Jeffrey Wayne DAVIE v R [2008] NSWCCA 2

New South Wales Court of Criminal Appeal

CITATION: Jeffrey Wayne DAVIE v R [2008] NSWCCA 2

HEARING DATE(S): 10 December 2007

JUDGMENT DATE: 29 January 2008

JUDGMENT OF: Grove J at 1; Simpson J at 2; Barr J at 3

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against conviction - objections not taken at trial - evidence of complaint - miscarriage of justice - DNA evidence - jury making a finding of guilt on one or more counts in the indictment when considering any other count in the indictment

LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995

R v Abusafiah (1991) 24 NSWLR 531 Papakosmas v The Queen (1999) 196 CLR 297 CASES CITED : Domican v The Queen (1992) 173 CLR 555 R v TJF [2001] NSWCCA 127 R v GK (2001) 125 A Crim R 351 R v Markulevski (2001) 52 NSWLR 82

PARTIES: Jeffrey Wayne Davie Regina

FILE NUMBER(S): CCA 2006/5106

COUNSEL: H Dhanji (Appellant) D Woodburne (Crown)

SOLICITORS: Burke and Elphick Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0296

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 21 September 2006

IN THE COURT OF CRIMINAL APPEAL 2006/5106

GROVE J SIMPSON J BARR J

29 JANUARY 2008 JEFFREY WAYNE DAVIE v REGINA Judgment 1 GROVE J: I agree with Barr J. 2 SIMPSON J: I agree with Barr J. 3 BARR J: This is an appeal against convictions entered in the District Court after a trial by jury. The appellant, Jeffrey Wayne Davie, was convicted of three offences. The first was constituted by an act of fellatio on a boy under the age of ten years, namely of nine years of age. The second was an indecent assault on the same boy, constituted by pushing back the boy's foreskin. The third was constituted by an act of indecency, namely exposing his penis to the same boy. 4 On 25 May 2005 the complainant went with his mother to premises in a Newcastle suburb to watch a game of football on television. The premises comprised a common room where everybody gathered and where the television set was. A door led off that room into the men's toilets, where there was a change room, a shower and lockers. A further door led through to a urinal. The complainant left the company of his mother and went through and used the urinal. While he was in there he spoke to a man he had encountered earlier in the evening and they talked about having a game of pool. As the complainant made to leave the urinal the appellant, who was not the man the complainant had just spoken to, whispered to him, telling him to go with him because he wanted to tell him a secret. He had spoken to the complainant earlier in the evening. He told the complainant that there was another way to play pool, took him by the arm and led him into a cubicle. The man spoke to him about trying to get "white pee" out of his "rude part" and about cleaning his "rude part" when he had a bath. The man pulled down the complainant's pants, took hold of his penis and pulled back his foreskin. That was the substance of the second count. The man sucked, as the complainant put it, his "dick". That was the substance of the first count. The complainant heard his mother calling to him and the man stopped. He pulled up the complainant's pants, then showed him his penis. He told the complaint to keep it a secret. 5 The complainant left the room and went to his mother. They were ready to leave and she told him to say his goodbyes. The appellant left the urinal shortly after the complainant and exchanged a word with the complainant's mother as he came out. The complainant and his mother left the building and went to their car. As they did so the complainant's mother asked him why he had a funny look on his face. He said that it was a secret. When they were in the car he said to his mother that the man she had spoken to had sucked his penis. The complainant's mother stopped the car and they returned to the building. As they did so the complainant vomited. The complainant's mother spoke to a number of people and the police were called. She spoke to the appellant, who said that he had been alone in the toilet with the boy but that nothing had happened. 6 The complainant gave a detailed description of what the man had done to him. First he told his mother, then persons called Howard and Carr. The complainant identified the appellant from twenty photographs shown to him. Police sent the complainant's underpants for analysis and a substance was identified as likely to be saliva. It yielded DNA to which there had been two major contributors. The appellant's DNA profile matched that of the second major contributor. That profile is expected to occur in fewer then one in ten billion individuals in the general population. 7 Evidence was adduced that the appellant had a sexual attraction to and predilection for prepubescent and young boys and a willingness to act out his sexual fantasies with them. Evidence was adduced consisting of admissions made by him in 1992 concerning a number of sexual acts committed against ten boys aged between six and fifteen years and which included fellatio, fondling of genitals, an occasion when he had pushed back a boy's foreskin, occasions when he had asked boys to expose themselves to him and occasions on which he had exposed himself to them. 8 This appeal is advanced on three grounds. Each starkly raises the need for a grant of leave so as to argue an objection not taken at trial. In R v Abusafiah (1991) 24 NSWLR 531 Hunt CJ at CL said at 536 - The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ( R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. See also the remarks of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at 301. 