Regina v Kehoe Regina v Otto [2001] NSWCCA 192

New South Wales Court of Criminal Appeal

CITATION : Regina v Kehoe Regina v Otto [2001] NSWCCA 192 FILE NUMBER(S) : CCA 60548/99; 60035/00; 60497/00 HEARING DATE(S) : 18 April 2001 JUDGMENT DATE : 18 April 2001

PARTIES : Regina v Lee-Anne Kehoe Regina v Karl Werner Otto JUDGMENT OF : Handley JA at 1; Ipp AJA at 33; Greg James J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0262; 98/31/0261; 98/31/0261 LOWER COURT JUDICIAL Viney DCJ, Coolahan DCJ OFFICER :

For Otto - J Mundey COUNSEL : For Kehoe - J S Stratton For Crown - L M B Lamprati For Otto - Chegwidden Solicitors SOLICITORS : For Kehoe - D J Humphreys For Crown - S E O'Connor CATCHWORDS : CRIMINAL APPEAL - fresh evidence - verdicts unsafe and unsatisfactory DECISION : Orders made

IN THE COURT OF CRIMINAL APPEAL 60548/99 98/31/0262 60035/00 98/31/0261 60497/00 98/31/0261 HANDLEY JA IPP AJA GREG JAMES J

18 April 2001

REGINA v LEE-ANNE KEHOE REGINA v KARL WERNER OTTO

JUDGMENT

1 HANDLEY JA: The Court has before it appeals by Karl Werner Otto and Lee-Anne Kehoe from their convictions by the jury following a trial before Viney DCJ in the District Court at Port Macquarie which commenced on 18 August 1999. There is also before the Court another appeal by Karl Werner Otto from his conviction by the jury following his trial before Coolahan DCJ on two of the counts of the second indictment. 2 In the first trial the appellants were convicted of charges of a sexual nature. It is not necessary for the purposes of these reasons to go into the detail. Three counts arose from an incident involving both appellants in the back of a Bedford van which the appellant and his de facto wife, Ms Kehoe, are alleged to have driven into the bush. They then got into the back of the van with the girls where the acts of indecency occurred. The events were alleged to have taken place up to six and a half years before the trial before Viney DCJ. Other counts involved acts of sexual intercourse of one kind or another which involved only one of the three girls allegedly involved in the first three counts. 3 The principal grounds of appeal in both cases relate to the discovery of fresh evidence following their conviction and sentence. The Crown had led background evidence at the trial before Viney DCJ to establish the nature of the relationship between the girls and both accused and, in particular, the accused Karl Werner Otto. The three girls involved in the first three counts were the twins, KH and MH, and a friend, AP. The person involved in the remaining counts was AP. 4 The Crown led background relationship evidence from each of the girls which indicated the nature of their dealings with the two accused over a considerable period of time. This involved visits to their home and contact including play acting, wrestling and massaging. There was also oral evidence from each of the girls that on one occasion the accused had videoed them, in their own words "chucking a brown eye", which involved them dropping their clothes, bending over and presenting their buttocks to the camera. KH and AP said they did this at the suggestion of the accused, Karl Werner Otto. The third girl, MH, did not give evidence of any suggestion from him. 5 Each of the girls adhered to their evidence in cross-examination and said that this behaviour only occurred once in the house of the accused. KH in particular was quite certain that there was only one such incident. 6 During the second trial the sister of Lee-Anne Kehoe discovered a video film at their home which showed that the three girls, with another girl present, had indeed behaved as they said they did in the first trial when the male accused was not in the house. One of the girls operated the video camera and the behaviour had taken place spontaneously as a result of their discussions among themselves. This film entirely supported the evidence which the accused had given at the first trial denying any involvement in the incident. It also showed either that the girls' recollections were seriously astray or that they had deliberately lied when they implicated the male accused in this conduct. 7 This evidence was used to powerful effect in the cross-examination of the girls who were called to give evidence about this filming incident which was the subject of the first three counts in the second trial. Two of the girls did not claim that the male accused had incited them to behave in this way and the trial Judge directed verdicts of acquittal on the counts relating to them. 8 A third count involving AP, which was supported by her evidence, was left to the jury who acquitted the accused. The video was introduced during the evidence of KH who initially maintained her evidence-in-chief and rejected the suggestion that the girls had behaved in this way without any involvement by the male accused. After she was shown the film she agreed that the film recorded the only incident in which the girls had "chucked a brown eye". The other two girls, AP and MH, were recalled, after viewing the video overnight, to give further evidence-in-chief and they then claimed for the first time that there was a second such incident which involved the accused. 9 The jury acquitted the accused on the only charge involving this incident left for their determination. 10 In my judgment this video was fresh evidence. On the accuseds' instructions there was no such video and no occasion for them to search for it. The video that was ultimately discovered by accident only involved them because it was recorded on their camera and in their house. 11 This evidence is cogent. It was not capable of being directly challenged. It was objective and independent. It totally supported the relevant evidence given by the male accused at the first trial and effectively destroyed the relevant evidence given by the three girls. In every other respect the evidence at the first trial involved the oaths of one or more of the girls against the oaths of one or more of the accused. 12 The evidence of the girls in support of the first three counts in the first trial which involved the incidents in the van was inconsistent. In view of the lapse of time before the first complaint, there would necessarily be concern about convictions based upon conflicting prosecution evidence where the accused gave sworn evidence to the contrary and there was no corroboration. 13 The importance of the video evidence is that this is one very clear instance where, to put it at its lowest, the evidence and recollection of the male accused was shown to be completely correct and the evidence and recollection of the three girls was shown to be completely wrong in so far as it implicated the male accused. 