REGINA v SKENE [2000] NSWCCA 322

New South Wales Court of Criminal Appeal

CITATION : REGINA v SKENE [2000] NSWCCA 322 FILE NUMBER(S) : CCA 60353/99 HEARING DATE(S) : 4 July 2000 JUDGMENT DATE : 25 August 2000

Regina

PARTIES : v

John Francis Skene JUDGMENT OF : Meagher JA at 1; Sperling J at 2; Adams J at 45

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0141 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : Mr P M Winch (Appellant) Mr C K Maxwell QC (Crown) SOLICITORS : T A Murphy (Appellant) S E O'Connor (Crown)

LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 DECISION : Appeal against convinction dismissed; Leave to appeal against sentence allowed; Appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL 60353/99

MEAGHER JA SPERLING J ADAMS J

25 August 2000 REGINA v John Francis SKENE JUDGMENT 1 MEAGHER J: I agree with the judgment of Sperling J. 2 SPERLING J: The appellant was indicted in the District Court on 15 February 1999 on the following charges as amended, at the trial: Count 1: Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did assault CH in circumstances of aggravation, and at the time of the assault committed an act of indecency on him. (s61M(1) Crimes Act, 1900) Maximum penalty: Imprisonment for 7 years.

Count 2: Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did have homosexual intercourse with CH, a male aged between 10 years and 18 years. (s78K Crimes Act, 1900) Maximum penalty: Penal servitude for 10 years. Count 3: Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did have homosexual intercourse with CH, a male aged between 10 years and 18 years. (s78K Crimes Act, 1900) Maximum penalty: Penal servitude for 10 years. Count 4: Between 31 December 1993 and 1 January 1995 at Gorokan in the State of New South Wales did assault CH in circumstances of aggravation and at the time of the assault committed an act of indecency on him. (s61M(1) Crimes Act,1900) Maximum penalty: Imprisonment for 7 years. Count 5: Between 1 March 1996 and 28 November 1996 at Tuggerawong in the State of New South Wales did have homosexual intercourse with CH, a male aged between 10 years and 18 years. (s78K Crimes Act,1900) Maximum penalty: Penal servitude for 10 years. Count 6: Between 1 March 1996 and 28 November 1996 at Budgewoi in the State of New South Wales did assault CH in circumstances of aggravation, and at the time of the assault committed an act of indecency on him. (s61M(1) Crimes Act, 1900) Maximum penalty: Imprisonment for 7 years. 3 The appellant pleaded not guilty. On 18 February 1999, the jury returned a verdict of guilty on each count. On 19 February 1999, the appellant was sentenced on count 5 to a minimum term of imprisonment of four years with an additional term of one year and four months, and to concurrent fixed terms of imprisonment in relation to the other counts, namely, two years imprisonment in relation to counts 1, 4, and 6, and three years imprisonment in relation to counts 2 and 3. 4 The appellant was a friend of the complainant's family. The principal crown witness was the complainant. Other evidence served to fix the times of the various episodes which were alleged by the complainant to have occurred and provided some limited corroboration. 5 The complainant's evidence in relation to count 1 was that, while staying at the appellant's house and sleeping on a sofa with the appellant, the appellant fondled the complainant's penis. 6 As to count 2, the complainant said that, on an occasion when the appellant came to the complainant's family home to visit, the appellant followed the complainant into the complainant's bedroom, pushed the complainant onto the bed and performed fellatio on him. 7 As to count 3, the complainant said that, on the same occasion, he then performed fellatio on the appellant. 8 As to count 4, the complainant was asked, in chief, what happened. He gave evidence of a further episode of fellatio by each on the other in his bedroom. No evidence was given at that stage concerning the assault and act of indecency opened by the crown, namely, a touching on the buttock. Counsel for the appellant at the trial did not move for an acquittal by direction in relation to this count. He used the omission to cross-examine the complainant about the episode, bringing out that, in addition to the acts of fellatio, the appellant, according to the complainant, "grabbed him on the bum". Counsel for the appellant then brought out that the complainant had made a statement to the police in which he referred to an episode which involved a touching on the buttock but in which nothing was said about fellatio having occurred on that occasion. Counsel then had an inconsistency on which to address the jury and did so in due course. 9 As to count 5, the complainant gave evidence, in chief, of the appellant and the complainant having gone to an oval to drink beer. The complainant said that on that occasion fellatio had occurred, anal intercourse by the appellant on the complainant and self masturbation by the appellant. The crown prosecutor had opened on anal penetration but not on fellatio and masturbation in relation to this episode. The response of counsel for the appellant was similar to what had occurred in relation to the fourth count. No objection or action was taken by counsel in relation to the evidence of further acts. In cross-examination, counsel for the appellant obtained the complainant's reaffirmation of his evidence concerning the further acts and then brought out that, in the statement made by the complainant to the police, there was no reference to such further acts in the complainant's account of the episode in that statement. This inconsistency was also relied on in counsel's address to the jury. 10 Other evidence, to which I have briefly referred, was then led by the crown. 11 The appellant gave evidence at the trial. He denied all of the acts relied upon by the crown as constituting the offences charged. 12 The appellant has appealed against conviction and has sought leave to appeal against sentence. The grounds of appeal are as follows: Ground 1: The jury were misdirected in relation to the evidence of the uncharged sexual activity between the complainant and the applicant.