REGINA v SY [2004] NSWCCA 297

New South Wales Court of Criminal Appeal

CITATION : REGINA v SY [2004] NSWCCA 297 HEARING DATE(S) : 27 February 2004 JUDGMENT DATE : 30 August 2004

JUDGMENT OF : Ipp JA at 1; Simpson J at 1; Adams J at 1 DECISION : Appeal upheld, verdict of the jury set aside and a verdict of acquittal entered

CATCHWORDS : Conviction appeal - trial judge reqires Crown to call evidence - whether miscarriage - effect of delay - inadequate Longman direction LEGISLATION CITED : Evidence Act 1995 - s135 Criminal Appeal Rules - rule 4 R v Johnston 45 NSWLR at 371 CASES CITED : R v Longman (1989) 168 CLR 79 Richardson v The Queen (1974) 131 CLR 116 Whitehorn (1983) 152 CLR 657 Regina PARTIES : v SY FILE NUMBER(S) : CCA 60539/00 COUNSEL : Dr D Arnott (Crown) Mr H Ginges (Solicitor) (Applicant) SOLICITORS : S Kavanagh (Crown) Mr H Ginges (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 99/61/0068 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60539/00

IPP JA SIMPSON J ADAMS J

MONDAY 30 AUGUST 2004 REGINA v S Y Judgment 1 THE COURT: The appellant was convicted following his trial in the District Court before Christie DCJ and a jury on 22 June 2000 of five counts of sexual intercourse with a person under the age of sixteen years, one count of sexual intercourse without consent and one count of indecent assault, in each case the complainant being the appellant's niece. Concurrent sentences of imprisonment were imposed, the lengthiest of which was four years with a non-parole period of two years. The appellant appeals from his convictions. 2 When this appeal came on for hearing on 27 February 2004, the Court determined that the appeal should be upheld, the verdict of the jury set aside and a verdict of acquittal entered. These are the reasons for that determination. 3 The complainant's parents operated a fish and chip shop. On Friday and Saturday nights business was particularly busy and on some of those nights the appellant and his wife (Clare, the complainant's paternal aunt) helped by having the complainant and her younger sister and brother to stay at their house. The complainant's sister was four years younger than she was, whilst her brother was nearly nine years younger. The sexual misconduct alleged occurred from sometime after 8 June 1990 (the complainant's tenth birthday) until 1992 when the appellant went to Lebanon and, it was alleged, resumed in 1995 when he returned to Australia. 4 In November 1997, the complainant went to Lebanon with her mother for a holiday. They stayed with relatives, including her maternal uncle. Three to four weeks after arriving, the complainant told her uncle what she alleged the appellant had been doing to her. Shortly after, when both the complainant and her mother were in his car, the complainant's uncle said, "Your daughter has something to tell you". The complainant then told her mother that the appellant had been touching her since she was ten years old and explained what happened. In cross-examination she said that she told her mother that, "A few years back [the appellant] had been touching me and used to put his tongue and fingers into my vagina." The complainant's mother's recollection of what her daughter had told her was that the appellant "used to touch her, touch her breasts and … her vagina and he used to kiss her all over the face", together with details about where this conduct occurred. The complainant's mother was so shocked and upset that, as she put it, "I couldn't face her for about two days, I couldn't face her, I couldn't talk to her." 5 On 23 January 1998 the complainant and her mother attended the surgery of a local general practitioner who had been the family doctor since 1984. Dr Zambo said that the complainant and her mother "brought up the possibility of a sexual molestation having occurred sometime around about the age of twelve to thirteen." The doctor added, "Those were the words that I have recorded that they have spoken to me." He said that no specific allegations had been made and he suggested that they might like to explore options by contacting the Sexual Assault Group in Dubbo. There was no indication, Dr Zambo said, that there had been any recent inappropriate sexual conduct. He said that the possibility concerned only what had happened when the complainant was twelve to thirteen and there was no suggestion that anything had occurred after that age. It was for this reason that he did not consider any medical investigation or examination was warranted. 6 The complainant's mother said that over the weeks or so following the consultation with Dr Zambo, there was a good deal of family disharmony. The complainant herself described a meeting at her house, which included her parents and a number of her relatives including her aunt, the appellant's wife, in which "everyone was putting pressure on me and they were all yelling at me." The complainant said that she started to cry in response to questions about what happened, and that she told them that the appellant had been touching her when she was young and that he had put his fingers and his tongue into her vagina. She said, "As a result… they started yelling and…my father couldn't take it any more…and he put his foot straight through" a coffee table in the middle of the room. This was obviously a very fraught occasion and must have been very distressing for the complainant as well as, of course, for her family. 