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) And "Q. Now just going back to the Thomas Park incident in mid 1999, how long after that incident was it you sent a text message or messages to the accused which resulted in you going to his house on the first occasion that you say you were sexually abused? A. From what I remember it wasn't that long. Q. A matter of weeks or months? A. As far as I remember it was a matter of weeks. Q. Certainly in 1999? A. Well as I said, I'm not sure, as far as I can remember. I've tried to forget it. Q. All right, you've been trying to forget it, but in any event one thing is completely clear in your mind, isn't it, that you weren't sexually abused when you were doing your School Certificate, that year, correct? A. Yes, as far as I remember. I have tried to forget it. Q. In fact it was in the year 2000 that you met a girl, wasn't it-- A. Yes. Q. --in about May, correct? A. Correct. Q, And so there were two distinctive features about the year 2000, weren't there, there was the fact it was your School Certificate year and you met a girl in the year 2000 in May? A. Yes. Q. And you can search in your memory and certainly, I suggest, say that it wasn't in that year that the accused sexually abused you, correct? A. Correct. Q. Now I want to put to you that at no time did he sexually abuse you, do you understand? I'm putting to you that on no occasion did he deal with you in an improper or sexual manner. A. It's not true. Q. Didn't happen. A. That's not true. Q. You say it did happen? A. It did. Q. And it happened between the Thomas Park incident you say – and when I say 'it', the three incidents, correct, happened between the Thomas Park incident and the beginning of the year 2000, correct? A. As far as I remember, yes." (T51-52) And: "Q. Now if I can go to the third time, as I understand it that's the occasion when you say there was an exchange of SMS messages between you and the accused concerning the men's magazine? A. Yes. Q. Where did you get the magazine from? A. Just the newsagency. Q. That was a magazine called Men's Health was it? A. Yes. Q. You never sent any message on your mobile phone to the accused about that magazine did you? A. I did. Q. He never sent you a message saying 'You'll have to show it to me'? A. He did. Q. You never sent him a message on your mobile phone saying 'I can show it to you now', did you? A. I did. Q. What phone did you use? A. The 3210. Q. To send the messages? I beg your pardon? A. A 3210. Q. Did you not use the bright orange Alcatel? A. No. Q. At the time of the incident in Thomas Park you had the bright orange Alcatel didn't you? A. No. Q. What phone do you say you had then? A. The 3210. Q. You're not telling the jury the truth I suggest about, what do you say about that suggestion of mine? A. I am." (T72) 18 M had possession of an orange Alcatel mobile phone prior to having the Nokia phone. In relation to text message by use of the former he had said in chief: "Q. The text messages that you were receiving and sending, you said you had the 32/10 Nokia mobile phone? A. Yes. Q. Was that the first phone, mobile phone you ever had? A. No it wasn't. Q. How many phones before that did you have? A. I just had the one. Q. And what was that, what type of phone was it? A. It was an Alcatel. Q. Did you send or receive any text messages on that phone to anyone? A. Not many, because I didn't really know how to work it, it was sort of like a brick, it was – I really only knew how to work out a call and that was about it." (T17) 19 M was cross examined about a statement which he had made to police. The statement itself was not put into evidence. It was put to him and he accepted that therein there was reference to the Thomas Park incident and the following was put and answered: "Q. I am not interested in any other parts. Did you say in that document these words. Please follow me through, I will read the yellow highlighted parts. 'There was an incident in Thomas Park'. Correct? A. Yes. Q. 'I can't remember the exact date but it was about 10 o'clock on a weeknight and my parents had gone bed (sic) early and I had just got my first mobile, it was a bright orange Alcatel and I messaged (the appellant) he was older than me'? A. Yes." (T82) 20 However, further cross examined, M said: "Q. And when you said 'I had just got my first mobile it was a bright orange Alcatel and I messaged (the appellant)' you meant by that that you had got your first mobile phone, a bright orange Alcatel and you messaged the accused, correct? A. That's what I wrote. Q. Was that true? A. At the time that's what I thought it was. Q. No is that true? A. Of what actually happened, no. Q. I got my first mobile, it was a bright orange Alcatel and I messaged (the appellant) was that true? A. No. Q. It's not true? A. No. Q. So you didn't tell the truth there? A. In this statement when I read it – wrote it out I had to write it out over night. Q. You thought about what you were doing, correct? A. I thought to the best of my ability. … Q. You don't suggest your memory now is better than it was then when you wrote that out in 2004 do you? A. I remember the events better now than I did then. Q. Sir, you're not telling the jury the truth about that? A. Sorry, I didn't hear you. Q. You are not telling the jury the truth about that? A. I am telling the jury the truth. … Q. The phone you had in 1999 was the bright orange Alcatel wasn't it? A. No. Q. You're not telling the jury the truth about that are you? A. I am telling the truth. Q. The Alcatel was your telephone that you had immediately before you acquired your Nokia 3210, correct? A. Yes. Q. And what you told Pastor Kelly and the detective about having just got your first mobile being a bright orange Alcatel was true wasn't it? A. At the time I thought it was. Q. It was in fact true wasn't it? A. No. At the time I thought it was true. Q. And when you saw Pastor Bryan singing at the Christmas pageant in December 1999 you then had your bright orange Alcatel mobile phone didn't you? A. Sorry, you turned away from the microphone, I couldn't hear anything. Q. I'm sorry, I thought I spoke loud enough for it to carry on, but I will repeat it. When you say you saw Pastor Bryan at the Christmas pageant in 1999, December 1999, you then possessed your bright orange Alcatel didn't you? A. No. Q. You're not telling the truth about that are you? A. I am. Q. You didn't get your Nokia 3210 until the 9th of June 2000 did you? A. I had my Alcatel for like 12 months. Q. No. concentrate on the point of my question please. You didn't get your Nokia 3210 until 9 June in the year 2000 did you? A. I don't know, I don't remember the dates of when I got things." (T82-86) 21 There was independent evidence from Ms Frankham an employee of the telephone service provider that the Nokia mobile phone was connected on 9 June 2000 and disconnected on 28 June 2002. The contract was entered into by M's mother but the phone was used by M. Ms Frankham produced extensive detailed records of the use of that phone and charges made for various services. 22 The extracts from the testimony by M above set out show fluctuations in his degree of confidence about time frame ranging from certainty in his own mind to doubt. The Crown case on the issue of time frame was essentially simple. If it was correct that contact was made between M and the appellant by means of the Nokia telephone at the time of the offences then the offences must have occurred during the span of time that Ms Frankham specified as when the service was operative. There was no challenge to Ms Frankham's evidence. 23 The records show that between 5 July 2000 and 15 March 2001 there were 476 text messages sent from M's Nokia phone to a mobile phone shown to be operated by the appellant. During the same period 302 text messages were sent in the reverse direction, that is from the appellant's phone to M's Nokia. 24 It is of significance to note that in an electronically recorded interview with police on 30 May 2005 the appellant was asked these questions and gave these responses: "Q46 Are you familiar with a (M)? A. I know of him, yes. Q47 Can you tell me how well you know him? A. I don't know him well. … Q54 Have you ever texted (M)? A. No. Q55 Has he ever texted you? A. Not that I'm aware of, no." 25 It is of further significance that a deliberate decision was made, no doubt bearing in mind the knowledge of what M's recollection apparently was, to withhold from him the material which was ultimately produced by Ms Frankham. Any suggestion therefore that he was given some assistance or coaching in respect of his evidence was avoided. 26 Counsel for the appellant submitted that there was a critical gap in the Crown case in the absence of evidence of a similar nature to the records concerning the Nokia in respect of the Alcatel phone. There was therefore no evidence, one way or another, independent of the testimony of M recited above, as to whether the Alcatel phone had ever been used for text messages. 27 In the course of summing up his Honour directed the jury: "If you are not satisfied as to his (M) reliability as to which mobile phone he was using at the time of the three incidents alleged you must find him (the appellant) not guilty. I remind you in this regard that the Crown has not produced any records in relation to the use of the bright orange Alcatel mobile phone, nor as to the time he (M) had it in his possession." 28 The references to authorities concerning when time may become of the essence in an indictment rather tend to deflect attention from the real issue in this case. His Honour's direction to the jury earlier set out clearly made time of the essence and the essential question was whether it was unreasonable for the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the offences took place in the span of time specified in the indictment. 29 I do not consider it was unreasonable of the jury to accept the evidence of M that the relevant contact with the appellant was made by use of the Nokia phone. There were a total of 778 text messages exchanged between that mobile phone and that operated by the appellant. Nor was it unreasonable to conclude that M was mistaken about the time of the events but accurate about the appellant's actions. Inter alia, his Honour directed the jury "if you find that (M) is not reliable as to when he had that Nokia 3210 mobile phone and you find that he was (not) in fact using it in the time frame of the alleged sexual abuse, then the proper verdict would be one of not guilty." I have added the word "not" which does not appear in the transcript but the context makes it obvious that his Honour's direction was in terms favourable to the case presented on behalf of the appellant. No complaint was made that there had been any relevant mis-statement and the absence of the negative word is a likely transcription error. 30 Particularly in dealing with delay in complaint, his Honour on more than one occasion directed that it would be dangerous to convict on M's evidence alone unless the jury were convinced of its truth and accuracy. Clearly in the way the trial was conducted, the jury would have understood that the Crown was not relying upon accuracy as to M's evidence concerning the frame of time and his Honour was referring to the descriptions of the offences by M. 31 No complaint has been made of the adequacy of his Honour's directions which included caution on how the jury could approach the Crown allegations that the appellant had told lies. In addition to the answers to police which have been above recited, the Crown relied upon the untruthfulness of a statement signed by the appellant timed and dated 18:15 on 1 December 2004 on the letterhead of the Blue Mountains City Church which read: "I categorically deny ever having abused (M) and deny having any relationship with (M) other than cordially in the course of normal Church functions, meetings and worship services. I have never counselled (M) either privately or at the Church premises and he has never approached me directly or asked me to do so at any time." 32 As set out in paragraph iii of the filed grounds of appeal, there were a number of witnesses called testifying to the appellant's good character. He had no prior convictions. No written or oral submission was addressed to this aspect. His Honour gave the jury appropriate directions on the use they might make of such evidence in favour of the appellant, both as to the improbability of offending and the credibility of his evidence denying the offences. 33 As is requisite when a ground such as the present is advanced, it is necessary in this Court to make an assessment of the evidence which was available to the jury. I am unpersuaded that the jury ought to have concluded that the offences occurred outside the span of time in the indictment. Once it was found that M's evidence that at all relevant times he was using the Nokia phone it would be entirely reasonable to find in accordance with the dates specified in the indictment. There is fortification for such a finding in the multitude of texts exchanged between the Nokia and the appellant's phone, many of which were made, the representatives of the telephone service providers were able to testify, late at night. The reasonableness of the jury's conclusion is further confirmed, if they chose and as was open to them in accordance with the appropriate directions given, to give account to the untruths relied upon by the Crown as manifesting a consciousness of guilt in the appellant. 34 I would dismiss the appeal. 35 HULME J: I agree with Grove J. 36 SIMPSON J: I agree with Grove J. ********** 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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