Regina v Creed

[2000] NSWCCA 280

CITATION:	Regina -v- Creed [2000] NSWCCA 280
FILE NUMBER(S):	CCA 60691 of 1998; 60656 of 1998
HEARING DATE(S):	16/03/2000
JUDGMENT DATE:	7 August 2000
PARTIES :	Regina Bruce James CREED
JUDGMENT OF:	Sheller JA at 1; Hulme J at 2; Dowd J at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/2003
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

COUNSEL :	T. Molomby (A) M C Marien (C)
SOLICITORS:	T A Murphy (A) S E O'Connor (C)
CATCHWORDS:	Criminal procedure - adequacy of directions after counsel's address - refusal of discharge of jury - exclusion of evidence of prior consistent statement
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	R -v- Williams [1999] NSWCCA 9 Crofts -v- R (1996) 186 CLR 427 R -v- Rawlings (unreported, NSWCCA 10 December 1998) R -v- Blick (unreported, NSWCCA 14 March 2000) Longman -v- The Queen (1989) 168 CLR 79 R-v- George (1987) 9 NSWLR 527
DECISION:	Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL

No 60691 of 1998

No 60056 of 1998

SHELLER JA
HULME J
DOWD J

7 August 2000

REGINA -v- Bruce James CREED
JUDGMENT

1   SHELLER JA: I have had the benefit of reading in draft the judgments of Hulme and Dowd JJ. Substantially for the reasons Dowd J has given I agree that the appeal should be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

No 60691 of 1998

No 60056 of 1998

SHELLER JA
HULME J
DOWD J

7 August 2000

REGINA -v- Bruce James CREED
JUDGMENT

2   HULME J: In these matters, I agree with the orders proposed by Dowd J and generally with his Honour’s reasons. In relation to the appeal against the 1999 conviction, I wish to add some further observations.

3 Firstly, I have considerable reservations concerning the correctness of the remarks of Wood CJ at CL in R v Williams [1999] NSWCCA 9 upon which the Appellant relied. Although those remarks received the concurrence of the Chief Justice and McInerney J, I have difficulty in reconciling them with the logical consequences of the direction which s405B(2)(b) of the Crimes Act, 1900 - recently replaced by s107 of the Criminal Procedure Act, 1986 - required and with remarks of the majority of the High Court in Crofts v R (1996) 186 CLR 427.

4   Having said that the trial judge’s direction in that case literally complied with s405B(2), Wood CJ at CL went on:-

“Had his Honour gone further and identified possible but unexpressed reasons why the particular complainant had remained silent for five years, then this ground of appeal would in my view have been made good. To have taken that course would have gone beyond the statutory requirement, and it would have risked sowing seeds in the minds of the jurors for which there was no evidentiary basis. It may have unwittingly misled the jury into assuming that there was in fact some other reason, unexpressed by the complainant, but known to the judge, for her silence. His Honour stopped short of speculating in that regard, or of inviting any consideration of specific reasons which had not been offered. Although his observations concerning “101 or 1001 reasons” would have been better avoided, I am not persuaded that error has been demonstrated in that respect.”

5   What the trial judge had said concerning “101 or 1001 reasons” was:-

“I’m hesitating myself to start suggesting things to you because there might be no end to that. I’m sure if you all think about this in a general way not applying your mind to this case for the moment, you may be able to think of 101 reasons why a woman might not complain immediately about an event that occurred.
…
As I said, you could imagine not (sic) 101, 1001 reasons why something like that might occur or not occur.”

6   Section 405B(2) provided:-

“(2) Where on the trial of a person for a prescribed sexual offence evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the person upon whom the offence is alleged to have been committed or to suggest delay by that person in making any such complaint, the Judge shall:
(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault.”

7   Implicitly, by a direction in accordance with that provision, a jury is directed to consider what reasons occur to them, whether those reasons are “good” and whether they did or may have provided a sufficient reason, consistent with the truth of the evidence given in Court, for a complainant having delayed in, or abstained from, complaining. It may be inferred that they are asked to rely in this exercise on their own experience of the world and, in effect, to speculate on what factors may have operated on the complainant in the case before them.

