LJW v R

[2010] NSWCCA 114

Court of Criminal Appeal (NSW)|2010-05-07|Before: Hodgson JA, Johnson J, Rothman J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-05-07

Before

Hodgson JA, Johnson J, Rothman J

Source

Original judgment source is linked above.

Judgment (97 paragraphs)

[1]

Background facts 5 It is convenient first to set out some background facts, and relate them to the Crown allegations. 6 The complainant is a boy born in late 1993. His mother GS is the sister of the appellant's wife ML. In 2006, the complainant was living with GS and his father FS in their house at Heathcote. 7 The complainant was at all material times a very close friend of ML's son GL, born in 1994. GL was the appellant's stepson. In 2006, GL was living with ML and the appellant in their house, also at Heathcote. The appellant was born in 1946. 8 In about March or April 2006, the appellant drove the complainant and GL to Muswellbrook, and the three of them stayed overnight there at the home of Kevin and Jennifer Lecky, friends of the appellant. On the second day of the visit, the appellant with the complainant and GL picked up a dog called Widget from Mrs Lecky's daughter, which was to be a pet for GL. 9 On the night after they had driven to Muswellbrook, the appellant, the complainant and GL all slept in the one bed. The Crown allegation was that on that occasion the appellant anally penetrated the complainant (count 1) and performed fellatio on him (count 2). 10 On many occasions during 2006 the appellant went to GL's house. Count 3 concerned a Crown allegation that on one of these occasions, after April 2006 but months before 31 December 2006, when the appellant and complainant were the only ones present in GL's bedroom, the appellant masturbated himself. Count 4 concerned a Crown allegation that on 31 December 2006, the appellant masturbated in the presence of the complainant in the home of MB, a friend of GL. 11 A few days before 31 December 2006, a serious verbal dispute occurred at the appellant's home between the appellant and the complainant's father FS, which resulted in the appellant phoning the police to get FS to leave his property. FS left the property before the police arrived. FS later went to Engadine Police Station, and the police took no action. 12 On the evening of 31 December 2006, the complainant's parents went with the complainant's grandparents to the city to see the New Year's Eve fireworks, leaving the complainant and GL at their home at Engadine. The parents and grandparents returned about 2 am on 1 January 2007. The Crown evidence (which it appears was not disputed) was that the complainant in the presence of GL then complained to his parents that the appellant had raped him. 13 The police then became involved, and the police recorded an interview with the complainant on 5 January 2007. They recorded an interview with GL on 7 January 2007. The police then interviewed the appellant on 18 January 2007, and the video of that interview was tendered in evidence in the case.

[2]

