Regina v GNK
[2004] NSWCCA 114
•27 April 2004
CITATION: Regina v GNK [2004] NSWCCA 114 revised - 05/05/2004 HEARING DATE(S): 9 March 2004 JUDGMENT DATE:
27 April 2004JUDGMENT OF: Spigelman CJ at 1; Kirby J at 2; Smart AJ at 43 DECISION: Appeals against conviction dismissed. CATCHWORDS: Verdicts on counts 7 and 8 (attempted homosexual intercourse and homosexual intercourse) reasonably supported by the evidence - judge's discretion did not miscarry in declining to allow complainant to be further cross-examined - directions as to complaint evidence not inadequate - judge put defence case sufficiently and his directions as to the credibility and reliability of the evidence of the complainant and the evidence were not inadequate LEGISLATION CITED: Criminal Appeal Act, 1912
Crimes Act, 1900CASES CITED: R v Markuleski (2001) 125 A Crim R 186, (2001) 52 NSWLR 82 AT [191]
M v The Queen (1994) 181 CLR 487 at 492-4
MFA v The Queen (2001) 193 ALR 184 at 198, [2002] HCA 53
Gipp v The Queen (1998) 194 CLR 106 at 114PARTIES :
Regina v GNK FILE NUMBER(S): CCA 60349/03 COUNSEL: (A) P Byrne SC & G Bashir
(C) D FrearsonSOLICITORS: (A) G Fabiani
C) S Kavanagh
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0216 LOWER COURT
JUDICIAL OFFICER :Puckeridge DCJ
IN THE COURT OF
CRIMINAL APPEAL
SPIGELMAN CJ
KIRBY J
SMART AJ
Tuesday, 27 April 2004
Regina v GNK
Judgment
1. SPIGELMAN CJ: I agree with Smart AJ.
2. KIRBY J: I have had the advantage of reading the judgment of Smart AJ in draft. His Honour considered each of the eight grounds of appeal and found no substance in any of them. He proposed that the appeal be dismissed. I have, however, formed a different view on two of the grounds; ground 8 (that the verdicts of the jury on counts 7 and 8 are unreasonable) and the application to recall the complainant (the "additional appeal ground" in the judgment of Smart AJ, para 95). I am led to the conclusion that the appeal should succeed.
3. The appellant faced an indictment containing nine counts. Some were expressed to be in the alternative (counts 5, 7 and 9). All were based on allegations made by the complainant, a youth approaching his fifteenth birthday. Count 1 alleged an aggravated indecent assault, the matter of aggravation being the age of the complainant. It was said that the appellant had "tongue kissed" the complainant. The remaining counts alleged either homosexual intercourse with a male under the age of 18 years (counts 2, 3, 4, 6 and 8) or attempted intercourse (counts 5, 7 and 9).
4. Two things must be recognised, and are relevant to the search for a rational explanation for the jury's verdict. First, such charges (as with most allegations of sexual misconduct) are likely to excite an emotional reaction of repugnance. The evidence in this trial included (appropriately) reference to male pornographic magazines in the possession of the appellant. Secondly, such allegations are easily made and difficult to disprove (recognising that there is no onus upon the accused). The credibility of the complainant is obviously fundamental. Discrepancies in the complainant's account, where they relate to one count, may have a significant impact upon his or her reliability in respect of other counts (cf R v Markuleski (2001) 125 A Crim R 186).
5. Here each count in the indictment included certain dates, namely:
Count 2 : Between 29 June 2001 and about 9 July 2001.
Count 3 : Between 30 June 2001 and about 1 August 2001.
Count 4 : Between 30 June 2001 and about 1 August 2001.
Count 5 : Between 30 June 2001 and about 1 August 2001.
Count 6 : Between about 7 August 2001 and about 23 August 2001.
Count 7 : Between about 7 August 2001 and about 23 August 2001.
Count 9 : Between about 7 August 2001 and about 23 August 2001.Count 8 : Between about 7 August 2001 and about 23 August 2001.
6. His Honour directed (S/U 4) that the times specified in each count were an essential ingredient of the charge. As a generality, the complainant's account as to the time of each incident was unsatisfactory. The Crown has submitted that his uncertainty as to times, in the context of his Honour's direction, explained the verdicts of "not guilty" on counts 1, 2, 4, 5 and 6. Smart AJ appears to have accepted that submission (para 119). In my view, however, the difficulties in the complainant's account in respect of counts 1, 2, 4, 5 and 6 cannot be so easily brushed aside, nor the verdicts so easily explained. The damage to his credibility, in the context of the counts which were rejected, was relevant to an assessment of his reliability in respect of counts 7 and 8.
7. That said, it must be acknowledged that, in respect of counts 7 and 8, there was not the difficulty with time that there was with other counts. The complainant was tutored by the appellant in mathematics each week on a Tuesday. Tuesday 14 August 2001 was the day before his birthday. The complainant's evidence in respect of counts 6, 7, 8 and 9 was anchored to Tuesday 14 August 2001.
8. The complainant's family lived next door to the appellant at Arncliffe. The appellant had tutored the complainant's sister in mathematics. In 2000 he began tutoring the complainant. On 29 June 2001 the appellant purchased a unit at Brighton-le-Sands (exhibit A). The Crown case asserted that each incident, the subjects of counts 1 to 9, took place at that unit. They occurred (as set out above) between 29 June 2001 and 23 August 2001, a period of slightly less than two months. The complainant acknowledged that nothing occurred at Arncliffe (T56).
9. The period during which these events took place is important when forming an appreciation of the complainant's reliability. Necessarily, they must have occurred after 29 June 2001, when the appellant assumed occupation of his unit at Brighton-le-Sands. In fact, the appellant said that he did not recommence tutoring until 31 July 2001. School holidays that year fell between 6 and 23 July 2001 (T226). He did not tutor during school holidays. According to the appellant, lessons began a week after school resumed. The complainant's father (T175) and mother (T164) gave evidence that no tutoring took place during school holidays. The father conceded that there may have been no tutoring in the first week of term (T175). There was further support for the appellant provided by witnesses who described renovations undertaken after the appellant purchased the unit. It was painted throughout between 17 and 28 July 2001. The painter gave evidence of having put blue plastic covering on the floor (T414). The blinds were removed (T264; 373). The complainant said he had no recollection of seeing anything out of the ordinary on the floor when he attended for tutoring (T76).
10. Count 1 (the allegation of the kiss) took place, according to the complainant, "a few weeks" after having been tutored at the unit. The complainant introduced his description of the incident with these words: (T7)
"A. After a few weeks of going to his house things seemed to be really normal, they just seemed like normal tutoring lessons and I remember one afternoon I came into his apartment and the blinds were drawn ..."
11. Count 2 was an alleged act of oral intercourse. The complainant described this act as occurring "a few weeks after" (meaning a few weeks after the incident in count 1). He said this: (T9)
- "A. I think a few weeks after nothing happened and we continued tutoring as normal and then something else happened and the kiss was brought up."
12. In cross examination, the complainant gave an altogether different timeframe. He said this: (T34/35)
"Q. Do you remember telling the police that you visited your grandmother's place and that these events had occurred about the time that you visited?
A. I remember saying they occurred around the time that I visited my grandmother, yes.Q. Did you tell the police that you had a specific recollection of it being Easter because you were taking an Easter present for her?
A. I remember it being around the time of Easter because I had taken one, yes.Q. So Easter in 2001?
A. Yes.Q. What had transpired up to that particular time, what contact had there been?
A. There had been a kiss.Q. Can you tell me of the acts that you have told us about today what physical contact there was?Q. Yes?
A. And there had been some physical contact.
A. I believe there was the kiss then I think there was the oral intercourse.
Q. You say this, that at that time your mother - sorry, your grandmother said something to you about the accused, is that right?
A. She did."
13. He then recounted the substance of his grandmother's comments, which reflected adversely upon the character of the appellant.
14. Nor was this an isolated mistake. Jessica Taylor, a friend of the complainant, made a statement which was admitted as an exhibit (Exhibit C). In that statement Ms Taylor said this:
5. One night whilst we were together Martin phoned me and said, 'I'm sorry Jess I cheated on you.' I said, 'Why, what happened? With who?' Martin said, 'I had sex with my Maths tutor. I didn't mean to I was raped.' ...""4. Martin and I started seeing each other April last year. We were only together for about a month.
15. On 11 June 2002, having made allegations to the police, the complainant was examined by Dr Karen Zwi. Dr Zwi gave the following evidence: (T199)
"Q. And the reason for the referral was that Martin had disclosed to his school counsellor that he had made allegations of anal penetration upon him is that correct?
A. That's correct.Q. The last incident of anal penetration allegedly occurred in August of 2001?Q. And the allegation apparently was according to what you were told over a two year period?
