Eric Russell Picker v Regina [2002] NSWCCA 78

New South Wales Court of Criminal Appeal

CITATION : Eric Russell Picker v Regina [2002] NSWCCA 78 FILE NUMBER(S) : CCA 60385/00 HEARING DATE(S) : 26 February 2002 JUDGMENT DATE : 20 March 2002

PARTIES : Eric Russell Picker v Regina JUDGMENT OF : Beazley JA at 1; Bell J at 2; Smart AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0275 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : (A) P M Strickland (R) P G Ingram SOLICITORS : (A) D JHumphreys (R) S E O'Connor CATCHWORDS : Impermissible cross-examination by Crown driving accused to say complainant was lying and to the effect that the reason his counsel had not asked her about certain matters was because he had recently made them up - difficulties compounded by inadequate re-examination and prosecutor's florid address - oath against oath - credibility of complainant and accused critical LEGISLATION CITED : Nil Rich 102 A Crim R 165 Palmer v The Queen (1998) 193 CLR 1 R v Dennis [1999] NSWCCA 23 CASES CITED: R v Davies (unrep) CCA 5/12/94 R v Gilbert (unrep) NSWCCA 10/12/98 R v Smith [2000] NSWCCA 468 R v Birks (1990) 19 NSWLR 677 R v Manunta SACCA (unrep) 28/7/99 DECISION : (1) Appeal allowed, convictions quashed; (2) Order that there be a new trial

IN THE COURT OF CRIMINAL APPEAL 60385/00 BEAZLEY JA BELL J SMART AJ

Wednesday 20 March 2002

REGINA V ERIC RUSSELL PICKER

JUDGMENT

1 BEAZLEY JA: I agree with Smart AJA 2 BELL J: I have had the benefit of reading in draft form the judgment of Smart AJ. I agree with the orders which his Honour proposes for the reasons which he gives. 3 SMART AJ: Eric Russell Picker appeals against his conviction, after a trial extending over three days, of two counts of sexual intercourse without consent and a third count of possession of a weapon (a rifle) with intent to commit a sexual assault. He also seeks leave to appeal against the severity of his sentences, namely imprisonment for twenty-two months with a non-parole period of sixteen months commencing on 9 February 2000 on the third count and imprisonment for seven years with a non-parole period of four years six months commencing on 9 June 2001 on each of counts 1 and 2. The judge took into account two months pre-trial custody. The total effective overall sentence was thus eight and a half years with a non-parole period of six years. 4 The Crown case could be summarised as follows. On 10 October 1999 the complainant told Mr Barry Moore that her fiancée Mark Umbach, was working in South Australia. Mr Moore passed this information on to the appellant and his partner later that day. On 11 October 1999 as the complainant arrived home from work she saw the appellant sitting on a motor bike outside her property. A conversation began and during this, according to her, he said, "The funniest thing happened to me the other day a twenty year old propositioned me. I got the shock of my life." The complainant did not respond. She invited the appellant inside for a cup of tea. There was a discussion about selling Amway products and other matters. 5 On 18 October 1999 the complainant arrived home from work about 6 pm. Her fiancée, Mark Umbach, was working in Mildura. About 8.30 pm she telephoned him and spoke with him at length. While she was still on the phone she saw a white utility pull up outside the front door. She mentioned this to him but before she could answer the door the appellant had entered the premises. When her fiancee asked whom it was the complainant floundered and said it was Roger (rather than Eric) Picker. The telephone conversation ended shortly afterwards. 6 The complainant alleges that the appellant told her "I was just in the neighbourhood, I was checking Barry's cattle and I saw the lights were on and I knew I'd get a cuppa here." She put the kettle on. After some general conversation the appellant told her of the problems he was having with his partner (Noni). He repeated that he should not be there and should go. The appellant asked her for a cuddle. She refused. He lifted her off the lounge but she pushed him away. He said that he should not have done that and that she would tell her father. 7 The appellant went outside ostensibly to obtain a letter for her from his utility. She was unable to prevent the appellant returning to the house because there was no way of locking the front door. When he returned he was carrying a rifle. She asserted that he said "Tonight's the night I'm going to do myself in and before I do it I'm going to make love to a beautiful woman and you're it, sweetheart." After further conversation the appellant promised to leave if she gave him a cuddle. She stood up and put her arms around his shoulders. He picked her up, kissed her and said "Come on we'll take this a bit further." She said, "Don't do this Eric" and "Don't wreck my life." She did not struggle as she did not want the appellant to become aggressive or forceful. 8 He carried her to the bedroom, placed her on the side of the bed, and undressed her from the waist down. She said "Eric don't do this." He removed some of his clothes and told her to pull her top up. He performed cunnilingus (count 1). He rubbed against her and asked "Do you want me to come inside you or on your stomach?" She said, "On my stomach." He had vaginal-penile intercourse with her and ejaculated on her stomach (count 2). He said "I shouldn't have done that. You'll tell your father." He dressed and left the bedroom. 9 She dressed and walked out to the lounge room. The appellant apologised. He disconnected the telephone and took it with him so she could not call her father or the police before he got to the highway. He also took his gun. 10 After the appellant left she walked to the home of one of her neighbours and from there telephoned her fiancee's father, telling him that the appellant had raped her and had a gun. Her fiancee's father collected her and took her to his property in Bega. The police and the ambulance were called and she was taken to Bega Hospital and examined by a doctor. When seen by the police in the early hours of 19 October 1999 she was sobbing and shaking as she related what had happened. 11 Her fiancee was not concerned that Roger Picker, a former co-worker had called, although she sounded nervous and frightened. Her fiancee had to end the call to attend to his dinner on the stove. He invited her to call him back. 12 Her fiancee's father said when the complainant told him of the rape and the gun she sounded "distressed". As he drove her to his property she was shaking as she recounted what had happened. 13 Mr S A Fryer said that the appellant came to his place on the morning of 19 October and had a firearm at this time. The appellant stated that he went to a woman's place to sell Amway, that she "came on strong" and he "went for it" but then she "cried rape". The appellant gave Mr Fryer some letters to give to the appellant's partner. The appellant left taking his firearm. 14 On 19 October 1999 Det Snr Cons Grey found an empty rifle case under the bed in the master bedroom of the appellant's home. About 4pm Det Grey received a telephone call from a man who identified himself as the appellant who said "I'm sitting here with a gun between my legs just wondering what to do." The man would not reveal his whereabouts. Det Grey asked the appellant to come in and see him. 15 On 20 October 1999 the appellant and his solicitor attended at Bega Police Station. The solicitor told Det Grey that the appellant was "not going to make a statement or anything." The appellant was interviewed but he exercised his right of silence on the advice of his solicitor. The appellant was charged. A little later the appellant told Det Grey that he threw the telephone out the window as he drove away from the house and it should be on the side of the road about 100 metres away. It was 220 metres from the complainant's farmhouse. Det Grey asked the appellant if he was willing to tell him where the firearm was. The appellant replied, "There was no firearm, when I rang you I was at a friend's place and I was looking at his gun which was on the floor." 16 Cons J C Stevenson said that while the appellant was in his company in the police vehicle this conversation occurred: