Regina v Mills [2003] NSWCCA 145

New South Wales Court of Criminal Appeal

CITATION : Regina v Mills [2003] NSWCCA 145 HEARING DATE(S) : 2 May 2003 JUDGMENT DATE : 28 May 2003

JUDGMENT OF : Ipp JA at 1; Buddin J at 2; Smart AJ at 3 DECISION : (a) Appeal against conviction dismissed (b) Leave to appeal against sentence refused

CATCHWORDS : Sexual intercourse and indecent assault on child under 10 - aged 9 at hearing - unable to give sworn evidence - delay in complaint - not contemporaneous but measured in terms of months and 2 years - identifiable incidents - whether warning as to delay required - warnings needed as to age of child and frailty of childhood memories - Crown case depends on child's unsworn evidence - limited supporting evidence - summing-up adequate in circumstances LEGISLATION CITED : Nil Crampton v The Queen (2000) 206 CLR CASES CITED : Doggett v The Queen (2001) 208 CLR Longman v The Queen (1989) 168 CLR PARTIES : Regina v Lester Burnard Mills FILE NUMBER(S) : CCA 60002/02 COUNSEL : (A) D J Brezniak (C) R A Hulme SC SOLICITORS : (A) Andrews, Solicitors (C) S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 01/41/0089 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60002/02 IPP JA BUDDIN J SMART AJ Wednesday, 28 May 2003

Regina v LESTER BURNARD MILLS

JUDGMENT

1 IPP JA: I agree with Smart AJ

2 BUDDIN J: I agree with Smart AJ.

3 SMART AJ: Lester Burnard Mills was indicted on five counts of indecent assault upon a person under the age of 10 years and two counts of sexual intercourse (digital penetration of the vagina) with a person under the age of 10 years. He was acquitted of counts 1 and 3 (indecent assault) and count 2 (sexual intercourse), each offence alleged to have been committed between 21 January and 30 April 1998. He was convicted by the jury of counts 4, 5 6 and 7, being three counts of indecent assault and one count of sexual intercourse, all with a girl under 10 years of age. These offences were allegedly committed in December 1998, between 16 April 2000 and 1 May 2000, about 13 September 2000 and in early November 2000 respectively. He was sentenced to 5 years imprisonment on the charge of sexual intercourse with a person under the age of 10 years, with a non-parole period of 3 years (count 6). On the remaining charges he was sentenced to concurrent periods of imprisonment of fixed terms of 1 year (count 4) and 1½ years (on each of counts 5 and 7).