New South Wales Court of Criminal Appeal CITATION: Magrin v Regina [2006] NSWCCA 17 HEARING DATE(S): 01/02/2006 JUDGMENT DATE: 15 February 2006 JUDGMENT OF: Giles JA at 1; Howie J at 2; Hoeben J at 41 DECISION: Appeal is dismissed. CATCHWORDS: Criminal Law - cross-examination of accused by prosecutor - whether it could have led to miscarriage by breaching right to silence or tending to shift onus of proof. CASES CITED: Dyers v The Queen (2002) 210 CLR 285 Maiden and Petty v The Queen (1991) 173 CLR 95 PARTIES: Gregory Allan Magrin v Regina FILE NUMBER(S): CCA 2005/1645 COUNSEL: D. Woodburne - Crown C. Smith - Applicant SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3006 LOWER COURT JUDICIAL OFFICER: Ellis DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1645 GILES JA HOWIE J HOEBEN J WEDNESDAY 15 FEBRUARY 2006 Gregory Allan MAGRIN v REGINA Judgment 1 GILES J: I agree with Howie J. 2 HOWIE J: On 16 August 2004 the appellant, Gregory Magrin, stood trial before Judge Ellis and a jury at Parramatta District Court on an indictment containing the following charges: Count 1: That, on or about 25 December 2002 at Fairfield in the State of New South Wales, he did have sexual intercourse with [LH], a child then under the age of 10 years, namely 6 years (Crimes Act s 61A). Count 2: [in the alternative to Count 1] That on or about 25 December 2002 in Fairfield in the State of New South Wales, he did assault [LH] and at the time of that assault did commit an act of indecency on [LH], a child then under the age of 10 years, namely 6 years (Crimes Act s 61M(2)). 3 A verdict of guilty in relation to Count 1 was returned on 25 August 2004 and, as a result, it was unnecessary to take a verdict in relation to Count 2. On 16 December 2004 the appellant was sentenced to imprisonment for 5 years with a non-parole period of 3 years. 4 The appellant appeals against his conviction and there is no application for leave to appeal against sentence. There was a single ground of appeal argued before the Court being: A miscarriage of justice occurred by reason of the Crown Prosecutor's cross-examination of the appellant in relation to the evidence of alibi. There were originally two grounds of appeal filed but the second ground, relating to directions given by the trial judge, was abandoned at the outset of the hearing. The remaining ground of appeal changed in complexion somewhat during the course of oral argument and ultimately has more to do with the appellant's right to silence and a purported shift in the onus of proof than to any issue relating to alibi. The Crown case 5 The case relied upon by the Crown can be stated briefly. In July 1992 the complainant's father, Mr H, moved to a house in Smithfield with his three sons, LH (the complainant, then aged 6), JH (then aged 7) and NH (then aged 16). In August 1992 the family became acquainted with the appellant through a neighbour. The appellant, known as "Lenny", lived about ten minutes' drive away in Villawood. The appellant shared his house with two brothers, Robert and Rodney Smith. 6 At about 10am on 24 December 2002, at the request of Mr H, the appellant and Rodney Smith came to the Smithfield house to collect the two youngest children in order to mind them while Mr H and his eldest son did some last minute Christmas shopping. When he returned at some time between 2 and 3pm, Mr H called the appellant to arrange for the boys to be brought home. He spoke to the boys and they asked if they could stay at the appellant's house overnight because they were having fun. They had not stayed overnight there before. Mr H then spoke with the appellant and it was agreed that the boys could stay for the night. 7 The following day, Christmas Day, the appellant and Rodney Smith brought the boys back to the Smithfield house at 11am and stayed for Christmas lunch. At about 4.30pm, when the appellant was leaving, the complainant asked his father if he could again stay the night at the appellant's house. It was agreed that he could. On this occasion the complainant went alone with the appellant and Rodney Smith. 8 It was the Crown's case that on the night of 25 December the appellant sexually assaulted the complainant. The complainant's account was that he was with the appellant in his bedroom watching television. The appellant asked him to come over and sit on his lap. In the recorded police interview played in evidence to the jury the complainant said that the appellant forced him to sit on his lap and "he sticked his willy up my bum… about four times". The complainant also said that later that night Rodney forced him to drink beer, bourbon and cordial. 