Regina v MFA [2001] NSWCCA 71

New South Wales Court of Criminal Appeal

CITATION : Regina v MFA [2001] NSWCCA 71 FILE NUMBER(S) : CCA 60331/00 HEARING DATE(S) : 26 February 2001 JUDGMENT DATE : 21 March 2001

PARTIES : Regina v MFA JUDGMENT OF : Heydon JA at 1; Barr J at 2; Smart AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/3096 LOWER COURT JUDICIAL Ford DCJ OFFICER :

COUNSEL : (A) P J D Hamill (R) G E Smith SOLICITORS : (A) D J Humphreys (R) S E O'Connor CATCHWORDS : Verdicts not unreasonable and able to be supported - acquittals on 7 counts and convictions on 2 counts - supporting evidence on latter 2 counts but not on other counts - sentence on indecent assault excessive. LEGISLATION CITED : Nil CASES CITED: Nil DECISION : Appeals against conviction dismissed. Leave to appeal against sentence granted; Appeal against sentence on count 8 (homosexual intercourse) dismissed; Appeal against sentence on count 7 (indecent assault) allowed; sentence quashed; in lieu thereof the appellant is sentenced to a fixed term of imprisonment of 15 months commencing on 22 March 2000; Appellant to be returned to gaol (having been released on bail on 19 December 2000 pending his appeal) to serve the balance of his term of imprisonment.

IN THE COURT OF CRIMINAL APPEAL

CCA 60331/00 HEYDON, JA BARR J SMART AJ

Wednesday, 21 March 2001

REGINA v MFA JUDGMENT 1 HEYDON JA: I agree with the reasons for judgment of Mr Acting Justice Smart. 2 BARR J: I also agree with the reasons for judgment of Mr Acting Justice Smart 3 SMART AJ: MFA appeals against his conviction on counts 7 and 8 of an indictment containing 9 counts. Count 7 alleged that between 31 March 1997 and 30 November 1997 he assaulted LB and committed an act of indecency upon him, he then being 15 years of age. Count 8 alleged that in the same period he had homosexual intercourse with LB, a male aged 15 years. 4 MFA was acquitted of indecent assault of LB between 15 December 1993 and 13 December 1994, LB being aged 12, (count 1); homosexual intercourse with LB in the same period (count 2); a further count of homosexual intercourse with LB in the same period (count 3); indecent assault of LB between 1 January 1995 and 13 December 1996, LB being 13-14 years of age (count 4); homosexual intercourse with LB in the same period (count 5); a further count of homosexual intercourse with LB in the same period (count 6); homosexual intercourse with LB between 31 December 1997 and January 1998, LB being 16 (count 9). 5 The appellant contends that the verdicts of guilty on counts 7 and 8 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on the other counts. 6 The complainant, who was born on 14 December 1981 and was aged 18 at the time of the trial, moved from Victoria with his family at the end of 1993. He stated that he met the appellant a couple of weeks later at Hendrik Bosman's house at Woodbine. There was a caravan at the rear of those premises. The complainant stated that he saw the appellant at Bosman's house about every three or four days throughout the nineties. He alleged that the appellant indecently or sexually assaulted him on nine occasions during four separate meetings with the appellant at Bosman's house. 7 As to count 7 the complainant said that on an afternoon in mid 1997 he was in the caravan having a pillow fight with MA. The appellant walked in and touched the complainant's penis, the appellant putting his hand down inside the front of the complainant's pants. This lasted for about ten minutes. About the same time the appellant placed his hand down inside the pants of MA and touched his penis. The complainant said that after this the appellant had MA suck the appellant's penis while he played with the complainant's penis. The appellant had MA stop and made the complainant suck the appellant's erect penis which the complainant did for a period which he estimated to be about ten minutes (count 8). MFA next masturbated himself and ejaculated. MFA cleaned himself up, stayed for a little while, pulled his pants up and left. The complainant said that he did not speak with anybody about what had happened. He was scared that something was gong to happen. 8 The complainant agreed that in his first statement to the police he said "[The appellant] has never touched me in any way. I have never seen him touch anyone". The complainant said that this was untrue and that he had made this statement because he was scared that something was going to happen to him. He agreed that four days later he made a second statement specifying what the appellant had done. The complainant had heard of a threat being made to another person and believed something was gong to happen. 9 In cross-examination the complainant agreed that he did not say anything and did not leave the caravan. After the appellant left, the complainant resumed his pillow fight with MA and then went inside Bosman's house. Later he went to MA's house. He made no complaint to anyone. 10 It emerged that the complainant was paid for the work he did at Bosman's house, namely, filling fire extinguishers. Apparently the appellant took or accompanied the complainant to the go-kart races. 11 The complainant was cross-examined to the effect that this incident (being the 7th and 8th counts) just did not happen. 12 The following passage appears at the end of the questions of both counsel: "His Honour Q: Tell me did you ever complain to anybody? A: No.