JCS v REGINA , JMS v REGINA, REGINA v JCS, REGINA v JMS

[17]

The prosecution case 6 The complainant was born on 8 June 1984. She lived with her younger sister, BS, and the appellants. JCS, her step-father, married her mother a year after she was born. Her step-brother, DR and his two children occasionally stayed at the house. Until June 2000, the complainant had shared a bedroom with her younger sister. She had two elder brothers who were not living at the house at the time. 7 The complainant suffers from a genetic condition, ectodermal dysplasia, which she inherited from her mother, who suffers from it to a lesser degree. As a result of the condition the complainant had significant facial disfigurement, affecting her skin, ears, teeth and hair, and had no breast tissue or nipples. 8 The complainant had an unhappy childhood, was teased about her appearance at school, and left at the age of 15. There was evidence that in the period leading up to her 16th birthday she had experienced difficulties at home and did not get along well with her mother. 9 The imprisonment was alleged to have occurred in a bedroom at the family home for a period of about 22 months. The Crown alleged that sometime around the complainant's 16th birthday, which was on 8 June 2000, the appellants took steps to confine the complainant to her bedroom. 10 The Crown case was that the complainant was confined by placing a lock on the exterior of the door and on the window. When a search warrant was executed by Detective Sergeant Van Leeuwen on 17 April 2002, he found a lock on the window and the complainant's mother admitted that the key was kept in the kitchen cupboard. A trampoline was also pushed up against the window shading it from the outside. 11 Detective Van Leewan also noticed that the light globe in the room had been removed. The complainant's mother claimed the fitting did not work, although it did work when tested. There was evidence that the door lock had been moved at some time to a higher position on the doorjamb. Detective Van Leeuwan found polyester glass fibre resin smeared onto the jamb in a position which suggested that the holes had been filled after a slide-bolt securing the door had been removed. It was the Crown case that after the complainant's escape the appellants removed the door lock and attempted to conceal the holes with filler. 12 The complainant's evidence established that she was permitted to leave the room to use the toilet, was provided with a few changes of clothes, and showered infrequently. During the period of her alleged confinement she was provided with food once a day, but it was alleged that the food she was given was inadequate. The complainant also recalled being given Phenergan to make her sleep after the meal, and she said that much of her time in the room was spent asleep. 13 There was evidence that appellants told others, including MC, a neighbour, and PB, a family friend, that the complainant was away or staying with relatives interstate to explain why she was not present at any social occasions, including Christmas and birthdays. The complainant's aunt on her mother's side, KR, gave evidence that she did not see the complainant during the period, although her general contact with her sister's family had ceased in 1999. The complainant's brother's girlfriend, DS, had been at the house a number of times between June 2000 and April 2002 and, although she thought she heard noises coming from the room, the door was always shut and she did not see the complainant. 14 The complainant allegedly escaped from the room on 17 April 2002 by breaking through the flyscreen of the partially opened window and went to the local Police Station. There she told Detective Hales that: "My mother has locked me in my bedroom for the past year and a half or two years". She was treated at Sydney Children's Hospital Campbelltown for severe malnourishment and anaemia. Dr Dunstan found that her eyes were abnormally sensitive to light, consistent with her being in a dimly lit room, and her ankles would not readily flex, consistent with her having been lying down for long periods. Dr Dunstan also found that her hygiene, dentition, exercise and mental state had been grossly neglected.

[18]

