Wentworth v R [2023] NSWCCA 143 | Case summary

Court of Criminal Appeal (NSW)|2023-02-27|Before: Beech-Jones CJ, McNaughton J, Hulme AJ, Mr J

The Applicant's House

In cross‑examination, XX was pressed on whether there was an inhabitable house on the applicant's property in McCarrs Creek Road as at 1982. XX said that he remembered "them building or renovating a home" but said, "I don't remember if it was vacant or [if] it had a small holiday home on it and they've renovated it up and out… I just know that there was building done". As noted, a council file relating to a building application made by the applicant in 1982 was tendered. The material and evidence of a council officer who produced the material was not definitive as to whether this was an extension of an existing property or a rebuild of the property. A council file note included in the material, headed "Additions", is capable of indicating the former.

Approach to Pretext Calls

During one of the pretext calls, XX told the applicant, "I've had your details. I'm in database information. I know everything about your partner, everything about you, I know your assets." Later, he stated, "I only know this information because I'm in data, I'm in electoral rolls, phone directories… I actually supply ASIO." In cross‑examination, XX reiterated that he had worked in "database information" (being the family business noted above at [23]) but accepted that the reference to supplying ASIO was "rubbish". XX said that he had made the statements to "scare" the applicant into making admissions and meeting him. He said that the statements contained "truths", "untruths" and "embellishments".

Alleged Motive to Lie at the Second trial

The main attack on XX's credit at the second trial was the suggestion that he had made up the allegations against the applicant to recover money from him. There were numerous references throughout the cross‑examination of XX to his belief of the applicant's wealth and knowledge of his assets and to failed litigation brought by XX against his mother (and possibly other members of the family) in relation to a family trust. Ultimately, it was suggested to XX that he was "financially motivated" to make allegations against the applicant and that he "want[ed] to bring a civil claim" against the applicant. XX denied those suggestions. In re-examination, XX stated that when he first approached the police, he was employed and conducted a successful business. XX said he did not commence proceedings against the applicant at that time and "still haven't to this day". XX also stated he had never "made a single cent out of participating in [the criminal justice] process". This line of attack on XX's credit was not maintained on this application.

"CIB protection"

I have referred above (at [12]) to the evidence of XX's belief that when his mother returned from the Philippines, the family was placed under "CIB" protection (presumably being an intended reference to the former Criminal Investigation Branch of the New South Wales Police Force). XX said that the basis for his belief was that he was told so by his mother. As previously noted, Detective Godfrey could not find any evidence to suggest the family had received such protection. XX was asked about this as follows: "Q. Just in relation to your mum, you mentioned in the course of your evidence that you were under police or CIB protection; that was your evidence wasn't it? A. Yes it was, yes. Q. Would it surprise you to learn that New South Wales police have no record at all of that? A. Well I, that's very surprising, yeah, because again I can elaborate and mum was on Four Corners when she came back from Australia, we had the head of CIB in, in, actually taking my mother and I out to dinner. He actually announced that he was going, he wanted to marry my mum on my 18th birthday; that was the head of the CIB at that time. So whoever the head of CIB in 1988 in May, that was the gentleman that was watching over us. Q. And you'd been to dinners with this individual, the head of the CIB had you? A. One, yeah well one in particular dinner; it was my birthday. Q. What was his name? A. I don't remember. I've just told you date, specific month and it should, he was the head of CIB at that time. Q. You're just making all of this up aren't you? A. I find it very hard to believe that you're not believing me because they're actual facts, they're actual facts. Q. You've made all of this up haven't you? A. Not at all. Q. You've made up all of these sexual allegations? A. No. Q. You were never under CIB protection? A. No, I was."
In his answers, XX referred to the "Four Corners" current affairs program. Shortly prior to the second trial, the Crown served notice that it intended to rely on an episode from that program together with a statement from YY that he recognised XX's mother as a person who was featured in that program with her identify disguised. On 15 March 2022, his Honour rejected the Crown's attempt to rely on this material as having been served too late.
In light of that material being rejected, the submission made on behalf of the applicant to the jury at the second trial in respect of this topic was circumspect. Counsel for the applicant noted there was no evidence that XX's family did not receive CIB protection but did not submit that XX's belief of some form of protection was inherently unbelievable. Instead, it was contended that, assuming the family was being supervised by the police, it was "just fanciful" that one of the protecting officers might propose to his mother.

