REGINA v MURRE

COUNSEL : Mr P R Boulten (Appellant) Mr M C Grogan (Crown) SOLICITORS : Greg Walsh & Co (Appellant) S E O'Connor (Crown) CATCHWORDS : Sexual assault - complaint to police 25 years later - appropriate directions - content of Longman direction LEGISLATION CITED : Criminal Appeal Act 1912 R v CPK (unreported, NSWCCA 21 June 1995) CASES CITED: R v Eishauer (unreported, NSWCCA 19 September 1997) R v Longman (1989) 168 CLR 79 Crampton v The Queen [2000] HCA 60, (2000) 117 A Crim R 222 DECISION : Conviction quashed; Judgment and verdict of acquittal entered

IN THE COURT OF CRIMINAL APPEAL 60454/00

REGINA v Michael Anton MURRE JUDGMENT 1 GILES JA: I agree with Adams J. 2 HULME J: I also agree with Adams J. 3 ADAMS J: The appellant was charged under s 81 of the Crimes Act 1900 of a sexual assault which was alleged to have occurred in the winter of 1972 when he was teacher and the complainant was a schoolboy. They were respectively 22 and 13 years of age. The complainant first made a statement to the police about the matter in 1997, some 25 years after the event. The jury in the appellant's first trial had been unable to agree on a verdict. A second trial, conducted in May 2000, resulted in his conviction and, on 22 June 2000, he was sentenced to imprisonment for fifteen months suspended on certain conditions as to supervision. Before dealing with the grounds of appeal, it is convenient that I should set out the circumstances of the case.

The case at trial 4 The complainant gave evidence that, in the winter of 1972, he and three others, all being pupils in the same form at Marcellin College where the appellant was a teacher, went on a camping trip with the appellant somewhere in the Mittagong area outside Sydney. The purpose of the trip was to look for a suitable location for a future camp involving the whole class. They left Sydney sometime in the afternoon in the appellant's Wolseley car and arrived shortly before dusk. The camp site was something like an hour's walk from where the car was parked and it was necessary for them to carry the tent and other camping equipment to the site. When they arrived they erected the tent, gathered firewood and lit a fire, had something to eat and then went to sleep. The complainant slept in sheets and blankets on a ground sheet. He was lying next to the appellant, wearing tracksuit trousers over underpants. He said that sometime during the night he awoke to find that the trousers and underpants had been completely removed and were at the bottom of his bed roll. He was lying face down. The appellant was rubbing his hands up and down his back and backside. He said that he "just froze, I didn't know what to do". The complainant said that the appellant tried to put his hand under the left side of his body, that the complainant put "pressure" on that side to prevent him. The appellant's attempt to do the same on the other side was resisted in the same way. However, the appellant eventually succeeded and "started playing with my penis" for a minute or so. It was this fondling that was identified as the indecent assault upon which the prosecution relied. The complainant said that he could feel the appellant's breath and his stubble across the back of his neck and face. He said nothing because he was frightened. When the appellant stopped, the complainant lay still for the rest of the night, though he might have got some sleep. He said that, on the following morning, he was the last out of the tent because he did not want to get up as he was unclothed. He said nothing to the other students at this time. 5 During the day, the group went for a walk around a nearby lake area and the complainant recollected coming across an old squatter's hut which he described as "an old thing made out of cans mainly". There was an "old squatter" there with whom the appellant spoke. Eventually, the group returned to the camp site. That evening, as the students were getting ready for bed, the appellant went back over to the squatter's hut. The complainant took this opportunity to move his bed roll away from the appellant's. When the other boys wanted to know what was going on, he told them, "I'm not sleeping next to him again to night because he tried to have his way with me last night". An argument broke out because the others did not wish to sleep next to the appellant. The complainant said that, at this point, the appellant returned and heard the argument. He called them out of the tent. He was quite upset and asked what was going on. He told the complainant to come with him while the others waited. They had a short conversation in which the appellant sought to reassure the complainant by mentioning how pleasurable his first sexual experience with a man had been and told him to say no more about it. The complainant did not to sleep next to the appellant that night although he does not remember who did. (I will deal with the evidence of the other students in due course but it is curious that none of them mentioned who slept next to the appellant this night.) 6 On the following day the group returned to Sydney. The complainant remembered being dropped off at Randwick Post Office where he was picked up by his parents. He did not say anything to his father as his father was a very strict Catholic involved with the church and the complainant did not think he would be believed. He said that he felt very alone and very distraught. The appellant left the College at the end of 1972 and the complainant did not see him again for 15 years when he came across him at another school whilst he was working there. The complainant said that he had gone on other camping excursions whilst at school but did not remember whether he was then in second form or not. He was not asked whether he had been on other excursions with the appellant. In cross-examination, the complainant said, amongst other things, that he had been taken by police to the Mittagong area in an attempt to identify the campsite where the alleged offences occurred but that this was completely unsuccessful: the parking area, the campsite, the lake and the squatter's hut could not be found.

