New South Wales Court of Criminal Appeal CITATION : Regina v Robinson [1999] NSWCCA 172 FILE NUMBER(S) : CCA 60165/98 HEARING DATE(S) : 28 June 1999 JUDGMENT DATE : 2 July 1999 PARTIES : Regina v Stephen Joseph Robinson JUDGMENT OF : Grove J at 1; Abadee J at 46; Barr J at 47 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/1044 LOWER COURT JUDICIAL OFFICER : McGuire DCJ COUNSEL : W. Terracini, SC D. Howard SOLICITORS : Burston Roberts & Cole C.K. Smith CATCHWORDS : Criminal Law and Procedure - Summing Up - Character - Requirement to explain to jury use that may be made of evidence ACTS CITED : Crimes Act 1900 Evidence Act 1995 R v Murray 1987 11 NSWLR 12 R v Andrews 1982 2 NSWLR 116 R v Murphy 1985 4 NSWLR 42 CASES CITED: R v Stalder 1981 2 NSWLR 9 R v Gillard CCA 15 July 1991 R v Groves CCA 20 June 1986 R v Piazza CCA 16 June 1997 DECISION : Appeal allowed (Trial No 2); Appeal dismissed (Trial No 4) IN THE COURT OF CRIMINAL APPEAL 60165/98 GROVE J ABADEE J BARR J 2 July 1999 REGINA v STEPHEN JOSEPH ROBINSON JUDGMENT 1 GROVE J : These are appeals against convictions following trials in the District Court before McGuire DCJ and juries. 2 Some background should be sketched. The appellant was formerly a priest in the now disbanded society of St Gerard Majella. At the relevant time the appellant was a Superior in one of the houses of the Order and also occupied the position of Master of Novices. 3 He came to trial as a result of complaints by four men and consequent upon his application, not opposed by the Crown separate trials were ordered which were heard following each other. The Court was informed that the juries in the cases of the first and third trials were discharged upon being unable to reach agreement and that the Director of Public Prosecutions has determined not to proceed further in respect of those complaints. The second trial proceeded upon an indictment for indecent assault upon a male contrary to s 81 of the Crimes Act which pertinent to the time of the offence (between September and October 1981) carried a prescribed maximum penalty of five years penal servitude. Upon conviction the appellant was sentenced to a total term of two years divided into minimum and additional components of 18 months and 6 months respectively. 4 The fourth trial proceeded upon an indictment for a single count of an act of indecency by a male with another male contrary to s 81A of the Crimes Act which pertinent to the time of that offence (between April and September 1979) carried a prescribed maximum penalty of two years imprisonment. The appellant was sentenced to a fixed term of 9 months to be served concurrently with the first 9 months of the minimum term imposed in respect of the conviction following the second trial. The Second Trial 5 The complainant whom I will refer to as G had obtained his leaving certificate at the Newman High School which had some affiliation with the Society of St Gerard Majella. He left school and after engaging in employment for several years moved into a monastery as a boarder later commencing a postulancy prior to intended entry into the Order. He progressed to the novitiate. During this time he engaged in studies completing his Higher School Certificate at Liverpool TAFE and between 1983 and 1985 obtained a Diploma in Education through the Australian Catholic University. He taught school until he left the Order in 1987. 6 The incident giving rise to the indictment occurred when the complainant alleged he was studying for the Higher School Certificate and had been requested by the appellant (in what he thought was routine) to call upon him when he returned to his quarters. G knocked on the door and was told to return and when he did he was instructed to come in, leave the light off and take off his clothes except his underpants. He was further instructed to lie on the bed and sexual activity which it is not necessary to describe in detail took place. Evidence was admitted of some conduct of the appellant towards the complainant in the period prior to the subject of the indictment including kisses, massage and apparent attempts to touch the complainant's genitals. 7 No complaint was made at the time of any of these occurrences. 8 The prosecution case was entirely dependent upon the testimony of G. A police officer was called who stated that when questioned on 28 April 1995 about the subject matters the appellant exercised his right to decline to be interviewed. In cross examination he was asked to confirm that he was aware that the appellant had no prior convictions. 9 The appellant did not give or call any evidence at the trial. 10 As I have concluded that one of the grounds of appeal advanced on behalf of the appellant must be sustained with consequences to which I will later make reference, it will suffice to deal briefly with other grounds of appeal. 11 Grounds 1 and 2 were derived from media publicity surrounding the trials and specifically an article appearing in the Sydney Morning Herald. The learned presiding judge rejected applications to adjourn the trials and I am unable to perceive any error in his exercise of discretion. He had given the jury firm directions about the need to determine issues upon the evidence in Court at the very outset of the trial and, it can be observed, in his final directions to the jury he was emphatic about the need to avoid contamination of jury deliberations by bias. The essence of the complaint by the appellant was, of course, that the publicity may have diverted jurors from their duty. 12 The third ground was not pressed. The fourth ground complained of the directions in the summing up concerning the evidence which had been admitted concerning the relationship between the appellant and the complainant. What was important was for his Honour to instruct the jury what use might be made of such evidence and following an application by trial counsel he gave a precise direction which included the instruction that a finding that the appellant "performed the other acts must not be used as proof of his guilt on the charge in the indictment. The Crown must still prove beyond reasonable doubt the essential elements of the crime charged ……" I would not sustain this ground. 