7 The complainant's mother gave evidence to the effect that she had asked the complainant why she had delayed in disclosing the sexual misconduct of which she complained and that the complainant told her that she was very frightened of saying anything because she feared that this would cause considerable hostility from the family towards her. The Crown prosecutor asked the complainant's mother whether at some stage she spoke on the telephone with her sister-in-law, Clare. At this point, Mr Walsh, for the appellant, objected to further questions on the ground of relevance. It appeared that it was expected that the witness would give evidence of a meeting at a local restaurant involving the appellant, the complainant, the aunt and the complainant's mother. Following discussions between the Crown prosecutor and Mr Walsh, the former indicated that he would not lead evidence of the confrontation. Without objection, the prosecutor then elicited from the complainant's mother that the disclosures made by the complainant "created some family problems" and as a result of them she, the complainant, returned to the Lebanon with her father. The witness was then cross-examined by Mr Walsh, eliciting evidence, amongst other things, about the apparently normal and affectionate behaviour shown by the complainant to the appellant when they were farewelled on their trip to the Lebanon. 8 When the witness completed her evidence, the trial judge stood her down but did not excuse her. The jury then retired at the direction of the judge who said to counsel – "I am the judge presiding at this trial and during the course of the last witness's evidence I acquainted myself with the contents of a statement of…the last witness, of 7 October 1998. Why the Crown and the accused's representatives had reached an agreement about the contents of paragraph 11 remains a complete mystery to me and why no evidence was led concerning the contents of paragraph 14 remains a complete mystery to me. I simply put the protagonists on notice that in my view the Crown will be duty bound to put matters contained in paragraphs 11 and 14 if the accused and/or his wife give any evidence contrary to the contents of those two paragraphs. …And if the accused were to give evidence for instance of a complete denial of these matters, it would be my view that it will be the Crown's duty – obvious duty – that the contents of paragraphs eleven and fourteen must be put to the accused. And if it wasn't I've miscarried this trial sight unseen. Crown Prosecutor: Your Honour, in view of your Honour's remarks -- HIS HONOUR: I describe it as an outburst more than a remark, the only word I wish to amend is not miscarry the trial, the word I intended to use was abort." 9 It will be seen that not only did the trial judge, in effect, direct the prosecutor to lead evidence contrary to an agreement with the defence that he would not do so but indicated that if he did not, in effect, renege on the agreement, the trial would be aborted. It is inescapable that any observer of this unfortunate interlude would have drawn the regrettable conclusion that the trial judge had adopted the role of supervising the conduct of the prosecution case and, indeed, would not allow the trial to proceed unless it was conducted by the prosecutor in the manner his Honour indicated. In these circumstances, it is not surprising that the Crown prosecutor informed the judge that he now proposed to adduce the evidence of what he described as "the episode at the Grapevine Café", saying that he understood that Mr Walsh, the solicitor appearing for the appellant, did not (now) object to that course. His Honour then observed – "I never understood how he could have in the first place, but I glean from what fell from both of you that there were was some sort of agreement that it would not be led. The basis of that agreement remains an absolute forensic mystery to me." 10 The critical part of paragraph 11 of the witness' statement was as follows – "…We went to the Grapevine Café where we met up and the first thing that [the appellant] said to [the complainant] was, 'I always trusted you, whatever you say you always say the truth'. He also said, 'I'll never remember, you know, because I was on drugs.' This was all said before [the complainant] even told him what had happened. [The complainant] told [him] what he had done to her and he said, 'I used to ask your auntie, [the complainant] hate me. Why, but now I know why.'" 11 It is easy to see a basis, patent on the statement itself, which might reasonably have led the prosecutor not to have sought to adduce the evidence, quite apart from any other reason that he might have had. Mr Walsh corrected the understanding of the Crown prosecutor by immediately, and properly, stating that he objected to the material in paragraph 11 being adduced, upon the basis that its prejudicial effect outweighed its probative value, clearly enough a reference to s135 of the Evidence Act 1995 although, of course, the question is not whether the evidence is merely prejudicial but whether it is "unfairly prejudicial": s135(a). Mr Walsh identified the disclosure of drug taking as being the unfairly prejudicial matter. Mr Walsh indicated that he did not object to the Crown adducing evidence of the matter in paragraph 14. The learned trial judge in effect ruled that the evidence was admissible. 12 The Crown prosecutor informed his Honour that he had inadvertently failed to lead the material in paragraph 14 of the statement from the witness and proposed to adduce it. This was not the subject of an objection. 13 Two observations need to be made about the unsought peremptory intervention by the learned trial judge. First, the statement was not before him as evidence in any respect. It is the usual practice that committal papers, often somewhat incomplete, will form part of the court file. These papers form part of the records of the court, following committal, and there is no reason in principle why a judge ought not to peruse them so that he or she can be informed about the likely scope of the trial and potential evidentiary or other issues that might arise. However, this material cannot properly give rise to any direction or ruling unless it is tendered on the application of one or other of the parties for the purpose of seeking such a determination. In this case, no such determination had been sought and no tender had been attempted. The judge did not need to determine the objection as the parties had, as the record clearly shows and as his Honour acknowledged, reached an agreement about the scope of the Crown case. On the face of it, such an agreement was not improper or, indeed, undesirable. Arrangements of this kind are often made and facilitate the expeditious and appropriate conduct of a trial. A trial judge will not have available the same information that is necessarily in the briefs of counsel and it will usually be unwise, if not improper, for a judge to attempt to enquire into such matters unless an occasion for doing so arises by virtue either of an application or, in some cases, where some problem requiring exploration or decision has become patent. 