A. Mm.
A. Correct so some ten months before we saw him."
16. The complainant, when cross examined, said that he could not remember making such a statement to Dr Zwi. However, if it was said, it must have been a slip of the tongue (T78).
17. There was a directed verdict on the third count, the complainant having failed to give any evidence in respect of it. The fourth and fifth counts were in the alternative, alleging intercourse or, alternatively, attempted intercourse. The complainant fixed the date of this incident by reference to the birthday of a friend. The friend's birthday fell on 8 July 2001. The complainant said the incident occurred three weeks before, or three weeks after that birthday (T11). It could not have been three weeks before, since the appellant, of course, had only moved into the unit one week before the 8 July, that is, 29 June 2001. Three weeks after would take it to 29 July 2001. If the appellant's evidence that lessons did not begin until 31 July 2001 were accepted, or even regarded as a reasonable possibility, then the timetable suggested in respect of counts 1, 2, 4 and 5 is simply not feasible in the context of counts 6 to 9, which are said to have occurred on 14 August 2001.
18. Perhaps more important than errors of recollection in respect of timing, were inconsistencies in the complainant's account as to whether he was anally penetrated and, if so, when. In respect of counts 4 and 5, the complainant alleged that the appellant had shown him male pornographic magazines. He then asked him to move to the second bedroom, where there was a mattress. Once on the mattress, the appellant bit his chest (T12). He removed the complainant's clothes and then removed his own. The complainant described what occurred in these words: (T15/16)
"Q. Can you tell us what happened then Martin?
A. He pulled me by the legs to the end of the mattress and raised my legs and tried to insert his penis into my anus.Q. Did he succeed?
A. I felt an extremely sharp pain so I'm guessing he did.HIS HONOUR: You felt a sharp pain?
CROWN PROSECUTOR: Extremely sharp pain.HIS HONOUR: I know this is distressful for you but you say you felt a sharp pain and ... ?
A. So I think that he did penetrate me.CROWN PROSECTOR: Q. I think the witness' evidence was 'I felt an extremely sharp pain' your Honour. Where did you feel that?
A. In my lower stomach area and around the area.Q. The area, which area, I'm sorry to have to ask you?
A. Of my anus.Q. Could you see his penis?
A. Not at this point.Q. Could you see what state it was in?Q. Before he did that with his penis, could you see what state it was in, did you see it at all?
A. I did.
A. It was erect."
19. The incident terminated when the complainant's father came to the door of the unit to collect his son. The episode, according to the complainant, lasted for about 15 minutes (T16).
20. In cross examination the complainant was reminded of certain answers he had given to Det Brazel, the investigating officer, in an interview. He said this: (T117)
"Q. You told the police specifically about this incident where you were bitten, where your father knocked on the door and where the door was answered and there was reference to making tea?
A. That's correct.Q. In that particular room, true?Q. After the particular incident you say do you not that events identical to the sexual acts which were carried out on you on that particular day continued for a period of time thereafter, true?
A. That's correct.
A. To my knowledge, yes."
21. The cross examination continued: (T118)
"Q. When you spoke to Detective Brazel you said that they occurred once a week?
A. That's correct.Q. Every week?
A. That's correct.Q. And they occurred 14 times?
A. That was an around about figure."
22. The complainant was then asked the following: (T118)
Q. After this particular event three and a half months we have to add on, true?"Q. And that's three and a half months, isn't it?
A. I suppose it is.
A. That's correct."
23. The complainant had said to Dr Zwi that the last incident was in August 2001. The last date on the indictment was 23 August 2001. The appellant said that tutoring ceased in August 2001. Indeed, it ceased because he suggested to the appellant's mother (as she acknowledged) that the lessons were a waste of time and money. The complainant had not improved. The complainant's father was not sure when the lessons ended, but thought that it may have been towards the end of the year (T175). There was evidence, which was not challenged, that between 8 September 2001 and 14 October 2001 the appellant was overseas. It is impossible to accommodate the complainant's account within these dates.
24. Moving, then, to the counts upon which the appellant was convicted, counts 7 and 8, it will be remembered that the incidents giving rise to these offences are said to have occurred on 14 August 2001, the day before the complainant's birthday. The appellant had sought permission from the complainant's parents to take him to a restaurant, to mark his birthday. The Crown alleged that homosexual intercourse took place before the meal and again after the meal. Alternatively it alleged that the appellant had attempted to have sexual intercourse before and after the meal. In the result, the jury found the appellant guilty of attempted sexual intercourse before the meal (count 7) and intercourse after (count 8).
25. I agree with Smart AJ that there was evidence of penetration, such that it was appropriate to leave counts 6 to 9 to the jury (infra: para 176). I also agree that, notwithstanding the concession by the complainant in cross examination (where he said he could not honestly say that he had been penetrated), it was open to a jury to infer penetration from the "facts" identified by Smart AJ in para 91. An acceptance of these "facts" however, depended upon an acceptance of the complainant's account. The complainant's evidence on counts 7 and 8 should not be looked at in isolation. Applying the test identified by Mason CJ, Deane, Dawson, Toohey JJ in M v The Queen (1994) 181 CLR 487 at 494, on the whole of the evidence, I believe the verdicts were unreasonable. In respect of each count the jury ought to have entertained a reasonable doubt (see also MFA v The Queen (2001) 193 ALR 184 at 198; Gipp v The Queen (1998) 194 CLR 106, per Gaudron J at 114).
26. First, the sequence which lies behind the complainant's allegations is odd. On 14 August 2001 he went to the appellant's unit for a maths lesson. Before the meal he was subjected to an unwelcome and painful episode of intercourse or attempted intercourse (counts 6 and 7). After, he and the appellant went to dinner, as planned. Following the dinner, and notwithstanding the events of that afternoon, the complainant again returned to the unit where he was again attacked.
27. Secondly, the complainant chopped and changed his account as to whether there had been penetration. Speaking of the events after their return from the birthday dinner, the complainant gave the following evidence in chief: (T25)
"Q. And then what happened?
A. He began to kiss me and then he brought me to the end like he did before and he again tried to penetrate me.Q. When you say he again tried to penetrate me, what happened?
A. He pulled me up to the end of the bed and he was in the exact same position as before and he lifted my legs up and I felt a sharp pain at the bottom of my abdomen and I could feel it going in and I kind of just shut off.Q. When you say you could feel it going in and I'm sorry to be asking you for the details, what do you mean by that?
A. I could feel his penis entering me.Q. Into your anal passage?
A. Yes.Q. And how did it feel?Q. And how long did that last for, that sensation?
A. Five to six minutes.
A. Painful."
28. In cross examination the complainant then gave the following evidence: (T25)
Q. We go to events after the - to the restaurant. Likewise you cannot say can you that there was actual penetration on that occasion?"Q. So that I might hear your answer in relation to that question, just listen, you cannot say can you whether or not there was actual penetration on that occasion?
A. No I can't.
A. No your Honour, no, sorry."
29. The material from which the appellant seeks to raise an additional ground of appeal is also relevant in this context. Following the trial Judge's refusal to direct a verdict on counts 6 and 8 (it being argued that there was no evidence of penetration), counsel for the appellant sought the recall of the complainant. He wished to put answers given by the complainant to Det Brazel in an interview on 1 May 2003, which were relevant to the events before and after the dinner. Speaking of the incident before the dinner, the complainant had told Det Brazel the following:
"A36. I think that was one of the times he tried but didn't really succeed."
30. Speaking of the events after dinner, when they had returned to the unit, the complainant gave the following answers to Det Brazel:
Q40. and again you've said that he has tried to have sex, anal sex with you. Can you tell me there what you mean by trying?"Q39. Okay now in 395 [of the earlier interview] it's in the same lines but your talking about an incident after you'd been out to a restaurant for your birthday?
A. Yair.
A. I think that night was one of the times he didn't really succeed either."
31. The Crown objected to the recall of the complainant, saying that she had closed her case. I find that response surprising. The fact that the case had been closed was not an objection. Nothing specific concerning the complainant was said. Recalling a young complainant is, no doubt, undesirable. However, it may be necessary in the interests of justice. The desirability of an accused being afforded an opportunity to put his case must be given considerable weight, including by the Crown in formulating its attitude. The request by the accused may have been dealt with by the Crown permitting the relevant answers to be read onto the record, unless the Crown believed that the complainant ought to be given the opportunity of responding.
32. The trial Judge ultimately questioned whether the evidence favoured the appellant, emphasising the word "really", which appeared in both answers. Whilst it was reasonable for him to have done so, it was ultimately a matter for the appellant's counsel whether he believed the evidence would assist his client. It is plain that he believed it would. On balance, I agree that it did. But whether it did or did not was not a reason to refuse the application. A trial Judge, faced with such an application, should be slow to refuse unless it is in some way unfair to the complainant. Even then, justice may require that the accused be given the opportunity to place before the jury the material which his counsel believes is important to his defence.
