New South Wales Court of Criminal Appeal CITATION : Regina v Channell [2002] NSWCCA 187 FILE NUMBER(S) : CCA 60400/01 HEARING DATE(S) : 14 May 2002 JUDGMENT DATE : 14 May 2002 PARTIES : Regina v Alan Douglas Channell JUDGMENT OF : Stein JA at 1; Kirby J at 2; Carruthers AJ at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0676 LOWER COURT JUDICIAL His Honour Andrew DCJ OFFICER : COUNSEL : Applicant - A.C. Haesler, M. Gibian Crown - W.G. Dawe QC SOLICITORS : Applicant - D.J. Humphreys Crown - S.E. O'Connor CATCHWORDS : Criminal law - conviction appeal - absence of appropriate directions in case involving multiple counts for sexual offences allegedly committed some twenty years beforehand - application of Jones v The Queen (1997) 191 CLR 439 LEGISLATION CITED : Crimes Act 1900, s81 (now repealed) Evidence Act 1995 Bramton v The Queen (2000) 176 ALR 369 Doggett v The Queen (2001) 182 ALR 1 Jones v The Queen (1997) 191 CLR 439 Longman v The Queen (1989) 168 CLR 79 R v AH (1997) 42 NSWLR 702 CASES CITED: R v ARD [2000] NSWCCA 443 R v Beserick (1993) 30 NSWLR 510 R v BWT [2002] NSWCCA 60 R v Greenham [1999] NSWCCA 8 R v Markuleski [2001] NSWCCA 290 R v Robinson [2000] NSWCCA 59 DECISION : Leave to appeal granted. Appeal against conviction upheld, the conviction on the third count quashed. Verdict of acquittal on third count. IN THE COURT OF CRIMINAL APPEAL 60400/01 STEIN JA KIRBY J CARRUTHERS AJ Tuesday, 14 May 2002 REGINA v Alan Douglas CHANNELL Judgment 1 STEIN JA: I agree. 2 KIRBY J: I also agree. 3 CARRUTHERS AJ: Alan Douglas Channell appeals against his conviction at the Sydney District Court on 27 April 2000 on one count of indecent assault of a male person contrary to s 81 of the Crimes Act 1900, which section has since been repealed. 4 On 16 June 2000 his Honour Andrew ADCJ sentenced the appellant to a fixed term of 12 months imprisonment to be served from 16 June 2000 and to expire on 15 June 2001. 5 On 17 April 2001 the appellant was arraigned before his Honour Andrew ADCJ and a jury of twelve at the District Court Sydney upon an indictment which contained four counts, namely, that he: 1. Between 26 August 1978 and 31 December 1979 at Sydney in the State of New South Wales, indecently did assault David Glen Johnson, a male person. 2. Between 26 August 1978 and 31 December 1979 at Sydney in the ,State of New South Wales, indecently did assault David Glen Johnson, a male person. 3. Between 26 August 1978 and 31 December 1979 near Trangie in the State of New South Wales, indecently did assault David Glen Johnson, a male person. 4. Between 26 August 1978 and 31 December 1979 at Orange in the State of New South Wales, did commit with David Glen Johnson the crime of buggery. 6 The appellant pleaded not guilty to each count. At the conclusion of the Crown case leave was given to extend the period during which these offences were alleged to have occurred by 12 months, that is to say to 31 December 1980. 7 His Honour directed a verdict of not guilty in relation to count 4. This was because the complainant in cross-examination maintained that the alleged buggery did not occur at Orange but instead at Fairfield, Sydney. 8 With regard to the remaining three counts of indecent assault of a male person, the jury found the appellant not guilty on counts 1 and 2 and guilty on count 3. Thus, the appellant appeals only against the conviction on count 3. 9 By reason of the way this appeal was conducted it is necessary only to refer briefly to the factual aspects. The Crown relied upon the evidence of David Glen Johnson, the complainant, born on 26 August 1969. In essence the complainant alleged that whilst he and his brother Peter were residents of Dunmore House, an institution for disadvantaged children, the appellant took them out on weekends, sexually abusing him on four of these occasions. The complainant said that all the offences had occurred whilst he had lived at Dunmore House. He did not live there after early 1980. 10 The complainant gave evidence that he was first taken to the appellant's Fairfield flat in 1978. That night while he was having a shower the appellant fondled his penis. That matter formed the basis of count 1 in the indictment. An incident when the appellant masturbated the complainant, allegedly occurred on the following night. This formed the basis of count 2. 11 Count 3 was an allegation that whilst on a visit to Trangie, the appellant masturbated him. The fourth count involved an allegation that whilst on a camping trip at Orange, the appellant had anal intercourse with the complainant. 