REGINA v FOLLI

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

MASON P SPERLING J MCCLELLAN J

Wednesday 19 December 2001 REGINA v Michael FOLLI

JUDGMENT 1 MASON P: The appellant appeals against conviction and seeks leave to appeal against sentence. He was tried in the District Court in November 2000 before Judge Gibson and a jury. The indictment charged certain counts in the alternative. Since, however the appellant was convicted on all of the primary charges it is sufficient if they are set out: Count 1 : For that he between 1.1.80 and 31.12.80, did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years). Count 2 : For that he around March 1983 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years). Count 3 : For that he between 1.2.83 and 30.6.83 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years). Count 4 : For that he between 1.2.83 and 31.12.83 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years). Counts 5, 7 and 9 : For that he between 1.2.83 and 31.12.83 did have sexual intercourse with the first complainant without his consent (s61D(1) now repealed Crimes Act 1900 . Maximum penalty 10 years). Counts 6, 8 and 10 : In the alternative to Counts 5, 7 and 9 : For that he between 1.2.83 and 31.12.83 did indecently assault the first complainant (s81 Crimes Act 1900 . Maximum penalty 5 years). Counts 11 and 13 : For that he between 1.2.83 and 26.11.83 did have sexual intercourse with the second complainant without his consent (s61D(1) now repealed Crimes Act 1900 . Maximum penalty 10 years). Counts 12 and 14 : In the alternative to Counts 11 and 13 : For that he between 1.2.83 and 26.11.83 did indecently assault the second complainant (s81 Crimes Act 1900 . Maximum penalty 5 years).

2 On 21 December 2000 the appellant was sentenced to imprisonment for a total of nine years, this being for: Counts 1-4: 2 years imprisonment, commencing from 14 November 2000 and expiring 13 November 2002. Counts 7-9: 3 years imprisonment, commencing from 14 November 2000 and expiring 13 November 2003. Count 11: 3 years imprisonment commencing from 14 November 2000 and expiring 13 November 2003. Count 5: 5 years imprisonment commencing from 14 November 2000 and expiring on 13 November 2005. Count 13: 4 years imprisonment commencing from 14 November 2005 and expiring 13 November 2009. A non-parole period on the full sentence of 6 years 9 months commencing from 14 November 2000 and expiring 13 August 2007. 3 The two complainants were brothers. The first (CD) was born on 15 March 1969. He was 31 when he made complaint about events said to have occurred when he was aged between 10 and 14. The second complainant (RD) was born on 26 November 1967. He was 32 when he made complaint about events said to have occurred when he was aged 15. 4 At the relevant times the two complainants were students at a college in a suburb of Sydney. The appellant taught there between 1979 and 1982. He was a brother in a religious order. In 1983-1984 he taught at another school. He was a close friend of the complainants' family, often visiting their home and regularly staying overnight. When he stayed he slept in the boys' bedroom. He moved into the home permanently for a period of two years. This occurred in late 1984 (according to the appellant) and, with some hesitation, according to the complainants' mother). 5 The indecent assault charges for which the appellant was convicted involved CD. They concerned incidents said to have happened in the boys' bedroom or in a small flat occupied by the appellant at his monastery when he was living there prior to the time that he moved in with the family. The charges were to the effect that the appellant instigated improper sexual contact with CD. The Crown case is summarised in the following terms: Count 1 The appellant regularly drove CD, who then was in year 6 of primary school, to and from basketball, which he played for the senior school, instead of attending primary school sport each Thursday. CD's mother (T8.11.00 5) and father (T8.11.00 28) gave evidence that CD played for the senior school and the appellant did on occasion take CD to basketball and bring him home. CD's father said that in the early 1980s, the appellant drove the appellant's father's car, had access to a college vehicle, and borrowed his own car at times (T8.11.00 32). On one such occasion, the appellant drove CD home, stayed, and had a meal (T6.11.00 8). CD shared a room with his two older brothers which contained two double bunks with a spare bunk below. RD and the eldest brother were present. CD gave evidence (T6.11.00 9) that the appellant massaged his back and backside, rubbed CD's penis, then climbed onto the bed fully clothed and pulled his and CD's pants down. Afterwards, CD had a shower and cleaned his teeth because he felt "all dirty" (T6.11.00 13). Count 2 On his 13th birthday 15 March 1983 (T7.11.00 1) his parents took CD, who had been injured falling from a tree three weeks previously, home from hospital after he had stitches removed. Later that night, the appellant visited him in his bedroom after CD had gone to bed. The light was off and RD was in the room. CD said (T6.11.00 15) that the appellant began massaging his neck, worked his way down his back, grabbed his hands and put them on the appellant's penis whilst touching CD's penis. CD ejaculated. CD also gave evidence that the appellant rubbed his hands over CD and put his penis between CD's "backside" (T6.11.00 15). The appellant then went to RD's bed on the top bunk (T6.11.00 6). The complainant's mother said (T8.11.00 9) that the appellant visited CD in his bedroom during this period.