8   If that be correct, I have the greatest difficulty in understanding why a trial judge, with commonly the greater experience and consideration of the topic which participation in other trials is calculated to bring, should be foreclosed from suggesting possible reasons for a jury’s consideration.

9   In Crofts v R at 444 the majority of the High Court quoted from the summing up of the judge whose remarks were the subject of the appeal and said that, isolated from another passage which was ultimately held to be objectionable, what had been said represented an unexceptionable instruction. So far as is presently relevant, what the trial judge had said was:-

“The experience of the law confirms that complaints are often not made immediately after sexual assaults. [The prosecutor], in his address to you, suggested that she was young, confused, [had] feelings of guilt, fear of disbelief, fear of family upheaval, fear of accusation against a family friend. [These] were all suggestions that were put forward that may explain such a delay, and there may well be others. Experience has shown that it is not uncommon for such a delay and the law requires me to say that it does not necessarily mean the allegations are false.”

10   Considered in isolation, this passage demonstrates that the argument here, depending as it does on remarks by the Crown Prosecutor, is doomed to failure.

11   Returning to Crofts v R, at page 451 in talking of the Victorian equivalent to ss 405B and 405C(2), the majority said (omitting references):-

“The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. It would require much stronger language than appears in s61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which , on ordinary human experience, would be material to the evaluation of those facts.”

12   In context the reference to “aspects of the facts of the case” clearly is not limited to the evidence alone and the tenor of the passage seems to me quite inconsistent with the idea that the judge may not suggest matters of his or her own ordinary human experience, and whether or not derived in part from judicial experience. Although the Victorian provision contained a further sub-section to the effect that nothing in the sub-section corresponding with s405B(2) prevents a judge from making a comment on evidence that it is appropriate to make in the interests of justice, the passage quoted clearly does not depend on the existence of that further provision.

13   Remarks at the top of page 449 of the report tend in the same direction as the passages to which I have referred.

14   Nor do I find persuasive the passage in the judgment in Williams v R that “It may have unwittingly misled the jury into assuming that there was in fact some reason, unexpressed by the complainant, but known to the judge, for her silence.” The words quoted seem to involve the assumption that a jury will ignore the instruction always given that the jury should decide a case on the evidence.

15   And even if the passage just quoted be correct as applied to remarks of a judge, would it apply to remarks in counsels’ addresses? On other topics too? The logical application of the proposition is likely to make either counsels’ addresses much abbreviated or lead to innumerable appeals.

16 A further basis upon which I would dismiss the appeal lies in the proviso to s6 of the Criminal Appeal Act. Even if the law is as stated by Woods CJ at CL in Williams v R, I would not readily infer that mention by the Crown Prosecutor in address of matters of the nature presently under consideration could amount to error creating substantial injustice. There is a vast difference between mention by the judge (whose words even on matters other than law are commonly said to have the force of his office behind them) and mention in address by counsel.

IN THE COURT OF
CRIMINAL APPEAL

No 60691 of 1998

No 60056 of 1998

SHELLER JA
HULME J
DOWD J

7 August 2000

REGINA -v- Bruce James CREED
JUDGMENT

17 DOWD J: The Appellant, Bruce James Creed, was indicted before Sides DCJ at Liverpool District Court on 9 June 1998 under s.61D(1) of the Crimes Act 1900 (“the Act”) of two counts of sexual intercourse without consent with a person under the age of sixteen years. On 12 June 1998 the jury returned verdicts of guilty to Count 1 and not guilty to Count 2. The Appellant was sentenced on count 1 on 4 September 1998 to a minimum term of eighteen months penal servitude to commence on 4 September 1998 and to expire on 3 March 2000, and an additional term of eighteen months to commence on 4 March 2000 and to expire on 3 September 2001. The Appellant has appealed against that conviction.

