R v Johnson

[2000] NSWCCA 474

CITATION:	R v Johnson [2000] NSWCCA 474
FILE NUMBER(S):	CCA 60724/98
HEARING DATE(S):	21 November 2000
JUDGMENT DATE:	21 November 2000
PARTIES :	Regina v Henry James Johnson
JUDGMENT OF:	Heydon JA at 1; Studdert J at 46; Greg James J at 47

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/41/0177
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

COUNSEL :	Crown: Ms P Hock Appellant: Mr C V Jeffreys (Solicitor)
SOLICITORS:	Crown: S E O'Connor Appellant: Jeffreys & Associates
CASES CITED:	Basto v R (1954) 91 CLR 628 R v Veverka [1978] 1 NSWLR 478 R v Amado-Taylor [2000] 2 Cr App R 189 R v Williams (1999) 104 A Crim R 260 R v Tomazos (CCA, unreported, 6 August 1979)
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60724/98

HEYDON JA
STUDDERT J
GREG JAMES J

Tuesday, 21 November 2000

REGINA v Henry James JOHNSON
JUDGMENT

1    HEYDON JA:

Background

Henry James Johnson appeals against his conviction by a jury on 21 October 1998 on three charges of indecently assaulting a person under the age of 16 years. On 12 November 1998 he was sentenced on each charge to 15 months imprisonment to expire on 20 January 2000, with an additional term of 12 months to expire on 20 January 2001, the sentences to be served concurrently. The trial judge ordered that he be released on parole on 20 January 2000. At the trial the accused was acquitted of having sexual intercourse with a person under the age of 16 years without consent.

2    The complainant was the accused’s niece - the daughter of his sister, who was younger than him. The complainant was born on 2 February 1978. The events in issue allegedly occurred between about 1988 and 1993. The proceedings were instituted after she complained of the events in issue to her mother and then to the police in 1997.

3    The principal Crown witness was the complainant. The accused made no admissions to the police and did not give evidence, but called his wife.

4    The accused owned horses, and the complainant, from the age of 10, developed an interest in horses. He gave her a pony and she frequently visited the accused’s house to ride it and care for it and its successors. In due course she joined a Pony Club and competed at gymkhanas. Her uncle transported her on occasion to the gymkhanas.

5    The conduct complained of allegedly occurred while she was visiting her uncle and his wife or staying overnight with them. They lived about a kilometre from her home.

The Crown Case: Count 1

6    The Crown case on count 1 was that when the complainant was about 10 there was an occasion when she was in the lounge room of the accused’s house. He placed her on his lap with his back towards her and made her watch a pornographic video although she tried to look away. He undid the zipper on her cream riding jodhpurs and fondled her vagina with his left hand. Her legs were open and resting on the outside of the accused’s legs. She asked him to stop and struggled. She said that this went on for about ten or fifteen minutes until the accused turned off the video and got ready to leave for work.

The Crown Case: Count 2

7    The Crown case on count 2 was that when the complainant began attending gymkhanas, she occasionally slept at the accused’s house on Saturday nights. On the first night that she did so, she was awoken by the accused leaning over her bed while kneeling on the floor. He touched her over the bed clothes and then stroked her vagina. He told her to be quiet so that she would not awaken her cousin Karen and her aunt.

The Crown Case: Count 3

8    The Crown case on count 3 was that one night while staying at the accused’s house after going to bed the complainant got up to go to the toilet. The accused took her into the lounge room where he was watching a pornographic video with the sound off. He indicated to her to be quiet because her aunt was in the next room. They sat on the floor with the complainant positioned between the accused’s legs. He touched her on the vagina and on the breasts. She said that she was struggling but the accused kept telling her to be quiet and “did I want to wake [your aunt] up, she would know what type of girl I was”. The accused then told her to go back to bed and he indicated that she should go round the kitchen and back to the bedroom. He followed her into the bedroom and began to touch her on the vagina while kneeling on the bed. He then lay on top of her. The next morning the accused came in at 5 o’clock, which was earlier than usual, and told her to get out of bed. She was shocked to see that there was blood on the sheets. He took the sheets from the bed and told her that he would show her how to wash them. He told her to tell her aunt that she had wet the bed otherwise her aunt would know what had happened and “she would know what I was”.

The Accused’s Case

9    Counsel for the accused took two lines of defence. One was to seek to highlight improbabilities and internal inconsistencies in the complainant’s evidence. The other was to point to aspects of the evidence given by the accused’s wife which were inconsistent with the complainant’s evidence.

