REGINA v S [2003] NSWCCA 122

New South Wales Court of Criminal Appeal

CITATION : REGINA v S [2003] NSWCCA 122 HEARING DATE(S) : 18 December 2002, 5 March 2003 JUDGMENT DATE : 5 May 2003

JUDGMENT OF : Mason P at 1; James J at 110; Dunford J at 115 DECISION : Appeal allowed. Conviction and sentence set aside. New trial ordered.

CATCHWORDS : Appeal - criminal law - aggravated sexual assault - whether evidence of motive to fabricate false allegation of sexual assault excluded - need for counsel to formulate lines of future questions clearly - Evidence Act, s44(2)(b) - what is requisite to enable court to be satisfied that the document being used to cross-examine a witness will be admitted - whether judge entitled to be informed that document is not that of witness being cross-examined before witness is confronted with it - whether unfair criticism of counsel caused trial to miscarry - damaging admission - attempt to explaint cut short - proviso. (ND) PARTIES : REGINA v S FILE NUMBER(S) : CCA 60474/2002 COUNSEL : Appellant: S J Odgers SC/ A Francis Respondent Crown: GIO Rowling SOLICITORS : Appellant: Everingham Solomons Respondent: S E O'Connor (Crown)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 01/31/0265 FILE NUMBER(S) : LOWER COURT Judge J X Gibson QC JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60474/02

MASON P JAMES J DUNFORD J

Wednesday 5 May 2003

REGINA v S Judgment 1 MASON P: On 25 March 2002 the appellant was indicted before His Honour Judge J X Gibson QC at Tamworth District Court on a count of aggravated sexual assault by digital penetration of the anus, the aggravating feature being that he maliciously inflicted actual bodily harm on the victim immediately before the sexual assault. The appellant pleaded not guilty. The jury returned a verdict of guilty on 28 March 2002. 2 A sentence of imprisonment for a term of two years and six months with a non-parole period of 12 months was later imposed, commencing on 5 July 2002. This sentence had been partially served when, following the first day of hearing in this Court on 18 December 2002, bail was granted pending the determination of the appeal. 3 The appellant and the complainant had married in October 1995. They separated in 1997 and were divorced in October 1998. The offence allegedly occurred on 30 April 2001. 4 In January 1997 the appellant suffered severe injuries in a motor vehicle accident. His chest was crushed, his diaphragm damaged, his stomach muscles torn and his spinal cord completely severed, resulting in paraplegia from his nipples downwards. In consequence, at the time of the alleged assault, he weighed 120 kilograms, with much of his weight distributed to his shoulders and arms. He used a wheelchair but had developed significant strength and agility. 5 The issue fought at trial was whether the physical and sexual assaults happened at all. It was not suggested that there was consent or a belief of consent. The credibility of the complainant and of the appellant were the key matters for the jury. It was put to the complainant that she had fabricated her allegation, inter alia with a view to getting compensation from the Victims Compensation Tribunal. 6 It is convenient first to summarise the defence case. 7 In his evidence at trial, the appellant said that the complainant had been to his house on numerous occasions in the four and a half years since he had moved there. He agreed that she had come on the day in question, but said that she never entered the house. She was crying and said that she had been to her mother's grave. He asked her to leave and she did. He denied any sexual or other assault. 8 I have given a very abridged version of the defence case at trial. It was not accepted by the jury. The appellant does not suggest that the verdict was unreasonable in the sense indicated in s6 of the Criminal Appeal Act 1912. 9 The Crown case rested upon the evidence of the complainant as corroborated by evidence as to complaint and medical evidence. 10 The complainant said that she went to visit the appellant at his invitation, arriving at around 1.30pm. He was at the front of the house when she got there and she went inside at his request. He made her coffee and they talked in the front lounge room. When she finished and was about to leave he said that he wanted to suck her breasts. She said: "No you don't – I haven't got a ring to say that you can do that or a piece of paper". Her evidence as summarised in the Crown submissions was as follows: He grabbed the complainant by the back of the head and pulled her down forcibly to the side. She was crying and her neck hurt. He threatened to smack her or hit her if she didn't let him suck her breasts: T 11. Her nose was running and he allowed her to get a tissue, but after she sat down on another chair in the front room, he came over to where she was sitting: T 12. He threatened to hit her if she didn't stand up. He told her to take off her jumper and bra: T 13. She did so and he hit her breasts very hard twice on each side and bit her left nipple very hard: T 14. He told her to put her legs on either side of him while he was sitting in his wheelchair. When she did this, he asked her to put her arms around him and kiss him like she used to when they were married. She did all of this because she was fearful of her life: T 14. After she kissed him once, he hit her across the face and said, "do it again". She kissed him again: T 14. She tried to think of a way to escape and told him she needed a Panadol. Instead of letting her go alone to the bathroom where the Panadol was kept, he wheeled them towards the hallway to the bathroom and then followed her into the bathroom after she got off the wheelchair. She took out three packets of tablets. He watched her take one Panadol: T 15. He then asked her to pull down her leggings and underpants and put her hands on top of her head. After she did this, he slapped her breasts again very hard, grabbed her left nipple, punched her in the pubic bone area and pulled her clitoris very hard: T16. The front of her leggings was ripped. He ripped them "probably before we went to the bathroom": T16. While in the bathroom, he told her to lean across his legs with her bottom in the air: T16. She could see that he was going to digitally penetrate her anus: "I sort of was a bit freaked and I squeezed my bum cheeks together and I said, "If you're going to do that, use lubrication": T17. He spat on his fingers and put two fingers up her anus very hard two or three times. She gritted her teeth and cried: T17. He told her to pull up her underpants and leggings and go into his bedroom, which she did. He gave her a pair of blue tracksuit pants to wear. He retrieved her bra from the lounge room and she put that on but not fully. He gave her a black "boob tube" and denim dress to wear. The dress however did not fit: T18. She tried on the "boob tube" after asking him which way round it went. She finally ended up wearing the track suit pants, her bra and jumper, shoes and socks: T18. He told her not to mention what had happened to the police or anyone else and she said that she wouldn't. He wanted another kiss so she kissed him. He grabbed her head again "very hard" and said, "Have a nice afternoon": T 18. As she was about the leave, she received a telephone call. She said it was about 3pm. She was very upset at that stage and the Appellant was right next to her. The caller, Mr Luck, asked what was wrong because she sounded upset to him. She said, "I just came back from my mother's grave out at Lincoln Grove" and that she was at a friend's house, Donna Singleton: T19. Mr Luck's Optus telephone bill (Exhibit C) established that this telephone call occurred at 3.10pm on 30 April 2001: Tr 114, 131. The complainant left the Appellant's house, taking her ripped leggings. She saw his mother arrive in the driveway as she left: T 19.