REGINA v. HUGHES [2000] NSWCCA 3

New South Wales Court of Criminal Appeal

CITATION : REGINA v. HUGHES [2000] NSWCCA 3 FILE NUMBER(S) : CCA 60128 of 1999 HEARING DATE(S) : Tuesday 15 February 2000 JUDGMENT DATE : 15 February 2000

PARTIES : REGINA v. HUGHES, Peter Charles JUDGMENT OF : Grove J at 31; Hidden J at 32; Greg James J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0675 LOWER COURT JUDICIAL Shillington, DCJ. OFFICER :

COUNSEL : Crown: C.K. Maxwell, QC. App: S.R. Norrish, QC. SOLICITORS : Crown: S.E. O'Connor App: Chalmers Marx CATCHWORDS : Criminal law - appeal - time and place of offence - made essential to guilt by conduct of trial - absence of new evidence causing miscarriage CASES CITED: VHP (CCA, unreported 7 July 1997) Saleam (1989) 16 NSWLR 14 DECISION : Appeal upheld

- 5 - IN THE COURT OF CRIMINAL APPEAL

No. 60128 of 1999 CORAM: GROVE, J. HIDDEN, J. GREG JAMES, J.

TUESDAY 15 FEBRUARY 2000

REGINA v. PETER CHARLES HUGHES

JUDGMENT

1 GROVE, J: I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: On 11 March 1999 the appellant was indicted before his Honour Judge Shillington, QC. at Sydney District Court on four counts that between 31 December 1978 and 30 June 1979 at Vaucluse in the State of New South Wales he did commit with Stephen James Reed the crime of buggery. There were two additional counts that he, between 31 December 1978 and 30 June 1979, at 23 Warners Avenue, Bondi in the State of New South Wales did commit with the same person the same crime. 3 He was convicted on all counts and sentenced to a minimum term of three years penal servitude and an additional term of three years. 4 At the trial the complainant gave evidence, as also did Alan Harper. That evidence related to events that were identified by both witnesses as having occurred in 1979 at, as far as the first four counts were concerned, in the appellant's grocery shop opposite another business the appellant carried on called the Telephone Shopping Centre in Vaucluse. 5 The complainant gave graphic evidence of the circumstances of the commission of the crimes and in particular gave evidence of these crimes having been committed whilst he was employed by the appellant stacking goods on shelves initially and otherwise at the shop. He referred to his obtaining the employment in consequence of having seen a sign in the window of the shop and having spoken to the appellant as the operator of the shop. 6 Mr. Harper gave evidence confirming the initial contact between the appellant and that employment and the timing of it as following the Christmas holidays and in the commencement of 1979. 7 Subsequently, according to the complainant, he had been taken by the appellant to the premises at Warners Avenue, Bondi, where the additional two offences had been committed. Initially, when speaking to the police concerning those offences, the complainant showed some inability accurately to describe the location of the appellant's flat within those premises. 8 The complainant continued to work with the appellant, but with the Telephone Shopping Service, for some time following the commission of these offences and for many years told no one of the commission of these offences upon him, although in the 1990s he said he saw a van with the appellant's business name on it drive past him and rang the appellant asking if he could remember who he was. He contended that the appellant had said, "You were little Stevie". The appellant denied that was the content of the telephone call. 9 In cross-examination it was raised with the complainant the suggestion that the appellant had not had access to the premises in 1979 and indeed had not opened the shop until 1981. This was denied. Quite crucially in the Crown case, this matter which had not been an essential element of any of the offences, took on such a complexion of importance that the learned trial judge in his summing-up directed the jury:-