R v CRAMPTON [1999] NSWCCA 130 | Case summary

2 BARR J: The appellant appeals against a conviction entered in the District Court following his trial by jury. He was charged with two counts of committing an act of indecency with a boy named Neil Douglas McAlister, one count of indecently assaulting him and two counts of indecently assaulting a second boy, David John Lansley. The appellant was convicted of the first count but the jury were unable to agree about the others. 3 The appellant was a school teacher who taught children with learning disabilities. The complainants were two of his pupils. 4 The first count concerned an incident in which the appellant masturbated himself in the presence of Mr McAlister. 5 The second count concerned an incident in which the appellant was said to have exposed his erect penis to Mr McAlister and placed a plastic object over it. Mr Lansley also was present. 6 The basis of the third count was an incident in which the appellant was said to have required Mr McAlister to masturbate him. Mr Lansley also was present. 7 The fourth count asserted that the appellant exposed his penis to Mr Lansley, required him to expose his penis and touched his penis. Mr McAlister also was present. 8 The final count asserted that the appellant rubbed himself against Mr Lansley and handled his penis. Mr McAlister also was present. 9 According to the complainants, the events relied on for the first, second, fourth and fifth counts took place in a storeroom which led off the classroom in which the appellant taught his pupils. 10 The incident the subject of the first count happened after the appellant called Mr McAlister from the classroom to the storeroom and closed the storeroom door. After the incident was over, Mr McAlister returned to the classroom and continued with the lesson as normal. The second incident happened when the appellant called Mr McAlister and Mr Lansley into the storeroom and closed the door behind the three of them. After the act of indecency that then took place, Mr McAlister and Mr Lansley ran out of the storeroom into the classroom. 11 Although the evidence was not entirely clear, it appears that there was a class in progress at the time of each of the alleged incidents relied on for the four counts I have mentioned. 12 The appellant gave evidence and denied the acts alleged. He said that when he used the storeroom he never closed the door. 13 The school attended by the complainants was a normal primary school, but the class of which they were members was specially set up in 1978 to teach selected pupils who had learning difficulties. 14 Judging by a photograph which was received into evidence, there were thirteen pupils in the class. 15 The various acts of the appellant were said to have taken place within various periods of time particularised in the indictment, the earliest of which began on 1 March 1978 and the last of which ended on 31 December 1979. However, it became apparent during the trial that the appellant did not teach either of the complainants after 1978 and that if any incident happened it must have been during that year. 16 Mr McAlister made no complaint until 1997. As a result of what he then said, Mr Lansley was approached by the police and it was not until after that event that he made any complaint. 17 The failure of the complainants to complain for a long time resulted in a trial which commenced about twenty years after the alleged events. The appellant was thereby deprived of a significant opportunity to have his solicitor make proper enquiries into the facts and prepare a defence. An issue arose at the trial whether the appellant ever closed the storeroom door while a class was in progress. If the event relied on by the Crown for the second count took place and Mr McAlister and Mr Lansley ran out of the storeroom into the class, that was a matter about which pupils might have had some recollection if approached within a reasonable time thereafter. Again, if it never happened, the lack of recollection might have assisted the appellant, since it was a matter likely to be remembered if true. Opportunities to enquire into matters like these were lost after twenty years. 18 Three members of the class were called to give evidence. It is not necessary to deal with the detail of it and sufficient to say that none remembered any matter of significance. Those three were presumably the only members of the class who could be identified and traced. 19 The first ground of appeal complained about the manner in which the trial judge directed the jury about the failure of the complainants to complain. Her Honour directed the jury that the failure of either complainant to complain might be considered as suggesting that he should be disbelieved and that that was a matter that they had to consider carefully. Her Honour told the jury that the failure to complain did not necessarily indicate that the events related did not happen and dealt with the reasons why young boys like these complainants might not complain. 20 Her Honour then dealt with the resulting disadvantage to the appellant, referring to failure of memory and loss of opportunity to gather evidence in his defence. 21 It was submitted that these directions were inadequate because the jury were not also told that by reason of those disadvantages they should exercise caution and scrutinise the evidence of the complainants with great care. Reference was made to R v Johnston Court of Criminal Appeal 31 July 1998 unreported; Longman v The Queen (1989) 168 CLR 79; Jones v The Queen (1997) 149 ALR 598 and R v Murray (1987) 11 NSWLR 12. 