New South Wales Court of Criminal Appeal CITATION : Regina v Bishell [2002] NSWCCA 279 revised - 31/07/2002 FILE NUMBER(S) : CCA 60084/2001 HEARING DATE(S) : 7 June, 2002 JUDGMENT DATE : 7 June 2002 PARTIES : Regina Matthew John Bishell JUDGMENT OF : Heydon JA at 21; Hidden J at 22; Blanch AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0135 LOWER COURT JUDICIAL Job DCJ OFFICER : COUNSEL : P J Power (Crown) P Strickland (appellant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (appellant) CATCHWORDS : Criminal law - sexual intercourse without consent - warnings - inconsistent verdicts LEGISLATION CITED : Crimes Act, s78K R v Murray (1987) 11 NSWLR 12 R v McNamara [2002] NSWCCA 248 CASES CITED: R v Markuleski [2001] NSWCCA 290 M v The Queen (1984) 191 CLR 487 Jones v The Queen (1997) 19 CLR 439 MacKenzie v The Queen (1996) 190 CLR 348 DECISION : Leave granted to appeal against sentence. Sentences of trial judge quashed. On each count, sentenced to twelve months fixed term to date from 1 June, 2001. Each sentence to be served concurrently and be served by way of periodic detention and noting sentence has already expired. 8 - -in the COURT OF CRIMINAL APPEAL 60084/2001 HEYDON JA HIDDEN J BLANCH AJ 7 June 2002 REGINA v Matthew John BISHELL JUDGMENT 1 BLANCH AJ: This is an appeal from convictions on four counts of homosexual intercourse with a person between the ages of 10 and 18 at Gosford District Court on 5 April, 2000. The appellant appeared at Gosford District Court on 3 April, 2000 and was indicted on six counts of homosexual intercourse with the complainant who was aged 14 and 15 during the relevant periods contrary to section 78K of the Crimes Act. The first count alleged an act of anal intercourse between 1 October, 1997 and 31 December, 1997. The second count alleged an act of oral intercourse between 25 December, 1997 and 31 January, 1998. The third count alleged an act of anal intercourse between 25 December 1997 and 31 January, 1998. The fourth count alleged an act of anal intercourse between 25 December, 1997 and 31 March, 1998. The fifth count alleged an act of anal intercourse between 1 May, 1998 and 1 July, 1998. The sixth count alleged an act of oral intercourse between 1 August, 1998 and 31 August, 1998. The complainant was born on 2 February, 1983 and the appellant was in his late twenties. 2 At the relevant period the complainant was living with his mother at Wyong. The complainant's parents had separated in August, 1994 and the complainant's mother formed a relationship with the appellant in 1997 and lived in a de facto relationship from then at least until the time of trial. 3 At the trial the appellant was convicted of the first, third, fifth and sixth counts and acquitted on the second and fourth counts. 4 On the first count, the evidence supporting the prosecution case came firstly from the complainant who said that prior to Christmas 1997 he was living in the house occupied by his mother and the appellant. He had his own bedroom which contained a trundle bed. He said the appellant came into his room and asked him if he wished to have sex and he then described an episode which led to the appellant removing his pants and lying on his stomach on the trundle bed and then allowing the complainant to have anal sex with him. In a record of interview with the police on 9 November, 1998, the appellant admitted that he had anal sexual intercourse with the complainant on four occasions, one of those occasions being in the complainant's bedroom. He said that before Christmas 1997 he and the complainant were a bit drunk and the complainant gave methadone, which the complainant had stolen from his mother, to the appellant. The other evidence supporting this count came from a tape recording of a conversation between the appellant, the complainant and the complainant's mother which was brought into existence apparently by the appellant and the complainant's mother about six months after the record of interview. There was a dispute as to whether or not the complainant knew this tape was being made. It was tendered by the defence and part of the conversation on the tape was the appellant saying "It was only the four times it happened. It was once in your bedroom, that was the first time" and the complainant is recorded as saying "Yeah". 5 The defence to the first count was evidence given by the appellant at his trial that he was anally penetrated by the complainant on four occasions, three of which were without his knowledge. On those three occasions he said he woke up either in his bed or in the lounge room feeling that his "backside was sore". The appellant said that prior to these occasions the complainant had put methadone in his drink and this had knocked him out and made him go to sleep. He denied that to his knowledge anything of a sexual nature had occurred between him and the complainant in the trundle bed in the bedroom. He asserted the complainant had asked him to lie about the incidents because he did not want his father to find out what the complainant was doing. He said he agreed to do this and his assertion was the misrepresentation he agreed to was that he had consented to the acts of the complainant, whereas in reality the complainant had committed the acts without consent. When he was cross-examined about the taped conversation which he had been partly responsible for bringing into existence, and it was pointed out to him that the conversation indicated he was aware of what the complainant was doing to him, and there was no mention of his being drugged and asleep, the appellant's answer was "I've just forgotten to say it, that's all." 6 7 This count in the indictment did not rely on the evidence of the complainant alone and a warning about such evidence was not required. An independent assessment of the evidence given indicates a jury could properly be satisfied of the guilt of the appellant beyond reasonable doubt. Accordingly, I would dismiss the appeal against the conviction on the first count. 