The Second Trial
5 The complainant whom I will refer to as G had obtained his leaving certificate at the Newman High School which had some affiliation with the Society of St Gerard Majella. He left school and after engaging in employment for several years moved into a monastery as a boarder later commencing a postulancy prior to intended entry into the Order. He progressed to the novitiate. During this time he engaged in studies completing his Higher School Certificate at Liverpool TAFE and between 1983 and 1985 obtained a Diploma in Education through the Australian Catholic University. He taught school until he left the Order in 1987.
6 The incident giving rise to the indictment occurred when the complainant alleged he was studying for the Higher School Certificate and had been requested by the appellant (in what he thought was routine) to call upon him when he returned to his quarters. G knocked on the door and was told to return and when he did he was instructed to come in, leave the light off and take off his clothes except his underpants. He was further instructed to lie on the bed and sexual activity which it is not necessary to describe in detail took place. Evidence was admitted of some conduct of the appellant towards the complainant in the period prior to the subject of the indictment including kisses, massage and apparent attempts to touch the complainant's genitals.
7 No complaint was made at the time of any of these occurrences.
8 The prosecution case was entirely dependent upon the testimony of G. A police officer was called who stated that when questioned on 28 April 1995 about the subject matters the appellant exercised his right to decline to be interviewed. In cross examination he was asked to confirm that he was aware that the appellant had no prior convictions.
9 The appellant did not give or call any evidence at the trial.
10 As I have concluded that one of the grounds of appeal advanced on behalf of the appellant must be sustained with consequences to which I will later make reference, it will suffice to deal briefly with other grounds of appeal.
11 Grounds 1 and 2 were derived from media publicity surrounding the trials and specifically an article appearing in the Sydney Morning Herald. The learned presiding judge rejected applications to adjourn the trials and I am unable to perceive any error in his exercise of discretion. He had given the jury firm directions about the need to determine issues upon the evidence in Court at the very outset of the trial and, it can be observed, in his final directions to the jury he was emphatic about the need to avoid contamination of jury deliberations by bias. The essence of the complaint by the appellant was, of course, that the publicity may have diverted jurors from their duty.
12 The third ground was not pressed. The fourth ground complained of the directions in the summing up concerning the evidence which had been admitted concerning the relationship between the appellant and the complainant. What was important was for his Honour to instruct the jury what use might be made of such evidence and following an application by trial counsel he gave a precise direction which included the instruction that a finding that the appellant "performed the other acts must not be used as proof of his guilt on the charge in the indictment. The Crown must still prove beyond reasonable doubt the essential elements of the crime charged ……" I would not sustain this ground.
13 The fifth ground complained that the trial judge "failed to fully warn the jury of acting upon the complainant's evidence." As the terms of that ground imply, there was a warning and the challenge is to its sufficiency. Reference was made in the appellant's submissions to the observation in R v Murray 1987 11 NSWLR 12 that it is always open to a trial judge to direct that the evidence of a witness must be scrutinized with great care and to draw the jury's attention to the features in the complainant's evidence going to credibility. The trial judge had instructed the jury that the Crown case "stands or falls" upon the evidence of G. He added that if they were not persuaded that he was "an essentially reliable witness" the jury would acquit. No application was made by trial counsel for a direction in the terms now sought and Rule 4 applies. As noted this ground is essentially focussed upon alleged insufficiency. The ground is not made out.
14 Ground 6 was again a complaint concerning the alleged inadequacy of directions to the jury in this instance as to how they could treat the absence of complaint. This was a trial in which the totality of evidence amounted to the testimony of the complainant and the brief evidence of the police officer which I have earlier summarized. It is obvious from the terms of his Honour's charge to the jury that submissions of trial counsel were centred upon the absence of complaint as a principal argument against acceptance of the Crown case. The arguments in this regard advanced on behalf of the appellant were forcefully summarized in that charge to the jury. Trial counsel made no application suggesting that what his Honour had said was inadequate. I would reject this ground.
15 The seventh ground complained that the trial judge failed to direct the jury as to the likely effects of delay upon the ability of the appellant to meet the charge. Once again this assertion has arisen in the context of examination of the trial by other than counsel who was conducting it on behalf of the appellant. It is readily understandable that no application for a direction in this regard would have been made bearing in mind the election of the appellant to remain silent. It is readily perceptible that counsel might regard it as more than faintly tactically unsound to seek a direction that delay hindered the opportunity and ability of the appellant to meet a charge which he had been unwilling to meet by pledging his oath in denial.