13 The fifth ground complained that the trial judge "failed to fully warn the jury of acting upon the complainant's evidence." As the terms of that ground imply, there was a warning and the challenge is to its sufficiency. Reference was made in the appellant's submissions to the observation in R v Murray 1987 11 NSWLR 12 that it is always open to a trial judge to direct that the evidence of a witness must be scrutinized with great care and to draw the jury's attention to the features in the complainant's evidence going to credibility. The trial judge had instructed the jury that the Crown case "stands or falls" upon the evidence of G. He added that if they were not persuaded that he was "an essentially reliable witness" the jury would acquit. No application was made by trial counsel for a direction in the terms now sought and Rule 4 applies. As noted this ground is essentially focussed upon alleged insufficiency. The ground is not made out. 14 Ground 6 was again a complaint concerning the alleged inadequacy of directions to the jury in this instance as to how they could treat the absence of complaint. This was a trial in which the totality of evidence amounted to the testimony of the complainant and the brief evidence of the police officer which I have earlier summarized. It is obvious from the terms of his Honour's charge to the jury that submissions of trial counsel were centred upon the absence of complaint as a principal argument against acceptance of the Crown case. The arguments in this regard advanced on behalf of the appellant were forcefully summarized in that charge to the jury. Trial counsel made no application suggesting that what his Honour had said was inadequate. I would reject this ground. 15 The seventh ground complained that the trial judge failed to direct the jury as to the likely effects of delay upon the ability of the appellant to meet the charge. Once again this assertion has arisen in the context of examination of the trial by other than counsel who was conducting it on behalf of the appellant. It is readily understandable that no application for a direction in this regard would have been made bearing in mind the election of the appellant to remain silent. It is readily perceptible that counsel might regard it as more than faintly tactically unsound to seek a direction that delay hindered the opportunity and ability of the appellant to meet a charge which he had been unwilling to meet by pledging his oath in denial. 16 Ground 9 was expressed in the now precluded terms that the verdict was unsafe and unsatisfactory. Insofar as the jurisdiction of this Court is invoked in the terms of s 6 of the Criminal Appeal Act I am unpersuaded that the verdict was insupportable having regard to the evidence. Indeed this is the very sort of case in which it was highly advantageous for a tribunal of fact to hear the evidence and determine whether the oath of the complainant satisfied them beyond reasonable doubt of the guilt of the appellant. Ground 9A asserts that his Honour's comment on the failure of the accused to give evidence, although conceded not to have breached the provisions of s 20(2) of the Evidence Act, contravened "the continuing common law restrictions upon the ambit of appropriate comment". It is unnecessary to explore the detail of the argument advanced on this added ground. It suffices to say that in this case I am unpersuaded that his Honour said anything which could be categorized as giving rise to a miscarriage of justice. 17 I return however ground 8 which complained that the trial judge failed to direct the jury in relation to how the appellant's good character could be taken into account. 18 As noted the police officer was expressly asked in cross examination to confirm that the appellant had no prior convictions. In a written submission to this Court the Crown included the following: "This is not a case where the appellant raised good character. All that was adduced by the defence was that the appellant had no convictions. That does not constitute the raising of character. The appellant gave no evidence of his own good character, nor did he call any witnesses as to character. It was not an appropriate case for his Honour to direct the jury as to the good character of the appellant." 19 In response to inquiry from the bench, counsel for the Crown withdrew his contention that the appellant had not raised the issue of character. As was pointed out in exchange, and I affirm, the only issue at the trial to which the question addressed to the police officer relating to absence of conviction could be germane would be the raising of the asserted good character of the appellant. 20 His Honour gave no direction concerning the use that might be made of this evidence. He made reference to it in his summing up and it is convenient to set out the context in which the reminder was given. Towards the end of his summing up as his Honour was summarizing the case advanced by the appellant he said: "In short the accused, through his counsel, says that you would not accept the account of G. I remind you that the accused has no prior convictions. Any verdict of either guilty or not guilty is to be unanimous." 