8 The appeal in respect of count three has been abandoned and is therefore dismissed. In respect of count five, the appeal has also been abandoned and is therefore dismissed. 9 The evidence in support of the sixth charge comes from the evidence of the complainant who in evidence when asked when was the last time something of a sexual nature happened, said "That was out in my lounge room of my house and that was on the lounge of the house and it was when he asked me if I wanted a head job and I said 'No I don't' … I said 'No' about two or three times but then he did it … put my penis in his mouth." The appellant both in his record of interview to the police and in his evidence before the jury denied that this or any other act of fellatio had occurred. In his summing up to the jury on this count, the trial judge pointed out that the evidence in support of the prosecution case "… comes from the complainant." He went on to say "There was no admission in relation to the accused as to that happening and I do not think there is anything - that comes I think, evidence solely from the complainant most of that last matter." The Crown submits there is some other material in this case which might support the evidence of the complainant on this charge. It is submitted the appellant made an admission to the complainant's mother relating to this and in terms where what was said to the mother distinguished this event from the second charge (on which the appellant was acquitted) which involved an allegation of an act of fellatio committed between 25 December, 1997 and 31 January, 1998. The complainant's mother was cross-examined about paragraph 7 of a statement she made on 9 November, 1998. In that statement she detailed how the appellant came to her to tell her about what had occurred between himself and her son, including the words "Your son Guy approached me and asked me to go down on him. We were both intoxicated at the time and I did." She was cross-examined to establish that the conversation with the appellant had occurred just a few days prior to 9 November and although at first she agreed with that proposition she subsequently made it plain she could not remember when the conversation occurred and ultimately said "Well I don't know if it was a year before or I am not sure when this took place, how long it was, you know I really can't. I have no idea, sorry." The trial judge in dealing with the evidence of the complainant's mother pointed out to the jury that she had told them she was in remission from cancer and that the cancer had affected her memory. It is clear this witness was far from a satisfactory witness and in particular her evidence as to an admission by the appellant of having engaged in oral sex could have referred to either count two or count six in the indictment which events were said to be one year apart. 10 A second piece of evidence suggested as providing some support for the complainant's evidence on count 6 is the evidence of a conversation in the taped recording, where the appellant is recorded as saying "… once here on the lounge in the living room and there was once in the garage in the car and that was the one where it was hurting me and I asked you to stop." The complainant replies "Yeah". The appellant then says "But you kept going" and the complainant said "But after all that then it was just a head job like" and the appellant responded "Yeah I remember that." 11 In relation to count 6 it is argued by the appellant that the verdict of guilty is inconsistent with the verdict of not guilty in respect of count 2 and it is also argued the trial judge should have given a warning to the jury alerting them to the dangers of convicting on the evidence of the complainant in respect of that count. It is of some significance therefore to determine if the verdict of guilty on count 6 does rely entirely on the evidence of the complainant. In my view it does. There is nothing in the evidence of the complainant's mother which points to the fact that there was any confession by the appellant to an act of oral sex towards the end of 1998 as opposed to the act of oral sex towards the end of 1997. She was an unsatisfactory witness and she could not even remember within twelve months as to when the appellant discussed this matter with her. I note that in its address the Crown relies on this evidence of the mother to support both counts 2 and 6. The material from the taped conversation again is not clear enough to draw any clear inferences as to when any suggested act of oral sex occurred and it has to be remembered that the complainant in his evidence clearly contradicted some of the things he is recorded as saying in the taped conversation. Moreover, the trial judge appears to have identified to the jury that the evidence in relation to this count did come entirely from the plaintiff. He certainly did not identify any other material which the jury could find supported the complainant's version. 12 13 These same factual considerations must also give rise to a consideration as to whether or not the verdict on count 6 is inconsistent with the verdict on count 2. The tests to be applied in determining whether verdicts on different counts are inconsistent has been the subject of consideration by this Court in R v Markuleski [2001] NSWCCA 290 where consideration was given to the judgment of the High Court in M v The Queen (1984) 191 CLR 487 and Jones v The Queen (1997) 19 CLR 439 and MacKenzie v The Queen (1996) 190 CLR 348. These cases emphasise that it is the function of the jury to return verdicts and if there is an appropriate way to reconcile the verdicts, they should be accepted and the appropriate role of the jury respected. In determining that issue, it has been said the test is one of logic and reasonableness. 