16 Ground 9 was expressed in the now precluded terms that the verdict was unsafe and unsatisfactory. Insofar as the jurisdiction of this Court is invoked in the terms of s 6 of the Criminal Appeal Act I am unpersuaded that the verdict was insupportable having regard to the evidence. Indeed this is the very sort of case in which it was highly advantageous for a tribunal of fact to hear the evidence and determine whether the oath of the complainant satisfied them beyond reasonable doubt of the guilt of the appellant. Ground 9A asserts that his Honour's comment on the failure of the accused to give evidence, although conceded not to have breached the provisions of s 20(2) of the Evidence Act, contravened "the continuing common law restrictions upon the ambit of appropriate comment". It is unnecessary to explore the detail of the argument advanced on this added ground. It suffices to say that in this case I am unpersuaded that his Honour said anything which could be categorized as giving rise to a miscarriage of justice.
17 I return however ground 8 which complained that the trial judge failed to direct the jury in relation to how the appellant's good character could be taken into account.
18 As noted the police officer was expressly asked in cross examination to confirm that the appellant had no prior convictions. In a written submission to this Court the Crown included the following:
"This is not a case where the appellant raised good character. All that was adduced by the defence was that the appellant had no convictions. That does not constitute the raising of character. The appellant gave no evidence of his own good character, nor did he call any witnesses as to character. It was not an appropriate case for his Honour to direct the jury as to the good character of the appellant."
19 In response to inquiry from the bench, counsel for the Crown withdrew his contention that the appellant had not raised the issue of character. As was pointed out in exchange, and I affirm, the only issue at the trial to which the question addressed to the police officer relating to absence of conviction could be germane would be the raising of the asserted good character of the appellant.
20 His Honour gave no direction concerning the use that might be made of this evidence. He made reference to it in his summing up and it is convenient to set out the context in which the reminder was given. Towards the end of his summing up as his Honour was summarizing the case advanced by the appellant he said:
"In short the accused, through his counsel, says that you would not accept the account of G.
I remind you that the accused has no prior convictions.
Any verdict of either guilty or not guilty is to be unanimous."
21 His Honour then went on to elaborate the need for unanimity and to make reference to the absence of any jury input into possible penalty if there was a finding of guilty.
22 No application was made for any direction concerning the issue of character which had been raised.
23 Formerly s 412 of the Crimes Act 1900 provided that "evidence as to the character of the accused shall in all cases be received and dealt with as evidence on the question of guilt". Provision is now made in s 110 of the Evidence Act 1995 in particular that the hearsay, opinion, tendency and credibility rules do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
24 That statutory provision does not erode the established law that good character is relevant to the guilt of an accused: R v Andrews 1982 2 NSWLR 116. In this case there was no evidence that the appellant when confronted about the charge made any response, specifically no evidence that he responded by denial. He exercised his right to silence. Hence it would be understandable that there would be an omission to direct a jury that evidence of good character was relevant to the credibility of the appellant in his or her denial of the charge: R v Murphy 1985 4 NSWLR 42. However, unchallenged evidence of good character (even if limited to absence of prior conviction) was material to considering whether it was unlikely that the appellant committed the offence: R v Stalder 1981 2 NSWLR 9. It is not incumbent upon a trial judge to give directions on the relevance of character by any fixed formula: R v Gillard CCA unreported 15 July 1991 but it is standard practice to inform juries along the lines that if they accept that the accused is a person of good character that fact may persuade the jury that the Crown evidence must be mistaken. Even in the absence of s 412 of the Crimes Act the common law would require a jury to take the character of the accused into account on the question of guilt. See Phipson on Evidence 12th Edn para 528 et seq. The present issue is whether the failure to give any such direction beyond the mere mention that the accused had no prior convictions resulted in a miscarriage of justice. Such a failure has been held to amount to miscarriage: R v Groves CCA unreported 20 June 1986.
25 Despite the absence of application by trial counsel, I conclude that the failure to bring to the jury's attention the circumstance that the asserted good character of the appellant was germane to their deliberations on the issue of guilt amounted to miscarriage and this ground must be upheld.
26 The ground relates to what might be classified as a procedural defect and ordinarily the discretion of the Court should, in my opinion be exercised to order a new trial. However the appellant has been in custody since the imposition of sentence on 27 March 1998 and has therefore served just over 15 months of the 18 months minimum term. Pursuant to the order made at trial the appellant is to be released to parole on 26 September, that is to say, in less than three months. He has therefore served over five-sixths of the custodial element of the sentence passed upon him. I would not order a new trial cf. R v Piazza CCA unreported 16 June 1997. It should be recorded that that conclusion does not in any way imply that any view adverse to the credibility of the complainant has been formed or is being expressed.