New South Wales Court of Criminal Appeal CITATION : R v RWB [2002] NSWCCA 504 revised - 13/04/2011 FILE NUMBER(S) : CCA 60806/01 HEARING DATE(S) : 12 December 2002 JUDGMENT DATE : 12 December 2002 PARTIES : Regina RWB JUDGMENT OF : Hodgson JA at 16; Hulme J at 1; Hidden J at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0077 LOWER COURT JUDICIAL Shillington DCJ OFFICER : COUNSEL : Crown: D Frearson Appellant: HK Dhanji SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys DECISION : The Court allow the appeal, quash the appellant's conviction and sentence and direct that a verdict of acquittal be entered. - 4 -IN THE COURT OF CRIMINAL APPEAL 60806/01 HODGSON JA HULME J HIDDEN J Thursday, 12 December 2002 R v RWB Judgment 1 HULME J: On 21 June 2000 the Appellant was convicted before Judge Shillington of 5 counts of indecent assault, 2 of carnal knowledge and one of an act of indecency said to have been committed on his daughter. The offences were said to have been committed between a variety of dates, the earliest of which was 30 October 1971 and the latest 30 October 1976. Five of the offences were said to have been committed before the end of 1972. The complainant was born on 30 October 1963 and was thus aged between 8 and 13 at relevant times. 2 On 6 October 2000, in respect of the carnal knowledge counts, the Appellant was sentenced to concurrent terms of imprisonment for 6 years with non-parole periods of 3 years, such terms commencing on 6 October 2000. Shorter fixed term to be served concurrently with those non-parole periods were imposed in respect of the other counts. 3 On 22 November 2001 a Notice of Appeal was filed in this court. The Appellant explains the delay in lodging that notice in an Affidavit wherein he asserts that he was unable to obtain legal advice for some time after his conviction and sentence, was then advised by Correctional Service Officers that he would be unable to appeal as he was outside the 28 day appeal period and it was not until he spoke to a Legal Aid Solicitor in 2001 that he appreciated an opportunity to appeal was still open to him. 4 The Crown does not oppose the Court granting the Appellant an extension of time under rule 10 of the Criminal Appeal Rules and the circumstances to which I refer below indicate that it is appropriate for the Court to do so. 5 In practical terms, the Crown case depended exclusively on the evidence of the complainant who, of course, the jury must have believed. The only other evidence called in the Crown case was by one of her brothers and a detective. The substance of the brother's evidence was that he had never seen his father walking through the house naked and if the Appellant had done so on the way to the bathroom, where most of the offences were said to have occurred, he would have been readily visible. The detective's evidence was of his apprehension of the Appellant and of the latter's denial of all allegations put to him, and that the complainant's sister had said she did not wish to give the police a statement but she knew of no wrong-doing by her father. 6 In the Appellant's case, evidence was given by another son which I may summarise by saying it was to the effect that he had not observed any unusual or suspicious conduct by his father, by the complainant's sister - who added little – and by a neighbour to the effect that the Appellant was trustworthy, and she had never seen him angry or malicious or nasty. The Appellant also gave evidence in the course of which he denied all of the allegations. There is nothing apparent in the transcript of his evidence to suggest his credibility was shaken. 7 Prior to the commencement of the summing up, counsel for the Appellant asked his Honour whether he intended to give a "Longman direction" to the effect that it was "dangerous to convict". His Honour said no. After the conclusion of the summing up, counsel formally requested such a direction. Counsel also asked that his Honour give the jury an additional warning regarding the additional care and caution to be exercised in the circumstances of delay and absence of corroboration and also direct the jury that they should exercise considerable caution in acting on the word of the complainant alone and should scrutinise her evidence with great care. His Honour declined to give these directions. 8 His Honour had earlier pointed out that there was no corroboration and because of that the jury should look "very carefully at (the complainant's) evidence and it is only in the event that you are satisfied of its truth and accuracy as to the allegations that you would return a verdict of guilty." His Honour also pointed out that because of the delay, the Appellant had been placed in a difficult position in defending the case both in terms of recollection, the absence of any possibility of medical evidence and the absence of any "opportunity for the matter to be investigated with regard to the question of alibi and so forth." 9 At least in part as a result of decisions handed down since the summing up in this case – see e.g. R v BWT [2002] NSWCCA 60, R v SJB [2002] NSWCCA 163, R v Channell [2002] NSWCCA 187 at [21-23], and R v GEA [2002] NSWCCA 222 at [7-9] - his Honour's decision not to give a direction in accordance with Longman v R (1989) 168 CLR 79 was erroneous. In this appeal the Crown conceded as much and that the absence of the direction meant that the appeal should be allowed. 10 The Crown further submitted that the court should order a re-trial. Such an order is of course discretionary, s6 of the Criminal Appeal Act providing that if the court allows an appeal against conviction, it shall, subject to the special provisions of the Act, quash the conviction and direct a judgment and verdict of acquittal be entered. Section 8 of the Act then provides that the Court may order a new trial "if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order." The onus is on the Crown to show that a new trial is the most appropriate remedy – King v R (1986) 161 CLR 423. 11 As has been said, his Honour imposed an effective sentence of 6 years including 3 years of full time custody commencing on 6 October 2000. The Appellant has thus served slightly over 2 years and 2 months of his 3 year non-parole period. At the time of sentence he was 62 years of age and had, in his Honour's words, "a litany of problems of a medical nature". So far as was relevant he had no criminal record. It is for all practical purposes certain that if the Appellant is convicted on a further trial no heavier punishment than that to which he was sentenced by Judge Shillington will be imposed. Indeed, given the further delay and the additional disadvantages of broken custody, it may well be that no further custody would be imposed. There is nothing to suggest that there is a likelihood of re-offending by the appellant. 12 The matters to which I have referred also indicate that, although the complainant was believed and the Appellant convicted in 2000, it is by no means certain that the same result will follow at a retrial with the jury properly directed. It is obvious that any re-trial will involve not only further emotional strain on the Appellant but also on the complainant and potentially on those of her siblings who were called in the first trial. A psychologist's report tendered at the time of the sentencing of the Appellant asserted that, albeit largely on the basis of what the complainant said, she had suffered substantial emotional problems in consequence of the events leading to the Appellant being charged. 13 The need for the Court to allow the appeal was not due to any conduct at the trial for which the Appellant carries any responsibility. In these circumstances I am not persuaded that the miscarriage of justice which occurred can be more adequately dealt with by an order for a new trial. I would propose that the Court allow the appeal, quash the Appellant's conviction and sentence and direct that a verdict of acquittal be entered. 14 I would propose that the Court allow the appeal, quash the appellant's conviction and sentence and direct that a verdict of acquittal be entered. 15 There is one further matter to which I should refer. The nature of the proceedings are such that, in my view, a further order should be made to the effect that there be no publication of the proceedings in any way which would tend to identify the complainant. 16 HODGSON JA: I agree. 17 HIDDEN J: I also agree. ********** 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. 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