The defence case 15 The appellants did not give evidence at their trials. It was the defence case that the complainant was free to leave at any time and that the appellants did not jointly agree to imprison her. The appellants maintained that the complainant had invented a story in order to be allowed to live with her aunt KR. The appellant JMS, the mother, also argued that the complainant may have been influenced by her knowledge of a media organisation's offer to pay $20,000 for her story. It was the appellant's case that her physical state upon presenting at Campbelltown Hospital was due to a refusal to eat or undergo medical treatment. 16 The appellants relied upon a letter allegedly written by the complainant at the relevant time, in which she apologises 'for the past and all the very stupid, unforgivable things', praising and apologising to her mother and saying 'you are the best family in the world and I could never find a better one'. The complainant remembered writing a letter of this kind 'after I'd been in my room for a while'. In the first trial, she agreed that she had written the letter. 17 In May 1998 the complainant wrote a letter to her aunt KR, stating that she did not want to live at home any more, that she was made to sit in the laundry until midnight and that she was not given warm clothes. This was subsequently the subject of a Department of Community Services investigation, which found, upon visiting the complainant's home, that the allegations were unsubstantiated. 18 The appellant JCS's sister-in-law, TLS gave evidence that the complainant and her mother began to argue at about the beginning of 2000, because of possible plans to move the family to Queensland. She gave evidence that she saw the complainant while visiting the house, until October 2001, when the appellants separated. She gave evidence that the complainant ate with the family and slept in a room with her sister at this time. TLS also stated the the complainant had come to stay with her shortly before her 16th birthday, which she initially said was in October, and then said was in December. Appeals against conviction 19 All the grounds for appeal against conviction are common to both appellants, except the first, which is only raised by JMS, the mother.

[19]

Ground 1: JMS (the mother): The trial miscarried due to a defect in the indictment 20 The appellant, JMS submitted that the second count on the indictment should have read: "That JMS … unlawfully and injuriously imprisoned [the complainant] and detained her against her will". This wording was drawn from Archbold Criminal Pleading and Practice 2005 at 19-336. 21 It was submitted that as a result of the omission of the words "injuriously" and "detained her against her will" the jury were not directed in relation to essential ingredients of the offence. The suggested importance of the omission of "injuriously" was that it may have led the jury to place additional weight on expert evidence of alternative causes for the physical state in which the complainant presented at the hospital. The suggested importance of the omission of "detained against her will" was that the jury was not required to resolve the problem of evidence given by the complainant suggesting that she was not assaulted or threatened, and that she may on occasions have been free to leave the house. 22 An indictment must set out an offence known to law, including all its essential elements together with sufficient particulars (See Ex Parte Lovell; Re Buckley (1938) SR (NSW) 153 at 166. The essential element of the offence of unlawful imprisonment is a restraint of liberty. It is not essential to prove that the restraint was against the person's will or 'injurious.' It may be the result of a trick or fraud or even without the person's knowledge. (See R v Awang [2004] QCA 152 at [2]; MacPherson v Brown (1975) 12 SASR 184 at 196-7 and the discussion in GO v The Queen (1996) 102 FLR 299 at 319). Section 16(1)(b) of the Criminal Procedure Act 1986 NSW provides that an "indictment is not … defective" merely "for want of any averment of any matter unnecessary to be proved or necessarily implied." The indictment in the present case did set out the essential elements of the offence and was not defective. 23 It was submitted that the indictment was also defective because it pleaded a conjoint offence even though the appellant, JMS's plea was separately entered. It is well established that "indictments are to be read jointly and severally" (Street J in R v Fenwick (1953) 54 SR (NSW) 147). Where a single count on an indictment charges two or more persons with an offence it alleges "a separate offence committed on the same occasion by each defendant as part of the same transaction" (Taylor CJ at CL R v McConnell [1977] 1 NSWLR 714 at 720; See also R v Villar [2004] NSWCCA 302 at [36]-[46]; DPP v Merriman [1973] AC 584). The indictment cannot be defective by reason of its joint charge against the appellants. 24 Ground 1 of the appeal of JMS is not made out.

[28]