Count 3 Some 2 months after his accident in February 1983, the appellant stayed in the Marist Monastery at Ambarvale while recuperating from a broken leg. CD gave evidence (T7.11.00 5) of staying overnight in the small flat occupied by the appellant on more than one occasion, sleeping on a mattress on the floor. Sexual activity occurred during his visits. CD particularized the first of these occasions (T7.11.00 6-9). His mother had driven him there (T7.11.00 56). The appellant drank beer to excess, and CD went to sleep on the floor. He was awoken by the appellant pulling him into his bed. The appellant forced to rub his penis while he rubbed CD's. CD then ejaculated. About one hour later, the appellant repeated this activity until CD ejaculated again. CD said he remained on the appellant's bed because he was scared at the time, but eventually got onto the mattress and went to sleep (T7.11.00 10). The appellant remembered his mother picking him up the next day, and riding bikes with RD (T7.11.00). The complainants' mother (T8.11.00 12-13) and father (8.11.00 31) gave evidence of CD staying overnight with the appellant at Ambarvale. His parents drove him there and picked him up (T8.11.00 12-13). Count 4 After leaving the monastery, the appellant came to reside at the complainants' house some time in the period following his car accident. CD gave evidence (T7.11.00 12-14) of the appellant repeating his former conduct with him, that is massaging him and forcing him to engage in mutual masturbation. But on this occasion, after CD had ejaculated, the appellant tried to penetrate CD's anus but was unsuccessful because of CD's resistance (T7.11.00 15). 6 The events relevant to counts 5, 7 and 9 (sexual intercourse with CD without consent) were said to have occurred shortly after the events of count four, ie soon after the appellant had left the monastery and come to reside at the complainants' home. The Crown summarised its case relevant to these counts in the following terms: Count 5 CD said that a "couple of nights later" (T7.11.00 15), the appellant, after climbing onto RD's bed, then leaving it and entering CD's bed; pushed his penis into CD's mouth and "made rocking type movements until he ejaculated" (T7.11.00 16-18). CD felt sick afterwards, had a wash and washed his mouth. He also said he felt "[a] bit scared" of this conduct.

Count 7 A couple of nights later, the appellant again came to CD's bed. He said (T7.11.00 19) the appellant tried again, unsuccessfully, to put his penis into CD's anus. He forced CD to engage in mutual masturbation, then slid down the bed and forced him to suck the appellant's penis. CD said (T7.11.00 19) "I wasn't really participating in it, he would force it in … I'd have to open my mouth to breathe and that's when he forced it in". After he ejaculated on CD's stomach, he got out and climbed to RD's bed. CD had a shower. Count 9 CD gave evidence (T7.11.00 20) of a similar instance of forced oral sex occurring a few nights after this. 7 Counts 11 and 13 (sexual intercourse without consent) involve the second complainant RD. The Crown has provided the following summary: Counts 11 and 13 The first recollection RD had (T7.11.00 86-88) of sexual assaults by the appellant occurred in 1983, after the appellant had moved into the complainant's home following his motor vehicle accident. The appellant had been drinking. He woke RD up as he was going to bed and kissed him, forcing RD's mouth open with his tongue (T7.11.00 90) then fondled RD's penis. He put RD's penis in his (the appellant's) mouth. RD particularly remembered this occasion because of the toothpaste taste and the appellant's unshaven facial hair. RD turned 16 on 29 November 1983. He said the event occurred before he turned 16, because he went to Blacktown G-Cart racing Track on his birthday, and the assault had occurred before that. On another occasion, (T7.11.00 89-90) RD's mother came into the boys' room. RD was on the lower bunk, where the appellant slept. He was lying in the bed while the appellant knelt on the floor, sucking his penis. The appellant jumped into the bed and RD crouched down at the end of the bed. RD did this because he was scared and embarrassed (T7.11.00 90). RD's mother asked the appellant what he was doing, and he said he was just getting into bed (T7.11.00 91). The appellant had been drinking (T7.11.00 93). The complainant's mother gave evidence that she entered the boys' room one night (T8.11.00 15) when she heard RD, who was in bed, tell the appellant "to go to hell". She stood at the door and saw the appellant beside the bed. The complainant's mother was concerned about the relationship between the appellant and CD and RD on this occasion. She said (T8.11.00 15) that she asked RD if he had any worries about the appellant sleeping in the room and that RD had said "no, he's just silly when he comes to bed and wants to wake us up". 8 Both complainants gave evidence that the appellant had engaged in conduct of a similar nature to the specific acts alleged in the indictment over a lengthy period of time. 9 RD reported the complaint to police in 1997 and CD in early 1998. Each brother said in evidence that he had been too scared to speak to the appellant about his behaviour, despite continuing contact with him. 10 When told by police that there were a number of child sexual abuse allegations against him by the complainants, the appellant said: "there are some things". This was in May 1998. The appellant participated in two interviews with the police and videotapes of them were tendered. He denied the various incidents said to have occurred in the early 1980s and which were the basis of the charges in the indictment. However, he admitted that there were other, later occasions on which, he said, the complainants initiated sexual contact, but he said that this occurred when the complainant was 15 or 16. He denied the accusations that became the subject matter of the counts in the indictment. 11 The appellant gave evidence at his trial. He first met the family in January 1979. He agreed that there was regular contact thereafter but he offered specific denials relevant to whether the jury should accept the evidence of the complainants concerning unlawful events said to have occurred between January 1980 and December 1983. 12 The appellant denied the accusations charged and he gave some positive evidence tending to cast doubt upon the chronology of events according to the complainants. Under cross-examination he admitted kissing RD on the lips and putting his tongue in RD's mouth. He admitted in the record of interview and under cross-examination that RD was not "legally" old enough to initiate or consent to the sexual acts. He agreed that he gave no thought to the legal consequences of his own acts. He admitted to massaging CD near the groin area when he could have been in primary school and that CD got an erection as a result. In relation to count 3, the appellant told police in his record of interview that he and CD lay together on the bed that night before going to bed. He denied any other allegations of sexual assault that were put to him. 13 The appellant denied that he drove CD to and from basketball at the time when CD alleged it occurred (cf count 1), and he offered specific evidence to support this. First, school policy prevented primary boys playing in senior teams. Second, the appellant did not own a car in 1980 although in the middle of 1980 he had access to his parent's car. Third, a photograph of the under 14 basketball team in the 1980 school magazine did not depict CD, but did depict RD. Fourth, the appellant attended university lectures after school on Thursdays and they ran from 8 to 9pm. He tendered an essay submitted on 10 April 1980 (a Thursday). 14 The appellant said that he did not visit CD in his home following CD's fall in 1982. He denied the allegation that he masturbated CD. 15 The appellant said that it was not until October or November 1984 that he moved into the complainants' family home. He tendered some evidence capable of supporting this assertion. 16 The appellant said that the incidents between him and the boys of which he made admissions in the record of interview occurred later, after he began living permanently at the family home. These events were not covered in the indictment. The appellant admitted to acting dishonourably and unlawfully, but he pointed to the complainants' slightly older years and to their own alleged conduct as showing his misconduct in a less heinous light. He denied forcing sexual contact at any time. 17 The appellant was of course only on trial for the charges proferred in the indictment. It was for the Crown to prove that the appellant should not be believed as to his dating of those incidents which he admitted had occurred, or alternatively to advance some proper basis for the admitted misconduct to be used by the jury as evidence tending to prove the offences charged. The jury were told that the admitted conduct could be used as evidence of the relationship between the parties, but for no other purpose and they were reminded that, on the accused's version, the boys were over 16 at the time and had been instigators in the conduct in question. 18 In the upshot it is unnecessary to examine the appellant's challenges concerning the trial judge's refusal to sever the indictment and his failure to give stronger directions as to the very limited way in which the evidence of one complainant could be used in relation to the charges involving the other complainant. 19 There must be a new trial because of the directions relating to delay in complaint. The relevant directions were: Evidence has been given in this trial of events that are alleged to have occurred in about 1979 onwards to 1983'84 - some 17 years ago when the complainants were in late primary school and early high school according to the complainants and some years later according to the accused. Time has made it difficult for witnesses to completely recall circumstances and details - and you have got evidence just by listening to the various witnesses that have given evidence in this trial as to the way they say "Oh I can't remember that" or "It might have been round this date" or "I just can't remember that particular thing, can't bring it to mind" - as can be seen, as I say from nearly all the witnesses called on behalf of the Crown and the accused as well. And as well as perhaps leave scope for the dishonest, if there be any, witnesses. No complaint was made as I say until about 1997 or '98. Investigation has been made difficult by this delay, not only for the Crown but also for the accused. It is not easy to find records and witnesses after that period of time has elapsed. These matters lead to a situation in which the evidence may be unreliable for a number of reasons; one, the age of the boys at the time; the period of time that has elapsed, and as I say the interference occasioned to both sides to fully investigate. I said "may be unreliable" not must be. You should carefully consider the factors that I have mentioned when assessing the evidence and the witnesses and the weight to be given to the evidence of the various witnesses.

20 Over the last decade the High Court has emphasized the need for trial judges to warn a jury that it is unsafe to convict on the uncorroborated evidence of a complainant who gives evidence of a sexual offence long ago when the complainant was a young person. In stating the matter in this way I am not attempting to give a precise summary of the body of case law. The milestones are Longman v The Queen (1989) 168 CLR 79, Crofts v The Queen (1996) 186 CLR 427, The Queen v Johnston (1998) 45 NSWLR 362, Crampton v The Queen (2000) 75 ALJR 133 and Doggett v The Queen (2001) 75 ALJR 1290. A scholarly analysis may be found in the very recent judgment of Heydon JA (Wood CJ at CL and Carruthers AJ agreeing) in R v GPP [2001] NSWCCA 493. Heydon JA said (at [49]): It follows from the majority opinions in Doggett v R that delay coupled with forensic disadvantage is sufficient to create an obligation to give a Longman warning, and it follows from the majority opinions in Crampton v R together with that of Kirby J in Doggett v R that delay capable of creating the phenomena described by Deane and McHugh JJ in Longman v R is also sufficient.

The phenomena described by Deane and McHugh JJ in Longman include problems stemming from the impact of imagination, emotion, prejudice and suggestion on the capacity to "remember", especially as regards the events of childhood. 21 The circumstances of the present case demanded a Longman warning. The need for it was heightened by the rather unusual circumstances of this case, involving as they do an appellant who had admitted inappropriate and unlawful conduct (albeit not to the degree charged in the indictment) but who insisted that it was (in part) of a different nature to that charged and that it occurred at a different period in the family history when the complainants were older. 22 In light of the case law, the circumstances of this case required a warning as distinct from the comment embodied in the passage set out above. There is a further difficulty with that passage in that it suggests that the Crown case was also entitled to be viewed sympathetically having regard to the problems of delay. The purpose and form of a Longman warning are directed at protecting the accused from being convicted otherwise than in circumstances of heightened jury scrutiny and caution. 23 The Crown points out that the appellant was able to gather specific evidence tending to support his denials in relation to CD and his assertion that it was not until October or November 1984 that he moved into the complainant's family home on a permanent basis. The latter point assumed considerable materiality because of CD's evidence that the more serious counts of sexual intercourse without consent (counts 5, 7 and 9) occurred soon after the appellant came to reside at the home in the period following his car accident. Those counts were charged as having occurred between 1 February 1983 and 31 December 1983. 24 It is well established that one reason calling for a Longman warning is the forensic difficulty encountered by an accused person in a case such as the present, effectively oath against oath, in garnering information and evidence capable of challenging the complainant's account of events long ago. An aspect of this forensic difficulty is the inability to recall information vital to that challenge: unless it can be recalled it certainly cannot be garnered, tested and (if appropriate) proved in the case of the accused person. 25 The Crown invoked the proviso, relying particularly upon the appellant's admissions in his records of interview. This was, and apparently still is, a strong Crown case, but it cannot be said that a conviction was inevitable. Furthermore, the direction was fundamentally flawed and it is impossible to conclude that no miscarriage eventuated. 26 It becomes unnecessary to consider the remaining issues and it would in my view be unproductive to express any view upon them. It is difficult to conceive that, in any future trial, the defence would leave it to the end of the Crown case before pressing an application to sever the indictment. Whether or not that was a correct reading of this Court's interlocutory decision in R v Folli [2000] NSWCCA 460 need not be addressed. At any further trial the defence will have the totality of the evidence given in the earlier trial upon which to press any claim to sever the indictment. Failure to do so at the outset would probably lead to the inference that the defence saw tactical advantage in a single trial involving the two complainants. 27 If a future trial proceeds on a similar indictment then one would anticipate that both Crown and defence counsel will give the trial judge full assistance as to proper directions concerning the limited use of the evidence of one complainant touching independent acts of misconduct in relation to counts involving the other complainant. 28 I propose the following orders: 1. Appeal allowed. 2. Conviction and sentence set aside. 3. New trial ordered. 29 SPERLING J: I agree with Mason P. 30 McCLELLAN J: I agree with Mason P. ***************

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