is well out of time. In an affidavit dated 16 January 2017, the appellant’s solicitor, Mariah Maltezos provides a chronology of the activity in the appeal since the notice of intention to appeal was filed on 5 December 2013; however, Ms Maltezos’ affidavit does not explain why an application to extend time was not made.

31. This Court has the power to extend the time within which the notice is required to be given in the interests of justice: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]–[33].

32. In all the circumstances, I am persuaded that the discretion should be exercised.

Ground 1: His Honour failed to properly or adequately direct himself regarding the forensic disadvantage suffered by the accused relating to missing school records and deceased witnesses – namely the mother and grandmother of the First Complainant and/or proceeded on an irrational basis with respect to evidence of complaint.

Argument

33. The appellant referred to MP’s delay of 30 years in making a statement to police. Corroborative evidence from both her mother and grandmother, neither of whom had made statements to police, was not available as they had deceased. The grandmother’s failure to take action regarding a complaint made by MP was unexplained and was the basis for assertions by MP as to why she did not report the second incident to her grandmother. Furthermore, MP’s allegations in relation to count 4 turned on the day that she was expelled from school. The only school records disclosed the date that MP was enrolled but records affirming the date of her expulsion could not be adduced.

34. The appellant submitted that the judge’s direction on forensic disadvantage went only so far as to identify that the mother and grandmother were deceased but did not deal with the difficulties this posed to the appellant in not being able to cross-examine them as to why they took no steps to protect MP from abuse. The appellant contended that the judge compounded this error at page 15 of his judgment by relying upon the absence of evidence from these two sources as “support” for MP’s account.

35. Another submission was that the judge had engaged in a mode of reasoning that was illogical and/or unreasonable in respect of Nan by referring to the fact that a number of her children have served lengthy gaol terms. It was said that the judge had engaged in speculation in respect to the deceased’s character rather than taking into account the very real prejudice posed by the fact that the character of the witness could not be tested.

Consideration

36. The judge was conscious of the need to give himself a significant forensic disadvantage direction in accordance with s 165B of the Evidence Act 1995. Whilst asking counsel for any particular direction that they required, his Honour expressly referred to directions on delay.

37. The Crown accepted that a s 165B direction was appropriate. Neither the Crown nor the appellant’s counsel submitted that the judge should direct himself with respect to an absence of school records.

38. Section 165B(2) provides:

“165B   Delay in prosecution

…

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.”

39. In his judgment, the judge gave himself the following significant forensic disadvantage direction (Tcpt, 1 August 2013, p 8–10):

“In addition, I had regard to the warnings mandated by s 165B although this section is expressed to apply only to criminal proceedings in which there is a jury. Section 133(3) of the Criminal Procedure Act, requires me to do so. In fairness then to the accused, I have contemplated the significant forensic disadvantage he has suffered because of the very prolonged delay in prosecution of these charges. The offences are said to have occurred in 1979, 1980 and 1983. [MP] did not make a statement to the police until the second half of 2011. The delay is in the order of 30 years. During that time, critical witnesses have died. I refer to [Nan]… the complainant’s mother, [M] and Uncle [D] who lived at XX Street at the relevant time. Other witnesses have become unavailable, and that is, cannot be found or declined to co-operate. I cite [TM] as one such witness. [LW] is another. [MH] may also be deceased. Certainly, she is unavailable. I note that the grandfather, as earlier indicated, died on XX August 1980.

Other forensic disadvantages are evident from the police investigation.

…

The two police officers, Senior Constable Dwyer and Senior Constable Davies, who were involved co-operatively investigating these charges and the charges relating to [KM], appear to be relatively inexperienced. Neither appears to have fully understood the breadth and depth of the enquiries necessary in cases of historical sexual assault. Their task was a difficult one and was not assisted by transfers within the Police Force.

Nonetheless, some of their enquiries were not prosecuted with sufficient vigour. The wage records from XX, for example, may or may not still exist. Perseverance in this enquiry was required. Such records could have thrown light on the working patterns of the grandparents and of the accused.

Likewise, more intensive enquiries concerning who was living at XX Street and at the address associated with [MH](?) could have been undertaken. Other people may have been identified who could have contributed their recollections about the important questions of who was living where.

The man for whom Nan(?) worked as a nanny or even his son may have been able to contribute, although I confess I cannot myself see how these people could be found or why, until the accused gave his evidence, their recollection would have taken on any importance.

Of course, had the allegations been made by [MP] soon after these alleged offences investigation could have recovered physical evidence such as the sheets referred to in connection with count 3. At the least a medical examination of the complainant could have been held.

Unfortunately, it is accepted wisdom that victims of sexual assault, particularly perhaps children, often do not reveal the assault until long after the opportunity for such forensic investigation is passed. For that reason, whilst the delay requires that the case against the accused be scrutinised with particular care, delay and even the disadvantage to an accused caused by delay do not present a barred prosecution or prohibit a finding of guilt.

