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. Q: How did the matter come to the notice of the police? A: The police came to my door and asked to speak to me and I was at school at the time" The police visit was at the start of April 1998. 13 The judge further asked the complainant about the untrue statement of 21 May 1998: "Q: Why did you say something that was untrue? A: I was scared at that time. Q: Scared? A: I had been told about a threat that he (MFA) made to someone else." 14 MA who was aged 15 when he gave evidence on 21 March 2000, said that he was present on an afternoon in about May or June 1997 in the caravan which was in the backyard of the home next door. He was talking to the complainant. The appellant was there. The three of them were on the bed. MA said that he saw the appellant touching the complainant on the outside of his pants. The appellant pulled the complainant's pants down and sucked his penis. MA said that he moved over to the chairs and sat on the other side of the caravan. The evidence continued: "Q. What happened after that? A. He moved over to where I was. Q. Who moved over? A. Mick and Lyndsay and then he wanted to do it to me. Q. Who's he? A. Mick. He played with my pants on the outside and -- Q. On the outside of your pants? A. Pants yes and then moved over to the bed, he moved back over to the bed and then he wanted Lyndsay to do what he did to Lyndsay to me.. Q. What was that? A. Playing and -- Q. Playing with what? A. With the penises and then sucking on-- Q. Sucking on what? A. Penis Q. And did you - I should say did Lyndsay do that to you? A. Yes. Q. Then what happened? A. He put his penis up Lyndsay's backside." 15 MA said that after the appellant had finished putting his penis up the complainant's backside he [MA] went home. He did not say anything about what had happened as the appellant "said not to say anything, keep it a secret between us". 16 In cross-examination MA said that prior to going into the caravan he had been talking to the complainant outside the caravan. He said that he was not sure if the appellant was at Bosman's household when he arrived. MA said that when he moved inside the caravan he had his eyes closed while he talked to the complainant. He did not go to sleep. 17 MA stated that the appellant had played with MA's penis on the outside of his pants. MA said that the complainant played with MA's penis and sucked it. MA insisted that the incident did take place and rejected the proposition that it did not happen. 18 MA was taken to two statements which he made in 1998. As to that of 20 May 1998 he agreed that he said that he did not know why the appellant was not talking to them [the complainant and MA] any more. He said that there was nothing else he could tell the police about the appellant, that he had never seen a boy being touched and that nothing like that had happened to him. He agreed that he had told the police a number of lies. 19 MA agreed that this passage in his statement of 27 May 1998 "I haven't been in the caravan with [LB and MFA] together" was a lie. Further, in his statement MA said that he had been in the caravan with the complainant "Just talking yeah". MA said that he did not remember a time wen he had a pillow fight with the complainant in the caravan. 20 At the conclusion of the questions of both counsel the judge asked a series of questions. MA told him that when he first went into the caravan he was talking to the complainant. Everyone was fully clothed. This passage appears: "Q. Why did you say that you'd never been in the caravan with MFA and LB?" A: Because I was too frightened to tell my parents, for the re-action that they would have on it and I felt ashamed about it, to think what they would think of." A little later after some further cross-examination this passage appears: "HIS HONOUR : Q. Did someone make you say that things happened in the caravan? A. No I was too scared to tell anyone but they said if anything happened tell us; because you won't be in trouble or nothing so that's when I started saying stuff. Because I thought I was going to get into trouble. That's why I didn't say anything. BARNETT: Q. Who was the person that encouraged you to say something? A. Detective Harrison and my parents." 21 The appellant said that he first met the complainant in late 1996 at Bosman's house and thereafter saw him from time to time until about March/April 1998 at that house and at other places with groups of people including people at the go-kart races. 22 The appellant denied each of the incidents alleged by the complainant and denied any sexual impropriety with the complainant. He specifically denied committing each of the kind of acts alleged. He said that on a few occasions he and the complainant were alone as they were on the way to the go-kart tracks. They also went together on their own to the shops a couple of times to purchase items requested by the complainant's mother. He did not think that they were together at other times. The appellant insisted that he was never alone with the complainant in the caravan. He said that several times he and the complainant were at the caravan but not in it. He had spent several nights in the caravan, but never with the complainant. He and Paul Dixon had stayed there. 23 The appellant also knew MA and his parents. 24 The appellant denied that he knew the complainant prior to late 1996; the appellant maintained that he had not even seen the complainant prior to that. The appellant maintained his blanket denial of all the complainant's allegations. He also denied the allegations made in relation to MA. The appellant relied on a letter from Allied Express Transport Pty Ltd that he had been employed by it from 19 July 1996. 25 The appellant was born 19 October 1959. There was a significant age difference between the appellant and the complainant. 26 No complaint was made about the judge's summing-up. The judge reminded the jury that the complainant did not go to the police. They came to him. He did not make any complaint. Amongst other things the judge drew the jury's attention to what the complainant said in evidence and the contradictions in his first statement to the police. The judge instructed the jury at SU9: "So, in the light of those contradictions, members of the jury, you will of necessity look very closely at the evidence given by [LB] to see whether it is capable of acceptance, whether you could accept it and rely upon it so heavily as to be satisfied beyond reasonable doubt that these events alleged by him did occur. These are events which he actually denied in the first statement that he made to the police. Then of course there was a second statement, the one on 25 May 1998." The judge, after summarising the evidence of MA and pointing out that his first statement to the police was in contradiction of his evidence, said at SU11: "So here again you have got a boy contradicting what he said, and not protesting in any way, but then of course you have got to bear in mind that he is the boy who was born in 1984, he will turn sixteen in April next month. So it may be said that these boys are confused, and it is a question then of whether you could possibly rely upon their evidence to substantiate the charge, or charges, some of the charges at least, against the accused." and "Because of the contradiction, that sort of contradictory evidence you must look of course at the evidence very carefully, and you will have to make your judgment as to whether or not it is reliable evidence, and if it is not reliable evidence then you should not of course rely upon it." 27 At the conclusion of the judge's summing-up counsel for the appellant was permitted to remind the jury to look closely at the evidence of LB and that of MA, that they were significantly different especially in relation to LB doing things to MA and the appellant placing his penis in LB's anus and that LB did not say any of those things. The judge instructed the jury to bear these matters in mind. 28 The jury retired to consider its verdict about 10.55am. The judge subsequently answered the questions of the jury and at the request of the jury arranged for the evidence of LB and MA to be re-played. 