Other Alleged "Lies"

The applicant's submissions noted that, in his evidence‑in‑chief, XX recounted an incident where the family could not afford to save the family dog, which had been hit by a car, and Mr Smith offered to pay the veterinary bill. The applicant submitted that this was inconsistent with a statement made by XX during the pretext call where he said, "[m]y step-father was trying to kill off my pups and killed of[f] me dog… [Mr Smith] saved the puppies for me and helped me find homes for them". In cross‑examination, XX said this was a reference to the "same dog… [but] different story" in that the dog recovered from the surgery which Mr Smith paid for but in "[19]84, possibly 85" was struck by a car.
As noted, XX believed that after he spoke to the police in 1997, there was a warrant for the applicant's arrest. He said that "[t]here was information all over Google" about an FBI warrant seeking the applicant's arrest. Sergeant Godfrey could not find evidence that any such warrants had been issued.

The Summing Up

The trial judge's summing up emphasised the burden of proof and necessity for the jury to consider each count separately in accordance with the evidence "specifically relating to that count". His Honour gave a "Markuleski direction" to the effect that, if the jury found the applicant not guilty on one count because of doubts about the reliability of XX's evidence, then it would have to consider how that conclusion affected the other counts (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290). His Honour also gave the jury a "Mahmood direction" in relation to the absence of evidence from Mr Smith and XX's ex-wife, (Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1) and as well a direction in relation to the applicant's good character. Further, his Honour directed the jury that the evidence of uncharged acts of sexual abuse of XX by the applicant was only adduced to place the charged acts in context and was not to be used for any other purpose. His Honour also directed the jury on the effect of delay between when XX first approached the police in 1997 and when the applicant was charged in 2019, specifically its effect on the clarity of witness memories and the applicant's ability to gather contrary evidence. Like the jury, in addressing this appeal, the Court must act consistently with those directions.

The Appeal - Principles

As noted, the sole ground of appeal is that the jury's verdicts are unreasonable or cannot be supported having regard to the evidence. The principles applicable to this ground were enunciated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 493−495 per Mason CJ, Deane, Dawson and Toohey JJ. This Court must ask itself whether it thinks, upon the whole of the evidence, that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In doing so, this Court must pay full regard to the "consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence… [and] that the jury has had the benefit of having seen and heard the witnesses". Their Honours observed (at 494): "It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (emphasis added; citations omitted)
Three related matters concerning the role of the jury and its assessment of a witness' credibility, such as XX, should be noted.
First, the above passage reflects the "special respect and legitimacy [accorded] to jury verdicts deciding contested factual questions [which] concern the guilt of the accused in serious criminal trials" (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59] per McHugh, Gummow and Kirby JJ; "MFA"). One aspect of this is that juries are "usually well able to evaluate conflicts and imperfections of evidence" (MFA at [96]).
Second, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 ("Pell"), the High Court explained the relationship between this Court's role and the jury's assessment of the credibility of a witness whose evidence is challenged. Generally, this Court "should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box" (Pell at [37]). The High Court also stated at [39]: "The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." (emphasis added; citations omitted)
The above reference to "a case such as the present" is to a case where the principal evidence against an accused is given by a complainant, such as XX.
Third, the scope of the advantage that a tribunal of fact (i.e. the jury) has over an appellate court "by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial" (Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [17]). In this case, the jury, not this Court, had the distinct advantage of viewing the footage of XX's oral evidence over several days. Every point raised on appeal concerning XX's credibility was fully ventilated before the jury. The scope of the advantage it enjoyed in seeing and hearing XX give evidence and in considering the attacks on his credit was relatively wide (AJ v R [2022] NSWCCA 136 at [105]).

The Applicant's Argument

As noted, the applicant contended that XX's evidence "contained exaggerations, untruths, and was substantially lacking in credit to the extent that a Jury acting reasonably would not have convicted the applicant". I take the reference to "lacking in credit" to refer to both the honesty and reliability of XX.
Notwithstanding the passage of time, many aspects of XX's evidence concerning the applicant, such as the location of the applicant's house in Church Point, his ownership of an office in the city and at least one boat, were supported by the documentary records described above (at [29] and [34]). The combination of council records and the evidence of XX's brothers confirmed that for much of the relevant period, the applicant was effectively a neighbour of XX and was close to him.
A significant aspect of the attack on XX's credit concerned his criminal record and drug use, including his admissions to using drugs on each morning that he gave evidence in Court. The applicant also relied on various observations of both trial judges about XX's credit. The overall arc of XX's version of events, namely, that he had a poor relationship with his stepfather, a complex relationship with his mother, was groomed and feted by a rich neighbour who lavished him with attention before abusing him, and thereafter abused drugs and occasionally committed petty crime, had an unfortunate but compelling ring of truth. The evidence of XX's brothers confirmed the difficulties of his upbringing and the close attention the applicant paid to him, so much so that they had concerns about the nature of XX and the applicant's relationship. The applicant's denial of any recollection of XX carried little weight in light of the evidence of XX's brothers and the fact that XX was able to convey relevant details about the applicant's circumstances during the relevant period.
XX's drug use and dishonesty convictions, as well as his completion of his application form to be a stock and station agent, were fully ventilated before the jury. Self-evidently, the jury was satisfied of the essential honesty and reliability of his evidence. The assertion that XX's drug use necessarily rendered his evidence unreliable was no more than that. Given the different context in which the applicant made the false statement about his prior convictions (i.e the stock and station agent application), I do not regard it as having "tainted" XX's evidence "in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted" (M v The Queen at 494). Otherwise, any observations of the trial judges concerning XX's credibility, including by reference to his consumption of drugs prior to giving evidence, are irrelevant to this ground of appeal (see Nguyen v R [2022] NSWCCA 126 at [64]; Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 at [294]−[295] per Bathurst CJ with Bell P and Hamill J agreeing).
To similar effect, the applicant's submissions pointed to the "exaggerations" and "untruths" that XX told the applicant during the pretext calls. Considered in context, the jury was entitled to accept XX's explanation, as do I. In those calls, the applicant was denying any knowledge of XX and clearly avoiding meeting him. The evidence adduced at the second trial overwhelmingly demonstrated that the denial was false in that the applicant was in fact close to XX when he was young (although it was not contended the applicant lied when he denied recalling who XX was). In any event, the applicant's response clearly pushed XX to go to greater lengths to have the applicant engage with him and meet. Again, the false statements made by XX during the pretext calls did not "taint" his evidence in the manner identified in M v The Queen (see above at [43]).
The written submissions also contended that there was a material discrepancy between XX's evidence about the applicant sexually assaulting him and the "complaint" made to his mother and recounted by YY, specifically, that XX had complained of being anally penetrated "yet there was no evidence that penetration ever occurred". In fact, XX gave evidence of two occasions in which the applicant persistently tried to anally penetrate him (see above at [12]−[13]). His description of those incidents was consistent with his colloquial and emotional complaint to members of his family that the applicant "fucking fucked me up the arse" (see above at [23]).
The applicant's written submissions also contended that XX's evidence "bordered on delusional component". As developed in oral submissions, this appears to largely relate to so much of XX's evidence that recounted being under "CIB" protection upon his mother's return from the Philippines. As previously noted, movement records tendered at the second trial supported XX's evidence that his mother suddenly departed Australia in 1986 for two years when the applicant was only 16 years old. The pretext calls, which discussed, inter alia, the applicant's "business relationship" with XX's mother supports the suggestion that XX's mother was at least asserting that she had some involvement in gold dealing overseas.
One of the applicant's submissions on appeal appeared to contend that it was delusional for the applicant to have believed he was under some sort of protection by a state agency. As noted, that belief extends beyond the challenge made at trial and, had it been made at the second trial, it most likely would have led to a further attempt to tender the recording of the Four Corners program and YY's evidence that his mother was depicted in it. In any event, in light of the evidence adduced and issues raised at the second trial, the applicant has not established the inherent improbability that, upon XX's mother's return from the Philippines, XX believed the family was receiving some form of protection. It was also contended that it was inherently improbable that XX would travel to Canberra with the applicant while he was under such protection. It is not clear whether this submission was advanced at the second trial, but it does not matter. XX's evidence suggested that the trip occurred after the protection ceased.
On appeal, the applicant repeated the submission made at trial about XX's recollection that on his 18th birthday a member of the "CIB", or at least someone he was told was providing his family with protection, proposed to his mother. Considered objectively, this seems very unlikely. However, all these events must be considered from the perspective of a young adult relying on the statements of his erratic, generally absent and somewhat mysterious mother. From that perspective, it is not necessarily implausible that he observed something that involved one of the people whom he was told was "protecting" his family proposing to his mother. Taking this, and the fact that these matters are peripheral to the allegations made against the applicant, into account, they are not matters that "taint" XX's evidence against the applicant in the sense noted above (at [43]) in M v The Queen.
A number of other points were raised by the applicant. It was suggested that XX's evidence of his belief that warrants had been issued for the applicant's arrest destroyed his credibility. I disagree. XX approached the police in 1997, provided a statement and heard nothing further other than information suggesting the applicant was overseas for substantial periods of time, as he in fact was. XX might well have believed that warrants had been issued as opposed to the police being simply inactive. Otherwise, as noted above at [24]−[25], one of the managers of the Pasadena restaurant from time to time, Mr Ingle, had nothing to do with these events. However, XX never purported to identify Mr Ingle as the manager who stayed overnight on the boat on the weekend that counts 6−7 were committed. ZZ's evidence suggested that a different manager had worked at the restaurant in 1982 and 1983 as opposed to 1984, which was the year Mr Ingle said he worked there. In his evidence, XX did not assert that counts 6−7 occurred in 1984.
Finally, I note that the written submissions referred to a pervasive "anti-gay" sentiment amongst the relevant community in the 1980s. That may be so, but no connection between such a sentiment and the evidence of XX and the other relevant witnesses was established at the second trial.
I have taken into account the directions given by the trial judge (summarised above at [42]) including the direction concerning the absence of evidence from Mr Smith and XX's ex-wife. I am not satisfied that there is "a significant possibility that an innocent person has been convicted" (M v The Queen at 494).
I would reject the sole ground of appeal.