9 Later that evening the complainant spoke to his father on the telephone in the appellant's bedroom. The complainant said that he had wanted to tell his father about what had happened to him but he found it too difficult because the appellant was in the bedroom with him. 10 The next day the appellant took the complainant home. The complainant did not say anything about the sexual assault to his father. In the following days the complainant told his father that his "poo" was very hard to get out and his "bum" was sore. 11 On 5 January 2003, when the complainant was watching television with his brothers and father, he said to his father, "Daddy do you remember when I stayed at Lenny's place on Christmas night… Well Lenny asked me to sit on his knee and he touched my willy and he put his willy up my bum". Later that afternoon the complainant's father spoke to a neighbour about whether he should report the incident to the police. Mr Hook replied "Well it's [the complainant's] word against Lenny's". 12 On 11 January 2003 the appellant visited the complainant's home. At one point the complainant and his brother JH were sitting in the lounge room staring at the appellant and Mr H asked them to go to their bedroom. He did not raise the complainant's allegation with the appellant. However, on 6 February 2003 a complaint was made to the police. On 6 March 2003 the police interviewed the complainant. 13 On 17 March 2003 Dr Brennan examined the complainant. She took a history from him similar to the account given during the interview with police. Dr Brennan also examined the complainant and found an abnormality of the anus, being a break in the skin that was beginning to heal. The doctor gave evidence that the cause of the abnormality was likely to be either severe constipation or an object such as a male penis entering the anus and exceeding the normal parameters of the anus. She said that the extent of healing of the injury was not inconsistent with the injury having been caused on 25 December 2002. She also said that the symptoms following a sexual assault would include a "sore bottom", constipation through anxiety, and, depending on the depth of the injury, maybe some bleeding. When she was taking the history from the complainant, he said that, after the appellant had assaulted him, there was blood on his, the complainant's, pants. He had not shown them to his father but rather put them in the washing machine. 14 The appellant was arrested on 8 September 2003 and declined to be interviewed. Police made unsuccessful attempts to locate Rodney and Robert Smith and at the time of the trial there were warrants in existence for their arrest. The defence case 15 The appellant gave evidence at the trial. His version of the events on 24 December was similar to that given by Mr H and there is no need to repeat it. He said that he did not stay at home that night to mind the boys but instead went to Smithfield RSL Club at about 6 pm. When he left the house, the boys were out the back feeding the animals and Rodney and Robert Smith were in the house. At the RSL Club he met Deirdre Hanson, a person he had known for over 20 years. He was godfather to her two children. He stayed with her at the RSL Club until 1am and then went back to her place where he stayed the night. Ms Hanson drove him home in the early morning. 16 At around 10am on Christmas day the appellant and Rodney Smith took the boys back to the Smithfield house and stayed there for lunch. He went home with the complainant and Rodney Smith a little after 4pm. 17 The appellant's evidence was that he stayed at the Villawood house until about 7.30pm and then went out. Rodney and Robert Smith offered to look after the complainant. He went to the Cabravale Diggers Club at Canley Vale for about an hour and a half before going into town. He returned home at about 8am to find the complainant asleep on his bed. He and Rodney Smith took the complainant home at about 11am. In cross-examination the appellant said that, while he was out that night he had met a few people he knew. He said he spent two hours with Deirdre Hanson at the Mount Pritchard Community Club. 18 Deirdre Hanson gave evidence that she met the appellant on 24 December at the Smithfield RSL at about 7pm. They stayed there until the end of the karaoke, and then went back to her place together so that he could see his godchildren. They arrived at her home at about 2am and continued drinking until the early hours of the morning. When the children woke up, they opened their Christmas presents together and then she drove the appellant home about 7.30am. 19 Ms Hanson gave evidence that she saw the appellant at about 1 to 2pm on Christmas day at the Mount Pritchard Community Club. They were together there for a couple of hours before taking the children to Strathfield station to see their father. It took about an hour to drive from the Club to Strathfield and the children were dropped off there at about 4pm. It might be noted that this version of events was inconsistent with the version given by the appellant that he was at the complainant's house having Christmas lunch until after 4 pm. 20 Ms Hanson also gave evidence that later that evening she spoke with the appellant on the telephone to let him know that she had dropped the children off safely. She was not sure what time it was when she called but she could hear music and other voices in the background. She saw the appellant again on 26 December between 7 and 8am when she called at his house to borrow some money. 21 The defence case did not dispute that the complainant had been sexually assaulted. Implicit in the alibi evidence, however, was the contention that the complainant had been assaulted by one of the Smith brothers. To that end there was some cross-examination of the complainant concerning a description he gave the police of the person who had assaulted him, even though he named the person as "Lenny", the appellant. This cross-examination was largely based on the apparent inconsistency between the description he gave to police of the facial hair of his attacker and the facial hair of the appellant at the time. It was suggested that he was describing one of the Smith brothers rather than the appellant. It was never put directly to the complainant that he was mistaken as to the person who assaulted him. The complainant's evidence was that he knew Rodney Smith, who had given him "drugs, beer, bourbon, cordial" but he did not know any one called Robert. 22 During his address defence counsel said little on the issue of mistaken identity. The only reference to it occurs in the following passage: It's a possible explanation if you were satisfied – if you were satisfied – that this act of anal intercourse had happened, that it happened on 25 December 2002, but it might not be the accused. You of course are not called upon to decide whether Rodney did or did not do it if you are satisfied that it did happen. You are only called upon to decide whether the Crown has proved its case against the accused beyond a reasonable doubt. A telephone call on Christmas night 23 During the trial there was somewhat contradictory evidence regarding a telephone call on Christmas night during which the complainant spoke with his father. The complainant told the police during a recorded interview that he was with the appellant in the appellant's bedroom when he placed a call to his father. 24 The complainant's father gave evidence that, before the complainant left with the appellant and Rodney Smith on Christmas night, he told the complainant that he would telephone him at about 8pm that night, before his bedtime, which was at 8.30. He gave evidence that he spoke with the appellant on the telephone when he rang to speak with his son that evening. In his statement to the police the father stated that the complainant rang him at 8pm on Christmas night but his evidence at the trial was that it was he who had placed the call to the appellant's house. He was not sure whether there had been a second call when the complainant had telephoned him. 25 Police investigations revealed that there was no record of any phone call being made from the appellant's phone number to the residence of the complainant's family at 8pm on Christmas day. There was, however, a record of one outgoing call to the complainant's home at 2.15pm during the period between 23 and 27 December. 26 The ground of appeal centres upon cross-examination of the appellant by the Crown in the following passage: CROWN PROSECUTOR: In the evening of Christmas Day I want to put it to you that you never went out? A. Yes I did. Q. Do you remember talking to MH on the telephone in the evening hours of Christmas day? A. In the afternoon. Q. No, in the evening hours around 8 o'clock? A. No. Q. I want to suggest to you that he rang up and spoke to L? A. The phone number was left at home on the table – on the bedroom table or – for the brothers to get the boys to ring their father if they have to. Q. I want to suggest that Mr H spoke to you about 8 o'clock? A. Spoke to me at 8 o'clock? Q. On Christmas day, 8 o'clock in the evening? A. Not that I recall. Q. Could it have happened, could he have spoken to you, if you – so you say you don't recall? A. He may have spoken to one of the brothers. Q. See the brothers aren't here, are they? A. No, but they should be. Q. Are you saying that because you know they're not here? A. No. Q. See, it's easy to blame them, isn't it? A. The thing is they lived at my place – Q. Just answer the questions, it's easy to blame them when they're not here? A. No. Objection. Relevance. Objection. Pressed. Question AlloweD Q. See when they're not here it's easy to blame them or implicate them by saying "Oh they should be here", isn't it? A. Well there's been an investigation to find out where they are, I'm just wondering why they ain't here as well. Q. Well you were asked by the police weren't you? A. Well of course. Q. Exercising the right that you have you declined to talk to them? A. Yeah. HIS HONOUR: Q. Do you know where they are? A. If I knew where they are I'd be getting me money off them what they owe me. Q. When is the last time you had any contact with them? A. When I kicked them out in April sometime. Q. April 2003? A. Yeah round about there. 