R. v. SELSBY, Kenneth William [2004] NSWCCA 381

LOWER COURT District Court JURISDICTION : LOWER COURT DC02/11/0822 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60051/04 CCA 60377/03 DC 02/11/0822

HODGSON JA HULME J HIDDEN J

Tuesday 9 November 2004 REGINA v. Kenneth William SELSBY Judgment 1 HODGSON JA: In February and March 2003, the appellant was tried before Graham DCJ and a jury in two separate trials, one concerning charges of sexual offences against J (a boy) and the other concerning charges of sexual offences against F (a girl). 2 The trial involving J was on an indictment containing eight counts, relating to three separate incidents, each said to have occurred at Vaucluse in the State of New South Wales. 3 The first two counts related to an incident alleged to have occurred between 27 June 1986 and 27 June 1989, and were in identical terms, alleging assault of J and commission of an act of indecency upon him. 4 The next four counts related to an incident alleged to have occurred between 27 June 1988 and 31 December 1990, and alleged that the appellant had sexual intercourse with J. Counts 3 and 5 were in identical terms, alleging that J was then under the age of 10 years. Counts 4 and 6 were also in identical terms and were respectively alleged as alternatives to counts 3 and 5, and they alleged that J was then of or above the age of 10 years and below the age 16 years. 5 The final two counts related to an incident alleged to have occurred between 27 June 1989 and 27 June 1992, and were in identical terms, alleging that the appellant had sexual intercourse with J, a person then of or above the age of 10 years and below the age of 16 years. 6 On 6 March 2003, the jury in that trial returned verdicts of not guilty to counts 1, 2, 3 and 5 and guilty to counts 4, 6, 7 and 8. 7 The trial involving F was on an indictment containing three counts, relating to two incidents each said to have occurred at Vaucluse between 1 January 1987 and 3 October 1990. 8 The first two counts were in identical terms, and alleged that the appellant had sexual intercourse with F, a person then under the age of 10 years. The third count alleged that the appellant committed an act of indecency with F, a person then under the age of 16 years. 9 On 17 March 2003, the jury in that trial returned verdicts of guilty to all three counts. 10 On 25 July 2003, Graham DCJ sentenced the appellant in relation to all the offences. 11 In relation to the offences committed upon J, the appellant was sentenced on each count to imprisonment for five years to commence 6 March 2003 and expire 5 March 2008, in each case with a non-parole period to commence on 6 March 2003 and expire on 5 March 2006. 12 In relation to offences committed upon F, the appellant was sentenced on each of counts 1 and 2 to imprisonment for eight years to commence on 6 March 2003 and expire on 5 March 2011, in each case with a non-parole period to commence on 6 March 2003 and expire on 5 September 2008. On count 3, the appellant was sentenced to imprisonment for a fixed term of 15 months, to commence on 6 March 2003 and expire on 5 June 2004. 13 The effect of these orders was that all sentences were to be served concurrently. The overall sentence was for eight years imprisonment, with a non-parole period of five and a half years. 14 The appellant appeals from his convictions. The Crown appeals on sentence. I will refer to the prisoner as the appellant or the prisoner throughout the judgment.

