R. v. AJL [2000] NSWCCA 104

New South Wales Court of Criminal Appeal

CITATION : R. v. AJL [2000] NSWCCA 104 FILE NUMBER(S) : CCA 60674/98 HEARING DATE(S) : 22 March 2000 JUDGMENT DATE : 12 April 2000

PARTIES : Regina (Respondent) AJL (Appellant) JUDGMENT OF : Powell JA at 1; Hulme J at 72; Dowd J at 73

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0282 LOWER COURT JUDICIAL Backhouse DCJ OFFICER :

COUNSEL : C.K. Maxwell QC (Respondent) P.J. O'Donnell (Appellant) S.E. O'Connor, Solicitor for Public Prosecutions SOLICITORS : (Respondent) P.A. Wiggins (Parramatta) (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Appeal - Verdict - Whether unreasonable or cannot be supported - CRIMINAL LAW AND PROCEDURE - Sexual offences - Evidence - Complaints - Whether "fresh in the memory" of the complainant - Long delay - Admissibility. DECISION : Appeal allowed; Convictions and sentences quashed; New Trial ordered

COURT OF CRIMINAL APPEAL

CCA 60674/98 DC 97/21/0282

POWELL JA HULME J DOWD J

12 April 2000

R. v. AJL

JUDGMENT 1 POWELL JA: On 17 August 1998 the Appellant was indicted before Backhouse DCJ at the Parramatta District Court on three charges, each alleging that, on 6 December 1995, at Fairfield, he assaulted DKN and, at the time of such assault, did commit an act of indecency on DKN, he being a person under the Appellant's authority (Crimes Act 61M(1), (3)(c)). 2 The Appellant pleaded not guilty to each of the charges in the indictment and was tried before her Honour and a jury of 12. 3 On 24 August 1998 the jury returned with a verdict of guilty to each of the counts in the indictment. 4 On 16 October 1998 her Honour sentenced the Appellant on each of the charges to community service for 400 hours, with the sentences on each charge to be concurrent. The Appellant was ordered to report on 21 October 1998. 5 The Appellant is an ordained minister of religion who, at the time of the alleged offences, was aged 47 years and who, at that time, was a teacher at a private school in the Western suburbs of Sydney - he had, at that time, been a teacher for about 22 years. Although, at the time of the alleged offences, the Appellant was accustomed to teach ancient history and religious studies, it would seem that, in addition, he had, over the years acquired an extensive and expert knowledge of iconography and calligraphy, subjects in which, so it would seem, the Complainant had an interest. 6 At the time of the alleged offences, the Complainant was aged 16 years and was in Year 10 at the school at which the Appellant was then teaching. The Complainant, so it would seem, had been a student at the school since the commencement of his secondary education - Year 7 - and had been taught by the Appellant during the previous year, Year 9. The Complainant regarded the Appellant very highly as a teacher and, as well, because he (the Complainant) had an interest in such subjects as Christian history, iconography and calligraphy, would from time to time discuss such subjects with the Appellant. 7 The Complainant gave evidence - which was not disputed - that if, while he was a student at the school, the Appellant had given him an instruction or direction, he would be required to follow that instruction or direction. 8 I record below, in summary form, the case which the Crown set out to establish at the hearing before Backhouse DCJ. 9 As I have earlier recorded, at the time of the alleged offences, the Complainant was in Year 10 at the school which he then attended. Towards the end of that year - the date was later identified by the investigating police officer as 6 December 1995 - there was held at the school a function, apparently known as an employers' awards night - the awards were apparently sponsored by employers and businesses in the district and went to students who, during the year, had been doing work which was relevant to the business of the sponsors. Associated with the presentation of the awards was a dinner for the sponsors, teachers and pupils who were to receive awards. At the time wine and beer were available for the adults who were present and there were soft drinks - such as Coca Cola and lemonade - for the pupils who had attended. As the Complainant was to receive an award that evening, he was in attendance both for the presentation and at the dinner. 10 Although the evidence is not entirely clear, it would seem that, after the presentations but before dinner had been served, many of those present stood around in conversation. The Complainant's evidence was that, while was this was occurring he was talking to the Appellant. While they were talking, the Appellant obtained a cup of white wine for the Complainant who, when he tasted it, did not like it and drank no more of it. 11 At the time when this function was held, there had been erected in the school grounds a new chapel which, at the time, was in the process of being fitted out. The plan which was tendered on the hearing indicates that the chapel was rectangular and the description later given of it by the Appellant when interviewed by the police was that it contained three rooms, they being, the body of the chapel and, separated by a wall which was behind the place where the altar was to be installed, two rooms described by the Appellant as a work area with a sink and a storage area. 12 While the Complainant and the Appellant were talking, the Appellant asked the Complainant if he wished to see the chapel. Although the chapel was situated in a area to the side of the hall, access to it was restricted and direct access was not possible so that, if one wished to see the chapel, one had to proceed from the hall around three sides of a building then used as a library and thence to the chapel. 13 When they reached the chapel, they entered it and the Appellant pointed out to the Complainant various features of it, such as lighting and the effects which could be achieved by the lighting and the intended place for various items, such as the cross - when the chapel had been fully fitted out. 14 When that had been done, the Appellant and the Complainant then proceeded to the far end of the chapel where the Appellant opened the door into what the Complainant, in his evidence, described as a room "where the priests get changed into the - into the garments" - this I take to be a reference to the priests' vestments. Although not further identified, it seems probable that the room in question was that described by the Appellant in his record of interview as the storage area. The Complainant walked in, followed by the Appellant. Although the room was not lighted the door was then closed by the Appellant. The Appellant then held the Complainant's arms near his shoulders and said something about right or wrong. He then bent over and kissed the Complainant on the mouth. The Complainant could feel the Appellant's tongue on his lips and could smell alcohol on his breath. The kiss lasted no more than a minute. When the Appellant stopped he said "This is wrong" and they walked back out of the room. The Complainant did not consent to the Appellant kissing him. This incident was the subject of the first charge in the indictment. 