Regina v DCU

[2003] NSWCCA 173

CITATION:	REGINA v DCU [2003] NSWCCA 173
HEARING DATE(S):	26/06/03
JUDGMENT DATE:	27 June 2003
JUDGMENT OF:	Meagher JA at 1; Dowd J at 2; Barr J at 33
DECISION:	Appeal against conviction dismissed; leave to appeal sentence refused.
CATCHWORDS:	Conviction appeal - incompetence of counsel - inadequate directions - unreasonable and insupportable.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Longman v R (1989) 168 CLR 79 Jones v R (1997) 191 CLR 439 TKWJ v R (2002) 76 ALJR 1579
PARTIES :	Crown Appellant's name suppressed
FILE NUMBER(S):	CCA 60092/02
COUNSEL:	W. Terracini SC (Appellant) G. Rowling (Crown)
SOLICITORS:	DJ Humphreys (Appellant) SE O'Connor (Crown)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0885
LOWER COURT JUDICIAL OFFICER :	Downs ADCJ

60092/02

MEAGHER JA
DOWD J
BARR J

Friday 27 June 2003

REGINA v DCU

Judgment

1 MEAGHER JA: I agree with Dowd J.

2 DOWD J: This was an appeal against conviction by a jury of twelve in the Sydney District Court before Downs ADCJ on a charge of Aggravated Indecent Assault and two counts of sexual intercourse with a child under sixteen years being under authority, and an application for leave to appeal against severity of sentence.

3 On sentence, the learned sentencing judge imposed a fixed term of imprisonment on the first count of three years and six months to commence on 25 May 2002 and to expire on 24 November 2005 for the offence in breach of s61M (1) of the Crimes Act 1900 (“the Act”) carrying a maximum penalty of seven years’ imprisonment. His Honour also imposed on each count of sexual intercourse with a child under sixteen years being under authority, in breach of s66C (2) of the Act which carries a maximum penalty of ten years’ imprisonment, a sentence of imprisonment for six years commencing on 25 May 2002 and expiring on 24 May 2008 with a non-parole period of three years and six months commencing on 25 May 2002 and expiring on 24 November 2005.

4 The appellant had been arrested on 19 December 2000 at which time he was serving a sentence, the non-parole period for which expired on 25 May 2002. The sentences were imposed on 3 April 2002.

Facts

5 The complainant was born on 11 May 1982 and was, in January 1995, living with her mother and two younger brothers at Old Bar on the New South Wales coast, her parents being divorced. During the Christmas holidays of 1994/95 there was an arrangement that she and her two brothers would stay with their father who lived on the Central Coast for about a week. The following week the three children were to stay with the appellant who is the maternal uncle of the complainant at his home at Oatley in late January just before the resumption of school when the complainant was to start Year 8.

6 The appellant’s house had three bedrooms, two with single beds with the appellant’s bedroom having a king-size waterbed in it. Each of the three children took turns in sleeping in the appellant’s room, the complainant having slept in one of the smaller bedrooms during the week. On the last evening there was an argument between the three children as to who would sleep in the appellant’s room, the appellant deciding that it was the complainant’s turn.

7 The complainant got into the bed wearing a summer nightie and underwear. The appellant came into the bed, having locked the door of the bedroom, and watched television for about half an hour when the appellant asked the complainant to remove her nightie, which she did after initially refusing. After removing her nightie the complainant got back into bed, keeping on her underwear. The appellant came over and started licking and kissing her neck then ripped off her underwear and began touching her vagina with his fingers and rubbing her breasts for a period. These were the facts relied on in the first count.

8 The appellant then licked inside the complainant’s vagina, rubbing her breasts at the same time. This constituted count 2. He next sat up on the side of the bed and asked the complainant to look at him, he having removed his pants, exposing his penis which he asked the complainant to touch. The complainant refused and moved to her side of the bed. The appellant then lay on her without putting his full weight on her and the complainant said that the appellant was endeavouring to push what felt like fingers or something a lot bigger inside her vagina. This act constituted count 3 in the indictment.

9 The complainant called out in pain several times, the appellant continuing his actions towards her for some thirty seconds to a minute but stopped at the complainant’s last cry of pain. The complainant then went and slept on the floor.

10 Early the following morning the appellant took his cat to a veterinary surgeon, taking the complainant with him. After leaving the surgeon the appellant drove the complainant to a dead end dirt road in the bush and asked the complainant if she remembered the previous night. The complainant said no, whereupon the appellant disagreed with her and told her never to tell anyone, pointing out to her the effect this would have on her grandfather and the rest of the family. After driving home the complainant’s father picked her up an hour later and took her home.

11 The complainant told her boyfriend, Paul Manning, about these events in the year 2000. After a short time she then told her mother without providing details of what had happened. The complainant’s brother D, who was at the relevant time ten years old, gave evidence of his staying at the appellant’s house in Oatley during the 1994 Christmas school holidays but he had no relevant recollection about January 1995. The other brother W, who was eleven at the time, had a vague recollection of visiting the appellant’s home with his sister and brother in January 1995. He was not sure who had slept anywhere, but had a recollection of sometime sleeping in the appellant’s room.

12 The complainant’s father’s evidence was that he could not specifically remember January 1995 but that he had about that time picked up the children from the appellant’s home. The complainant’s mother confirmed the arrangements for the visit to the appellant in January. Paul Manning gave evidence that, whilst on a visit to the mother’s home, the complainant told him of an occasion of sexual assault by the appellant but said that this included a detailed account of the assault and that the complainant was very upset.