7 The prosecution called two of the other three students said to have been present on the camping trip. 8 Timothy Franklin said that he recalled the occasion of the camp. His description of the trip was, broadly speaking, consistent with that of the complainant, including identifying the car and the other students present. He did not remember the sleeping arrangements or if they used one or two tents. He recalled that, in the morning after the first night, the complainant said that he would not sleep next to the appellant on the following night, "because he did something and what he did I can't remember but he was pretty upset that morning". It seems that Mr Franklin did not recollect an argument about sleeping arrangements or any intervention by the appellant. He recalled the walk to the squatter's hut which he described in much the same terms as the complainant. Mr Franklin was first approached by police in August 1999 to make a statement. The substance of his evidence was that the investigating officer asked him whether he could recall going to a camp in 1972 with the complainant (who was named) and Michael Casey. He told the officer that he remembered the camp but he could not recall the name of the teacher. He inferred that the appellant was the teacher involved from the fact that the camp occurred in 1972. More significant, perhaps, was that Mr Franklin did not recall anything of significance happening at the camp. He said that he recalled the complainant's refusal to sleep next to the complainant about two weeks later. About six weeks or so later, he called the officer and made a further statement to the effect of which he deposed at the trial. He said that his memory had not been prompted by talking to anybody about the matter. He denied that his recollection had been affected by his conversation with police. 9 Michael Casey also remembered a winter camp with the other students and the appellant. His description of the trip was also much the same as that given by the complainant. However, he also recalled that particular trip because, during the walk from where the car was parked to the camp site, his feet became badly blistered from wearing boots which were too small for him. He recalled the complainant slept next to the appellant on the first night. He said that, on the following night, the complainant told the others, "He touched me, he's put his hand down my pants. I'm not sleeping next to him. One of you guys can sleep next to him". He said that the appellant overheard this and became quite "cranky", telling the complainant not to tell lies. He recalled the appellant taking the complainant to one side and reprimanding him. Shortly before Mr Casey made his first statement to police in June 1997 he had been telephoned by the complainant who reminded him of a camping trip in 1972 and asked whether he remembered that the appellant had touched him. The complainant then visited him to talk about the matter. He mentioned the area where the camp took place, the name of the teacher and the names of the other boys. Mr Casey recalled him saying, amongst other things, that his recollection was that the appellant had "touched him and put his hands down his pants". Mr Casey said, in effect, that his memory of what had happened had not faded, though he thought that another student, not Mr Franklin, had gone with them. 10 The third student said to be present was not called as he had since died. The appellant does not take any point from his absence. 11 The Crown tendered an article from the Marcellin College Annual 1972, which said that "class camps" were held on "the fertile plains of Mittagong (thanks to the courtesy of the Marist Brothers' Novitiate)". The complainant said that he thought the camp in question was a reconnaissance for such a camp. The reference to the Novitiate was never explained.

12 The appellant's case was a simple one. He denied that he had ever been camping as alleged by the complainant, Mr Casey and Mr Franklin. He denied that he had touched the complainant as alleged. The appellant denied that he owned a three or four man tent in 1972 or that he had access to one. He said that when a teacher took students on an activity such as camping it was necessary to obtain written consent from the parents and such records would had been kept by the College. However, it was his understanding that any such records had been long destroyed. The Crown does not dispute that this was so. The appellant maintained that he had traded in his Wolseley car for a Volvo sometime late in 1971 or early in 1972 although he candidly admitted in cross-examination that it was possible that he still owned the Wolseley in mid 1972. It may be accepted, and the Crown did not dispute, that any change of ownership would have been the subject of registration with the Road Transport Authority. However, these records are now unavailable. 13 Having regard to the unqualified evidence of the complainant and the other two principal prosecution witnesses that they had travelled to the campsite in the appellant's Wolseley, proof that in the appellant did not, in fact, own that vehicle at the material time would have had significant and adverse effects on their credibility. Proof that there was no school record of the appellant's having taken any students on a camp in the winter of 1972 would also have been significantly, perhaps decisively, destructive of the prosecution case. The Crown and (more crucially) the appellant, were deprived of the opportunity to rely on these objective materials. The appellant also said (and I think that this was very likely true) that he had kept a diary at the time, which had since been destroyed.

Fresh evidence 14 On appeal, the appellant tendered without objection the complainant's Victim Impact Statement, which had been received below in the context of the sentence proceedings. In that Statement, the complainant said, inter alia, that he had blocked out the incident from his memory for a decade until he saw the appellant in 1982, as I have mentioned. He said he went to the Principal of the School and "voiced my concerns", the appellant then left the school and "I put it to the back of my mind again". He said that, in May 1997 he saw some newspaper articles concerning the appellant which had a very substantial emotional effect on him: he could not sleep; he was inconsolable for days; his "suppressed" emotions came to the fore; and "I became aware of the effects of what happened in 1972 had had on my life, my beliefs and my attitudes". The newspaper reports concerned a charge of supplying marijuana to an 18 year old man who died in the appellant's home of a drug overdose. 15 It was argued on appeal that the apparent suppression by the appellant of his memories of the incident was a significant issue reflecting on the reliability of his evidence. This is undoubtedly the case: R v CPK (unreported, NSWCCA 21 June 1995); R v Eishauer (unreported, NSWCCA 19 September 1997). Of course, the significance of whether a memory is "recovered" or "suppressed" will depend upon the circumstances of each case. In this case, there was significant supporting evidence that a camp involving the complainant and the appellant occurred as he alleged and that he made a contemporaneous complaint that something of a sexual character happened between them. It was disclosed during the appeal, moreover, that the complainant had given evidence in the committal proceedings that he had "blocked" the incident from his memory for a decade. It would have been a very difficult forensic question for defence counsel whether to explore the circumstances in which there was, or might have been, a recovery of memory, in light of the circumstances in which it could have been thought to have occurred. 16 Despite the initial argument submitted for the appellant in the appeal that the trial miscarried because counsel at the trial was unaware of the possibility that there had been a recovery, it is clear (and counsel for the appellant conceded) that he must have been so aware, having regard to the disclosure in the committal proceedings. The most likely explanation for defence counsel not cross- examining the complainant on the matter is that he made a tactical decision based, no doubt, upon matters in his brief and his judgment about what was in the best interests of the appellant. There is no material before us that demonstrates that this decision was inappropriate, let alone that it caused a miscarriage of justice. 17 Accordingly, the ground of appeal based on the fresh evidence should be rejected.

