Regina v AG - Regina v RJM

[2000] NSWCCA 86

CITATION:	Regina v AG - Regina v RJM [2000] NSWCCA 86
FILE NUMBER(S):	CCA 60406/99; 60407/99
HEARING DATE(S):	21 March 2000
JUDGMENT DATE:	31 March 2000
PARTIES :	REGINA (Respondent) v AG (Appellant) REGINA (Respondent) v RJM (Appellant)
JUDGMENT OF:	Spigelman CJ at 1; Ireland J at 2; Simpson J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/0154
LOWER COURT JUDICIAL OFFICER :	Grogan DCJ

COUNSEL :	D C Frearson - Crown Respondent P J O'Donnell - Appellant
SOLICITORS:	S E O'Connor - Crown Respondent Matthews Folbigg - Applicant
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	R v M (1994) 181 CLR 487 R v Prasad (1980) 2 A Crim R 45 Jones v R (1997) 191 CLR 439
DECISION:	Each appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60406/99

60407/99

SPIGELMAN CJ
IRELAND J
SIMPSON J


Friday 31 March 2000


REGINA v A G
REGINA v R J M

JUDGMENT

1    SPIGELMAN CJ: I agree with Simpson J.

2    IRELAND J: I agree with Simpson J for the reasons given by her Honour.

SIMPSON J :

3    On 18 June 1999 the appellants, RM and AG, were convicted after a nine day trial by jury of certain sexual offences, the victim of each of which was alleged to be CM (to whom I will refer as C). Each appeals against the convictions.

4 The trial commenced on 7 June 1999. RM was indicted on six counts, four of which were assault with intent to commit buggery, brought under s 80 of the Crimes Act 1900, and two of indecent assault, brought under s 81 of the Crimes Act. AG was indicted on four counts, three of which were of assault with intent to commit buggery, and one was of indecent assault. All offences were alleged to have been committed between 1 November 1978 and 31 March 1979. The jury returned verdicts of guilty on each count against AG, and on three of the counts against RM. They acquitted RM on one count and were unable to agree, and were subsequently discharged, in respect of two counts. The indictment and verdicts may be summarised as follows:

COUNT
1 RM assaulted C with intent to commit buggery:
jury unable to agree, discharged

2 AG assaulted C with intent to commit buggery:
verdict of guilty

3 AG indecently assaulted C:
verdict of guilty

4 RM indecently assaulted C:
verdict of guilty

5 RM assaulted C with intent to commit buggery:
jury unable to agree, discharged

6 RM assaulted C with intent to commit buggery:
verdict of guilty

7 AG assaulted C with intent to commit buggery:
verdict of guilty

8 RM indecently assaulted C:
verdict of not guilty

9 RM assaulted C with intent to commit buggery:
verdict of guilty

10 AG assaulted C with intent to commit buggery:
verdict of guilty

5    Except for that charged in count 5, each offence was alleged to have been committed at Freemans Reach. The offence charged in count 5 was alleged to have been committed at Windsor.

6 The sole ground of appeal by each appellant is that the verdicts cannot be sustained, having regard to what is said to be the unsatisfactory nature of the evidence: R v M (1994) 181 CLR 487.

7    It is convenient now to set out as shortly as possible the evidence presented to the jury on behalf of the Crown. Substantially it was the evidence of the complainant, to whom I will refer as C. His evidence was to the following effect.

8    C was born on 18 October 1968. In 1978 he lived in Windsor and attended the South Windsor Primary School. His closest friend was MM (to whom I will refer as M), the son of RM. M lived with his father at Freemans Reach. Also living in the house were M’s sister AM, M’s great grand mother, and AG. RM and AG shared a bedroom. RM worked in Windsor at the Prospect County Council.

The first count

9    M’s tenth birthday fell on 16 November 1978. He had a birthday party attended by a number of his friends, including C. RM, accompanied by M, picked C up from his home in Windsor and drove him to Freemans Reach. RM alone drove C home after the party. On the way home RM asked C if he would like to come back and play, to which C made no reply. RM then drove into a cricket oval called the Breakaway and pulled in towards the back of the oval. A toilet block and a line of trees were nearby. He told C to get into the back seat of the vehicle, and undress. He pushed C down on the seat. RM then took off his own clothes and attempted, unsuccessfully, to force his penis into C’s anus. C was crying and asking RM to stop. The two then dressed, RM told C not to tell anybody, and threatened C that he would be in trouble if he did and would not be permitted to see M. RM then drove C home. This is the alleged event that gives rise to the first count in the indictment. The jury was unable to reach a verdict and was discharged.