27 During the Crown Prosecutor's address the following was said in relation to that part of the cross-examination quoted above: He called evidence from Deirdre Hanson and as you're aware she said that on Christmas night that she'd given him a phone call. In reality that's his alibi evidence, that phone call. Now I'll deal with her evidence in a little while. Of course in cross-examination he talked about the two brothers and unfortunately how they weren't at this trial. Now in relation to that we know that as soon as the police became aware of Rodney they've made checks, they've tried to find him and they haven't been able to find him. There are two first instant warrants out for his arrest. Robert, they weren't able to get a more accurate description of Robert such as his birth date, and weren't able to do any checks. We do know that they approached the accused and again, as is his right, he didn't want to speak to police about it. The next piece of evidence comes when the accused is in the witness box and it says: Q. Well the brothers aren't here, are they? ---this is on page 16--- A. No, but they should be. Q. Are you saying that because you know they're not here? A. No. Q. See, it's easy to blame them, isn't it? A. The thing is they lived at my place – Well it's a proposition that may well be put forward to you, that the brothers did it, and as I said it's very convenient to blame them when they can't be found, when they're not around, and if you believe the accused he says that he wanted them to be found, that they owed him money. He says, again on page 16 at line 30: Q. Do you know where they are? A. If I knew where they are I'd be getting my money out of them that they owe. Q. When is the last time that you had any contact with them? A. When I kicked them out in April some time. Q. April 2003? A. Yeah, around about there. Certainly it doesn't appear that despite the fact of being owed any money he was able to shed any light on where they are. 28 It was argued on behalf of the applicant that the passage from the cross-examination of the appellant quoted above had the tendency to introduce a reversal of the onus of proof into the jury's mind by suggesting that the appellant should have ensured that the brothers were present and that he was fabricating a defence in their absence. Reliance was placed upon the fact that this was a case of mistaken identity arising from the cross-examination of the complainant about the facial hair of the person who assaulted him and what he had told police in his interview with them. The Court was taken to passages in the judgments of the High Court in Dyers v The Queen (2002) 210 CLR 285 as to the absence of witnesses and Maiden and Petty v The Queen (1991) 173 CLR 95 on the right to silence. 29 It should be noted that the cross-examination arose in respect of the answer given by the appellant to questioning about whether he had spoken to the complainant's father at about 8pm on Christmas night. If he had, of course, this would have been contrary to his alibi. The applicant had first responded "not that I recall' which led the Crown to challenge that answer because it contained an implied concession that he might have done so. The applicant then asserted that the father might have spoken to one of the Smith brothers rather than to him. It was this answer that led the Crown to put to him that it was easy for the appellant to blame the Smith brothers because he knew they were not at court. 30 In my opinion the Crown was challenging the applicant's credit arising from the answer he gave to the question about the phone call to the complainant rather than attempting to improperly imply any breach of some onus on the part of the appellant to lead evidence in support of his alibi. I am prepared to accept that the Crown should have stayed clear of the area of the refusal of the appellant to answer questions to the police about the whereabouts of the Smith brothers as this could so easily lead to a line of reasoning on the part of the jury inconsistent with an accused's right to silence. But I do not believe that the cross-examination alone raised any improper suggestion that the appellant had some duty to have the witnesses present such that it carried with it a real risk that the jury might have misplaced the onus of proof in that regard. 31 It should be noted that, although defence counsel did object to one of the questions asked by the Crown on the basis of relevance, he did not object to the Crown straying into the area of the appellant's failure to answer questions by the police or raise any other complaint about the cross-examination either during its course or at its conclusion. 