10    On the appeal, which was presented with characteristic ability by Mr Jeffreys for the accused (he not having appeared at the trial), the accused’s contention was that the defence case had not been put adequately to the jury. Most of these improbabilities and inconsistencies were not specifically referred to all; so far as they were referred to, it was usually in the most general terms by reference to counsel’s addresses.

The Complainant’s Evidence

11    The accused contended that the following matters were not referred to in the summing up.

12    First, despite the complainant’s evidence of having been molested on the three occasions in relation to which the accused was convicted, together with another occasion at a time before the events underlying the first count in relation to which the accused was not charged, and incidents similar to the second count with which the accused was not charged, she “returned daily to the premises of the accused where she was in danger of being molested”. Reference was made to evidence that initially she would ride horses at her uncle’s house each Saturday, going home and then returning each Sunday. From Year 6 on she would go to her uncle’s house “just about” every day after school “into this dangerous situation” (T36 lines 21-57) - “this atmosphere of fear and loathing” (T130 lines 10-15). She continued this practice until Year 9 at High School, when she was 15 (T37 lines 10-20). She did this despite repeatedly being shown pornographic books (T86 lines 25-55).

13    Secondly, the accused pointed to inconsistencies between the version which the complainant gave to the police in her statement to them and her evidence at the trial.

(a) She told the jury that the accused habitually kissed her and attempted to put his tongue into her mouth; she admitted that she did not tell the police that (T50 lines 50-60).

(b) Her evidence in relation to count 1 was that the accused took her into the lounge room and showed her pornographic videos. She said she “may not” have told the police that (T79 line 50-80 line 7).

(c) She gave evidence before the jury that at a time before the events underlying the first count the accused showed her magazines with pornographic pictures which he had hidden in the shed where the horse feed was kept (T6 line 24-7 line 24). She admitted she told he police that the accused showed her pornographic books without pictures, not magazines with pictures (T81 line 20-85 line 49).

(d) She gave evidence before the jury that she told a school friend, Sherry Prichocky, about being shown pornographic videos by her uncle in the course of the events forming the subject of the first count (T89 line 50-90 line 20). This does not appear in the statement to the police, though she said she told them (T90 line 23-91 line 35).

(e) She told the jury that she joined the Pony Club at the age of 12. She told the police she did so at the age of 10 (T98 lines 1-47).

(f) She told the jury that the events the subject of count 3 included her being shown pornographic videos in the lounge room. She did not relate this to the police (T123 line 25-124 line 58).

14    Thirdly, the accused said, in relation to the first count, that it was improbable that he would have molested the complainant in the kitchen in daylight because the kitchen was open and accessible to others who might arrive without warning (T74 lines 30-75 line 30).

15    Fourthly, in relation to the first count, the accused pointed to what was described as “the unlikely nature of the evidence of the [accused] playing pornographic videos to the complainant in the lounge room in daylight when others might arrive without warning” (T77 lines 20-35, 89 lines 25-40 and 94 lines 1-40).

16    Fifthly, in relation to the second and third count, the accused pointed to what was described as “the unlikely nature of the evidence of the [accused] molesting the complainant at night when his wife or daughter Karen, who came home at all hours, might find the [accused] with the complainant” (T100 lines 20-45).

17    Sixthly, in relation to the third count, the accused pointed to what was described as “the unlikely nature of the evidence of the [accused] showing a pornographic video in the lounge room when his wife was asleep” (T123 lines 25-50).

18    Seventhly, in relation to the third count, the accused pointed to what was described as “the implausibility of the evidence concerning the blood on the sheet and the [accused] washing the sheet early in the morning in a noisy washing machine when everybody in the house was asleep” (T111 lines 15-30).

19    Eighthly, the accused, in relation to the third count, pointed to “the fact that the complainant’s mother who washed her clothes never saw blood on her nighties even though the complainant said that a pool of blood had been left on the sheet” (T177 lines 25-37).

20    Ninthly, the accused pointed to evidence given by Mr Williams on 16 October 1998 of the fact that the accused had reading difficulties. He had lost an eye. His literacy skills were described as “very poor”. He used a magnifying glass to read (T4 lines 10-20 and 10 lines 25-40). The point made by the accused was that this tended to contradict the evidence of the complainant that the accused would help the complainant read the pornographic material he allegedly showed her.

