New South Wales Court of Criminal Appeal CITATION : Regina v GJW [2003] NSWCCA 277 HEARING DATE(S) : 18 - 19 August 2003 JUDGMENT DATE : 1 October 2003 JUDGMENT OF : Foster AJA at 1; Grove J at 2; Dowd J at 38 DECISION : APPEAL DISMISSED; LEAVE TO APPEAL AGAINST SENTENCE REFUSED CATCHWORDS : CRIMINAL LAW AND PROCEDURE - NEW EVIDENCE - INTERMITTENT PRESENCE OF VISITORS TO PROPERTY WHERE SEXUAL ASSAULT ALLEGED TO HAVE TAKEN PLACE - CREDIBILITY - ISSUES OF FACT LEGISLATION CITED : Crimes Act Justices Act Mikelberg v The Queen 1989 167 CLR 259 CASES CITED : R. v Fuller [2002] NSWCCA 121 R. v Whyte [2003] NSWCCA 64 PARTIES : Regina v GJW FILE NUMBER(S) : CCA 60581/01 COUNSEL : M.C. Grogan (Crown) M. Thangaraj (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 99/31/0270; 01/31/0115 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60581/01 FOSTER AJA GROVE J DOWD J Wednesday 1 October 2003 REGINA v GJW Judgment 1 FOSTER AJA: I agree with Grove J. 2 GROVE J: The appellant was tried at Taree District Court before Bell DCJ and a jury upon an indictment containing eight counts. He was convicted on six of these, respectively three counts of assault occasioning actual bodily harm, one count of common assault, one count of sexual intercourse with a child aged between ten and sixteen years (contrary to s66C(1) of the Crimes Act) and one count of sexual assault (contrary to s61I of the Crimes Act). The two counts lastmentioned (counts six and eight in the indictment) carried maximum prescribed penalties of eight and fourteen years imprisonment. On those counts the appellant was sentenced to a fixed term of three years imprisonment and to seven years imprisonment with a non parole period of five years and three months, both sentences commencing on 15 August 2001. Sentences ranging between one and six months which were imposed on the other counts upon which convictions were found were also directed to commence on that date. Those sentences are now expired. 3 Two grounds of appeal against conviction have been taken: "1. The trial miscarried due to the absence of new evidence. 2. The trial miscarried due to the negligence of the instructing solicitor." 4 The grounds are inter-related, the alleged negligence claimed to have resulted in the absence of evidence which ought to have been adduced for consideration by the jury. The hearing of the trial extended from 23 July 2001 until 15 August 2001. The limited ambit of challenge to conviction expressed in the grounds makes it unnecessary to refer to much of the considerable volume of testimony and it will suffice to make reference to that which is asserted to be pertinent to those grounds. 5 The appellant at all material times resided on a property at Old Bar on which were located various habitations including caravans and buildings in respect of some of which there was construction activity being undertaken. Both the complainant, whom I will refer to as RL, and the appellant gave evidence at trial. RL was born on 25 August 1982 and the appellant was born on 21 June 1953. They gave differing accounts as to their first encounter as well as many other matters but it was common ground that for a period RL resided at the Old Bar property. In order to enable the development of the appellant's argument, the Court was informed that another girl, whom I will refer to as HS, who was a friend of RL's also complained of sexual assaults by the appellant. Her complaints were the subject of a subsequent trial at which the appellant was acquitted on all counts. Reference was also sought to be made to evidence given at the trial in which HS was the complainant and to contrast it with evidence given or not given in the preceding trial. 6 In support of the grounds, affidavits were filed in this Court and the deponents were cross examined by the Crown Prosecutor. A précis of some of this evidence can be given. It is noted that the appellant claimed that his solicitor left it to him to obtain various witness statements and also, to give context to the argument, that the date of the offence alleged in the eighth count had been specified as 7 February 1999. On 4 February 1999 a child was born to the appellant's son Timothy and his partner and this circumstance was used on occasions as a pointer to establishing events on 7 February a few days later. 7 Harry Hepworth was in fact called and gave evidence at the trial. The "new" evidence locates a specific visit when he was told by Timothy that the appellant was not there (at the Old Bar property) and he is almost sure that this was Sunday 7 February because Timothy told him that the baby had been born on the previous Thursday. Mr Hepworth claimed that his location of the date had become certain because he was "immediately aware he (the appellant) hadn't told me about his grandson and I had seen him the previous two days". It is not immediately clear how the negative would provoke the claimed precision but that was the way that Mr Hepworth found his recollection fortified. 