14 In light of this fresh evidence there is no alternative but to order that the appeals on those three counts be allowed and the convictions of the two accused quashed. No jury properly directed could, in my judgment, have failed to have a reasonable doubt as to the charges on the three counts relating to the incidents in the van. 15 The other counts concern only AP and her evidence was not corroborated as to any of the essential ingredients of the offences. It is simply a case of her evidence against the evidence of the male accused. 16 Having regard to the video evidence no jury properly directed and properly approaching their task could have failed to have a reasonable doubt about the evidence of AP relating to those other offences. 17 The appropriate course for this Court is to allow the appeals and enter verdicts of acquittal in favour of both appellants in relation to the convictions at the first trial. 18 The only accused at the second trial was Karl Werner Otto. He was acquitted either by direction or by the jury in relation to the counts based on the video incident. He was convicted by the jury on count six which involved digital penetration of the girl, KH, at a time when, according to her evidence, she and two other girls were lying under some bed clothes with the accused each of them lying on their left hand side. In that situation, KH said she had been interfered with digitally by the accused. 19 Count ten involved another girl, RB, who had not been the subject of any of the counts at the first trial or any of the other counts in the second trial. I will deal with this count separately in a moment. 20 So far as count six involving KH is concerned, her evidence was not corroborated by the other two girls who she said were with her and the accused on the occasion in question. They do not even give evidence that the four of them were lying under the bed clothes together at or about the time specified in this charge. 21 The accused denied being in that situation, that is, being on the bed in daylight hours with three girls under the bed clothes and, as I said, the other two girls do not corroborate KH's evidence that the four of them were together in that situation. 22 The conviction, therefore, depends upon the uncorroborated evidence of KH against the evidence of the accused. There was no evidence of a recent complaint and it was simply a case of oath against oath. The jury would have to consider the evidence of the complainant very carefully before they could convict. 23 The jury which convicted on count six had before it the evidence of KH in chief and in cross-examination in which she initially had said, with apparent certainty, that there was only one such incident and that she had acted as she did with the encouragement of the accused. This evidence was shown to be false and whether this was faulty recollection, some form of confusion, or deliberate lying and embellishment of an incident which did not involve the accused at all, does not matter. 24 I fail to see how any jury, approaching the task in the manner as directed by Coolahan DCJ, could have failed to have a reasonable doubt of the guilt of the accused on count six. 25 I would, therefore, allow the appeal in relation to that count and enter a verdict of acquittal. 26 The remaining count involved another girl, RB, who, as I said, had not given evidence or been involved in any of the other incidents the subject of the first and second trials. She herself did not give evidence of immediate complaint but both the accused and Lee-Anne Kehoe gave evidence of an immediate complaint by RB of inappropriate sexual handling by the male accused. The incident is alleged to have occurred during some friendly wrestling activity. So far as the core elements of the offence are concerned, it is indeed another case of oath against oath. However on this occasion there is evidence of immediate complaint. There is also evidence of an immediate physical reaction which was observed by Naomi Griffiths who saw RB punch the accused on the arm as she entered the room having heard the noise of a scuffle. 27 The accused said he had applied a fireman's grip to RB and lifted her up on to his shoulder. So much is common ground. However, RB said, in the course of doing this, his hand touched her vaginal area through her clothes. The accused said that if any such contact did take place his arm only was involved. 28 This was very much a jury question. Important aspects of the evidence of the complainant were corroborated and the jury had, uniquely in these two trials, evidence of immediate prompt and public complaint. RB was not implicated in any false or inaccurate evidence about the video incident. 29 I have not been persuaded that the verdict on count ten was in any way unsafe or unsatisfactory. 30 Miss Mundey suggested that the accused suffered a serious disadvantage in the trial before Coolahan DCJ when his convictions at the trial before Viney DCJ still stood which prevented him from calling what she described as character evidence which may have been relevant on count ten and may have enabled him to secure an acquittal on that count. The Court has not been provided with any affidavits setting out the evidence that might have been called. Moreover Naomi Griffiths, one of the Crown witnesses, was cross-examined by Miss Mundey to establish that she had not observed any inappropriate conduct or language between the male accused and either herself or any of the other young girls who were present from time to time in the home. No application was made to the Judge in the absence of the jury for a ruling which would have allowed the defence to call this evidence without the accused being subject to cross-examination on his prior convictions from the first trial. 31 I have not been persuaded that there is any substance in this ground which should cause this Court to order a new trial on count ten. In my judgment, therefore, the appeal against the conviction on this count fails and should be dismissed. 32 It will be necessary for the Court to re-sentence the appellant, Karl Werner Otto, but this can be done after the other judgments have been delivered. 33 IPP AJA: I agree. 34 GREG JAMES J: I also agree. 35 HANDLEY JA: The orders of the Court are as I have indicated. 36 Karl Werner Otto is sentenced to a fixed term of one month on count ten to commence on 24 August 1999. As a result of his acquittals on the other counts, the Court orders his immediate release. ******