21    Tenthly, the accused pointed to the fact that no pornographic videos or magazines showing sexual connection between human beings were found on execution of a search warrant by police officers. The bulk of the videos were home videos showing family activities. The magazines were published in the 1950’s or 1960’s and consisted of pictures of women in bikinis (T18 line 40-19 line 55).

The Evidence Given by the Accused’s Wife

22    Turning to the evidence given by the accused’s wife, the accused complained that the summing up did not refer to the following evidence given by the accused’s wife, which to varying degrees tended to contradict the evidence of the complainant.

23    First, the accused’s wife worked four days a week for 22½ hours and did her shopping on the way home from work (19 October 1988 T11 lines 1-25).

24    Secondly, she stayed at home on Saturdays and did not go out (T12 lines 15-25, 25 line 40-26 line 15, 27 lines 35-50) - compare T79 line 40, where according to the complainant, though the accused’s wife was occasionally at home on Saturdays most of the time she was not.

25    Thirdly, the television and video were old and did not have a remote control (T13 line 55-14 line 10 and 29 lines 1-40).

26    Fourthly, she saw no blood stains on the sheets or mattress (T16 lines 1-40).

27    Fifthly, she did the washing and would have noticed a sheet hanging on the clothes line and inquired why it was there (T16 lines 20-35).

28    Sixthly, she gave evidence that the accused had difficulty in reading (T17 line 45-18 line 45, 20 line 40-22 line 40). Her evidence suggested that the accused was virtually completely illiterate, and in effect pretended to read though he could not.

29    Seventhly, she gave evidence as to the configuration of the accused’s house (page 13), which was relevant to the improbability of the conduct being carried out as contended for by the complainant.

30    The complainant only stayed overnight at the accused’s house once, according to the accused’s wife (T18 line 45-19 line 20, 34 lines 35-40, 35 line 55-36 line 55). The point of this evidence was that it sharply contradicted the evidence of the complainant that she stayed overnight on a substantial number of occasions.

The Significance of the Summing Up

31    First, while not all of the points which the accused makes in his submissions to this Court are forceful, there are certainly a significant number which might have been accepted by the jury, and if accepted by the jury could well have raised a reasonable doubt in their minds.

32    Secondly, the accused’s submissions are somewhat exaggerated in that, for example, it is not the case that the summing up did not refer to the evidence of the accused’s wife that the complainant only stayed overnight once. That was specifically mentioned by the trial judge at page 40.8. Difficulties as to dates were analysed at pp 31-34.

33    Thirdly, minds might differ on whether many of the improbabilities and inconsistencies were peripheral or relatively trivial. Whether they were and how central they were to the accused’s case are matters which persons present at the trial and familiar with its atmosphere could judge better than minds looking at a matter on appeal.

34    The trial judge reminded the jury that it was for them to decide what in the evidence was important, whether or not she mentioned it to them specifically.

35    The relevant principles of law may be summarised as follows. In short trials it may not be necessary for the trial judge to analyse the evidence in summing up. But, to quote from the reasons for judgment in R v Amado-Taylor [2000] 2 Cr App R 189 at 192-3 delivered by Henry LJ:

“generally speaking, the longer a trial lasts, the greater will be a jury’s need for assistance from the judge relating to the evidence. Many jurors do not have the experience, ability or opportunity of a judge to note significant evidence and to cross-reference evidence from different sources which relates to the same issue. Accordingly, in a trial lasting several days or more, it is generally of assistance to the jury if the judge summarises those factual issues which are not disputed, and, where there is a significant dispute as to material facts, identify succinctly those pieces of evidence which are in conflict, By so doing, the judge can focus the jury’s attention on those factual issues which they must resolve. It is never appropriate, however, for a summing up to be a mere rehearsal of the evidence.”

The Crown referred to similar principles, as usefully stated in R v Williams (1999) 104 A Crim R 260 at 269-270 in the judgment delivered by Wood CJ at CL, which was concurred in by the Chief Justice and McInerney J, and which collects some of the leading authorities.

36    The accused relied on the following statement of Isaacs J in R v Tomazos (Court of Criminal Appeal, unreported, 6 August 1979, page 14):

“A trial according to law includes as an essential pre-requisite that the trial Judge has put fairly, cogently and with clarity to the jury the accused’s defence. The weaker the defence the more essential is it for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof.”

The succeeding passages on pages 14 to 15 were also read.