14 15 As I have pointed out above, there was no evidence to support the complainant as to count 6 any more than there was as to count 2 in the indictment and as I observed earlier the Crown in its address relied on the same piece of evidence to support both counts. There was, in my view, no logical or reasonable way in which any jury could ascribe any of the material suggested as relevant to either the second count or the sixth count. The jury quite properly returned a verdict of not guilty on the second count and as a matter of logic the only reasonable verdict to return on the sixth count was also one of not guilty. 16 In R v Murray (1987) 11 NSWLR 12 it was said that where there is only one witness asserting the commission of a crime, the evidence of that witness should be scrutinised with great care before convicting. That statement of principle has been consistently supported in this Court most recently in R v McNamara [2002] NSWCCA 248 on 21 June, 2002. 17 18 In the case of count 6, in my view a particular warning was called for. The appropriate warning was one which drew the attention of the jury to the danger of convicting on the evidence of one witness alone. This witness contradicted what he had said in the taped conversation in relation to significant matters. He also said at first there were a couple of other times apart from the three he gave evidence about but he couldn't quite remember what had happened and subsequently he said the three occasions were the only three. The lack of consistency in the evidence of this witness is a good example of why this rule exists. 19 Both for the reason that the trial judge failed to give an appropriate warning to the jury in respect of count 6 and because the verdict in respect of count 6 is inconsistent with the jury's verdict on count 2, I would allow the appeal on this ground. I would quash the conviction and I would enter a verdict of acquittal. 20 21 I would also propose in this case that leave to appeal against sentence be granted. The appellant was sentenced originally to a period of twelve months imprisonment on count 6 by way of fixed term, and then was sentenced to a period of two years with a non-parole period of one year and three months to commence at the end of that sentence, namely 1 June, 2001. The non-parole period fixed was thus one of one year and three months. His Honour ordered the sentence to be served by way of periodic detention. 22 Apparently, the appellant did not commence the periodic detention sentence immediately, and it was not commenced until 3 January, 2001, and the appellant then served the twelve months sentence by way of full-time custody, partly at least because of another sentence of four months he was given in respect of a driving offence. 23 In any event he was released from full-time custody on 22 December, 2001. He has since been serving the periodic detention order although we are advised that six weeks of the periodic detention sentence has been served by way of full-time custody arising out of some mistake. The appellant therefore has served a period of twelve months full-time custody, and he has now served an extra period of almost six months by way of full-time custody and periodic detention. 24 In my view the amount of time the appellant has served in prison is sufficient time to be served in relation to the three counts on which he remains convicted. The very experienced trial judge in this matter assessed this as a case that was suitable for periodic detention. That is unusual in respect of a case of this kind involving a minor. However, I agree entirely with the assessment of the trial judge. 25 The order that I propose to give effect to that view is that the sentences imposed by the trial judge be quashed and that on each of the three remaining counts the appellant be sentenced to twelve months fixed term of imprisonment to date from 1 June, 2001, each of those sentences to be served concurrently, and I would order that those sentences be served by way of periodic detention. I note that the sentence has already expired and the appellant would not be required to attend prison for any further purpose in respect of the sentence. 26 HEYDON JA: I agree with Blanch AJ. 27 HIDDEN J: I also agree.*******************- 7 - in the COURT OF CRIMINAL APPEAL 60084/2001 HEYDON JA HIDDEN J BLANCH AJ 7 June 2002 REGINA v Matthew John BISHELL JUDGMENT 1 BLANCH AJ: This is an appeal from convictions on four counts of homosexual intercourse with a person between the ages of 10 and 18 at Gosford District Court on 5 April, 2000. The appellant appeared at Gosford District Court on 3 April, 2000 and was indicted on six counts of homosexual intercourse with the complainant who was aged 14 and 15 during the relevant periods contrary to section 78K of the Crimes Act. The first count alleged an act of anal intercourse between 1 October, 1997 and 31 December, 1997. The second count alleged an act of oral intercourse between 25 December, 1997 and 31 January, 1998. The third count alleged an act of anal intercourse between 25 December 1997 and 31 January, 1998. The fourth count alleged an act of anal intercourse between 25 December, 1997 and 31 March, 1998. The fifth count alleged an act of anal intercourse between 1 May, 1998 and 1 July, 1998. The sixth count alleged an act of oral intercourse between 1 August, 1998 and 31 August, 1998. The complainant was born on 2 February, 1983 and the appellant was in his late twenties. 2 At the relevant period the complainant was living with his mother at Wyong. The complainant's parents had separated in August, 1994 and the complainant's mother formed a relationship with the appellant in 1997 and lived in a de facto relationship from then at least until the time of trial. 