R v SCOTT [2004] NSWCCA 254

New South Wales Court of Criminal Appeal

CITATION : R v SCOTT [2004] NSWCCA 254 HEARING DATE(S) : 13 February 2004 JUDGMENT DATE : 30 July 2004

JUDGMENT OF : Sully J at 1; James J at 2; Hulme J at 3 DECISION : See paragraph 105

CATCHWORDS : Criminal law - conduct of counsel - cross examination of accused to suggest he has changed his story - care and directions needed. CASES CITED : R v Birks (1990) NSWLR 677 followed R v Dennis [1999] NSWCCA 223; R v Abdallah [2001] NSWCCA 506; Picker v R [2002] NSWCCA 78 considered PARTIES : Regina Christopher Geoffrey SCOTT FILE NUMBER(S) : CCA 60368/03 COUNSEL : Crown: D Arnott Appellant: R Button SOLICITORS : Crown: S Kavanagh Appellant: S O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 00/61/0146 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

- 46 - IN THE COURT OF CRIMINAL APPEAL 60368/03

SULLY J JAMES J HULME J

Friday, 30 July 2004 R v Christopher Geoffrey SCOTT Judgment 1 SULLY J: I agree with the orders proposed by and the reasons of Hulme J. 2 JAMES J: I agree with the orders proposed by and the reasons of Hulme J. 3 HULME J: On 7 December 2001 the abovenamed Appellant was convicted of a charge that he, between 1 October and 6 November 1997 at Dubbo, did have homosexual intercourse with a male person aged 12 at the time. 4 On 28 February 2002 Judge Woods sentenced the Appellant to imprisonment for a term of 7 years including a non-parole period of 4 years, both periods to commence on 3 December 2001. By Notice of Appeal and Grounds of Appeal dated 12 September 2003, the Appellant has appealed against his conviction but made no application to appeal against sentence. There are two grounds of appeal viz:- 1. The cross-examination of the Appellant by the Crown Prosecutor created a miscarriage of justice. 2. In the circumstances of this case, the failure of the trial judge to give a full "Longman warning" constituted a miscarriage of justice. 5 The Crown case was that the Appellant was slightly acquainted with the parents of the complainant, having been introduced to them by his then fiancé Lisa Condie, that he attended on their home which was some distance out of town and suggested to their mother that her boys, the complainant and his younger brother, might like to spend a few days staying with him in town, inter alia, going to the pictures and McDonalds. At most, the Appellant would seem to have met the brother once previously and the complainant not at all. It was the school holidays, their mother agreed and the Appellant, a male friend also known to the complainant's mother, the complainant and his younger brother then drove to the Appellant's home. Both boys stayed there for two or three nights being picked up by their mother on the morning of the last day. 6 The complainant alleged that on one night he ingested some beer and rum which the Appellant provided. He said that on that occasion he passed out on a lounge in the premises and when he awoke he was conscious of the Appellant, stark naked, fondling his, i.e. the complainant's, penis. His evidence was not entirely consistent about all the circumstances or the events that followed but he said that the Appellant asked him or pushed him over into a kneeling position and then inserted his penis into the victim's anus. According to the complainant it hurt; after a little time the Appellant desisted. 7 The Appellant denied that the complainant had any alcohol except on the first night and asserted that on that occasion the complainant drank only 2 stubbies and a bit of rum. The Appellant denied that the complainant had been drunk and passed out. The Appellant also denied that he was naked and had engaged in any sexual activity. The balance of the evidence, including the cross-examination, related to incidental and, in themselves, largely inconsequential matters. 8 Mention should be made of the Appellant's age and of his financial situation at the time. He was born on 30 July 1964. (I have taken that date from the Antecedent Report tendered on sentence. However, the Appellant's approximate age must have been apparent to the jury.) The Appellant said in evidence that he had no money that weekend. He knew that at the time he invited the boys to stay but said that he knew he could rely on Lisa to pay to go to the pictures. He said that he spoke to her by phone from their parents' home. 9 The approximate dates when the complainant and his brother stayed at the Appellant's home, i.e. between 1 October and 6 November 1997, were fixed by reference to when a particular film was showing at the local cinema. The complaint was made to the police in November 1999. The Appellant was arrested and charged in August 2000. There is nothing to suggest that he had any knowledge of the complaint before then. His trial took place in December 2001, one in the previous month having been aborted when it became apparent some jurors knew one of the witnesses.