29 A little before 2.25pmn the jury indicated to the judge that they were unable to agree on their verdicts. The judge stated at SU20-21. "All right so you have a difference of opinion as to what the appropriate verdict should be in respect of each one of these charges. Well as to that, all I can say to you is that you try your hardest to try to overcome differences that exist, but if eventually you cannot resolve the conflicts then you simply cannot return a verdict on any of these counts and you will be what is called a 'hung jury.' The jury will not be able to decide this case in the sense of returning a verdict in respect of each one of the counts." and "HIS HONOUR: I do not expect you to go on debating the point for hours but I would suggest to you that you try your hardest at least until 4 o'clock. Is that too much to ask? FOREPERSON: No sir. HIS HONOUR: Thank you, you can come back shortly before 4 o'clock and let me know whether you have reached agreement or whether you are still in disagreement. Thank you." The jury returned with its verdict at 3.10pm. 30 In his remarks on sentence the judge noted that the appellant had been convicted on the two charges where the prosecution had the supporting evidence of MA. 31 The appellant submitted that the verdicts of not guilty on counts 1 to 6 and 9 involving the non-acceptance of the complainant's evidence beyond reasonable doubt on those counts necessarily impacted upon the credibility of the complainant's evidence on counts 7 and 8. It does raise a query requiring the careful examination of the evidence of the complainant and that of MA. 32 The appellant further submitted that the evidence of MA did not support the evidence of the complainant as each gave a substantially different account of what took place during the third incident. However, although the particulars given by each varied significantly, both gave evidence of sexual malpractice on the appellant's part. The judge was impressed by the youthfulness of MA and was prepared to make considerable allowances for him on that account. 33 The Crown pointed out that while there were significant inconsistencies between the evidence of the complainant and MA as to the nature of the activity and who did what to whom, their evidence in some important areas was consistent, namely: (a) Both said that the appellant touched the complainant on the penis in a caravan in the backyard of Bosman's house in mid-1997. (b) Both said the appellant touched MA's penis as well. (c) Both said at certain stages all three were on the same bed. 34 It is true that their evidence differs as to whether the appellant touched the penises on the inside or outside of the boys' pants. The jury may not have regarded that as a matter of significance. The essence of the charge was the appellant touching the complainant's penis. 35 As to count 8 (the complainant sucking the appellant's penis on his orders) the evidence of MA was that the appellant was sucking the complainant's penis. In other words the supporting evidence of MA does not extend to the allegation that the appellant made the complainant suck the appellant's penis and the complainant did so. The jury did not accept the appellant's evidence that no incident occurred. As to count 8, the supporting evidence confirms that a sexual incident involving the appellant and the complainant occurred. Thus the evidence in support of count 8 is not as strong as that in support of count 7. 36 There is considerable force in the appellant's submissions as to the weakness of the Crown case because of the inconsistencies between the evidence of LB and that of MA, their lack of complaint and their contradictory first statements to the police and the verdicts of not guilty on counts 1 to 6 and 9. However, I am of the opinion that at least as to count 7 it was reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on that count. 37 The considerations affecting count 8 are more difficult. There is no direct supporting evidence from MA or anyone else of the complainant sucking the appellant's penis. At most there was evidence of an extended sexual incident at which MA was present involving the complainant and the appellant preceded by the appellant touching the complainant's penis. The judge gave the jury ample warnings. The discrepancies and the weaknesses in the Crown case were brought home to the jury. The jury were obviously satisfied that a sexual incident took place in the caravan and rejected the appellant's evidence to the contrary. While the supporting evidence as to count 8 was not as strong as that relating to count 7 I am of the opinion that it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant on count 8. Like the judge, in evaluating the evidence I would bear in mind the age of MA at the time of the incident, about 12, and his age at the time of the trial, about 15, and the difficulties he experienced in giving evidence. 38 I would dismiss the appeals against conviction. 39 The application for leave to appeal against sentence was made during the hearing of the conviction appeal primarily to cover the case of the court dismissing the appeal against conviction on count 7 and quashing the conviction on count 8. If that had been the result it would have been appropriate to reduce the sentence on count 7. The judge was influenced by the appellant being a mature man and the complainant being a boy. So am I. However, the concurrent sentence of a fixed term of imprisonment of 2 years 6 months for count 7 is excessive, even proceeding, as I would, on the basis that the appellant touched the complainant on his penis under his pants. The appellant had one prior conviction for a driving offence in 1993. That can safely be disregarded. A fixed term of 15 months imprisonment would be correct. A fixed term is selected because of the longer concurrent sentence. The sentence imposed on count 8 was not attended by any error of fact or law and was not manifestly excessive. 40 I propose the following orders: (a) Appeals against conviction dismissed. (b) Leave to appeal against sentence granted. (c) 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. 41 It is noted that the appellant was released on bail on 19 December 2000. The appellant will be returned to gaol to serve the balance of his term. ******** 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.