14 The second matter concerns the appropriate roles of counsel and the trial judge. It is imperative that the trial judge should not act in the role of prosecutor or appear to do so. The reasons for this are obvious and rest upon fundamental notions of the role of the courts, the independence of the judiciary and the rights of the citizen. As Dawson J pointed out in Whitehorn (1983) 152 CLR 657 at 675; 9 A Crim R 107 at 119 – "The means by which a trial judge may ensure the propriety and fairness of the trial do not, however, extend to the assumption of responsibilities which are properly those of the parties. The decision whether to call or not to call witnesses in a criminal trial is a decision for the parties. If the Crown fails to call a witness whom the trial judge considers ought to be called, no doubt he may invite the Crown to consider whether the witness ought to be called and, if the invitation is declined and the judge remains of the same view, he may comment upon the failure of the Crown to call the witness. But if the trial judge were to do more, he would place himself in danger of usurping the function of the prosecutor." 15 The decision as to what evidence to adduce from a witness who is called is ordinarily in the same category as the decision whether to call the witness at all. The judge might quite properly bring to the prosecutor's attention some matter which appears to have been overlooked but even this must be done with considerable care and, unless it is completely uncontroversial, in the absence of the jury. In Richardson v The Queen (1974) 131 CLR 116, the Court said (at 119) – "Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few. What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness with the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution … In the context the word 'discretion' signifies no more than that the prosecutor is called upon to make a personal judgment bearing in mind the responsibilities which we have already mentioned." 16 The passage from the trial which we have set out above shows that, so far from the learned trial judge bringing an omission that might have been overlooked to the attention of the prosecutor, he emphatically expressed a view as to the duty of the prosecutor in the circumstances, a duty which must necessarily have rested upon supposition, in respect of a matter which he was aware was the subject of specific agreement between prosecution and defence and which he induced the prosecutor to repudiate. 17 In our view, the interference by the trial judge in the conduct of the prosecution case constituted such a substantial departure from the proper conduct of the trial as to have caused it to miscarry. 18 In due course the witness was recalled and gave evidence to the effect contained in the statement and was further cross-examined. 19 It remains to point out that the Crown case depended entirely upon the evidence of the complainant, except in so far as the equivocal statements of the appellant made at the Grapevine Café might be regarded as giving some support to it. The appellant gave evidence denying all the allegations of sexual misconduct and also denying that he had said words to the effect alleged at the Grapevine Café. The appellant's wife gave evidence supporting his account of the conversation at the café and also other parts of his evidence that, if true, rendered it unlikely that the misconduct occurred. His daughter also gave evidence that was supportive of the appellant in several significant respects. 20 Counts 1 to 5 of the indictment alleged offences occurring between 8 June 1990 and 8 June 1991, count 6 alleged an offence occurring between 8 June 1991 and 25 December 1991 whilst count 7 alleged an offence occurring between 1 January 1995 and 8 June 1995. The first complaint made by the complainant was to her mother in 1997. Although the general nature of the allegations was disclosed to the appellant in the following weeks, the complainant did not make a statement to the police until September 1998. On 13 November 1998 the appellant was arrested and it was sometime after that, when the complainant's statement was served in accordance with the usual pre-committal proceedings, that he became aware of the precise nature, times and places of the alleged misconduct. As is obvious from the range of dates in the charges, the Crown was unable to particularise the dates of the alleged offences except as having occurred within a range of months, the shortest span being eight weeks (on the first count) and the longest being twelve months (on the fourth and fifth counts). In these circumstances, a direction in accordance with R v Longman (1989) 168 CLR 79 was necessary. Since that decision was given it has been the subject of further elaboration and application in a significant number of judgments, both of the High Court of Australia and of this Court. It is unnecessary to refer, for present purposes, to those further discussions, except for the judgment of the Chief Justice in R v Johnston (1998) 45 NSWLR 362, to which we will come shortly. 21 In R v Longman (1989) 168 CLR 79, Brennan, Dawson and Toohey JJ said (at 91) – "But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them...That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales (1989) 168 CLR 23) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately t ested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice." (Our underlining.) McHugh J called attention to the particular problems arising out of childhood memories being recounted many years after the recollected events and added (at 108) – "To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony."