R v GWM [2001] NSWCCA 267

New South Wales Court of Criminal Appeal

CITATION : R v GWM [2001] NSWCCA 267 FILE NUMBER(S) : CCA 60060/01 HEARING DATE(S) : 10 July 2001 JUDGMENT DATE : 12 July 2001

PARTIES : Regina v GWM JUDGMENT OF : Hodgson JA at 1; Mathews AJA at 2; Studdert J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0085 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : M.C. Grogan (Crown) T.M. Healey/R.J. Jankowski (Appellant) SOLICITORS : S.E. O'Connor (Crown) Paton Hooke (Appellant) CATCHWORDS : Criminal law - indictment charging four sexual offences - complainant's evidence uncorroborated - jury acquitted on two of the offences charged - whether jury ought to have returned not guilty verdicts on remaining counts. LEGISLATION CITED : Crimes Act M v The Queen (1994) 181 CLR 487 CASES CITED: Jones v The Queen (1997) 191 CLR 439 R v Mills [2001] NSWCCA 48 DECISION : Appeal allowed; sentences on first and third counts quashed; judgment and verdict of acquittal entered on each of those counts.

IN THE COURT OF CRIMINAL APPEAL

60060/01

HODGSON JA MATHEWS AJA STUDDERT J

Thursday 12 July 2001

REGINA v GWM

JUDGMENT

1 HODGSON JA: I agree with Studdert J. 2 MATHEWS AJA: I agree with Studdert J. 3 STUDDERT J: The appellant, to whom I shall refer simply as GWM, stood trial in the District Court at Taree charged with four sexual offences. Two of the counts in the indictment charged the appellant with acts of unlawful sexual intercourse in contravention of s 66A and of S 66C(2)(a) of the Crimes Act respectively, and on those two counts the jury found the appellant guilty. The remaining two counts charged the appellant with indecent assaults in contravention of s 61M(1) and of s 61L of that Act respectively, and on those two counts the appellant was acquitted. 4 The appellant was sentenced on the first count to a period of three years imprisonment with a non parole period of eighteen months. On the third count the appellant was sentenced to a fixed term of twelve months imprisonment to be served concurrently with the sentence imposed in respect of the first count. 5 The appellant appeals against the conviction and seeks leave to appeal against the sentences imposed. 6 In relation to the appeal against conviction, there are two grounds of appeal which require consideration, but before considering these grounds, it is necessary to review the evidence given at the trial. 7 The complainant was born on 24 November 1982, so that at the time of the trial of the appellant she was eighteen years of age. At the time of the alleged commission of the offence charged in the first count the complainant was nine years of age; at the time of the events to which the second count was directed the complainant was ten years of age; at the time of the events to which the third count was directed the complainant was eleven years of age; and at the time of the events to which the fourth count related, the complainant was sixteen years of age. 8 The appellant was the step-grandfather of the complainant; the complainant's mother married the complainant's stepfather, and their wedding was an event relevant to the second count in the indictment. 9 The complainant's evidence concerning each of the offences charged was uncorroborated. No complaint against the appellant was made by the complainant until December 1999. 10 The complainant's evidence in respect of the offences charged may be summarised as follows: 11 Count 1 - the earlier of the sexual intercourse counts: The complainant said that one night she was playing with a dog on the back verandah of the appellant's home dressed in her nightie and underwear. The appellant came outside and started to touch her, massaging her stomach. He moved his hand up to her chest. The complainant said that she was then touched on the outside of her clothing in the area of the vagina. The complainant said that the appellant then moved her underwear to the side and rubbed her vaginal area and he then committed an act of digital penetration. 12 Count 2 - the earlier indecent assault count: The complainant gave evidence of an incident that occurred on the date her mother married the appellant's son. The wedding took place at home and the complainant said that the appellant on that day sat inside the kitchen on a chair and called the complainant to sit on his lap. She said that the appellant asked her to give him a kiss and she did so. The appellant said that he wanted a longer kiss than that and, according to the complainant, he put his tongue in her mouth and his hand on the outside of her under-clothing. The complainant said that her uncle walked into the room and the complainant hopped off the appellant's lap and went back to the wedding party. In response to a question asked by the trial judge, the complainant further located the area where the appellant had placed his hand as being the vaginal area. In cross-examination, the complainant's evidence was that this offence occurred after her mother and her stepfather had left the premises and gone to a motel for the night. 13 Count 3 - the later sexual intercourse count: The complainant gave evidence of events that she outlined as occurring when she was staying with the appellant and his late wife. The complainant said that she was required to sleep with the appellant in a double bed and that during the night he assaulted her by digital penetration and she said that having done this he removed his finger from her vagina and played with her clitoris. 14 Count 4 - the later indecent assault count: The complainant gave evidence that when she was sixteen she went with her stepsister and two young men to the appellant's house. Her evidence was that the appellant told her she was putting on weight. The complainant said she was not. The appellant said "Show me". The complainant lifted her jumper and the appellant grabbed her on the breasts, saying "They weren't that big last time I saw them." 15 I observed earlier that the evidence of the complainant was not corroborated in relation to any one of the four offences to which her evidence was directed. 16 The appellant, who had made no admissions to the police, gave evidence denying the offences charged in each of the four counts. 17 In relation to the second count, evidence was given by some of the wedding guests. A daughter of the appellant gave evidence that she attended with her husband, and after the married couple left she saw her husband talking to the appellant, and then the appellant and her mother leaving with their two grandchildren. The husband of this witness gave consistent evidence to the effect that he had remained with the appellant after the wedding speeches until the appellant and his wife left with the two children to walk home. A third guest, the niece of the wedding couple, said that straight after the wedding couple left to go on their honeymoon, she left with "Nan and Pop" (the appellant) to walk home. 18 In relation to the fourth count, the Crown called the complainant's stepsister and one of the two young men who was with her. The stepsister's evidence was that she saw the appellant put his hands on the complainant "below the breast". At no time did the witness say the appellant placed his hands on the complainant's breasts. The male friend said he was unable to see from where he was whether the appellant touched the complainant or not but he gave evidence that the complainant was wearing at the particular time a tight white shirt that left her mid-drift exposed. That evidence was in contrast with the evidence of the complainant that she was wearing a loose fitting jumper which she lifted. 19 Other evidence placed before the jury was directed to proving the appellant's previous good character. 20 The jury was directed as to the need for it to be satisfied beyond reasonable doubt by the evidence of the complainant. The jury was also directed that it could accept part of what a witness said and reject some other things said by that witness. The jury was given directions as to the necessity to scrutinise the complainant's evidence with great care and directions about which there could be and has been no complaint concerning the significance of the lack of complaint and the delay in complaining. The jury was directed to consider each count separately and it is clear from their verdicts that they did precisely that. The jury was not told that if it held a reasonable doubt concerning the reliability of the complainant's evidence on one or more counts, whatever the reason, that doubt should be taken into account in assessing the reliability of the complainant's evidence on the remaining counts. In this case, that would have been a desirable direction, but in fairness to the learned trial judge he was not asked to give that direction. Indeed, counsel asked for no further directions at the end of the summing-up. 21 With the above features of the case in mind, I turn to consider the grounds of appeal. They were expressed as follows: