R v BJB

[2005] NSWCCA 441

CITATION:	R v BJB [2005] NSWCCA 441
HEARING DATE(S):	30 Septemnber 2005
JUDGMENT DATE:	16 December 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Hislop J at 8; Rothman J at 9
DECISION:	(a) The appellant be granted an extention of time to file an appeal and application for leave to appeal to include the date upon which such appeal and leave to appeal were filed; (b) Appeal against conviction be dismissed; (c) Leave to appeal against sentence be granted; (d) Appeal against sentence be upheld in relation to the sentence on Count 1 and otherwise dismissed; (e) The sentence on Count 1 be quashed and in lieu thereof a sentence be imposed of four years' imprisonment to commence on 16 April 2004 and expire on 15 April 2008 with a non-parole period of 3 years to expire on 15 April 2007

CATCHWORDS:	Criminal law - appeal against conviction and sentence - sexual offences on victim under 16 in 1970 - form of indictment - whether unreasonable verdict - error in maximum penalty
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act Crimes (Sentencing Procedure) Act
CASES CITED:	M v The Queen (1994) 181 CLR 487 MFA v R (2002) 213 CLR 606 R v Habib [2005] NSWCCA 223 Jones v The Queen (1997) 191 CLR 439 Chamberlain v The Queen (No2) (1984) 153 CLR 521 Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 R v R (1989) 18 NSWLR 74 Swain v Waverley Municipal Council (2005) 79 ALJR 565
PARTIES:	The Queen BJB
FILE NUMBER(S):	CCA 2005/705
COUNSEL:	Crown - Ms N Noman
SOLICITORS:	Crown - S Kavanagh, Solicitor for Public Prosecution

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0411
LOWER COURT JUDICIAL OFFICER:	C Armitage DCJ

- 1 -

2005/705

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

16 December 2005

REGINA v BJB

Judgment

1 McCLELLAN CJ at CL:: I have had the benefit of reading the reasons for judgment of Rothman J in draft. As his Honour identifies there can be no error in the form of the indictment which must obviously allege that the relevant breach of the law “has been committed.”

2 The challenge to the jury’s verdicts raises for consideration the principles identified in M v The Queen (1994) 181 CLR 487 and considered in MFA v R (2002) 213 CLR 606. In R v Habib [2005] NSWCCA 223 I described those principles in the following terms

“Section 6(1) of the Criminal Appeal Act provides as follows:
‘The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.’

Although the application of the section has at times proved troublesome it was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 493.

There are two joint judgments in MFA. Gleeson CJ, Hayne and Callinan JJ state that when the issue is whether the verdict of a jury is unreasonable or cannot be supported the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M:
‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’

As the High Court emphasised in Chamberlain v The Queen(No 2) (1984) 153 CLR 521 it is important to appreciate that the role of the Court of Appeal is to decide a question of fact. "It is supervising or reviewing the findings of a tribunal of fact" (see Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643; R v R (1989) 18 NSWLR 74).

In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36].

In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict.

Embracing the test adopted by the majority of the court in M the joint judgment stated:
‘Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' [55].
The joint judgment offered the following by way of guidance:
‘The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].’ "

3 In this case the jury was called upon to determine whether it would accept the complainant’s evidence notwithstanding the appellant’s denials, which, although he did not give evidence, were contained in his record of interview. It is apparent that the jury accepted the complainant and I can discern no reason for the intervention of this Court.

4 With respect to the appellant’s decision not to give evidence I am satisfied that this was a deliberate forensic decision made after the appellant had received relevant advice. No basis has been demonstrated to suggest that the decision was not appropriate and being made for apparently sound tactical reasons could not justify the intervention of this Court.

5 I agree with Rothman J’s analysis and conclusions in relation to the matters of corroborative witnesses and the alleged inconsistency of the verdict of acquittal in respect to the fourth count as compared with the conviction on the other counts.

6 In relation to the sentence it is plain that the errors identified by Rothman J exist but I agree that it is only necessary to adjust the sentence as his Honour suggests.