12 This was the third time the matters had come for trial, two earlier trials having to be aborted in January 2000. 13 The complainant in evidence stated that various other offences than those that formed the basis of the indictment were committed by the appellant upon him. For example, on the first day of the trial he stated that the episode at Trangie involved both masturbation on the part of the appellant and the insertion of a finger into the complainant's bottom. At various times during his testimony other allegations were made including penile anal intercourse at Trangie; oral intercourse at Trangie; oral intercourse at Orange; finger in the backside at Orange and buggery at Fairfield. 14 None of these allegations was opened on or led by the Crown; they were volunteered by the complainant. They formed no part of the Crown case and as it transpired his Honour gave no direction to the jury in relation to the allegations of uncharged sexual misconduct. I might add that neither the Crown counsel or counsel for the defence asked his Honour to give the appropriate directions. 15 Counsel for the appellant sought to cross-examine the complainant with regard to his criminal record. It would appear that the complainant was serving a significant sentence for sexual assault. The judge refused to allow cross-examination on the complainant's record on the basis that it lacked substantive probative value. 16 At the conclusion of the Crown case Mr Walsh, who appeared for the appellant, informed the judge that despite the fact the prosecution now relied on evidence the appellant had been living during the relevant period in a flat at Fairfield, in an earlier trial with a different complainant the Crown had relied upon the fact that during the same period the appellant had been living in Ingleburn. 17 Applications for a permanent stay and verdict by direction were made. They were refused, although on reconsideration, a verdict of not guilty on count 4 was directed. The trial judge also gave the Crown leave to amend the indictment extending the period over which the offences were said to have occurred to December 1980, an extension of 12 months. 18 The appellant gave evidence denying each of the offences. Effectively, the case went to the jury as one of word against word, there being only minimal evidence available to support the evidence of the complainant. Perhaps this was due to the large lapse of time between the alleged offences and the trial. Whatever the reason that is how the matter went to the jury. 19 The following relevant grounds of appeal were filed: 1. The verdict of guilty was unreasonable and cannot stand, having regard, in particular, to the circumstances of the trial in which there were inconsistent verdicts. 2. The learned trial judge erred in failing to direct or warn the jury as to the impact of any reasonable doubt arising as to the complainant's evidence as to one count upon a proper assessment of the complainant's evidence in relation to other counts. 3. The learned trial judge erred in failing to warn or instruct the jury as to the manner in which evidence of sexual misconduct, not the subject of counts on the indictment, should be approached. 20 Counts 4, 5 and 6 were not pursued on the appeal. 21 Mr Dawe of Queen's Counsel for the Crown has approached this appeal with his customary frankness and fairness. In these circumstances it is only necessary to refer with brevity to the various grounds of appeal. Before I do that, perhaps I should mention that the difficulties associated with the conduct of a criminal trial in this State involving lengthy delay between the date of the alleged sexual offences and the hearing, have most recently been dealt with by this Court in R v BWT [2002] NSWCCA 60, (Wood CJ at CL, Sully and Dowd JJ). Those judgments were handed down on 12 April 2002. 22 BWT was specifically concerned with the question whether the learned trial judge had given a warning which was sufficient to comply with the principles enunciated by the High Court in Longman v The Queen (1989) 168 CLR 79 as reinforced by Bramton v The Queen (2000) 176 ALR 369 and Doggett v The Queen (2001) 182 ALR 1. In particular in BWT Sully J sets out in great detail at para 95 the principles which were, in his Honour's view, to be distilled from the three cases to which I have just made reference. These principles received the approval of the other two judges. 