8 Colleen Lowe was not called at trial. She deposed that she recalled "dropping in" to see the appellant on a Sunday and being told by Timothy that the appellant was not there and also that he had become a father a few days beforehand. She stayed about an hour commencing at about 11.30 am to noon. 9 Susan Bunt had given evidence in the trial and she had testified to observations from which she had concluded that RL was residing in one of the caravans on the property. Her "new" evidence relates to a recollection of visiting the property at about 1 to 1.30 pm on the Sunday following the birth of Timothy's son in order to deliver some papers for her husband. She was told by Timothy that the appellant was not there. She did not alight from her car. She saw a woman whom she knew as Freda (Gibson) sitting on the steps of "her" house on the property. 10 I interpolate that none of Mr Hepworth, Ms Lowe nor Mrs Bunt suggested that they encountered each other on their respective visits on 7 February. 11 Timothy gave evidence at the trial. He had had a conference with counsel before giving evidence. He does not recall telling counsel of the visits by Mr Hepworth, Ms Lowe and Mrs Bunt and it was only after the trial that he became aware that RL had given evidence that she and the appellant were at the property (and the offence in count eight committed) between about 10 am and 4 pm on the particular day. 12 At the trial he had located the Sunday after the birth of his child and said that he was at the property working on the house when the appellant and RL arrived at "after lunch I think" (T.969) and left about fifteen to twenty minutes later. I shall return to other evidence about the time. Freda Gibson was at the property and helped him for a while and they had lunch together. In cross examination at trial he was expressly asked: "Q. On that day, the Sunday, do you have a recollection of anybody else coming to the property besides your father and (RL)? A. No." 13 The thrust of this material was to attack the credibility of the assertion by the complainant that she was on this day at that location for any length of time but was sexually assaulted by the appellant in the limited time available. It was contended that, had the jury had this new material before it, it would have doubted the complainant's testimony about the incident and, consequently, may have doubts about her credibility otherwise. 14 The second explicit subject of attack revolved around the failure of the solicitor to produce evidence concerning one Bourne and HS that they had left their occupation of any part of the property and moved onto the Old Bar caravan park on 26 March 1998. Part of the transcript of Bourne's evidence at the second trial shows the production of a receipt from that caravan park and his express concession concerning that date. The circumstances of departure from the appellant's property was such that it might not reasonably be suggested that the pair would ever have returned. The potential of evidence to this effect upon the issues at the first trial will be discussed later. 15 The appellant swore an affidavit and was cross examined. He recounted obtaining statements from witnesses. Although he complained of omissions by the solicitor personally he acknowledged that counsel visited the property, arranged the issue of various subpoenae during the trial and interviewed a number of witnesses just before the trial and during the course of it. The trial, as I have said, extended over several weeks. He referred to the second trial and evidence about HS and Bourne and their moving from the property to the Old Bar Caravan Park. He asserted a belief that material relevant to this contributed to his acquittal at the second trial. 16 It was expressly stated by counsel that reliance was placed only upon witnesses whose affidavits were read, that is to say, those whom I have identified. 17 The Crown called evidence from Mr Fryett, the appellant's former solicitor. There is no need to refer to all of it. He was instructed to act for the appellant after the appellant had already been committed for trial on some charges. After his retainer he prepared and made submissions including some relevant to s48E of the Justices Act to the presiding magistrate. Counsel, who later conducted the trial, was briefed to complete the committal proceedings. All of the statements collected by the appellant were briefed to counsel. Arrangements were made for counsel to interview all of these potential witnesses and either Mr Fryett or a clerk attended those interviews. 18 Mr Fryett was cross examined about file notes relative to those interviews and he produced some documents including computer generated material. It was not put to him that interviews by counsel did not occur: he was challenged about his own presence and contribution. There was contradiction between Mr Fryett and the appellant about how it came to pass that the latter set about obtaining statements but the conferences with counsel provided an appropriate circumstance for decision as to which witnesses to call and what evidence they could give which might be of advantage to the appellant. 