Bryan v R [2007] NSWCCA 351

New South Wales Court of Criminal Appeal

CITATION: Bryan v R [2007] NSWCCA 351

HEARING DATE(S): 4 December 2007

JUDGMENT DATE: 14 December 2007

JUDGMENT OF: Grove J at 1; Hulme J at 35; Simpson J at 36

DECISION: Appeal against conviction dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sexual offences on male aged under 16 - Trial - Anticipation that complainant will misstate time frame of alleged offences - Prosecution seeks to prove this independently of his evidence - Judge directs jury in terms that time is of the essence - Jury verdicts of guilty not unreasonable on the whole of the evidence

PARTIES: Gregory Mark BRYAN (Appellant) REGINA (Respondent)

FILE NUMBER(S): CCA 2007/5192

COUNSEL: P Byrne SC (Appellant) N Adams (Respondent/Crown)

SOLICITORS: K Papanicolaou (Appellant) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/2034

LOWER COURT JUDICIAL OFFICER: O'Reilly ADCJ

LOWER COURT DATE OF DECISION: 3 November 2006

IN THE COURT OF CRIMINAL APPEAL CCA 2007/5192

GROVE J HULME J SIMPSON J

14 December 2007 Gregory Mark BRYAN v R Judgment 1 GROVE J: This is an appeal against conviction following a trial before O'Reilly ADCJ and a jury at Penrith District Court. The indictment charged two counts of sexual intercourse with a child aged between ten and sixteen years, two counts of homosexual intercourse with a male aged between ten and eighteen years and two counts of aggravated indecent assault. The appellant was found guilty on all counts and was sentenced to various terms of imprisonment. There is no application for leave to appeal against sentence. 2 The complainant, whom I will refer to from time to time as M, was a school pupil. The appellant was a youth pastor at the Blue Mountains City Church. They first encountered each other when M was delivering pamphlets in the area where the appellant and he then lived. M would visit on occasions and they would talk and sometimes the appellant provided him with something to drink. These encounters were entirely innocent. M and his family moved from the area and the contact diminished but subsequently the appellant also moved and came to occupy a house about five minutes walk from where M resided. Considerable contact between them was made by text messaging on mobile telephones. M was involved in an incident referred to at trial as the Thomas Park incident. He had apparently been sexually interfered with by a group of young males. What was involved in the incident was not disclosed to the jury but he gave evidence that he told the appellant about it in a text message. The appellant responded that he could "come over" and M went to his home, dressed in his pyjamas. Whilst M was at the house the offences charged in counts 1 and 5 took place. 3 A couple of weeks later they were again exchanging text messages and M went to the house again. What was charged in counts 2 and 3 occurred that night. 4 After a further couple of weeks more messages were being exchanged and M advised that he was reading a magazine entitled "Men's Health" and he had read something funny. The appellant requested him to show him the magazine and M again went to the house where the incidents charged as counts 4 and 6 occurred. 5 It is not necessary for present purposes to detail the conduct of the appellant which constituted the charges. It suffices to note that it included homosexual intercourse, digital anal penetration, masturbation of M and what was described as smacking, licking and biting his bottom. 6 The ground of appeal is that the verdict of the jury on each count is unreasonable having regard to the evidence. The notice of grounds of appeal filed by the appellant elaborates this ground: "The verdicts are unreasonable particularly having regard to the following features of the case: i. The terms of each of the six counts in the indictment presented against the appellant alleged that he had committed a sexual offence against the complainant in the period between 9 June 2000 and 28 February 2001. The evidence of the complainant expressly denies that any offences occurred in this time period and there is no reliable evidence of any kind that any offences did occur in that time period. ii. It was conceded by the Crown and the jury were directed in terms that the direct evidence available in the prosecution case depended entirely on the evidence of the complainant, see summing up at 9.3, 11 September 2006. There are such significant inconsistencies in the version of events given by the complainant that his evidence alone is insufficient to prove beyond reasonable doubt that the appellant is guilty of any of the offences specified in the six counts of the indictment. iii. The appellant established through his own evidence and the evidence of the witnesses called in his case that he is a person of good character. There was no direct evidence called in the prosecution case or anything in the cross examination of the appellant, or in the cross examination of any of the witnesses called on his behalf, which disproved the appellant's account denying that he had committed the offences charged against him." 7 As can be deduced from what appears above, it was the Crown case that the offences occurred over a span of approximately six weeks. In cross examination M agreed that afterwards there was some continued text message exchange but the subject of the incidents was not raised and thereafter he did not have "much to do" with the appellant. 