33. However the trial Judge, as Smart AJ points out, had a discretion. I would not find error on this basis. Nonetheless, the material excluded adds to the uneasiness I feel, examining the evidence which was before the jury.
34. Thirdly, the complainant gave an explanation for the difference in his account in respect of penetration (where in chief he said that he had been penetrated, whereas in cross examination he said he could not honestly say). His explanation was in these terms: (T63/64)
"Q. Do you say this that on that occasion prior to going to the restaurant that penetration was effected?
A. Again I've never actually experienced that before so I genuinely wouldn't know what it feels like. I felt a sharp pain in my lower abdomen and I don't know.Q. You don't know whether penetration took place or not?
A. I felt a sharp pain in my abdomen.Q. I heard that.
A. So ...Q. What I want you to say to answer is ...
CROWN PROSECUTOR: The witness didn't finish his answer your Honour.
WITNESS: Having actually never had anal sex before, how was I meant to know what it felt like?" (emphasis added)HIS HONOUR: Yes I allow the witness to finish his answer now.
35. These assertions were completely at odds with the evidence given by the complainant in counts 4 and 5, not to mention the weekly assaults that occurred thereafter (supra: paras 19 to 21). By 15 August 2001, on the complainant's account, he had been penetrated more than once.
36. Penile penetration, as Smart AJ remarked (para 176), does not have to be full and complete. In some circumstances, no doubt, it may be open to a jury to infer penetration from a momentary but significant pain (cf Smart AJ at para 163). However, the complainant in chief did not suggest momentary pain. On his account in chief, once there was penetration, it continued for five or six minutes and was accompanied by pain.
37. Fourthly, there was an important inconsistency in the account given by the complainant as to the way in which intercourse took place. His account before the jury (supra: para 17), suggested that he was on his back. In respect of the incident before dinner, he said this: (T19)
"Q. And did the accused have any clothes on?
A. No he didn't.
Q. And what position were you in when this happened?
A. I was at the end of the bed.Q. On his shoulders?Q. Where were your legs?
A. On his shoulders.
A. Yes, well my knee the back of my knee was."
38. Having returned from dinner, the same thing occurred. The complainant said this: (T25)
"Q. And then what happened?
A. He began to kiss me and then he brought me to the end like he did before and he again tried to penetrate me.
Q. When you say he again tried to penetrate me, what happened?
A. He pulled me up to the end of the bed and he was in the exact same position as before and he lifted my legs up and I felt a sharp pain at the bottom of my abdomen and I could feel it going in and I kind of just shut off.
Q. When you say you could feel it going in and I'm sorry to be asking you for the details, what do you mean by that?
A. I could feel his penis entering me.
Q. And how long did that last for, that sensation?Q. Into your anal passage?
A. Yes.
A. Five to six minutes."
39. In cross examination, referring to the occasion after dinner, the following was put to the complainant: (T127)
"Q. And then the events took place similar, or identical as it were, at last in the early part, that had taken place before you went away to this restaurant?
A. That's correct.
Q. He pulled you to the end of the bed, is that right?
A. That's correct.
Q. And again he's standing at a point at the end of the bed itself?Q. You're on your back?
A. That's correct.
A. That's correct."
40. The cross examination continued in these terms: (T128)
"Q. So was it a case of him telling you to stand up, turn around and putting you on the bed. It didn't happen like that?
A. Not from what I can remember.Q. And as I understand it certainly his approach to you was basically you're lying on your back on the bed so that you're basically facing upward as it were and partly towards him when he's standing at the end of the bed, true?
A. That's correct.Q. Because if he did that you'd have to be laying flat on the bed at that particular time, true. That is face down?Q. So it's not a case of him as it were approaching you from behind?
A. Not from what I can remember.
A. That's correct."
41. Counsel then put to the complainant the answers he had provided to Det Brazel, which suggested that he was lying on his stomach: (T129)
"Q. ... Do you remember telling Detective Brazel this in relation to these events on this occasion - 396.
'Question: Tell me how he tried to have anal sex with you?
Just he told me 'stand up and turn around' and put me on the bed and then just went from behind?
A. My recollection a year ago would have been better than what my recollection is now, and my recollection how he stood, the two acts were really similar.
Q. And I suggest what you said in relation to how it came to an end is this -
'I just rolled out off.
Question: What do you mean 'rolled off'?
Like I just well moved forward and like rolled out.'
I suggest that's the description you gave?
A. Like I said I would have had a better recollection of the events earlier on in the year than I would have now.
Q. Which of those two do you say is the more accurate?Q. Do you see that those two versions, the versions that you gave firstly here in relation to this particular incident and what I've read to you from your interview as to that particular incident, are different?
A. I do.
A. I'd have to go with my first statement, I would have remembered more it would have been fresher."
42. The complainant may, of course, have been telling the truth. His account of what occurred on 14 August 2001 may have been accurate. However, I believe that such were the difficulties in accepting his reliability, that the jury ought to have had a reasonable doubt as to the appellant's guilt. The verdict, in my view, was unreasonable. It should be quashed and a verdict of acquittal entered.
43. SMART AJ: GNK appeals against his conviction of one count of attempting to have homosexual intercourse with a male aged 14 years (count 7) and one count of having homosexual intercourse with a male aged 14 years (count 8). Those offences were alleged to have taken place between 7 and 23 August 2001, with the evidence pointing strongly to 14 August 2001. The appellant was acquitted of count 3 (homosexual intercourse with 14 year old male between 30 June 2001 and 1 August 2001) by direction of the judge and of these charges by the jury.
Count 1 - assault with act of indecency of 14 year old male between 29 June and 9 July 2001
Count 2 - homosexual intercourse with 14 year old male between 29 June 2001 and 9 July 2001
Count 4 - homosexual intercourse with 14 year old male between 30 June 2001 and 1 August 2001
Count 6 - homosexual intercourse with 14 year old male between 7 and 23 August 2001Count 5 - in the alternative - attempt to have homosexual intercourse with 14 year old male between 30 June 2001 and 1 August 2001
44. Because of the guilty verdict on count 8 the jury was not required to return a verdict on count 9 (attempt to have homosexual intercourse with a 14 year old male between 7 and 23 August 2001).
45. The appellant complained that at the close of the Crown case the judge should have directed a verdict of acquittal on count 8 and that the verdicts of the jury on counts 7 and 8 were unreasonable, having regard to the evidence. There were also complaints that the directions given by the judge in five different areas were inadequate and one complaint of failure to give necessary directions. In oral argument senior counsel concentrated on the lack of a directed verdict on count 8 and the alleged unreasonable verdicts on counts 7 and 8. This latter ground necessitates a review of the evidence. During the hearing the Court gave the parties leave to file supplementary submissions on the issue of whether the Court could and should enter a substituted verdict of attempted homosexual intercourse with a 14 year old male in the event of it holding that the verdict on count 8 was unreasonable. While dealing with this point, the appellant launched into further attacks on the course of the trial and the counts left to the jury.
The Crown Case
46. The complainant lived with his parents and sister in Arncliffe. The appellant and his family lived in close proximity and he was a long-standing friend and neighbour of the complainant's family. An accomplished mathematician, he had tutored the complainant's sister. At the request of the complainant's mother the appellant began tutoring the complainant in mathematics. The tutoring commenced in 2000 in the appellant's home at Arncliffe. It seems that there were no sexual acts at Arncliffe. The appellant moved to a unit at Brighton-Le-Sands during 2001, but the complainant could not specify exactly when this move took place. Other evidence established that it occurred on 29 June 2001. After the appellant moved the complainant continued to receive tutoring at the appellant's new unit for an hour after school usually on a Tuesday.
47. Count 1 – The complainant stated that for some weeks after the appellant's move tutoring proceeded normally. On one afternoon as the complainant entered the appellant's flat the blinds were down. After tutoring had proceeded for about 15-20 minutes the complainant complained of having a sore shoulder. The appellant, whom the complainant believed to be a massage therapist, massaged the sore shoulder and lent across and tongue kissed the complainant on the lips. The complainant said that he was revolted and froze up and said "No", but the appellant kissed him again and told him that he would tell his parents (presumably that the complainant had instigated the tongue kissing). Shortly afterwards the complainant's father knocked at the door. That was the end of the incident; the appellant said to keep quiet about it. The complainant did not tell his father or anyone as he felt too ashamed.
48. The complainant said that for the next few weeks tutorials continued and nothing untoward happened.
49. Count 2 - The conduct next described was said to have happened many times and the incidents were said to merge into each other. The complainant said that the incident happened a few weeks later. He was sitting in his usual place for tutorials. He thought that the appellant undid his pants and exposed his penis. He put his hand behind the complainant's head and moved it forward towards his (the appellant's) genitals, rubbed the complainant's face against them and asked him to perform oral sex on the appellant. The complainant reluctantly did so. The appellant asked the complainant to keep quiet about it. The appellant indicated to the complainant that no-one would believe him. The complainant said that the incident lasted five minutes and that he was sick, vomiting into the toilet. His father came and he left with his father. He did not tell his father what had happened.