7 I agree with the orders proposed by Rothman J.

8 HISLOP J: I agree with Rothman J.

9 ROTHMAN J: The events with which this appeal is concerned occurred in 1970. The appellant, BJB, was at the time 17 years of age and, therefore, the statute requires that his name and any matter that would identify him not be published.

10 The appellant was charged with one count of indecent assault on a victim under 16 years of age contrary to the terms of s.76 of the Crimes Act 1900 (as it existed in 1970), two counts of buggery in contravention of s.79 of the Crimes Act 1900 (as it existed in 1970) and a further count of indecent assault occurring in approximately 1978 or 1979 also said to be in contravention of s.76 of the then Crimes Act. His trial occurred between 17 and 24 March 2004 before his Honour Judge C Armitage DCJ and a jury of twelve and he was convicted of one count of indecent assault (the one occurring in 1970) and the two counts of buggery, each occurring in 1970. He was acquitted on the fourth count being the indecent assault alleged to have occurred in 1978 or 1979.

11 On 21 May 2004 BJB was sentenced to imprisonment for 5 years to commence on 16 April 2004 and expire on 15 April 2009, with a non-parole period of three years, to expire on 15 April 2007.

12 BJB appeals his conviction on all three counts and seeks leave to appeal the sentence.

Facts

13 The allegations against the appellant were that, as a 17 year old living with his parents, he sexually abused his niece who came to live at his parents’ house for a three month period during 1970. During the last few months of that year LW (previously LB) aged 8, went to live with her father’s parents for three months to facilitate attendance at the Sydney Eye Hospital where she was being treated for a “lazy eye”; her grandmother took her to the specialist and the hospital. Her grandmother was a member of a charitable organisation and she and her grandfather attended meetings and left LW in the care of the appellant.

14 It is alleged that on one such night the appellant approached his 8 year old niece and began to rub her chest. He then rubbed his hands up and down her legs and touched the outside of her vaginal area through her clothes. These alleged acts were the acts which were said, by the Crown, to give rise to the contravention of s.76 of the Crimes Act charged in count 1.

15 Immediately after the events described above, the appellant, it is alleged held onto LW’s hand, took her to his bedroom, undressed her and kissed her back and neck. It is then alleged that there was penile penetration of the anus by the appellant, the appellant having used Vaseline (which fact is relevant and will be dealt with later). Words were spoken and, it is alleged, that the appellant reached orgasm. The appellant told LW to have a shower after which he had one. It is said that LW saw the appellant’s penis which was erect, he had pubic hair and was circumcised.

16 Shortly after the incident the grandparents returned home. LW’s grandmother remarked as to the absence of lights on in the house except for the bathroom and the appellant’s bedroom and why LW and the appellant were each in their own rooms and in bed so early (it being approximately 8.30 pm). The act of anal intercourse was count 2 charged against the appellant.

17 Evidence was given of a number of incidents of a similar kind which evidence was adduced for the purposes of establishing the relationship between the appellant and LW.

18 The charge in count 3 occurred when LW was in the shower (which was over the bathtub and had a shower curtain). The appellant came into the bathroom, pulled the shower curtain across and stepped into the bathtub. It is alleged that after rubbing his erect penis up and down the small of her back, he again penetrated the complainant’s anus with his penis until he reached orgasm.

19 The fourth count occurred some years later and was of a fundamentally different kind. In this instance it is suggested that the appellant was driving a motor vehicle (utility) in which LW was sitting between the appellant and his then wife and it is alleged that while the appellant was changing gear he would make contact with LW’s thigh area between her legs and his elbow would come down between LW’s breasts. The appellant’s then wife told him to stop what he was doing but he laughed at that suggestion. After arriving at their destination the appellant’s former wife comforted LW who told her “if only you knew what he has done to me”.

20 Apart from the appellant’s former wife, evidence was given by the complainant’s mother who gave evidence about the fact that the complainant stayed at her grandparents’ home during the period in 1970 to which the complainant referred and also gave evidence regarding complaint of the matters relating to count 4.

