R v Kenny [2000] NSWCCA 364

New South Wales Court of Criminal Appeal

CITATION : R v Kenny [2000] NSWCCA 364 FILE NUMBER(S) : CCA 60013/00 HEARING DATE(S) : 5 May 2000 (Orders made) JUDGMENT DATE : 12 September 2000

PARTIES : Regina v Nils John Edward Kenny JUDGMENT OF : Foster AJA at 1; Dunford J at 2; Smart AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0044 LOWER COURT JUDICIAL Wall ADCJ OFFICER :

COUNSEL : P Byrne SC MC Marien SOLICITORS : Meredith Richardson & Associates SE O'Connor CATCHWORDS : Criminal law - unavailability of witness - refusal of permanent stay LEGISLATION CITED : Criminal Appeal Act 1912 Jago v The District Court of NSW & Others (1989) 168 CLR 23 CASES CITED: R v McCarthy, CCA, unreported, 12 August 1994 R v Goldburg, CCA, unreported, 23 February 1993 R v Davis (1995) 81 ALR 156 DECISION : Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL CCA 60013/00

FOSTER AJA DUNFORD J SMART AJ

Tuesday 12, September 2000

REGINA v Nils John Edward KENNY JUDGMENT

1 FOSTER AJA: I agree with Smart AJ. 2 DUNFORD J: I agree with Smart AJ. 3 SMART AJ: Upon the conclusion of argument on 5 May 2000 this Court dismissed Mr Kenny's appeal with reasons to be given later. 4 Nils John Edward Kenny appeals, with the certificate of the primary judge, against his decision refusing to grant a permanent stay of proceedings in respect of the prosecution of four serious sexual offences allegedly committed by Mr Kenny against C when a child aged nine and ten and a further four serious sexual offences allegedly committed by Mr Kenny against W, when a child. W is the brother of C and about two years older. It is alleged that the offences took place in 1985 and 1986 while the boys were being looked after by a baby-sitter, Mrs Nelson, the appellant's grandmother. Some of the offences are alleged to have occurred in the home of the parents of C and W and some in the grandmother's home. The appellant lived with his grandmother and mother. Their home was close to that of W and C. 5 It was the unavailability of Mrs Nelson to give evidence on behalf of the appellant that gave rise to the application for a stay. She is now an elderly lady who by reason of her physical and mental condition could not give evidence. 6 Neither W nor C made any complaint in 1985 or 1986. In May 1995 the boys' father went to the police. In June 1995 statements were obtained from each boy by Sergeant Devine. In July 1995 he attended on Mrs Nelson but she declined to be interviewed or make a statement. Mrs Nelson was by this time an elderly lady and her daughter, Mrs Kenny, was overseas. The latter, on returning to Sydney in August 1995, became aware that the police were investigating allegations concerning her son, the appellant. She spoke with her mother (Mrs Nelson) and obtained a sketchy account of the police visit and the allegations which had been made, an assertion by her mother that the allegations were lies and a brief summary from her of the appellant's activities and conduct whilst baby-sitting. On 20 September 1995 the appellant attended upon Detective Sergeant Devine and denied the allegations made about him. 7 Later in 1995 the appellant was charged with the subject offences. His first trial was in August 1996 but that was aborted when the jury was discharged for reasons not disclosed in the papers. At his second trial in February 1997 the appellant was convicted. On 29 August 1997 this Court quashed the convictions and ordered a new trial. The summing up gave the jury no instruction as to delay and its possible bearing upon the credibility and reliability of the evidence given by the two boys. Nor did the summing up contain any directions as to the significance of prejudice to the appellant in meeting the complaints by reason of the delay. 8 On 14 July 1998 Judge Downs refused an application for a permanent stay and alternatively for separate trials. On 10 December 1998 this Court held that Judge Downs had proceeded incorrectly and misdirected himself. The application was remitted to the District Court for further consideration. 9 On 22 September 1999 Wall ADCJ refused the stay. In a separate judgment he ordered that there be separate trials. There has been no appeal by the Crown against that order. 10 The judgment of Studdert J of 29 August 1997 in this Court contains a helpful summary of the course of the trial in February 1997 and the evidence given. The prosecution depended substantially on the evidence of W and C. There was some material capable of affording support for their evidence but it was not of a weighty kind. For example, both parents of W and C recalled occasions when they saw the appellant at their home in 1986 after they had returned from being out. 11 During his judgment Studdert J summarised the evidence of the appellant thus: "The appellant gave sworn evidence denying the commission of the offences. He said that there were only two occasions when he went to the complainants' house whilst his grandmother was babysitting and those occasions were in 1984. Once he went there to take a television guide to his grandmother and the other occasion was to take a cardigan to her. On the first occasion he did not see either complainant; on the second occasion he saw one of them only, but on that occasion he was only in the house for two minutes. According to the appellant his grandmother did not babysit the complainants after she returned from an overseas trip in August 1985. The appellant's evidence was that he was actively involved in the Young Liberal movement and on most Saturday nights in 1986 he was attending functions for that organisation. A number of witnesses were called who gave evidence about the appellant's involvement with the Young Liberals and the functions he attended in 1986. There was evidence of the appellant's good character." 12 The Judge said: "Moreover, it is evidence that the appellant was able to gather together a considerable body of evidence to address the Crown case. The appellant had available to him his diaries from 1984 onwards. He was also in possession of his passport and airline tickets to establish the absence of his grandmother and himself overseas on a visit to the United States in 1985 and he had some other evidence directed to proving that his grandmother did not babysit the complainants after that trip. The appellant had documentary evidence to establish another trip he took overseas in December 1985-January 1986. He identified at the trial his air ticket and boarding pass for a flight to Brisbane and Cairns in June 1986. The appellant was able to call witnesses who proved his involvement in the activities of the Young Liberal Party on Saturday evenings in 1986 and he was able to call evidence directed at establishing he was elsewhere on 15 February 1986, which was a date upon which on the Crown case one of the offences was committed." 13 There was also evidence from a Mrs Austin who said that Mrs Nelson babysat full time for her between September 1985 and 1992 during which time the surname of the boys (the complainants) was not mentioned. However, Mrs Nelson attended to the Austin children full time during the week but on Saturday nights only if Mrs Austin went out. Further, the appellant relied on his good character. 14 Studdert J commented: "The evidence placed before the jury in the defence case directed to proving the appellant's movements on Saturday nights by no means excluded opportunity for the appellant to have attended the home of the complainants' parents during 1986. The jury had the appellant's diary which did not contain entries for every Saturday and this diary, the appellant conceded in cross-examination, recorded entries of appointments which the appellant did not necessarily keep. Evidence of other members of the Young Liberal movement that the appellant regularly attended functions in 1986 was not so comprehensive as to establish, if it was accepted, that the appellant had no opportunity in 1986 to attend the home of the complainants on a number of Saturday nights." 15 When this Court enquired of senior counsel for the appellant whether it was proposed to rely on the evidence called on his behalf at the second trial and summarised by Studdert J it was told that the appellant did not propose to do so as it had been rejected by the jury. A more general and less detailed case would be conducted on behalf of the appellant. The appellant was also concerned that his evidence had been rejected by the jury. Nevertheless, the appellant may still give evidence. That was undecided. The appellant now wished to attach importance to the evidence which Mrs Nelson could have given. Such a change of direction and emphasis enabled this present application for a stay to be made. It is apparent that Wall ADCJ did not have the judgments of this Court of 29 August 1997 and was not informed of the appellant's change of direction and of emphasis. Neither before the first trial or the second trial was any application made for a permanent stay. Nor was any attempt made to adduce in evidence what the grandmother had said. 16 Wall ADCJ accepted that Mrs Nelson by reason of her situation would be an important witness in relation to giving an account of what occurred in relation to the care of the boys and the opportunity or lack of it which the appellant had to commit the offences charged. The judge recorded that the Crown case was that Mrs Nelson was not aware of what was taking place in a room between the appellant and either or both of the boys. The two boys contend that she was never present in the room when the sexual offences occurred. 17 The evidence given by Mrs Kenny on the voir dire before Judge Downs was before Wall ADCJ. It included: "Q. Did she [Mrs Nelson] say to you anything about where it was that these alleged matters had occurred? A. Yes, she did. She said it was supposed to have happened at the [surname of W and C] house when she was baby-sitting." 18 Apparently, Mrs Nelson did not mention to her daughter that the allegations also included occasions on which she minded W and C in her own home. Mrs Kenny asserted that Mrs Nelson stated that the offences were supposed to have happened in 1984 and that the appellant only called in about twice. According to Mrs Kenny, Mrs Nelson said: "I can remember him calling in to give me a TV guide and there was another time when I telephoned and asked to bring my cardigan up on his way out." 19 Mrs Kenny asserted that her mother said that the allegations were all lies. The evidence given by Mrs Kenny as to her mother's statements indicate that they were general in their terms. Not much detail was given or obtained. 20 The Crown has stated that it will not object to Mrs Kenny giving evidence of what Mrs Nelson said to her. The value of such evidence will be reduced by the warning as to its reliability which will probably be given. Even without such a warning the evidence of Mrs Kenny will not have the value that direct evidence from Mrs Nelson would have. It should not be overlooked that had Mrs Nelson been able to give evidence she would have been cross-examined as to the number of times the appellant was present while W and C were being minded, what he did and the accuracy of her recollection. The two visits allegedly mentioned by Mrs Nelson were probably to the parents' home. There were occasions when she looked after W and C in her home. The eighth count related to an incident in the appellant's bedroom. The material displayed in that room included pictures of naked and scantily dressed women. That was likely to make the occasion memorable for the boys. There was also the question of where in the homes of the parents and herself the children were and where she was. She would not have been anticipating conduct by the appellant of the kind alleged. 21 With the evidence of W and C and the supporting evidence of their parents the appellant faces a Crown case of some strength.