REGINA v CHENEY

REGINA v CHENEY - [1999] NSWCCA 312 - NSWCCA 1999 case summary — Zoe

[30]

In respect of counts 1-5: 9 On one of those occasions, on the night of 20 November 1993 the appellant through the rear screen door, entered the bedroom of the complainant, M, which she was sharing with a family friend in her parents' home at Port Macquarie. She was then aged nine years. He woke her up and told her his name was "Jimmy" and to be quiet or the monster would get her. He then picked her up and placed her bedspread over her head and forcibly took her into the rear yard, behind a shed. While in the rear yard the appellant forcibly made the victim suck his penis. He also touched her in the area of the vagina. He told her to go back to bed and go to sleep and not to tell anyone or the monster would get her. She went back to bed and didn't tell her parents on that day. When the victim awoke in the morning she found the rear door open. 10 She described the offender as being about the same age as her step father (35-40) wearing black clothing, a black beanie/balaclava. 11 On 20 December 1993 this victim was shown one beanie, one balaclava and one peaked cap, all the property of the appellant. She identified the black beanie as being the same as the beanie the offender wore on the night of this offence. 12 On the night of 27 November 1993 the appellant returned to the house and gained entry by forcing the lounge room window. Whilst inside he went to the victim's bedroom, woke her and told her it was "Jimmy" and "Have you been a good girl." He tickled her and attempted to touch her on the vagina. The victim screamed and the appellant fled the house. The victim has informed police he was the same person who entered the house the week before and took her against her will to the rear yard and forcibly made her perform oral sex on him. 13 S, the complainant's mother gave evidence that her daughter was born on 26 September 1983. She said that on 28 November 1993 the complainant told her that "Jimmy is back…" and that he had touched her on the vagina a week ago. 14 On 7 December 1993 the appellant again left the camp he was sharing with Julie Bird and drove his Holden utility to the vicinity of the Vacation Village Resort in Port Macquarie.

[34]

In respect of counts 9 - 12. 19 The complainant gave evidence that the appellant used the name "Jimmy" spoke in whispers, and told her she should not tell anybody about what had happened. After being left alone for a moment, she was washed by the appellant at a nearby pool, and then taken back to her bedroom. Next morning she complained to her parents. 20 When the complainant was kidnapped, she was indecently assaulted, subjected to penile penetration of vagina and mouth and digital penetration of the vagina. In the result she suffered a tear to the hymen, and other injuries to the body and face. Two medical examinations made of her on the day of the incident cogently establish that penetration occurred. 21 The complainant understandably had difficulty verbalising some of her evidence. She was however able to write it down on notes. She was asked by the Crown "did he touch you with any part of his body from the waist down?" and she wrote "his penis." She agreed that it hurt her. She said that this "touching" occurred on her vagina. It is the Crown case that at around 2.30 am on 8 December 1993 the offences were committed on A. She was unable to identify the appellant but she was able to identify a distinctive cap worn by the offender. 22 The following day he was seen in an area close by the north shore and was chased by a number of people. During that time he was wearing a cap. When eventually caught by police he was not wearing that cap. The next day a cap was found by a civilian in the area where the chase had taken place and handed to police. This cap was identified by A and by the appellant's fiancee, Ms Bird. It had a distinctive white tape which covered the back tab. 23 He had also been seen carrying a bag during the chase. This contained a black beanie, jacket and silver revolver. The revolver being identified by Mr Gett who had followed him from the commission of the break and enter in Ms Cookson's unit at 10.30 pm on 7 December in the Vacation Village. The bag also contained a black beanie and black jacket similar to one's worn by the offender of the first victim.

[36]

Ground 1: His Honour erred in refusing to direct the jury to return a verdict of not guilty on count 7 of the indictment (use offensive weapon with intent to prevent lawful apprehension). 29 This count was laid pursuant to s 33B of the Crimes Act 1900. That section is in the following terms: "Use or possession of weapon to resist arrest etc 33B. Any person who: (a) uses, attempts to use, or threatens to use or possesses an offensive weapon or instrument; or (b) threatens injury to any person or property. With intent to commit an indictable offence or to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a member of the police force from investigating any act or circumstance which reasonably calls for investigation by the member shall be liable to penal servitude for 12 years." 30 On behalf of the appellant it was submitted that in order to give meaning to the use of the dual words "apprehension" or "detention" in the context of the section, should be construed as contemplating that the relevant intention should exist either at the time of apprehension (arrest) or at the later stage of detention. 31 It was submitted that because arrest normally consists of the actual seizure or touching of a person's body with a view to his detention, - (Greenwood v Ryan (1846) Legge 275), - there having been no apprehension or detention, his Honour erred in allowing the count to go to the jury. 32 It was stressed that what Mr Gett was doing was merely following the appellant and that in the absence of any direct evidence that it was his intention to apprehend him no inference should be drawn that in fact that was his intention. 33 I should add that no argument was advanced that the gun allegedly threatened to be used by the appellant was other than an offensive weapon. 34 Mr Gett's evidence, as is detailed above was that he was pursuing the appellant. It seems to me that there is only one available inference open to the jury in such circumstances, namely that Mr Gett was attempting to catch and detain the offender. 35 The appellant's alleged actions in pointing the gun at Mr Gett, in my view, is an action which falls squarely within the ambit of s 33B. In other words the offence is complete once the use of a weapon with intent to avoid lawful apprehension has been established. The appellant's action in so doing clearly indicates that he perceived a danger of apprehension by Mr Gett. 36 In these circumstances I am of the view that this ground must fail.