15 After they had left the chapel, the Complainant and the Appellant walked alongside one wall of the library building before turning right to pass along what appears to have been the front wall of the library building before turning right again in order to walk back to the hall. As they did so, the Appellant had his hand on the Complainant's shoulder. While they were walking along the front of the library building, they were passed by another teacher - either a Mr. Mc or a Mr. D, the Complainant could not remember which - walking in the opposite direction. 16 After they had passed the other teacher, instead of turning right at the end of the library building, the Appellant guided the Complainant towards the front gate of the school, using his hand on the Complainant's shoulder to do so. When they reached the entrance of a building described as the Year 12 block, they entered and went up a staircase stopping on a landing. The block was closed that night and it was dark. 17 When they reached the landing, the Appellant started to kiss the Complainant again. The Complainant may have said something about wanting to go back to the hall. The Appellant said "Don't worry this won't take long". As the Appellant kissed him, he (the Appellant) rubbed the area of the Complainant's penis on the outside of his clothes. The Complainant had an erection. The Appellant unzipped the Complainant's trousers and put his hand on the inside of the Complainant's underpants and began rubbing the Complainant's penis. The Complainant did not consent to the Appellant kissing him on this occasion or touching his penis. This incident was the subject of the second charge in the indictment. 18 The Appellant then unzipped his own trousers and began masturbating himself. The Appellant was touching his own penis with one hand and the Complainant's penis with the other. The Appellant then took the Complainant's hand and placed it on the Appellant's penis and started moving his body in a thrusting motion. At this point the Complainant noticed that the Appellant was circumcised. The Appellant pushed the Complainant's head down towards his penis. The Complainant moved back and the Appellant started touching himself again until he ejaculated. The Complainant could see a white spot on the ground. The Complainant did not consent to the Appellant touching his penis or to the Appellant putting his (the Complainant's) hand on the Appellant's penis. This incident was the subject of the third charge in the indictment. 19 The Appellant then zipped his trousers up and apologised. They then left the Year 12 building, turned left to walk back towards the hall which they entered. The Complainant did not tell anyone at the hall what had happened. He said he wanted to forget it, he was confused, and could not make sense of it. 20 The following year the Complainant continued to attend the school as a pupil in Year 11. During the year he saw the Appellant occasionally but never in private. In 1997 the Complainant, for reasons which do not bear on the present matter, changed school and moved out of his parent's home. When he did so, he stayed in various crisis centres, staying in the third such centre for most of the year 1997. 21 Shortly after he went to live in the third centre he disclosed to his case worker Ms. B. what had happened to him in Year 10. 22 Ms. B. gave evidence that, in March 1997 she was a youth worker at the third of the centres where the Complainant lived in 1997. According to the records of that centre, the Complainant arrived there on 10 March 1997. On 15 March 1997 the Complainant disclosed to her what had happened to him at school. Ms. B. made notes about the conversation with the Complainant on the following morning and made an entry in the communications book which was kept at the centre. In the circumstances, it is unnecessary to record in any detail what was the evidence given by Ms. B. as to what the Complainant told her in March 1997. 23 Detective Senior Constable Fileman attached to the Child Protection and Enforcement Agency was officer in charge of the case. He gave evidence of having spoken to the Appellant on 20 May 1997 and informed him that he had received a complaint from the Complainant, which complaint the Appellant said he rejected. The Appellant was taken to the Police Station and interviewed by way of ERISP in the course of which interview the Appellant denied the allegations which were put to him. However, while he said he was not sure whether he showed the Complainant the chapel he said that he may have done so, and that, while he could not recall giving the Complainant a glass of wine, it was possible that he did so. Detective Fileman attended the school with the Complainant during June 1997 and took some photographs. He checked a diary entry which identified the evening in question as having been on 6 December 1995. 24 Each of Mr. Mc. and Mr. D. was called to give evidence, the former giving evidence that he attended the function in question and recalled the Complainant and the Appellant being present but did not recall crossing paths with anyone when he walked from the hall to his car that evening, and the latter giving evidence that he attended the function in question but could not recall whether the Complainant or the Appellant was present nor did he recall seeing the Complainant in company with the Appellant that night. 25 Having summarised the case which the Crown sought to put forward, it is convenient here to pause to record the particular aspect of that case which provides the basis for the first ground of appeal taken on behalf of the Appellant. 26 After the Appellant had been arraigned, his pleas entered and the jury empanelled, P. J. O'Donnell, who then appeared, as he did on the hearing of this appeal, for the Appellant, in the absence of the jury sought to have Backhouse DCJ rule that the evidence of complaint which it was anticipated would be led from the Complainant and from Ms. B. was inadmissible. Although the transcript record (T. 17/8/98 p. 2) does not record the discussion which then occurred, the detailed written reasons which Backhouse DCJ was later to provide - they are dated 16 December 1998 - would indicate that Mr. O'Donnell's application was advanced on two bases: