Regina v Naudi

Court of Criminal Appeal (NSW)|1999-08-06|Before: Newman J, Windeyer J, Sperling J, Honour Judge J

New South Wales Court of Criminal Appeal CITATION : Regina v Naudi [1999] NSWCCA 259 FILE NUMBER(S) : CCA 60620/97 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 25 August 1999

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/31/0215 LOWER COURT JUDICIAL OFFICER : J B Phelan DCJ

COUNSEL : B A Caffrey (Appellant) M M Cuneen (Crown) SOLICITORS : Barry Lazarus Lawyers (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - appeal against conviction and sentence - EVIDENCE - admissibility of evidence - exercise of right to silence and refusal to give blood sample - appropriate directions given by trial judge during trial and in summing up Criminal Appeal Act 1912 s6 ACTS CITED : Criminal Appeal Rules, r4 Evidence Act 1995, ss 164(3), 165, 165(2) CASES CITED: Berrigan CCA(NSW) 7 October 1994, unreported; Jones (1997) 72 ALJR 78; Kilby (1973) 129 CLR 461; Longman (1989) 168 CLR 78; Matthews CCA(NSW) 28 May 1996, unreported; Reeves (1992) 29 NSWLR 109; DECISION : Appeal against conviction dismissed; leave to appeal against sentence allowed; appeal against sentence dismissed

1 NEWMAN J: I have read the judgment of Windeyer J and I agree with both the reasons he gives and the orders he proposes. ************

Wednesday 25 August 1999 THE QUEEN v Vincent NAUDI

2 WINDEYER J: The appellant Vincent Naudi was indicted on 11 charges before His Honour Judge J.B. Phelan in the District Court Port Macquarie on 18 August 1997. Nine of these charges alleged sexual intercourse with a female person under the authority of the appellant and under the age of sixteen years during the period from 1990 to November 1994. The complainant, the complainant, was born on 1 February 1979. Eight of the charges related to alleged acts of intercourse in 1994. One charge alleged assault in 1994 and the appellant pleaded guilty to that charge. The final charge alleged assault of the complainant occasioning actual bodily harm to her some time between 20 May 1994 and 25 May 1994 at Port Macquarie. 3 The trial began before the jury on 18 August 1997. The appellant pleaded not guilty to all charges except that of assault referred to. The jury returned verdicts of guilty on all charges on 22 August 1997. The trial judge sentenced the appellant to (a) a fixed term of six months commencing on the date of sentence on the charge to which there was a plea of guilty (b) to a fixed term of one year on the charge of assault occasioning actually bodily harm; (c) in relation to all charges of sexual intercourse a minimum term of six years commencing on 8 February 1997 and an additional period of two years expiring on 7 February 2005. 4 The appellant appeals against both conviction and sentence. While there is a general appeal against sentence no argument was addressed to the sentences on the assault charges, it not being suggested they were excessive. Both terms have, of course, expired. 5 The Crown case was that the complainant had lived with the accused and his then wife from the age of about ten or eleven after her mother had died in 1990. She moved to Port Macquarie from Sydney there apparently being no one else who was willing to care for her, or at least she having that view. Sharon Lesley Robb, as she is now known, was married to the appellant. She had been a close friend of the complainant's mother. She and the appellant had two children, Jye born in 1987 and Tristan born in 1994. During the time The complainant lived with them they lived, first in two flats in succession in Port Macquarie and finally in a house in Port Macquarie. From time to time Mr. & Mrs. Robb, the parents of Sharon Robb, went to Port Macquarie to help look after the children when their daughter went to Sydney for treatment required as a result of an accident. Mr & Mrs. Robb lived at Sawtell and the appellant and his family, including The complainant, often stayed with them there. Grounds of Appeal 6 Ground 10. The learned trial judge erred in comments in respect of the coat hanger incident 7 It is convenient to deal first with the charge of assault occasioning actual bodily harm as it is separate from all other allegations which relate to sexual misconduct. This was the third charge. There was uncontested evidence that on many occasions the appellant, after arguments with the complainant, told her to pack her bags and leave Port Macquarie and go to Sydney. Sometimes she did leave and go to Sydney and sometimes she stayed. When she did leave, the appellant always asked her to return. On the occasion in question in May 1994 the complainant said that because she would not do what the appellant wanted her to do he required her to leave, that as she was packing her clothes and he was throwing clothes into her bag that he pushed her through a wardrobe and picked up a coat hanger and stabbed on her lower right calf with it. The appellant who gave evidence did not dispute that he had thrown the clothes at her, but said that somehow the coat hanger must have been among the clothes. He said he had no intention whatever of injuring her with it. The appellant complains the judge's summing up was confusing. The relevant part appears on page 15 where the following appears: But for the Crown to prove its case first of all it must prove that there was a striking or an application of force, that is without consent.