The second, third and fourth counts

10    A few weeks later C again visited M’s home. On this occasion he stayed overnight. He shared M’s room which contained two single beds. After the boys had gone to bed RM entered the room , woke C, signalling him to be quiet, led him out of the room to a caravan that was under a carport, and told him to undress. C did so. He was on a double bed in the caravan. Each of the appellants sucked his penis. RM then told AG to try to have sex with C. AG got C to lie face down on the bed and attempted to insert his penis in C’s anus. RM made a similar attempt. Both were unsuccessful in achieving penetration. They then had C suck their penises, and both masturbated. RM used a face cloth to wipe C’s anus, and then inserted a finger. C then returned to M’s room. The alleged attempt by AG to penetrate C anally is the foundation for the second count in the indictment; the allegations that the two appellants sucked C’s penis are the foundation for the third and fourth counts. Each of these counts resulted in conviction.

The fifth count

11    Some time later C again stayed overnight at the appellants’ home. It was a Friday night. On Saturday morning RM drove M to tennis practice in Windsor and then drove C to the office where RM worked, also in Windsor. They both went into the office which was otherwise deserted. RM asked C to undress, laid him face down on the floor, and attempted (again unsuccessfully) to have anal intercourse. He then took C to a toy shop across the road and bought him a toy. They picked M up from tennis and drove back to RM’s home, where C again stayed overnight. The allegations about the events in the office in Windsor are the foundation for the fifth count in the indictment. On this count the jury was unable to reach a verdict and was discharged.

The sixth and seventh counts

12    During the night RM again woke C and led him from M‘s bedroom , this time into the bedroom he shared with AG. The appellants asked C to remove his pyjamas, which he did. Both attempted , in succession, to have anal intercourse with C. Both were unsuccessful in their attempts to achieve penetration. C was crying, was embarrassed and was in pain. He asked them to stop. They told him to relax. The alleged attempts to penetrate C’s anus are the foundation for the sixth and seventh counts in the indictment. Both appellants were convicted on these counts.

The eighth count

13    A few weeks later C returned to M’s home. RM picked him up and while driving there he stopped again at the Breakaway cricket oval and led C into a toilet block and into a cubicle. The door was closed. RM lowered his pants, sat on the toilet and began to masturbate. He held C’s penis and stroked it. A man occupying the adjoining cubicle looked over the partition. RM told him to “piss off”. The man went outside and was taking down the number plate of RM’s car. RM was crying, and pleading with the man. The man asked C if RM had hurt him, and C said he had not. RM promised C it would never happen again and they drove off home. This was the foundation for the eighth count in the indictment, which resulted in an acquittal.

The ninth and tenth counts

14    C stayed again that night with M. Again, RM woke him during the night, led him into his own bedroom, and told C to undress. C took off his pyjamas. AG was present. RM and AG required C to suck AG’s penis. Both then attempted to penetrate C anally. Both failed to do so. C experienced pain and was upset and embarrassed. The appellants both masturbated themselves to ejaculation and then allowed C to return to M’s room. The two alleged attempts at anal intercourse are the foundation for the ninth and tenth counts in the indictment. The appellants were convicted on these counts.

15    During the course of his evidence in chief C also spoke of some additional incidents of sexual misconduct that were not the subject of any specific charge.

16 At the conclusion of the Crown case counsel for the appellants sought a direction in accordance with the decision of the South Australian Court of Criminal Appeal in R v Prasad (1980) 2 A Crim R 45. The trial judge directed the jury accordingly. The jury indicated that it wished the trial to proceed.

The defence cases

17    Both appellants gave sworn evidence. In chief, each essentially confined himself to a denial of any sexual impropriety. In addition, RM gave some evidence challenging descriptive detail contained in C’s accounts of the incidents. It will be necessary to deal with this more comprehensively below.

The appeal

18    The appeal depends upon an analysis of the detail of the evidence given by C. In particular, reliance was placed upon inconsistencies in various accounts he had given, and inconsistencies between his accounts and evidence of others concerning supportive or surrounding details.

19    Three matters of general relevance were relied upon and may be mentioned at the outset. It was argued that -

(i) C’s evidence was uncorroborated and there was no evidence of immediate complaint;

(ii) C’s first statement to police was not made until 17 June 1996, seventeen and a half years after the events he alleged;

(iii) each appellant gave sworn evidence denying all allegations and made no admissions to police.

20    The first of these is not entirely accurate. M, RM’s son, gave evidence of a conversation between himself and C that he said took place late in 1978 in his bedroom, as the two boys were in bed or preparing for bed. He recounted that C told him that, on the way to the house, RM had stopped at the Breakaway and they had gone into the toilet block, and entered a cubicle; that RM had taken hold of C’s penis and begun to masturbate himself (although M thought it unlikely that that was the word then used by C); that another man had arrived, observed what was going on, and threatened to go to the police; that RM had begun to cry and had begged him not to do so. (A somewhat curious feature of his evidence is that C agreed with a proposition put to him in cross-examination that he had not related these events to M. There was thus evidence of complaint, but the evidence was effectively contradicted by C.)

