R v SIMMONS [2002] NSWCCA 522

New South Wales Court of Criminal Appeal

CITATION : R v SIMMONS [2002] NSWCCA 522 FILE NUMBER(S) : CCA 60362/02 HEARING DATE(S) : 18 November 2002 JUDGMENT DATE : 24 December 2002

PARTIES : Regina Warren James Simmons JUDGMENT OF : Heydon JA at 35; Hulme J at 1; Carruthers AJ at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0830 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

COUNSEL : Crown: WG Dawe QC Appellant: PR Boulten SOLICITORS : Crown: SE O'Connor Appellant: Murphy's Lawyers

DECISION : Appeal allowed; Conviction and sentence in respect of the second count on which the Appellant was convicted on 26 February 2002 quashed; Direct a verdict of acquittal on that count

- 12 -IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

No: 60362 of 2002 HEYDON JA HULME J CARRUTHERS AJ

Tuesday, 24 December 2002 REGINA v Warren James SIMMONS

Judgment 1 HULME J:-On 18 February 2002, the Appellant was indicted on 7 counts. In summary they were:- (i) On 24 December 1999, assault with an act of indecency; (ii) On 24 December 1999, assault with an act of indecency; (iii) On 24 December 1999, attempted sexual intercourse; (iv) On 24 December 1999, sexual intercourse; (v) Between 24 December 1999 and 4 January 2000, assault with an act of indecency; (vi) Between 24 December 1999 and 4 January 2000 , assault with an act of indecency: and (vii) Between 24 December 1999 and 4 January 2000, attempted sexual intercourse. 2 All offences were said to have been committed in circumstances of aggravation, viz. that the complainant was 13 at the time. 3 The Appellant pleaded guilty to the first and sixth counts. He was convicted of the second but acquitted on the other counts. His grounds of appeal are that the verdict of guilty was inconsistent with the verdicts of not guilty and "was unreasonable or cannot be supported having regard to the evidence". 4 The law and other issues relevant to verdicts said to be inconsistent and thus unreasonable has recently been reviewed in this Court in R v Markuleski (2001) 52 NSWLR 82 and in the High Court decision of MFA v R [2002] HCA 53 and it is unnecessary for a further review in this appeal. It is sufficient to record that the ultimate test is that defined in s6 of the Criminal Appeal Act and, as explained by the High Court in M v R (1994) 181 CLR 487 at 493 is whether this Court "thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty"; and in that a substantial component of the Appellant's argument arises from the verdicts of not guilty in 4 of the 5 counts submitted to them, it becomes necessary to consider the facts and circumstances and in particular whether there can be found in those facts and circumstances any explanation for the difference in the verdicts. Nevertheless the issue remains that posed by s6 as explained in M v R. 5 The Crown case depended primarily on the evidence of the complainant, There was a little supporting evidence, particularly from the complainant's mother, evidence of complaint, and some admissions by the Appellant in an ERISP. The Appellant gave evidence but before I come to that or what he said in his ERISP, it is convenient to refer to the principal evidence against him. 6 The complainant's mother and the Appellant's wife were sisters. The complainant and her mother were visiting Sydney over the Christmas period, staying with another of her mother's sisters, Celia, and her family. There were a number of occasions when members of the wider family met. On 24 December the complainant visited the Appellant's home. According to the complainant she went with the Appellant down to his workshop in the basement of his house to see his motor-bike. As the complainant turned to leave the basement, the Appellant, without any preliminaries, put his hand up her skirt, touched her bottom and under her underwear. He then kissed her putting his tongue in her mouth. This was the complainant's evidence the subject of the first charge. 7 After dinner, according to the complainant, the Appellant, in the presence of his wife, invited the complainant to join him in walking his dog. Although the complainant gave no evidence of any threats, she said that she was too scared – presumably to say no – and went with the Appellant. The walk was in bushland near the Appellant's home. In the bush, the Appellant put his hand on her shoulder and despite resistance from the complainant in the form of folding her arms, took her top off, unbuttoned and unzipped her dress and pulled it down. He then unzipped his own pants and exposed his penis and then pushed the complainant onto a rock. He touched her legs and breasts, pulled her underpants off and tried to have intercourse, without success. The complainant complained it was hurting and tried to move away but he pulled her back and when he could not succeed when she was lying on her back, he turned her over. After a time he desisted and then, pretending that the complainant had hurt her ankle, induced his wife to come and pick the two up and take them home. The touching is the subject of the second count. The attempted intercourse is the subject of the third. 8 The complainant said that after she returned to the Appellant's home, her aunt remarked that the complainant did not look well, looked tired and should lie down. This she did in her aunt's and uncle's bedroom. While she was lying down the Appellant had a shower and on entering the bedroom, according to the complainant approached the bed, allowed the towel to fall open and forced his penis into her mouth. She kept her teeth closed. He desisted, saying he would try again later. Shortly afterwards she heard aunt Celia's voice. Aunt Celia and her husband then drove the complainant to their place where her mother was. The conduct described in this paragraph was the subject of the fourth charge. 