LEE v R

COUNSEL: G D Wendler - Applicant S Dowling - Respondent/Crown

SOLICITORS: Galloways - Applicant Solicitor for Public Prosecutions - Respondent/Crown

IN THE COURT OF CRIMINAL APPEAL CCA 2007/1346

SPIGELMAN CJ McCLELLAN CJ at CL GROVE J

1 SPIGELMAN CJ: I agree with Grove J. I wish to add one observation with respect to Ground 2. 2 No objection was taken at the trial to his Honour's observations to the jury explaining why the Crown would cross-examine its own witness. The Crown did not, however, seek to rely on r 4 of the Criminal Appeal Rules with respect to Ground 2. In contrast it did rely on r 4 with respect to Ground 3. 3 The subject matter of Ground 3 was clearly an "omission to direct" within r 4. However, the observations which are the subject of Ground 2 were also "a direction" within that rule.

4 In the usual case directions to the jury are found in a discrete part of the proceedings referred to as the "summing-up". However a "direction" may occur at any time. The word "direction" should not be narrowly construed. The word should be understood as encompassing any formal explanation by the judge to the jury as to the course of the trial. It should not be understood as limited to some kind of formal instruction to the jury as to how it should proceed. 5 If trial counsel, who strenuously objected to the Crown being granted leave to cross-examine, had seen any difficulty with his Honour's observations in this respect it was a matter that could readily have been raised at the time and, if at all appropriate, readily resolved. The significance of r 4 for the proper administration of criminal justice in this State has frequently been emphasised. (See, for example, the series of authorities summarised by Heydon JA in R v Button & Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242 at [31]-[35].) 6 For the reasons given by Grove J I would, in any event, reject Ground 2. 7 McCLELLAN CJ at CL: I agree with Grove J and the additional observations of the Chief Justice. 8 GROVE J: The appellant was convicted following a trial before Armitage DCJ and a jury at Penrith District Court on two counts of indecent assault and one count of having sexual intercourse without consent, knowing that the complainant was not consenting. The three offences were alleged to have occurred in the course of one incident on the night of 1st/2nd July 2007 and, for present purposes, it is not necessary to discriminate between them. His Honour passed sentence on the appellant but the appeal is limited to challenge against conviction. 9 Extension of time for lodging the appeal is required. Having regard to the content of the affidavit of Abbas Soukie of 24 June 2009 I would grant the necessary extension. 10 The complainant, KT, was in a relationship with Scott, one of the appellant's twin sons and they had been residing in a "granny flat" at the rear of a house which was ordinarily occupied by the appellant, his de facto wife Leanne Montgomery, the other twin Michael and the appellant's twelve year old stepdaughter. At the time of the alleged offences, Scott was away from the premises but there was present a friend of the family Erin McLachlan (known as Barney) who was principally located in a bedroom playing with a computer amusement device. 11 KT and Scott had been residing together in the granny flat for about three weeks. The appellant and Leanne Montgomery were concerned about KT's failure to contribute money for board which she had been requested to make. 12 On Sunday 1 July 2007 the appellant and others were at the premises working on a car and they were consuming intoxicating liquor while they were so doing. Shortly after 3pm Leanne Montgomery arrived home from work after which she prepared an evening meal. Later, dinner having been consumed by some of them, she and the appellant sat to watch television and consumed some drinks. Her observation was that the appellant was drinking either bourbon whiskey or bourbon whiskey mixers. 13 At about 11pm Leanne Montgomery retired to her bedroom and continued watching a particular television programme on a set which was located there. She testified that at about 11.30pm the appellant came into the room, removed his clothes and joined her in bed. They attempted to have sexual intercourse but the appellant was unable to become erect and shortly thereafter she went to sleep. She said that she had previously had similar experience of the appellant's failure to achieve erection. 14 KT's evidence was that she had not eaten with others earlier and she came from the flat into the house for that purpose at about 11pm. While attending to obtaining some food she was conversing with a girlfriend on a mobile phone. On her way back to the granny flat she continued this conversation when she encountered the appellant who was at the time sitting on some back steps. He asked to speak to her when she was finished on the phone. 15 When she terminated the call, she spoke to the appellant who indicated that they should go into the flat. She entered and sat on a lounge. The appellant followed her and shut the door. 16 The appellant then made a request of her, in crude terms, to engage in sexual activity. KT refused and reminded the appellant of her relationship with his son Scott. Despite her having said this, the appellant seized her. She was at the time wearing a pyjama top and a dressing gown. The appellant put his hands inside her clothing touching her breasts and upon exposing one of them he made a comment and commenced to suck it. These actions founded the counts of indecent assault. 17 The appellant continued his demands and KT continued her refusals. It is unnecessary for present purposes to repeat all of the detail but the appellant grasped the back of KT's head, unzipped his lower clothing and forced his erect penis into her mouth. This act of fellatio was accompanied by an ejaculation. By this time KT was crying but she swallowed and then wiped her mouth on the sleeve of her dressing gown. 18 It was an issue contested at trial but there was evidence upon which it was open to the jury to conclude that ejaculate bearing the appellant's DNA was detected on the sleeve of the dressing gown. After the incident the appellant left and KT rang her girlfriend, who, unable to contact KT's parents telephoned one Adem Aslan who said he would come and get KT. She persuaded "Barney" to assist her in exiting the house and she ran to a nearby service station where she had arranged to meet Adem Aslan. He arrived and took her to St Mary's police station where she reported what had happened to her. The appellant was arrested on 2 July 2007. He was interviewed by police and denied the allegations made by KT. He said that he had been "pretty drunk" that night but that he had been to the flat on only one occasion on the Sunday in order to get a bottle of engine oil which Scott had placed in there. He expressly denied being inside the flat late at night with KT at all. 19 The grounds of appeal all relate to the reception of evidence by Leanne Montgomery. She was called by the Crown and, having regard to her relationship with the appellant, was appropriately advised by the judge of her rights but stated that she was willing to testify. 20 The appellant relies upon three grounds of appeal:

