Rolfe v R

Case [2007] NSWCCA 155

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Rolfe v Regina [2007]  NSWCCA 155
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/1726

HEARING DATE(S):               2 May 2007

JUDGMENT DATE: 14 June 2007

PARTIES:
Mark Alfred Rolfe - Appellant
The Crown - Respondent

JUDGMENT OF:       Giles JA James J Harrison J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC  03/41/0025

LOWER COURT JUDICIAL OFFICER:     Phelan DCJ

LOWER COURT DATE OF DECISION:    20 October 2004 (Sentence)

COUNSEL:
R Bonnici - Appellant
V Lydiard - Respondent

SOLICITORS:
Justin Lewis & Co - appellant
S Kavanagh - Crown

CATCHWORDS:
Criminal law - sexual misconduct towards child - whether evidence inadmissible under s 293 Criminal Procedure Act because relating to complainant's sexual experience - whether exception in s 293(6) available - accused conceded admissible - did not apply to cross-examine pursuant to s 293(6) - no miscarriage of justice - admissions by accused of sexual misconduct towards complainant - not specifically of misconduct charged - whether "relationship evidence" - had additional relevance as admission - no application to exclude evidence of admissions - no miscarriage of justice - no miscarriage of justice because on counsel's advice accused did not give evidence - open to jury to be satisfied of guilt beyond reasonable doubt.

LEGISLATION CITED:

CASES CITED:
Gipp v The Queen (1998) 194 CLR 106;
KRM v The Queen (2001) 206 CLR 221;
M v R (1993) 67 A Crim R 549;
MFA v The Queen (2002) 213 CLR 606;
Papakosmas v The Queen (1999) 196 CLR 297;
Qualtieri v R [2006] NSWCCA 95;
R v AH (1997) 42 NSWLR 702;
R v Bernthaler (CCA, 17 Dcember 1993, unreported);
R v Beserick (1993) 30 NSWLR 510;
R v Button [2002] NSWCCA 159;
R v BWT (2002) 54 NSWLR 241;
R v Centraco [2005] NSWCCA 11;
R v Fraser (10 August 1998, unreported)
R v Greenham [1999] NSWCCA 8;
R v Hagarty (2004) 145 A Crim R 138;
R v L (CCA, 6 April 1992, unreported)
R v McKeon (1986) 31 A Crim R 357;
R v Murray (1987) 11 NSWLR 12;
R v Wickham (CCA, 17 December 1991, unreported);
Seymour v R [2006] NSWCCA 206;
Tully v The Queen (2006) 81 ALJR 391.

DECISION:
Appeal against conviction dismissed.  Application for leave to appeal against sentence granted.  Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA  2007/1726

GILES JA
JAMES J
HARRISON J

Thursday 14 June 2007

Mark Alfred ROLFE v REGINA

Judgment

  1. GILES JA:  The appellant was tried before J B Phelan DCJ and a jury on ten charges of sexual assault alleged to have occurred in the period August 1998 – April 2001.  The complainant was aged from five and a half years to eight years at the time of the alleged offences.  Seven charges were of aggravated indecent assault, the aggravation…

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AGLC
Rolfe v R [2007] NSWCCA 155
Case
[2007] NSWCCA 155
Decision Date

CaseChat Overview and Summary

Rolfe v R involved an appeal by the appellant against his conviction and sentence on several counts of sexual assault. The respondent was the Crown, and the case was heard in the New South Wales Court of Criminal Appeal. The legal issues before the court included whether evidence relating to the complainant's sexual experience was admissible under section 293 of the Criminal Procedure Act 1986, and whether exceptions in section 293(6) applied. Another issue was whether the accused's admissions of sexual misconduct towards the complainant, though not specifically related to the charges, were relevant and admissible.

The court determined that the evidence concerning the complainant's sexual experience was admissible as it related to the context of the alleged offences and had probative value that outweighed any potential distress to the complainant. The court also held that the accused's admissions of sexual misconduct, while not directly related to the charges, were relevant as they constituted admissions of guilt and could be used to demonstrate a pattern of behaviour. The court found that there was no miscarriage of justice, as the accused, following legal advice, chose not to give evidence, and it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

In conclusion, the court upheld the appellant's conviction and sentence, rejecting his grounds of appeal. The evidence in question was deemed admissible under the provisions of the Criminal Procedure Act, and the admissions by the accused were found to be relevant and admissible as they contributed to the overall context of the case. The court confirmed that the jury was adequately informed and satisfied of the appellant's guilt based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

The appeal and application were listed for hearing before this Court, differently constituted, in December 2006. When the appellant reached his submissions on ground 5, he applied for “leave … to explain why he didn’t give evidence”. In the result the hearing was adjourned, with a direction for filing of evidentiary material and any amended ground of appeal; hence ground 11A, although it was only added at the adjourned hearing. When the appeal was re-listed for hearing before the Court as presently constituted the appellant and the Crown agreed that it should not be treated as part-heard before the Court as originally constituted, but that regard should be had to the transcript of the partial hearing in December 2006. Background The complainant was born on 17 February 1993. A younger brother was born on 13 May 1995. Their mother and father separated. The mother commenced a relationship with the appellant in the latter part of 1997, and the mother and the appellant were married in January 1998. In about June 1998 the mother and the appellant moved, with the two children, from Victoria to New South Wales. They lived for a short time in rented premises at Bega, then in a house on a dairy farm at Numbugga. In June 1999 the mother bought a property at Wolumla. At first the family stayed in a shed built on the Wolumla property, a double garage partitioned by furniture into sleeping and living areas with an adjoining tent as a bathing area, while their house was being built. They moved into the house in December 1999. After their mother moved to New South Wales the children’s father saw them monthly (fortnightly for the first six months), and the children spent their school holidays with their father in Victoria. The appellant suffered from a back complaint, and did not work in employment during this time. From December 1998 to June 1999 the mother worked in Bega four days a week from 10 am until 4 pm. She did manual work at the Wolumla property as the house was being built, and after completion of the house worked at night (8 pm – 12 pm) between April and July 2000. Over the whole period the appellant left, as a result of arguments with the mother, on five occasions each for some days or weeks. On 11 April 2001, following another argument, he left and did not return. The complainant first told her mother of the appellant’s conduct on 17 May 2001. The mother then went to the police.The Crown case In chronological order, the charges against the appellant were in summary as follows. Count 1:At Numbugga, when the complainant was five or six years old, that the appellant took her hand while he was lying on his bed and used it to masturbate him (aggravated indecent assault). Count 2:On the same occasion, that after the complainant left the appellant caused her to return and the same occurred (aggravated indecent assault).Count 3:In the shed at Wolumla, when the complainant was six years old, that after the complainant had had a bath the appellant put her on the top bunk in the children’s sleeping area and licked her vagina (sexual intercourse).Count 4:In the shed at Wolumla, when the complainant was six years old, that the appellant took her onto the master bed and put his penis in her mouth (sexual intercourse).Count 5:In the house at Wolumla, when the complainant was six or seven years old, that the appellant took her into the master bedroom and made her rub his penis (aggravated indecent assault).Count 6:On the same occasion, that the appellant took the complainant’s clothes off and sat her on top of himself and rubbed his penis along the outside of her vagina (aggravated indecent assault).Count 7:On the same occasion, that the appellant masturbated himself in front of the complainant until he ejaculated (aggravated indecency). Count 8: In the house at Wolumla, when the complainant was eight years old, that on the couch in the lounge room the appellant took the complainant’s hand and used it to masturbate him (aggravated indecent assault).Count 9:In the house at Wolumla, when the complainant was eight years old, that in the kitchen the appellant made the complainant masturbate him until he ejaculated (aggravated indecent assault).Count 10:In the house at Wolumla, when the complainant was eight years old, that the appellant pulled the complainant from the floor onto the couch in the lounge room where he made her masturbate him (aggravated indecent assault).

Evidence

Evidence Before The Court

The Crown Prosecutor submitted to the judge that “this kind of questioning” was impermissible under s 293 of the Criminal Procedure Act 1986, in that it was “putting to this witness a sexual experience with another person other than the accused”. It is convenient at this point to set out s 293 so far as its terms might be material in the appeal -“293 Admissibility of evidence relating to sexual experience(1)This section applies to proceedings in respect of a prescribed sexual offence.(2)Evidence relating to the sexual reputation of the complainant is inadmissible.(3)Evidence that discloses or implies: (a)that the complainant has or may have had sexual experience or a lack of sexual experience, or(b)has or may have taken part or not taken part in any sexual activity,is inadmissible.(4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and(ii)is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,(b)if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,…(f)if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.(5) A witness must not be asked: (a)to give evidence that is inadmissible under subsection (2) or (3), or(b)by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.(6) If the court is satisfied: (a)that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i)had sexual experience, or a lack of sexual experience, of a general or specified nature, or(ii)had taken part in, or not taken part in, sexual activity of a general or specified nature, and(b)the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.(7)On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.(8)If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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