9 On the following day, Christmas day, the complainant's mother noticed that the complainant's panties had mud on them and asked what happened. The complainant said that she told her mother that she had been wearing a mini-skirt and sat on the ground. The complainant's mother confirmed seeing mud on the outside of the panties and asking the complainant about it but said that the response was to the effect the complainant did not know. The complainant's mother also gave evidence that that Christmas the complainant, contrary to her usual attitude, showed very little joy at her Christmas present and was just very flat. The complainant herself said that she was feeling really horrible and depressed. 10 It should be recorded that, notwithstanding a number of movements the complainant said occurred on the rock when, according to her she had only her bra or, for some of the time, her bra and panties on, the complainant's evidence was that she received no scratches or any dirt on her shoulders or back. 11 According to the complainant, a day or so after Christmas her cousins wished to go to a nearby park. The Appellant offered to take the children and the complainant went too. Once there, her cousins went over to the playground. She said that the Appellant was walking near her and tried to put his hand up her top. She folded her arms and prevented him doing so and then he grabbed her hand and placed it on his penis. The complainant tried to walk away. Her cousins rejoined them and then all went back to the house of the Appellant and his wife. This conduct the complainant attributed to the Appellant was the subject of the fifth count. 12 According to the complainant, on another occasion arrangements had been made for the complainant's cousins to go to a bike track adjacent to which was a shooting or archery range. The complainant's mother suggested the complainant go too and the complainant apparently agreed. Again the Appellant drove. The complainant's cousins were left at the bike track and the Appellant and the complainant, who did not know how to ride a bike, who was not interested in BMX bike riding but who did have some interest in cross-bows, went to the range. There she said she was sitting on a bench, feeling sad and not knowing what to do. The Appellant approached her and kissed her with his tongue and his mouth. Then he walked to his car and obtained a cross-bow and arrows and the complainant did some shooting with these. While this occurred the Appellant put his arms around her. She protested. He showed her some other bows he had. She became scared and walked away. Later he approached her, pushed her down, unzipped her pants and tried to have intercourse in the middle of a field in daylight. The complainant said that she was tense and in pain, although she did not say anything. After a time the Appellant stopped. After a little time the two returned to the car, drove to the bike track, picked up the other children and went back to the Appellant's home. The kissing is the subject of the sixth count. The attempt at intercourse is the subject of the seventh. 13 At no time while in Sydney did the complainant make any complaint. After she and her mother returned home overseas, the complainant returned to school. Mr Leah, a teacher who had had contact with the complainant over a number of years previously gave evidence that at the end of 1999 the complainant at school was fine, popular and appeared to be doing well. During an examination in January, he noticed that the complainant was having difficulty concentrating. He asked her whether she was okay and she responded by asking to talk to him in private. Mr Leah said that the complainant told him that in Sydney her uncle had messed around with her. She had said that it started with some tickling and had become much more than that. Mr Leah asked what she meant and the complainant said that her uncle had been French kissing her and then tried to touch her between the legs. Mr Leah said that at the time the complainant had moist eyes, was slumped in her chair and delivered this information in 10, 15 or 20 seconds. He asked her to stop, asked whether she had told her mother and told the complainant that he would have to tell the school principal. Mr Leah then took the complainant to the principal. In cross-examination, Mr Leah said that the complainant had not told him that her uncle had tried to rape her. 14 The principal was not called. The complainant's mother said that she received a call from Mr Leah and later that day informed the complainant that Mr Leah had rung and said that the complainant had a problem and that the complainant had something to tell her. The complainant's mother said that the complainant responded "Yes, but it's too awful to tell you". Asked what had happened, the complainant said that Uncle Warren had touched her inappropriately and kissed her. Asked what she meant be inappropriately, the complainant said that he had pulled up her skirt and touched her bottom and private parts. When her mother asked if there was anything else, the complainant started to get very upset and angry and, according to he mother, did not want to talk further because it was really upsetting her. The complainant's mother suggested that the complainant talk to a Mary Bell, a counsellor that the complainant had been to see at the time of the break-up of the marriage of her parents a year or so earlier. 