23 That paragraph is too lengthy to be repeated here and it is unnecessary to do so, but it will no doubt, if I may respectfully say so, provide considerable assistance to other judges and counsel in future cases of this nature. 24 In the instant case at the conclusion of his Honour's summing-up, only one redirection was sought by counsel. Mr Walsh sought, without objection from the Crown Prosecutor, a redirection based upon Longman. His Honour gave a redirection, but if I may respectfully say so, giving full weight to the submissions on behalf of the Crown, it did not in my respectful view fully satisfy the demanding warning required to satisfy the principles required by the Longman line of cases. 25 Turning to ground 2, as I have indicated, no direction was sought by either counsel with regard to the impact of any reasonable doubt arising as to the complainant's evidence as to one count, upon a proper assessment of the complainant's evidence in relation to the other counts. It would have been most desirable that the jury be instructed that if they held a reasonable doubt concerning the reliability of the complainant's evidence on one or more counts, whether by reference to the complainant's demeanour or for any other reason, they must take that into account in assessing the reliability of his evidence in relation to the other counts. 26 In this regard see R v Robinson [2000] NSWCCA 59 para 9 and R v ARD [2000] NSWCCA 443 paras 12 and 13. I would propose that leave be granted to the applicant to rely on this ground, albeit it was not raised at trial. It was certainly a direction that was required by reason of the lack of real corroborative evidence of the complainant. I would therefore propose that ground 2 be upheld. 27 As to ground 3 the omission by his Honour to direct the jury as to the manner in which the evidence of sexual misconduct, not the subject of the counts on indictment, should be approached was unquestionably a fatal defect in this trial. 28 One only needs to refer to cases such as R v Beserick (1993) 30 NSWLR 510 at 516; R v Greenham [1999] NSWCCA 8 at paras 22-23, and R v AH (1997) 42 NSWLR 702. It goes without saying the jury may have impermissibly treated the evidence as tendency or coincidence evidence within the meaning of Pt 3.6 of the Evidence Act 1995. That would, of course, have created a manifest injustice. 29 In my view the appellant should be granted leave to argue ground of appeal 3 and I would propose that that ground be upheld. 30 As to the first ground, the Crown has realistically accepted the fact that this case fell clearly within the principles enunciated by the High Court in Jones v The Queen (1997) 191 CLR 439. One, of course, now reads the judgment of the High Court in Jones in the light of the judgment of this Court in R v Markuleski [2001] NSWCCA 290. Having said that, however, this case is a classic Jones situation. 31 Given the jury's findings upon the first and second counts it was not open to them on the whole of the evidence to be satisfied beyond reasonable doubt of the guilt of the appellant on the third count. The quality of the complainant's evidence upon the third count was no higher than that upon the first and second counts. Once the jury found that the evidence of the complainant with respect to the first and second counts lacked sufficient cogency to convict, the Crown's case on the third count wore a different complexion for it meant that when his evidence could be set against other reliable evidence it failed to carry sufficient conviction to reach the criminal standard of proof. Thus, I would propose that the first ground of appeal be upheld. 32 The effect of the upholding of the first ground of appeal is of itself sufficient to lead this Court to an order that there be a verdict of acquittal on the third count. However, for the sake of completion it should be noted that at the time of sentence by Andrew DCJ in relation to the subject matter, the appellant was already serving sentences imposed upon him for indecent assault and buggery at the Dubbo District Court on 8 September 1999. Those sentences were to date from 23 August 1999 and expire by way of minimum term on 22 September 2004. Thus the sentence imposed by Andrew ADCJ was to be served concurrently with those sentences and has thus been served. 33 I would propose therefore that the appeal against conviction be upheld, the conviction on the third count quashed, and that this Court enter on the third count a verdict of acquittal. 34 STEIN JA: Accordingly, the orders of the Court will be as enunciated. 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