Regina v Whitehead

60777/99 WOOD CJ at CL O'KEEFE J CARRUTHERS AJ Wednesday, 18 October 2000

1 THE COURT: The appellant Daryl Robert Whitehead was arraigned before his Honour Acting Judge Nader QC and a jury of twelve at the Muswellbrook District Court on 30 August 1999 upon an indictment containing seven counts. 2 The first count was under s 61E(2) of the Crimes Act 1900, as amended, ('the Act') (an act of indecency towards a person under the age of sixteen years). The remaining six counts were under s 78K of the Act (homosexual intercourse with a male person between ten and eighteen years of age). The alleged offences were said to have been committed at various dates between 10 February 1982 and 30 December 1985. The sole complainant JGA was born on 10 February 1970. The offences were alleged to have occurred whilst the appellant and the complainant worked together on farms in the Hunter Valley district of New South Wales. 3 At the completion of the complainant's evidence-in-chief on the first day of the trial, his Honour directed a verdict of not guilty with respect to counts three and six. On the following day his Honour directed a verdict of not guilty in relation to counts two and seven. At the same time his Honour permitted the Crown to amend the indictment to vary the dates between which the offence in count five was alleged to have been committed. 4 For present purposes, it is sufficient to note that the only evidence of significance in the Crown case was that of the complainant and an ERISP (exhibit A) in which the appellant denied all the allegations which the complainant had made to the investigating police officers. 5 The appellant gave evidence in support of his denials of any criminal conduct towards the complainant, and two witnesses were called in the defence case, who provided some evidence indicative of unreliability in certain evidence of dates which the appellant had given. 6 On 3 September 1999 the jury returned verdicts of guilty in relation to the first and fourth counts and not guilty in relation to the fifth count. 7 Thereupon the appellant was arraigned on a second indictment and pleaded guilty to a count in the following terms under s 61E(1) of the Act (indecent assault): "For that he between 1 February 1985 and 30 May 1985 at Scone in the State of New South Wales, did assault RJA and that he Daryl Robert Whitehouse, at the time of such assault did commit an act of indecency upon RJA, a person then under the age of 16 years."

8 On 30 November 1999 the appellant was sentenced as follows:

With regard to the first count in the first indictment, to a fixed term of six months imprisonment to commence on 30 November 1999 and to expire on 29 May 2000.

With regard to the fourth count in the first indictment, to a minimum term of two years imprisonment to commence on 30 May 2002 and to expire on 29 May 2004, with an additional term of two years to expire on 29 May 2006.