Outline of Crown case 14 I will briefly summarise the evidence given by the Crown witnesses. 15 The main evidence in chief of the complainant was the video of his interview on 5 January 2007. In that video the complainant said that, on the occasion of the trip to Muswellbrook, he went to bed with GL and went to sleep; and later woke up and felt the appellant's penis in his bum with the appellant pushing against him. He cried but did not say anything. The appellant's penis was going in and out; and this lasted for about ten minutes and caused pain. Then the appellant started sucking his genitals. The complainant then kicked the appellant off and ran to the bathroom crying; and wiped himself with toilet paper. When the complainant returned to the bedroom, the appellant went to the bathroom. The complainant then woke up GL, and said that the appellant was raping him and would he swap positions. GL then swapped places in the bed, putting himself between the complainant and where the appellant had been in the bed. The appellant brought them glasses of water each with a little pill in it, and the complainant did not take the pill. 16 In the video the complainant also said there were occasions when he saw the appellant playing with his penis. The most recent was on 31 December 2006 at the house of GL's friend MB. The complainant, GL and MB were upstairs in that house, and the appellant entered the room. At a time when MB had gone downstairs, the appellant pulled out his penis and started playing with it. 17 In the video the complainant also said that on an earlier occasion, the complainant was at GL's house in GL's room. GL and his mother had gone to pick up a book from the library. The appellant came into the room and started playing with himself, moving his hand round his penis. 18 The complainant gave oral evidence that, while the appellant was driving him and GL to Muswellbrook, he saw from the back seat the appellant holding his penis and moving his hand up and down in slow motion, holding the wheel in the other hand. 19 GL's main evidence in chief was also given by the video of the interview on 7 January 2007. In that video, GL said that on the occasion of the trip to Muswellbrook, after going to sleep at night he woke up to see the appellant holding himself over the complainant. GL went back to sleep. He later woke up to hear the complainant crying, and the complainant told him "he raped me". (However, in oral evidence, GL said that what the complainant had said on that occasion was "he's trying to rape me", and GL firmly adhered to that evidence.) When they went back to sleep, he swapped positions with the complainant. On New Year's Eve 2006, GL and the complainant decided to tell the complainant's parents about the matter because it was bugging them. 20 In cross-examination, GL agreed that there had been previous occasions when the complainant had stayed over at GL's house, but been a bit scared at night requiring the complainant's father to pick him up, or the appellant or GL's mother to drive him home. 21 In relation to count 4, GL said that he saw the appellant walk into the room and go to sleep on the couch, and did not see anything else. 22 GS (the complainant's mother) said that in the early hours of New Year's Day 2007, the complainant told her that the appellant had raped him, and GL was then present and confirmed it was true. 23 FS (the complainant's father) also said that the complainant had told him on that occasion that the appellant had raped him; and the complainant's grandparents also gave evidence to the same effect. 24 The complainant's parents also confirmed that there had been an argument between the appellant and FS a few days earlier, resulting in the appellant phoning the police to get FS to leave his house. 25 The complainant's father gave evidence that there were occasions when he had to pick the complainant up from the appellant's house, because the complainant could not sleep when staying there with GL. 26 Jennifer Lecky gave evidence that she remained best friends with the appellant. She said there were three other bedrooms in her house at Muswellbrook apart from her main bedroom, but one of these bedrooms had bunk beds that were usually covered with toys. She did not make any arrangements with the appellant as to who was to sleep where on that occasion, and that as far as she knew they all slept in the same room which had a queen size bed, because other beds were not disturbed. She said she was usually up most of the night and was a light sleeper when she did sleep, and that she would have been aware if she had heard a child crying and that this did not happen. She also said that there was nothing in the linen such as blood that caused her concern. Nobody had any demeanour that caused her any anxious moment or made her feel that anything happened other than that the boys had had a good time. 27 Kevin Lecky also said that he noticed nothing untoward about the boys and that no complaint was made. He too confirmed friendship with the appellant. 28 The appellant's wife gave evidence that after the occasion when the complainant and GL had gone to Muswellbrook to collect Widget, the complainant continued to come and stay at night at their house. She did not recall any occasion when she and GL had gone to the library leaving the complainant in their house. She also gave evidence of her sexual relations with the appellant. They had sex about once a month. She said the appellant had difficulty obtaining an erection as a result of a motor vehicle accident in 2000, and that as at early 2006 she assisted him to obtain an erection by manipulating his penis. It would take him about fifteen minutes to become aroused, and his penis was then not very rigid, but he was able to penetrate her vagina. 29 Detective Donaghy Lewis gave evidence of the interviews in January 2007. She also gave evidence that the only entry on the appellant's record was a low range prescribed concentration of alcohol offence in 1982.

[3]