15 The complainant's mother also said that some time after the complainant had seen Ms Bell, there was an occasion when the complainant had been very upset and crying hysterically and had said that she had not told her mother everything about what happened in Australia. When, on a number of occasions her mother sought to find out more, the complainant would become very agitated or angry, would cry and never told her mother more. 16 The complainant's mother also said that she had spoken to the Appellant's wife and had told her that the complainant had said that the Appellant had kissed her and touched inappropriately on her private parts on a number of occasions. The cross-examination of the complainant's mother included the following:- "Q Has (the complainant) ever told you that Warren Simmonds tried to rape her? A She told me that there was a lot more that happened than what she originally told me, that she didn't want to talk about with me. She felt disgusted and she was very angry and very upset and couldn't tell me all the details. Q Has she ever told you he tried to rape me? A She didn't use those words. 17 Ms Bell said that she had seen the complainant on 1 February 2000. According to Ms Bell, when the complainant was describing what occurred she was very fearful (as transcribed), had difficulty speaking, and was clearly experiencing a lot of emotion. Later the witness said that the complainant had been tearful. 18 Ms Bell's account of what the complainant had told her was in these terms:- She had been visiting at her aunt and uncle's home in Sydney. She was in the house with her aunt working on a Christmas gift which she was making when (the appellant) joined them and asked (the complainant) if she would like to come with him into the garage to see his new motorbike. She went with him to see it. While she was with him looking at the motor bike she said that he put his arms around her and put his hands underneath her clothing in between her legs. She said that she protested and tried to push him away but he persisted and tried to hold her. She described feeling shocked and repulsed because he was an adult and a family member and she had not expected him to behave this way toward her. She also described feeling very afraid of him. She said that she finally broke away from him and went back inside the house. (The complainant) reported that some days after this incident when the whole family was going to watch a fireworks display (the Appellant) was walking very close to her and putting his arm around her in a way which felt very uncomfortable for her. He said something to her at this (sic)… 19 Cross examination contained the following:- Q Did (the complainant) tell you that her uncle had tried to rape her? A Not in those words. Q Not even words that would tend to indicate sexual intercourse or attempted sexual intercourse? A She did not expressly indicate that, but what she was saying led me to think that that might have been what happened. Q What, because of things she didn't say? A Because she gave me a partial picture and was having difficulty speaking. Q … Q Did she say anything else about what he had done with her or to her on (the fireworks occasion) A Not that I remember at this point. Q Did she mention an incident that occurred at an archery range? A I don't believe so. 20 Ms Bell gave evidence that she did not take notes at the time of speaking to the complainant but her statement to the police was made on or about 28 November 2000. 21 In summary, the complainant told Mr Leah that the Appellant had been French kissing her and then tried to touch her between the legs. She told her mother that the Appellant had kissed her, had pulled up her skirt and touched her bottom and private parts and also that more had happened. When purporting to recount the complainant's story – and one may infer of what the complainant had told her, the complainant's mother told her sister that the Appellant had touched the complainant on her private parts on a number of occasions. The complainant told Ms Bell that the Appellant had put his hands underneath her clothing in between her legs and on a later occasion when the family was going to watch some fireworks, the Appellant put his arm around her in a way that made her feel uncomfortable. All three witnesses attested to the complainant having been very upset when discussing the events. The discussion with Mr Leah arose because he noticed something apparently wrong with the complainant. 22 These complaints clearly stop a good deal short of the totality of the charges and of the complainant's account to the jury of what occurred. In particular, there is no mention of sexual intercourse or of attempts to have sexual intercourse. Nor is there any mention of the Appellant undressing the complainant or of touching in areas where the touching would be indecent other than around her genitalia. 23 The Appellant participated in an electronically recorded interview (some of which, due to equipment break-down is recorded in only a policewoman's statement) and gave evidence. Having regard to the limits of this appeal, it is unnecessary that I refer to much of what the Appellant said, beyond what he said concerning the second and third counts and those to which he pleaded guilty. He said that in his workshop he probably kissed the complainant on the lips and with his tongue. 24 He also said that the two went for a walk with his dog. He said that the complainant twisted her ankle, he picked her up and piggy-backed her and placed her on a rock. In Constable Gargan's statement the Appellant is recorded as saying that it was while piggybacking her that he touched her bottom and, by inference, underneath her underwear. In the formally recorded part of the interview he provided some confirmation of this, asserting that the complainant liked it. He said also that he put her down on the rock and while sitting with her he masturbated her genital area. The Appellant denied otherwise touching the complainant and of attempting to have sexual intercourse with the complainant as alleged in the second and third counts. 