50. Count 3 - No evidence was given by the complainant in support of this count.
51. Counts 4 and 5 - About the time of the birthday (8 July) of his friend David Baulk, who was also tutored by the appellant, the complainant went to the appellant's unit for further tutoring. The complainant stated that in the front room the appellant showed him some male homosexual photographic magazines and photo albums. The complainant said that the maths lesson then proceeded normally for 15 to 20 minutes and then the appellant asked the complainant to move to a second bedroom where there was a mattress on the floor. The appellant placed the complainant on the mattress, unbuttoned his shirt and bit him on the chest. The appellant removed his own clothes and the pants and underpants of the appellant, pulled him by the legs and tried to inert his erect penis into the complainant's anus. The complainant felt an extremely sharp pain in his lower stomach area and in the area of his anus. The appellant was at the end of the mattress facing the complainant. The complainant said that the incident lasted about 20 minutes with the appellant trying continually to penetrate him for 15 minutes. The incident stopped when his father knocked on the door. Both the appellant and the complainant dressed quickly. The appellant told the complainant to keep quiet and not to tell his parents as they would not believe him. The complainant went home with his father and did not tell him what had happened.
52. Counts 6, 7 - The appellant's fifteenth birthday fell on 15 August 2001. In addition to a family celebration the appellant was allowed to go out to dinner with the appellant. About Tuesday, 14 August 2001 the complainant arrived at the appellant's unit for a maths lesson and also to go out to dinner. They were alone. The complainant said that the appellant took him into the second bedroom which now had a bed in it, kissed him removed both their clothes, took off the bedclothes and placed the complainant on the new bed on his back. During this incident he believed that pornographic material was again shown to him. The appellant's penis was erect. He applied a lubricant to his penis and the appellant's anus. The complainant said that he was at the end of the bed with his knees over the appellant's shoulders and that the appellant held his penis and tried to put it inside him but the complainant said, "No, it hurts." The complainant said that he did not really feel a sharp pain and that the appellant tried, but did not succeed in penetrating. After the complainant said "No" the appellant desisted. He had a shower, got dressed and went out to dinner at a restaurant in Ramsgate. In cross-examination he said that he would not know what penetration felt like but that he felt a sharp pain in his lower abdomen.
53. The jury acquitted the appellant of having homosexual intercourse, but found him guilty of attempting to do so.
54. Counts 8, 9 - After dinner the appellant took the complainant to his unit after ascertaining that a gelato shop nearby was closed. The complainant said that the appellant took him to the second bedroom. It was the same bedroom that he had previously been in that night. There seemed to be some confusion in the complainant's mind whether he was in the main bedroom or the second bedroom. The bedclothes were still on the floor. They were cream and there was a red doona. The appellant removed the complainant's clothes and placed them on the floor and removed his clothes. He kissed the complainant. The appellant then brought the complainant to the end of the bed where the appellant was stationed. The complainant gave evidence of the appellant penetrating his anus. This will be dealt with in more detail later when considering ground 1. The complainant said that the incident lasted five to six minutes and was painful. The complainant dressed and the appellant took him home. He was told by the appellant to keep quiet.
55. During the time these incidents were occurring the complainant told his girlfriend about them. He also told his school counsellor, but in vague detail.
56. In mid 2002 the complainant reported matters to another school counsellor. His parents and the police were notified. He was interviewed by the police and referred to Dr Karen Zwi, a paediatrician with considerable experience in child sex abuse cases.
57. The complainant's mother gave evidence of the appellant, around the time of the complainant's birthday, asking if he could take him out to dinner. In June 2002 she and her husband were called to the complainant's school and told he had been sexually assaulted.
58. The complainant's father gave evidence that from around mid-July 2001, when he collected the complainant from lessons at the appellant's unit the complainant was stern, expressionless, distant and uncommunicative.
59. Dr Karen Zwi examined the complainant on 11 June 2002 She was told that the complainant had made allegations of anal penetration and apparently over a two year period, the last instance being in August 2001. The complainant did not recall saying two years; if he did it was a slip of the tongue; it should be two months. In the history she obtained the complainant told her that he had been anally penetrated by his maths tutor, that the last incident was in August 2001, that lubricants had been used, that receptive oral sex was performed without ejaculation, that the episode of anal sex was extremely painful and that pornographic photographs had been produced. She ascertained that the appellant was a friend of the complainant's parents and that he thought he would not be believed. The complainant had told her his life had been ruined.
60. The doctor's examination findings were normal. She said:
"… there are two possible reasons for a normal examination in allegations of sexual abuse. The first is that if an injury occurred … and has already healed, there may be no evidence remaining … The second is … that in the majority of cases of anal penetration even when convictions have occurred, … the physical findings are normal … because the anus is a distendible structure … and it expands and accommodates objects without experiencing injury necessarily.
… I was expecting normal findings."
61. She said that the medical examination neither confirmed nor refuted the allegations.
62. The judge told the jury that the statements made by the complainant to the doctor was admitted as evidence of the history and not of the truth of the facts asserted in that history.
63. Snr Cons A Brazel have evidence that the appellant took possession of the unit at Brighton Le Sands on 29 June 2001 and that on searching those premises on 16 July 2002 male homosexual pornographic material was found.
64. The statement of the complainant's girl friend, which was read to the jury, asserted that around April/May 2001 he told her in a telephone call that he had been raped by his maths tutor and that every time he went to his maths tutor he had sex.
65. In 2001 Term 2 went from 2 May to 6 July 2001 and Term 3 began on 23 July 2001 according to the principal of the complainant's school.
66. The Crown relied on the following matters emerging in the cross-examination of witnesses called in the appellant's case:
(a) the appellant – he had experience in massage
(b) Gwenda Dexter – the appellant had a queen sized mattress with cream blankets on the floor of the main bedroom when she visited him on 9 July 2000. The computer was still in the lounge room at this time.
(c) John Franklin – when he went to the appellant's unit
(d) Dominico Mastroserio – when he went to the appellant's unit to quote for painting he saw a single bed in the second bedroom.
67. Appellant's Case
The appellant denied that any incidents of a sexual nature took place. He denied the complainant's versions of events in relation to counts 1, 2, 4 and 5 and counts 6 to 9. It was also contended that the Crown could not prove that any penetration was penile, as opposed to, for example, digital. The appellant relied on inconsistencies in the complainant's evidence including that the incidents could not have occurred in the time frame given by the complainant. This last mentioned point did not apply to counts 6 to 9.
68. In his evidence the appellant stated that when living at Arncliffe he, his wife and two daughters got to know the family of the complainant. He had coached the complainant's sister in mathematics and subsequently the complainant.
69. On 29 June 2001 he moved to the unit at Brighton Le Sands. He did not coach between that date and the start of the school holidays. He did not coach in school holidays. (6 July – 22 July 2001) and the first week of term. He resumed coaching on 30 July 2001. The unit was painted from 17 to 27 or 28 July and the floor was covered in blue plastic over that entire period. (The complainant did not remember the blue plastic). The vertical blinds on the front windows were taken down during the painting, providing an open view into his unit for residents in the units opposite.
70. The appellant said that he finished coaching just prior to 8 September 2001 when he went overseas, retuning on 14 October 2001. There was no further coaching on his return,
71. The appellant's two single mattresses were taken to the tip before he moved to the unit at Brighton Le Sands. A queen size mattress and base were put in the main bedroom of the unit and boxes were put in the lounge/dining area and perhaps in the second bedroom. A single bed base and a single mattress were put in the second bedroom of the unit, apparently in August 2001. A round plastic table with chairs was brought from Arncliffe to be used for coaching. Unpacking did not finish until the end of July 2001, after the painting was completed. The table where the complainant said he was sitting when kissed by the appellant, did not arrive in the unit until 23 August 2001. This was the date the French polisher returned it
72. The appellant said that the first bedcover came when the bed was delivered on 10 or 13 August 2001. An ecru coloured cover was purchased at Grace Bros in Canberra on 18 August 2001. Both these covers were close to fawn in colour, although at one point the first cover was described as pale green. It was returned. The ecru coloured cover was returned to Grace Bros in Sydney and a third cover, which was red in colour, was purchased on 25 August 2001 – eleven days after the birthday dinner. Supporting invoices were admitted into evidence. The appellant said he had white sheets.
73. The appellant said that he did take the complainant out to dinner on a Tuesday (14 August 2001) around the time of his fifteenth birthday at a restaurant in Ramsgate. There was a coaching lesson beforehand at the unit. The appellant said that after coaching he and the complainant left the unit and drove to the restaurant. After dinner they drove back to the area of the unit and walked around to the gelato shop at the Novotel because that was part of the birthday dinner. The gelato shop was closed. They walked back to the unit because the appellant had some gelato and they had it there. The appellant said that prior to this he had the complainant telephone his mother and say they were running late, that they were having some gelato or dessert and that he would be home shortly. The appellant denied the version of events of the complainant at the unit prior to and after dinner.
74. The appellant said that the complainant attended for coaching on 21 August 2001. While the appellant was away for a short time collecting the washing, the complainant went into the second bedroom and took some magazines from a shelf in a wardrobe. They were pornographic magazines. The appellant said that he told the complainant that he had no right to be looking at those sorts of magazines and put them back in the wardrobe. The appellant said that he then attended to coaching in the normal way,
75. The appellant said that while coaching the front door was either left slightly ajar or closed, but not locked. The appellant denied that he had ever told the complainant not to tell his parents what had happened.
76. The appellant said that before he went overseas on 8 September 2001 he spoke to the complainant's mother and told her they were not getting very far, that the complainant was "not terribly interested" and "you're wasting my time, his time and your money."
77. The appellant denied that he had ever had the complainant on a bed in his unit. He also denied that he had ever penetrated the complainant.
78. Ronald Rosenberg, the appellant's son-in-law gave evidence that he took the appellant's two single mattresses from the appellant's home at Arncliffe to the tip. This was before he moved to Brighton Le Sands
79. Gwenda Mae Dexter, a long time friend of the appellant gave evidence that on 9 July 2001 she visited the appellant at his unit. There was not much furniture there. There was a plastic picnic table and chairs. There was a queen size mattress on he floor in the main bedroom. There was no bed base. She remembered that there were cream blankets on the bed. She thought that the computer was in the lounge room at that point. All she could see in the second bedroom was boxes. Subsequently, other furniture arrived, after the unit had been painted.
80. On her visit on 17 July 2001 blue plastic covering was taped down over the carpets. The whole unit was painted over the ensuing weeks. She was in Canberra with the appellant when the ecru quilt was purchased.
81. John Franklin delivered the re-polished round table to the appellant's unit on 23 August 2001. He said that he had gone to the unit to look at the table with the burn mark earlier in August or late July.
82. Dominic Mastroserio, a painter, said that he commenced painting work at the appellant's unit on 17 July 2001 and completed that work around 30 or 31 July 2001. Blue plastic floor covering was laid down throughout the unit.
83. Appeal Ground 1 reads:
The learned trial judge erred in failing to direct a verdict of acquittal at the close of the Crown case in respect of count 8 on the indictment.
84. The appellant contended that the Crown had not proved penile penetration of the complainant's anus as required by s 78K and s 78G(a) of the Crimes Act, 1900.
85. The complainant gave this evidence in chief as to what happened after they returned to the appellant's unit after his birthday dinner on 14 August 2001 (T25):
"Q. And whereabouts did you go after you entered the unit?
A. We went – well initially we entered into the TV room and then went into the second bedroom where the bedclothes were already off the bed and he removed my clothes and placed me on the bed.Q. And did he say anything to you when this occurred?
A. Not that I can recall.Q. And what about his own clothes, did anything happen to his own clothing?
A. After he removed mine he removed his own.Q. And then what happened?
A. He began to kiss me and then he brought me to the end like he did before and he again tried to penetrate me.Q. When you say he again tried to penetrate me, what happened?
A. He pulled me up to the end of the bed and he was in the exact same position as before and he lifted my legs up and I felt a sharp pain at the bottom of my abdomen and I could feel it going in and I kind of just shut off.Q. When you say you could feel it going in and I'm sorry to be asking you for the details, what do you mean by that?
A. I could feel his penis entering me.Q. Into your anal passage?
A. YesQ. And how did it feel?Q. And how long did that last for, that sensation?
A. Five to six minutes.
A. Painful"
86. In his cross-examination this passage appears (T63-T64):
"Q. Do you say this that on that occasion prior to going to the restaurant that penetration was effected?
A. Again I've never actually experienced that before so I genuinely wouldn't know what it feels like. I felt a sharp pain in my lower abdomen and I don't know.Q. You don't know whether penetration took place or not?
A. I felt a sharp pain in my abdomen.Q. I heard that
A. So--Q. What I want you to say to answer is --
CROWN PROSECUTOR : The witness didn't finish his answer your Honour.
HIS HONOUR: Yes I allow the witness to finish his answer now.
WITNESS: Having actually never had anal sex before, how was I meant to know what it felt like?
HIS HONOUR: Yes well now that is a statement by you, it's not an answer to the question so just please answer the questions of counsel and confine your answers to the questions. You will find that your counsel and the Crown will be able to make submission on the evidence.
WITNESS: Sorry your Honour.
Q. We go to events after the – to the restaurant. Likewise you cannot say can you that there was actual penetration on that occasion?HOOD: Q. So that I might hear your answer in relation to that question, just listen, you cannot say can you whether or not there was actual penetration on that occasion?
A. No I can't
A. No your Honour, no, sorry."
87. There is this further passage at T127:
"Q. And on this occasion what happened when you got back?
A. We got upstairs and [the accused] then took me to the second bedroom. He didn't need to remove the sheets because they were already taken off.
Q. So again how you came to be in the bedroom you're able to say are you?
A. Not really sorry.
Q. And what you say is this that once in the bedroom again your clothes were removed, is that it
A. That's correct.
Q. And then you were placed on the bed again I suppose?
A. Yes.
Q. Then I suppose the accused removed his clothes, is that what you say?
A. That's correct.
Q. He pulled you to the end of the bed, is that right?
A. That's correct.
Q. You're on your back?
A. That's correct.
Q. And again he's standing at a point at the end of the bed itself?
A. That's correct.
Q. At that point in time you can't see his penis?
A. No.
Q. You say this that a point thereafter you feel pressure being applied to the area of your anus. Is that it?
A. That's correct.
Q. And the same with the time before you went to the restaurant itself what it was as far as the pressure being applied. You cannot say, true?Q. What that pressure was and what was being applied at that time you cannot say can you?
A. Not a hundred per cent no.
A. I could guess at it but I couldn't be certain."
88. In re-examination at T149-150 the complainant said that he was on his back facing a naked appellant whose penis was erect. The complainant said that he felt something against his anal passage. The judge upheld an objection to the question of the prosecutor to the complainant "And do you know what that was?"
89. The appellant submitted that the complainant's evidence had to be taken as a whole and that in cross-examination the complainant had conceded that he was unable to say whether there had been penile anal penetration and that this was his true position. He had resiled from the position he had asserted in chief.
90. It was a matter for the jury whether they accepted the evidence in chief of the complainant. In such evidence there was evidence of penile anal penetration of the complainant by the appellant. There is a further approach. In cross-examination the complainant conceded that he could not, and did not, see the appellant actually insert his penis into the complainant's anus. That was credible, given the respective positions of the complainant and the appellant. The complainant also conceded that as he had never experienced penile anal penetration previously he could not be sure that his anus had been penetrated by the appellant's penis. The complainant added that he could make a pretty good guess.
91. The jury was entitled to infer that penile anal penetration had occurred from the following primary facts in combination:
(a) the appellant and the complainant were alone together in the appellant's unit
(b) both were naked
(c) the complainant, at the appellant's direction was lying naked on his back in a bedroom in the appellant's unit, the bedclothes having been turned down
(d) the appellant was standing at the end of the bed and pulled the complainant down towards him and facing him, placing the complainant's legs over the appellant's shoulders and thus elevating and exposing the complainant's anus
(e) the appellant's penis was erect
(f) the complainant felt a sharp pain at the bottom of his abdomen and he could feel "it" going into his anal passage. He could feel pressure being applied to his anus.
92. These events in combination do not suggest either digital penetration or penetration by an object. The level of pain is not consistent with digital penetration and there was no suggestion of any object being available to be inserted. The appellant would not have needed to strip naked for digital penetration or the insertion of an object.
93. This incident must also be seen against the background of the attempt at penile anal penetration prior to dinner and what then took place as earlier described and the production by the appellant to the complainant of male homosexual magazines.
94. The judge correctly left count 8 to the jury. Appeal Ground 1 should be rejected.
95. Additional Appeal Ground
After the judge had declined to direct a verdict on count 8 in favour of the appellant his counsel sought the recall of the complainant so he could cross-examine him on the answers which he gave to Det Brazel on 1 May 2003. The appellant contended that the judge erred in refusing such leave.
96. The answers which were relevant in this context were:
"Q35 … And did he ever put his penis inside your bottom cheeks?
A. YeahQ36 Yep, and when you read that, would that be what you were referring to their (sic) [referring to an earlier interview] or would be referring to something different
A I think that was one of the times he tried but didn't really succeed.Q40 And again you've said that he has tried to have sex, anal sex with you. Can you tell me there what you mean by tryingQ39 Okay now in 395 [of the earlier interview] it's in the same lines but your talking about an incident after your been out to a restaurant for your birthday
A. Yair.
A. I think that night was one of the times he didn't really succeed either."
97. The complainant described the appellant as very persistent but not getting anywhere. This followed:
"Q44 Okay, wasn't getting actually in your anus or was it just between your cheeks
A. I think a little bit of both to be honest …"
98. The judge appears to have attached importance to the phrase "didn't really succeed", especially the word "really". The judge thought by use of the word "really" the complainant was saying that the appellant did not succeed in obtaining full penetration but only a slight amount of penetration. That suffices. The judge in his discussion with counsel pointed out that the Crown was alleging that it could be inferred that a penis was being inserted. The judge said, "What does he mean by, 'Didn't really succeed?' If you were to recall him for that you may be in a worse position than you are now. I do not see that you could be any stronger." The judge had referred counsel to the evidence of the complainant that he could not honestly say that there was penetration.
99. By this stage the Crown had closed its case. That was not a bar to the appellant's application to further cross-examine the complainant. The judge gave careful attention to the application and it cannot be said that in refusing the application to re-open, the judge's discretion miscarried. The judge correctly thought that the Crown's case depended not so much on assertions or the lack thereof of penetration of the complainant's anus by the appellant but on the inference to be drawn from his pain in the bottom, the nakedness of the appellant and his erect penis and, I would add, pulling the complainant towards him and elevating his legs over the appellant's shoulders.
100. I would reject the challenge to the exercise of the judge's discretion.
101. Appeal Ground 2 reads
The directions given … on the evidence of complaints, said to have been made by the complainant to other witnesses were inadequate.
102. The appellant explained that this ground relates to the dates when the complainant told others (Dr Zwi and the complainant's girl friend Ms J Taylor) that he had been sexually assaulted by the appellant.
103. Dr Zwi was told that the last incident occurred in August 2001 and that the sexual assaults occurred over a two year period. The girlfriend in her statement said that in April 2001 the complainant told her that he had been sexually assaulted by his maths tutor. The complainant told the police that he had attended his grandmother's residence during Easter 2001 and that the acts alleged in counts 1 and 2 had already occurred. The Easter period extended from Friday, 13 April to Monday, 16 April 2001. The Crown case was that the relevant assaults only commenced at a time after the appellant had moved from Arncliffe to Brighton Le Sands. The complainant gave evidence that the first assault upon him occurred after attending at the appellant's unit for a number of weeks. He was not able to say when that time period commenced.
104. Thus the appellant submitted that there were three discrete areas where the complainant was contradicted.
105. Following a request by counsel for the appellant, the judge summarised the evidence of Dr Zwi and drew attention to the two year period. The judge declined to give further directions as to the three discrete areas sought by the appellant, relying on the fact that counsel had raised these matters in his address to the jury and that was sufficient.
106. The appellant submitted that the jury should have been instructed that the complainant alleged no assault prior to the appellant's move to Brighton Le Sands. However, the complainant had made allegations of assaults which preceded that move, that these were contradictory and should be considered when assessing the complainant's credit and that the appellant had denied that there were any assaults.
107. The appellant's case was that there had been no assaults. The jury were aware of this from an early stage of the trial and right throughout the trial. Repetition was not required. The situation as to the visit to the grandmother in April 2001 and what the appellant had told the police about when the early assaults took place was plain. The judge dealt with the complaint to the complainant's girlfriend at SU28-29, highlighting that the complaint was made in May 2001 and that according to the evidence of the complainant nothing occurred at Arncliffe. The contradiction was plain.
108. The jury had a transcript of the appellant's evidence and that of the complainant and they had heard comprehensive addresses from counsel. The appellant's counsel stressed the major contradictions and defects in the complainant's evidence. The jury acquitted the appellant of all offences except those allegedly occurring on the day of his birthday dinner with the appellant. The judge was not required to descend to the detail suggested. The directions given were not inadequate. Ground 2 should be rejected.
109. Appeal Ground 3 reads:
The … judge erred in failing to direct the jury in relation to the 'chronology' of the alleged assault as deposed to by the complainant and the way in which that 'chronology' might affect the credibility of the complainant.
110. The appellant contended that the evidence given by the complainant led to the following chronology:
(1) the first assault (the kissing) took place after the complainant had attended for 2, 3, 4 weeks
(2) the second incident (oral intercourse) occurred 2 to 3 weeks later
(3) the third incident (homosexual intercourse or an attempt) occurred around the birthday of another student, David Baulk (That birthday occurred on 8 July 2001)
(4) the fourth and fifth incidents (attempted homosexual intercourse and homosexual intercourse) occurred around the complainant's birthday
(5) the assaults occurred over a period of two to three months
(6) he had told the police that following the events around the other student's birthday, sexual acts continued once a week for 14 weeks.
111. Counsel for the appellant requested the judge to apply the time frame deposed to by the complainant, and commence it at the point when the appellant resumed coaching on 31 July 2001. It was submitted that this would have shown that the complainant alleged that there was coaching when the appellant was overseas.
112. The judge correctly refused these directions.
113. The evidence was that the coaching had ceased in August 2001, before the appellant went overseas on 8 September 2001. Although there were obvious inconsistencies in the complainant's evidence the alleged acts the subject of the charges fell between 29 June 2001 and 15 August 2001. The judge pointed out the various discrepancies as they bore upon the counts charged.
114. Ground 3 should be rejected.
115. Appeal Ground 4 reads:
The … judge failed to adequately direct the jury regarding the evidence given by the appellant and the case for the appellant generally.
116. It was submitted that while the judge made brief references to the defence case he did not adequately explain the defence case to the jury.
117. In summing up the judge, after giving some unexceptional general directions, dealt with each of the counts. The judge identified the count (or counts) with which he was dealing and told the jury of the elements of the count which the Crown had to prove. He summarised, briefly, the evidence in support of each count, told them of the accused's defence, that is, the event alleged did not happen and briefly reminded the jury of the criticisms and submissions of counsel for the appellant.
118. Throughout the summing-up the judge instructed the jury and emphasised that the dates specified in the counts as to when the alleged offences took place were an essential ingredient of the charge. If the jury were not satisfied beyond reasonable doubt that the offence alleged was committed within the times charged they were to acquit the appellant.
119. In the light of the unsatisfactory evidence as to when the alleged offences were committed the judge's directions as to the dates of the offences being an essential ingredient ensured without more, acquittal of the appellant on counts 1, 2, 4 and 5. Counts 6, 7, 8 and 9 were the only counts where the evidence as to the date of commission of the offence was satisfactory. Counts 6 to 9 alleged that these offences took place between 7 and 23 August 2001. The complainant said that they occurred around his birthday (15 August) and other evidence established that the incidents of which the complainant spoke took place on 14 August 2001.
120. As the appellant was convicted only on counts 7 and 8, attention will be focussed on these but without ignoring the other parts of the summing-up.
121. In dealing generally with all counts involving homosexual intercourse the judge directed the jury that homosexual intercourse required the penetration of the anus of the complainant by the penis of the accused and that insertion of a finger or any other object did not amount to homosexual intercourse.
122. The judge directed the jury that it was put on behalf of the accused that it was not the only rational inference that there was actual penile penetration and that the jury could not be so satisfied beyond reasonable doubt.
123. The judge proceeded to deal with the counts of attempted homosexual intercourse (7 and 9), explaining the essential elements which had to be proved by the Crown (SU12). The judge stated that the accused contended that the jury "could not be satisfied beyond reasonable doubt of an intention to commit the particular crime of homosexual intercourse, it being the insertion of the penis into the anus of the complainant". These remarks were directed primarily to count 5. The judge also referred to other matters on which the accused relied.
124. The judge dealt with count 6 (homosexual intercourse prior to the birthday dinner). He summarised the evidence given by the complainant and then the matters upon which the appellant relied to rebut the charge including his assertion that such an incident never occurred and the lack of reliable evidence of penetration. The judge referred to the evidence as to whether penetration had taken place. The appellant was acquitted.
125. As to count 7 the judge told the jury that they would need to consider the evidence given by the complainant as to count 6. At SU19 the judge reiterated and explained what the Crown had to prove under count 7. The judge again reminded the jury to take into account the appellant's denial that he ever did the act alleged or attempted to do any such act and whether the accused intended to do any such act in relation to an attempt. The judge reminded the jury that the submissions of the appellant as to count 5 were equally pertinent to count 7, namely, that they could not be satisfied beyond reasonable doubt that he intended to commit that particular act and as to the reliability and the honesty of the complainant that such an act occurred. The judge then reminded the jury of the evidence on which the appellant relied to support his case.
