R v Smith [1999] NSWCCA 126

New South Wales Court of Criminal Appeal CITATION : R v Smith [1999] NSWCCA 126 FILE NUMBER(S) : CCA 60723/97 HEARING DATE(S) : 20 May 1999 JUDGMENT DATE : 11 June 1999

PARTIES : Regina v Paul Thomas Smith JUDGMENT OF : James J at 1; Barr J at 68; Carruthers AJ at 69

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/31/0527 LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : RD Ellis (Crown) GP Craddock (Applicant) SOLICITORS : C K Smith (Crown) T A Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - unfit to be tried - special hearing - decisions about conduct of defence. ACTS CITED : Mental Health (Criminal Procedure) Act Mental Health Act 1990 DECISION : Extension of time to appeal granted - appeal against conviction dismissed

IN THE COURT OF CRIMINAL APPEAL 60723/97 JAMES J BARR J CARRUTHERS AJ

Friday 12 June 1999 REGINA v Paul Thomas SMITH

JUDGMENT 1 JAMES J: This is an application brought by Paul Thomas Smith ("the appellant") for an extension of time in which to appeal and, if an extension of time is granted, an appeal by him against verdicts, which were given at a special hearing held in December 1995 under the Mental Health (Criminal Procedure) Act ("the Act") before his Honour Judge Twigg and a jury in the District Court, that on the limited evidence available at the special hearing the appellant had committed the offences charged, being two offences of aggravated sexual assault under s61J of the Crimes Act , committed on the same date 20 July 1993 against the same adult female complainant. The circumstances of aggravation on the first charge were that the appellant had maliciously inflicted actual bodily harm on the complainant. The circumstances of aggravation on the second charge were that the offence had been committed in company. 2 On 3 May 1994 another District Court judge, sitting alone without a jury, had found that the appellant was unfit to be tried on the charges of aggravated sexual assault. On 8 August 1994 the Mental Health Review Tribunal made a determination that the appellant would not become fit to be tried during the period of twelve months after 3 May 1994. Subsequently the Attorney General, acting under s18 of the Act, had directed that a special hearing be conducted. It was pursuant to this direction that the hearing before Judge Twigg took place. 3 The verdicts that on the limited evidence available the appellant had committed the offences charged were given in accordance with s22(1)(c) of the Act. An appeal lies to this Court from these verdicts by virtue of s22(3)(c) of the Act and the extended definition of the term "conviction" in s2 of the Criminal Appeal Act. 4 After the jury had returned their verdicts Judge Twigg on 22 February 1996 held that, if the special hearing had been an ordinary trial, the sentence he would have imposed on the first charge would have been a fixed term of penal servitude for one year from 20 July 1993 and the sentence he would have imposed on the second charge would have been a sentence of penal servitude for five years, consisting of a minimum term of three years commencing on 20 July 1994 and expiring on 19 July 1997 and an additional term of two years. It was suggested in the appellant's written submissions that what his Honour did on 22 February 1996 may not have been in accordance with s23 of the Act but it is unnecessary to explore this suggestion further on the present application and appeal, which are concerned only with the appellant's convictions. 5 On the hearing of the appeal the Court received an affidavit by a solicitor employed by the Legal Aid Commission, to which was annexed a letter from the Mental Health Review Tribunal. This letter disclosed that on 17 February 1999, the Mental Health Review Tribunal, pursuant to s89(1) of the Mental Health Act 1990 , classified the appellant as a continued treatment patient and also, pursuant to s131 of the Mental Health Act 1990 , made a community treatment order releasing the appellant into the care of the Central Coast Area Mental Health Service. On 6 May 1999 this order was varied, so as to transfer the appellant's care to the Kempsey Mental Health Service. 6 The complainant gave evidence at the special hearing and her evidence may be briefly summarised as follows:- 7 In July 1993 the complainant was living in an Aboriginal settlement close to the town of Moree. On the afternoon of 20 July 1993 she left her home to walk to the Moree District Hospital to see her brother, who was a patient in the hospital. As she was walking, she met three brothers named Swan and the appellant, all of whom she knew. The complainant and one of the Swan brothers, who was named Desmond but known as "Boy-Boy", bought a flagon of port at a hotel. The group was joined by another male, who the complainant did not know and who was apparently a juvenile. The whole group walked across a stock bridge over a river. Everybody in the group then drank some port out of the flagon. After a few minutes the complainant said that she wanted to go to the hospital and she started walking back across the bridge. 8 As the complainant was walking back across the bridge, the appellant punched her more than once in the face with his closed fist, causing the complainant to fall. The appellant then forcibly removed most of the complainant's clothing, dragged her across the bridge, pinned her to the ground and had penile-vaginal sexual intercourse with her without her consent. 9 The appellant said to Desmond Swan "do you want a go" and Desmond Swan had sexual intercourse with the complainant without her consent, while the appellant was lying on the complainant's shoulder, restraining her. The appellant then attempted to have the complainant fellate him but the complainant would not open her mouth. The appellant punched the complainant again. The other two Swan brothers then had sexual intercourse with the complainant without her consent, while the appellant continued to restrain the complainant by lying on her shoulder. The appellant then had sexual intercourse with the complainant again, without her consent The other unidentified person did not take any part in the assaults on the complainant. 10 After the appellant had sexual intercourse with the complainant the second time, the group of males moved away from the complainant. The complainant jumped up and ran, picking up some of her clothing off the bridge. The complainant continued running and came across a male cousin of hers. The cousin hit Noel Swan, who had been chasing the complainant. The complainant made a complaint to her cousin about what had happened. She was taken to a police station and reported the offences. She was taken to a hospital and examined by a Dr Mahoney. 