With regard to the second indictment, to a minimum term of two years imprisonment to commence on 30 May 2000 and to expire on 29 May 2002, with an additional term of one year to expire on 29 May 2003. 9 On 7 December 1999 the appellant appealed against each of the verdicts of guilty under the first indictment on the grounds that they were unsafe and unsatisfactory. 10 The appellant also alleged that "the plea of guilty entered was made under duress." 11 It was also alleged that "the sentences were too severe." 12 Amended grounds of defence were filed and the appeal was listed for hearing before this Court on 13 July 2000. Written submissions were filed on behalf of the appellant and the Crown. However, when it became clear that the conduct of counsel who appeared at the trial would be of issue in the trial, counsel withdrew and senior counsel was briefed to draft amended grounds of appeal. The hearing date was vacated and the matter re-listed for hearing on 3 October 2000. Senior counsel drafted some twenty three grounds of appeal. 13 When the matter came before the Court on 3 October 2000 all grounds of appeal were argued. 14 At the conclusion of the argument, however, the Court was of the firm opinion that the appellant was entitled to succeed, with regard to the first indictment, on the ground that the convictions on the first and fourth counts could not stand in the light of the acquittal on the fifth count, by reason of the principles enunciated by the High Court in Jones v The Queen (1997) 191 CLR 439. 15 Accordingly, the Court allowed the appeal and quashed the convictions on the first and fourth counts and directed verdicts of acquittal on each count. 16 With regard to the appeal against the conviction on the second indictment, the Court was also satisfied that the appeal should be allowed and the conviction quashed. The appellant was granted leave to withdraw his plea of guilty and the Court directed that there be a new trial. 17 The Court stated that it would deliver its reasons in due course and the following constitutes such reasons. They may be stated shortly. 18 In essence, the appellant's argument, based upon the Jones principle, was that implicit in the appellant's acquittal on the fifth count was a rejection of the complainant's account of events which were said to give rise to that count. The jury's rejection of the complainant's account on the fifth count, it was argued, necessarily diminished his overall credibility. Further, with regard to the first and fourth counts there was nothing in the complainant's evidence, or the surrounding circumstances, which provided any ground for supposing that his evidence was more reliable in relation to those counts than it was in relation to the fifth count. 19 Once the jury found that the evidence of the complainant lacked sufficient cogency to convict on the fifth count, the Crown case on the first and fourth counts wore a different complexion. For it meant that when the complainant's evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. Such an analysis relies, of course, upon views expressed by the majority of the High Court (Gaudron, McHugh and Gummow JJ) in Jones at 453-455. 20 Appeals in this Court in which the Jones principle was considered were collected in RAT [2000] NSWCCA 77, 24 March 2000. 21 Counsel for the appellant was able to elicit support for the appellant's argument on the Jones principle by reference to the fact that essentially the Crown case was confined to the evidence of the complainant, whose evidence was, in many respects, vague. In addition, there was considerable delay in the making of a complaint, and there was certain compelling objective evidence in the defence case of surrounding circumstances inconsistent with the evidence of the complainant. 22 Mr Dawe QC, who appeared before this Court for the Crown, (albeit not conceding that the appeal should be allowed), fairly conceded that there was no evidence to which he could point which gave any ground for supposing that the complainant's evidence in relation to the first and fourth counts was more reliable than it was in relation to the fifth count. Indeed, with commendable fairness, he suggested that the evidence in relation to the fourth count (on which the appellant was convicted) was less credible than the evidence on the fifth count (in respect of which the appellant was acquitted). 23 In light of the respective submissions and its own assessment of the evidence, the Court formed the view that the appellant's argument must be accepted and the convictions on the first and fourth counts were unsafe and unsatisfactory in the sense explained by the High Court in Jones. The necessary consequence of such a finding was that verdicts of acquittal be entered. 24 In these circumstances it is not necessary for the Court to deal with other grounds raised at the hearing of the appeal in relation to the first indictment. 25 With regard to the second indictment, there was unchallenged evidence presented to the Court which demonstrated that although the appellant had consistently maintained his innocence of the charge contained within that indictment, he had, nevertheless, pleaded guilty because of imprudent and inappropriate advice which had been tendered to him by his then legal representatives, immediately prior to the plea being entered. 26 Again, with commendable fairness, Mr Dawe QC (albeit not conceding that the appeal should be allowed) indicated that he did not wish to make any submissions contrary to the matters raised by the appellant in support of the appeal. 27 The relevant legal principle was enunciated by this Court in Davies (unreported, 16 December 1993), at p8, in the following terms: "If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."

28 Such principle was applied by this Court more recently in Ganderton (unreported, 17 September 1998) and Favero [1999] NSWCCA 320 (11 October 1999). 29 In the instant case, the Court was of the view that the plea entered by the appellant to the second indictment was not entered into with a full knowledge of the facts and with the appropriate consciousness of guilt. There was clearly a real question to be tried on the facts and the due administration of justice required that the plea of guilty be set aside, the conviction quashed and a new trial ordered. For those reasons the formal orders made by the Court on 3 October 2000 were:

(2) Convictions on counts one and four quashed and verdicts of acquittal entered.

(3) Leave granted to the appellant to withdraw his plea of guilty.

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