New South Wales Court of Criminal Appeal CITATION : R v White [2000] NSWCCA 510 FILE NUMBER(S) : CCA 60700/99 HEARING DATE(S) : 30/11/00 JUDGMENT DATE : 30 November 2000 PARTIES : Regina Ronald Keith White JUDGMENT OF : Wood CJ at CL at 1; Dunford J at 33; Carruthers AJ at 34 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/31/0217 LOWER COURT JUDICIAL Job DCJ OFFICER : COUNSEL : W Dawe QC for Crown S. Odgers SC for Applicant SOLICITORS : S.E. O'Connor D.J. Humphreys DECISION : Conviction and Sentence quashed. New trial ordered. IN THE COURT OF CRIMINAL APPEAL 60700/99 WOOD CJ AT CL CARRUTHERS AJ DUNFORD J THURSDAY 30 NOVEMBER 2000 REGINA v RONALD KEITH WHITE JUDGMENT 1 WOOD CJ at CL: The appellant appeals against his conviction for one count of aggravated sexual intercourse (s 61J Crimes Act 1900), an offence of which he was found guilty after a trial by jury on 22 October 1999. There is no application for leave to appeal against sentence. FACTS. 2 It was the Crown case that the appellant took advantage of the complainant DH, a sixteen year old female, at a time when she was sleeping off the effects of a considerable quantity of alcohol which she had consumed at a party at the appellant's home at Kincumber. While in this state it was alleged that the appellant removed her shorts and underpants before penetrating her vagina, in the course of which activity he occasioned actual bodily harm to her. 3 There was no issue at trial that someone did sexually assault the complainant at the party and cause the requisite harm to her. Dr Collins, who examined her soon after the incident, found signs consistent with the penetration of her vagina by either a penis, a finger, or some foreign object. There was significant damage to the vaginal area, sufficient to constitute actual bodily harm. The sole issue was whether it was the appellant who had inflicted this act upon her. 4 There was also no doubt that the complainant had become exceedingly drunk at the party, and that for a considerable period of time, she had been lying asleep on the ground near a fence at the side of the house. From time to time her condition was checked by guests at the party who regrettably, it must be said, appear to have left her in a drunken state lying on the ground. 5 The complainant said that, at some point of time, she woke and attempted to get up. However, she said, she was forced down by a man who she later, but not immediately, identified as the appellant, being a man who had introduced himself to her earlier in the night. According to her, she recognised the singlet that he had been wearing when he had introduced himself to her. She said that she noticed that her shirt and shorts had been removed, but her underwear was still on. The appellant, she said, felt her breasts and touched her vagina. She felt pain in the vagina and then blacked out. The next thing she remembered was waking up in the bathroom of a friend. 6 Several witnesses gave evidence of seeing the complainant lying near the fence and also seeing the appellant during the night. Not all of these witnesses were consistent in their observations. For instance, some said that the area where the complainant was lying was illuminated, while others said that it was dark, and that a spotlight that had been earlier set up had blown. Others gave varying accounts of seeing the appellant jump over a fence on the property at different times during the night. 7 There was, however, unanimous evidence that, at some time between 11pm and midnight, the appellant was alone in close proximity with the complainant, just before other persons came to her assistance. It was the Crown case that this was the occasion on which she was sexually assaulted. It was the defence case, however, that the appellant had gone to her aid after realising that something had happened to her over by the fence. 8 The principal prosecution witness apart from the complainant was Kurtis Waho. He said that he saw the appellant, wearing only shorts, jump over a fence near where the complainant was lying and kiss her on the forehead. He saw him hold her leg and he saw her push him away. He also heard her say "no" and "just don't". At that stage he went to summons Daniel Blandfield, the stepson of the appellant. He said that he noticed that the appellant had a prominent scar on his abdomen when he jumped the fence. The appellant acknowledged to having such a scar. 9 It is not entirely clear from the evidence as to where Mr Waho was when he observed the kiss. However, on one reading of the transcript he had moved from a position about twenty-three metres away from the girl towards her, after he had noticed the appellant jump the fence. Upon that understanding of the transcript, it was while he was approaching the girl and the appellant, that he saw the kiss, and then decided to speak to the stepson of the appellant. 10 He was the only witness who described seeing the appellant kiss the complainant. A number of other witnesses, however, gave evidence of seeing him slapping her on the face, asking her what had happened, and saying that he had to wake her up. He also requested that someone bring a female over to assist. These witnesses included Daniel Blandfield, Michelle Anderson, Mervi Watson, Dion Warburton, Donna White and Christine White. One of these witnesses, Donna White, said that the appellant appeared "frantic" when calling out for someone to get a female. The complainant was seen by these witnesses to be naked from the waist down. Her shorts and underpants were over the fence. 11 Two witnesses, Donna White and Stephen White, recalled that the appellant had disappeared for a time during the party, before they noticed him over with the complainant requesting assistance. 12 The appellant gave evidence to the effect that he had gone to bed at about 10pm because he had been drinking from early afternoon and was feeling unwell. He said that, when he went to bed, he was wearing the singlet and football shorts that he had been wearing during the afternoon and evening of the party. He had apparently then got up and returned to the scene. It was at this time that he spotted someone near the fence. He walked over and noticed the complainant lying on her back moaning. He tried to roll her over and pick her up. He slapped her to wake her before asking Daniel Blandfield to get help. He denied kissing her, removing her clothing or sexually assaulting her. 13 Some of the girls, including Anna Mace, the complainant's sister, and Carla Betteridge who came to the complainant's assistance gave evidence of asking her what had happened. This occurred after she had been taken from the scene to Luke Warburton's house. Her reply, they said, was that she did not know what had happened. When asked whether it was "a man or a guy our age", the complainant said it was a man. A little later when taken to the hospital she informed Dr Collins that an unknown older man had "done it" to her. 14 The complainant first named the appellant as her attacker when she gave a statement to police four days after the event. She said, at the trial, that she had always known it was him, but gave as an explanation for not naming him earlier that she had wanted to forget. 