In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention [96]." 26 In the present matter, the appellants submitted that the verdicts were unreasonable because it was not open to the jury to accept the complainant as a reliable witness due to the inconsistencies in her account of her incarceration and her evidence generally. 27 The appellants point to inconsistencies in the complainant's claim that she was detained in the room for 22 months. They emphasise that the complainant did not give evidence about the initial occasion when she was locked in the room or the exact date on which it occurred. The complainant could not recall anything being said about her staying in her bedroom. However, she did recall hearing her parents fix the bolt to her bedroom door. 28 The complainant admitted in cross-examination that there may have been at least one occasion when she was alone in the house. The complainant's sister did not lock the door when they were together in the house and there were occasions when the complainant could have left the house, especially when alone with her sister. The complainant gave evidence that she knew there was a telephone and how to dial the emergency number, but made no attempt to do so. She was from time to time allowed to watch television with her sister or M, one of the children who visited the house. The complainant said that she did try to leave the house, but was unable to say when she had made this attempt. 29 The appellants also drew attention to other inconsistencies in the complainant's evidence bearing upon the complainant's reliability. These included: the complainant's admission to having been dishonest in the past; the letter written to her Aunt KR in 1998, which resulted in a Department of Community Services investigation which did not substantiate any of the allegations of mistreatment made in the letter; discrepancies in her evidence as to when her relationship with her mother deteriorated and whether she had refused to eat to punish her mother; and the location where her sister slept in the house. 30 The Crown argued that it did not matter that the complainant could not remember the exact date on which the offence was commenced since she placed her incarceration within a month after her sixteenth birthday. In addition, the complainant did recall hearing the slide-bolt being affixed to the door whilst she was in the bathroom. In relation to her opportunity to leave the house, the Crown emphasised that the complainant explained: "well she wasn't exactly just going to let me walk out of the door. I didn't know where my parents were, if they were on their way home, coming home. I didn't know where to go what to do." It was the complainant's evidence that during the 22 months, she never felt that an attempt to escape would have been successful. 31 The Crown submitted that there was nothing in the inconsistencies raised by the appellants that went so far as to demonstrate that her evidence was inherently unreliable. The Crown also pointed to evidence supporting the complainant's account of events including: the evidence of the light globe being removed and the window being obscured, the fact that a slip-lock had been on the door and recently removed, the torn flyscreen, the lock on the bedroom window, the evidence of her aunt KR, her brother's girlfriend, the neighbour and the family friend all of whom gave evidence that they had not seen the complainant during the relevant period. 32 Whether or not the fact that the complainant could not recall the exact date of her incarceration indicated that she had not been imprisoned was a matter for the jury. The evidence that she may have been free to leave, but did not take the opportunity to escape was also to be evaluated by the jury having regard to the whole of the evidence. To my mind it was open to the jury to be satisfied beyond reasonable doubt that the complainant had been unlawfully imprisoned. 33 The fact that there may have been some inconsistencies in the evidence does not mean that the verdict was unreasonable (see R v DBG (2002) 133 A Crim R 227 at [65] and [69]). It was for the jury to assess the impact, if any, of the inconsistencies and determine whether to accept the complainant's evidence in spite of them. 34 It was further submitted that the acquittal on count 1 was inconsistent with the verdict on count two, because proof of both charges depended on the acceptance of the complainant's evidence. It was argued that since most of the complainant's evidence related to the failure to provide sufficient food, and the appellants were acquitted of this charge, then the jury must have rejected the complainant's evidence. 35 The trial judge was careful to direct the jury to give separate consideration to the evidence in relation to each of the counts. The complainant gave evidence that at times during the relevant period she had refused to eat, and that on occasions she was permitted to eat with the family. However, she was adamant that she was not permitted to leave the premises from June 2000 to April 2001. The trial judge addressed the evidence with respect to the food charges in his remarks on sentence when his Honour said: 'The jury found each of the offenders not guilty of that charge. It is understandable that such a verdict was arrived at. The evidence, taken in its totality, reveals that there was some evidence that [the complainant] would not eat on occasions and would be motivated not to do so in order to "repay" her mother because she had some ill-feeling towards her mother as a result of some discontent or argument between them' 36 In these circumstances, the finding on count one did not mean that the jury had necessarily disbelieved the complainant or that all her evidence was unreliable (see MFA v The Queen (2002) 193 ALR 184 at [34]). 37 The verdict was not unreasonable and this ground of appeal should be rejected.