37    The accused also relied on two propositions enunciated in R v Veverka [1978] 1 NSWLR 478 at 482 per Street CJ. The first was that the case for an accused should be presented in such a way as to enable the jury, from the terms of the summing up itself, to comprehend and understand what the defence case is. The second proposition was that the trial judge should collect into one identifiable portion of the summing up the various lines of evidence upon which the accused relies as constituting the entirety of his defence to the charges brought against him.

38    The Crown points out that the trial was relatively short and that the evidence was in a fairly narrow compass, as the trial judge noted at page 11 of her summing up. The charges, if they were to be established, had to be established on the word of the complainant uncontradicted by any evidence from the accused. It may be assumed that the matters which the accused now says were not put to the jury by the trial judge were put to the jury by his counsel. Thus the inconsistencies between what the complainant said to the police and what she said to the jury were referred to as having been gone into in “some detail” by defence counsel in his address as affecting the reliability and credibility of the complainant. The trial judge directed the jury on pages 35-37 about the absence of complaint by the complainant, a matter to which some of the present submissions relate. The Crown noted that the trial judge said, at page 48, to the jury that she did not propose to summarise the detailed addresses of counsel, which were no doubt “very fresh in your minds”, and that she had noted the attentiveness of the jury in the course of the addresses. The Crown pointed to the fact that a new trial ought not to be granted merely because the judge had not mentioned to the jury all the matters set up on behalf of the accused as affecting the probabilities: Basto v R (1954) 91 CLR 628 at 637. The Crown submitted that so far as reliance was placed on the evidence of the accused’s wife, the jury requested the transcript of that evidence after it retired. Its contents, so far as they were favourable to the accused, would thus have been before the jury in written form in the course of their deliberations. In oral address the Crown also referred to various other passages in the summing up which pointed many times to the location of the onus of proof and the standard of proof, which referred to the fact that the evidence against the accused was something essentially from the mouth of one witness only and which stated that the defence case was essentially that the complainant had fabricated her evidence.

39    The difficulty in the present case stems from a combination of the following circumstances. First, the accused did not advance any circumstantial defence from his own mouth. He relied only on attempts to undermine the reliability of the complainant, and on the evidence of his wife in aid of that enterprise. Secondly, his counsel at the trial, counsel of some experience, did not seek a redirection at the end of the summing up on the ground that the defence case had not adequately been put to the jury. Thirdly, if the vigour and colour employed by counsel for the accused in his cross-examination had been replicated in his address to the jury, it is a safe inference that the case for the accused was powerfully put. Fourthly, and this is said without any criticism of counsel for the accused, the mode of his cross-examination of the complainant was argumentative in style: not only was he concerned to elicit evidence favourable to his client and to lead the complainant into inconsistencies, he was concerned to argue his client’s case in his questions with some aggression.

40    Fifthly, the trial judge did tell the jury that it was necessary to assess the complainant’s evidence. She did tell the jury of the need to identify in relation to each element of each alleged offence what the issue was. It may be assumed that counsel for the accused at the trial thought that the summing up was appropriate to the issues as fought at the trial.

41    It is true that it is the responsibility of the judge in the summing up to put the defence case, although it is not sufficient merely to refer to counsel’s addresses. But in this case her Honour did make reference to the nature of the defence case and its bearing on the essential question before the jury.

42    The fundamental issue for this Court is whether the summing up was an adequate explanation to the jury of the need for them to be satisfied beyond reasonable doubt of the guilt of the accused on the offence charged on the basis of the evidence of the complainant as tested in cross-examination and in the light of the whole of the evidence in the case. The purpose of the summing up was to present the nature of the parties’ cases and to explain the substantive law. The only necessity to repeat any of the evidence arose from the need to highlight the nature of the parties’ cases.

43    To repeat the specific points made by counsel for the accused in no doubt vigorous fashion in final address on the very morning of the day of the trial judge’s summing up may have tended to blunt their effect rather than to improve the presentation of the accused’s case. Counsel for the accused may indeed have made an assessment to that effect.

44    Authorities which point to the need to collect in particular places conflicting evidence, issue by issue, can have little to say in the present circumstances, where there was virtually no conflict in the evidence of the witnesses save for the conflicts between the evidence of the accused’s wife and that of the complainant. In that latter field of conflict, the evidence of the accused’s wife was before the jury during their deliberations. While a fuller summing up, highlighting with more specificity the points which the defence wished to make might, if it had been requested, have been usefully made, in my judgment, in the particular circumstances of the present case, it cannot be said that the accused did not receive a fair trial according to law.

45    I would dismiss the appeal.

46    STUDDERT J: I agree.

47    GREG JAMES J: I also agree.

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