Regina v S [2001] NSWCCA 204

New South Wales Court of Criminal Appeal

CITATION : Regina v S [2001] NSWCCA 204 revised - 25/05/2001 FILE NUMBER(S) : CCA 60610/00 HEARING DATE(S) : 27/04/01 JUDGMENT DATE : 27 April 2001

Regina PARTIES : v S JUDGMENT OF : Meagher JA at 1; Sully J at 14; Dowd J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0685 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : A: T A Game SC Crown: P G Berman SC SOLICITORS : A: David Giddy & Associates Crown: S E O'Connor CATCHWORDS : Criminal law - appeal against conviction on 3 charges of indecent assault - where charged with 6 offences of indecent assault but only convicted of first 3 - inconsistent verdicts - unsafe and unsatisfactory verdicts - appeal allowed. CASES CITED: Jones v R (1997) 191 CLR 439 R v Crisologo (1997) 99 A Crim R 178 DECISION : 1. Appeal allowed; 2. Set aside convictions and sentences on orders from charges 1, 2 and 3; 3. No new trial; 4. In all publications of this matter appellant should be referred to as Mr S.

IN THE COURT OF CRIMINAL APPEAL

CCA 60610/00

MEAGHER JA SULLY J DOWD J

Friday, 27 April 2001 REGINA v S JUDGMENT

1 MEAGHER JA: On 28 August 2000 the appellant, Mr S, stood trial in the District Court charged with six offences of indecent assault on a male person, the complainant, Stuart Greenlees, (who was fourteen or fifteen at the time of the alleged offence). The dates of the alleged assault were, in the charges, said to have been between April and July of 1976. Counts 1 to 6 were listed in alleged chronological sequence. 2 The case was the subject of committal proceedings and also of an aborted trial before her Honour Judge Latham. It was eventually heard by his Honour Judge Howie. Mr Greenlees gave evidence on all three occasions. He also made various written statements. There was a twenty year delay between the date of the alleged incidents and the date when any complaint was made to the police. 3 The jury convicted the appellant on the first three charges and acquitted him on charges four, five and six. The Crown case really depended on the uncorroborated evidence of Mr Greenlees. 4 This appeal raises the question whether the jury's verdicts are inconsistent and represent a miscarriage of justice. 5 It is not necessary for present purposes to outline the precise facts of each charge. The following will suffice for present purposes: (a) Count 1: an act of fellation by Mr. S on Mr Greenlees. (b) Count 2: another act of fellation. (c) Count 3: Mr S was "pulling" Mr Greenlees penis. (d) Count 4: a third act of fellation. (e) Count 5: a fourth act of fellation. (f) Count 6: a fifth act of fellation. 6 The accounts of Mr Greenlees of all six incidents were substantially denied by Mr S. 7 Eventually Mr Greenlees placed all six charges as having happened in 1976, however he had originally placed them in 1975. When he changed his version from 1975 to 1976 he said, "Apart from the date, the change of date in the year, all other matters were accurate". 8 The accounts which he gave were accompanied by details whereby particular events were fixed in time. For example, Mr Greenlees placed the count four incident by virtue of the fact that he had been taken to the performance of a play by a Mr Gil Tucker at the Nimrod Theatre that evening. Subsequent evidence, including the testimony of Mr Tucker, which was not seriously in issue, demonstrated that Mr Tucker did not play at the Nimrod Theatre in either 1975 or 1976. 9 Again, Mr Greenlees gave some background evidence of his reaction to the events of the first count. He said: "Back at school two days later on the Monday, I avoided him in a big way. In class I saw that he was obviously very angry at this. He started directing underhand comments at me and started attacking my ego. I can't remember exactly what he said but I remember feeling very uncomfortable. I felt as if I owed him something. This went on for two or three weeks. My school work and attitude went down badly and I was under pressure from other teachers and my parents. I had a maths test around this time and I failed it".