The trial judge's directions 18 The appellant submitted that the learned trial judge's directions on the impact of delay were inadequate. Before dealing with the question of delay, his Honour pointed out that there was no independent support for the complainant's evidence of a sexual assault and directed the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that this evidence was both honest and reliable. His Honour then directed the jury, as to the evidence of all three principal Crown witnesses, that its reliability may have been adversely affected by the passage of time. His Honour directed the jury as follows - "[Finally], in relation to this aspect of the passage of time or delay, as you would appreciate, it can operate unfairly to an accused where there has been a delay in the authorities being notified of an allegation. As I say, the delay here is in the order of 25 years, that is, a quarter of a century. That sort of delay can operate unfairly to an accused because he or she has lost the opportunity of fully testing or challenging the complainant's account and credibility and has lost the opportunity of presenting material to a jury to rebut the allegations or raise a reasonable doubt about the complainant's veracity. In this case, you have heard about the incomplete nature of RTA records relating to the registration of motor vehicles as far back as 1972, the absence of school records and the fact that the accused says that he destroyed his own diaries for that period." 19 His Honour then went on to deal with the reasons that might suggest that the evidence of the three witnesses was unreliable, dealing with the history of communications that might have caused contamination of their recollections and the risk of unconscious confabulation. 20 These directions concluded with the following - "As I have said, the two features that I have been discussing, the passage of time and the possibility of contamination mean that the evidence of the complainant, Tim Franklin and Michael Casey may be unreliable. I warn you that it would be dangerous to accept the evidence of any of these three witnesses unless and until you have scrutinised it with the utmost care, bearing in mind the warning I am giving you and the reason for it. You would need to satisfy yourself that their evidence was both honest and reliable and you would need to satisfy yourself that you could, beyond a reasonable doubt, exclude the possibility that their evidence is the product of mistake or contamination before you accept it. Do not think, members of the jury, that I have given you this warning in order to send you some coded message about what my views are concerning the credibility of these witnesses. In all cases with features of this type that I have identified, all judges are required by an Act of Parliament to give the warning that I have given you in order to guard against miscarriages of justice and innocent people being convicted. They are not intended and you should not treat it as being an attempt by me to convey a view I might or might not have about the credibility of the witnesses." 21 The appellant submitted in this Court that these directions were inadequate to warn the jury of the dangers of convicting where there was such a substantial delay, despite the failure of counsel at the trial to seek further directions. 22 In R v Longman (1989) 168 CLR 79, Brennan, Dawson and Toohey JJ said (at 91) - "But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them...That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than 20 years that opportunity was gone and the complainant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales (1989) 168 CLR 23...and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice." (My underlining.) 23 McHugh J called attention to the particular problems arising out of childhood memories being recounted many years after the recollected events and added - "To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony." (My underlining.) 24 In Crampton v The Queen [2000] HCA 60, (2000) 117 A Crim R 222, Gaudron, Gummow and Callinan JJ made the point (at [45], 233) - "The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant . Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred [set out above] (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury." (My underlining.) 25 Kirby J set out in greater detail the prejudice suffered by the appellant which should have been brought to the attention of the jury as an emphatic warning and then added ([131], 256) - "Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability… The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected…That idea is contrary to the repeated authority of this Court in and since Longman . The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons… The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms." 26 Hayne J said ([142, 258) - "The trial judge did comment about the fact that the complainant made no complaint about the appellant until long after the incident was alleged to have occurred. As the trial judge said to the jury, this deprived the appellant of an opportunity to 'look at matters which were happening at about [the time of the alleged incident] and to raise them in evidence' and it probably reduced the capacity of the complainant to be accurate. As the joint judgment in Longman points out…it was proper to remind the jury of considerations relevant to the evaluation of the evidence and these were considerations of that kind. But what has come to be known as a ' Longman warning' is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. That warning was not given." (My underlining.) 27 The learned trial judge's directions in this case, as set out above, certainly warned the jury about the possibility that the delay in this case operated unfairly to the accused for the reasons that he mentioned. With unfeigned respect, I consider that these directions fell significantly short of a positive warning in unqualified terms of the crucial point that the defence was in fact unable adequately to test the complainant's - or, for that matter, the other witness' - evidence, so that the disadvantage to the defence and the danger of convicting in the circumstances was not merely potential but real. This was especially important because the jury might have mistakenly thought that, because of the cross-examination that did occur, the evidence for the prosecution had been fairly and adequately tested. Moreover, it is necessary to consider the impact of delay on any positive case that the accused might wish to raise. The jury would very likely have gathered from his Honour's direction that the only respects in which the appellant had been prejudiced by delay was the loss of the car registration and school records and the appellant's diary. But, of course, the appellant had lost much more than the records in question. The circumstantial network of his working and social life, which may have confirmed the change of ownership of his car at the crucial time or accounted for his movements in the winter of 1972, would have obviously long since dissolved. The same is true of the Crown witnesses. This problem was exacerbated by the inability of the prosecution to be precise about the date and place of the offence, a difficulty made all the more significant because the defence case, essentially, was that the accused had never attended such a camp. The inability of the complainant to identify the campsite may have reflected on his reliability as a witness, an argument of which his Honour reminded the jury, although it is likely that this was explained away in the manner pressed on this Court by the Crown Prosecutor, namely, it would not be surprising if, after all these years, the site could not be found. However, this is to demonstrate the problem rather than resolve it. Part of the problem with assessing the significance of imprecision and inconsistency in cases such as this is the strong temptation to explain them away by the passing of time. Imprecision and inconsistency, which in the ordinary case, would be significant, are discounted in favour of the prosecution. The extent to which these matters may have assisted the defence or the prosecution is necessarily uncertain, but that very uncertainty gives rise to the danger about which the jury must be warned. The risk that the jury will not appreciate that the case it is hearing may well be, to a greater or lesser extent, an artefact, which has been shaped, as it were, by the corrosive effects of time, is a very real one, requiring emphatic directions. With unfeigned respect for the learned trial judge, I consider that his Honour's directions fell significantly short of the warnings required by Longman and Crampton. 28 To my mind, the reference by his Honour to the obligation to give the warning as arising by Act of Parliament was, with respect, likely to have qualified its force. It is of the essence of the extracts that I have cited above from the various judgments in the High Court of Australia that the warning must be expressed as arising from the experience of the Courts. Juries are not likely to think that Members of Parliament know very much about the evaluation of evidence in a criminal trial. It also seems to me that the concluding words of his Honour may have been taken by the jury to mean that, in the circumstances it was considering, the warning may not apply and the danger might not be present, when the opposite was the case. 29 No application was made at the close of the summing up for further directions. Nevertheless, I have concluded, with respect, that the learned trial judge's directions were so flawed as to give rise to a miscarriage of justice and, accordingly, I would allow the appeal. In light of matters referred to below, it is unnecessary for me to consider the remaining ground of appeal, namely that "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence" under s 6(1) Criminal Appeal Act 1912.

