R v Ball

[2001] NSWCCA 352

CITATION:	R v Ball [2001] NSWCCA 352 revised - 4/10/2001
FILE NUMBER(S):	CCA 60512/98
HEARING DATE(S):	05/09/01
JUDGMENT DATE:	5 September 2001
PARTIES :	Regina v Lawrence Elwyn Ball
JUDGMENT OF:	Bell J at 33,35; Howie J at 34; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0843
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

COUNSEL :	(A) In Person (C) P G Berman SC
SOLICITORS:	(A) In Person (C) S E O'Connor
CATCHWORDS:	Failure to give a direction in accordance with Longman v The Queen (1989) 168 CLR 79 at 90-91 where lengthy delay and Crown case depended on complainant - adjustment of sentences on other matters to accommodate new trial on certain offences
LEGISLATION CITED:	Nil
CASES CITED:	Longman v The Queen (1989) 168 CLR 79 at 90 to 91 R v Crampton (2001) 65 ALJR 140-141 Doggett v The Queen [2001) HCA 46
DECISION:	See paras 30-32 of judgment

IN THE COURT
OF CRIMINAL APPEAL

BELL J

HOWIE J

SMART AJ

Wednesday 5 September 2001

REGINA v LAWRENCE ELWYN BALL

JUDGMENT

1   BELL J: Smart AJ will give the first judgment in this matter.

2   SMART AJ: Lawrence Elwyn Ball seeks an extension of time and leave to appeal against his conviction of one count of buggery in 1980 and three counts of indecent assault in 1980 to 1981 upon WJD, who was born on 11 June 1965. He also seeks leave to appeal against the severity of his sentence.

3   He was sentenced to a fixed term of imprisonment of four years, to commence on 4 November 1997, for the offence of buggery, and a minimum term of one year six months, commencing on 4 November 2001 and expiring on 3 May 2003, with an additional term of 12 months starting on 4 May 2003, on each of the three counts of indecent sexual assault.

4   These sentences were to be served concurrently with the cumulative sentences imposed on an indictment presented on 27 October 1997.

5   The applicant also seeks leave to appeal against the severity of the sentences imposed in respect of the counts contained in the indictment last mentioned.

6   On 27 October 1997 the applicant pleaded guilty to one count of homosexual intercourse with RZ, a male person aged nine years, between 1 March 1990 and 4 September 1990, and one count of sexual assault with an act of indecency upon RZ, being in 1990 when RZ was nine, and in 1993 when RZ was under sixteen. The applicant pleaded guilty to six counts of sexual assault with an act of indecency upon LC in 1993, 1994 and 1995 respectively, LC being under sixteen, and three counts of homosexual intercourse with LC each in 1995, when LC was aged fifteen years.

7   For the offence of homosexual intercourse with RZ the applicant was sentenced to a fixed term of imprisonment of four years, to start on 4 November 1997. On the count of assault with an act of indecency on RZ, being in 1990, when RZ was nine, the applicant was sentenced to a minimum term of imprisonment of one year six months, starting on 4 November 2001 and ending on 3 May 2003, with an additional term of one year, to commence on 4 May 2003 and to end on 3 May 2004. On each of the other nine counts the applicant was sentenced to a fixed term of three years, to start on 4 November 1997 and to expire on 3 November 2000.

8   It follows that the sentences on those nine counts have now been served. The sentence of four years fixed term for homosexual intercourse will have been served in two months time. The offences involving LC came to an end when the police attended at the home of the applicant and discovered LC there.

9   In the trial of the offences involving WJD the Crown case depended upon the jury being satisfied beyond reasonable doubt of the truth of the evidence of WJD. His evidence was supported to a limited extent by his mother. She gave evidence of WJD going on outings with the applicant and frequently attending at his house. The applicant did not give evidence.

10   In his record of interview the applicant denied the commission of any offences. He painted a picture of random contact with WJD. He asserted that the only times WJD stayed at his house was when he was about 18 to 20 years old and woke the applicant up well after midnight. WJD was drunk and wanted to sleep it off.

11   The applicant has made a series of complaints about his trial but it is not necessary to go into these in any detail.

12   Although the offences by the applicant upon WJD were alleged to have occurred in 1980 to 1981, the first complaint was made by WJD to his wife in September 1993. He went to the police that month.

13   The summing-up contains no direction which accords with Longman v The Queen (1989) 168 CLR 79 at 90-91. The summing-up refers to the applicant submitting that the delay in complaint was inconsistent and that if the events had in fact happened the applicant would have complained earlier. The judge gave the traditional direction that delay in complaining did not necessarily indicate that the allegation that the offence had been committed was false and that there may be good reasons why a victim of a sexual assault may hesitate in making or refrain from making a complaint. The judge briefly reviewed the evidence that touched upon those matters.