9 The first ground of appeal asserts that a miscarriage of justice was occasioned by the trial judge's directions about evidence of complaint. Three witnesses gave evidence of complaint. The complainant's mother said this - Q Did you say anything to (the complainant) after you'd signed out? A When we were – while I was signing out, I said "(the complainant) what's the funny look on your face?" Q What did he say? A He says, "Oh", he says "I'll tell you outside". I went "Okay". Q What did you do then? A We walked back through the back area, back through the storage area, out through the back door, down the ramp, got in the car, I started the car up and I turned around to (the complainant) and I said "Okay, so what were you going to tell me?" Q What did he say? A He said "Oh it's a secret. The man in the toilet wanted to show me how to play a game of piss pool". HIS HONOUR: Q Play a game of? A Piss pool. CROWN PROSECUTOR: Q How did he say that? Can you describe his tone of voice? A It was like he was telling, yeah, he was telling a secret. That was the type of voice. I shouldn't be telling you, but I'm telling you. Q After he said that to you, what did you say to him? A I said "What?" Q And did (the complainant) reply to you? A And he said, "A game of piss pool", and I said "What do you mean by that?" He said "The man reached into my pants, pulled out my rude parts, cleaned it and then put it in his mouth", and I turned around and I said "Are you serious?" I said "Did that really happen", and he said "Yes it did." So I said "Well", I said, "we've got to go back in there and report this". He said "No, I don't want to go back in there, he's going to kill me". I asked him who it was, he said that he couldn't remember his name, so I asked him if it was the man that came out of the toilets after him and was talking to me, and he said "Yes". 10 Mr Howard told the jury that the complainant said - I could feel his tongue but I couldn't feel his teeth. 11 Mr Carr gave this evidence - Q Now a few minutes after that, did Mr Howard come into the rec room and beckon to speak to you? A Yes, he stood at the door. Q And did you and Mr Howard then go towards, after he spoke to you, Mr Howard's office? A Yes, back up the entire length of the hallway. Q Did you go into the office where you saw (the complainant) and his mother? A Yes. Q Did you speak to (the complainant) yourself? A I did. Q Can you tell me what you said to (the complainant) sir? A Well he obviously looked a little upset and I said to (the complainant) "Can you tell me what happened". Q Can you tell me what he said to you sir? A He said "Jeff sucked my rude bit and he wanted to play a game of piss pool with me", which, that's what I though he said anyway. Q Did you say anything to (the complainant) at that point? A Yes, I said, "Were you the only one in the toilet?", and he said, "When I was going in there was a big man coming out as I was going in", and I said, "Was there anybody else in the toilet?", he said, "No". Q Did you say anything else to him Mr Carr? A Yes. I said, "What did you do in there, did you do a wee, did you go in to do a wee or did you go into the little room?'. He said, "I did a wee". And I said to him – no he said, "When I'd finished I put my hand on the door to open it, it was being pushed from the other side at the same time". Q And did you say anything to him then sir? A I said, "What happened then?", and he said "Jeff licked my rude bit, I didn't feel his teeth, I only felt his tongue and then he cleaned it and put his hand down the front of his pants". Q Did you say anything further to him? A Not that I can recall at the moment, no. Q Did you speak to him about time? A Oh yes. I said to (the complainant), "How long did Jeff suck your rude bit for?", and he looked at me a little bit puzzled, and I said "Well if I count, you tell me when to stop", and I was going, "One , two, three, four", and he butted in and said, "About 20". 12 During the summing-up his Honour said this about evidence of complaint - That evidence is what lawyers call complaint evidence, members of the jury. It is led by the Crown for a number of purposes. The Crown says that very soon after these events are alleged to have occurred the complainant, … , told his mother about them; that is to say, made a complaint about what had happened. The Crown says that those actions on the part of (the complainant) are entirely consistent with what someone would do if they had been sexually assaulted in the way in which (the complainant) says he was. The Crown says that you are entitled, and indeed you are if you accept that evidence, to treat his complaint to his mother, if you like, or his telling his mother about what he said happened as actions consistent with someone who has been sexually assaulted. If you accept the evidence, you are entitled also to take it into account on the issue of the guilt of the accused. But what importance you attach to it is entirely a matter for you. It is not independent evidence in the sense that it comes from a source independent to that of the complainant, because it really comes from the mouth of the complainant. And Mr Winch (defence counsel) would say to you it would not matter how many times you told someone about what happened or how many people you told, if it was not true in the first place it does not become true just because you tell people. In other words, if you make an allegation that is not true, it does not matter how many people you tell, it does not cease to be untrue. But, members of the jury, as I say, if you accept the evidence you are entitled to use it in the way in which the Crown urges you to, namely to find that it was actions on the part of (the complainant) that were consistent with him being assaulted in the way in which he said he was. … The evidence given as to complaint by (the complainant's mother) and Mr Howard and Mr Carr is hearsay evidence. As such, it may be unreliable. Things tend to get lost a bit in the translation sometimes. The Crown would say to you you would expect when people have to remember things that happened some time ago that there may be discrepancies in their evidence. The Crown would say that they are not important, that you would find that these complaints were made and were consistent with the assault described by (the complainant). Mr Winch would say they are important. They are discrepancies and any discrepancy in the Crown case is another chip off the case put forward by the Crown, and they are matters that are important to consider.