Proposed Orders

I propose the following orders; (1) The applicant be granted leave to appeal against his convictions; (2) The appeal be dismissed.
McNAUGHTON J: I have had the advantage of reading the judgment of Beech-Jones CJ at CL in draft. I agree with his Honour's proposed orders. Having considered the evidence myself, I am of the view that the jury's decision to convict the applicant on each of the charges was not unreasonable. My reasons for reaching that conclusion accord with those set out by Beech-Jones CJ at CL.
R A HULME AJ: My own assessment of the trial record leads me to agree with the reasons, conclusions and proposed orders of Beech-Jones CJ at CL.

Endnote

Pursuant to s 578A of the Crimes Act 1900 (NSW), the publication of any matter likely to lead to the identification of XX is prohibited. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2023

(Criminal Appeal Act 1912(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] On 7 April 2022, the applicant was found guilty of 3 counts of committing an act of indecency with a male person under the age of 18 years contrary to former s 78Q(1) of the Crimes Act 1900 (NSW) and 11 counts of indecently assaulting a male person contrary to former s 81 of the Crimes Act. On 26 August 2022, the applicant was sentenced to imprisonment for 7 years with a non-parole period of 3 years and 6 months commencing on that same date. The offending related to acts committed between 1 January 1980 and 31 December 1985 against a young male, XX, who was aged between 9 and 14 years old. From 1977, XX lived on McCarrs Creek Road, Church Point. In around 1980 or 1981, the applicant moved "a couple of doors down" from XX's home with his partner. At trial, XX gave evidence that the applicant engaged in various sexual acts with XX in the applicant's home, city office apartment and boat. In 1997, XX approached the police and provided a statement. XX said he was told the applicant was in "Atlanta, Georgia" and that police had been refused permission to travel to interview him. In 2018, XX discovered through social media that the applicant was in Australia. On 30 April 2019, XX participated in a series of recorded phone calls with the applicant. During those calls, the applicant said he could not recall XX. From 24 May 2019, XX and the applicant exchanged texts about a face-to-face meeting which did not eventuate. XX made various false statements in attempts to get the applicant to meet him. During the trial, evidence was given by XX's two brothers. Both recalled an argument between XX and their mother in which XX disclosed that he had been assaulted by the applicant. Various evidence was also tendered relating to the applicant's properties and an application made in 2020 by XX in which he denied having any criminal convictions in the past 10 years. XX's criminal record and drug consumption were raised during his cross-examination. In re-examination, XX said he had used marijuana everyday since he was "about 16" years old to cope with anxiety, that he had obtained a prescription for its medical use "over the last few years" and that he had used marijuana immediately before giving evidence but felt "fine". Various beliefs, discrepancies and alleged lies raised by the applicant, both at trial and on appeal, were said to destroy XX's credibility. The applicant sought leave to appeal against his convictions on the ground that the jury's verdicts were "unreasonable, or cannot be supported, having regard to the evidence". The principal issue on appeal was whether, having regard to the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences. The Court held (per Beech-Jones CJ at CL, McNaughton J and R A Hulme AJ agreeing), allowing leave to appeal but dismissing the appeal:

The jury, not this Court, had the distinct advantage of viewing XX's oral evidence. Every point raised on appeal concerning XX's credibility, including his drug use and dishonesty convictions, was fully ventilated before the jury. The scope of the advantage the jury enjoyed in seeing and hearing XX give evidence and in considering XX's credit was relatively wide: [48], [52] (McNaughton J agreeing at [63]; R A Hulme AJ agreeing at [64]).
Many aspects of XX's evidence were supported by documentary records. The applicant's denial of any recollection of XX carried little weight in light of the evidence of XX's brothers and the fact that XX was able to convey relevant details about the applicant's circumstances during the relevant period. The various attacks on XX's credit did not "taint" his evidence with discrepancies or inadequacies to suggest that an innocent person had been convicted: [50]−[54], [57]−[58] (McNaughton J agreeing at [63]; R A Hulme AJ agreeing at [64]). M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied. MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen [2022] HCA 24; (2022) 96 ALJR 728; AJ v R [2022] NSWCCA 136, considered.

(2019) 100 NSWLR 682

Wentworth v R

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