15 Pathology tests were conducted on swabs taken from the complainant, and from her blood marked clothes, as well as from a blood sample supplied by the appellant. Those tests were entirely neutral. 16 There were three grounds of appeal. GROUND 1: ABSENCE OF WARNING CONCERNING IDENTIFICATION EVIDENCE 17 It was very fairly conceded by the Crown Prosecutor, on the appeal this morning, that his Honour erred in failing to give any warning in relation to the reliability of the evidence of identification, that had been given by the complainant and by Mr Waho. Matters relevant for that identification included, on my assessment, the following matters: (a) each of the witnesses had been drinking; (b) the complainant was distressed and hypothermic when observed after the assault; (c) there were differences between the witnesses as to the state and quality of lighting in the area; (d) there was a possible difference as to whether, at the relevant time, the attacker was wearing a singlet or was bare on his top; (e) there was an issue between the appellant and the complainant as to whether he had introduced himself to her earlier in the evening; (f) Mr Waho gave evidence that he had not met the appellant before this night; (g) the complainant had initially been unable to identify the man to her friends or to the doctor who examined her; (h) there was a possibility of transference if, after having recovered consciousness after being assaulted, the first person that the complainant saw was the appellant. 18 In those circumstances it was, in my view, mandatory for his Honour to have given a warning both at Common Law, consistent with the principles discussed in Domican (1992) 173 CLR 555, and under ss 116 and 165 of the Evidence Act 1995. 19 It is true that his Honour did give a warning as to the effects of alcohol upon the complainant, so far as that may have affected her reliability. Although at the end of the summing-up his Honour made enquiry of counsel as to whether an identification warning was required, none was required by counsel for the defence. The Crown Prosecutor did not assist his Honour by suggesting that such a warning was unnecessary. 20 This warning was in my view so fundamental to a fair trial that I would grant leave to argue the point and find that the ground was made good. Subject to ground 3 it would require an order for a new trial. GROUND 2: DELAY IN COMPLAINT 21 It was also fairly conceded, this morning, that there was error by the trial judge in not giving a Crofts direction (1996) 186 CLR 427. Clearly reliability and credibility of the complainant were in issue, and the jury should have been instructed as to the significance which attached to the sequence of her disclosure of the appellant as her attacker. 22 The case was not strictly one of delay in reporting the attack, but it was one in which the complainant had asserted at the trial, that she had always known who her attacker was, yet she had not named him to her friends or to the doctor who examined her. That was a matter properly to be taken into account in relation to her credibility and reliability. For that reason, in my view a direction analogous to the Crofts direction should have been given. 23 Again, regrettably, the Crown Prosecutor and defence counsel failed to give his Honour the assistance to which he was entitled. In particular, it was the responsibility of the Crown Prosecutor, consistent with a fair prosecution, to draw to the trial judge's attention any relevant area requiring a warning that may have been overlooked. While, in the case of defence counsel, the absence of a request for a possible warning may, sometimes, rest upon tactical considerations, no such advantage whatsoever could have inured to the appellant's benefit from the absence of a Crofts direction or, indeed, from an identification warning. 24 I would also grant leave to argue this ground and find it was made good. It similarly would entitle the appellant to a new trial. GROUND 3: CONVICTION UNREASONABLE 25 This ground rests upon the proposition that the verdict of the jury should be set aside as unreliable, having regard to the evidence, as that ground has been explained in Fleming (1998) 158 ALR 379 and Giam (1999) 104 ACR 416. The question for this Court is whether it thinks, upon the whole of the , it was open for the jury to be satisfied beyond reasonable doubt of the guilt of the appellant: see M (1994) 181 CLR 487 at 493 and Jones (1997) 149 ALR 598. The Court is bound to make its own assessment of the nature and the quality of the evidence, including its reliability and credibility, but it is also to pay full regard to the advantage which the jury had in having seen and heard the witnesses. 26 The case is not one where there was a complete absence of corroboration, nor was it one where the complainant was so obviously lacking in credibility or reliability that a jury properly instructed ought to have entertained a reasonable doubt. 27 The appellant was present with the complainant for a time by himself and he had the opportunity to commit the offence. Mr Waho's observations of him provided some support for the complainant's account. It seems to me that he has not been shown to have been in a position where he could not have seen the events described. Clearly, there was some lighting in the area, because guests in the vicinity were able to see the complainant lying upon the ground. 28 Assessment of his reliability and credibility was very much a matter for the jury. Clearly they chose to believe what he said. 29 It is true that the attempts which the appellant made to wake the complainant, and his appearance of being somewhat frantic, were on one view consistent with his case, but they were also consistent with him being concerned as to what he may have done to her. His movements during the night were somewhat unusual, and there was some difference between his evidence, and that of other witnesses, concerning where he had been immediately before the attack, and concerning how it was that he came to go over to see the complainant. 30 The case was one where credibility and reliability of the witnesses was important and it was one in which the jury had a distinct advantage over this Court. I am not satisfied that the evidence was so deficient that the jury, after having been correctly and sufficiently instructed, should have entertained a reasonable doubt. 31 Accordingly, I do not consider that the case is one where the appellant is entitled to have the conviction quashed and a verdict of acquittal substituted. Rather I am of the opinion the proper order is to quash the conviction and sentence and to direct a new trial. 32 DUNFORD J: I agree. 33 CARRUTHERS AJ: I also agree. 34 WOOD CJ at CL: The order of the Court will be as I have proposed. 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