18 The appellant was further indicted on 24 November 1998 before O’Reilly DCJ under s.61E(1) of the Act of indecent assault and one count of carnal knowledge under s.67 of the Act. On 25 November 1998 the jury returned a verdict of guilty to Count 2, the carnal knowledge charge, but were unable to reach a verdict in relation to Count 1, the indecent assault charge. The Appellant was sentenced on count 2 to three years penal servitude to commence on 5 February 1999 and to expire on 4 February 2002 and an additional term of two years to commence on 5 February 2002 and to expire on 4 February 2004. The Appellant has appealed against that conviction.

19   The complainants in both cases are sisters and knew the Appellant as a family friend of their father. The Appellant would often visit the complainants’ family, stopping for coffee or just to chat. The visits gradually became more frequent and the Appellant developed a close friendship with the complainants’ family. The Appellant would sometimes spend the night at the complainants’ house and in about 1984, the Appellant bought a caravan and moved into residence in the caravan in the yard of their house.

20   Apart from the close friendship with the complainants’ family and living with them the Appellant would often babysit the complainants and their sisters when the complainants’ parents went out. On several occasions when the Appellant babysat the complainants he would stay overnight at the complainants’ house.

The 1998 conviction

21   The first complainant, who was born on 2 April 1974 grew up in Auburn, the eldest of four daughters and met the Appellant when she was about seven or eight. The Appellant was a friend of her father.

22   On 19 November 1983, the first complainant’s parents celebrated their eleventh wedding anniversary at the Lowenbrau Keller and arranged for the Appellant to babysit the four children. When the other children had gone to bed the first complainant gave evidence that the Appellant told her to go and have a shower. Whilst the she was in the shower, the Appellant came in, turned off the water, and told the first complainant to get dressed because it was time for her to learn “the facts of life”. The date and fact of the babysitting was corroborated by the complainants’ mother and father.

23   The first complainant’s evidence was that she left the shower and put on her nightie but not her underpants and walked out into the kitchen. In the kitchen she saw the Appellant standing near the kitchen sink and two chairs which had been placed opposite each other. The Appellant told her to sit down on one of the chairs and he sat in the chair opposite her. The Appellant then put his hand underneath her nightie and his fingers in her vagina. The first complainant told him to stop and that it was hurting but the Appellant ignored the complainant and continued to move his fingers around inside her vagina. He grinned and told her that it would feel all right soon. When the Appellant finished he told her not to say anything otherwise she would not see her father again. The first complainant got up and went to bed. Her evidence was that she was too scared to speak to anyone.

24   Between November 1983 and April 1984, the Appellant babysat the first complainant and her sisters several times whilst their parents were working on their milk run. On each of those occasions the first complainant said that the Appellant would make the first complainant sit under a blanket with him on the lounge whilst she and the other children watched television. Whilst sitting under the blanket the Appellant would put his fingers in her vagina. This would happen once or twice a week.

25   The first complainant did not complain about these events until some time in 1997. She said in evidence that she was scared that her father was going to leave if she had said something.

26   At the trial an old school friend of the first complainant gave evidence about a conversation she had with the first complainant in 1984 when they were both in the fifth grade. The witness who was concerned about the first complainant had asked her on numerous occasions what was wrong but the first complainant would say “nothing” until on one occasion when the first complainant said “Bruce hurts me, he does stuff to me, he does things to me.” The friend knew who the Appellant was.

27   The appellant agreed that he had babysat the first complainant and her sisters. His case was that he met the first complainant’s father in June 1983 when he commenced working for a towing company . He said that he became friendly with the family and that he would frequently visit their place and that after some time he moved into a caravan in their yard. It was then that the appellant would help with the milk run on a regular basis, averaging at least three nights per week. The appellant further gave evidence that he had gone to Queensland over December 1983 to attend a wedding. The Appellant in his evidence denied the offences.

28 The ground of appeal was that His Honour erred in law in granting the Crown leave pursuant to s.108(3) of the Evidence Act 1995 (“the Evidence Act”) to adduce evidence of the school friend as being evidence of a prior consistent statement of the first complainant in circumstances where it has been suggested that the first complainant has fabricated her evidence.

29 The Appellant challenged the admission on the basis that the friend’s evidence was not capable of being a prior consistent statement in the absence of evidence of the first complainant that she had made the statement to the witness. The Appellant submitted that His Honour erred in the exercise of his discretion to admit the evidence but in any event as a matter of law it could not be admitted under s.108 of the Act as it did not constitute a prior consistent statement and further that the evidence ought to have been excluded under s.137 of the Evidence Act.

30   This last point was not argued at the trial but it is competent in terms of an objection to raise new grounds in support of that objection provided the original objection was taken at the trial.

31   The first complainant did not give evidence about her conversation with her friend and was not cross-examined generally about the conversation, the only question being put to her was as to whether she had complained “the next day”. Her friend was only cross-examined as to the timing of the statement but there was no challenge in cross-examination to the content or wording of the statement itself.

32   The actual statement related by the friend was;

“She was upset, I walked up to her and I was worried about her so I asked her “What’s wrong”, and she was very withdrawn she would not answer and she didn’t want to, she was upset. I asked her, “What’s wrong, what’s wrong”, she told me, “Bruce hurts me, Bruce does stuff to me”. At that point I, you know I asked “What, what does he do to you ?” “He does things to me”, that’s all I got from her.”

33   The Appellant says that the friend’s evidence in terms does not identify precisely what the first complainant was referring to or who the person identified as “Bruce” was. The first complainant had testified that she had never told anyone of the incidents alleged. It was put that this evidence is contrary to the other evidence she gave and is in any event irrelevant. The Appellant put it that there was a critical link missing between the actual evidence of the friend and the evidence of the plaintiff and that the friend did not precisely identify what the complainant was referring to.

34   The friend’s evidence in the trial was that “Bruce was the little man who lived out in the caravan in their backyard”. There was therefore evidence of her knowledge of the Appellant. There was clear evidence from which it could be inferred that the friend was referring to the accused. The complaint was also related to Count 1 in the indictment which was that in respect of which the Appellant was found guilty.

35   The evidence of a complaint does not require that the evidence be given by both the complainant and the complainee. It is evidence that can be give by either. In the case of R -v- Rawlings, unreported CCA 10 December 1998, it was in fact only the evidence of the complainant but was nevertheless admitted.

36   The trial judge warned the jury in very strong terms about the friend’s evidence and no objection was taken to that warning. In my view the evidence of the first complainant’s friend was capable of corroborating the complainants’ evidence of the actions of the Appellant. It is not necessary for corroboration to precisely repeat the actual terms of the offence. It was a matter for the jury as to whether a proper inference should be drawn of the relationship between the friend’s evidence and that of the first complainant’s. There was sufficient evidence for the jury to decide if the “link” can be found to the corroborating evidence.

37   I accept the submission of the Crown that with the age of the first complainant at the time there would be a reluctance to tell her friend precisely what happened.

38   I reject the submission that the evidence of the friend is contrary to that of the complainant. As a matter of logic the fact that the first complainant does not remember the conversation did not mean the conversation did not occur.

39 The Appellant further contended that His Honour the trial judge should have excluded the evidence under s.137 of the Evidence Act. Section 137 of the Evidence Act creates an obligation on the part of the trial judge to weigh up the probative value of the evidence against the danger of unfair prejudice. Despite the fact that it comes under the heading of “Discretions” under the Evidence Act it is not an exercise of discretion as such. The trial judge in looking at the probative value of the evidence must first establish that there is a prejudice and then assess whether there is a danger of unfair prejudice. (R -v- Blick, unreported CCA 14 March 2000). There is nothing in the nature of the evidence of the friend which is prejudicial as such, either because of its age or its lack of precision.

40   The evidence is admissible and has clear probative value and even if prejudicial it is certainly not unfairly prejudicial nor is there a danger of unfair prejudice outweighing the probative value of the evidence which was, in my view, properly admitted.

41   The appeal therefore fails and should be dismissed.

The 1999 conviction

42   The second complainant who was born on 22 January 1976 met the appellant when she was about six years old.

43   Some time after Christmas 1984 and before Easter 1985 the second complainant’s parents went out and left the second complainant and one of her sisters at home with the Appellant.

44   The second complainant’s evidence was that at some point during the day the Appellant asked the second complaint’s sister to go to the shops to buy ice creams. When she left the Appellant picked up the second complainant and carried her into the caravan.

45   The second complainant was kicking and screaming. The Appellant laid her on the bed, put his hand on her stomach and removed her underpants. The appellant held her arms up and pushed her knees apart with his knees. He then put his penis in her vagina. The second complainant was screaming and told the appellant not to do it. The Appellant then lifted himself off the second complainant. She ran out of the caravan and hid underneath it. Later, when she was having a shower she noticed there was blood on her pants and between her legs.

46   The next day after this incident the appellant told the second complainant that if she ever told her parents what happened he would take her away from them.

47   The complainants’ parents confirmed the circumstances of the Appellant coming to live in a caravan on the property and the timing of first meeting the Appellant and his departure prior to Christmas 1985.

48   The appellant denied the offence in a Police Electronic Record of Interview as he did in evidence.

49   The Appellant gave evidence of the facts as outlined above including the purchase of the caravan and its location on the complainants’ parents property in September 1984. The Appellant agreed that he had slept at the house and had babysat on occasions. He moved out in 1985.

50   The Appellant appeals from His Honour’s decision stating that His Honour erred in law in declining to discharge the jury when requested by then Counsel for the Appellant because of certain matters raised in the closing address of the Crown Prosecutor.

51   The relevant passage which was the foundation for the application for discharge was as follows:

“You also heard that Debbie Wyer did not go to the police till 1997. His Honour will tell you about that, what the law is about that, and if I say anything that is not correct his Honour will correct me. But what I would like to suggest to you, ladies and gentlemen of the jury, with great respect, is that we have to look at this question not from the sophisticated eyes of an adult but from the eyes of a child of six years and eight years and ten years and one of the great advantages of a jury system is this, that the twelve of you represent not only the community’s combined sense of justice and fair play but you also bring with you a fairly large pool of common sense and knowledge of human affairs and it is that knowledge of human affairs that the law says you must bring into play when you deliberate in the jury room. Therefore, your own knowledge of human affairs will tell you, I suggest with respect, that there are very many reasons why young children especially do not complain. Ignorance, shame, the fear of not being believed, threats and all these, if they are in play, does not mean that a late complaint or late reporting is a false reporting. Your own experience of the world must tell you that there are many cases coming up in Australia now which are many, many years old. People are becoming more aware of their rights, people are being encouraged to come forth. It is no longer a pressure to hide this sort of thing in the closet. People are in fact encouraged. Your own knowledge of what goes on in New South Wales will tell you there’s Operation Paradox every year which invites people to come forth. So a delay is not of itself a factor that would brand an allegation as a lie or as a fabrication.
You heard that in this case there was a threat to Debbie Wyer, “if you tell I’ll take your parents away” - “I’ll take you away from your patents” or words to that effect. Now it was suggested to her “Well your father is bigger than Mr Creed”, but that’s a suggestion today to a grown-up lady. One must judge that threat and analyse it through the eyes of a six year old. Mr Creed himself told you that not only the parents brought them up to obey, to listen, to do what was told, but he said “Whatever I told them they knew they had to do.” That was the atmosphere in which young Debbie Wyer was brought up. The law of the adult, the order of the adult, it had to be obeyed, and maybe you might say to yourselves this is the reason Debbie Wyer went to the wedding reception. You might say to yourselves she was keeping this inside her and wasn’t prepared to face her father’s question as to why she wouldn’t go to the wedding reception because you’ll realise that at the time there were no allegations made against Mr Creed. You might say to yourselves well so as not to make explanation, so as not to divulge what had been eating her for years, she chose the easy way out and went and accompanied her parents to the wedding reception. It is for the same reason that Mrs Kutnyak takes her to the reception. They didn’t know. They still looked upon Mr Creed as a trusted friend, as a good friend, as a close friend.
Again, ladies and gentlemen of the jury, most of you are parents and all of you have been young children. You bring that experience to bear on your deliberations. It is only then you will be able to fully appreciate I submit what Debbie Wyer went through and why Debbie Wyer held it inside her for so long and you might say to yourself well there comes a time when one says “Well I can’t bottle this up any longer, I’ve got to do something about it”. Is that alien to one’s experience ? Is that so far removed from what people do in their daily lives, during their lives, that it cannot be believed, that it cannot be accepted ? There comes a time when one just snaps and says “Well I can’t take it any longer.”

