New South Wales Court of Criminal Appeal CITATION : R v NEWHOUSE [2001] NSWCCA 294 revised - 3/08/2001 FILE NUMBER(S) : CCA 60562/99 HEARING DATE(S) : 19 July 2001 JUDGMENT DATE : 19 July 2001 REGINA PARTIES : v NORBERT LOUIS NEWHOUSE JUDGMENT OF : Handley JA at 1; O'Keefe J at 21; Smart AJ at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 98/21/1182 LOWER COURT JUDICIAL Tupman J OFFICER : COUNSEL : Appellant - In Person Crown - R A Hulme SOLICITORS : Appellant - In Person Crown - S E O'Connor CATCHWORDS : No question of principle LEGISLATION CITED : Crimes Act CASES CITED: Longman v The Queen (1989) 168 CLR 79 Crampton v The Queen (2000) 75 ALJR 133 DECISION : Conviction quashed. New trial not ordered. Appellant re-sentenced. Orders made IN THE COURT OF CRIMINAL APPEAL 60562/99 DC 98/21/1182 HANDLEY JA O'KEEFE J SMART AJ 19 July 2001 REGINA v NORBERT LOUIS NEWHOUSE JUDGMENT 1 HANDLEY JA: This is an appeal by the prisoner from his conviction and sentence for offences involving a particular complainant, following his trial for those offences, and from his conviction and sentence on a plea of guilty to charges relating to another complainant. 2 He was indicted on 5 May 1999 on four counts involving the first complainant, each of indecent assault, contrary to s 76 of the Crimes Act in the first case, and contrary to s 61(E) of the Crimes Act in relation to the other charges. He pleaded not guilty but was convicted by the jury on all counts. 3 He was sentenced by Tupman J to a fixed term of 2 years' imprisonment commencing 2 April 1998 and expiring on 1 April 2000. The sentence took account of some 13 months of pre-trial custody. 4 The events which were the subject of the first charge were alleged to have occurred between April and June 1979, and the events, which were the subject of the last charge, were alleged to have occurred between December 1982 and February 1983. The particulars of some of the charges were amended during the trial. 5 The evidence for the prosecution consisted essentially of the evidence of the complainant, who was approximately 5 years of age at the time of the first offence, 7 years of age at the time of the second and 8 years of age at the time of the third and fourth. Although there was a certain amount of common ground in the evidence of the complainant and that of the accused relating to family and other associations, and the custom for the complainant's family to stay with their grandmother, who was housekeeper for the prisoner at his home at Emu Plains, the ingredients of the charges were only supported by the evidence of the complainant herself. 6 The prisoner gave evidence and was cross-examined and the question for the jury was whether they accepted the evidence of the complainant as establishing beyond all reasonable doubt that these offences occurred between 16 and 20 years before the trial. 7 Where the only evidence for the prosecution is that of a complainant who was of tender years at the time, where that evidence, so far as it is directed to the ingredients of the offences, is uncorroborated, where there was no complaint soon after the alleged offences, and the matter comes to trial between 16 and 20 years after the offences were alleged to have been committed, the trial Judge has a duty to warn the jury about the danger of convicting the accused on the basis of such evidence. 8 Where the charge is brought within a short time after the offences, the accused can properly test the evidence of the complainant. He is in a position to establish an alibi. He is better able to establish an innocent explanation. After a long lapse of time, it becomes practically impossible for an accused and his lawyers to properly test the evidence of an uncorroborated complainant. The jury, of course, is entitled to accept that evidence and to convict the accused, but it has a grave responsibility in doing so, and the duty of the trial Judge, emphasised by the High Court of Australia in a number of judgments, is to bring home to the jury by an appropriate warning the gravity of the task before them and the need for great care before finding that the evidence of a person, who was very young at the time, can make out the case for the prosecution beyond all reasonable doubt, after such a long lapse of time. 9 These principles were established in Longman v The Queen (1989) 168 CLR 79, 90-91 in the majority judgment. The principles were strongly re-emphasised in Crampton v The Queen (2000) 75 ALJR 133 in a judgment given after the trial. The directions of the trial Judge manifestly do not satisfy the requirements laid down in these cases. She did draw to the attention of the jury the difficulties faced by an accused person in making a defence after the length of time that was involved in these cases, but, with respect, she failed to give the jury the emphatic warning required by the decisions of the High Court. As the High Court said in Longman: "To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice". 10 In my judgment, therefore, the appeal in the first case should succeed on the ground of appeal added by this Court by way of amendment. The conviction should be quashed, and in the exercise of our discretion, bearing in mind that the sentence has been served, the age of the accused, and the further lapse of time that has occurred, we do not order a new trial. 