Regina v Skene

[2000] NSWCCA 322

CITATION:

REGINA v SKENE [2000] NSWCCA 322

FILE NUMBER(S):

CCA 60353/99

HEARING DATE(S):

4 July 2000

JUDGMENT DATE:

25 August 2000

PARTIES :

Regina

v

John Francis Skene

JUDGMENT OF:

Meagher JA at 1; Sperling J at 2; Adams J at 45

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/31/0141
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

COUNSEL :	Mr P M Winch (Appellant) Mr C K Maxwell QC (Crown)
SOLICITORS:	T A Murphy (Appellant) S E O'Connor (Crown)
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
DECISION:	Appeal against convinction dismissed; Leave to appeal against sentence allowed; Appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60353/99

MEAGHER JA
SPERLING J

ADAMS J

25 August 2000

REGINA v John Francis SKENE
JUDGMENT

1    MEAGHER J: I agree with the judgment of Sperling J.
2    SPERLING J: The appellant was indicted in the District Court on 15 February 1999 on the following charges as amended, at the trial:

Count 1:
Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did assault CH in circumstances of aggravation, and at the time of the assault committed an act of indecency on him.
(s61M(1) Crimes Act, 1900) Maximum penalty: Imprisonment for 7 years.
Count 2:
Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did have homosexual intercourse with CH, a male aged between 10 years and 18 years.
(s78K Crimes Act, 1900) Maximum penalty: Penal servitude for 10 years.
Count 3:
Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did have homosexual intercourse with CH, a male aged between 10 years and 18 years.
(s78K Crimes Act, 1900) Maximum penalty: Penal servitude for 10 years.
Count 4:
Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did assault CH in circumstances of aggravation and at the time of the assault committed an act of indecency on him.
(s61M(1) Crimes Act,1900) Maximum penalty: Imprisonment for 7 years.
Count 5:
Between 1 March 1996 and 28 November 1996 at Tuggerawong in the State of New South Wales did have homosexual intercourse with CH, a male aged between 10 years and 18 years.
(s78K Crimes Act,1900) Maximum penalty: Penal servitude for 10 years.
Count 6:
Between 1 March 1996 and 28 November 1996 at Budgewoi in the State of New South Wales did assault CH in circumstances of aggravation, and at the time of the assault committed an act of indecency on him.
(s61M(1) Crimes Act, 1900) Maximum penalty: Imprisonment for 7 years.

3    The appellant pleaded not guilty. On 18 February 1999, the jury returned a verdict of guilty on each count. On 19 February 1999, the appellant was sentenced on count 5 to a minimum term of imprisonment of four years with an additional term of one year and four months, and to concurrent fixed terms of imprisonment in relation to the other counts, namely, two years imprisonment in relation to counts 1, 4, and 6, and three years imprisonment in relation to counts 2 and 3.

4    The appellant was a friend of the complainant’s family. The principal crown witness was the complainant. Other evidence served to fix the times of the various episodes which were alleged by the complainant to have occurred and provided some limited corroboration.

5    The complainant’s evidence in relation to count 1 was that, while staying at the appellant’s house and sleeping on a sofa with the appellant, the appellant fondled the complainant’s penis.

6    As to count 2, the complainant said that, on an occasion when the appellant came to the complainant’s family home to visit, the appellant followed the complainant into the complainant’s bedroom, pushed the complainant onto the bed and performed fellatio on him.

7    As to count 3, the complainant said that, on the same occasion, he then performed fellatio on the appellant.

8    As to count 4, the complainant was asked, in chief, what happened. He gave evidence of a further episode of fellatio by each on the other in his bedroom. No evidence was given at that stage concerning the assault and act of indecency opened by the crown, namely, a touching on the buttock. Counsel for the appellant at the trial did not move for an acquittal by direction in relation to this count. He used the omission to cross-examine the complainant about the episode, bringing out that, in addition to the acts of fellatio, the appellant, according to the complainant, “grabbed him on the bum”. Counsel for the appellant then brought out that the complainant had made a statement to the police in which he referred to an episode which involved a touching on the buttock but in which nothing was said about fellatio having occurred on that occasion. Counsel then had an inconsistency on which to address the jury and did so in due course.

9    As to count 5, the complainant gave evidence, in chief, of the appellant and the complainant having gone to an oval to drink beer. The complainant said that on that occasion fellatio had occurred, anal intercourse by the appellant on the complainant and self masturbation by the appellant. The crown prosecutor had opened on anal penetration but not on fellatio and masturbation in relation to this episode. The response of counsel for the appellant was similar to what had occurred in relation to the fourth count. No objection or action was taken by counsel in relation to the evidence of further acts. In cross-examination, counsel for the appellant obtained the complainant’s reaffirmation of his evidence concerning the further acts and then brought out that, in the statement made by the complainant to the police, there was no reference to such further acts in the complainant’s account of the episode in that statement. This inconsistency was also relied on in counsel’s address to the jury.

10    Other evidence, to which I have briefly referred, was then led by the crown.

11    The appellant gave evidence at the trial. He denied all of the acts relied upon by the crown as constituting the offences charged.

12    The appellant has appealed against conviction and has sought leave to appeal against sentence. The grounds of appeal are as follows:

Ground 1: The jury were misdirected in relation to the evidence of the uncharged sexual activity between the complainant and the applicant.

Ground 2: The jury were inadequately directed in relation to the different categories of evidence on the trial and the permissible use to be made of each category.
Ground 3: The summing up lacked balance to such a degree that the Applicant was unfairly prejudiced.
Ground 4: His Honour erred in failing to find special circumstances.
Ground 5: The penalty imposed is manifestly excessive.


Ground 1: The jury were misdirected in relation to the evidence of the uncharged sexual activity between the complainant and the applicant.

Ground 2: The jury were inadequately directed in relation to the different categories of evidence on the trial and the permissible use to be made of each category.

13    These two ground of appeal were dealt with together in the appellant’s submissions.

14    In his summing up, the trial judge dealt with the evidence given by the complainant concerning the other acts, allegedly carried out by the appellant during the episodes which included the acts relied upon as constituting the offences under the fourth and fifth counts. I will quote the relevant passage from the summing up. (The reference to the sixth count in the opening words of the passage is a mistake for the fifth count.)

“As to the fourth count and the sixth count (the complainant) described incidents of oral sex and in relation to the sixth count the accused masturbating himself. Now ladies and gentlemen he is not charged with those matters and you are not here to determine whether he is guilty or not guilty on those matters. Your task is to determine whether he is guilty in relation to the conduct which I have outline in describing each count.
You may be wondering why that evidence has been placed before you. That is to say the other matters. Well it has been placed before you to demonstrate the nature of the relationship which existed between the accused and (the complainant) and to how he regarded (the complainant) and treated him on other occasions. In other words to illustrate the background against which you might consider the evidence of (the complainant) with regard to the specific incidents charged and to demonstrate his improper and unlawful desires or feelings towards (the complainant).
If you have merely heard that the accused had performed the sexual acts which are charged in the indictment you might say to yourself. It seems very odd that he would simply perform that conduct and no other misconduct and you might be inclined to doubt the likelihood of the boy’s account when he says that those specific matters charged were performed against him. If you hadn’t heard about the other conduct you might be inclined to doubt his truthfulness about the specific matter. However, having been made aware of the other side acts of sexual misconduct occurring at about the time of the specific incidents charged you might form a more realistic opinion of what was occurring between them. You might form the view that the accused had clearly demonstrated improper sexual desires or feelings towards (the complainant). In other words, without the broader background it might seem to you almost unbelievable that the accused would act as he is claimed to have done when he is alleged to have committed this specific offence as charged, if you had not been made aware of the broader sexual relationship between himself and that boy.
Examine the evidence as to the additional acts of sexual misconduct. They are the ones that are not charged and if you find beyond reasonable doubt that such acts occurred then you are entitled to say that there was an ongoing sexual relationship, that such acts demonstrate the accused’s sexual desires towards that boy. You could use such a finding as a basis for placing his evidence into context as to what had occurred and to conclude that it was more likely that he did sexually assault the boy in the manner described in the offences charged.
A finding of such improper sexual relationship and guilty desires towards the boy would not of itself lead to a guilty verdict. The Crown must of course still prove beyond a reasonable doubt the elements of the offences. That is to say the matters which I have set out for you.”

15    It was common ground on the hearing of the appeal that the directions given in this passage were erroneous. The directions were also contrary to what had been agreed prior to the summing up. In that discussion, it was confirmed that the crown had not particularised or opened on the further acts and that the crown did not rely on them as constituting any offence charged. I quote the relevant passage from the transcript:

“CROWN PROSECUTOR: Well your Honour it is part of the circumstances surrounding the offence that the Crown’s alleged and that was the offence of in respect of the fourth count I think your Honour. The allegation that the Crown brought to this Court was the touching on the backside, I think there was also evidence given of oral intercourse your Honour that is evidence of part of the circumstances given by the complainant as to the events that occurred your Honour, but is not what the Crown has charged, the Crown has charged specifically the touching on the bottom, that if they were satisfied, they have to be satisfied beyond reasonable doubt that that occurred and they can’t convict him on the basis that there was act of oral intercourse your Honour.
HIS HONOUR: They have to be satisfied beyond reasonable doubt that what occurred?