1. The trial judge erred in law by granting the Crown leave to cross examine the witness Leanne Montgomery.

2. The Judge erred by informing the jury he had decided the witness Montgomery was 'unfavourable'.

3. The trial judge erred in law in failing to give the jury a warning concerning the leave granted to the Crown to cross examine Ms Montgomery. 21 The grounds are obviously associated and can be dealt with in sequence. 22 In relation to ground 1 the argument was focussed upon a ruling of the trial judge granting leave to the prosecutor to cross examine Ms Montgomery. Relevant provisions of the Evidence Act 1995 are: " 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or ….. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). ….. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. …. " 23 On the second day of the trial, in the absence of the jury, the prosecutor said: "TRIAL ADVOCATE: Those two witnesses who were in the house at the time are - they are the accused's wife and also the fellow who's been referred to as 'Barney'. They are people who potentially have some unfavourable evidence to the Crown's case and the Crown has it's duty, consistent with its duty will call them and we will see what happens." 24 Later on that day Ms Montgomery was called. Following her being informed of her right to decline to testify, the prosecutor led evidence in chief from her. It is common ground that her testimony was generally consistent with her statement which she had given to police on 3 July 2007. A copy of that statement was, by consent, handed up at the hearing of the appeal. It might be observed that the final paragraph (22) thereof read: "I think (KT) has a big mental illness and I don't believe that (the appellant) has assaulted her. I think she has made it up because she owes me rent money." 25 The transcript of evidence by Ms Montgomery, above referenced in summary, reads as follows: "Q So what did you do after the television show finished, did you keep watching something else? A Yeah, I just left it on and Chris come in not long after. Q Well when you say 'not long after' how long do you say after, what, after the show finished are you talking about? A Yeah. Q So this is some time around 11.30? A Yeah. Q How long after that do you say that Chris, the accused, came into the room? A It didn't seem that long. Maybe ten, fifteen minutes. It didn't seem that long at all. Q Well can I ask you this? Were you lying awake at that stage or were you going to sleep or - A No, I was still awake. Q But were you trying to go to sleep or - A No, not yet. Q Well what happened when the accused came into the room? A Came in the room, shut the door, took his clothes off and hopped into bed. Q And did you go to sleep? A No. Q What did you do? A Tried to have sex. It didn't work. I rolled over, he cuddled me and I went to sleep. Q Well when you say you tried to have sex and it didn't work what did you mean? A Well after Chris had been drinking even though he wasn't intoxicated he'd had a few, it just doesn't want to go up. Q Are you talking about - A His penis - Q -he can't get an erection, is that what you're saying? A Yeah. Q Well how long did you try to have sex for? A Maybe about ten minutes. Q And then you rolled over - A Yeah. Q -gave up effectively and went to sleep? A Yeah. " 26 Some further evidence was adduced from the witness after which the prosecutor made an application in the absence of the jury and the witness for leave to cross examine in accordance with s 38. Inter alia, he indicated that he had put defence counsel on notice that such an application was anticipated. That statement was not disputed. 27 After hearing submissions, his Honour, following an expression of reasons, ruled in the following terms: "I order pursuant to s 38 of the Evidence Act that the Crown have leave to cross-examine the witness Leanne Montgomery as to the ability of the accused to maintain an erection on the evening of 2 July 2007 and the reasons for it, as to the truth of her evidence as to attempted intercourse between herself and the accused on that evening, as to para 22 of her statement of 3 July 2007, and as to the opportunity of herself and the accused to confer regarding possible fabricated versions of the events in question between when they were informed of the complainant's allegations and when they each spoke to police." 28 When the Court was reassembled with the jury and the witness, his Honour said: "HIS HONOUR: Ladies and gentlemen and Miss Montgomery, I have decided that within a particular section of the Evidence Act the evidence of Miss Montgomery is unfavourable to the Crown in a particular respect and I have therefore given leave to the crown, after argument to cross-examine Miss Montgomery on certain limited areas of her evidence and that is why you will hear questions asked in cross-examination of the witness by the crown following which Miss Sloane will have an opportunity also to cross-examine the witness."