There should be no new trial 30 I have mentioned that this was the second trial undergone by the appellant, the jury on his first trial having been unable to agree. The alleged offence took place 29 years ago, when the appellant was 22 years of age. The submissions of the appellant in connection with the "unsafe and unsatisfactory" ground focussed on the impact of delay, the inability of the prosecution to identify the place where or the date when the alleged offence occurred, the loss of diary, registration and school records, the possible contamination of the evidence of Messrs Casey and Franklin by what they were told by the complainant and the police and the discrepancies between the witnesses about the complaint made by the complainant and the circumstances in which it was made. To these considerations I would add the question whether a sleeping person could have his underpants and trousers completely, or even partly, removed without waking up and the very different (though brief) description of the alleged offence given by the complainant to Mr Casey in June 1997 from that which he gave in the trial. These considerations lead me to conclude that the prospects of conviction on a third trial are at least doubtful. 31 The appellant was sentenced over a year ago and has substantially served the period of his suspended sentence of fifteen months. Whilst not trivial, the seriousness of the alleged offence justified the course taken by his Honour, the learned sentencing judge, and the Crown did not question the adequacy of the sentence. That a guilty person should have the guilt marked by a conviction, even if the sentence is not significant, must be recognized, but so must the fact that the sentence has been served under a flawed conviction. 32 Having regard to all the circumstances, I propose, that the Court should not order a new trial but that the conviction should be quashed and a judgment and verdict of acquittal be directed to be entered. ****************

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