Outline of case for the accused 30 The accused did not give evidence at the trial. His version of events was set out in the recorded interview. This is fairly summarised as follows in the Crown's Summary of Trial: As far as the sleeping arrangements at the Muswellbrook house were concerned, at the boys' request they slept in the same bed - "they asked if we could sleep in the one bed, all with pyjamas on, which we did. I know [the complainant] became disturbed during the night" and "I think I got him some milk, including myself". The Appellant said, "I don't sleep real well, I don't know whether I disturbed [the complainant] by fighting for some of the bed or some of the sheets". He said that the complainant and GL did change places (Q 41); The boys went to bed first (Q 102) but "I don't think it was much ahead of the rest of us though" (Q 103); The discussion about the sleeping arrangements was, "I said to them, 'There's a bed across the hall', and they said, 'Oh, no, we'd like to be with you if that's all right'" (Q 104); He thought that he had slept with his pyjama bottoms on and nothing on his top, but could not be sure (Q 123-4). He "might have had a singlet on or a shirt" (Q 125); He could remember that the complainant was "nearly a little teary, I don't know whether he'd had a bad dream or not" and "I'm not too sure that it wasn't with me either wrestling for some of the sheeting back or moving him over, I have five bad discs in my back and have quite a degree of trouble both sleeping and um, retaining sleep" (Q 135). He thought he had "unsettled him or disturbed him or he was um, just a bit jittery" (Q 137); He understood the complainant was now 13 years old (Q 168) [the interview took placed on 18 January 2007]; "I took a sleeping tablet um, and I thought they might have helped the kids too, but they didn't want to be in that, so they didn't" (Q 275). He offered the tablets "just in a glass of water" and they said, "'No, no, thanks'. I said, 'OK, no problem'" (Q 278). There was one tablet in each glass (Q 311); Forty-eight hours before the allegation was made by the complainant, there was an altercation between the Appellant and the complainant's father (Q 314); The Appellant had a motor vehicle accident in the past, as a result of which his wife had to go to some trouble for him to get an erection of reasonable firmness in order for him penetrate her in intercourse (Q 35) and he did not believe that he had "the capability of the firmness of an erection to penetrate a boy's bottom" (Q 351); He could not recall the complainant going to the bathroom (Q 372); In relation to Count 4, "I did go to see how the games were going with the kids at one stage of being there", but "at no time was I alone in any of the rooms with [the complainant]. If [GL] wasn't there, [MB] was there" (Q 395); In relation to Count 3, "I don't believe I would have sat on the desk, I might have rested up against the desk" as "[i]t would be unusual that I would sit on a desk if it hasn't got that sturdy a legs" (Q 436-7). He could recall at least one occasion when GL and his mother had left the house and the complainant had stayed at the house because of his love of the computer games (Q 438-40); He had received advice from his doctor about a year earlier than the interview that if he did not make some sort of effort to get an erection, he may lose the ability to get an erection altogether (Q 452-3); After they arrived at the Muswellbrook house and were walking down to a river on the property (Q 554), the complainant said to him, 'I think I saw you masturbating' on the trip up. "He told me he believes he woke up from a sleep and I was fiddling with myself" while the Appellant was driving (Q 463-70). The Appellant recalled that "I was sunning myself... it was a beautiful day, they're both asleep um, I think I was trying to, to keep some activity within my penis, if you want to call it that. ...I don't think I was out and out masturbating" (Q 472-3) and he did not ejaculate (Q 502). The complainant "just said to me, 'You know when I was asleep earlier in the car, I think I saw you masturbating'" and "I said to him, 'Oh, there's a reason', I explained it to him" (Q 555-6) and explained to the complainant, "'That's what's behind it, I'm sorry if you saw anything'" (Q 557); He did not take any Viagra on the night they stayed at the farm (Q 631). 31 In addition, in that interview the appellant said that in the afternoon after arrival at Muswellbrook, he went with Mr Lecky and the two boys to the river to check the mouth of a pump in the river. He had no swimming costume, and he stripped to the nude and went into the river to do this. The complainant and GL also went into the river, with trunks on. They splashed around for a while. The complainant took his trunks off at one time. They then returned to the bank and got dressed. 32 GL's friend MB gave evidence that on 31 December 2006 the appellant came into the room where the complainant, GL and MB were playing with computer equipment. The appellant fell asleep. MB said he did not leave the room at any time while the appellant was there, and he did not see the appellant do anything improper with his penis. 33 Associate Professor Christopher McMahon, a sexual health physician and a director of the Australian Centre for Sexual Health, gave evidence that he had performed an ultrasound test on the appellant which demonstrated the presence of mild to moderately severe penile vascular disease, that could impair the appellant's ability to sustain a firm erection. He expected that the appellant would need a prolonged period of manual stimulation to get an erection. In general, in order to achieve anal penetration, a more rigid erection was required than that needed to achieve vaginal penetration and he expected that the appellant would have a higher level of difficulty achieving penetration of an adolescent male. However, in cross-examination he agreed that if the appellant had taken Viagra on the night, it would have been possible for him to achieve an erection sufficient to penetrate a child's anus. 34 The appellant's general practitioner Dr Ayres gave evidence, confirming that the appellant had presented at his surgery in 2000 complaining of back and neck discomfort resulting from a motor vehicle accident, the pain affecting his ability to enjoy sexual intercourse. He also complained to Dr Ayres in 2002 of the loss of ability to obtain an erection that was sufficient to have satisfactory sexual intercourse. Dr Ayres prescribed Viagra, which the appellant had used once or twice without very successful results. 35 Character evidence for the appellant was given by a Mr Chuck, who had known the appellant for 55 years since he was a child.