52   The basis for the application for discharge was that the prosecutor had put before the jury, argumentatively, a number of matters for which there was no evidence. This, it is put, was particularly inappropriate where a direction in terms of Longman -v- The Queen (1989) 168 CLR 79 would customarily be given to cover such circumstances.

53   It was further contended that it is prejudicial to allow the prosecutor to traverse freely the grounds of possible explanation for the delay in complaint, and in particular referring to a program in NSW for making complaints when the second complainant was in Queensland and that the prosecutor made unsupported assertions about events otherwise covered in the evidence. The grounds of appeal is that this speculation unfounded in evidence causes distraction and confusion and can only be answered by a similar range of possible alternatives.

54   Counsel for the Appellant did not argue that His Honour’s summing up was not balanced but put it that, in fairness to the Appellant, an unfair summing up was indicated to counter the damage done by the Crown Prosecutor in his address and that His Honour had indicated at the time of refusing the application to discharge the jury that he would say something. In short, the appellant was saying, that if he didn’t get a discharge he was entitled to a more favourable summing up, and as he didn’t get the summing up he wanted, he appealed against the decision not to discharge the jury.

55   The Crown Prosecutors remarks in making general comments about reasons for complaint were inappropriate and this is conceded by the Crown. They do infringe the requirements of Regina -v- Williams [1999] NSWCCA 9 but in that case it was, of course, the trial judge that made the comments not a Crown Prosecutor followed by the judicial summing up.

56   In these proceedings His Honour adverted to the remarks of the Crown Prosecutor and the comments by counsel for the Appellant. His Honour reminded the jury that there was no evidence of the complainant’s motivation and mental processes. There is no objection to the summing up which His Honour gave and no issue was raised after that summing up by counsel in the trial. A trial must be looked at in terms of the atmosphere of the trial itself.

57   The difficulty I have with the ground of appeal is that it is not as such a ground of appeal against the failure to discharge the jury but an appeal based on the failure of the trial judge to make balancing comments having refused that discharge. Although it is pointed out by counsel for the Appellant that His Honour appeared to contemplate some appropriate comment, in the end his remarks being balanced left the issue to the jury. It is evidence of the trial atmosphere that it was the Appellant’s counsel in the trial who had made the discharge application who sought no redirection after the summing up.

58   The authorities relating to the discharge of the jury oblige the trial judge in the atmosphere of the trial to decide whether it is necessary to discharge the jury in the interests of a fair trial (R-v- George (1987) 9 NSWLR 527 at 533). In my view the directions to the jury would have put the questions of reasons for complaint in proper context notwithstanding the inappropriateness of counsel’s comments I do not consider that it has been shown that the failure to discharge the jury was an incorrect decision and in the event the Appellant has not shown that His Honour has not erred in the balance achieved in the summing up. In my view the appeal fails and should therefore be dismissed.