21 The older brother of the complainant gave evidence and recalled his sister being upset at one of the family parties. Again he recalled the complaint in relation to the conduct alleged in count 4 but recalled little else. There was an altercation between him and the appellant at that party in relation to the complaints that were made to him. A statement by EB who was the mother of the appellant and the grandmother of the complainant was read to the jury, EB having died between the time that the statement was taken and the date of the trial. EB’s statement went to the layout of the house, confirmed attendance at meetings and confirmed the incident with all of the lights being off on return from one of those meetings. She did not recall problems occurring at family parties.

22 The appellant, it is said on appeal, was advised by counsel that he was able to give evidence if he so chose but it was unnecessary for him so to do. The advice to him, as disclosed on appeal, was that if he felt unable to be cross examined, or uncomfortable about it, he should not give evidence. The appellant did not give evidence. The appellant’s case at trial relied upon evidence relating to the design of the car in which count 4 occurred and the cross examination of witnesses. That cross-examination included cross-examination of the complainant about inconsistencies between the evidence given at trial and at the committal proceedings which took place in October 2003. It also depended upon some inconsistencies between her evidence and the evidence of other witnesses. The inconsistencies referred, amongst other things, to the fact that at trial it seemed as if the complainant could remember things that she had earlier been unable to remember. The location of the jar of Vaseline referred to earlier, is one such example. In submissions to the jury, counsel then representing the appellant relied upon the lack of complaint that could be independently verified of incidents other than count 4. Reliance was also placed upon what was suggested was physical impossibility in relation to count 3 which physical impossibility was based upon the relative heights of the complainant and the appellant while standing in the bathtub. Further reliance was placed upon the delay in complaint and inconsistencies between evidence that she gave and that of which she had informed a work mate as to the age that she was when the incidents first commenced.

23 All of these matters were put to the jury for their consideration as well as other matters going to the innocence of the then accused. The appellant, as has already been stated, appeals the conviction and seeks leave to appeal the sentence. Each of those appeals are out of time and the appellant seeks leave to appeal out of time in relation to each of them. In my opinion leave should be granted to appeal out of time and leave to appeal the sentence should be granted.

24 The appellant was unrepresented on appeal and raised a number of grounds and submitted a “Schedule of Inconsistencies” the substance of which was that the verdict was unsafe and unsatisfactory.

Ground One: “Did commit”

25 The appellant complains that the indictment read at arraignment and to the jury at the beginning of the trial and on summing up, used the words “did commit” thereby giving the impression, especially when the trial judge used those words, that the appellant was guilty.

26 A reading of the summation by the trial judge and his comments, before any evidence, shows that the judge went to appropriate lengths to stress to the jury that the Crown was required to prove its case beyond a reasonable doubt. Indeed this was made clear by the trial judge to the jury at the opening of the trial and immediately after reading the terms of the indictment.

27 The wording of an indictment invariably alleges that a person “did commit” an offence. This does not impact upon the jury’s task. The directions of the trial judge as to the manner in which they should deal with proof beyond a reasonable doubt and the presumption of innocence do not give rise to a ground of appeal.

Grounds Two – Five: Unreasonable Verdicts

28 While the appellant does not refer to the grounds of appeal as a ground alleging “an unreasonable verdict”, the basis of his complaint is such that the only available ground of appeal is that the verdict against him in relation to those counts was unreasonable. The appellant particularises the unreasonableness of the verdict on a number of bases:

a No independent evidence, either physical or corroborative of the complainant;

b The delay in excess of thirty years before complaint;

c The inconsistencies in evidence of the complainant between committal and trial;

d The mistake that he made in accepting the advice given by counsel and declining to give evidence himself.

29 Further, the appellant provided the court with a number of “Questions from Context” which were in two parts but, in essence, fall within the general headings provided above. Because the appellant is unrepresented on appeal, I have paid particular attention to the examination and cross-examination of the complainant and the summing up of the trial judge in order to ensure that any appeal point not otherwise raised by the appellant has not been missed.

