R v AJH [2001] NSWCCA 62

New South Wales Court of Criminal Appeal

CITATION : R v AJH [2001] NSWCCA 62 revised - 24/08/2001 FILE NUMBER(S) : CCA 60691/2000 HEARING DATE(S) : 1/3/01 JUDGMENT DATE : 1 March 2001

PARTIES : Regina v AJH JUDGMENT OF : Ipp AJA at 41, 54; Simpson J at 56; Carruthers AJ at 2, 43

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0369 LOWER COURT JUDICIAL Gibson DCJ OFFICER :

COUNSEL : P J O'Donnell (Appellant) C K Maxwell QC (Crown) SOLICITORS : John Cartwright & Co (Appellant) S E O'Connor (Crown) CATCHWORDS : Whether on the whole of the evidence a reasonable jury must have had a reasonable doubt about the accused's guilt - severity appeal - appellant supplied drugs and alcohol to two 14 year old girls to render them less capable of resisting sexual assault. LEGISLATION CITED : Crimes Act 1900 Drugs Misuse and Trafficking Act 1985 Board of Education v Rice [1911] CASES CITED: C M v The Queen (1994) 181 CLR 487 Mahon v Air New Zealand Ltd [1984] AC 808 R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 DECISION : See paragraphs 51-54

- 1 -1 IPP AJA: I will ask Justice Carruthers to deliver the first judgment. Bearing in mind the age of the complainants the Court orders that there is to be no publication of any material capable of identifying them. 2 CARRUTHERS AJA: The appellant was arraigned before his Honour Judge Gibson Q.C. and a jury of twelve at the Sydney District Court on an indictment containing eleven counts. There are two complainants, both of whom were, at the time of the offences charged, fourteen years of age, which represented the aggravating factor in the first ten counts. All offences are alleged to have been committed between 14 January 2000 and 15 January 2000. 3 Counts 2, 4, 7 and 8 of the indictment alleged that the appellant had sexual intercourse with the first complainant, without her consent, pursuant to the provisions of s 61J of the Crimes Act 1900, (to which I shall hereafter refer as "the Act"). Counts 1, 3 and 5 alleged that the appellant indecently assaulted the first complainant pursuant to the provisions of s 61M of the Act. Count 6 alleged that the appellant assaulted the first complainant, pursuant to the provisions of s 61 of the Act. 4 Counts 9 and 10 alleged that the appellant indecently assaulted the second complainant pursuant to the provisions of s 61M of the Act. Count 11 charged that the appellant had supplied cannabis pursuant to ss 25(1) and 32(1)(h) of the Drug Misuse and Trafficking Act 1985. 5 The appellant pleaded not guilty to each of the first ten counts and guilty to the eleventh count. The trial accordingly proceeded in relation to the first ten counts and the jury returned verdicts of guilty in relation to each of those counts. 6 The sole ground of appeal is that on the whole of the evidence properly before the jury, it was not open to them to be satisfied beyond reasonable doubt as to the guilt of the accused. 7 There was a considerable amount of evidence in the trial, but for present purposes it is necessary to deal relatively briefly with the nature of the evidence adduced by the Crown. 8 The appellant is a butcher by trade and was born on 14 August 1964. He was therefore, on the date of the alleged offences, 35 years of age. He was divorced and living in an apartment in Marrickville, which was the bottom section of a house occupied by his mother. The apartment occupied by the appellant constituted basically one bedroom, a lounge room, a kitchen and a bathroom. The apartment had access to a small backyard. 9 On the evening of Friday 14 January 2000, the appellant had organised a birthday party at the apartment for his daughter, who was turning fourteen. Also invited were the two complainants and one other fourteen year old. It had been arranged that the girls could sleep overnight at the appellant's premises. This would necessitate them occupying the bedroom, which contained a double bed, customarily occupied by the appellant, and four bunks, two on a lower level and two on a higher level. The bunks, as I understand it, were double bunks at both levels. 10 The first complainant was the appellant's niece by marriage. The relevant events, according to the Crown case, commenced about 10 pm when the appellant was alone in the apartment with the four girls. About 11 pm the appellant and the four girls toasted the appellant's daughter's birthday with a glass of wine. The complainants also drank scotch whisky and Coca Cola, which was provided to them by the appellant. 11 The appellant asked the first complainant if she wanted some marijuana, to which she replied in the affirmative. The appellant then blew smoke into her mouth and kissed her on the lips for two to five seconds, in a sexually suggestive manner. The smoke was, of course, associated with the marijuana. This constituted count 11. 12 The two complainants smoked marijuana, which caused the first complainant to become extremely ill. She went to the backyard and vomited. She gave evidence at the trial that the appellant helped her inside after she had been ill, and whilst doing so, he pulled her towards his penis, which she could feel was erect and was against her buttocks. This constituted count 1. She further deposed that shortly thereafter she went with him for a short walk with the other three girls. When they returned to the apartment she said that she would like to lie down, as she was still ill. 13 The appellant then helped her into the bedroom and placed her on the double bed which was customarily occupied by him. He then left the room, but returned some five minutes later. According to the first complainant, the appellant sat on the bed and put his hand under her pants and put his finger onto the lips of her vagina. This constituted count 2. She said that she tried to move but the appellant punched her in the stomach. This constituted count 6; he then left the room. 14 About twenty minutes later, according to the first complainant, the appellant came back into the bedroom where he took off his jeans and his underpants, and lay on the bed. He then held onto her arm whilst he forcibly pulled down her underpants and tracksuit pants. The first complainant then said he took her hand and placed it on his penis; this constituted count 3. She removed her hand and the appellant put his hand under her shirt and started touching her on the breasts for about two seconds; this constituted count 5. 15 She said that he then put his fingers inside her vagina and moved two fingers inside her vagina; this constituted count 4. He then moved his body down and started to lick her vagina. This lasted for about 30 to 45 seconds; this constituted count 7. About five minutes later, according to the first complainant, the appellant then got on top of her and inserted his penis into her vagina. He moved up and down for about thirty seconds; this constituted count 8. 16 The other three girls then entered the room and the first complainant then left the double bed and got on to the bottom bunk next to the second complainant. According to the evidence of both complainants, the appellant kept getting up from his bed during the night and early hours of the following morning, and "checking on" the two complainants whilst they were in the bunks. According to evidence by the second complainant, the appellant, on a number of occasions, rubbed down her spine onto her backside; this constituted count 10. 17 In so far as the evidence of complaints is concerned, the first complainant gave evidence that she was shaking when she got into the bunk with the second complainant. This was confirmed by the second complainant who found it necessary to "cuddle" and comfort her. The shaking, it would appear, lasted for some two hours. 18 According to the first complainant the second complainant inquired what the matter was, to which she first replied; "Nothing".