It is not suggested by Mr. Pullinger that there was any consent to the act. That it was intentional, and that it was without lawful excuse. Now a person in the position of authority, and it is not disputed that the accused was here, in effect, the father of the complainant, it is not suggested that in this case that the act as The complainant said took place, he was offering her some parental chastisement. That hasn't been put in this case. It might be an explanation which would mean that it would be done with lawful excuse, but it is not suggested in this case at all. 8 Counsel for the appellant submitted that this would indicate a direction or statement to the jury that the act was intentional and without lawful excuse. It is clear that the passage as printed does not give a true picture of the passage as heard by the jury. The only problem is with the punctuation introduced in the transcription The passage would have flowed as follows: But for the Crown to prove its case first of all it must prove there was a striking or any application of force that is without consent (it is not suggested by Mr. Pullinger there was any consent to the act), that it was intentional, and that it was without lawful excuse. 9 If there was any possible doubt it must have been dispelled by the direction on page 16 of the summing up where the learned judge said: So the things that have to be proved by the Crown that there was first of all a striking, and application of force, without her consent; It must be proved it was intentional, not accidental and the accused does not deny in this case there was a coat hanger incident. 10 The requirement to find intent was reiterated on the next page. 11 The summing up was not unclear as asserted. This ground fails. Sexual intercourse charges

12 These charges relate to a series of incidents as I have said occurring for the most part in 1994. In fact the complainant in evidence said that there was intercourse on many more occasions over a period of years, but said she had been asked to identify particular occasions by means of relating these to particular incidents or events in the home or in the family or to particular outside activities. There was evidence of physical contact such as back scratching and massage, which the trial judge said might be described as introductory acts before the first alleged act, the subject of charge, is said to have taken place. The first charge related to an incident said to have taken place at Sawtell during the school holidays after Christmas 1990 at the home of Mr. & Mrs. Robb senior. The third charge relates to an alleged incident at Port Macquarie when, according to the complainant, late at night the appellant went to her bedroom, got in beside her and lay beside and inserted his penis into her vagina, she having her back to him. The fifth count alleged an incident of fellatio on an occasion when Sharon had taken Jye to a t-ball game and the appellant and the complainant were left in the house alone or perhaps with Tristan. The sixth count alleged an incident early in the morning before the appellant was to go on an early morning fishing expedition, this again taking place in The complainant's room in her bed. The seventh count alleged an incident on a mattress in the front room of the house where, according to the evidence, the appellant often slept. It seems that this was the first occasion it is claimed the appellant had intercourse astride the complainant, on prior occasions, she being in a foetal position which hurt her less. The eighth count alleged an incident of some significance. The complainant said that she had been given a particular nightdress which the appellant had ordered her not to wear considering it was not decent. Nevertheless she said that some time between September and November 1994 he had told her to put it on, that he had jumped into bed beside her and, probably for the first occasion at least other than during a period, had ejaculated inside her, and that she took off the nightdress and put it away, not wanting Sharon to see it. Later the nightdress was subjected to examination and there was evidence of semen having been found on it. There was evidence to which I come later making the jury aware that the appellant had refused to submit to a blood test. The ninth charge related to an alleged occasion when the complainant was accompanying the appellant during his work. The tenth charge was a claim that when she was showering the appellant came into the shower and inserted his penis into her vagina under the shower. The last occasion is alleged to have occurred in the complainant's bedroom in what she said was the usual way. 13 By January 1995 the appellant and his wife had separated. As a result of Family Court proceedings Sharon, the complainant and the children were living in the home at Port Macquarie and the appellant was living elsewhere. There were some arrangements in place for access. On 15 January 1995 when the appellant had come to see his sons there was an argument, between him and the complainant which started over a lawn mower. The argument continued inside the house. There are somewhat different versions of the events but certainly the appellant blamed The complainant for a lot of his problems and asked whether she (the complainant) had told her mother (meaning Sharon) about the incident in the shower. He said the complainant responded by saying something like "It's alright for me to be quiet for past five years and now you are going turn around and blame it on me". Sharon said the complainant had said: "It's alright for you to molest me." At this stage Sharon had slapped the appellant across the face and said "I trusted you, I trusted you with my children, what the hell have you been doing". There was a further argument, Sharon called the police, Constable Durbridge arrived and shortly thereafter asked The complainant about occasions of sexual abuse. This ultimately led to further investigations and the charges against the appellant. 14 The appellant gave evidence at the trial and denied all the matters alleged. On the other hand he admitted that on many occasions he lay beside the complainant in the same bed. There was evidence from Mrs. Robb senior that she had seen him on many occasions in the same bed as the complainant and from Sharon of at least one such occasion. There was evidence from Sharon of the complainant crying out on many occasions at night, of her seeing the appellant coming out of the complainant's room saying he had punished her for telling lies. 15 Ground 1. The learned trial judge erred in admitting into evidence the record of interview in which the appellant exercised the right to silence. 16 The record of interview was not admitted but part of the record of interview with the appellant conducted by Senior Constable Davis was read before the jury. This appears from Appeal Book page 160. This includes material as to living arrangements, employment of the appellant and the relationship between the appellant and the complainant, the latter going to his having authority over her. When evidence was given as to the accused exercising his right to remain silent at the stage when the complainant's allegations commenced to be put to him, which would explain why the interview went no further, the trial judge gave an immediate direction to the jury on the right to silence, repeating it in the summing up on two occasions. That direction was sufficient to overcome what otherwise might have been the possibility of an unfavourable inference being drawn against the appellant. The admitting of the evidence, and the directions given thereafter, were precisely in accord with the decision in R v Reeves (1992) 29 NSWLR 109 at 115 and R v Matthews (CCA (NSW) 28 May 1996, unreported). This ground fails. 17 Ground 2. The learned trial judge erred in admitting into evidence the fact that the appellant had refused to give a blood sample. 18 Ground 3. The learned trial judge erred in admitting into evidence the complainant's nightie and the biologist's evidence in respect of the semen found on it 19 The appellant argued that the jury could only draw an unfavourable inference from the adducing of this evidence. However, evidence as to the semen on the nightdress was undoubtedly evidence admissible under s55 of the Evidence Act relevant to the eighth charge. The complainant said that she was wearing the nightdress at the time of the alleged event. The question was whether that event took place. The evidence of the semen could rationally affect the probability that the event complained of took place, and some corroboration of it. No objection was taken to the admissibility of this evidence. I would give leave under r4 but find the ground fails. 20 The evidence as to refusal to allow the taking of a blood sample came during the evidence of Detective Sergeant George, who was reading to the court a statement recording a conversation which referred to the nightdress. The following appears at page 175 of the Appeal Book (Transcript p165): CROWN PROSECUTOR: Q: Would you continue please paragraph 10?