CROWN PROSECUTOR: That the touching of the bottom occurred your Honour, and they are the same thing in relation to the other incident out at Tuggerawong Oval your honour, they have to be satisfied specifically of the act of penile, anal intercourse, and can’t convict him because they thought something else may have occurred, it has to be that specific act your Honour.
HIS HONOUR: Do you agree with that Mr Cruickshank?
CRUIKSHANK: Yes your Honour in relation to the touching on the bottom that it does amount to a sexual act.
HIS HONOUR: That is not what I am asking you about, what I am asking you about is how I deal with the other acts of oral intercourse.
CRUICKSHANK: Well I would agree with what my friend says in relation to that your Honour.”

16    I take it to have been agreed in this passage that the trial judge would direct the jury that the evidence of further acts were to be used as no more than evidence of the circumstances pertaining to the offences charged respectively in counts 4 and 5.

17    I pause to mention that it was not made clear how, as a matter of reasoning, evidence of the circumstances was intended to be used by the jury in deciding whether the acts charged had occurred. I also mention that, of the possible ways in which evidence of this kind could be treated, no consideration appears to have been given, at any stage, to the possibility that the evidence was simply irrelevant and should, accordingly, be disregarded altogether.

18    As is apparent, the summing up went much further than what had been agreed and, at least to the extent that it did, it was common ground on the appeal that it was fraught with error.

19    At the conclusion of the summing up, counsel for the appellant took exception to the directions which had been given in relation to the other acts. Counsel for the appellant submitted that the appropriate direction would have been that the evidence went to what was described as “the consistency and the credibility of (the complainant)”. A little later, the following exchange took place.

“HIS HONOUR: Well how do you suggest I deal with it? Simply tell them that because it didn’t emerge before today that it’s just evidence of unreliability.

CRUIKSHANK: Well that’s what I’d submit your Honour.

HIS HONOUR: I hear that submission Mr Cruickshank but have you got any …

CRUIKSHANK: As I see the direction that your Honour’s given I consider it was quite a vital direction. As I say I’ve only got a partial note of it but I’d ask your honour to discharge the jury. I don’t think it’s something that could be cured by a redirection.

HIS HONOUR: I’m not going to discharge the jury Mr Cruickshank”

20    The construction I put on this passage is that counsel for the appellant was seeking a discharge of the jury on a ground that the evidence was not probative of the crown case in any way at all and that the directions in the summing up could not be cured by redirection.

21    Some further observations need to be made at this point. First, it was not argued on appeal that the trial judge erred in refusing to discharge the jury. Any such submission could not have succeeded. Secondly, the position taken by counsel following the summing up was materially different from that agreed upon earlier. Whereas it was agreed earlier that the evidence could be used as evidence of circumstances (albeit without definition or clarity as to what was meant by that), the position now taken by counsel at the trial was that the evidence of other acts could not be used in support of the crown case in any way at all.

22    Following further discussion, counsel for the appellant ameliorated his position in the following exchange:

“HIS HONOUR: That may well be. I know all that, I know it’s not an ideal situation Mr Cruickshank. I appreciate that neither you nor the Crown apprehended was to fall from the witness but it fell. It wasn’t objected to. It’s before the jury. Now I think I’ve got to tell the jury how I think that they should consider it. I agree with you that normally such evidence is led deliberately but it appears to me as though it could also be led to demonstrate surrounding circumstance.
CRUICKSHANK: Well your Honour if your Honour merely put it as a surrounding circumstance that if they accept beyond reasonable doubt that this conduct took place then it would add a sexual connotation to the grabbing of the bum or the patting or the, I think it was bum or backside, of his bottom your honour, that would put that in a completely sexual context.
HIS HONOUR: Yes.
CRUICKSHANK: But I’d submit your Honour’s gone much further than that. Your Honour has coached it in terms that it reflects on all the charges that are before the Court.
HIS HONOUR: No, It reflects on the charges that, Counts 4 and 5.”