21 His Honour then went on to elaborate the need for unanimity and to make reference to the absence of any jury input into possible penalty if there was a finding of guilty. 22 No application was made for any direction concerning the issue of character which had been raised. 23 Formerly s 412 of the Crimes Act 1900 provided that "evidence as to the character of the accused shall in all cases be received and dealt with as evidence on the question of guilt". Provision is now made in s 110 of the Evidence Act 1995 in particular that the hearsay, opinion, tendency and credibility rules do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. 24 That statutory provision does not erode the established law that good character is relevant to the guilt of an accused: R v Andrews 1982 2 NSWLR 116. In this case there was no evidence that the appellant when confronted about the charge made any response, specifically no evidence that he responded by denial. He exercised his right to silence. Hence it would be understandable that there would be an omission to direct a jury that evidence of good character was relevant to the credibility of the appellant in his or her denial of the charge: R v Murphy 1985 4 NSWLR 42. However, unchallenged evidence of good character (even if limited to absence of prior conviction) was material to considering whether it was unlikely that the appellant committed the offence: R v Stalder 1981 2 NSWLR 9. It is not incumbent upon a trial judge to give directions on the relevance of character by any fixed formula: R v Gillard CCA unreported 15 July 1991 but it is standard practice to inform juries along the lines that if they accept that the accused is a person of good character that fact may persuade the jury that the Crown evidence must be mistaken. Even in the absence of s 412 of the Crimes Act the common law would require a jury to take the character of the accused into account on the question of guilt. See Phipson on Evidence 12th Edn para 528 et seq. The present issue is whether the failure to give any such direction beyond the mere mention that the accused had no prior convictions resulted in a miscarriage of justice. Such a failure has been held to amount to miscarriage: R v Groves CCA unreported 20 June 1986. 25 Despite the absence of application by trial counsel, I conclude that the failure to bring to the jury's attention the circumstance that the asserted good character of the appellant was germane to their deliberations on the issue of guilt amounted to miscarriage and this ground must be upheld. 26 The ground relates to what might be classified as a procedural defect and ordinarily the discretion of the Court should, in my opinion be exercised to order a new trial. However the appellant has been in custody since the imposition of sentence on 27 March 1998 and has therefore served just over 15 months of the 18 months minimum term. Pursuant to the order made at trial the appellant is to be released to parole on 26 September, that is to say, in less than three months. He has therefore served over five-sixths of the custodial element of the sentence passed upon him. I would not order a new trial cf. R v Piazza CCA unreported 16 June 1997. It should be recorded that that conclusion does not in any way imply that any view adverse to the credibility of the complainant has been formed or is being expressed. Fourth Trial 27 The complainant whom I shall refer to as C joined the Society of St Gerard Majella as a postulant in March 1979 when he was aged 17. He had left school after completing Year 10 and had been employed for some time before seeking to enter the Order. The incident complained of occurred at a retreat house in Bowral where a retreat was being conducted for school girls and the complainant was allocated duties as a cook during the weekend. The appellant was present as a spiritual director and in his capacity as an ordained priest. 28 C claimed that the appellant tapped on his door in the evening and invited him to attend for the sacrament of reconciliation. Upon the complainant agreeing he was told to come to the appellant's room in about five minutes time. When he arrived he found the appellant in his pyjamas but wearing his purple stole which was a traditional accoutrement for the sacrament. The complainant made professions of affection for him and later uncovered his penis and masturbated to ejaculation. The complainant ran away. 29 There was evidence admitted of other relationship between the parties in that the appellant was said to have made a crude remark of sexual significance to him at an earlier point of time and sent him flowers and cards professing love. The complainant reported what had happened to another member of the Order called Muir whose response was to invite him to read biblical passages. The complainant asked for money to go home and he returned to his mother to whom he made complaint that he had been sexually assaulted. Thereafter he returned on occasions to the monastery apparently at the behest of the Superior General of the Order, Father Sweeney. 30 At the trial the complainant gave evidence as did his mother and Mr Muir. Mr Muir testified that he did not have any recollection of the matters adverted to by the complainant although when shown a card upon which certain biblical references were endorsed (alleged by C to have been the advice received) he stated that whilst he did not recognize the writing on the card it was similar to his own. 31 The appellant gave sworn evidence denying the happening of the incident upon which the indictment was based as well as denying the comment asserted to have been made to C and further denying that he ever sent him cards or flowers. 