25 In the ERISP the Appellant agreed that he had taken the complainant to the archery range. He denied any genital activity or attempt to have intercourse but said that he might have hugged or tongue-kissed the complainant. His evidence on these various matters was along similar lines to what he had said in his interview although he did acknowledge kissing the complainant at the archery range. 26 The verdicts of not guilty in respect of the third, fourth, fifth and seventh charges clearly indicate that the jury had some reservations as to the degree of persuasion the complainant carried. And her evidence does reveal a number of reasons why this may have been so. Despite one or more prior incidents to which she said she objected or which she said she found repulsive, she went with the Appellant to walk the dog and to the archery range although it could not have been difficult for her to find some excuse not to be alone with him, even if she did not wish to reveal what she told the jury had occurred. When her aunt observed that she was tired after what, according to the Appellant's account, must have been a frightening attempted rape, she lay down in the bedroom her aunt and the Appellant shared. Her excuse of being scared is not supported by any evidence of threats or anything else. And the fact that she had not complained at all while in Sydney, although there were her mother and aunts available very soon after the occasions about which she gave evidence, is likely not to have helped her credibility. 27 Furthermore, when the complainant did complain, the complaints she made were of conduct significantly different from that about which she gave evidence. As I have pointed out, she made no complaint of attempted sexual intercourse or of the incident in the bedroom and no complaint of the Appellant's removal of her clothing. 28 It is against that background that the Appellant's conviction on the second count needs to be considered. With the exception of the muddied panties and the Appellant's admission of having fondled the complainant's genitalia during the walk, there is nothing to make the complainant's evidence on the second count more credible than it was on the other counts. Given that it was common ground that the complainant at least sat on the rock, the evidence merely that there was mud on the outside of her panties, of itself, provides no support for the indecent assault she claimed occurred. There was the contrast between the mud on the panties and her evidence that, notwithstanding she was forced to lie and roll over on the rock, she received no dirt on her shoulders or back but that is consistent with her not lying down and the jury's not being persuaded of the third count. 29 The Appellant's admission of an indecent assault, as do his admissions of kissing the complainant, provides some evidence of what used to be called "guilty passion" but that evidence was available in relation to the charges on which he was acquitted too. So far as his admissions of an indecent assault are concerned, the question boils down to whether one can, in the circumstances of this case, regard his admissions of fondling the complainant's genitalia as supporting the charge and her evidence that he undressed her and fondled parts of her body other than her genitalia. 30 If so, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. If not, it seems to me on the facts of this case that the jury's lack of confidence in the complainant as evidenced by their four verdicts of not guilty, leads to the conclusion that the verdict of guilty on the second count was unreasonable. I do not feel able in this case to explain the difference in the verdicts on bases such as were adverted to in R v Kirkham (1987) 44 SASR 591 at 593 and MacKenzie v R (1996) 190 CLR 348 at 367-368. 31 The view I take is that the question posed at the end of the second last paragraph should be answered in the negative. In the unusual circumstances of the case, there is just no basis for accepting, as it were, the indecency in his version but ignoring or rejecting what he says about the place on the complainant's body that indecency occurred. It follows that the verdict on the second count must be set aside and the sentence on that count quashed. 32 The sentence imposed on that count was of 18 months imprisonment to be served by way of periodic detention. In relation to each of the first and sixth counts Judge Hosking ordered the Appellant to enter into a good behaviour bond for a period of 12 months. In light of the independence of the sentence on the second count from the sentences on the others, there is no occasion for any adjustment of these other sentences. 33 Accordingly, the orders of the Court should be that, in respect of the second count on which the Appellant was convicted on 26 February 2002, the Appeal is allowed, the conviction and sentence quashed and a verdict of acquittal entered. 34 I should however not leave the matter without pointing out that, having regard to the admissions made by the Appellant in his electronically recorded interview and on oath in the witness box, he is clearly guilty of having indecently assaulted the complainant, albeit in a way different from that charged in February last. No doubt in light of the Appellant's admissions referred to in these reasons the Director of Public Prosecutions will give serious consideration to charging the Appellant with the offence he says he did commit. 35 HEYDON JA: I agree. 36 CARRUTHERS AJ: I agree