Regina v T.K.W.J [2000] NSWCCA 246

New South Wales Court of Criminal Appeal

CITATION : Regina v T.K.W.J [2000] NSWCCA 246 FILE NUMBER(S) : CCA 060426/98 HEARING DATE(S) : 06/07/2000 JUDGMENT DATE : 13 September 2000

PARTIES : Regina v T.K.W.J JUDGMENT OF : Sheller JA at 1; James J at 2; Adams J at 61

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/31/0391 LOWER COURT JUDICIAL Viney DCJ OFFICER :

COUNSEL : GP Craddock - Appellant LMB Lamprati - Crown SOLICITORS : TA Murphy - Appellant SE O'Connor - Crown

DECISION : By majority - Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL 60426/98

SHELLER JA JAMES J ADAMS J

Wednesday 13 September 2000

REGINA v TKWJ JUDGMENT

1 SHELLER JA: I have had the benefit of reading the draft judgments of James and Adams JJ. Like James J and for the reasons his Honour has given I do not think the appellant underwent an unfair trial or a trial in which he had less chance of being acquitted than he would have had if the trial had proceeded as his counsel had anticipated. In my opinion, the appeal against conviction should be dismissed. 2 JAMES J: TKWJ has appealed against his conviction, after a trial in the District Court before his Honour Judge Viney QC and a jury, on two counts of aggravated indecent assault, offences under s61M(1) of the Crimes Act, and one count of an aggravated act of indecency, an offence under s61O(1) of the Crimes Act. The two counts of aggravated indecent assault were the first and the third counts in the indictment and the count of an aggravated act of indecency was the second count in the indictment. 3 It was alleged by the Crown that the first two offences in the indictment had been committed on the same occasion on or about 17 December 1995 and that the third offence in the indictment had been committed in December 1995 or January 1996. The victim of all the offences (who I will refer to as "the complainant") was a boy born on 20 December 1983, so that he was just under twelve or just over twelve at the time the offences were allegedly committed. The complainant had a sister, who I will refer to as "K", who had been born in August 1988. 4 At the time the offences were allegedly committed the mother of the complainant and K was in a relationship with the appellant. The history of that relationship was established by evidence given at the trial by the complainant's mother and by the appellant. The appellant and the complainant's mother had entered into the relationship in February 1993. In December 1994 the appellant, the complainant's mother and the two children moved to Kempsey. In May 1995 the appellant moved alone to a small settlement near Kempsey, which I will refer to as "H.H". A few weeks later the appellant was joined by the complainant's mother and the two children. In late 1995, because of his misconduct, the complainant was sent to live with his grandparents in Wollongong for two months. He then resumed living at H.H. As indicated earlier in this judgment, the first two offences were allegedly committed on or about 17 December 1995. Shortly afterwards, the family went to Queensland on holidays for a couple of weeks. They then returned to H.H, where the third offence was allegedly committed. 5 The complainant's evidence about the commission of the alleged offences can be briefly summarised as follows. 6 By December 1995 the complainant had become curious about sexual matters. He spoke to his mother, who suggested that he should speak to the appellant, because the appellant was a male. The complainant spoke to the appellant in a shed on the property at H.H. After some conversation between them, the appellant untied the strings of the complainant's shorts and lowered them, the appellant put his hand on the complainant's penis "and started playing with it" (this conduct on the part of the appellant was the subject of the first count in the indictment). The appellant then took down his own clothing, put the complainant's hand on his penis and incited the complainant to stimulate him until he ejaculated (this conduct was the subject of the second count in the indictment). 7 The complainant gave evidence that the third offence was committed, after the group had returned from the holiday in Queensland. One day when his mother was asleep in the house, the complainant asked the appellant, who was having a shower, whether he could have a drink of cordial. The appellant asked the complainant to join him in the shower, which the complainant did. While they were in the shower, the appellant took hold of the complainant's penis. This conduct was the subject of the third count in the indictment 8 According to the evidence of the complainant and his mother, the complainant spoke to his mother more than once about the appellant's conduct. Initially, the complainant's mother did not believe the complainant. However, on or about 23 January 1996 she reported the complainant's allegations. Two social workers called at the property at H.H and took away the complainant's mother and the two children. They were taken to a police station, where both the complainant and his sister K, who had also made allegations to her mother that the appellant had sexually interfered with her, made statements alleging that the appellant had committed sexual offences against them. 9 In her statement, which was in question and answer form, K said that the appellant had pulled her pants down and rubbed her on "my bum and my bajina" (sic). When asked when such conduct had happened, she said "during these Christmas holidays… some in the day and some in the night". She also said that the appellant had made her play with him in the shed "in the rude part". 