8 The argument on appeal centred upon the inconsistency between the evidence of M as to the times at which the offences took place and the span of time alleged in the indictment. Mr Byrne SC (who did not appear at trial) for the appellant, supplied a list of authorities concerning occasions when the dates in an indictment may or may not become a material matter, but at the trial in this instance time was expressly made of the essence and the learned trial judge directed the jury in these terms: "Unless you are satisfied beyond reasonable doubt that anything that occurred occurred within that period, 9 June 2000 and 28 February 2001, the appropriate verdict is not guilty." 9 The dates referred to were those specified in each of the counts of the indictment presented at trial. The later date was M's sixteenth birthday. 10 It was the Crown case that M had a faulty memory in relation to the dates of the offences and it was intended to prove the correct time frame independently of his testimony. In his opening address the Crown Prosecutor said: "CROWN PROSECUTOR: …The charges on the indictment are from 9 June 2000 to 28 February 2001, that's when the Crown case says these things happened. I expect that (M) will tell you that he thinks that they happened in 1999 and it's the Crown case that he is mistaken about that date, that it happened in 1999." 11 The Crown Prosecutor then articulated how the Crown proposed to establish the time frame. I shall refer to the evidence as it was called in due course. 12 The appellant had previously been arraigned and presented for trial upon an indictment which charged that the offences occurred between June 1999 and June 2000, those dates being compatible with M's recollection. The trial aborted and no verdict was taken. Before the current trial leave was sought to amend the indictment by substitution of the dates which I have indicated and the application was granted. The application to amend was expressly unopposed by counsel for the appellant at trial. 13 As the Crown Prosecutor anticipated, M located the offences in 1999. In examination in chief and cross examination he testified about a number of "markers" which he used to establish the year 1999 in his mind. In that year he was in Year 9 at Blaxland High School. It was in the middle of that year, according to his recall, that the Thomas Park incident occurred and the offences by the appellant took place soon after it. In 2000 he was studying for his School Certificate and he said that the sexual assaults did not occur during that year. Also, in about May 2000 he met and formed a relationship with a young girl and there were no sexual assaults against him in that year. 14 Senior Counsel for the appellant specifically drew this Court's attention to some passages in the testimony of M. They were (in chief): "Q. And you finished high school in year 10, which was in – is that right – in 1999? A. No, year 10 was in year 2000. Q. Sorry, in 2000. The night that you went over to Pastor Bryan's place you told us that it was a weeknight and you told us that you were wearing flannelette pyjamas? A. Yes, that's correct. Q. Are you able to tell us anything that would tell us what the date was or when it happened? A. No, I don't remember. Q. You have said that you were still at Blaxland High School, are you able to say whether it was towards the end of your time in Blaxland High School or was it in the early years when you were in year seven or eight? A. It was – I definitely know it wasn't while I was doing my school certificate which was in 2000, that time I remember." 15 This evidence was followed immediately by this testimony: "Q. You have told us that on this particular night you were sending and receiving text messages? A. Yes. Q. Did you receive them on a mobile telephone? A. I did. Q. Whose phone was that? A. It was my phone but it was in my mum's phone. Q. What type of phone was it? A. It was a Nokia 32/10." (T16) 16 I shall return to detail the significance of the use of the particular Nokia mobile phone. Further evidence in chief was: "Q. These three incidents that you've told us about, you've told us that you turned sixteen on 28 February 2001? A. Yes. Q. Did these three incidents happen before or after your sixteenth birthday? A. Before. Q. Can you say how long before your sixteenth birthday they happened? A. Over a year cause it didn't happen while I was in year 10 because I had my School Certificate." (T31) 17 And in cross examination: "Q. Now what I want to suggest to you is that you never went to the house, as you claimed, when just the accused was alone there, did you? A. I did. Q. Was that in 1999? A. I'm not sure when the dates were, I can't remember. Q. Well you were going to his home for the Bible Study courses in 1999, weren't you? A. As far as I remember, yes. Q. And he certainly didn't do anything to you physically or sexually in the year 2000 did he? A. Not that I know of because it was my School Certificate year. Q. And you've always remembered, haven't you, that he didn't touch you in any way during that year of 2000, correct? A. Correct." (T44)