23    The trial judge took up the formula proposed by counsel for the appellant in that exchange. His Honour formulated a new direction along those lines and the crown prosecutor agreed to it. This is apparent from the following passage:

“HIS HONOUR: Well if I was to say something like this, “The acts of oral sex which the complainant says occurred at the time of the touching on the backside, that is to say the grabbing of the bum occurred after that touching. It would appear that the suggestion of the sucking off and the actual action occurred after the grabbing of the bum. That evidence of the oral sex is available for consideration as a circumstance or surrounding factor which could lead to the conclusion that the touching had a sexual connotation”.
CROWN PROSECUTOR: Yes your Honour.
CRUICKSHAANK: I’d agree with that your Honour.”

24    As will appear, the trial judge redirected the jury in those terms.

25    On the hearing of the appeal, it was common ground that the formula in the redirection was correct, although counsel for the appellant on the appeal submitted that this redirection in relation to count 4 and the redirection to which I will refer in relation to count 5 did not sufficiently disassociate the other acts from counts other than counts 4 and 5 respectively.

26    The discussion now turned to count 5. Following further discussion with the crown prosecutor, the trial judge proposed the following formulation for a redirection:

“The complainant has told you that prior to the act of anal intercourse alleged there was oral sex. You may regard that as part of the circumstances surrounding the offence charged, that is the anal intercourse. You are entitled to look at the evidence of the oral sex, if you find it proved beyond reasonable doubt, as material which could lead you to conclude that the offence charged has been proved. That is the anal intercourse.”

27    Counsel for the appellant responded as follows:

“Yes I would be happy with that direction your Honour.”

28    As will appear, his Honour incorporated the proposed redirection in relation to count 5 in a supplement to his summing up.

29    The redirection by the trial judge was introduced in the following way:

“Ladies and gentlemen yesterday I referred to the evidence of the sexual acts described by (the complainant) by way of oral sex which occurred at the time of the incidents giving rise to the fourth count and the fifth count.
In relation to the fourth count you will recall that (the complainant) described acts of oral sex which occurred immediately after the accused grabbed him on the bum or backside.
In relation to the fifth count the act of oral sex was described as having occurred at the Tuggerawong Oval prior to the anal intercourse.
I gave you instructions as to how you were to regard those incidents. As to how you were to treat them when considering the offences which are actually charged in the fourth count and the fifth count.
Having considered what I said to yesterday, it may well be that you could have been confused and possibly mislead by what I told you as on reflection my direction was not strictly correct. What I propose to do is to give you a further direction and to instruct you to put aside and to ignore what I told you yesterday as to those matters. The balance of what I told you in relation to the other counts of course still applies.”

30    It may noted that the trial judge referred in this passage to “sexual acts described by way of oral sex”. There was no reference to this passage or in what followed to the act of masturbation which, according to the complainant, occurred at the time of the episode relied on for count 5. However, the jury would have taken the trial judge to be referring to the evidence of all acts additional to those relied upon as constituting the offences. No point was taken on appeal concerning the terms in which the trial judge referred to the evidence of other acts.

31    Despite the somewhat tentative phrase “not strictly correct” in the foregoing passage, this judge’s introductory comment was, in my view, sufficient to make it clear to the jury that they were to ignore altogether what had been said by the trial judge on the previous day in relation to other acts. That included the suggestion that the evidence of other acts could be used in some way as supportive of the crown case under all counts, not just counts 4 and 5. The jury is to be presumed to have acted on the direction of the whole of what had been said, including the wider use that had been mentioned.

32    Then followed the direction in relation to other acts associated with the fourth count. As I have said, the redirection was in accordance with that formulated in discussion with counsel. It was as follows:

“Turning firstly to the fourth count, there is evidence to the effect that the accused’s suggestion of sucking off and his performance of that act occurred after he had grabbed (the complainant’s) backside. If and only if you find that the oral sex occurred beyond a reasonable doubt, that is to say you make a finding beyond reasonable doubt, then you may take that into account as a circumstance or surrounding factor which could lead you to the conclusion that the touching or grabbing on the backside had a sexual connotation.
The mere fact that you find that the oral sex occurred does not conclude the matter. A guilty verdict could only be returned if the elements of the charge were proven beyond a reasonable doubt, namely (1) that there was an intentional grabbing of the naked backside without lawful excuse, (2) that such an act constituted an act of indecency and (3) that (the complainant) was under the age of sixteen.”