10 After the two children had made their statements, the mother and the two children were taken to a refuge, where they spent two or three days. On Australia Day, 26 January 1996, the mother and the two children set off by train for Wollongong. The mother drank wine on the train and became intoxicated. She repeatedly told the complainant he had been lying in making the allegations against the appellant. Ultimately, the complainant said to his mother words to the effect that he had been lying. Both the complainant and his mother gave evidence at the trial that the complainant had said these words, only after continual pressure from his mother. 11 The appellant was interviewed by police on 25 January 1996 about the allegations made by both children. He denied having committed any misconduct against either child. In answer to one question he said "(K's) probably only doing (it), 'cause he's (the complainant) said, but I know he's not happy here, 'cause we've had a lot of trouble like". 12 After living apart from the appellant for some months, the complainant's mother returned to H.H and briefly resumed her relationship with the appellant. At the instance of the appellant, the complainant's mother wrote a note in which she recorded that the complainant had told her that he had been lying when he made his allegations against the appellant. 13 The complainant made two statements to the police, the one made on 23 January 1996 and a second one made on 8 May 1998, just before the trial started. There were some inconsistencies between the two statements or between one or other of the statements and the complainant's evidence, concerning such matters as the timing, sequence and details of the alleged offences. 14 The complainant admitted in cross-examination that he had been "grounded" by the appellant for misbehaviour, that he did not like being grounded, that he had resented being sent to Wollongong for two months in 1995 and that he blamed the appellant for it, that he had told lies on other matters to his mother, that he had stolen money from his mother and that he had wagged school. He denied that he had fabricated allegations of misconduct by the appellant, so as to break up the relationship between the appellant and his mother. 15 When she was cross-examined, the complainant's mother confirmed that, when the complainant had first spoken to her, she had not believed him. She also confirmed that the complainant had told lies on other matters, that he had wagged school, that he had run away from home and that he had stolen cigarettes and money. She also said that the complainant had not liked the appellant, had not liked his mother being with the appellant and had wanted his mother and the appellant to separate. It is clear that by the time of the trial the complainant's mother was not well disposed to the appellant. 16 In the note which the complainant's mother wrote at the instance of the appellant, the complainant's mother recorded that the complainant had admitted that his allegations against the appellant were lies and that he had wanted to get even with the appellant for sending him away the previous year. The complainant's mother said that on the train trip she had kept on pressing the complainant, until he admitted that he had been lying. 17 The appellant gave evidence at the trial. In his evidence he denied having committed any of the offences. He said that the complainant had resented the stance he had taken on disciplining the complainant. With regard to the offences allegedly committed in the shed, the appellant said that the complainant's mother had asked him to speak to the complainant and he had had a conversation with the complainant. He said in evidence "I just spoke to him about hygiene and not to treat girls badly". He said that he had demonstrated to the complainant how to pull back one's foreskin. 18 In the proceedings on sentence a number of testimonials, testifying to the previous good character of the appellant, were admitted into evidence. 19 In his remarks on sentence Judge Viney said:- "It was into that domestic situation (that is, the situation of the complainant's mother and the two children) that the prisoner arrived, a man then about thirty, of previous excellent character, a hard worker, a qualified tradesman as a motor mechanic and a refrigeration and air-conditioning mechanic, and held in high esteem by his family and friends, who have provided references indicating that this sort of conduct is totally out of character. I must say, although it is none of my affair, I was a little surprised at the verdicts, given the situation was one of the evidence of one person against another, with no corroboration at all. But that is a matter for the jury. They have chosen to accept the victim beyond reasonable doubt and I am required to give effect to that verdict. (TKWJ) then, and ever since, and his family, have attested to his still proclaimed innocence. It does seem odd that a person of his background and character would engage in this sort of conduct and it has to be said then that it is totally out of character". 20 A factor which played a part in his Honour's decision to impose a fairly lenient sentences consisting of community service orders was that the appellant had suffered serious personal injuries in a motor vehicle accident, from which he had not fully recovered and which required continuing physiotherapy. 21 The only ground of appeal against conviction is:-