[30]

(i) directed the jury that there could not be restraint by omission; (ii) pointed out to the jury the distinction between persuasion and duress; and (iii) explained that to establish restraint by authority there must be evidence that the person restrained felt they were obliged to submit to that authority. 39 The trial judge's direction on the elements of the offence of unlawful imprisonment was as follows: "Members of the jury, the second count in the indictment is that between 8 June 2000 and 17 April 2002 at Macquarie Fields did unlawfully imprison [the complainant]. Members of the jury, again there are elements that have to be proved beyond reasonable doubt. There are two elements I put to you. The first element is that there was an unlawful and total restraint of the personal liberty of [the complainant] by restraining her against her will or compelling her against her will to a particular place. Members of the jury, if I might just correct myself there, it is "constraining" not "restricting". Constraining her against her will or compelling her against her will to a particular place and not leave it. An alternative meaning to that expression "unlawful and total restraint of personal liberty" includes actually confining her against her will to a particular place. I suppose the alternatives there are directing someone to go somewhere and on the basis that they are not to leave it or, alternatively, physically taking them somewhere and throwing then into the room - that is, confining them there. So you have to be satisfied beyond reasonable doubt that there was unlawful and total restraint of personal liberty of [the complainant] by wither constraining her against her will or compelling her against her will to go to a particular place or confining her against her will to a particular place. The second element is that the accused must intentionally have done so. In other words, that in the case against each accused it must be proven that he or she intended to unlawfully and totally restrain the personal liberty of [the complainant]." 40 The elements of the common law offence of unlawful imprisonment were defined in R v Busuttil [2006] SASC 47 by Anderson J at [37] in these terms: 1. The accused acted on the occasion in question by compelling the victim to remain in a particular place without his consent and against his will; 2. That the restraint was deliberate and that the accused intended to constrain the victim from leaving; and 3. That the accused had no lawful excuse for his conduct. 41 However, as I have indicated at para [22] this description is in one respect not correct. It is not an essential element of the offence that the person be detained against their will although this may often be the case. In the context of a discussion of the relevant Northern Territory statute Asche CJ said: "If there is any doubt about this I think one may properly look at the heading: see Knight v Lambrick Contractors Ltd [1957] 1 QB 562 at 566, per Parker LJ. The heading is "Deprivation of Liberty".

[31]

The distinction therefore is not to be sought in the words "confines or detains ... or otherwise". That is, one does not look for some expression other than "confines" or "detains" to read with "or otherwise". The distinction is in the words "against his will or otherwise deprives another of his personal liberty". The words "or otherwise" are there to cover cases where the Act recognises, as the common law recognised, that there can be unlawful detentions of personal liberty even if it cannot be shown that such detention was against the will of the victim. Such cases can be easily imagined. Insane or very ill persons or very young children may not possess the capacity to consent. A drunken or drugged person may have temporarily lost the capacity to give consent or give a consent which is a real consent. Consent may be obtained by fraud or a trick. A person may be unlawfully deprived of his liberty without his knowledge; for example, if he is locked in while asleep, for, even though the door be unlocked before he wakes, that period between locking and unlocking could still constitute a deprivation of personal liberty. Many of these examples are considered by Atkin LJ (as he (1990) 102 FLR 299 at 320 then was) in Meering v Grahame White Aviation Co Ltd (1919) 122 LT 44 at 53-54. His Lordship said: 'It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious and while he is a lunatic ... So a man might in fact, to my mind, be imprisoned by having the key of a door turned against him so that he is imprisoned in a room in fact although he does not know that the key has been turned." 42 The appellants submitted that His Honour was in error in failing to direct the jury that they had to be satisfied beyond reasonable doubt that the complainant remained in the room for the whole period as a direct result of the appellants' actions, rather than because of what were described as her own misguided beliefs. The Crown responded that it was unnecessary for the prosecution to prove that each appellant was directly involved in the detention of the complainant for the entire period and, furthermore, that there was sufficient evidence that the appellants' actions justified the complainant's belief that she was not free to leave. 43 It is unnecessary for the trial judge do other than clearly state the relevant legal principles and direct the jury on all the elements of the offence which relate to the particular facts and issues in dispute (see The Queen v Chai [2002] HCA 12 at [18]; R v Williams (1990) 50 A Crim R 213 at 214). Accordingly, it was not necessary for his Honour to explore the legal complexities of the offence beyond the matters that the jury was required to consider having regard to the factual allegations made in the Crown case. 44 It is apparent that by telling the jury that they had to be satisfied that the complainant had been held against her will his Honour went beyond the essential elements of the offence. However, all this meant was that an additional and unnecessary burden was imposed on the Crown. 45 In my opinion his Honour's directions otherwise adequately identified the relevant elements of the offence. The jury were entitled to conclude that, by reason of direction given to the complainant and her acceptance that she was required to obey the appellants, the offence was made out. 46 The appellant further argued that His Honour's directions were confusing and misleading because they gave examples not relevant to the present case. The particular passage in the summing-up which the appellant submitted was inappropriate was: "I suppose the alternatives there are directing someone to go somewhere and on the basis that they are not to leave, or, alternatively, physically taking them somewhere and throwing them into the room." 47 In my opinion, in the context of his Honour's directions, these were merely examples of the meaning of the words "constraining" and "restraining". The jury could not have been misled. 48 The appellants also argued that his Honour's directions confused the assertion that the complainant was not free to leave with her assertion that she believed she would have been restrained from leaving. Attention is drawn to the following passage: "As I understand the prosecutor's case in this matter, it is not suggested that [the appellants] directed that [the complainant] must go to her room and not come out. The words were not expressed according to the Crown's case. What occurred, however, was that she went to her room and was locked in her room and was only allowed out of the room, with some exceptions, to go to the toilet.

