R v Arbolino [2001] NSWCCA 207

New South Wales Court of Criminal Appeal

CITATION : R v Arbolino [2001] NSWCCA 207 revised - 13/06/2001 FILE NUMBER(S) : CCA 60476/98 HEARING DATE(S) : 8 May 2001 JUDGMENT DATE : 8 May 2001

PARTIES : Regina Michael Bruno Arbolino JUDGMENT OF : Wood CJ at CL at 20; Newman AJ at 1; Mathews AJ at 21

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/21/0183 LOWER COURT JUDICIAL Kirkham DCJ OFFICER :

COUNSEL : S J Odgers SC for the Appellant M Grogan for the Crown SOLICITORS : D J Humphreys for the Appellant S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - sexual assault - onus of proof - accused not testifying - direction RPS v The Queen (2000) 168 ALR 729 CASES CITED: The Queen v Azzopardi [2001] HCA 25 Weissensteiner (1993) 178 CLR 217-228 DECISION : Appeal upheld, conviction quashed and a new trial ordered.

- 5 - IN THE COURT OF CRIMINAL APPEAL

No 60476/98

WOOD CJ at CL MATHEWS AJ NEWMAN AJ

TUESDAY 8 MAY 2001

REGINA -V- MICHAEL BRUNO ARBOLINO

JUDGMENT 1 NEWMAN AJ: This is a appeal against conviction on the first count of seven counts charged before his Honour Judge Kirkham in the District Court in Sydney on 11 August 1998. As I have said, the appellant was charged with seven charges relating to acts of indecency and assault involving a fourteen year old boy, JM. 2 He was convicted on the first count, which was in these terms: "For that he between 1 February 1995 and 28 February 1995 at Sydney in the State of New South Wales did assault JM and at the time of such assault did commit an act of indecency on the said JM, JM being a person between the age of ten years and sixteen years, namely, the age of fourteen years." 3 On the other six counts the jury had been directed by His Honour to find the appellant not guilty on count five. They found him not guilty on counts 2, 3, 4 and 6 and, as to count 7, they were unable to reach a verdict. 4 All the charges related to events alleged to have occurred between 1 February 1995 and 1 March 1995. 5 The Crown case against the appellant may be simply stated. It was this. That the appellant had befriended the fourteen year old complainant at Richmond railway station some time about the beginning of February 1995. They then travelled quite regularly on the railway system to various places. The complainant had a girlfriend known as DG who travelled with the appellant and the complainant on a number of occasions. 6 The allegations in relation to the first count were that on one of these occasions the appellant was sitting near the complainant on a train journey to the city, DG being also present. The Crown alleged the appellant put his hand down the complainant's pants and played with the boy's penis. 7 In his evidence to the jury the complainant had said the appellant was touching his penis and rubbing it. When asked whether anything was then said, the complainant, in evidence, said: "Q. 'And when he did that, put his hand down your pants, was anything said then? A. I said to him like - because I was looking out the window and I was pointing out stuff - I was saying to him things about building such and such, and that, to try to get him to look and stop, but he didn't. So I just moved over.'" 8 The complainant alleged he then moved away and sat next to the girl, DG. 9 The appellant, as I have said, was convicted on that count and on those allegations of fact and was duly sentenced by His Honour. That sentence indeed was overturned and a fresh sentence substituted by this Court differently constituted on 26 August 1999. 10 The appellant appealed on two grounds. The first ground was on the basis that His Honour erred in his directions of the danger of convicting on the evidence of the complainant. The second ground was that he erred in his directions on the failure of the appellant to testify. 11 Because I am of the view, for reasons I shall now give, that the second ground must succeed and a new trial ordered, I will deal with the second ground first. 12 The appellant's argument on this ground may be shortly stated. It is that a direction given by His Honour relating to the absence of evidence from the appellant was contrary to what had fallen from the High Court in RPS v The Queen (2000) 168 ALR 729 and indeed contrary to what had fallen from the High Court in a judgment delivered yesterday, namely, The Queen v Azzopardi [2001] HCA 25. The direction complained about was found at page 11 of the summing up of His Honour. "In the presence [sic] case however you may, when judging the value of the weight of the evidence which has been put forward by the Crown, as establishing its case against the accused, take into account the accused's election not to deny or contradict the matters about which he could have given evidence, direct evidence, from his personal knowledge. Now you may think it is only commonsense that where a Crown witness and the accused are directly involved in a particular incident, so that there are two persons best able to give evidence of what happened in that incident and where the evidence of the Crown witness is left undenied or uncontradicted by the accused, any doubts which may otherwise have been cast on the evidence of the Crown witness, may more readily be discounted, on the evidence of that Crown witness, may more readily be accepted as the truth and that is the approach which you may take in relation to the evidence of JM." 13 Plainly enough, and indeed the Crown quite properly concedes this point, that His Honour's direction was contrary to what had fallen from the High Court in RPS, and that, in terms of the case of Weissensteiner (1993) 178 CLR 217-228, that the decision in Azzopardi alters a view previously expressed in certain quarters as to the effect of Weissensteiner. 14 In essence, the Court in Azzopardi held that the Weissensteiner decision relates to an allowance of a comment made by a judge on a failure of an accused person to offer an explanation where the facts would be peculiarly within his knowledge, rather than comment relating to his failure to give evidence. The High Court in Azzopardi clearly indicated that it is a matter of comment and not a matter of direction for a judge to deal with the failure of an accused person to offer an explanation in circumstances where he is the only person who could give such an explanation. The subject direction here falls contrary to that which is now allowable. 15 As I have said, the Crown properly conceded that that is so. However, the Crown argued that the jury's findings indicated that they did not act upon that direction because it is consistent with the direction given by the trial judge as to the manner in which the jury could deal with corroborative evidence, the corroborative evidence, of course, being the girl, DG. 16 In relation to other counts there was no corroboration of any type and the Crown points to the jury's verdicts as indicating the logical conclusion which the jury drew, having regard to His Honour's directions. 17 In my view, the Crown argument cannot succeed. Essentially the Crown argues that, when you read the two paragraphs which I have set out, the jury would have concluded that the direction, wrong as it was, referred only to the evidence of the complainant, JM. I do not share that view. There is reference in the second of the paragraphs to a Crown witness. Plainly enough I am of the view that the jury may well have considered that the directions as given referred to the evidence of DG as well as that of the complainant. 18 In those circumstances, I am of the view that the appellant has made out the second ground and, accordingly, I do not believe it necessary for me to deal with the first ground of appeal. 19 In my view the order of the Court should be that the appeal is upheld, the conviction is quashed, and that a new trial should be ordered. 20 WOOD CJ at CL: I agree. 21 MATHEWS AJ: I also agree. 22 WOOD CJ at CL: The order of the Court will be as Acting Justice Newman has proposed. - oOo -