19 As was observed by counsel for the Crown in this Court (who did not prosecute at trial), to all intents and purposes the control of the preparation for the trial and control of the trial itself was taken by defence counsel who, it was accepted, had considerable experience and expertise in the area of criminal practice. It may be inferred that he also had relevant experience in the evaluation of potential evidence and the tactical aspects of the defence of an accused at trial. No material from that counsel was sought to be proffered. 20 The considerable extent of cross examination in this Court is capable of deflecting attention from what must be the ultimate issue raised by the grounds of appeal, namely, assuming the asserted new material was put before the Court, has the appellant established relevant miscarriage. 21 The answer to that question can be determined by looking at the issues fought at trial, and the verdicts brought in upon them, and assessing whether the proposed "new" evidence may be of such significance as to require an affirmative answer to that question. It was not in dispute that the appropriate test may be expressed as enquiring whether there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it: Mickelberg v The Queen 1989 167 CLR 259; R v Fuller [2002] NSWCCA 121; R v Whyte [2003] NSWCCA 64. 22 As can be gathered from the précis of the "new" evidence the thrust of it was to fortify Timothy's assertion that the appellant was only at the property for such a limited period on 7 February that the complainant's description of events which gave rise to count eight was not credible. If that be the case, it was argued, a jury should also have doubted her other allegations. 23 None of the "new" evidence offers direct proof from the witnesses of the absence of the appellant at the intermittent times of their visits. All rely upon what they were told by Timothy and to the extent that any of them entered any part of the premises it needs to be borne in mind that the particular offence was alleged to have occurred in "Kristy's house" which was one of the variety of habitations on the property. 24 It has already been noted that Mrs Bunt said she saw Freda (Gibson) sitting on the step and it can further be noted that Ms Gibson's presence had been the subject of challenge by the Crown at trial. However, Ms Gibson and the complainant testified that neither saw each other and the "new" support for her presence would scarcely provide a fact critical to the jury's determination of guilt. 25 The reliance by the witnesses on Timothy's assertion of the appellant's absence requires attention to his credibility. I have already cited his contradictory testimony about visitations. There is a further undermining aspect. Mrs Bunt had also said that on the occasion of her calling there was another young man there. On the now asserted evidence this must have been one Shane Rutledge. Timothy conceded in cross examination in this Court that he had had a conversation about Shane Rutledge being present with the appellant prior to trial. The content of this conversation was such that, before trial, the appellant knew that Shane Rutledge had been at the premises on the particular day. Timothy admitted deliberately giving false evidence about Shane Rutledge's presence (and the deponents of the now presented affidavits). He claimed that Shane Rutledge had conveyed his own father's advice not to become involved and that since then the friendship between them had ceased. Mr Rutledge Snr is apparently a police officer. At the trial Timothy had said that he had not discussed the events of 7 February with the appellant (T998). 26 There is, however, a further consequence of the prevarication. In evidence in this Court Timothy claimed that the appellant RL had been at the property for about fifteen minutes in the vicinity of 10.30 to 11 am (contrast his evidence about lunch time at trial) and that Shane Rutledge followed their departure as they drove out the gates. This now stated time cannot be consistent with Mrs Bunt's evidence that she was at the property between 1 and 1.30 pm and saw the young man, who must have been Shane Rutledge, as well as Timothy. 27 It is not to the point that any decision to withhold information from counsel and to give misleading evidence was that of Timothy and not of the appellant in the light of the appellant's knowledge of the situation which had been discussed with him and his contentedness to let the trial proceed on that basis. That Timothy (if accepted) did not tell the appellant of the other short visits falls far short of fulfilling the necessary test. 28 The case was replete with claims and counter claims and contradictions between witnesses. There was a particular issue about whether the complainant was seeking to "blackmail" the appellant or whether he was seeking to persuade her to recant her allegations in return for payment. There was evidence from one Leighton Schmitzer who encountered the appellant in the surrounds of the Local Court. They had known each other from childhood. Conversation took place as to their reasons for presence there and the appellant told him that he was facing an