[32]

Members of the jury, the Crown's case on opening to you was that the unlawful imprisonment occurred in the bedroom of the home in [the complainant's bedroom] - that was what the Crown put to you as the particular place. The Crown's case, was I understand it, is that the occasions that [the complainant] left that particular place she still remained imprisoned in that her personal liberty was unlawfully and totally restrained - she was not free to leave. If she had attempted to leave, her belief was she would have been restrained from leaving. That is why the Crown has put to you that particular case. I will come later to the arguments put to you on behalf of the accused that, in fact, [the complainant] had the opportunity to leave and in that regard could not be considered to be unlawfully and totally restrained as regards her personal liberty. 49 In my opinion this submission cannot be accepted. This passage from his Honour's summing up is a summary of the Crown's argument and supporting evidence. His Honour clearly indicated that it was for the jury to determine whether the complainant was unlawfully imprisoned, taking into account the fact that she was occasionally allowed to leave the room. 50 The appellant further submitted that his Honour's statement that "If she had attempted to leave, her belief was that she would have been restrained from leaving" was not supported by the evidence, and that the complainant's evidence only went so far as to establish that she had no reason to believe that any attempt to escape would have been successful. However, as I have indicated, his Honour made the observation in the context of summarising the Crown case. As the quoted passage indicates his Honour dealt at a later time with the appellants' arguments in relation to the approach which should be taken to the relevant evidence. I do not believe that his Honour's direction could have confused or misled the jury in any way. 51 Counsel for the appellants did not raise any of these matters when his Honour invited submissions at the conclusion of his summing up, and accordingly Rule 4 of the Criminal Appeal Rules applies. Leave to rely on this ground should be refused.

[33]