CROWN CASE CONCERNING J 15 J was born on 27 June 1979 at Penrith. Shortly afterwards, his parents separated, and J moved with his mother and four siblings to his maternal uncle's residence at Watsons Bay. J's mother met the appellant, and in about the mid-1980s they began a romantic relationship. J's evidence was that, from the age of about 8 years, J would stay with his mother overnight at the appellant's then residence at Vaucluse most weekends, and all incidents were alleged to have occurred there. 16 J's evidence concerning the first incident (counts 1 and 2) was that J was called into the appellant's lounge-room, and the appellant had J sit on his lap. The appellant undid his own pants, and pulled out his penis, and then reached into J's pyjamas and started fondling J's penis (count 1), saying "I'll play with yours, you play with mine". The appellant then placed J's hands on his penis (count 2). The activity stopped when J's mother entered the room. 17 J's evidence concerning the second incident (counts 3-6) was that, when he was about 9 years of age, he was woken from his sleep in the spare room in the appellant's house by his mother, and was taken into the appellant's bedroom. The appellant was naked on his bed. The appellant's mother removed the robe she was wearing, undressed J and laid him on his back. The appellant sucked J's penis (counts 3 and 4) while J's mother kissed J using her tongue. Then J's mother told J he had to "return the favour" and pushed J's head towards the appellant's penis, and J started sucking the appellant's penis (counts 5 and 6). J noticed that the appellant had eczema on his stomach and chest. 18 J's evidence concerning the third incident (counts 7 and 8) was that when he was between the ages of 9 and 10, his mother took J into the appellant's room where the appellant was lying on the bed. J's mother took J's clothes off, and laid J on the bed. The appellant then sucked J's penis (count 7). J's mother kissed J and guided his head towards the appellant's penis, and J sucked it (count 8). After that incident, J's mother told him to be quiet and go back to his room and go to bed. 19 J gave evidence that there were other times sexual things happened between himself and the appellant, but he was not able to give details because his memory was vague. 20 J gave evidence that when he was about 10 years old he spoke to his older brother D at Watson's Bay Pizzeria, on an occasion when J's father, mother and siblings and also the appellant were there. J said he called D to an area where there were video games, D asked him what was wrong, and J said he was "getting sexually assaulted by Mum and Ken". D said he would tell their father, J told D he did not want D to do this, and then told him that what he had said was not true. J's evidence was that he did this (retracted his complaint) because he knew his father had a violent temper and because he was scared that if D spoke to his mother or the appellant, something could have happened to him. 21 J also gave evidence that he did not tell anyone of the assaults immediately after they happened because the appellant was a violent man, J was scared of him, and J had seen the appellant hit his mother on several occasions. 22 D gave evidence that one day when he was at Watson's Bay Pizzeria with his family, he and J were at the counter and J told him that the appellant had been "touching him and stuff". D's evidence was that he asked J if he was sure, that J walked out and then came back in and said "I didn't mean it", and that J was like a frightened little kid. 23 J's mother gave evidence in chief of two incidents. In one, J had come to her bed, and she had fallen asleep and then woken up and found the appellant on top of J. The appellant was naked and she thought J did not have any clothes on. In the other, she saw an act of fellatio between J and the appellant, but could not remember which of them was performing the act. 24 The Crown Prosecutor applied for leave to cross-examine J's mother and this was granted. He put to her that the specific incidents alleged by J had occurred; and she said "That is quite possible. I'd say it would be correct".

CROWN CASE CONCERNING F 25 F was born on 4 October 1980. She gave similar evidence to J as to the circumstances of her acquaintance with the appellant. 26 F's evidence concerning the first incident was that when she was about 6 or 7, she awoke in the appellant's study to see her mother performing an act of fellatio on the appellant. F's mother told her to do to the appellant what she had been doing, and F was forced to suck the appellant's penis (count 1). F then went to the lounge, and the appellant positioned himself on top of her and inserted his penis in her vagina (count 2). F's mother told her to stop crying and shut up, because she (F's mother) knew F was enjoying this act. 27 F's evidence concerning the second incident was that in the same year, 1987, F woke up in the appellant's lounge-room and saw a pornographic video being played on the television. The appellant and F's mother were on a blanket in front of the heater. The appellant and F's mother told F to come down to them. The appellant and F's mother, and also F, were unclothed. F touched the appellant's penis (count 3), and F's mother performed an act of cunnilingus on her. 28 F did not remember any other incidents of a sexual nature involving the appellant, but remembered she would "always" find herself waking up in the appellant's bed with her mother, in circumstances where F had no clothes on. 29 F gave evidence of assaults committed by the appellant on her mother, and that the fighting made her feel scared. She did not complain to anyone after the incidents, because she did not believe it to be wrong, nobody had told her anything bad had happened, she was only a kid, she had never heard anything of sexual abuse before, and she was afraid that if she said anything to her mother she would hit her, or if anything was said to the appellant he might get angry and then instead of being violent on her mother be violent on "us kids". 30 F gave evidence in chief that when she was about 14, she ran away from her mother (F and her mother were then living in the Blue Mountains) and went to stay with the appellant and her elder brother A for two weeks; and also that when she was about 16 or 17, she wrote a letter of thanks to the appellant for letting her stay at his place and thanking him "for all the nice things". 31 F's mother gave evidence of an occasion when she saw F in the appellant's study and saw the appellant sitting on the back of F's legs just below her buttocks. She denied ever having licked F's vagina. She said that she had been assaulted by the appellant. 32 The Crown Prosecutor applied for and was given leave to cross-examine F's mother. The first incident was put to the mother and she said that it "could have been quite possible". The second incident was put to her mother, and she said "That's correct" and "As far as I know that's correct yes", though she did not admit that she licked F's vagina. 33 Over objection, the Crown adduced evidence from F that, when she was in Year 7 at Dover Heights High School, she had complained to a friend K, though she did not remember the details of the complaint. K gave evidence that in 1993 or 1994, she had a conversation with F in which she vaguely remembered F saying "Something about her mother asking her and Ken or Ken to touch her or play with her", with F crying quite a bit, being very distraught.

DEFENCE CASE 34 The appellant gave evidence at both trials that the incidents of sexual assaults never happened, and that at no time did either complainant sleep at his place overnight when he was present. He denied ever having assaulted the complainant's mother, and said he had been assaulted by her. He denied he ever suffered from eczema between 1988 and 1992, and tendered a photograph taken in 1988 or 1989 showing him with no shirt on. 35 In relation to the trial concerning F, the defence case was that the first incident could not have happened, because at the committal proceedings F had given evidence that the first incident occurred before a meeting with DOCS on 9 February 1987; and evidence was given at the trial by Dr. Roche that he had conducted a medical examination on F on 13 March 1987 which include a genital examination, and the findings were normal and F could not have been penetrated by an adult penis. F said at the trial that, when she gave evidence at the committal, she was confused as to whether she remembered the 1987 meeting with DOCS or had a memory of another meeting in 1991. 36 The appellant's case was that the second incident concerning F could not have happened, because F's mother denied cunnilingus, and because at the committal proceedings F gave evidence that during the second incident she had sucked the appellant's penis, but conceded at the trial that this was a false memory.

GROUNDS OF APPEAL 37 The appellant relies on two grounds: 1. The trial judge erred in allowing evidence as to alleged physical assaults committed by the appellant upon the complaints' mother. 2. The trial judge erred in admitting evidence of complaint in the trial with respect to the complainant [F].

EVIDENCE OF ASSAULTS 38 Mr. Pontello for the appellant submitted that evidence, admitted over objection in both trials, of assaults allegedly committed by the appellant on the complaints' mother should not have been admitted. It was not admissible as relationship or context evidence, because it was too vague, general and unspecific: R v. Marsh [2000] NSWCCA 370 at [18]. It did not assist in understanding the circumstances of the alleged assaults, since it was no part of the Crown case that compliance was due to fear of the appellant. 39 Mr. Pontello submitted it was not admissible to explain delay in respect of complaint. There was no effective delay in respect of complaint by J. The probative value in each case was outweighed by the danger of unfair prejudice: Evidence Act 1995 (NSW) s.137. The probative value was low: there was no close temporal connection between the alleged assaults and the incidents, the assaults were not committed on the complainants, the evidence was vague, there was no delay to explain in relation to J, and the assaults were of minimal relevance to the explanation of lack of complaint given by F. The danger of prejudice was high: high generality, which gave rise in cross-examination to highly prejudicial and non-responsive evidence in J's trial from his mother that the appellant broke her back, broke her arm and bashed her head twice along pavers, with the further result that there was no effective cross-examination of the mother about the alleged assaults in F's trial. 40 In my opinion, the evidence was relevant both to the acquiescence of each complainant at the time of the alleged offences, and to questions concerning complaint, although the probative value on the first aspect was small, because in each case the complainants' evidence was essentially that they acquiesced in the relevant conduct because of directions coming from the mother, so that fear of the appellant was only of slight relevance. 41 On the matter of complaint, it was relevant in the case of J to the fact that the only complaint was made to his brother and then promptly withdrawn. Two explanations were given for withdrawal, one concerning what the father would do, but the other to the effect that if the brother spoke to the mother or the appellant, something could have happened to him. 42 In the case of F, the evidence was relevant to lack of complaint until about six years later, when complaint was made to K. F's fear that the appellant might get angry and be violent to "us kids" was a significant part of F's explanation for this. 43 On the matter of prejudice, the prejudicial and non-responsive answer by the mother could not amount to an error of the primary judge, and no complaint was made either to the primary judge or on appeal as to what was done by the primary judge in response to this. There was no application to strike out the evidence or to discharge the jury, and no complaint made about directions or lack of directions on the matter. There is no appeal ground on the basis that this unresponsive answer has resulted in a miscarriage. In my opinion, this does not go to the s.137 question. 44 In my opinion, there was an element of discretion to be exercised by the Crown Prosecutor and the primary judge concerning the level of generality at which this evidence was led. If such evidence is led at a high level of generality, there is difficulty in the appellant answering it. On the other hand, if it is led with too much specific detail, the evidence could be distracting from the real issues in the case. The question under s.137 is also a matter of judgment, where there would be appellate interference only if some error of principle is disclosed in the judge's approach to the problem or if the appeal court is able to say that the trial judge's conclusion was wrong. In my opinion, no ground is made out in this case for intervention by an appeal court on these matters.

COMPLAINT BY F 45 There was evidence from F of her complaint to K, and evidence from K of this complaint, admitted after F had been cross-examined in respect of her evidence that she stayed with the appellant for two weeks when she was about 14, and wrote a letter of thanks to him when she was about 16 or 17. In that cross-examination, it was suggested to her that there were a number of other places she could have gone to, and that she went to stay at the appellant's house because "nothing happened"; and that she had written the letter because "nothing happened". The trial judge then ruled that the evidence of complaint was admissible under s.108(3)(a) of the Evidence Act. Section 108 of the Act is in the following terms: 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (2) (Repealed) (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement. 46 The trial judge indicated that he would allow further cross-examination of F, but the appellant's Counsel did not undertake this. 47 Mr. Pontello submitted that the trial judge erred in admitting the evidence, because the evidence of complaint had no ability to answer the attack that was made on F's credibility, and leave should not have been granted in circumstances where the Crown itself adduced evidence of the alleged prior inconsistent statements in evidence in chief. In the present case, the relevant attack on F's credibility centred on her assertion that she went to stay with the appellant because she did not know where to go; and her vague evidence about a complaint to K did nothing to rebut this attack: R v. BD (1997) 94 A Crim R 131 at 141; Graham v. The Queen (1998) 195 CLR 606. It was not appropriate for the Crown to adduce evidence of prior inconsistent statements in evidence in chief, and then rely on this to ground an application under s.108(3)(a), particularly where the defence had not raised that issued: Gipp v. The Queen (1998) 194 CLR 106 at [12]. Complaint evidence is a powerful factor in cases such as the present, and admission of this otherwise inadmissible complaint dealt the appellant's case an unfair blow. 48 Mr. Pontello also relied on s.192 of the Evidence Act, which is in the following terms: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 49 He submitted that s.192(2)(b) was particularly relevant, and was not referred to by the trial judge: Stanoevski v. The Queen (2001) 202 CLR 115. 50 In relation to this submission, further provisions of the Evidence Act are relevant, namely the definitions in Part 1 of the Dictionary to the Evidence Act of "prior consistent statement", "prior inconsistent statement", "previous representation" and "representation". Those definitions are as follows. prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness.

prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness.

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

representation includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated. 51 It is important to note that a representation can be "implied" or "inferred from conduct"; and that it is not necessary that it be intended to be asserted, as is the case in the statement of the hearsay rule in s.59(1) of the Evidence Act. 52 In my opinion, the action of F in voluntarily going to stay for two weeks in the appellant's house when she was 14 could be considered as an assertion or representation by conduct that the appellant had not done anything to her so terrible as she now alleged, particularly in relation to count 2. The letter of F thanking the appellant for nice things he had done amounted to an implied representation that the appellant had not treated F as she alleged, again particularly in relation to count 2. 53 The defence in cross-examination squarely put to F, in relation to each matter, that F did it because "nothing happened", plainly meaning that the alleged incidents had not taken place. That was the relevant attack on F's credibility, not the particular attack on her assertion, in relation to the first matter, that she had nowhere else to go. 54 In my opinion, evidence of the complaint to K made in about 1993 or 1994, shortly before the stay with the appellant and two to three years before she wrote the letter, was relevant to assist her credibility to the extent that it had been damaged by the implied representations. At least indirectly, it gave material support to her explanation of these matters, making her essential evidence concerning the incidents more credible. 55 In my opinion, it is appropriate for the Crown to lead relevant evidence which is damaging to the Crown case, including evidence of prior inconsistent statements by a witness. In cases such as the present, this may lay the ground for seeking leave under s.108(3)(a) to adduce evidence of a prior consistent statement; but the circumstance that the evidence was volunteered by the Crown may lead the judge, in considering whether leave should be granted, to decide that the prior inconsistent statement volunteered by the Crown is insufficient to justify admission of a complaint, which otherwise would be too late to be admissible under s.66 of the Evidence Act as having been made when the matter asserted was "fresh in the memory" of the complainant. 56 In this case, there was no application for such leave by the Crown prior to cross-examination, and it is not necessary to decide whether such an application could possibly have been successful. However, it does seem to me that, if it had not been suggested in cross-examination that these matters indicated that the events alleged by F had not occurred, an application by the Crown to adduce the evidence of the complaint would have been unlikely, and it would have been most unlikely to succeed. 57 However, the defence cross-examination of F did seek in effect to use these matters in their capacity as prior inconsistent statements, and as a basis for suggesting that F's evidence of the alleged events was false; and it was in those circumstances that the application was made. The trial judge concluded his reasons for admitting the evidence as follows: The onus is on the Crown to establish that it should be granted leave but, provided the accused has a further opportunity to cross-examine on that material, it seems to me that there is no injustice done by the admission of the material relating to the conversations with [K] in about 1993 and I grant that leave. 58 This passage, and the judgment generally, shows that the trial judge did consider the extent to which the grant of leave would be unfair to the appellant, and in my opinion the absence of specific reference to s.192 does not amount to an error: R v. Reardon [2002] NSWCCA 203 at [23]-[32]. 59 In my opinion, the admission of the evidence, by leave of the trial judge, was justified by s.108(3)(a) of the Evidence Act; and no error has been shown in the judge's reasons for granting that leave.