[37]

(f) Alternatively the trial judge failed to give consideration to the exercise of discretion pursuant to s 137 Evidence Act. 44 In oral submissions, Mr Ramage pointed out, in relation to his point (a), that the trial advocate for the Crown had sought to rely on the material principally as context evidence but failing that as tendency evidence; and had not relied at all on the grounds found by the primary judge as relevant to counts 1 and 2, that is, state of mind and res gestae. 45 Mr Ramage submitted that the events in question could not be part of the res gestae, because they were not an inseparable feature of a unified sequence of events: see O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566. It was not part of the Crown case that the whole trip was a set up for sexual gratification. He further submitted that, having regard to the lapse of time between the events in the car and the events alleged in counts 1 and 2 (in the order of twelve hours) an inference of the same continuing state of mind could not be inferred. 46 I accept Mr Ramage's submission that it was no part of the Crown case that the whole trip to Muswellbrook was a set up for the purpose of sexual gratification, and the evidence in the case could not possibly have made good any such suggestion. In those circumstances, I am inclined to the view that the evidence was not admissible as part of the res gestae. I do not think there was a connected series of events that should be considered as one transaction, of which the events in the car were a part. 47 However, in my opinion the evidence was probative as evidence of a state of mind which could reasonably be inferred as having a probability of continuing from the time of the incident in the car (probably somewhere near the middle of the day) to the time of the events alleged in counts 1 and 2. 48 In R v Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 at [22]-[30], the Court (Spigelman CJ and James and Bell JJ) said this: [22] The principal submissions which were made by counsel for the appellant were that the evidence of Bakos and Oshana was "tendency evidence" falling within Pt 36 of the Evidence Act and that such evidence was not admissible to prove that Richard Adam had a tendency to act in a particular way or to have a particular state of mind, because the conditions under s 97(1)(b) and s 101(2), which would have to be satisfied before the evidence could be used for this purpose, were not satisfied and accordingly a direction that the evidence was not to be used for this purpose should have been given (s 95). It was also submitted that the principle of admissibility of evidence stated in O'Leary v The King had been abolished by the Evidence Act 1995.

[45]

[30] The reference by the Commission to Makin v The Attorney General and the quotation from the judgment of Gibbs ACJ in Markby and the references in the Reports to evidence of "previous misconduct" or "past misconduct" or "conduct on some other occasion" indicate, in our opinion, that the Commission was addressing evidence of conduct by an accused person "in the past", being conduct on some other occasion than the occasion on which the conduct charged occurred, tending to show that the accused had a particular propensity or disposition or inclination. Evidence of conduct by an accused person that falls within the O'Leary principle as being part of the same connected series of events or evidence of conduct by an accused person evincing a particular state of mind at a time so proximate to the time of the commission of the alleged offence as to permit an inference that the same state of mind continued up to the time of the offence is not evidence of conduct by an accused person "in the past" or evidence tending to show that he has a particular "disposition" or "propensity" or "inclination" and no direction that the jury should not engage in tendency reasoning is required (although in a particular case a direction of some sort might be required). 49 This raised the question in that case whether it could be rationally probative of the appellant's participation in an attack on the victim occurring sometime after 2.15 am outside a public house that the appellant had behaved aggressively towards a person other than the victim in the public house an indeterminate time before that. Unsurprisingly, the Court at [31] expressed considerable doubt as to whether this could be so. 50 However, in the present case the events in the car could rationally support an inference that on the day of the trip to Muswellbrook the appellant was in a state of mind such that he had an interest in and a lack of inhibition from engaging in sexual activity in the presence of the boys, and that there was a probability that this state of mind continued. Evidence of the events in the afternoon when the appellant and the complainant swam in the river, the appellant being naked, could tend to support the inference that the state of mind continued. Although there was evidence that the purpose of going into the river was to fix a pump, the circumstances were such that there was an available inference that, if the appellant did have a state of mind previously existing on that day such that he was interested in and was not inhibited from engaging in sexual activity in the presence of the boys, that state of mind would thereby have been reinforced. 51 In my opinion, that kind of reasoning would not be reasoning that the appellant was a type of person with a tendency to engage in sexual activity in the presence of boys. Rather, it was reasoning that, on this particular day, the appellant exhibited a state of mind displaying interest in and a lack of inhibition from such activity, a state of mind as to which it could be inferred that it was probable that it continued until the night-time of that day. 52 Contrary to par (c) in the written submissions, the trial judge did determine the counts on which the evidence would be admissible, although he did not spell this out in the initial judgment. It is clear from later events, and in particular from the directions to the jury, that he admitted it on state of mind and/or res gestae on counts 1 and 2, and as tendency evidence on counts 3 and 4. It does not appear that Mr Ramage has challenged the admissibility of the evidence as tendency evidence on counts 3 and 4, and in my opinion it did have significant probative value, within s 97(1)(b) of the Evidence Act, so that, subject to ss 101(2) and 137 of that Act, it was admissible on that basis on those counts. 53 The other challenges to the admission of this evidence concern the way the trial judge dealt with its possible prejudicial effect. In my opinion, what the trial judge said sufficiently indicates that he did address and determine the tests contained in s 101(2) and s 137; and I see no error in that determination. I do not think there was any significant prejudice to the appellant, and certainly not any unfair prejudice, in admitting this evidence as tendency evidence on counts 3 and 4 but not on counts 1 and 2.