3 At the trial the appellant was convicted of the first, third, fifth and sixth counts and acquitted on the second and fourth counts. 4 On the first count, the evidence supporting the prosecution case came firstly from the complainant who said that prior to Christmas 1997 he was living in the house occupied by his mother and the appellant. He had his own bedroom which contained a trundle bed. He said the appellant came into his room and asked him if he wished to have sex and he then described an episode which led to the appellant removing his pants and lying on his stomach on the trundle bed and then allowing the complainant to have anal sex with him. In a record of interview with the police on 9 November, 1998, the appellant admitted that he had anal sexual intercourse with the complainant on four occasions, one of those occasions being in the complainant's bedroom. He said that before Christmas 1997 he and the complainant were a bit drunk and the complainant gave him methadone, which the complainant had stolen from his mother, to the appellant. The other evidence supporting this count came from a tape recording of a conversation between the appellant, the complainant and the complainant's mother which was brought into existence apparently by the appellant and the complainant's mother about six months after the record of interview. There was a dispute as to whether or not the complainant knew this tape was being made. It was tendered by the defence and part of the conversation on the tape was the appellant saying "It was only the four times it happened. It was once in your bedroom, that was the first time" and the complainant is recorded as saying "Yeah". 5 The defence to the first count was evidence given by the appellant at his trial that he was anally penetrated by the complainant on four occasions, three of which were without his knowledge. On those three occasions he said he woke up either in his bed or in the lounge room feeling that his "backside was sore". The appellant said that prior to these occasions the complainant had put methadone in his drink and this had knocked him out and made him go to sleep. He denied that to his knowledge anything of a sexual nature had occurred between him and the complainant in the trundle bed in the bedroom. He asserted the complainant had asked him to lie about the incidents because he did not want his father to find out what the complainant was doing. He said he agreed to do this and his assertion was the misrepresentation he agreed to was that he had consented to the acts of the complainant, whereas in reality the complainant had committed the acts without consent. When he was cross-examined about the taped conversation which he had been partly responsible for bringing into existence, and it was pointed out to him that the conversation indicated he was aware of what the complainant was doing to him, and there was no mention of his being drugged and asleep, the appellant's answer was "I've just forgotten to say it, that's all." 6 The appeal in respect of count three has been abandoned and is therefore dismissed. In respect of count five, the appeal has also been abandoned and is therefore dismissed. 7 The evidence in support of the sixth charge comes from the evidence of the complainant who in evidence when asked when was the last time something of a sexual nature happened, said "That was out in my lounge room of my house and that was on the lounge of the house and it was when he asked me if I wanted a head job and I said 'No I don't' … I said 'No' about two or three times but then he did it … put my penis in his mouth." The appellant both in his record of interview to the police and in his evidence before the jury denied that this or any other act of fellatio had occurred. In his summing up to the jury on this count, the trial judge pointed out that the evidence in support of the prosecution case "… comes from the complainant." He went on to say "There was no admission in relation to the accused as to that happening and I do not think there is anything - that comes I think, evidence solely from the complainant most of that last matter." The Crown submits there is some other material in this case which might support the evidence of the complainant on this charge. It is submitted the appellant made an admission to the complainant's mother relating to this and in terms where what was said to the mother distinguished this event from the second charge (on which the appellant was acquitted) which involved an allegation of an act of fellatio committed between 25 December, 1997 and 31 January, 1998. The complainant's mother was cross-examined about paragraph 7 of a statement she made on 9 November, 1998. In that statement she detailed how the appellant came to her to tell her about what had occurred between himself and her son, including the words "Your son Guy approached me and asked me to go down on him. We were both intoxicated at the time and I did." She was cross-examined to establish that the conversation with the appellant had occurred just a few days prior to 9 November and although at first she agreed with that proposition she subsequently made it plain she could not remember when the conversation occurred and ultimately said "Well I don't know if it was a year before or I am not sure when this took place, how long it was, you know I really can't. I have no idea, sorry." The trial judge in dealing with the evidence of the complainant's mother pointed out to the jury that she had told them she was in remission from cancer and that the cancer had affected her memory. It is clear this witness was far from a satisfactory witness and in particular her evidence as to an admission by the appellant of having engaged in oral sex could have referred to either count two or count six in the indictment which events were said to be one year apart. 