33    The position, as it then stood in relation to the fourth count, was then, in my view, as follows. Counsel for the appellant at the trial acceded to the redirection. Indeed, in this instance, he had proposed it. Counsel for the appellant on the appeal does not argue that the redirection was incorrect. In these circumstances, it is not for the Court to evaluate the redirection. I say nothing one way or the other about whether the redirection was correct in law. If it was wrong in law, this is a plain case for refusing leave under Rule 4.

34    Grounds 1 and 2 in relation to count 4 accordingly fail.

35    In relation to count 5, the trial judge redirected the jury in the following terms:

“As to count 5, (the complainant) described oral sex as having occurred prior to the anal intercourse. As you are aware that act of oral sex is not the subject of any charge. What you are considering under the fifth count is whether the act of anal sex charged has been proved beyond a reasonable doubt If and only if you find beyond reasonable doubt that the oral sex occurred, you are entitled to consider that finding as material which you could take into account in determining whether the anal sexual act, being the offence charged, has been proved beyond a reasonable doubt.
So that any finding that the oral sex occurred does not conclude the matter. You must still be satisfied beyond reasonable doubt of (1) that the act of anal intercourse occurred and (2) that (the complainant) was under the age of eighteen.”

36    Counsel for the appellant on appeal submitted that the redirection was erroneous. On the appeal, the crown did not attempt to support the redirection as being correct. I am also of the view that the evidence of an instance of fellatio on the same occasion prior to the alleged anal intercourse (and the evidence of self-masturbation by the appellant on the same occasion) was not probative of anal intercourse having occurred as alleged. However, as I have previously recorded, the redirection was one acceded to by counsel for the appellant at the trial in terms that he was “happy with that direction”.

37    In these circumstances, leave pursuant to Rule 4 should be refused. Grounds 1 and 3 therefore fail in relation to count 5.

38 I am further of the view that no error on the part of the trial judge can conceivably have caused a miscarriage of justice in this case. The evidence of other acts was confined in the redirection to counts 4 and 5 respectively. The crown case was of repeated sexual offences by the appellant in relation to the complainant over a period of years. The primary question for the jury was whether they accepted beyond reasonable doubt the complainant’s evidence of the acts relied upon as constituting the offences or whether, on the other hand, they thought there was a reasonable possibility that the appellant’s denial might be correct. The evidence of other acts was evidence of the same character as the acts alleged to constitute the offences charged. The jury found the facts constituting the alleged offences proved It is not feasible that whatever use the jury may have made of the evidence relating to the other acts might have made the difference between finding the facts constituting the offences proved and not so finding. In these circumstances, the proviso to s 6 of the Criminal Appeal Act 1912 should be applied. That is a further reason for rejecting grounds 1 and 2.

Ground 3: The summing up lacked balance to such a degree that the Applicant was unfairly prejudiced.

39    The criticisms of the summing up in this regard do not, in my view, warrant detailed consideration. I discern nothing in the summing up in its totality, that is, including the redirection, which unfairly prejudiced the appellant.

Ground 4: His Honour failed to find special circumstances.

40    It is submitted that the trial judge was bound to find special circumstances and to expand the additional term at the expense of the minimum term accordingly. It was argued that, for a man of the appellant’s age who had not been to prison before, a longer period of time under supervised parole was necessary for rehabilitation when the appellant was released. Attention was also directed to the hardship of a prison sentence served under strict protection which the trial judge, it is correctly suggested, would have or ought to have anticipated as likely.

41    These considerations are not unusual in the case of sex offenders. The sentencing judge was not in my view bound to find special circumstances in the exercise of his discretion in the circumstances of this case. There was, in my view, no demonstrable error in not doing so.

Ground 5: That the sentence is manifestly excessive.

42    Having regard to the objective circumstances of the offences and subjective considerations relative to the appellant, adequately recorded in the remarks on sentence, and assuming that the likelihood of serving the sentence under strict protection was taken into account, the sentence imposed was not, in my view, outside the proper exercise of judicial discretion on the part of the sentencing judge. The sentence was not, in my view, manifestly excessive. Indeed, were I resentencing the appellant (for which purpose, the fact of strict protection would have to be taken into account), I would not impose a sentence less severe than that imposed by the sentencing judge.

43    The appeal against sentence should therefore not succeed.

Proposed orders

44    The orders I would propose are as follows:

1. Appeal against conviction dismissed.
2. Leave to appeal against sentence allowed.
3. Appeal against sentence dismissed.

45    ADAMS J: I also agree with the judgment of Sperling J.

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