[76]

There was no firm basis on which the judge could give this direction or make such a comment. Its effect was to impermissibly reinforce the reliability and consistency of the complainant's account. 55 In relation to all these submissions, the Crown pointed out that on the seventh day of the trial, the trial judge provided counsel with draft written directions. Over the course of the next two days there was discussion between the Bench and Bar about the draft directions. Ultimately a document in similar terms to that originally provided was provided to the jury; and those written directions were repeated and developed by the trial judge in his summing up. These grounds raise complaints about the directions given to the jury. They were not the subject of any complaint at the trial, and no re-direction was sought. Accordingly rule 4 of the Criminal Appeal Rules applies to these grounds. 56 Turning to the submission 3(a), in my opinion what the trial judge said could not reasonably have been understood as a suggestion by him that what occurred in the car could amount to a crime. 57 As regards the submission 3(b), the written and oral directions clearly set out how the jury were permitted to use evidence of the events in the car: that is, as to state of mind and res gestae in relation to counts 1 and 2, and as tendency evidence in relation to counts 3 and 4. 58 As regards the submission 3(c), the trial judge (summing up on 14 March 2008 at page 22) referred to the possibility that the appellant was "giving way to the thoughts in his mind of sexual activity ahead with the boys away from other relatives and under his control", and asked whether the conduct was that of a "reckless man driven by sexual intentions…"; and (summing up at page 36) he said "clearly, the Crown says, he had a sexual interest in the boys". 59 In the context of the whole summing up and the written directions, in my opinion these are references to what the jury might infer about the appellant's state of mind on that particular occasion, and not to some general "guilty passion". 60 As to the submission as to the need to tell the jury that they must be satisfied beyond reasonable doubt that the appellant's sexual interest was "in the complainant", in my opinion that did not apply in this case. Insofar as evidence of the events in the car went to the appellant's state of mind, it was sufficient that the state of mind was of interest in and lack of inhibition from sexual activity in the presence of the boys or either of them. Insofar as it went to propensity, it was sufficient that it went to propensity to masturbate in the presence of the boys or either of them. 61 As to ground 4, the trial judge directed that to find the appellant guilty on counts 3 and 4, the jury would need to be satisfied that the appellant did commit the act of indecency towards the complainant, and that masturbation in the presence of a child may amount to an act of indecency. In circumstances where, if the complainant's evidence were accepted, the acts in question occurred when the appellant was in the same room, the complainant was awake, and the appellant was within the complainant's line of sight, there is in my opinion no substantial inadequacy in that direction. 62 The question of whether it is a necessary ingredient in the offence that the accused person be aware that the child can see him or her has not been finally determined by the cases relied on by the appellant. In circumstances where no such direction was sought in this case, in my opinion it is not appropriate to address that question in this case. 63 As to ground 5, the appellant accepts that it can only apply to count 3. The trial judge directed the jury (summing up on 13 March 2008 at page 9) that "under the authority of the appellant": does not mean that the accused must have been the biological father or legal guardian of the child. It is sufficient if in fact he was in a relationship with the complainant where he had practical influence over him and was entitled or expected to care for or supervise him from time to time. 64 In my opinion, in the circumstances of this case, there was no error in that direction. In circumstances where the complainant was at the appellant's home, the complainant's cousin and aunt were out, and the appellant was the only adult in the house, in my opinion there was no necessity for the trial judge to draw distinctions between the first, second and third count in relation to the question of authority. I do not think it was misleading for the trial judge to say to the jury, in relation to the third count that "you may think that much of that is not in contention". 65 As regards ground 8, the evidence was that the only time that Detective Donaghy Lewis had spoken to the complainant was during the recorded interview on 5 January 2007; and it was common ground that during that interview the complainant did not allege that the appellant had pulled down his shorts. In those circumstances, there was no error in the trial judge's comment. 66 In addition to those matters, in my opinion rule 4 of the Criminal Appeal Rules applies, and leave to appeal is required. In circumstances where none of these points was taken, in my opinion leave should in any event be refused.

