REGINA v POOLE [2006] NSWCCA 93

New South Wales Court of Criminal Appeal

CITATION: REGINA v POOLE [2006] NSWCCA 93

HEARING DATE(S): 14 November 2005

JUDGMENT DATE: 3 April 2006

JUDGMENT OF: Simpson J at 1; Adams J at 2; Hoeben J at 54

DECISION: Appeal allowed; New trial ordered in respect of all convictions.

CATCHWORDS: Appeal against conviction - fresh evidence - tests of admissibility - significance - Longman direction - necessary elements - change in Crown case during cross-examination of appellant - whether should have been permitted - dates of alleged offences - whether essence of charges - whether departure from particulars

LEGISLATION CITED: Crimes Act 1900 s 78K

R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 CASES CITED: R v Johnston (1999) 45 NSWLR 362 R v NZ [2005] NSWCCA 278 R v RTGS [2005] NSWCCA 293

Regina

PARTIES: v

Sean POOLE (Appellant)

FILE NUMBER(S): CCA 2005/616

COUNSEL: D Woodburne (Crown) D Dalton (Appellant)

SOLICITORS: S Kavanagh (Crown) S E O'Connor (Appellant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3272

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/616

SIMPSON J ADAMS J HOEBEN J

Monday 3 April 2006 REGINA v Sean POOLE Judgment

1 SIMPSON J: I agree with Adams J. 2 ADAMS J: On 26 September 2003 the appellant was convicted after trial of seven counts of sexual assault. He was charged with three counts of homosexual intercourse with a male between ten and eighteen years (counts 1, 2 and 4 – s 78K of the Crimes Act 1900), three counts of aggravated indecent assault (counts 3, 5 and 6 – s 61M) and one count of sexual intercourse with a child aged between ten and eighteen years (count 7 – s 66C). The indictment alleged that all offences occurred between 25 September 1999 and 14 April 2000. The appellant was sentenced in respect of each of counts 1, 2 and 4 to imprisonment for three years four months with a non-parole period of one year eight months, to be served concurrently from 25 September 2003. In respect of counts 3, 5 and 6 he was sentenced to a fixed term of fifteen months commencing 25 September 2003 and, in respect of count 7, a fixed term of eighteen months commencing 25 September 2003. 3 The appellant appeals against all convictions and seeks leave to rely upon fresh evidence. Three of the grounds of appeal depend upon the significance which should be attributed to the dates upon which the alleged offences occurred and the sequence of those offences. The fourth ground of appeal concerns the tender of the complainant's videoed record of interview with the police and the use in connection with that interview of a transcript.