11 The accused has also sought to appeal from the pleas of guilty he entered in the second case to two counts of homosexual intercourse with an under-age male person, who cannot be identified, contrary to s 78H of the Crimes Act. The first offence was alleged to have occurred at Maitland between March and May 1985, and the second at Baulkham Hills between April and June 1985. 12 After the jury were empanelled the accused, then represented by Mr Paish of counsel, indicated that he would be prepared to plead guilty to some of the charges. There was then a change of representation, and Mr Hogan of counsel took over from Mr Paish and continued to represent the accused. 13 The first plea of guilty was entered on 13 May 1999 pursuant to written instructions, a copy of which are annexed to Mr Hogan's affidavit sworn on 17 July. The matter was adjourned on a number of occasions, and the learned trial Judge did not proceed to sentence the prisoner pursuant to the pleas of guilty, until 10 September 1999. He was then sentenced to a term of 2 years with an additional term of 2 years to take effect on the expiration of the fixed term previously imposed. 14 The prisoner now seeks leave to withdraw his plea of guilty and if the Court were to give leave the result would be a trial of the charges to which the accused pleaded guilty, and the other charges which were withdrawn following his plea, more than 3 years after the plea of guilty was entered. The further delay would naturally disincline the Court to grant leave. 15 The prisoner supports his application to withdraw his pleas on the basis that he was, in his words "under duress" when the pleas were entered. No doubt the situation in which the prisoner found himself was extremely stressful because he had just been convicted by the jury on the first set of charges involving the other complainant, but this alone is not sufficient to entitle the prisoner to withdraw his pleas of guilty. Every person who pleads guilty does so in stressful circumstances under the pressure of the prosecution, the perceived strengths of the prosecution case, and the perceived weaknesses of the defence case. 16 In the present circumstances the prisoner would have to establish that he was not fit to plead when he entered and maintained his pleas of guilty over the long period between 13 May and 10 September 1999. 17 The best evidence of the prisoner's fitness to plead is the fact that he had taken part in the first trial without the difficulties that render a person unfit to plead. He was able to give evidence, he was able to be cross-examined, and his unfitness to plead totally escaped the attention of the trial Judge, the Crown Prosecutor and his own legal representatives. 18 On the basis of that evidence, demonstrated by his capacity to participate in the first trial, I am satisfied that the pressures and stress the prisoner may have felt at the time, did not affect his fitness to plead. No good purpose would be served by adjourning these proceedings to enable the prisoner to obtain medical advice. The best evidence is the fact that he was able to take a proper and meaningful part in the first trial. This demonstrates his fitness to plead on the necessary standard. 19 In my judgment, therefore, the second appeal against his pleas of guilty should be dismissed. In the result, the Court must proceed to re-sentence the prisoner. 20 Since the first sentence has been quashed, and since, in my judgment, a new trial should not be ordered, the appropriate course is for the Court to impose a sentence of 4 years to date from 2 April 1998 and to expire on 1 April 2002, with a non-parole period of 2 years to commence on 2 April 1998 and expire on 1 April 2000. The earliest date on which the prisoner is to be eligible for parole is 2 April 2000. 21 O'KEEFE J: I agree with the orders proposed by Mr Justice Handley. An examination of the evidence given by the prisoner at his trial which extended over the course of two days, reveals no impairment of his ability to understand what was occurring and the consequences of what was occurring. 22 Furthermore, in the trial, which occurred before an experienced trial Judge, no comment was made by her, or by those involved in the trial, which would suggest that the prisoner was unable to appreciate the significance of what was occurring in relation to him, in and around that time. 23 Secondly, the detailed instructions of 13 May 1999 and the acceptance of those detailed instructions by the accused, to my mind gainsay that he was unable to understand the nature and purport of what was occurring at the time. 24 Thirdly, the acknowledgment by the prisoner of the correctness of the affidavit of Phillip Hogan of 17 July 2001, and, in particular, the contents of paragraphs 5, 6 and 8, reinforces that conclusion. 25 Finally, I agree with Mr Justice Handley that the question of delay would further complicate any trial and to give rise to difficulties in relation to the complainant. The appellant, having made his decision in circumstances which, in my opinion, indicate that he full well realised the consequences of that decision, gainsay his being allowed to withdraw his plea. 26 I agree with the sentence proposed by Mr Justice Handley. 27 SMART AJ: I agree with the two judgments which have been delivered, and with the orders proposed by Mr Justice Handley. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.