Principles

30 The principles upon which the Court, on appeal, will interfere with the verdict of a jury have been the subject of much authority. They were expressed authoritatively by the High Court in M v The Queen (1994) 181 CLR 487. The joint judgment in MFA v R (2002) 213 CLR 606 (Gleeson CJ, Hayne and Callinan JJ) cited the joint judgment of the majority in M v The Queen (Mason CJ, Deane, Dawson and Toohey JJ) in the following terms:

“Where, notwithstanding that as a matter of law, there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.” ( M v The Queen at 493)

31 The joint judgment in MFA of McHugh, Gummow and Kirby JJ also adopted the test in M and described it in the following terms:

“[55] Nevertheless, in M the majority of this Court favoured what might be termed a ‘broader’ test for unreasonableness or unsupportability of a verdict. Instead of asking whether a jury ‘must’ or were ‘bound to’ have a reasonable doubt about the accused’s guilt, the majority posed the question whether it was ‘open to the jury’ to be satisfied of the accused’s guilt applying the criminal standard of proof beyond reasonable doubt acting as a reasonable jury and reaching their verdict ‘upon the whole of the evidence’.”

32 Section 6(1) of the Criminal Appeal Act qualifies the symbolic acceptance of the verdict of a jury as the final determination of guilt or innocence (MFA at 621 [48]). This is because, in the context of a criminal trial, the requirement of finality of factual assessment by a jury must be qualified by the importance of the liberty of the individual and the fundamental requirement of the criminal justice system to prove guilt beyond a reasonable doubt. Finality of the verdict of a jury must be balanced against the importance of the liberty of the individual and it is to that balancing exercise that the provisions of s.6(1) of the Criminal Appeal Act are directed. “But it involves a function to be performed within the legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.” (MFA v The Queen at 624 [59])

33 In a fundamentally different context Gleeson CJ said of the importance of a jury trial:

“Depending upon the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind.” ( Swain v Waverley Municipal Council (2005) 79 ALJR 565 at 566)

34 The context of that statement was in relation to a civil trial by jury, but the same sentiment and the same principles have been expressed in relation to verdicts of a jury in a criminal trial. The High Court has reminded us that “a verdict of a jury, particularly in serious criminal cases, is accepted symbolically, as attracting to decisions concerning the liberty and reputations of accused persons especial authority and legitimacy and hence finality.” (MFA at 621 [48]) I mention this once more because, ultimately, the matters raised by the appellant turn on asking this Court, as a court of appeal, to overturn a verdict of a jury because the appellant considers there was a basis upon which the jury could have determined otherwise. The principles that bring about finality for a jury trial ought not to be set aside for the purpose of quashing this conviction simply on that basis.

35 In this case the complainant gave direct evidence of the incidents which gave rise to the charges. While there are some minor inconsistencies and lapses of memory, not unsurprisingly after thirty years, the evidence that she gave was given impressively and, even reading the transcript, it is evident that the witness was an impressive witness. While the denials of the appellant contained in records of interview were before the jury, the appellant chose, on advice, not to give evidence. In the circumstances, the jury was entitled to believe the complainant on those matters that went to the elements of the charge.

36 The appellant complains that, in hindsight, he ought to have chosen to give evidence. That may be so. Nevertheless, the appellant was advised and, in the manner that the appellant has disclosed, was advised in terms that essentially left it to the appellant to make that decision based upon whether the appellant felt he would be able to withstand cross-examination. The appellant chose, on advice, not to give evidence. The Court of Criminal Appeal cannot, in those circumstances, quash a verdict on the basis that the appellant now regrets not giving evidence. The advice that was given to him, in as far as it was disclosed to the Court, was perfectly proper, sound advice and would not form the basis of an appeal based upon the appellant having been misled or advised incompetently.

37 The absence of physical evidence or corroborative witnesses, a matter raised by the appellant, is not an uncommon feature of sexual offences. In this case, the submissions of the appellant merge, somewhat, with the issues associated with the delay in bringing the charges. Again a delay in complaint and the bringing of charges in sexual offences is not uncommon. In circumstances where children are the alleged victims of sexually inappropriate conduct, the combination of the disempowerment of the child and the authority figure of the perpetrator, together with the social pressures associated with causing conflict with the family or generally airing that which is in the past often leads to the suppression of these complaints until an older age. There can be little doubt that the delay causes significant problems in defending such claims. Some of those problems were evident in the trial of these charges. The death of the appellant’s mother is one such example. The inability of the appellant to recall details, quite understandably, of events thirty years earlier, is another. Each of these, however, were the subject of appropriate addresses by the judge and matters for the jury.