A: I said, "Would you agree to having a blood sample taken for the purpose of analysis in regards to the semen found on the young girl's nightie?" He said: "I would like to speak to my solicitor first". I said, "Alright, I will ring him for you, and you can speak to him about it". I spoke to a Mr. David Chester, solicitor. Then the accused had a conversation with him at the completion of which I said to him, "Would you now agree to having a blood sample taken"? he said, "No, I have been told by my solicitor not to". HIS HONOUR: Members of the jury, a few minutes ago I told you that on no account would you draw any adverse inference or conclusion against the accused because he exercised his right to silence. Similarly, when he is asked to give a blood sample he has a right to decline to do so and, again, the jury is not permitted to draw any adverse conclusion whatsoever adverse to him So the only reason the Crown leads the evidence is to show that he exercised his right to silence, in other words, there is no evidence that he gave an explanation about the matters. Secondly, that the Crown endeavoured to get a blood sample but he exercised his right to decline to give it. So it simply explains why the Crown does not present evidence in those two areas. So it is quite impermissible for you to draw any conclusion from that, any inference or anything of the type. 21 Once it is held the evidence about the night dress and the semen was properly admitted then the evidence that the appellant refused to give a blood sample was properly admitted to explain the absence of evidence from the Crown: R v Berrigan (unreported NSWCCA 7 October 1994); R v Reeves (1992) 29 NSWLR 109 at 115. It should be noted that the trial judge immediately gave an appropriate warning to the jury. He did not do so again during his summing up although he did again refer to the right to remain silent. No complaint or application was made about the summing up. These grounds fail. 22 Ground 4 The learned trial judge erred in advising the jury that the appellant had pleaded guilty to the fourth charge in the indictment. 23 The appellant argues that the jury could well have concluded that because the trial judge at an early stage mentioned that the accused had pleaded guilty to one charge then they should think that he was guilty of the others as well. 24 The jury panel heard the plea; no complaint was made at the time about that. The summing up made it perfectly clear that each charge was to be considered separately. The judge referred to ten separate trials. The jury was told on a number of occasions that the fourth charge did not concern them. It could not be said that there was any possible risk of the jury's mind being contaminated by their having been told of the guilty plea in the way that they were told. In fact counsel for the appellant at the trial led evidence of this plea. This ground fails. 25 Ground 5.The learned trial judge erred in failing to warn the jury about the need for caution in determining to accept the complainant's evidence and the weight to be given to it given the delay in making complaint and lack of satisfactory reason for the absence of complaint. 26 In questioning from the Bench Counsel made it clear that this ground of appeal overlapped with ground 7,namely failure to give a "Longman direction". Counsel was specifically asked whether he relied on Kilby v R (1973) 129 CLR 461. His written submissions did not refer to it, but rather relied upon the following passage from Jones v The Queen (1997) 72 ALJR 78 at 82: The fairness of the trial had necessarily been impaired by the long delay 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 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. 27 Counsel for the appellant said at first that he did rely on Kilby. His was attention drawn to that part of the summing up dealing with the question of complaint which is at page 20 of the summing up as follows: But sometimes it may assist a jury to consider whether a complaint has been made and to determine whether it assists in deciding whether to accept the version of the alleged victim.

Counsel then said that, having considered that, his submission was that it should have been stronger and in terms of either Jones or Longman . In other words his complaint under this ground was that there was a failure to give a direction along the lines of Jones or Longman v The Queen (1989) 168 CLR 78. This is made apparent from the following which appears on page 11 of the transcript on the hearing of the appeal: SPERLING: J You are saying that the deficiency was in the failure to give a direction along the lines of Jones and Longman? CAFFREY: Yes, Your Honour. Especially Jones. To conclude that section, [Appeal Ground 5] the complainant offered no explanation for this delay in making complaint. Obviously we are only talking four years, not 20 as in Jones, but even after one year in which the complainant frequently stayed with other relatives, stayed with other friends, and in different cities even, it would be almost impossible, in my submission, for this appellant to adequately have contested the complainant's evidence and the jury should have been given a warning in that respect because it became then sort of impossible or prejudicially unfair for the then criminal defendant to trace his actions after delay. We must remember his occupation was such he did travel a lot, he was in the business of cleaning offices and business and he travelled a lot so he was away and it would be hard, even after a delay of one year, to trace back and account for his time. 28 It is clear, having regard to this exchange, the direction of the trial judge referred to, and the fact that no further direction was sought at the trial, that this matter should properly be considered with ground 7 and I will deal with it again there. 29 Ground 6.The trial judge erred in not fully explaining to the jury why it would be dangerous to convict the appellant on the uncorroborated evidence of the complainant. 30 This ground also seemed to overlap with ground 7, but so far as it was separate the requirement is of course that the accused have a fair trial, so that notwithstanding s164(3) of the Evidence Act, if it is necessary to do so a warning can be given. 31 The evidence of the complainant was not uncorroborated. There was evidence of the appellant being the habit of moving around the house during the early hours of the morning; of his not normally sleeping with his wife, but sleeping in the lounge room; by his mother-in-law of his walking in and out of the complainant's bedroom and her seeing him lying in the bed beside the complainant; of the appellant's then wife seeing the appellant lying in bed next to the complainant; of the appellant himself admitting that he had been in the same bed as the complainant on a number of occasions; and less significant of the complainant's hymen not being intact. Corroborative evidence does not mean evidence of the actual event the subject of the charge, it means evidence capable of connecting the accused with the events charged. This ground of appeal must fail. 32 Ground 7. The learned trial judge erred in failing to give a 'Longman' direction. 33 As I have said, this ground overlapped with grounds 5 and 6 and should be considered on that basis. The appellant accepted that it was not a requirement that a trial judge give a warning that it is dangerous to convict on uncorroborated evidence, but relied upon the obligation of the judge to give an appropriate warning where the evidence is of a type which is unreliable. This reliance was grounded on s165 of the Evidence Act 1995. To that extent it was incorrectly based as no application was made for such a direction under s165(2). Nevertheless this ground of appeal should be considered on general grounds and as I have said in conjunction with grounds 5 and 6. Counsel for the appellant relied upon the passage in Longman v The Queen (1989) 168 CLR 79 at 86 that: The general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.

The warning referred to is the warning to which appeal ground 6 is specifically directed. 34 As I have said there was evidence to corroborate the allegations of the complainant. But leaving that aside, the argument of Counsel for the appellant was that a warning should have been given so as to bring to the attention of the jury the fact that as complaint was not made soon after the event, the appellant may have lost the opportunity of examining the circumstances and adducing evidence to throw doubt on the complainant's story or which might confirm the denial of the appellant. Counsel said that after the lapse of four years that opportunity was gone. 35 As I have pointed out eight of the nine charges relating to sexual intercourse alleged incidents said to have occurred in 1994. According to the complainant these were selected so that it would be possible to relate them to particular identifiable occasions. It has not been suggested that the appellant had any difficulty with that or that he could not identify the particular incidents alleged to have occurred. No request was made for such a direction. I do not think that leave under r4 ought to be given but if it were given I consider this ground would fail. The point as to prejudice could only have value so far as the first charge of sexual intercourse is concerned in any event. It follows that ground 5 fails as well. 36 Ground 8. The learned trial judge erred in his over emphasis on the Crown case in summing up to the jury. 37 The judge was obliged to put the matters relating to each of the separate charges to the jury. As the appellant denied all the charges it could not be said that in taking more time over the Crown case there was over-emphasis given to it. A particular complaint was made that the trial judge said "Each of the allegations that can be proved here tended to take place in Sharon's absence" indicated that those particular charges had been proved. That is not correct. What the trial judge was directing the jury to was what the Crown had put to them. It is perfectly clear from a reading of the transcript that the judge was at pains to tell the jury that the Crown must establish each charge beyond reasonable doubt. This ground fails. 38 Ground 9. The learned trial judge erred in referring to the fact that the appellant's marriage had broken up. 39 The argument is that this should not have been said because it might have indicated to the jury that the appellant must have been guilty because his wife would not stand by and support him. Counsel for the appellant led evidence as to the breakdown of marriage. The jury in any event knew that the accused and his wife had separated because the argument which led to the complaint and ultimately to the trial, occurred when the appellant was on an access visit to see him children at the home at Port Macquarie. The reference in the summing up occurred in a passage where the judge was directing the jury to their task and pointing out that they were not to be swayed by sympathy towards the complainant or the accused. There is no substance in this ground. 40 Ground 11. A conviction in all these circumstances was a miscarriage of justice. 41 Unless any of the other grounds were made out then it is accepted this ground would fail. 42 Ground 12. The sentence is manifestly excessive. 43 The maximum sentence applicable to each of the charges as to sexual intercourse is ten years. When the conduct of the appellant is taken into account, it is I think correct to say the sentence is towards the top of the range of sentences proper for such conduct, but it could not be said to be outside that range or manifestly excessive. 44 In all the circumstances the appeal should be dismissed. I propose the following orders;

Appeal against sentence dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60620/97

Wednesday 25 August 1999 THE QUEEN v Vincent NAUDI Judgment 45 SPERLING J: I have read in draft the judgment of Windeyer J in this appeal. I agree with the orders he proposes. My reasons are as follows. Ground 1 46 I agree that this ground fails. I am, however, uneasy about the authorities which say that evidence of the accused exercising the right to silence when interviewed by the police is admissible. I think there is a serious doubt about the relevance of such evidence. In this case, however, it is unnecessary to form a concluded view on that question. 47 It is not clear from the transcript whether objection was taken at the trial to the tender of the relevant part of the police interview. I am prepared to assume that it was and that leave under r4 of the Criminal Appeal Rules is accordingly not required. 48 This ground then fails pursuant to the provision to s6 of the Criminal Appeal Act 1912. There was no substantial miscarriage of justice in view of the prompt and firm direction by the trial judge that no inference adverse to the appellant could be drawn from the appellant having exercising his right to silence. Grounds 2 and 3 49 For the same reasons, I have difficulty with the notion that refusal to provide blood for a test is relevant evidence, and with the authorities which support that approach. However, if the admission of that evidence was wrong, any prejudice to the appellant was cured by the trial judge's direction that refusal to provide a blood sample was in the same character as refusal to answer police questions, and that no adverse inference could be drawn. 50 The proviso to s 6 of the Criminal Appeal Act 1912 applies, as in the case of Ground 1 and Ground 2 should also be rejected in the exercise of the court's discretion. 51 Ground 3 should be rejected because the presence of semen on the nightdress was some evidence in support of the complainant's account of the relevant episode. Ground 4 52 I agree that this ground fails for the reasons given by Windeyer J. 53 Whether the plea should have been entered in the presence of the jury panel, had objection been taken to that course, is academic. Not only did counsel for the appellant not object to that course but he led evidence of the plea in the trial, presumably (and understandably) because he thought capital could be made of it. 54 Leave should not be given pursuant to r 4 to argue this ground of appeal. Grounds 5 to 12 inclusive 55 I agree that these grounds fail for the reasons given by Windeyer J. ************

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