126. The appellant's case in rebuttal of count 7 was adequately put to the jury.
127. The judge next proceeded to count 8, having previously summarised the essential ingredients which the Crown had to establish to prove count 8. The judge summarised the evidence of the complainant as to count 8, dwelling on the evidence as to penetration. The judge summarised the accused's contentions that the jury could not be satisfied of penetration, taking into account the complainant's inability to state that there was penetration in relation to counts 4 and 6. Further, that they could not, when taking that into account in relation to count 8, despite the evidence the complainant gave in chief at T25 (see above) that he felt something going into his anus, be satisfied in view of the complainant's clear answer in cross-examination that there was any actual penetration on that occasion.
128. The summing-up did put the accused's case adequately on count 8 when regard is had to the judge's general directions, his directions as to homosexual intercourse and his directions as to count 8.
129. The defence case had three major aspects, all of which were put to the jury, namely:
(i) The incidents alleged did not happen, and
(ii) The evidence of the complainant was affected by substantial inconsistencies; he was neither honest nor reliable
(iii) Penile anal penetration had not been proved
130. The judge also reminded the jury of the supporting facts on which the appellant relied. The appellant complained that the judge failed to deal adequately with the evidence of Gwenda Dexter and the appellant as to quilt covers. The point being made was that the appellant returned two light coloured quilt covers which would have been unused and that the red patchwork quilt or doona was not in the Brighton unit prior to its purchase on 25 August 2001. At SU81 the judge referred to the evidence of Mrs Dexter as being supportive of the appellant as to the purchase of a quilt in Canberra and as to the condition of the unit on the occasions when she was there. Other aspects of Mrs Dexter's evidence were dealt with at SU133, in particular, the conflict as to the existence of the mattress in the second bedroom around about 8 or 9 July 2001, which related to count 4.
131. The judge received a request from the jury for the testimony of Gwenda Dexter where she made reference to the location of the computer and beds in the unit. The evidence of Mrs Dexter from T377, line 52 to the end of her evidence on T383 was read. (See SU116-119). Subsequently the jury was handed a copy of that section of the transcript (SU 132).
132. Mr Rosenberg's evidence as to the absence of a single mattress (which related to count 4) was referred to by the judge at SU80.
133. At the jury's request the evidence of Dominic Mastroserio, the painting contractor, as to what beds he saw in the unit was read to the jury (SU113-116). Later the jury was handed a copy of that section of the transcript (SU132).
134. The jury asked for the testimony of Mr J Franklin, the French polisher, when he referred to the tables he saw in the unit when he went to give the quote (SU 82.5). At SU83-89 the sections of the evidence of Mr Franklin sought by the jury were read. It seems that part of the transcript of the evidence of Mr Franklin was given to the jury – see SU134.4. It appears to have been the evidence which he gave in cross-examination. From the requirements of the jury evidenced by their notes they were well aware of the significance of the evidence of Gwenda Dexter, Dominico Mastroserio and John Franklin. It went to the credit of the complainant, his veracity and reliability. The jury were concentrating on those aspects of the evidence of those three witnesses which were of importance. They were self-explanatory. Further directions from the judge were not required.
135. The jury were able to compare the transcripts of the evidence of the complainant, the accused, Dexter, Mastroserio and Franklin.
136. The evidence on counts 7 and 8 was of a superior quality to that on counts 1, 2, 4 and 5. The appellant asserted that the incidents the subject of counts 1, 2, 4 and 5 did not happen and reliance was placed on the evidence as to the furniture and furnishings by the appellant. As to count 6 the evidence of penetration was less than compelling. There was also the major problem of when the incidents the subject of counts 1, 2, 4 and 5 happened. Even if the jury were satisfied that the incidents occurred, did they happen between the dates alleged?
137. As to counts 7 and 8 it was common ground that about 14 August 2001 the complainant attended at the appellant's unit for coaching prior to dinner, that after a period in the appellant's unit the appellant took the complainant to dinner at a restaurant at Ramsgate, that they returned to the vicinity of the appellant's unit, that the gelato shop was closed, and that the appellant took the complainant to his unit.
138. The issues on counts 7 and 8 related to what the appellant allegedly did to the complainant in his unit while they were alone before and after the birthday dinner. The jury had to be satisfied beyond reasonable doubt that the appellant's account was correct. On counts 7 and 8 the issues as to the furniture and furnishings were not so important. The verdicts of the jury show that they were well able to distinguish between the counts, the different evidence on the various counts and the differing strength of the evidence. The very full closing address of the appellant's trial counsel highlighted the inconsistencies in the complainant's evidence and the significance of the evidence of the witnesses called by the appellant.
139. The summing-up as a whole was not unbalanced. The judge was not required in his summing-up to put all the numerous detailed submissions advanced by the appellant. The judge put the essence of the Crown case and the essence of the appellant's case. The judge put the appellant's case on each count after the Crown case on that count. The judge also put the appellant's more general submissions.
140. Ground 4 should be rejected.
141. Appeal Ground 5 reads:
Having regard to the concessions made by the … Prosecutor, regarding the unreliability of part of the complainant's evidence, the directions by the … judge on that question were inadequate.
142. The appellant submitted that during her address to the jury the prosecutor made an important concession concerning the credibility of the complainant, namely, his reliability as to the location of the mattress within the second bedroom. It was contended that while the concession dealt with counts 4 and 5 it affected each other count.
143. It overstates the position to say that the prosecutor made an important concession in her address to the jury. The prosecutor put to the jury that the complainant was a young man who had told them what happened to him and was a witness of truth whose evidence could be relied upon. She said "I think you might have seen a young man with pants and a shirt hanging out a bit at the back, with a pimply young man's face, a young man who was obviously trying very hard to tell the court about a particularly embarrassing series of events in his life." She referred to an incident during cross-examination when he was shaking like a leaf. She reminded the jury that the Crown did not have to prove what furniture and furnishings were in the appellant's unit, but the elements of the charge under consideration.
144. She reminded the jury that there was a good explanation why the complainant could not recall with clarity and precision the details of the furniture, its location and the furnishings. She pointed out that the appellant's unit was, from the time he moved in, in a state of flux. Furniture was being moved in at various times and around to enable the painting to be carried out. Deliveries were also being made. The appellant lived through this and conducted his tutorials.
145. The judge reminded the jury of Mr Rosenberg's evidence of taking the bedding to the tip and the point that there was no single mattress at the appellant's unit at the time alleged in the incident the subject of count 4 (around the birthday of David Baulk).
146. Counsel for the appellant had addressed extensively on the facts. The address extended over 23 pages of transcript, typed in single spacing and took a great deal of the morning of 3 June 2003.
147. The judge's directions were not inadequate. Ground 5 should be rejected.
148. Appeal Ground 6 reads:
The directions given by the … judge on the manner in which the jury should consider the credibility and reliability of the evidence of the complainant were inadequate.
149. The appellant complained that the judge did little to assist the jury on the credibility of the complainant. He complained that, particularly on those allegations where the complainant was the only prosecution witness who could depose as to them, the judge should have drawn the jury's attention to them and the weakness in the complainant's evidence. The appellant contended that there were internal inconsistencies where the complainant had given two versions on the one subject, for example, the position of the mattress in the second bedroom, his position on the bed in the main bedroom in counts 6 to 8, who told him about his attendance at the appellant's premises with David and Mr Baulk and the time frame over which he was assaulted.
150. The external inconsistencies were those that arose from the evidence of other witnesses. These included the delivery of the table (Franklin), no mattress in the second bedroom (appellant and Dexter), when assaults occurred (Dr Zwi, Ms J Taylor), blue plastic on the floor of the unit in July (Dexter and Mastroserio), the dates when coaching occurred (the complainant's father). The appellant further submitted that there were a number of inconsistencies brought about by the evidence of the appellant, for example, the date coaching resumed, the application of the chronology resulting from the complainant's evidence, the appellant's period overseas, delivery of furniture and bedding.
151. Counsel for the appellant at the trial and in his written submissions to this Court set great store on the details of the furniture and furnishings and times when events occurred. With a 14/15 year old boy and his limitations the jury may have taken the view that details of the furniture and furnishings not being correctly remembered and stated was of limited importance. The judge made it plain what times were of importance. The jury convicted on counts where the date of the alleged offence was certain and which were clearly isolated and identified with no room for confusion.
152. The judge highlighted some of the inconsistencies. As to counts 1 and 2 the judge pointed out the appellant's evidence that no tutorials were conducted at the dates alleged (SU 9, 11 and 15 on 3/6/03). The judge pointed out the lack of complaint to the complainant's father (SU 14) and the difficulty with the dates as to count 2 (SU 15 on 3/6/03 and SU 16 on 4/6/03 June 2003). As to counts 4 and 5 the judge pointed out the birth date of David Baulk and that there were no tutorials at that time (SU 14 on 4/6/03).
153. The judge referred to "positioning" inconsistencies (on his stomach or on his back) as to count 8 (SU 24 and 78 on 4/6/03) and inconsistencies as to when lubricants were used (SU 25). The inconsistencies as to complaint (to Ms J Taylor and Dr Zwi) were pointed out (SU 28, 29 and 76).
154. The appellant complained of this passage in the summing-up (SU 11-12 on 4/6/03):
"On behalf of the accused it has been put that whilst not putting that the complainant's recollection could be unreliable, particularly as to times and dates, that you would have to consider that unreliability in considering each and every one of the counts. Certainly I can tell you that the considerations you find in relation to the reliability of the complainant on one count can be considered by you as to his general reliability in considering the other counts. You must of course in relation to each count consider each count separately and by reference to the evidence that applies to that count. But if you have a reasonable doubt concerning the credibility of the complainant's evidence on one or more of the counts you can take that into account in assessing his reliability on the other counts."
155. It was submitted that it was not sufficient to use the words "can be considered". The words used should have been "ought to be considered", "should be considered" or "must be considered". A similar comment applies to the phrase "can take into account". The appellant relied on what was said in Markuleski (2001) 52 NSWLR 82 at [191]:
"The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant's evidence, ought to be considered by them when assessing the overall credibility of the complainant and therefore when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts."
156. The judge alerted the jury to the fact that they could use the complainant's doubtful credibility on one count when considering the other counts.
157. It is a matter for the jury what weight it attached to doubtful credibility on one count when considering other counts. As earlier pointed out the evidence on counts 7 and 8 tended to be somewhat discrete. The important point is that the matter was drawn to the jury's attention. The difference in language would have no practical effect. No objection was taken at the trial to the directions given. Rule 4 should be applied to that complaint.
158. There was no lack of balance or fairness in the summing-up. Error has not been demonstrated. Ground 6 should be rejected.
159. Appeal Ground 7 reads:
The directions given … regarding the evidence of Dr Zwi and the inferences that might be drawn from her failure to give evidence on the issues in the Crown case were inadequate.
160. The appellant pointed out that the complainant made reference on a number of occasions to the sharp pain he encountered (at the bottom of his abdomen) when attempts were made by the appellant to have homosexual intercourse with him.
161. The appellant complained that the Crown did not seek to have Dr Zwi explain the pain referred to, what may have caused it and whether it was consistent with penetration or attempted penetration.
162. The Crown relied heavily on the feeling of pain and the judge referred to this aspect a number of times. The judge was asked to give a direction that as no evidence had been led from Dr Zwi on this point, she could not assist the Crown case in that regard. The judge correctly declined to give such a direction.
163. A jury does not need evidence that the insertion of an erect penis into the anus of an unwilling and rigid male will cause pain. That is a matter of common knowledge. This is reinforced by the complainant being a 14-15 year old boy and the appellant being a man. The important matter was that the appellant had suffered a sharp pain. This complaint is without substance. Ground 7 should be rejected.
164. Ground 8 reads:
The verdicts of the jury in relation to counts 7 and 8are unreasonable having regard to the evidence.
165. The appellant submitted that in view of the number of inconsistencies in the complainant's evidence the verdicts were unreasonable. Some of these were referred to by the judge and some of them have been referred to earlier in this judgment.
166. It was reasonably open to the jury to take the view that many of these were of no consequence. Those relating to the furniture and the furnishing in the unit fall into this category. The difficulties as to the times when the alleged offences the subjects of counts 1 to 5 and the obvious inability of the jury to be satisfied as to the time ingredient set aside those counts.
167. As to count 7, the pre-dinner incident, the date and time of that encounter was established. The evidence as to this has been reviewed earlier. Whether the incident took place in the second bedroom or the main bedroom does not matter much. From the primary facts deposed to by the complainant and the surrounding circumstances it was reasonably open to the jury, drawing all proper inferences, to be satisfied beyond reasonable doubt that the appellant had attempted penile anal penetration and therefore had attempted penile anal intercourse upon the complainant. The suggestions of digital penetration or penetration by an object are fanciful.
168. In dealing with count 7 in the appellant's post hearing written submissions to the application of s 7(2) of the Criminal Appeal Act, 1912, the appellant submitted that the judge had erred in failing to direct verdicts of acquittal on counts 1, 2 and 6. It was submitted that the jury must have been misled by the directions on these counts and count 8, which constituted the majority of the summing-up. Part of the evidence of the complainant was that counts 1 and 2 had occurred round Easter 2001. This could not be reconciled with the evidence that the alleged offences did not occur until after the appellant moved to Brighton Le Sands. See also the evidence of Ms J Taylor.
169. The appellant contended that in view of the evidence, count 6 should not have been left to the jury. While there was evidence that the appellant tried to have intercourse but did not there was other material from which it could be inferred that some penetration had occurred.
170. The appellant submitted that the judge had left evidence of attempted penetration as evidence that could be relied on to convict the appellant of actual penetration (on both counts 6 and 8). The jury were misdirected as to the evidence in the case which could be relied to return a verdict of guilty of actual "homosexual intercourse". It was submitted that this in turn may well have affected the jury's consideration of count 7 as these "erroneous" directions bolstered the evidence of the complainant.
171. These criticisms are incorrect. There was evidence in the Crown case, taken at its highest, to support count 6. With count 6 the jury was asked to infer that intercourse had taken place from a series of acts and circumstances. Given the whole of the evidence it was not correct to seize upon one answer. The acts and circumstances which the complainant described were part of the material from which the jury were asked to infer that penetration had occurred. Part of the material which supported count 6 was elicited in cross-examination.
172. I disagree that the "erroneous" directions bolstered the evidence of the complainant or affected the jury's consideration of count 7. The verdicts returned on counts 7 and 8 reveal that this jury was able to distinguish between an attempt to have homosexual intercourse and homosexual intercourse. The evidence of homosexual intercourse on count 6 was put under a cloud by some of the complainant's answers. The prosecution evidence on count 6 was not as strong as its evidence on count 8. The verdict on count 7 was explicable on solid and substantial grounds and was not reached by "erroneous directions". An examination of the evidence leads to the conclusion that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on count 7, namely, attempted homosexual intercourse with a male aged 14.
173. In his post hearing written submissions as to a substituted verdict the appellant submitted that the verdicts of the jury on counts 1, 2, 4 and 5 were not explicable purely by reference to the time frame within which the alleged offences are said to have occurred. The appellant contended that the offences could not have occurred at the time the complainant alleged that they did and that the verdicts of not guilty on these counts represent, for practical purposes, findings that the alleged events did not occur at all.
174. That proposition is incorrect. It was apparent that, except as to counts 6 to 9, the complainant's evidence as to when the offences occurred was confused, inconsistent and unreliable. He indicated that he had difficulties in fixing dates. The appellant contended that the statement of Ms J Taylor was conclusive evidence that in April or May 2001 the complainant was making false allegations of having been sexually assaulted by the appellant. That is putting the matter too high, especially when Ms Taylor was not called and the matter could not be explored. She would not have made her statement until after the police investigation commenced well into 2002.
175. The appellant also repeated many of the points on which he based his submission that the evidence of the complainant was so unreliable that, where proof of any one count depended on the complainant's evidence, that was not sufficient to establish the charge beyond reasonable doubt. Some of these points related to the time frame and dates of the offences and others on the furniture, furnishings and state of the unit at Brighton Le Sands. There were other inconsistencies in the complainant's evidence.
176. The evidence as to count 8 has been reviewed earlier and the conclusion reached that there was evidence supporting this count and that the judge correctly left it to the jury. I would go further. The jury was entitled to infer from the primary facts and the surrounding circumstances that penile anal penetration had occurred. Penetration does not have to be full and complete. It suffices if the extent of the penetration is relatively small. It was reasonably open to the jury to be satisfied beyond reasonable doubt that penile anal penetration had occurred and accordingly, that the appellant had penile anal intercourse with the complainant. See M v The Queen (1998) 181 CLR 487 at 492-3 and MFA v The Queen [2002] HCA 53.
177. As earlier mentioned the quality of the evidence on counts 7 and 8 was stronger than on counts 1 to 5. The jury was not satisfied as to penetration on count 6 and count 9 did not arise because of the guilty verdict on count 8.
179. Because of the conclusion reached on count 8 it is not necessary to deal with the issue whether in the event of it quashing the conviction on count 8, it should substitute a verdict of guilty of attempted homosexual intercourse pursuant to s.72(2) of the Criminal Appeal Act, 1912. Paragraphs 20-22 of the appellant's post hearing submissions raised further objections to the trial which were said to be matters tending against the application of s 7(2) of the Act. As they were not put on any broader basis and I have not had to consider s 7(2) it is unnecessary for me to refer to them.
180. The appeals against conviction should be dismissed.
Last Modified: 05/06/2004
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