22 Of course, nothing in the cases cited requires a trial judge to use any particular form of words to bring home to the jury the need for caution and careful examination of the evidence, and the question raised by the first ground is whether her Honour, looking at the whole of the summing up, effectively did so. 23 Because the complainants were members of the special class her Honour gave the jury this special warning - You are brought into this court as members of the community to apply your knowledge and commonsense about life; about the way people are and how they might recount events, particularly events of a long time ago; how accurate or inaccurate you might expect people to be in their recollection of events. Really, memory has several aspects does it not? First of all it is how well observation was made at the time the events occurred. You have to look in the context of a situation like this, at the fact that the complainants were children at the time and the view children have of events a the time they occur. You have to look at their capacity to retain those events, the is, were the events of a nature that they would tend to stay in the memory and have done so. You have to look at their capacity to recount them. These assessments always must be made in the context of the experience and capacities of a particular witness. For example, both the complainants here were in a class for slow learners … It is a matter for your assessment but you may not think them particularly sophisticated as adults or particularly articulate. You are going to look carefully at the evidence they gave, each of them individually, at the evidence they gave both in chief and under cross-examination. 24 Her Honour told the jury that the evidence of each complainant was vital. At the commencement of the summing up her Honour said this - It is also opportune at this point to remind you that the vital evidence in this trial is the evidence of the two complainants. That is, of Neil McAllister and David Lansley. It is, of course, now a little time since you heard from them, so that in making an assessment of their evidence it will be necessary for you to take yourselves back and think about the impression that each of those young men made upon you in the witness box when they gave their evidence. Because it is on the evidence of each of them individually, looking individually at the counts relating to them, that you must be satisfied beyond reasonable doubt. 25 Her Honour elsewhere told the jury that they could not find the appellant guilty of any count concerning Mr McAlister unless they were satisfied beyond reasonable doubt that Mr McAlister's evidence was essentially reliable. 26 A peculiar feature of the trial was that although in his evidence about the second and third counts Mr McAlister said that Mr Lansley was present, no evidence was adduced from Mr Lansley about those events. Similarly, Mr McAlister gave no evidence about the events giving rise to the fourth and fifth counts, notwithstanding that Mr Lansley said that he was present. As a consequence, her Honour said this - As is common in cases of sexual misconduct there is no corroboration. Each of the two complainants g[a]ve evidence that the other was present on a particular occasion by you will be aware that they were not asked about their presence on those particular occasions. The Crown is relying in each case on the evidence of the particular complainant. It does not seek to rely upon the other complainant to give supporting evidence. So that you are left with, and have the evidence of the recollection of the particular complainant in relation to the particular count without any supporting evidence or corroboration from the other complainant, even where that other complainant is said to have been present. So it brings you back to being satisfied beyond reasonable doubt only on the evidence of the particular complainant. 27 Even so, it was submitted, it was not enough that the jury were told, in whatever words should be used, to be careful about relying on the evidence of Mr McAlister. They should also have been told at the same time that they were being given that warning because of the difficulties the delay had given the appellant in preparing his defence. 28 Whilst it is correct to say that the direction about the need to look carefully at the evidence of the complainants was separated from the direction explaining how delay had produced difficulties for the appellant, I do not think that it follows that the jury would not have understood that delay and its consequences were a reason for them to be careful. The principal passages to which I have referred appear in four consecutive pages of the transcript of her Honour's summing up, so the two relevant concepts were dealt with closely in time. 29 This was a compact summing up that contained several appropriate warnings. It seems to me that the combination of observations, directions and warnings was sufficient in the context of the trial to give the jury a firm understanding that they were obliged to consider very carefully the evidence of each complainant and why. Looking at the summing up over all, I think that it was fair. 30 I think that this ground of appeal should fail. 31 The second ground of appeal asserts that her Honour failed properly to direct the jury about inferences that they might have drawn from the failure of the Crown Prosecutor to ask Mr Lansley about the events which Mr McAlister had described and which formed the basis of the second count. Mr McAlister had told the jury that when he placed the object over his penis he described it as a "dick stretcher". 