32 Mr Smith, who appeared for the appellant before this Court, relied upon the section of the Crown's address relating to this cross-examination and quoted above as raising again with the jury the suggestion, even if obliquely, that the appellant had some duty in relation to the presentation of the Smith brothers at court and that he had failed in that obligation by failing to assist the police to find them. After referring to the appellant's answers in relation to the whereabouts of the Smith brothers and his inability to locate them the Crown said: Certainly it doesn't appear that despite the fact of being owed any money he was able to shed any light on where they are. 33 I believe that there is more substance in this complainant. I do not understand the import of the last sentence of the passage of the address quoted above if it were not to raise a suggestion of some failure on the part of the appellant to be able to assist in the finding of the Smith brothers and having them at court. The fact that the appellant could or could not shed any light on the whereabouts of the Smith brothers was irrelevant at best and at worst might have led the jury to misplace the onus of proof in that regard. 34 But in my opinion the jury could have not been misled into an improper line of reasoning by the cross-examination even in the light of the Crown Prosecutor's address because of what the judge had told the jury about his right of silence during the trial and what he said to the jury in that regard during his summing up. Again it should be noted that there was no complainant about the address by defence counsel at the trial. 35 The police officer who had sought to speak to the appellant about the Smith brothers gave evidence that the appellant had refused to say anything to him without first speaking to his solicitor. The Judge then immediately said to the jury: Ladies and gentlemen, the same thing applies that I said before in terms of the right to silence. Any time a police officer speaks to a person accused, they have a right to remain silent and or obtain some legal advice first. You should not draw any adverse inference against the accused for so doing. This direction was given in the light of a much fuller and more emphatic direction given to the jury on the first occasion that the jury were informed that the appellant had refused to answer questions by the police in respect of the allegation made by the complainant. 36 During cross-examination of this police officer it was made perfectly clear to the jury that the police officer expected that, where a person had received legal advice not to speak to the police, he would expect the person to follow that advice, that the refusal was the exercise "of a perfectly legitimate legal right" and that it occurred the majority of the time. 37 The summing up contained ample directions on the onus of proof generally and in relation to the alibi in particular. It was made clear to the jury that before they could convict the accused they had to be satisfied beyond reasonable doubt that the complainant told them the truth "which will involve rejection of the accused and a rejection perhaps of the alibi of Ms Hanson, depending upon what you make of that telephone call and its timing…". The jury were informed of the impact of delay in complaint upon the ability of the appellant to defend himself and how that delay had resulted in the inability to locate the Smith brothers and deprived the appellant of the opportunity to investigate the circumstances of the allegation and to speak to the Smith brothers at a time when they might have had a good recollection of the events. 38 The trial was conducted on the basis that the police had made every endeavour to find the Smith brothers without success. The trial judge said to the jury: It is not as if it could be said that it is the accused's fault that those men are not here because the police have got warrants out there trying to get those men here too. 39 No further directions were sought on this topic by defence counsel. It must be taken that either he did not appreciate the sting in the Crown's address that has been identified in this court as he listened to it, or, if he did, that he believed in the light of the directions given throughout the trial and in the summing up that there was no chance that the jury might use the absence of the Smith brothers to the appellant's disadvantage. 40 In my opinion there is no reason why rule 4 of the Criminal Rules should not apply notwithstanding the objection by the defence counsel to part of the cross-examination. If defence counsel believed that the cross examination was improper it was not sufficient simply to object to one question on the grounds of irrelevance and then make no other objection or complaint simply because that objection had been overruled. In any event I am satisfied that in light of the directions given by the trial judge there was no risk of the jury using the cross-examination or the Crown's reference to it during the address to misplace the onus of proof in regard to the failure of the Smith brothers to appear or to use that fact in any other way against the accused or his defence. 41 I am of the opinion that the appeal should be dismissed. 42 HOEBEN J: I agree with Howie 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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