(This statement is the subject of the express complaint raised by ground 2). 29 It is well established that "unfavourable" used in s 38 imposes a lower threshold than the requirement that a witness be judged "hostile" before cross examination was permitted at common law. 30 In a written submission counsel for the appellant contended that the evidence of Ms Montgomery was simply inconsistent with the allegation that sexual intercourse took place in the way alleged by the complainant. So stated, it is in any event plain that the evidence would not be favourable to the Crown case. 31 Specifically however, the evidence in chief of the witness concerning the inability of the appellant to achieve an erection after consumption of an imprecise but significant amount of liquor was contradictory of the Crown case that the appellant fellated the complainant with an erect penis and ejaculated. Ms Montgomery's contradictory evidence was manifestly unfavourable to the Crown case. 32 The content of par 22 of her witness statement was, of course, not led in chief but clearly offered a basis for leave to cross examine her on credit as contemplated by s 38(2). 33 Similarly, leave to cross examine on the opportunity for discussion between Ms Montgomery and the appellant, which she had denied in chief had taken place, was appropriately comprehended within the leave granted. 34 As I understood oral submissions, counsel contended that, because the prosecutor anticipated the unfavourable evidence (and assuming rejection of his other submissions) that the prosecutor's application to cross examine was "a contrivance" and that therefore leave should be refused, because to grant it would be unfair. Reliance was, in particular, placed under s 192(2)(b) of the Evidence Act. In his reasons his Honour revealed that he had given express consideration to this and no error in his determination has been shown. 35 I would reject ground 1. 36 I turn to ground 2. The remarks by his Honour to the jury upon which this challenge was based have been set out above. It was not insignificant that they did not lead to any objection being raised by defence trial counsel, however it is now asserted that they "were tantamount to telling them that he, the judge, thought Montgomery was a liar who was in collusion with the appellant and thus should not be believed." 37 His Honour's remarks did not convey such an opinion and they could not reasonably be understood as so doing. The jury were told that by reason of the application of a statutory provision, leave was being given to the prosecutor to cross examine as his Honour had decided that her evidence was unfavourable to the Crown in a particular respect and that therefore leave was being granted to cross examine on certain limited areas of her evidence. The emphasis is added. It would have been obvious to the jury that what Ms Montgomery had said did not support the Crown contentions of the commission of offences by the appellant and that the evidence was in ordinary language unfavourable. It would have been equally obvious that questions by the prosecutor, after leave was granted, which challenged Ms Montgomery constituted cross examination and were different in form and content from the examination in chief which had taken place to that point. 38 There was neither error of law nor unfairness in what his Honour said in this instance. I would comment however by way of caution that, where a ruling is made pursuant to s 38, it is not obligatory for the jury to be informed of the detail of what has transpired and if a judge elects to comment, care should be taken to avoid the possibility of any implication that the mere making of the ruling is an adverse reflection on the creditworthiness of the witness. 39 I would reject ground 2. 40 I turn to ground 3. It was not submitted that the evidence of Ms Montgomery was either within a specific category or the kind that may be unreliable so as to attract a requirement for warning pursuant to s 165 of the Evidence Act. 41 The fact that a witness is cross examined does not cause his or her evidence to be potentially unreliable. There is no requirement in law, as the ground asserts, for a judge to give a warning to a jury concerning evidence adduced pursuant to a grant of leave to cross examine pursuant to s 38. 42 In particular his Honour was not required, as submitted by the appellant, to tell the jury that the fact that the Crown was permitted to cross examine Ms Montgomery did not mean that they should reject the evidence of the appellant's sexual dysfunction. There is no basis for concluding, as also submitted, that in some way his Honour's comments in relation to Ms Montgomery being cross examined impacted upon DNA evidence called by the appellant. His Honour made it abundantly clear that the jury were the exclusive determiners of the facts, that if they thought he had views they could disregard them and that it was for them to decide what evidence they accepted, rejected or acted upon. 43 Ground 3 is not made out. 44 I would grant the necessary extension of time for lodgement but dismiss the appeal.

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