38 Lastly, it is alleged that the fact that the appellant was found not guilty of the fourth count is inconsistent with his guilt in the other three. There is no formal inconsistency in the different results, nor as a matter of logic or common sense, is it a necessary, or even a likely, contradiction.

39 The summing up of the judge makes clear that an element of the fourth count was the year in which it occurred, and there was contradictory evidence as to what year the incident occurred. The most likely reason that the defendant was found not guilty of the fourth count was that the jury took the view that the charge, as alleged, was not made out because he did not commit that offence in the year in which the charge alleges or that it could not be proven beyond a reasonable doubt. The inability of the jury to find, beyond a reasonable doubt, that the offence was committed in the year in question, even though the complainant gave evidence of the year, does not lead to a conclusion that the complainant can not be believed on the other charges or such evidence as goes to the elements of the other charges. Indeed, in relation to the fourth count, there was corroborative evidence of the complainant’s account given by the appellant’s ex-wife, but it was for a year different from that which was charged.

40 Each of the other matters, which were the subject of appeal, were matters raised by defence counsel at trial and put to the jury. Further, they were matters to which his Honour directed attention in his summing up. Each of them were matters for the jury and were not such that would give rise to a finding that the verdict was one which was not open to the jury.

Sentence

41 There are a number of matters in relation to the sentencing of the appellant which cause some concern. His Honour’s use of s.21A(2)(f) and 21A(2)(m) of the Crimes (Sentencing Procedure) Act as aggravating features were inappropriate. The finding of cruelty depended upon facts which formed the elements of the charge and conviction. Nevertheless the child, as she then was, was of a vulnerable age and was in the trust and care of the appellant.

42 Sentencing occurs after guilt has been found. The offences proven are extremely serious and would have an impact upon any child who was the victim of such an attack.

43 His Honour has erred because he misunderstood the maximum sentence available in relation to Count one. His Honour referred to the maximum sentence being six years’ penal servitude whereas the maximum penalty was in fact five years. The imposition of the maximum sentence was not intended by the sentencing judge and was not justified. I propose to correct this oversight by imposing a sentence that maintains the relationship with the maximum that seems to have been intended by his Honour.

44 The remarks on sentence pay little, if any, attention to which, if any, of the offences would be served by prison sentences which were cumulative or consecutive. No attention seems to have been paid to the separate criminality of each of the three offences and the overlapping criminality that may or may not have occurred in relation to them.

45 If I were exercising a discretion on sentence afresh, I would consider that offences 1 and 2 would have a significant degree of overlap but offence number 3 is a quite separate offence requiring condign punishment in and of itself. In those circumstances I would not have made offence 3 cumulative, or wholly cumulative, with the other two offences. Further, given the maximum sentence for Counts 2 & 3 is 14 years, a sentence of 5 years seems quite light in the circumstances.

46 In relation to the errors made in the application of the aggravating features contained in s.21A(2) and referred to above, I do not consider that those errors have affected the sentence that was imposed and, given the nature of this appeal, and the absence of a Crown appeal on sentence, I am not minded to alter the total effective sentence imposed by his Honour, even though I consider that it is, ultimately, not punishing sufficiently the appellant for each of the three offences.

47 I do, however, consider that given the error in the maximum penalty as understood by his Honour for offence number one, I will correct that and I propose the following orders:

a The appellant be granted an extension of time to file an appeal and application for leave to appeal to include the date upon which such appeal and leave to appeal were filed;

b Appeal against conviction be dismissed;

c Leave to appeal against sentence be granted;

d Appeal against sentence be upheld in relation to the sentence on Count 1 and otherwise dismissed;

e The sentence on Count 1 be quashed and in lieu thereof a sentence be imposed of four years’ imprisonment to commence on 16 April 2004 and expire on 15 April 2008 with a non-parole period of 3 years to expire on 15 April 2007.

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