Regina v Zurita [2002] NSWCCA 22

New South Wales Court of Criminal Appeal

CITATION : Regina v Zurita [2002] NSWCCA 22 FILE NUMBER(S) : CCA 60638/01 HEARING DATE(S) : 13/02/02 JUDGMENT DATE : 13 February 2002

PARTIES : Regina v Victor Augusto Zurita JUDGMENT OF : Hodgson JA at 27, 29; Levine J at 28; Howie J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0194 LOWER COURT JUDICIAL Phegan DCJ OFFICER :

COUNSEL : W.G.Dawe QC - Crown P.R. Boulten - Appellant SOLICITORS : S.E. O'Connor - Crown Hardinlaw - Appellant CATCHWORDS : Evidence - Admissibility and relevance - Trial judge refusing to allow accused to raise character in part - whether it gave rise to miscarriage of justice. Crimes Act 1900 - ss 61J(1), 556A LEGISLATION CITED : Evidence Act 1995 - ss 108(3), 110 Criminal Appeal Act 1912 - s 6 R v PKS (CCANSW, 1 October 1998) CASES CITED: Mraz v The Queen (1995) 93 CLR 493 Wilde v The Queen (1998) 164 CLR 365 DECISION : Appeal allowed, verdict and sentence quashed and a re-trial ordered.

IN THE COURT OF CRIMINAL APPEAL

60638/01

HODGSON JA LEVINE J HOWIE J

WEDNESDAY 13 FEBRUARY 2002 REGINA v VICTOR AUGUSTO ZURITA JUDGMENT 1 HOWIE J: The appellant was convicted after trial on a charge of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900. As a consequence of the jury's verdict, on 15 November 2001 Judge Phegan sentenced the appellant to imprisonment for 12 months with a non-parole period of 9 months. There is an appeal against that conviction but no application for leave to appeal against sentence. The appellant was granted bail by the Supreme Court pending the hearing of the appeal on 29 November 2001. 2 The facts can be briefly stated. The complainant was the stepdaughter of the appellant and was aged 12 years at the time of the alleged offence. The fact that she was under the age of 16 years was the matter of aggravation pleaded in the charge. The Crown case was that on 18 June 1997, the complainant, the appellant, the complainant's mother, her younger brother and her grandmother, had driven to the Blue Mountains in the family motor vehicle. The purpose of the trip was so that the mother and grandmother could consult with a solicitor. While they were inside the solicitor's home, the two children and the appellant remained in the vehicle, which was parked outside the premises. 3 The complainant alleged that, while her brother was asleep and when she was on the verge of falling asleep, the appellant placed his hand inside her panties and penetrated her vagina with his fingers. The complainant estimated that he left his fingers there for "a couple of minutes". The complainant then sat up and the appellant withdrew his hand. The complainant left the vehicle and went inside the solicitor's home asking to use the toilet. She stayed inside the premises with her mother and grandmother but made no complaint concerning the appellant's conduct. A short time later the family returned home together. 4 Some time in 1999 the complainant told a school friend that, when she and her mother went to the Blue Mountains, her stepfather had "fingered" her. Some months after this conversation, the complainant raised the allegation with her grandmother. On 4 June 1999 the police received notification of the complaint. 5 The police were unable to speak to the appellant about the matter until 22 January when the appellant voluntarily attended the Hurstville police station. The appellant participated in an electronically recorded interview in which he denied the allegation. The interview was played to the jury in the Crown's case. In the course of the interview, he suggested that the allegation was a result of the influence of the complainant's mother on her. The appellant did not give evidence at trial. 6 There are six grounds of appeal that have been filed and relied upon on the hearing of the appeal. The first two grounds relate to the failure of the appellant to place character evidence before the jury. The other grounds relate to the admission of evidence of complaint and the directions given by his Honour about that evidence and the complainant's evidence generally. 7 The complaint encompassed in the first two grounds of appeal is that the trial miscarried because, by reason of the manner in which evidence of good character was considered both by the trial judge and counsel, the appellant was denied the ability to place evidence before the jury that he had no convictions for offences of the nature for which he was on trial. The two grounds were argued, and can be considered, together. 8 The appellant had a criminal record which included the following matters: a conviction for larceny in 1995, for which he was fined $250; a conviction for mid range PCA and unlicensed driver also in that year; and an assault in 1999 which was found proved but dismissed under s 556A of the Crimes Act. The assault offence was committed against the complainant's mother and shortly after their divorce. It was common ground that the appellant had not come under notice for an offence of the nature for which he was being tried. 9 Before the evidence commenced, but after the jury had been empanelled, defence counsel raised with the trial judge the issue of the appellant's character. Counsel said (T 22 Ln 36 – 50): ACCUSED'S COUNSEL: Your Honour, I'm asking that the accused be considered as a person of good character for the purposes of this trial. I'm instructed that, as far as the larceny was concerned, that it was a theft of a pair of gloves. There's the PCA. The assault takes place after this alleged offence. I'd ask you Honour that – your Honour has the ability to look at his criminal antecedents and see that, as far as this charge is concerned, a very serious charge, that he has nothing of the nature of this type of matter in his history and that he can be considered, whether it be for a limited purpose as far as these types of offence or generally that he can be considered a person of good character.