32 Her Honour gave the jury the direction which I have set out above to the effect that neither complainant corroborated the other. 33 It was submitted on behalf of the appellant that the jury were entitled to infer that if Mr Lansley had been asked about the events the subject of the second count, any evidence he might have given would not have assisted the Crown. It was further submitted that the jury would have been entitled to infer that Mr Lansley had not simply forgotten the incident, so striking were the facts. 34 It was submitted that the directions in fact given by her Honour would have left the jury with the impression that there was nothing surprising about the failure of the Crown to ask Mr Lansley about the matter and that the Crown had decided not to call evidence which it could have called. 35 As appears from what I have already said, the jury were repeatedly told that Mr Lansley's evidence did not support Mr McAlister's. In the circumstances it is difficult to know how the jury could have used the additional direction contended for if it had been given. Indeed, counsel for the appellant in this court had difficulty formulating the directions that he contended might have been appropriate in the light of the relevant authorities. The inference, supposing the jury decided to draw it, would have been of no more assistance to the appellant than the fact, which the jury knew, that Mr Lansley's evidence did not assist the Crown on the second count. 36 There is no reason in my opinion for supposing that the jury would, because of the directions given, have thought that the Crown did have evidence but had decided not to call it. The jury knew that they had to decide the matter on the evidence before them. 37 In my opinion the additional direction contended for was unnecessary, and this ground of appeal should fail. 38 The final ground of appeal complains that the trial judge, in directing the jury to look at each count separately, failed to direct them that they were entitled to take into account in considering any count any reasonable doubt that they entertained in respect of any other count relating to the same complainant. 39 Her Honour told the jury a number of times that they had to deal separately with the counts, for example - … it is on the evidence of each of them individually, looking individually at the counts relating to them, that you must be satisfied beyond reasonable doubt. The other matter which I want to emphasise at this stage is the fact that there are really five separate counts. Five separate trials. It is important that you look at each of these matters separately. You could not, for example, go to the first count, look at the facts relating to that first count and say, "We are satisfied beyond reasonable doubt that he is guilty of that count and accordingly therefore he must be guilty of all the others". You cannot do that. You must take the facts which relate to each complaint and to each separate issue and deal with those separately. 40 It was submitted that these and other directions were inadequate and that it was also necessary to make clear to the jury that they were not required to consider each count completely separately from the other counts and that they ought to have been directed that if they had a reasonable doubt about the guilt of the appellant in relation to one count, they were entitled to take into account that doubt and its implications for the credibility of the complainant concerned when considering any other count relating to the same complainant. 41 No such direction was requested at the trial, and the appellant needs leave to argue this ground. 42 Trial counsel for the appellant swore an affidavit, which was read on the appeal, stating that it was not for any tactical reason that the direction was not asked for. 43 It seems to me that if such a direction had been given it would have been necessary, in order to secure a fair trial for the Crown, to balance it with a direction dealing with the consequences for other counts concerning either complainant of a finding of guilt on any count concerning that complainant. Such a direction would have had to be made with some care, of course, particularly to avoid cutting across the direction her Honour gave warning the jury that they must not engage in propensity reasoning. 44 I doubt whether two such additional directions would have materially improved matters for the appellant, and they would have made a clear summing up more complicated. 45 In dealing with directions requiring a jury to deal separately with each of several counts in an indictment, Gleeson CJ said in R v Mitchell, Court of Criminal Appeal 5 April 1995 unreported - The directions given about considering the charges separately and returning separate verdicts are standard directions given in any case where there is more than one charge against an accused person. They are not inconsistent with the possibility that in reaching their separate verdicts the jury may consider the totality of the evidence in the case as relevant to each charge. 46 I would refuse leave to appeal on this ground. 47 I would dismiss the appeal. **********

R v CRAMPTON

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