11 At the special hearing none of the three Swan brothers or the other unidentified male person were called to give evidence and Judge Twigg in his summing-up gave a form of Jones v Dunkel direction against the Crown, by reason of the Crown not having called these persons as witnesses. 12 The complainant's evidence was, however, supported in a number of respects by evidence from other persons, who were called as witnesses. 13 A taxi driver gave evidence that at about 5.15 pm on the afternoon of 20 July 1993, as a result of a radio booking, he had picked up the three Swan brothers and the appellant, all of whom he knew, and had dropped them in Moree at about 5.30 pm. 14 The complainant's brother gave evidence that at some time between 6 o'clock and 7.30 on the evening of 20 July 1993 he had seen the three Swan brothers and the appellant together in Moree. He had known the three Swan brothers and the appellant all his life. 15 The complainant's cousin gave evidence that he had seen the complainant, Noel Swan and the appellant together on the night of 20 July 1993, that Noel Swan was punching the complainant, that the complainant was screaming, that he himself had punched Noel Swan and that Noel Swan and the appellant had then run off. The cousin observed that the complainant had no clothing on the lower part of her body, that her face was bleeding and that she had mud on her arms and legs. The complainant and her cousin got into a car driven by a woman named Phyllis Brown. In the car the complainant told her cousin "Noel, Paul and them raped me". 16 Phyllis Brown gave evidence of the complainant making a complaint. She said that she had driven the complainant and her cousin to a house where the complainant's mother was and had then driven the complainant and other persons to the police station. 17 A number of police officers gave evidence that at about 8 o'clock on the evening of 20 July 1993 the complainant's parents and then the complainant entered the police station. The complainant had no clothing on, apart from a jumper and a jacket (the jacket had been given to her by her cousin), she had no shoes on, she had mud on her legs, she had swelling around her right eye and jaw and dry blood around her mouth and nose and she appeared very upset and distressed. According to a notebook entry made by a police officer within five minutes of the complainant entering the police station, the complainant said inter alia: "I was stripped naked, there were three males… Noel Swan, Paul Smith and Lloyd Swan…they f- me.. all three of them". 18 Dr Mahoney gave evidence that at about 10 pm on the night of 20 July 1993 he had attended the emergency department at the Moree District Hospital and examined the complainant. She was very distressed, she had clothing only on the upper part of her body, her legs and feet were covered in mud, she had bruising and abrasions on her face and other parts of her body, her right shoulder was tender and there were swelling and abrasions of her genitalia. 19 In cross-examination Dr Mahoney said that, in his opinion, the injuries he had observed were too severe to be consistent with "fairly violent" consensual intercourse. The following question and answer occurred in Dr Mahoney's cross-examination:- "Q. Let me put to you this hypothetical question, would injuries of that sort be consistent with a person who had had five or six instances of (consensual) intercourse within a short time? A: I wouldn't have thought so, but possible. I doubt it, but possible. I would say unlikely really. Certainly on the external aspects possibly, but not with the - she had very substantial internal injuries…" 20 An uncle of the Swan brothers gave evidence that at about 9 o'clock or half past nine on the evening of 20 July 1993, Noel Swan and the appellant had arrived together at his house. 21 When spoken to by the police on 21 July 1993, the appellant denied that on the previous night he had been with the Swan brothers or had seen the complainant. The appellant declined to take part in a recorded interview. 22 At the special hearing the appellant did not give evidence. Because he had been charged before 10 June 1994, he had the right to make an unsworn statement at the special hearing but he did not do so in the defence case, as it was presented before Judge Twigg commenced his summing up. In the defence case one witness was called on behalf of the appellant, who said that she had seen the appellant on the evening of 20 July 1993 after about 8 o'clock and that he had not looked dishevelled or "roughed up" to her. 23 The notice of application for an extension of time in which to appeal was not lodged until late December 1997, almost two years after the time for lodging an appeal had expired. 24 Counsel for the Crown submitted in written submissions that the Court should not grant an extension of time in which to appeal. It was contended that the delay in lodging an appeal was considerable, that under the provisions of the Act the verdicts returned by the jury did not count as convictions, except for certain very limited purposes, that the applicant had been released from custody and that the entire "limiting term" indicated by Judge Twigg would soon expire. It was also submitted that no explanation had been given for the delay in lodging an application for an extension of time. 25 On the hearing of the appeal the Court received another affidavit from the same solicitor employed by the Legal Aid Commission. In the affidavit the solicitor gave evidence of events which had happened after the Legal Aid Commission had received, on 5 January 1998, copies of the appellant's notice of application for an extension of time in which to appeal and notice of appeal. There had been a long delay after January 1998 before the transcript of the special hearing had become available and a further delay in receiving advice from counsel on whether there was any merit in the appeal against conviction. 26 The solicitor's affidavit did not offer any explanation for the delay in lodging the two notices. The deponent said in her affidavit:- "When I first spoke to the appellant I could not induce him to tell me the reasons for delaying the bringing of this appeal, save for discussion regarding new evidence. I am not satisfied that he has any appreciation that failing to bring his appeal within a specified time limit is in any way significant". 27 The reasons advanced by the Crown are strong reasons for not extending the time within which an appeal could be brought. However, it has to be borne in mind that the appellant is a person who had been unfit to be tried and who has apparently continued to suffer from mental disabilities. It is appropriate for the court to undertake an examination of the merits of the appeal, before deciding whether an extension of time in which to appeal should be granted. 28 There is only one ground of appeal in the appellant's notice of appeal against conviction, which is:-