Ground 4: JMS (the mother): Ground 3: JCS (the step-father): The trial judge erred in his directions to the jury on intent 52 His Honour's directions in relation to intent were as follows: "The second element is that the accused must intentionally have done so. In other words, that in the case against each accused it must be proven that he or she intended to unlawfully and totally restrain the personal liberty of [the complainant]. Concepts, members of the jury, of intention are entirely, of course, a matter for you. Intent and intention are very familiar words. In the legal context they carry their original meaning. Intention may be inferred or deduced from the circumstances from which the detention occurred and from the conduct of an accused before or at the time or after he or she did a specific act. Whatever a person says about his or her intention may be looked at for the purpose of finding out what that intention was, in fact, at the relevant time. In some cases, however, a person's actions may themselves provide the most convincing evidence of his or her intention. Where a specific result is the obvious and inevitable consequence of a person's act and when that person deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving the specific result. In other words, there can be expressions by a person as to what that person intends to happen. More frequently, you might think, people do not express verbally what they intend to happen but when you look at their actions, you can see what their intention was." 53 Later in the summing up, his Honour returned to the issue, saying: "Members of the jury, there was one other matter that I did direct you about intention and I may have, by a slip of the tongue, not accurately reflected what the law is and if I may just repeat that about a person's intention: Intention may be inferred or deduced from the circumstances in which something is done and from the conduct of the accused before, at the time or after the happening of a specific event. Whatever a person says about his or her intention may be looked at for the purposes of finding out what exactly that intention was at the relevant time. In some cases a person's act may themselves provide the most convincing evidence of his or her intention. Where a specific result is the obvious and inevitable consequence of a person's act and where he or she deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving that specific result. But intention, as I have put to you, may be inferred or deduced from the circumstances in which the offence occurred and from the conduct of the accused. In other words, from what one can say and also from what one does and the circumstances in which one does it." 54 The appellants complain that when his Honour later referred to the Crown case he misdirected the jury by indicating to them that they could infer the necessary intention of the appellants from the belief of the complainant that she would have been restrained from leaving the premises. 55 The direction complained of is set out at [46] above. 56 To my mind this submission reflects a misunderstanding of the direction which his Honour gave. The reference in the later direction to the complainant's belief was not made with reference to the intent of the appellants. Rather his Honour was, in my view correctly, identifying the way in which the Crown put its case. The actions, including no doubt words of the appellants had effectively constrained the complainant, inter alia, by inducing in her a belief that she could not leave. 57 The appellants separately complain that the trial judge did not adequately explain the reasoning process for the drawing of inferences relevant to the appellants' intention. However, a trial judge has no obligation to give directions on the drawing of inferences, where the inference is as to the accused's state of mind. As Hunt J said in R v Tillott (1991) 53 A Crim R 46 (Gleeson CJ and Samuels JA agreeing) at 50: "In the present case, it is necessary to look first at the extent to which the actions of the two accused (as opposed to the intention with which they were done) were to be established by circumstantial evidence. This was not, in my opinion, a case in which a circumstantial evidence direction would have been appropriate in relation to those actions. It is true that certain inferences were required in relation to the physical acts done, but the central issue in the case was whether the appellant was a party to a joint enterprise with Wilson to commit an armed robbery of the Auburn Hotel. That was an issue relating to the appellant's state of mind. The one situation in which it has certainly not been the practice to give a circumstantial evidence direction is where the only inference (or the only substantial inference) which has to be drawn is one as to the accused's state of mind. Where (as in the present case) there is no evidence by way of admission as to what an accused's state of mind was, that state of mind must always be established by way of inference -- usually from what the accused has said or done; a person's actions often provide the most convincing evidence of the intention with which he does those actions. In such cases, that practice has existed because no circumstantial evidence direction is required by law." 58 The Crown cases were not prosecuted by reference to circumstantial evidence with respect to the appellants' actions. Inferences were only required to be drawn with respect to their respective states of mind. A direction on the drawing of inferences was not required and none was sought at the trial. 59 Leave under Rule 4 to rely on this ground should be refused.

[38]

