REGINA v COX [1999] NSWCCA 62

New South Wales Court of Criminal Appeal CITATION : REGINA v COX [1999] NSWCCA 62 FILE NUMBER(S) : CCA 60544/98 (Crown appeal against inadequacy of sentence); 60727/98 (Appeal against convictions) HEARING DATE(S) : 04/03/98 JUDGMENT DATE : 31 March 1999

Regina (Appellant/Respondent))

PARTIES : v

Kevin Nicholas COX (Respondent/Appellant) JUDGMENT OF : Abadee J at 1; Barr J at 2; Adams J at 59

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/3279 LOWER COURT JUDICIAL OFFICER : Ford DCJ

CK Maxwell QC (Crown) COUNSEL : P Byrne SC (Respondent/Appellant) SE O'Connor (Crown) SOLICITORS : Carroll & O'Dea (Respondent/Appellant) CATCHWORDS : Criminal Law - different verdicts unable to be explained by reference to the evidence - held inconsistent and therefore unreasonable. DECISION : Appeal against convictions allowed.; Convictions quashed.; Crown appeal does not arise.

IN THE COURT OF CRIMINAL APPEAL 60544/98 60727/98

ABADEE J BARR J ADAMS J

Wednesday, 31 March 1999 REGINA v Kevin Nicholas COX JUDGMENT

1 ABADEE J: I agree with the orders proposed by Barr J for the reasons given.

IN THE COURT OF CRIMINAL APPEAL 60544/98 60727/98

ABADEE J BARR J ADAMS J

Wednesday, 31 March 1999 REGINA v Kevin Nicholas COX JUDGMENT

2 BARR J: The appellant appeals against convictions entered in the District Court following his trial by a jury and the Crown appeals against the sentences imposed. The appellant was charged with three counts of what may be shortly described as indecent assault upon the complainant, Margaret Heathwood, who was at the time under the age of 16 years. The first count was alleged to have taken place between 1 January and 3 August 1976 at Caringbah, when the complainant was 11 years of age. The second was said to have taken place at Caringbah between 1 September 1975 and 30 June 1976 when the complainant was 11 years of age. The third was alleged to have taken place at Wanda Beach during 1977, when the complainant was 12 or 13 years old. 3 The complainant was born on 3 August 1964 and during the 1970s lived with her mother, father and sisters in Caringbah. She attended a Church school. Her mother and father were adherents to the Catholic faith. In October 1975, when the complainant was 11 years old, the appellant joined the parish as assistant to the parish priest, Father Keller. The appellant visited the school which the complainant attended and she saw him there as well as at church. He visited her home occasionally and took afternoon tea. He officiated at a baptism and at a marriage that took place in the family. He had not long before emerged from a long period of years in an enclosed order of monks. He was apparently a likeable man and the complainant developed an affection for him as well as the respect which was due. He developed an affection for her. 4 The appellant and the complainant got into the habit of jogging round Caringbah oval early each morning. The oval was close to the complainant's house. The Crown case was that the two would do sprints and rests and exercises and that the appellant would use the occasions of the exercises to hug the complainant. As he did so the appellant put his hands down inside her pants and touched her on the bottom and on the outside of the vagina under her underwear. 5 There was one occasion which the complainant could identify, because after the appellant had handled her in the manner I have summarised she saw Father Keller nearby, at the gates to the oval. That made her very embarrassed and made the occasion stick in her memory. The priest had apparently walked to the oval from the direction of the presbytery. They had a conversation that she remembered, about the priest's having trained an athlete at that same oval. 6 That occasion was made the basis of the second count in the indictment. 7 The Crown case was that early in 1976 the appellant began taking the complainant into the sacristy of the church and over a substantial period of time indecently assaulted her there on many occasions. The one which was made the subject of the first count took place on Ash Wednesday in 1976. The complainant remembered it because the appellant called her into the sacristy to look at the ashes he had prepared for ritual purposes. On that occasion he pulled down her pants, touched her on the breast and touched her on the outside of her vagina. He rubbed himself against her until he ejaculated. 8 The complainant began attending Endeavour High School in 1977 and the Crown asserted that during that calendar year the appellant took her in his car to Wanda Beach from time to time. Whilst they were in the car he put her hand on his penis and had her masturbate him. He fondled her on the breast and inserted his finger into her vagina. The first occasion on which those things happened was made the subject of the third count. 9 The complainant also said that the appellant indecently assaulted her in more or less similar ways at other places, including in his bedroom in the presbytery. 10 The jury convicted the appellant of the first two counts and acquitted him of the third. 11 Judge Ford of Queen's Counsel, the trial judge, sentenced the appellant on each count to imprisonment for two years to be served by way of periodic detention. Both sentences commenced on 11 November 1998. 12 The first ground of appeal is that the verdicts are unreasonable and cannot be supported having regard to the evidence, because the jury could not have entertained a reasonable doubt about the guilt of the appellant on the third and not at once entertain a reasonable doubt about his guilt on the other counts. Reliance was placed on Jones v The Queen (1997) 191 CLR 439. 