8 A second piece of evidence suggested as providing some support for the complainant's evidence on count 6 is the evidence of a conversation in the taped recording, where the appellant is recorded as saying "… once here on the lounge in the living room and there was once in the garage in the car and that was the one where it was hurting me and I asked you to stop." The complainant replies "Yeah". The appellant then says "But you kept going" and the complainant said "But after all that then it was just a head job like" and the appellant responded "Yeah I remember that." 9 In relation to count 6 it is argued by the appellant that the verdict of guilty is inconsistent with the verdict of not guilty in respect of count 2 and it is also argued the trial judge should have given a warning to the jury alerting them to the dangers of convicting on the evidence of the complainant in respect of that count. It is of some significance therefore to determine if the verdict of guilty on count 6 does rely entirely on the evidence of the complainant. In my view it does. There is nothing in the evidence of the complainant's mother which points to the fact that there was any confession by the appellant to an act of oral sex towards the end of 1998 as opposed to the act of oral sex towards the end of 1997. She was an unsatisfactory witness and she could not even remember within twelve months as to when the appellant discussed this matter with her. I note that in its address the Crown relies on this evidence of the mother to support both counts 2 and 6. The material from the taped conversation again is not clear enough to draw any clear inferences as to when any suggested act of oral sex occurred and it has to be remembered that the complainant in his evidence clearly contradicted some of the things he is recorded as saying in the taped conversation. Moreover, the trial judge appears to have identified to the jury that the evidence in relation to this count did come entirely from the plaintiff. He certainly did not identify any other material which the jury could find supported the complainant's version. 10 In R v Murray (1987) 11 NSWLR 12 it was said that where there is only one witness asserting the commission of a crime, the evidence of that witness should be scrutinised with great care before convicting. That statement of principle has been consistently supported in this Court most recently in R v McNamara [2002] NSWCCA 248 on 21 June, 2002. The appropriate warning was one which drew the attention of the jury to the danger of convicting on the evidence of one witness alone. This witness contradicted what he had said in the taped conversation in relation to significant matters. He also said at first there were a couple of other times apart from the three he gave evidence about but he couldn't quite remember what had happened and subsequently he said the three occasions were the only three. The lack of consistency in the evidence of this witness is a good example of why this rule exists. 11 These same factual considerations must also give rise to a consideration as to whether or not the verdict on count 6 is inconsistent with the verdict on count 2. Both for the reason that the trial judge failed to give an appropriate warning to the jury in respect of count 6 and for the reasons given, in my view the verdict in respect of count 6 is inconsistent with the jury's verdict on count 2, I would allow the appeal on this ground. I would quash the conviction and I would enter a verdict of acquittal. I would also propose in this case that leave to appeal against sentence be allowed. 12 The appellant was sentenced originally to a period of twelve months imprisonment on count 6 by way of fixed term, and then was sentenced to a period of two years with a non-parole period of one year and three months to commence at the end of that sentence, namely 1 June, 2001. The non-parole period fixed was thus one of one year and three months. His Honour ordered the sentence to be served by way of periodic detention. 13 Apparently the appellant did not commence the periodic detention sentence immediately, and it was not commenced until 3 January, 2001, and the appellant then served the twelve months sentence by way of full-time custody, partly at least because of another sentence of four months he was given in respect of a driving offence. 14 In any event he was released from full-time custody on 22 December, 2001. He has since been serving the periodic detention order although we are advised that six weeks of the periodic detention sentence has been served by way of full-time custody arising out of some mistake. The appellant therefore has served a period of twelve months full-time custody, and he has now served an extra period of almost six months by way of full-time custody and periodic detention. 15 In my view the amount of time the appellant has served in prison is sufficient time to be served in relation to the three counts on which he remains convicted. The very experienced trial judge in this matter assessed this as a case that was suitable for periodic detention. That is unusual in respect of a case of this kind involving a minor. However, I agree entirely with the assessment of the trial judge. 16 The order that I propose to give effect to that view is that the sentences imposed by the trial judge be quashed and that on each count the appellant be sentenced to twelve months fixed term of imprisonment to date from 1 June, 2001, each of those sentences to be served concurrently, and I would order that those sentences be served by way of periodic detention. I note that the sentence has already expired and the appellant would not be required to attend prison for any further purpose in respect of the sentence. 17 HEYDON JA: I agree with Blanch AJ. 18 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.