13 The appellant denied the assault; denied the visit on the particular day alleged by the complainant; and denied the visit to the veterinary clinic in January 1995; or taking the complainant down a bush track in the Oatley area. The appellant denied the complainant had slept in his room, although the children had jumped on his bed and watched television in the bedroom.

14 A veterinary surgeon from Mortdale gave evidence that she had records of a consultation for the appellant with his cat on 4 January 1995 and a note indicating that it was desired that he return within a few days, but could not say when the surgeon had reviewed the case as to what date that had been or the nature of the interview.

The Appellant’s Case

Ground 1: The trial judge erred in failing to fully warn the jury of acting on the complainant’s evidence.

15 The submission on behalf of the appellant was that the summing up, taken as a whole, failed to adequately warn the jury of the risks of acting on the complainant’s uncorroborated evidence, although the appellant conceded that there had been in the course of the summing up, a warning as to that danger and the fact of there being no corroboration.

16 The trial judge brought the jury back at the request of the Crown and then reminded the jury that the law does not require corroboration in such cases.

17 The appellant said that, particularly, the words of the trial judge cited above immediately before the jury was sent out had, in the context of the summing up, undermined the earlier warnings.

18 The summing up also warned the jury to analyse, scrutinize and examine the complainant’s evidence with great care. No application on behalf of the appellant was made to withdraw the summing up or discharge the jury.

19 In my view, in an examination of the summing up as a whole, there was not any miscarriage of justice or any misdirection and, in my view, this ground of appeal should be dismissed.

Ground 2: That the trial judge erred in failing to direct the jury as to how they may treat the evidence of delay in complaint and as to the effect of delay on the ability of the complainant to meet the charge.

20 It was submitted on behalf of the appellant that the course of the summing up “watered down” the effect of the admonition to scrutinise the complainant’s evidence with great care. It seems to me that there was an adequate summary of the arguments of counsel and an appropriate warning complying with Longman v R (1989) 168 CLR 79 at 91. I do not consider, particularly in the light of it not having been demonstrated, that any further direction was required or that there has been a miscarriage of justice or that this ground has been made out.

21 I would, therefore, dismiss this ground of appeal.

Ground 3: That the verdicts were unreasonable and incapable of being supported by the evidence.

22 The appellant relies on the grounds brought above together with, in support of this ground, the fact of lack of corroboration, delay, inconsistency between the evidence of Manning and the complainant and inconsistency between the complaint made to Manning and the complainant’s evidence at trial and the possibility of dreams/fantasy given the age of the complainant at the time of the offence and the inconsistency of the complainant’s evidence concerning the visit to the veterinary surgeon.

23 The Crown case, although depending solely on the evidence of the complainant, was one the jury were quite entitled to accept beyond reasonable doubt, it being the function of the jury to exercise the primary responsibility of determining guilt or innocence (Jones v R (1997) 191 CLR 439).

24 Any inconsistencies were not such as to prevent the jury finding the appellant guilty to the responsible standard. Most of the alleged inconsistencies would be quite explicable in the minds of a jury, particularly the evidence that she did not know the nature of her penetration.

25 In the circumstances, I would dismiss this ground of appeal.

Ground 4: That due to the incompetence of trial counsel there was a miscarriage of justice.

26 It was submitted on behalf of the appellant that trial counsel had failed to adduce evidence of a statement by the complainant to Manning that the appellant had possibly abused one of her brothers, which brother had unequivocally stated that the accused had never behaved inappropriately towards him and that trial counsel for the appellant had failed to put in court evidence for the complainant to lie, relating to a family inheritance dispute.

27 The court had before it an affidavit by trial counsel, filed on behalf of the appellant, whose integrity or truthfulness was not challenged, to the effect that he specifically recalled advising the appellant that the best tactic was not to raise the asserted motive and that the instructing solicitor and the appellant had not questioned that forensic decision. Trial counsel’s evidence, further, was that the appellant had telephoned him several times since the conviction as to issues that might have been raised on the appeal and in relation to the alleged sexual assault on the complainant’s brother, that he had made a tactical decision not to raise it for concern that it would be counter productive in that it suggested another allegation of sexual assault.

28 In my view, the appellant has not shown that any decision of counsel appearing for the appellant at the trial was an irregularity or that there was a significant possibility that it affected the outcome of the trial (TKWJ v R (2002) 76 ALJR 1579) and it has not been shown that they were not perfectly proper forensic decisions and the appellant has merely shown that “the trial could have been conducted differently” (see TKWJ v R paras 14 and 16 per Gleeson CJ).

29 In my view, this ground has not been made out and therefore, the appeal on conviction should be dismissed.

Appeal on Sentence

30 In this respect, counsel for the appellant conceded that any error made by the trial judge, would not have resulted in a different sentence being imposed.

31 It has not been shown that the sentence was other than appropriate in all the circumstances and it has not been demonstrated, in any event, that any less severe sentence should have been passed and I would, therefore, not grant leave to appeal against the sentences imposed.

32 Accordingly, I would propose that the orders of the court be:-

1. That the appeal against conviction be dismissed.

2. That the application for leave to appeal against sentence be refused.

33 BARR J: I agree with Dowd J.

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Last Modified: 07/07/2003