[37]

Ground 2: His Honour erred in the directions he gave to the jury concerning the elements of the offence charged in count 7 of the indictment. 37 His Honour summed up the ingredients of the offence as follows: "The essential ingredients of this offence which the Crown is required to prove beyond reasonable doubt are first that it was the accused who Mr Gett was trying to detain. Second that the detention sought by Mr Gett was lawful. Third that the accused knew that Mr Gett was trying to lawfully detain him at the relevant time. And Fourth, that the accused used an offensive weapon with intent to prevent his lawful detention." 38 This ground is particularly directed to the third ingredient adverted to by his Honour namely "that the accused knew that Mr Gett was trying to lawfully detain him at the relevant time." 39 His Honour later in the summing up said this: "You are entitled to infer that Mr Gett was seeking to exercise a lawful right in seeking to detain a person caught red-handed in the commission of a criminal offence. You are also entitled to infer from that evidence that by pointing the revolver at Mr Gett in those circumstances that person was using the revolver, clearly an offensive weapon, with intent to prevent his lawful detention." 40 As I have indicated in dealing with ground 1, that was an inference which was clearly open for the jury to consider. In those circumstances the submission made that the jury would be left with an incomplete understanding of the elements required to be proved is not an accurate reflection of the directions given. 41 It was further argued that because his Honour declined to instruct the jury as to the particular time at which it was necessary for the relevant intention to exist that his directions were again defective. 42 The last sentence of the last paragraph I have quoted from his Honour makes it clear that his Honour was adverting to the relevant time as being when the appellant pointed the gun at Mr Gett. 43 For these reasons I am of the view that this ground must also fail.

[38]

Ground 3: His Honour erred in failing to direct the jury to return a verdict of not guilty in relation to count 12 (penile penetration of A). 44 Here, counsel adverted to the fact that the evidence of A given in written form that the person who assaulted her touched her on her vagina was not evidence as is required by the Act, of penetration. 45 Medical evidence given by Drs Doyle and Bland who had medically examined the complainant on the day of the alleged offence clearly stated that penetration had occurred. 46 The complainant herself had stated that the touching hurt her and occurred, as I have said, on her vagina. 47 Her evidence as to the pain she experienced is to be distinguished from the act of indecency laid in count 10, as to which the complainant deposed that she had been touched by her assailant with his hands. In relation to that matter she gave no evidence of any pain being associated with that episode. 48 On this evidence, in my view, it was open to the jury to conclude that in fact penile penetration had occurred. 49 It was also submitted that "there is the very real risk that the jury used evidence of complaint alleging penetration as evidence of truth". It is to be remembered that this matter was not subject to the Evidence Act 1995. His Honour gave a very clear direction that the complaint made was not to be used to prove the truth of the allegation. His Honour's direction is as follows: "Now I relate that to you and I remind you that evidence of complaint cannot prove the actual offence. So that cannot be used by you as proof that penetration did occur. It is only there to be used as evidence of complaint to test or to decide whether or not she is a credible witness as to what had occurred to you in relating it back to her mother and father as evidence of complaint. Just to make sure that you understand this, that evidence is not corroboration of her evidence because it is not independent evidence. She cannot corroborate herself and the evidence of that complaint that I am now referring to was only admitted to assist you in deciding whether the complainant's conduct was consistent with what she said happened to her and to answer any argument that the absence of complaint would suggest that the offence did not take place." 50 Such a direction, in my view, obviated the risk referred to in the submission made on behalf of the appellant. 51 For these reasons I am of the view that this ground must fail.

[40]

Ground 5: His Honour erred in refusing to allow defence counsel to adequately explore the possibility that another person (Jamie Sager) was the true offender. 53 Sager was a person charged with the sexual assault at South West Rocks which matter I have referred to in the narrative of the factual background to this matter. 54 The appellant raised the matter in his unsworn statement arguing that the police had not shown photographs of Sager to witnesses because the police feared that Sager would be recognised by them as the offender. 55 This the appellant stated would have demonstrated that the police, as he alleged, had, to use the colloquial expression "verballed" him in relation to admissions which the police claimed he had made to them. 56 Reliance was placed on what had fallen from this Court in R v Greatorex 74 A Crim R 496. In Greatorex the appellant's counsel at the trial had been refused permission by the trial judge to cross-examine police officers on their credit directed to their alleged failure to investigate a confession allegedly made by a third party who at the time of the trial was deceased. 57 In Greatorex it was plain that the investigating police had been given information implicating a third person and they had failed to take any steps to investigate the contents of the statement made to them or the accuracy of the information. This in turn would give rise to counsel seeking to establish that their failure so to do had occurred because they had fabricated a confession by the appellant. 58 Here it was conceded in argument before his Honour by counsel that there was no evidence that the investigating police had any knowledge of Jamie Sager. His Honour in refusing to allow counsel for the appellant to cross-examine the police said this: "The accused was never able during the course of the Crown case to establish that the arresting police in this case had been given information about a further possible suspect for only some of the offences in respect to which the accused stands charged today." 59 In my view his Honour correctly distinguished Greatorex. His Honour had a discretion to control cross-examination in the matter. There was a marked difference between the factual allegations relating to the alleged assault by Sager at South West Rocks and sexual assaults alleged against the appellant here. 60 Not only did Sager offence occur outside Port Macquarie, but it occurred after the assaults allegedly involving the appellant; and in terms of modus operandi, was a distinctly different offence from the two offences allegedly committed by the appellant. In short, there was no link between the facts sought to be elicited in cross-examination and the fact in issue. Walker v The Queen 64 ALJR 321, 325-326 and R v Stephenson [1976] VR 326 at 380 are clear authorities that in circumstances such as these, cross-examination of this type should be disallowed. This his Honour did; and did not fall into error in so doing. In my view this ground fails.

[47]

Sentence. 79 The sentence imposed by his Honour resulted effectively in a minimum term of twenty-two years with an additional term of eight years. The individual sentences imposed by his Honour in relation to all but count 8 in my view could not be the subject of any proper challenge. 80 In relation to count 4 his Honour sentenced the appellant on a concurrent basis with the sentences he passed in relation to counts 2 and 3. Accordingly the fact that ground 4 has succeeded would not effect the exercise of his Honour's sentence discretion in relation to terms imposed. 81 However, in relation to count 8 the charge of kidnapping his Honour imposed a maximum term of twenty years. In so doing his Honour categorised the offence as falling within the category of the worst type of case. See Ibbs v The Queen (1987) 163 CLR 447 at 441-451; Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 478. 82 Section 90A of the Crimes Act is in the following terms: "90A. Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to penal servitude for twenty years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years." 83 The meaning of "substantial injury" was discussed by this Court in R v Rowe (1996) 89 A Crim R 467 at 472. Hunt CJ at CL with whom other members of the court concurred, said this: "The physical injuries which the complainant suffered were minor, but an injury caused to a woman by violence inflicted during or associated with sexual intercourse without consent, and particularly when the woman is being detained against her will, is capable of amounting to serious injury within the mean of s 90A. It was submitted that 'injury', in the context of the Crimes Act, must be a physical injury. Be that as it may, assault which produces minor physical consequences may well become substantial were the circumstances in which it was inflicted (as here) greatly affect its seriousness." 84 I see no difference in principle to the injuries suffered by the complainant here to those suffered by the complainant in Rowe's case. Accordingly I am of the view that this was a case where the maximum penalty of twenty years was available. 85 I agree entirely with his Honour's view that this did in fact fall within the worst category of case and that his Honour was not in error in imposing the maximum penalty of twenty years. 86 However, if the crime charged in count 8 of the indictment were to stand alone, his Honour would have been bound to have found a minimum term together with an additional term and thus would not have imposed a fixed term. 87 Of course, the matter does not stand alone and as his Honour rightly observed in his remarks on sentence, the principle of totality of sentence must be applied. Indeed, his Honour did apply that principle in structuring the sentence imposed upon the appellant. 88 His Honour also correctly found, viewing the matter from the stand point of totality, that special circumstances existed. Where I believe his Honour fell into error was to impose a fixed term of twenty years in a case where, standing alone, minimum and additional terms would have been set. 89 Accordingly, having regard to principles of totality what I would propose is that the appropriate minimum term be imposed as the fixed term in relation to the eighth count. In my view this would represent the substitution of a fixed term of fifteen years for the fixed term of twenty years imposed by his Honour. 90 As I have said the other individual sentences in relation to the matters contained in the other counts cannot be the subject of challenge and I would propose that those other individual sentences should stand. 91 However, the reduced period relating to count 8 would affect the overall calculation of sentences I propose the following orders:

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