14 The addresses of trial counsel reveal that the principal issue at the trial was the truthfulness and credibility of WJD. The Crown urged acceptance of his evidence as truthful and impressive. The applicant's counsel mounted an all out attack on WJD's credibility in stringent terms.

15   The judge did not tell the jury that as the Crown case depended on the evidence of WJD it was essential to scrutinise his evidence with considerable care. None of the matters referred to in the passage mentioned from Longman were mentioned, nor the further matters covered by Deane J at 95 to 96 or McHugh J at 108 to 109. The summing-up did not comment upon the difficulties arising from the delay. The recollection of WJD of the details of the events had been affected. The judge did not warn the jury of the difficulties the applicant had in defending himself in the absence of a timely complaint.

16  In Crampton (2001) 75 ALJR at 140-141 the joint judgment emphasised the importance of a judge giving directions in accordance with the principles in Longman. See also per Hayne J at 158.

17   In Doggett v The Queen [2001] HCA 46 the majority of the High Court, Gaudron, Kirby and Callinan JJ, emphasised the need to look closely at the corroborative evidence to see whether it relieved the trial Judge of the need to give a Longman direction. Corroborative evidence can vary greatly in value. In some instances it may be rather general or touch upon matters that are not at the core of proving the Crown case. In other instances it may be specific and amount to direct evidence of the offence charged. There may be, for example, a videotape of what took place. The majority in Doggett also placed emphasis on the need to warn the jury of the difficulties faced by an accused in defending himself, both as to recollecting the events and of obtaining evidence to refute the prosecution case. A warning was required in the present case.

18  Some of the aspects of the evidence of WJD raised queries. The lack of a detailed recollection of events surrounding the later charges was less than satisfactory. The jury may have derived considerable assistance from a full Longman direction and if it had been given the jury may have arrived at a different verdict.

19   On this account the conviction must be set aside.

20   The question arises whether this Court should enter verdict of acquittal or order a new trial.

21   The trial took place in late 1997; that is, nearly four years ago. The applicant has served three years ten months of his four year fixed term sentence for buggery. He is now aged 79 years. The offences alleged took place about 20 years ago. Because of the offences to which he pleaded guilty, the applicant will remain in custody.

22   On the other hand, the offences are very serious. This Court should not enter verdicts of acquittal. It was not a weak Crown case. There should be an order for a new trial to be held.

23  I turn now to the question of the sentences in relation to the matters to which the applicant pleaded guilty. Because of the concurrency of the group of sentences on both indictments, it is necessary to adjust the sentences in relation to the offences to which the applicant pleaded guilty.

24   The offences themselves were exceedingly serious. They involved the "grooming of" victims with them being welcomed into the appellant's home, stays overnight, hugging and kissing, which developed into touching, masturbating and then anal intercourse. The victims were groomed over a considerable period of time. None of the incidents were isolated. The course of conduct in relation to LC only stopped because the police went to the appellant's residence on 4 January 1996.

25   There was no actual physical violence against the victims. RZ thought the appellant might hurt him with guns and LC thought that the conduct that took place was what people did and was normal.

26   The victims were young people and, at one stage, RZ was but nine years of age and there are a series of offences set in the context which I have mentioned.

27   The appropriate sentence in respect of the matters in relation to the indictment the subject of the pleas of guilty are as follows:

29   As to each of the counts of homosexual intercourse there should be a sentence of a fixed term of three years. As to the sentences of assault with an act of indecency there should be cumulative sentences of two and a half years with a non parole period of eighteen months. That would result in a total sentence of five and a half years with a non parole period of four and a half years. That departs from what is the usual ratio. In my opinion, the criminality revealed by the offences dictates a non parole period of the order I have mentioned. Having regard to the age of the applicant and the other circumstances there is no utility in having a longer head sentence.

30   I would, therefore, propose the follow orders:

As to the conviction appeal (indictment of 29 October 1997), extension of time granted. Leave to appeal granted. Appeal allowed. Sentence quashed. Order that there be a new trial on the offence of buggery and 3 offences of indecent assault.

  

As to the sentence appeal, (indictment of 27 October 1997 and pleas of guilty) leave to appeal granted, appeal allowed, sentences quashed. In lieu of the sentences imposed, the applicant is sentenced to a fixed term of imprisonment of three years on each of the charges of homosexual intercourse, commencing on 4 November 1997 and expiring on 3 November 2000.

   In relation to each of the charges of assault with an act of indecency, the appellant is sentenced to two and a half years imprisonment, to commence on 4 November 2000 and to expire on 3 May 2003 with a non parole period of eighteen months, commencing on 4 November 2000 and expiring on 3 May 2002.

31   BELL J: I agree.

32   HOWIE J: I agree.

33   BELL J: The orders of the court will be as Smart AJ proposes.

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