21    The account given by M has a number of points of coincidence with the version given by C. Both C and M denied having any contact with one another since their childhood and there was no challenge to that evidence.

22    A significant attack was made upon M’s evidence. He initially made a statement relevant to the charges on 12 February 1997; in this statement he made no mention of the asserted conversation. At that time he was on reasonably friendly terms with his father. He made a second statement on 27 October 1998. By this time, for reasons unassociated with the present matters, he was on very bad terms with his father. The coincidence of detail between the conversation he asserted and the account given by C could be explained by the fact that in 1996 the police investigating C’s allegations had shown him a copy of C’s statement, and he had had the opportunity to read what C had alleged.

23    Further, it is not without significance that the specific count in relation to which evidence of complaint was given was the only count which resulted in an outright acquittal. It is therefore true that there was no evidence of complaint in relation to any of the counts that resulted in conviction. There was, however, some relevant and even important evidence of complaint. But it should not be overlooked that evidence of complaint is not evidence of corroboration, even under the new regime that exists following the introduction of the Evidence Act 1995. There was no other corroboration of any of the individual allegations made by C.

24 As to delay, comprehensive directions of which no specific complaint is made were given to the jury by the trial judge. He pointed out that delay had an adverse effect on the appellants’ ability properly to investigate the detail surrounding C’s allegations, such as whether he in fact attended M’s tenth birthday party, and if he did, how he went there, who else was present, and the date of the party; the various dates on which C stayed at the appellants’ home; the Saturday morning security and commercial arrangements at RM’s place of employment, where C alleged the offence referred to in count 5 took place; the precise situation concerning the toilet block at the Breakaway at relevant times; the recollections of neighbours concerning the events alleged in counts two, three and four. (This may have been relevant because C said that he could hear neighbours’ voices during these events). The judge told the jury that the absence of complaint was relevant to the assessment of C’s credibility and reliability. Later, when dealing specifically with C’s evidence, he gave a direction under s 165 of the Evidence Act 1995 . Among the matters to which he expressly referred therein as a basis for caution were the delay and the consequent increased likelihood of error on the part of C. He repeated that the delay hampered the appellants’ capacity to investigate the circumstances of the allegations, and added that that, in turn, hampered their capacity to test C’s evidence by cross-examination.

25    Another matter on which reliance was placed on behalf of the appellants was the Prasad direction. Quite how this was relied upon was not entirely clear, but it seemed to be suggested that, in recognition of the principle that the power to give such a direction should be used sparingly, the judge’s assessment that it was a suitable case for its application should influence this Court on the question of the reasonableness or otherwise of the verdicts of guilty. I would reject such a proposition. No relevant inference can be drawn from the trial judge’s decision to give the direction.

26    The remaining matters upon which reliance was placed concerned discrepancies in the various accounts given at different times by C, and inconsistencies between his versions, and those of others. It will be necessary to examine these in detail.

27    Perhaps the most significant related to C’s evidence of events at the cricket ground he called the Breakaway. These involved counts 1 and 8, significantly one of the two counts in relation to which the jury was unable to agree, and the count on which RM was acquitted. C claimed that the events with which count 5 was concerned took place in a toilet block at the Breakaway. He claimed that the events with which count 1 was concerned took place at the same cricket ground, and not far from the toilet block.

28    RM gave evidence that in March 1978 a very large flood washed the toilet block away and that it was not rebuilt until at least 1988. During the period covered by the dates in the indictment, November 1978 to March 1979, there was no toilet at the Breakaway. He said that any Council records to the contrary would have been incorrect. In fact, evidence called in the Crown case from a Council officer, Mr Hudson, tended to confirm what RM claimed to have been the position. A toilet block had been constructed on the site before 1978 and it was destroyed by flood in March of that year. Mr Hudson’s enquiries did not reveal when it was re-constructed. Certainly he produced nothing to suggest that it had been re-built between March 1978 and March 1979.

29    The existence of the toilet block was of fundamental importance to proof of the charge in count 8. Its existence was not fundamental to proof of the charge in count 1, but was of some significance as a collateral matter in the assessment of C’s evidence in relation to that count.

30    It is a reasonable inference that the doubts created about the existence of the toilet block were the reason for the doubts in the minds of those jurors who were not satisfied of RM’s guilt on count 1, and the reason for the doubt in the minds of all the jurors in relation to count 8.

31    Then there were a number of discrepancies between the progressive accounts given by C, particularly in relation to the first count. These were:

(i) the evidence showed that he had related the events on three separate occasions - firstly, to police, resulting in statements dated 17 June 1996 and 26 September 1996; secondly, in committal proceedings that took place on 10 April 1997; and finally in giving his evidence in the trial. In the first statement (17 June 1996) he dated the first occurrence as:

“In 1980 when I was in sixth class I would have been eleven years old, turning twelve, I received an invitation from [M] inviting me to his birthday party.”