a) The tender of an alleged letter to the complainant's mother 67 The appellants submitted that the judge erred in rejecting the tender of a letter that the defence alleged had been written by the complainant and allegedly contained a prior inconsistent statement (see s 43 of the Evidence Act 1995). In cross-examination of the complainant, the letter she sent to her aunt on her mother's side, KR, in May 1998, which was later the subject of the DOCS investigation, was admitted into evidence. 68 Counsel then sought the tender of the rejected letter, which, it was alleged, was also written by the complainant. When shown the letter, the complainant totally denied writing or causing the letter to be written. Later, the following exchange occurred in which the contents of the letter were effectively admitted into evidence: "SMITH: Q. I just want to go back through some questions and answers that you were asked and gave on 2 March 2004. May it please the Court at page 133 at line 29, 'Q. Now have a look at this please, is that a letter you wrote? A. I don't recall this letter, it's possible that I could have wrote, but I don't remember it at all. Q. It's possible that you could have wrote it? A. Yes. Q. Looks like your handwriting? A. Yes. Q. And was that letter intended for your mum? A. I am not sure, as I said I don't remember this letter at all. Q. You agreed with me earlier that the friend who you got to write the letter to [KR] was a young girl called H, is that right? A. Yes. Q. In the document that I've just put before you, you don't deny that this is your letter, you're just saying now that you can't remember writing, is that right? A. Yes. Q. And in that letter it says, 'I've been looking for you all day, I just wanted to tell you about the letter. First of all I didn't write it, well I wrote it on a rough piece of papers and H wrote it neater on the piece of paper.' Now is that a reference to the letter that you got H to write which went to [KR]? A. Yes. Q. The letter where you made this accusations against you mum? A. Yes. Q. It goes on, 'and the letter should be the other way around, really it's me that is killing my mum, mentally because I am so rude, disrespectful and rude, dishonest and deceiving and was very selfish of me to write something so disrespectful and untrue I didn't think it would cause so much trouble and heartbreak for my mum and am very sorry for causing everyone all the trouble that I have caused. My mum asked me yesterday to look deep into my heart and tell her really what I wanted to happen and wherever I want it happen. Whether I wanted to stay with her or go to [KR] And I said I wanted to stay at home and she said, okay. So me and her are like old buddies and I am very happy because she put up with me for this long and is still willing to keep me in her family after that very untrue and selfish letter, thanks ….' That's the letter you wrote to your mum, isn't it? A. As I said, I don't remember the letter at all it's not familiar to me." You were asked those questions and gave those answers, correct? A. Yes. Q. When you were asked those questions and gave those answers you understood that the questions and answers were relating to the letter that I've just shown you, correct? A. Yes. Q. I suggest to you that that is a letter that you wrote? A. No." 69 The Crown objected to the tender of the letter on the basis that the witness had not adopted it as her letter. The issue of the admissibility of this second letter was argued in the absence of the jury. The trial judge ruled that it was inadmissible because Counsel had not informed the witness of the provenance of the letter as required under s 43(2)(a). The following exchange with Counsel makes his Honour's reasoning clear: "HIS HONOUR: Her evidence is in this court that she said that she hadn't written it and it wasn't her handwriting. In the lower court she said I don't remember the letter at all, it's not familiar to me. Then she's asked can she deny it's hers. She says no. On the state of that evidence do you say a jury could conclude she had written it. SMITH: Yes. HIS HONOUR: Without other evidence? SMITH: With the evidence I've referred to in the letter. HIS HONOUR: That would mean would it not that in a case unassociated with this if one were to in similar circumstances to this take the letter written by the friend and a year or so after the committal for trial, draft out a letter in similar handwriting in note form and you show it to a witness and the witness says I don't remember it, it's not familiar to me, I can't deny that I wrote it. You say that would then be admissible and a jury could conclude that that letter in the circumstances of which I said, which is a forgery, was reliable on that evidence. SMITH: It may not be, but that respectfully is different factually to the case here. Can I expand on my submission in this case. HIS HONOUR: You haven't revealed to her the source of the document. I assume that you would be able to prove the source of it. You've cross-examined about the Department of Community Services and the like. I am unclear from the portions you've quoted from it at what stage these things are being said about 'we are not like old buddies' or words to that effect. I wondered whether it was something that occurs as a result of the Department of Community Services investigation, but as regards provenance of the document I assume you'd be in a position to establish its provenance. The Crown has objected to it. There is no agreement as to its provenance. The state of the evidence in my view does not entitle me to admit it, because the jury - you say the jury can look at the exhibit 1 and therefore infer that the witness wrote this piece of paper. I regret that I'm against you from your point of view I regret it because I don't think the jury can infer that from the material that you have put before the jury. In my view it would be a matter of speculation for the jury to conclude that it had been written by the witness." 70 The appellants submitted that there was sufficient material in the letter's content for the jury to infer its authorship, and that it was important in establishing a pattern of denials and 'lack of recall' in the complainant's evidence. 71 No evidence was led as to the provenance of the letter and the Crown did not concede that it was part of the Department of Community Services file. I am satisfied that his Honour correctly applied s 43 and that, without knowing the provenance of the letter, it could not be admitted at that point in the trial.

