REGINA v. HUGHES [2000] NSWCCA 3

No. 60128 of 1999 CORAM: GROVE, J. HIDDEN, J. GREG JAMES, J.

1 GROVE, J: I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: On 11 March 1999 the appellant was indicted before his Honour Judge Shillington, QC. at Sydney District Court on four counts that between 31 December 1978 and 30 June 1979 at Vaucluse in the State of New South Wales he did commit with Stephen James Reed the crime of buggery. There were two additional counts that he, between 31 December 1978 and 30 June 1979, at 23 Warners Avenue, Bondi in the State of New South Wales did commit with the same person the same crime. 3 He was convicted on all counts and sentenced to a minimum term of three years penal servitude and an additional term of three years. 4 At the trial the complainant gave evidence, as also did Alan Harper. That evidence related to events that were identified by both witnesses as having occurred in 1979 at, as far as the first four counts were concerned, in the appellant's grocery shop opposite another business the appellant carried on called the Telephone Shopping Centre in Vaucluse. 5 The complainant gave graphic evidence of the circumstances of the commission of the crimes and in particular gave evidence of these crimes having been committed whilst he was employed by the appellant stacking goods on shelves initially and otherwise at the shop. He referred to his obtaining the employment in consequence of having seen a sign in the window of the shop and having spoken to the appellant as the operator of the shop. 6 Mr. Harper gave evidence confirming the initial contact between the appellant and that employment and the timing of it as following the Christmas holidays and in the commencement of 1979. 7 Subsequently, according to the complainant, he had been taken by the appellant to the premises at Warners Avenue, Bondi, where the additional two offences had been committed. Initially, when speaking to the police concerning those offences, the complainant showed some inability accurately to describe the location of the appellant's flat within those premises. 8 The complainant continued to work with the appellant, but with the Telephone Shopping Service, for some time following the commission of these offences and for many years told no one of the commission of these offences upon him, although in the 1990s he said he saw a van with the appellant's business name on it drive past him and rang the appellant asking if he could remember who he was. He contended that the appellant had said, "You were little Stevie". The appellant denied that was the content of the telephone call. 9 In cross-examination it was raised with the complainant the suggestion that the appellant had not had access to the premises in 1979 and indeed had not opened the shop until 1981. This was denied. Quite crucially in the Crown case, this matter which had not been an essential element of any of the offences, took on such a complexion of importance that the learned trial judge in his summing-up directed the jury:-

"You are reminded the real issue raised by the accused is whether he was running the business in 1979 and he has produced certain documents. The Crown says, 'Well, these are documents which he could have manufactured afterwards to bolster up a false case'. There is nothing from an independent source. There are no tax records, for example, or records of the purchase of the business. There is no evidence from the person from whom he bought the business, Thomas, substantiating these matters. For these reasons, amongst others, you can be satisfied beyond reasonable doubt that you could safely and confidently act on the evidence of Lee." 10 This passage encompassed the arguments his Honour referred to as put by the Crown at trial. 11 As I have said, both the complainant and Harper were cross-examined to suggest that the offence did not occur at that time and at that place and, indeed, were further cross-examined, and it was put expressly, in particular, to the complainant that the offences alleged had not occurred at all. 12 The appellant gave evidence. He denied the offences. He had earlier, in a record of interview, denied to the police the commission of the offences and denied memory of the complainant. He referred in his record of interview to his having purchased the grocery shop, he thought in the 1980s. He had referred to his various home addresses. In his evidence he asserted that he had a provedore business at the address opposite to that at which his shop was alleged to be since 1976 and that he had purchased the shop from a man named Joffrey Thomas, or Joffrey Thomas and his wife, in April 1981. 13 He asserted he had no physical connection with the business before that time, although he had supplied that business from the provedore business. In his evidence he asserted he had checked his records recently before giving evidence and had found a bill of sale for the stock in the shop, a handwritten copy of a document that he had submitted to the Corporate Affairs Commission, he said in 1981, together with a cheque butt showing, he said, payment to the Commission. These were tendered in evidence. 14 He referred also to a milk vendor's licence which he said had been transferred to himself, cheque butts for electricity and telephone deposits, and a reference which he said he had provided to the complainant, a reference the complainant had denied receiving, and produced what purported to be a copy of that reference showing employment by the complainant in his business for a period between September and November 1981. These were also tendered. 15 The Crown Prosecutor in response cross-examined the appellant in respect of his assertion of lack of contact with the shop in 1979 and in relation to the documents, suggesting that the assertion he had not been associated with the shop in 1979 was an invention, recently made, raising why the appellant had not called the vendor of the business, Joffrey Thomas, or his wife; raised the absence of the solicitor's records of purchase; suggesting that the bill of sale could have been given at any time, further suggesting that the Corporate Affairs return might have been manufactured or fabricated for the purposes of the trial and that the cheque butts had been back-dated. 16 It was put that those documents and the story were all made up. The absence of the appellant's tax returns at the relevant time was referred to and questions were put seeking the employees' wage books. It is notable that in re-examination it was raised that these records were offered to the police in the record of interview but not searched, and it was further raised in argument before his Honour that these matters had been adverted to by defence counsel at the committal. 17 When the trial commenced the precise time at which it was alleged the offences had been committed was not so important as to amount to an element of the offences or crucial to prove all the offences. However, by reason of the conduct of the case, the place at which it was alleged the offences had been committed and the time at which it was alleged the offences had been committed, became critical, since to succeed in the prosecution it was necessary for the jury to be satisfied beyond reasonable doubt of the matters asserted by the Crown witness which were, except to the limited extent referred to by Mr. Harper, uncorroborated, and since the offences were denied. 18 In that sense, the places at which and the time at which the complainant says these offences were committed was practically essential to acceptance of his evidence. Indeed, I would regard it as crucial in the sense referred to by the Chief Justice in The Queen v. VHP (CCA, unreported 7 July 1997) when he refers to such matters at 15:- "As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable." 19 In this case the issue of the credit of the complainant was to be tested having regard to the place and the time at which he said the offences had been committed. Proof of the place and time were essential to the acceptance of the complainant's account as reliable on the necessary matters. I am of this view particularly in the context that the events said to give rise to the offences are said to have occurred over twenty years ago and to have remained unknown arising from the failure of the complainant to complain for many many years, such that, as was pointed out in evidence, many of the records that might otherwise have assisted to test the propositions asserted had been archived or were otherwise unavailable. 20 On this appeal it is sought to rely on evidence which is set out in the affidavits of William James O'Sullivan sworn 8 December 1999, the undated affidavit of William James Sullivan, the affidavit sworn 10 December 1999 of Michael Marx, solicitor, and the affidavit of 16 December 1999 sworn by Peter Mark Skinner, trial counsel. Those affidavits relate in particular to documentation now obtained from the Corporate Affairs Commission showing the lodging of a Statement of change of certain particulars of the appellant's business, which document on its face appears to offer cogent support for the documentation provided by the appellant at his trial, which documentation was alleged to have been invented and forged. 21 It was documentation which might well have been tendered in re-examination to rebut the suggestion of recent invention. However, the trial commenced on 11 March 1999 and was concluded with a verdict adverse to the appellant the following day and the material was not available in time. 22 The affidavit material discloses counsel's request for the material at the time at which the Crown raised the allegations and the attempt to obtain the material, which attempt however was unsuccessful since the material had been archived. 23 For my part, bearing in mind the way in which the trial was conducted, I am of the view that that material should be admitted on this appeal in accordance with the principles referred to by this court in The Queen v. Saleam (1989) 16 NSWLR 14, in which the court held that even though the evidence might not be new it would be admitted if, when admitted, it would show that a miscarriage of justice occurred at trial and it is of such significance that a reasonable jury might regard it as having a real bearing on its decision, even though its existence was known to the accused, provided that its significance was not realised by him at the time of the trial and provided that its existence was not made known to the accused's legal advisers at the trial. 24 This material was effectively unobtainable at the trial, unknown to counsel until too late, and the issue that the Crown would assert of documents otherwise apparently regular being fabrications and forgeries was not one reasonably within the expectation of counsel. 25 Having regard to that material, it seems to me that the appellant has made out the proposition for which he contends in his grounds of appeal that there has been a miscarriage below. The question then arises as to the gravity of that miscarriage. 26 Essentially this was a case which turned on credit. The new material is such as, in my view, to have adversely affected the credit of the complainant. It is not such as, in my view, would entirely dispose of the question of the complainant's credibility so that the verdict should be treated as one which it was not open to a jury to reach. 27 In those circumstances, the question of a new trial becomes a question for the exercise of the discretion of this court. 28 It has been raised that at such a trial or at this trial it would have been open to the Crown to put a wider case; that is, that the offences were committed at some other date. All that I need say about that is that the controversy as to date was raised in the record of interview at committal. The wider case was not run at this trial. Particularly the Crown Prosecutor put that the events could not have occurred in 1981 because that was the year of the complainant's School Certificate, when he was not then working. The indictment was not then amended and such an assertion would involve a two-year error on the part of both Harper and the complainant. As a practical matter it would seem to be unavailable. 29 Nonetheless, I do not see that this is a case in which the Crown should not have the benefit of a new trial on the counts that it has presently preferred. In my view, this is a matter in which it would be open to submit the matter to a jury, although it would remain a question for the Director of Public Prosecutions, bearing in mind the age of these matters and what occurred at this trial and the evidence by the complainant and Harper, asserting apparently with some degree of conviction the date 1979, as to whether the Director would wish to proceed further. 30 I would propose that leave to rely on the fresh evidence be given, that evidence be admitted. Leave to appeal insofar as it might be necessary be granted. The appeal upheld and a new trial ordered. 31 GROVE, J: I agree with the judgment delivered by Greg James, J., save that I would refrain from any comment about the aspects of any new trial. I would content myself with saying that, in my view, the discretion of the court ought to be exercised so to order. 32 HIDDEN, J: I agree with Greg James, J. 33 GROVE, J: The orders of the court therefore will be as proposed by Greg James, J.

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