13 The question for this Court is whether upon all the evidence the jury ought to have entertained a reasonable doubt as to the guilt of the appellant on the first two counts. M v The Queen (1984) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439. 14 An appellate court should interfere only where there is no way properly to reconcile the verdicts said to be inconsistent. If there is some evidence to support the verdicts said to be inconsistent it is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury. Jones v The Queen at 456. 15 The appellant's submissions coupled what was said to be an inconsistency of verdicts with these features - 1 There was an unexplained delay of more than 20 years between the offences and the trial; 2 The offences were said to have occurred in circumstances in which other people might have noticed something, yet there was no independent evidence to support the complainant's evidence; and 3 No directions were given to the jury on the impact of delay. 16 It was submitted on behalf of the appellant that there was no way of reconciling the verdicts. The Crown submitted that there were a number of ways of doing so, but principally because the Crown bound itself at trial to prove that the events charged on any count occurred within the times set forth in the indictment. The third count was different from the others, because there was evidence which the jury might have used to raise a reasonable doubt whether, although the event occurred as the complainant said it did, it did not occur until after 1977. 17 The evidence of the complainant was that the appellant indecently assaulted her many times over a period of years. One of the considerations in framing the charges was no doubt the need to identify occasions which could, by reference to the evidence, be distinguished from every other occasion. S v The Queen (1989) 168 CLR 266. Accordingly, for the second count the Crown relied on the only occasion at the oval on which there had been a conversation with Father Keller, for the first count on the only occasion on which the appellant had called the complainant into the sacristy to look at the ashes and for the third count on the first time that the complainant was taken by the appellant to Wanda Beach. 18 Unless there is a reason to treat them differently, pleadings as to the time at or the times between which an alleged offence was committed are regarded only as particulars. Indictments which fail to state time or state it wrongly or imperfectly will not be held bad or insufficient unless time of the essence. Crimes Act s 360. If during a hearing it appears that an offence was committed at a time other than that pleaded, the court of trial has power to order the amendment of the indictment. Crimes Act s 365. However, this Court has no power to amend. R v Burns (1920) 20 SR (NSW) 351. 19 Proof of time may become essential for various reasons. For example, although it has not become contentious in this appeal, the Crown had to prove beyond reasonable doubt in the present case that any offence took place before the complainant's sixteenth birthday. That was a requirement of the statute creating the offences with which the appellant was charged. Sometimes the parties make time essential by the way they refine the issues during the conduct of a trial. 20 As this trial began it would not have been considered that the times particularised in the indictment were essential (there could have been no suggestion that anything relevant had happened after the complainant turned sixteen years of age), even though the parties knew that the complainant had already exhibited some uncertainty about the precise times at which events happened. 21 It became obvious during the examination and cross-examination of the complainant that she was uncertain as to the times at which things had happened, the state of affairs then existing and the order in which they had happened. The dates of two events, however, were certain. The complainant turned eleven years old on 3 August 1975 and the appellant did not arrive in the Caringbah parish until October 1975, when the complainant was eleven years old. 22 The complainant said that she accepted the appellant's invitation to go jogging with him. She had already met him and the invitation was extended to her one day at school. After that she went jogging with him every day for years and years, including 1977 and 1978, when she was in years 7 and 8 in high school. 23 She said that she began to have her periods in year 5, when Sister Maria was her teacher. It was at the end of the year. It was agreed that Sister Maria was the complainant's teacher in year 5, 1975, but not in the next year. 24 In cross-examination the complainant was reminded that she had told the Local Court at committal that she had got her periods around the middle of the year when she was ten or eleven. Her response was that she was sure that she started her periods during year 5. 25 She said that she started jogging with the appellant in year 5, towards the end of 1975, before she began her periods. She remembered his asking her whether she had started her periods. She knew that she had not done so because she did not understand his question. She agreed with the cross-examiner that it was "some months" after she met the appellant that she began jogging with him. She was then invited to agree that she did not begin jogging with him until 1976. These questions and answers followed - Q. But you've already agreed with me that it was some months after you first met him that you started jogging with him? A. Yes.