[48]

Crown appeals against sentences 82 The Crown submitted that the sentences and non-parole periods imposed on the respondents do not adequately reflect the objective gravity of the offence and the need for general deterrence. The Crown submitted that a period of confinement of 22 months far exceeded the minimum period necessary to constitute the offence, increasing its objective gravity. In support of this submission the Crown referred to two recent cases involving unlawful imprisonment in NSW, both of which involved sentences of 2 years (See R v Colebrook [1999] NSWCCA 262; and R v Bourke [2000] NSWCCA 414). Although the respondents were not convicted of failing to provide necessary food, the Crown also submitted that the complainant's physical condition at the conclusion of her confinement added to the gravity of the offence. 83 The respondents submitted that the two cases referred to by the Crown both involve violent assaults and are not comparable or useful. The respondent JCS emphasised his Honour's finding that he was 'satisfied on the evidence … that each of the offenders was not seeking to cause physical harm … There was no physical beatings no violence whatsoever'. The respondents also submitted, that his Honour clearly took the duration of the complainant's imprisonment into account. 84 The Crown also submitted that the sentencing judge had erred by taking mitigating factors into account for the purpose of calculating the head-sentences as well as the non-parole periods and therefore effectively "double-counted" (See R v Fidow [2004] NSWCCA 172). The non-parole periods of 6 months for JCS and 9 months for JMS, represent 40% of the total term. While, his Honour found special circumstances in both cases, the non-parole periods are a substantially below the statutory norm, and the Crown submitted that this is indicative of error. 85 The Crown also submitted that his Honour erred in treating the difficulties involved in raising the complainant as a mitigating factor rather than an aggravating factor due to her vulnerability. In this respect his Honour said: "I take into account, in relation to both [JMS] and [JCS], that the court must have regard for the difficulties that they would have encountered in raising children who were perceived by others to look unusual or abnormal. [JCS], the evidence satisfies me, has been a very hard worker who has supported his family. The evidence in respect of [JMS] also supports a similarly favourable view. In the course of argument I have observed that it is easy for one to say that one understands how difficult it must be to live in a community when, through physical deformity, you appear very different to what is said to be the normal person. But no amount of attempting to understand what it would be like would enable one truly to understand. Only [JCS] and [JMS], who have had to walk that journey, would know the difficulties they would encounter and how they would have to respond to the cruel observations of children who have said something unkind about their children. The whole family has had a terrible burden, in my view, and nothing I have said should be taken as criticism of them in trying to do the best for their family." 86 In response to these submissions the respondents submitted that error is not self-evident. They argued that subjective matters including the lack of relevant criminal records, good character references, and the negligible prospect of reoffending were sufficiently persuasive to warrant a lower non-parole period. 87 The Crown also submitted that the complainant's age and condition made her a vulnerable person within the meaning of s 21A(2)(l) of the Crimes (Sentencing Procedure Act) 1999, and this should have been regarded as an aggravating factor. 88 Although there is some force in this argument, it is necessary to examine his Honour's particular remarks. His Honour said: "There is a general principle as to how the law operates concerning the protection of young children … Many parents in our community regrettably have the added burden of having disabled children or difficult children. The community does not accept that confining such a child to his or her room is remotely acceptable behaviour." 89 From this passage I infer that his Honour accepted that the complainant's age and condition was an aggravating factor. 90 The Crown further submitted that the sentences were unduly lenient by reason that they were ordered to be served through periodic detention (See R v Hallocoglu (1992) 29 NSWLR 67 at 73.) The Crown submitted that a sentence of periodic detention had negligible deterrent force.

JCS v REGINA , JMS v REGINA, REGINA v JCS, REGINA v JMS - [2006] NSWCCA 221 - NSWCCA 2006 case summary — Zoe

At a glance

Court

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Judgment (51 paragraphs)

Cases Cited (20)

Cited By (1)