He dated the events of count 5 in a similar fashion. He later revised his evidence as to the date, relating the commencement of the offences to M’s tenth birthday, in 1978. He was cross-examined about his revision of the date which he explained by saying that, on reflection, he had realised that in 1979, when he was in fifth class, he had borrowed a tent from RM which he had never returned. The implication was that that was the time of the termination of the friendship between himself and M.

(ii) In his statement to police, C said that it was RM who had removed his (C’s) clothes on the first occasion. In evidence in the trial he said that he had undressed himself at RM’s direction. He said that he had been mistaken when speaking to police and was then under emotional stress.

(iii) In the committal proceedings C said that he had no recollection of how he had travelled to the birthday party. In evidence in the trial he said that RM had picked him up and driven him there. He explained his lapse of memory at the committal by saying that he had then been under pressure.

(iv) In the committal proceedings he said that, after the first attempted anal penetration, RM masturbated and ejaculated. In the trial he assented to the proposition, put to him in cross-examination, that he was:

“…quite clear, … that there was nothing else, for example, by way of oral sex or masturbation or ejaculation at all on that first day?”

32    Discrepancies in the accounts he gave in relation to counts 2, 3 and 4 were also asserted. For example, in his statement, he said:

“Another man who I know as [AG] came into the caravan as well.”

In cross-examination in the trial, he was asked when he first saw AG on that occasion. He said he could not recall, but that it was in the caravan. It was suggested that there was a difference as to his evidence about whether AG was already in the caravan when RM took C there, or whether he came later to the caravan. I do not think so much can be read into what C said on the two occasions. I perceive no real discrepancy, certainly not any discrepancy of any significance.

33    Another instance relied upon concerns the sequence in which C alleged the indecent assaults and the attempted buggeries in the caravan occurred. In evidence he had the indecent assaults preceding the assault; in his statement he described the events in reverse order. Again, I find this so called “discrepancy” to be of not the slightest moment.

34    Another matter concerned C’s evidence about the location of the caravan in which he said the offences constituting counts 2, 3 and 4 were committed. C’s evidence was that the caravan was in the backyard of house, at the bottom of a steep embankment. This was inconsistent with the evidence of M, who said that the land configuration would have precluded placement of the caravan at the rear of the premises.

35    The next discrepancy mentioned related again to the events giving rises to count 5. One matter concerned C’s evidence that, on the drive into town, RM dropped M off at tennis practice. M’s evidence was that, at that time, his summer sport was cricket, not tennis. For myself, I would not regard this as a significant error, but that is immaterial, since this is one of the counts on which the jury was unable to agree. It was insufficient to bear upon the issue of credibility. The basis on which those jurors who were not satisfied that RM was guilty was probably not this minor matter, but evidence given by an employee of the Prospect County Council to the effect that the office was open to the public on Saturday mornings and staffed by at least three employees, rendering the description of the events given by C unlikely. In any case, the present exercise involves an assessment, not of the route by which the jury arrived at its verdicts, but whether the evidence causes this Court to experience a doubt of the kind that ought to have been experienced by the jury and led to an acquittal.

36    For completeness, one final matter should be mentioned. In relating events of another incident not the subject of any specific charge, C said that he had been taken by RM to a location off “Berkshire Park Road”. The Crown was unable to identify a road in the vicinity having such a name. This does not affect my assessment of the reliability of C’s evidence.

37    Counsel for the appellant confined his argument on the appeal to the principles stated by the High Court in R v M. He reminded the Court of the passage contained in the majority judgment which reads:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the Court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the Court is a doubt which a reasonable jury ought to have experienced. 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. In doing so, the Court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the Court 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.” (Internal references omitted)

38 I have undertaken the exercise required and examined carefully all of the evidence. I have had particular regard to the inconsistencies and discrepancies said to mark the Crown case. I do not experience any level of discomfort at the verdicts of guilty. In particular, and although it was not raised on behalf of the appellants, I have considered whether the decision of the High Court in Jones v R (1997) 191 CLR 439 has any implications in the present case. I have concluded that it does not. The three charges on which the jury did not convict can be explained by reference to particular objective circumstances I have mentioned - the absence of the toilet block in 1978 - 1979, and the public nature of the Prospect County Council at the time of the events alleged to constitute count 5. True it is that, in accordance with Jones, it is necessary carefully to scrutinise the jury verdicts, having regard to the possibility that the acquittal and the disagreements are properly to be seen as representing a doubt in the jury’s minds about C’s credibility, a doubt that would necessarily apply to his credibility on other counts as well. I do not think this is such a case.

39    In my opinion each appeal should be dismissed.

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