CONCLUSIONS ON CONVICTION APPEAL 60 For those reasons, the appeal against conviction fails. 61 I note that the Crown also sought to rely on the proviso in relation to the evidence of complaint to K. In my opinion, had the appellant established that it was wrong to admit that evidence, this would not have been a case for application of the proviso. Although the complaint evidence was vague, it could not be said that there was no reasonable possibility of a different result if that evidence had not been admitted.

CROWN APPEAL ON SENTENCE 62 It was submitted for the Crown that the sentence imposed was manifestly inadequate, and that error was shown by the sentencing judge's failure to impose appropriate individual sentences for each count, failure to accumulate individual sentences so as to reflect total criminality, and failure to provide reasons for not setting a non-parole period for count 3 in the matter of F. The effective sentence imposed on the co-offender mother of the complainants (on appeal in R V. JMP [2003] NSWCCA 369) of eight years after a 30% discount gave a notional starting point of 12 years (mathematically, it seems to me that 11½ years would be more accurate). That would also be an appropriate starting point for the prisoner. The Crown submitted that the sentencing judge had not complied with Pearce v. The Queen (1998) 194 CLR 610, and that there should have been at least some partial accumulation of sentences: R v. AEM Snr, KEM & MM [2002] NSWCCA 58. Even if the alternate approach countenanced in Johnson v. The Queen (2004) 205 ALR 346 at [26] were adopted, there was still manifest inadequacy in the total. 63 In my opinion, the failure to provide reasons for not setting a non-parole period for count 3 could not possibly justify appellate intervention. In circumstances where the head sentence was much shorter than the non-parole periods in relation to the other offences, the reason for taking this course was manifest. Appellate intervention could not be justified. 64 In my opinion also, having regard to the comments of the High Court in Johnson, the circumstance that the sentencing judge did not strictly follow the Pearce procedure would not of itself be a sufficient ground for intervention on a Crown appeal in this case. 65 Further, in my opinion it would be inappropriate to intervene on parity grounds when the Court of Criminal Appeal in JMP applied parity with the original sentence imposed on the prisoner to reach its result in that case. The difference between a notional starting point of 11½ years in that case and the head sentence of eight years in the present case can be justified by the larger number of offences for which the mother was charged (resulting in a liability to imprisonment for a total of 110 years in her case, as against 74 years in the appellant's case), the mother's position of trust with respect to her children the complainants, and also perhaps some discount for the appellant because of his health. Considerations of the need for protective custody could also be relevant, although those considerations could apply equally in both cases. 66 Accordingly, in my opinion the real issue on this appeal is the matter of manifest inadequacy. In my opinion, the sentence imposed was too low having regard to the very high criminality involved; and were the role of this Court simply to impose the sentence that it thought appropriate, in my opinion the result would be a substantial increase in the sentence. However, having regard to all the considerations that apply in the case of Crown appeals, and having regard to the circumstance that to disturb the current sentence could disturb what the Court of Criminal Appeal in JMP considered appropriate having regard to parity considerations, in my opinion the Court should not intervene in this case.

CONCLUSION 67 For those reasons, in my opinion the following orders should be made: 1. Conviction appeal dismissed. 2. Crown appeal on sentence dismissed. 68 HULME J: I agree with the orders proposed by Hodgson JA and with his Honour's reasons. 69 HIDDEN J: I agree with Hodgson JA. **********

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