32 Grounds 1 and 2 essentially repeat the matters complained of concerning the media attention to the trials of the appellant in terms similar to those raised in connection with the second trial. I see no miscarriage in his Honour's discretion in ordering that the trial proceed. 33 Ground 3 asserted in substance that his Honour's summing up was not balanced in relation to the respective cases of the Crown and the appellant. Balance is a matter of impression to be gained from the reading of the whole. Detailed submissions on behalf of the appellant repeat references made during the course of the summing up to matters inculpatory of the appellant but it should be observed that those references were made in summary of the Crown's case and I am unpersuaded that the summing up was in any sense unfair so as to cause the jurisdiction of this Court to be invoked. 34 The fourth ground extracted an expression used by his Honour during the course of the summing up when he invited contemplation as to whether the complainant had "concocted a terrible lie" and it is argued that thus there was a reversal of the onus of proof. 35 Whether there is substance in this ground must be gauged from the tenor of the summing up as a whole. It is trite law that no trial is a contest between credibility of a complainant and an accused. Nevertheless it was not inappropriate for his Honour to observe that the Crown case "stands or falls" upon the reliability of the complainant. His Honour expressly told the jury that the trial was not some sort of contest between the complainant and the appellant. 36 Amongst other things his Honour specified to the jury: "It is plainly the position that one of those two (referring to the complainant and the appellant) is a liar. It is for the Crown to establish that C is telling you the truth and it would follow, if that be the case, that the (appellant) is a liar. But he does not have to prove that he is telling you the truth. It is for the Crown to prove that C is giving a reliable account." 37 Whilst, for my part, I would deem it preferable to refrain from any reference to the obvious situation that direct contradiction must mean that at least one of the proponents is lying, I am unpersuaded that in the context of the whole of his Honour's summing up there was any significant unfairness. It is noteworthy that trial counsel made no observations in relation to this nor was any application made concerning the remark now complained of. 38 Ground 5 is couched in terms that the trial judge failed to adequately explain to the jury what was at issue in the trial with particular relationship to the evidence concerning complaint and how the jury may treat the evidence of absence of delay and complaint. 39 As is implicit in the terms of the ground this is a complaint of adequacy not of absence. This was a very short trial. The contest (in the sense of the existence of contradiction) was unmistakably plain and again it is significant that the trial counsel did not perceive that the matter now complained of required application for elaboration. I would not uphold this ground. 40 Ground 6 referred to the absence of direction to the jury as to the possible effect of the delay upon the ability of the appellant properly to meet the charge. It is acknowledged that such a direction is often appropriate where there has been long delay: cf R v Johnston 1998 45 NSWLR 362 but as Spigelman CJ observed in his review of authorities (@ p 375) whether or not there is need for any, and if so what, warning will depend upon the circumstances of the case. Whilst the written submissions on behalf of the appellant contain a series of suggestions as to how delay might have been inhibiting in the preparation of the appellant's case, once again this is a matter that has been raised subsequent to and not at trial. The defence was conducted by experienced counsel and, indeed, this was the fourth of the series of trials being conducted. I am unable to perceive that the absence of reference to the matters now addressed was productive of miscarriage. I would apply rule 4. 41 The final ground is expressed in the terms that the verdict is unsafe and unsatisfactory. The conclusion of the jury (who were able to see the appellant and the complainant) was reached in circumstances where they had a distinct advantage over this Court which can only examine transcript. It was of similar importance that the jury could make an assessment of the complainant's mother and the witness Muir and determine whether any inconsistencies in description, timing or recollection were significant in coming to a conclusion upon the indictment. I am unpersuaded that the jury ought to have had a doubt about the guilt of the appellant. 42 The sentence imposed in respect of the conviction upon this indictment is now spent. In the light of my conclusion concerning the appeal against the conviction following the second trial I propose the following: 43 In respect of the second trial : the appeal be allowed and the conviction and sentence quashed and in the exercise of the discretion of this Court no new trial ordered and therefore a verdict and judgment of acquittal on this indictment entered. 44 In respect of the fourth trial : the appeal be dismissed and the conviction and sentence confirmed. 45 In the absence of any reason extraneous to these appeals for the detention of the appellant, he be ordered released forthwith. IN THE COURT OF CRIMINAL APPEAL 60165/98 GROVE J ABADEE J BARR J 2 July 1999 REGINA v Stephen Joseph ROBINSON JUDGMENT 46 ABADEE J : I agree with the reasons of Grove J and the orders he proposes. IN THE COURT OF CRIMINAL APPEAL 60165/98 GROVE J ABADEE J BARR J 2 July 1999 REGINA v Stephen Joseph ROBINSON JUDGMENT 47 BARR J : I agree with Grove J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.