Giving full weight then to these requirements for caution I turn to an assessment of the Crown’s principal witness.” [Emphasis added.]

40. In other parts of the judgment, his Honour reminded himself of the forensic disadvantage that the appellant suffered as a consequence of MP’s delay in making her complaint to the police. When referring to MP’s evidence, the judge said (Tcpt, 1 August 2013, p 14–15):

“Whilst the Crown case stands or falls with her testimony, she does have some support in the form of complainant evidence. [MP] testified that she had told her Nan after the first occasion, which was the basis of count 1. She claimed that her Nan did not believe her. Likewise she told her mother when next she saw her, but got the impression that her mother did not believe her either. Both of these witnesses, whose testimony would be critical, have since died, the grandmother in 1984 and [MP’s mother] in 1998.

Evidence of these complaints comes from [MP] herself and is supported by the evidence of [M]… [M] says that she had a conversation with [MP’s] mother… when [MP] was aged nine or ten. [M] had been in the habit of leaving her daughter [T] in the company of [MP] and her younger sister [JC]. The children were thus in the care of the accused. [M] says that [MP’s mother] warned her of the accused having ‘interfered’ with [MP] and that in consequence she should consider her own daughter [T’s] welfare. She said that thereafter she had not allowed her daughter to be exposed to the accused. This is material from which I can conclude that [MP] had indeed complained to her mother I so find.” [Emphasis added.]

41. When considering the appellant’s submission as to the improbability of Nan doing nothing to safeguard MP despite twice receiving complaints from MP, his Honour said (Tcpt, 1 August 2013, p 18):

“Again I acknowledge that the accused is handicapped by the absence of his mother and her evidence. The Court has no opportunity to hear her evidence about these complaints nor to assess her role in these matters.” [Emphasis added.]

42. The appellant’s complaints about the judge’s forensic disadvantage direction are unfounded. His Honour carefully directed himself regarding the nature of the significant forensic disadvantage suffered by the appellant as a consequence of the delay in MP’s complaint to police and the need to take that disadvantage into account when considering the evidence.

42. The judge was not obliged to direct himself as to the absence of school records. The appellant’s counsel did not ask for it which is hardly surprising. Ms C, who MP said was present when the appellant was hitting her, denied that the appellant had done so. In the circumstances of the trial, there was no significant forensic disadvantage to the appellant by reason of the absence of school records.

43. The appellant’s criticism that his Honour relied on the absence of evidence from Nan and MP’s mother as support for MP’s account, focussed on what was said by the judge in his judgment quoted at [40] above. The judge did not use, as has been submitted, the absence of evidence from these two sources to support MP’s testimony. Rather he referred to M’s evidence of her conversation with MP’s mother. His Honour was entitled as the judge of fact to accept M’s evidence and to find it was material from which he could conclude that MP had complained to her mother.

44. In support of the argument that the judge engaged in reasoning that was illogical and/or unreasonable with respect of a witness who was now deceased, the appellant pointed to the following passage in the judgment (Tcpt, 1 August 2013, p 18):

“As far as her own children are concerned it appears that [Nan] was unable to set a high standard of moral rectitude. A number of her children including the complainant, the accused and [M] together with [CM] have all served lengthy terms of imprisonment for very serious criminal offences.”

46. During submissions made to the judge, the appellant placed emphasis on Nan’s care for her grandchildren and her background which included working at the Minda Remand Centre. The appellant’s counsel put to the judge that if MP’s Nan disbelieved her then she did not do so for a particular reason.

47. In dealing with the lack of a response by Nan to MP’s complaints, it was open to the judge to consider all of the evidence that was available about Nan and her family which included the lengthy prison sentences served by a number of Nan’s children. This did not mean that the judge engaged in speculation about the deceased’s character rather than taking into account the significant disadvantage that arose from Nan’s death.

48. In my view, Ground 1 has not been established.

Ground 2: The Trial Judge erred in directing himself regarding the relevant principles of law with respect to the First Complainant’s evidence in the context of the onus of proof falling squarely on the Crown.

Ground 3: The Trial Judge erred in failing to adequately direct himself with regards to the direction pursuant to R v Murray and in failing to adequately direct himself regarding the reliability of evidence of the First Complainant.

Argument

49. The appellant submitted that there are a number of difficulties posed by the judge’s analysis of MP’s evidence and subsequent directions. The first issue was said to be that the judge had effectively reversed the presumption of innocence and favoured a burden more analogous to a “balance of probabilities formulation”. This assertion, the appellant explained, turned on the judge’s approach of dealing with his fact finding “via use of a binary proposition – that two alternative views may be taken with respect of the difficulties in the complainant’s evidence and that he preferred that which was consistent with the guilt of the [a]ppellant” (AWS at [45]).

50. Further, the appellant contended that rather than squarely directing himself upon the issue of whether the complainant’s evidence was unreliable; his Honour erred in failing to direct himself that MP was unreliable as requested by the appellant.

51. An additional submission was that the judge’s directions with respect to warnings about reliability were given only in a general or “short-hand” form. The appellant submitted that the judge’s R v Murray (1987) 11 NSWLR 12 (“Murray”) direction was an inadequate approach to the directions required to cure the identified prejudice to the appellant and was not in accordance with the standard direction contained in the bench book. Furthermore, the judge directed himself with the strictures referred to in Murray without actually doing so.

Consideration

52. The appellant’s contention that the judge approached his assessment of the honesty and reliability by the use of a “binary proposition” placed particular emphasis on the following passage in his Honour’s judgment (Tcpt, 1 August 2013, p 12):

“Additionally, it is clear that she did not come up to proof on the context evidence on which the Crown opened. What conclusions are available when a witness does not come up to proof, there may be a number, but two competing conclusions come immediately to mind. The first is that the witness was lying originally and has forgotten the full details of their fabricated story. Alternatively, the witness may have been overcome by the experience of giving evidence and suffered some mental lapse which rendered her unable to recall the details of the history which was more or less true.”

53. Prior to what was said in the above quoted passage, the judge had been dealing with evidence from MP that was shown to be inaccurate. His Honour then went on to consider why MP’s evidence could not be considered wholly reliable but concluded that MP’s errors and inadequacies did not impinge her honesty and credibility. The judge was satisfied beyond reasonable doubt that MP’s evidence of the appellant’s conduct towards her was honest and sufficiently detailed “as to identify the time more or less approximately and the nature of the offending behaviour” (Tcpt, 1 August 2013, p 14).

54. The judge was not, as the appellant complains, determining issues of credit through a “binary lens” by choosing between two accounts. His Honour was, as the judge of fact, entitled to accept part and reject part of MP’s evidence. His Honour exposed his reasons for the conclusion that he reached.

55. The judge did not reverse the onus of proof. It is evident from the judgment that he was acutely aware that it was not for the appellant to prove his innocence but for the Crown to prove the appellant’s guilt beyond reasonable doubt.

56. The appellant argues that the judge erred in failing to direct himself in accordance with Murray concerning MP’s evidence. The case against the appellant for counts 1 to 4 depended largely on MP. The judge accepted the submission from the appellant’s counsel that a Murray direction was appropriate in all the circumstances of the case which included the delay in complaint and what was said to be MP’s unreliability.

57. A Murray direction is commonly given where the Crown case is based largely or solely on a single witness. A jury is directed that they should exercise caution and that the evidence of that witness must be scrutinised with great care. No particular form of words is prescribed for a Murray direction: Kaifoto v R [2006] NSWCCA 186 at [72]. A judge is not obliged to use the Murray direction in the Criminal Trial Courts Bench Book.

58. The judge had also given himself a warning under s 165(1)(c) of the Evidence Act as his Honour accepted that MP’s evidence was of a kind that may be unreliable. He did so as MP had a history of illicit drug use and had given evidence that her memory may have been affected. Section 165 of the Evidence Act relevantly provides:

“165 Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

…

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;

…

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.”

59. There is no particular form of words necessary when giving the warning or information: s 165(4) of the Evidence Act.

60. The appellant submits that the direction the judge gave was inadequate.

61. The directions about which the appellant complains are contained in the following passage in the judgment (Tcpt, 1 August 2013, p 8):

“Those are the charges involving [MP]. Since, subject to some support which comes by way of recorded complaint, the Crown case depends solely on her evidence. I have applied the strictures referred to in The Queen v Murray, as I said earlier. Her evidence is to be examined very carefully before reaching a conclusion that the accused is guilty. I have also at the request of Mr Marowi, who appears for the accused, absorbed the warning which I may have given the jury, pursuant to s 165(1)(c) of the Evidence Act. He submits that [MP] is a long-standing user of drugs. That is, heroin, amphetamines and some marijuana. This may have affected her powers of recall, thus making her evidence possibly unreliable. I am not sure that I definitely would have given a jury such a warning because there is no material evidence that drugs do affect recollection. Nor am I entitled to find from judicial knowledge, that there is such an effect, other than the common sense finding that recollection of events which have transpired whilst a person is [in] a drug affected state, can be problematic. [MP] herself says that her memory has been affected as to bits and pieces. Therefore, I have cautioned myself that her evidence may be unreliable. Indeed, in a number of aspects to which I will come shortly, her evidence is quite unreliable. I have added this element to the weight of scrutiny to which her testimony must be subject in accordance with The Queen v Murray.” [Emphasis added.]

62. The judge’s directions plainly complied with the customary Murray direction and the requirements of s 165 of the Evidence Act. His Honour was conscious of the need to scrutinise MP’s evidence with great care. His Honour warned himself and informed himself as to the matters that may cause MP’s evidence to be unreliable and the need for caution. His Honour then went on to consider aspects of MP’s evidence that were unreliable.

63. There is, in my view, no merit in the appellant’s complaints. No error has been demonstrated.

64. Grounds 2 and 3 have not been established.

Ground 4: the Trial Judge erred in allowing evidence that the [a]ccused had been “charged but not convicted” of sexual assaults and/or of failing to direct himself as to the proper use that could be made of this evidence.

Argument

65. The appellant submitted that the judge erred in failing to give himself a limited good character direction regarding the appellant’s lack of convictions for sexual assault. This Court’s attention was drawn to the following passage in the judgment (Tcpt, 1 August 2013, p 25):

“There is one further area which needs to be explored. Mr Maaraoui submitted that the accused was entitled to claim good character in a particular respect in that he has no convictions for sexual assault. If I were persuaded that the accused has good character in this respect then I would direct myself that his good character is to be taken into account in two ways. Firstly, he is less likely to have committed these offences and, secondly, his denials should be given greater weight.

It is a fact that the accused has no convictions for sexual assault. However, he has been twice charged with offences of that nature. On one of those occasions he says the charges were dismissed at committal. The complainant had not been cross-examined. On the other occasion he was committed to stand trial but the complainant did not attend and the Crown offered no evidence. Whilst his character has not been impugned by conviction it has been called into question on two occasions and has not been tested. I decline to give myself a direction that he should have the benefit of good character in this respect. His character has played no part in my assessment of him either for or against him.”

66. The appellant contended that there are some difficulties posed by this analysis. Evidence of good character was not confined to matters of credit, but in terms of s 55 of the Evidence Act 1995 “could rationally affect (directly or indirectly) the assessment of the probability” that the appellant committed the offences charged. Furthermore, evidence of character is admitted as a matter, making it unlikely that the appellant has committed the crime charged and as supporting the credibility of his denial of guilt.

67. It was further put to the Court that in a prosecution for an offence involving violence against a female, where the accused wishes to establish his good character in a particular respect concerning violence against women, there could be no rational or reasonable explanation for tendering a “fairly extensive record” for other offences in order to establish that negative fact. The appellant submitted that the same proposition should flow with respect of matters where the appellant was charged but not convicted.

Consideration

68. The appellant’s evidence in-chief included that he had been in gaol and in custody while still a minor. This evidence enabled the appellant to place certain events in time, including where he was living.

69. The appellant told the judge that he had been charged with sexual offences on two separate occasions but had not been convicted. In cross-examination, he said that the first matter had been listed for trial, but the complainant had not turned up to give evidence. He had been acquitted by the jury following a direction from the trial judge.

70. The appellant agreed that on the second occasion he had been charged with sexual assault, there were two complainants. He said that the sexual assaults were “thrown out” at the committal proceedings. The appellant agreed that the complainants had not come to court. He said “they were scared to come to court”, that they could not be found (Tcpt, 15 July 2013, p 698).

71. The appellant’s counsel asked the judge to give himself a good character direction that was limited to his lack of convictions for sexual assault. As can be seen from the passage quoted at [65] above, the judge accepted that the appellant had no such convictions but observed that (Tcpt, 1 August 2013, p 26):

“Whilst [the appellant’s] character has not been impugned by conviction, it has been called into question on two occasions and has not been tested.”

72. His Honour declined the appellant’s request for a limited good character direction.

73. It is well established that a judge is not obliged to give a good character direction: Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 (“Melbourne”); Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14. As McHugh J said in Melbourne:

“[30] …The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both:

(a) the accused's propensity to commit the crime charged; and

(b) the accused's credibility.”

74. Such a discretionary decision is only reviewable by this Court in accordance with the principles of House v The King (1936) 55 CLR 499; [1993] HCA 40.

75. The judge was clearly aware that the limited evidence of good character might be relevant to the likelihood of the appellant having committed the crimes and could be used to support his credibility. However, his Honour was not persuaded in the appellant’s circumstances that the lack of convictions for sexual offences would have any probative force in determining whether the appellant was guilty of the sexual offences, the subject of the trial, beyond reasonable doubt. In my view, the judge did not err in declining to give the direction.

76. Furthermore, it would make little sense to require the judge to direct himself as to the absence of sexual assault convictions when it is plain that he would give no weight to that evidence.

77. Ground 4 of the appeal has not been established.

78. Accordingly, I propose the following orders:

1. An extension of time in which to seek leave to appeal is granted.

2. Leave to appeal is granted.

3. Appeal dismissed.

79. Fullerton J: I also agree with Price J and the orders he proposes.

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Decision last updated: 24 May 2017