[94]

The discrepancy relied on was that in his oral evidence, the complainant said that the appellant was using his left hand to masturbate. 75 In my opinion, in circumstances where there was no evidence confirming the literal accuracy of the notes taken, this could not be regarded as a significant discrepancy. 76 As regards the submission 9(b), the jury were told that they had to be satisfied beyond reasonable doubt of every element of each offence; and they were also told that if they did not believe the complainant's evidence or found him to be unreliable in relation to any count, they were to acquit the appellant on the other counts. 77 It is consistent with the jury's verdict that, having regard to the evidence of Dr McMahon and the appellant's wife, and also to the evidence of GL that the initial complaint was that the appellant tried to rape the complainant, the jury were not satisfied beyond reasonable doubt of penetration. That view is consistent with the jury finding the complainant to be a generally reliable witness, particularly having regard to the directions that they were given. 78 As regards submission 9(c), in circumstances where the appellant and the complainant were alleged to be alone in the house at the time, it was open to the jury to accept the complainant's evidence of the incident beyond reasonable doubt. The tendency evidence arising from the events in the car gave some legitimate support to this finding. 79 As regards submission 9(d), the complainant's evidence was not contradicted by GL, although the jury may have regarded GL's account as somewhat tending against it. The complainant's evidence was contradicted by MB, particularly in that MB said he did not leave the room while the appellant was in it. MB's evidence suggested his recollection was poor, and there was evidence that during the trial he discussed his evidence with his parents and they had reminded him of various matters. The jury would have been justified in placing little weight on his evidence. 80 As regards submission 9(e), the occurrence and significance of the fight was put to the complainant and also to GL. Their evidence did not suggest they had any substantial reason to think that the fight would prevent the complainant and GL continuing their friendship much as before. It was open to the jury to consider that the fight would not have provided any plausible motive for the complainant and GL to make an unjustified complaint. 81 In assessing whether, on the whole of the evidence, the jury should have entertained a reasonable doubt, it is also relevant that there were significant respects in which the complainant's evidence was supported, particularly in relation to counts 1 and 2. The complainant's evidence that he was crying when he woke up was supported by GL and the appellant. GL supported the complainant's evidence that he made an immediate complaint to GL, albeit that, in GL's oral evidence, this was put in terms of an attempt to rape rather than an actual rape. GL's evidence that he saw the appellant holding himself above the complaint also gave some support to the complainant's evidence. The complainant's evidence that, after the complainant had woken up crying, he and GL swapped positions in bed, thereby placing GL between the complainant and the appellant, was supported by GL and the appellant. Finally, the incident in the car gave some support to the complainant's evidence. 82 Having regard to all these considerations, this is not in my opinion a case where it can be said that the jury ought to have entertained a reasonable doubt.