allegation of rape and conceded that he "did do it". The appellant's version of the conversation was that he said "he didn't do it". There was evidence from a Ms Foster who stayed at the property in late 1998; that she came from the caravan in which she slept and entered the house on several mornings observing the appellant and RL in bed together. In a later conversation the appellant made an ambiguous reply to her enquiry about RL's allegation of rape. Janice King was a frequent visitor who had known the appellant for twenty years or more. The appellant described RL to her as his girlfriend with whom he was having a "relationship" but he had to be careful as she was fifteen years old. Ms King saw RL in the appellant's bedroom from time to time. After he was charged he asked her to give evidence for him and she said she would have to tell the truth. He responded that he would probably plead guilty to a charge of "having sex with a minor". 29 All of these issues were ventilated before the jury. They do not touch upon issues raised by the grounds of appeal except to demonstrate the comparative insignificance of evidence of short visitations at intermittent times on 7 February. 30 It is true, as counsel submitted, that there is a difference between the occurrence of sexual relations with and without consent but it was the unequivocal position of the appellant that no such relationship came into being. He had testified: "I never touched that girl at all." 31 In determining whether there exists a significant possibility of acquittal if "new" evidence was before the jury, assessment should be made in the context of the trial. It is of critical significance that the learned trial judge directed the jury that conviction could not be returned on any count unless they were satisfied beyond reasonable doubt of the truth of what the complainant had said about each of the offences. Obviously corroborating evidence from witnesses concerning the sharing of a bed and the like is not germane to the issue of consent, or the issue of the knowledge of the absence of consent to intercourse on the part of the appellant, but in the light of the appellant's denial of any sexual relationship whatsoever, a preference by the jury for the credibility of the complainant's evidence to the necessary standard is readily understandable. 32 It may well be that the jury were unable to resolve contradictions concerning the comings and goings of numerous persons who passed in and out of the property yet at the same time be abundantly satisfied of the proof of guilt by other evidence including the necessary acceptance of the complainant. The asserted "new" evidence supplies further material concerning comings and goings but such evidence could only be peripheral and any impact it may have had does not rise above the quality of speculation, fails the applicable test and the absence of this evidence led to no miscarriage. 33 A separate argument was advanced concerning the documentation (produced at the trial in which HS was the complainant) which is convincing, as Bourne admitted in those proceedings, that neither he nor HS, to whom he had since been wed, were at the property at the time they claimed to see certain mistreatment of RL by the appellant. No doubt such evidence, if produced, could have been powerfully erosive of any credit of these witnesses however, as was pointed out by the Crown Prosecutor, their evidence was relevant only to the "relationship" between RL and the appellant in the general sense. Their evidence was left to the jury on that basis. Their credibility, even if totally destroyed, did not have a relevant nexus with the complainant's evidence concerning the commission of the offences. 34 The material produced since the first trial and adduced at the second trial which is contradictory of those witnesses does not give rise to a significant possibility that that evidence would have led to an acquittal on the counts charged. In that circumstance it is pointless to investigate whether the legal representatives were at fault in not obtaining the material for the first trial. 35 In my view, neither ground advanced on behalf of the appellant succeeds. 36 Application was made for leave to appeal against sentence and counsel expressly stated that there was no appeal against sentence "per se". That concession was appropriate as it can be noted that the appellant's record includes sentences of minimum and fixed terms of two years and five months imposed in 1991 for offences of threatening to inflict actual bodily harm with intent to have sexual intercourse and sexual intercourse without consent. The application was made to accommodate the eventuality that the appeal was partially successful and acquittal was substituted for conviction on some counts only. 37 I would dismiss the appeal and refuse leave to appeal against sentence. 38 DOWD J: I have seen the judgment of Grove J in draft form. I agree with the proposed orders and his reasons therefor. ********** Last Modified: 10/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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