New South Wales Court of Criminal Appeal CITATION: CC v Regina [2010] NSWCCA 337 HEARING DATE(S): 10 December 2010 JUDGMENT OF: Simpson J at 1; Blanch J at 1; Garling J at 1 EX TEMPORE JUDGMENT DATE: 10 December 2010 DECISION: Leave to appeal out of time is granted. Appeal is allowed. Conviction is quashed. New trial is ordered. It is not necessary to deal with the application for leave to appeal against sentence. CATCHWORDS: CRIMINAL LAW - failure in summing up to put defence case - consciousness of guilt LEGISLATION CITED: Crimes Act 1900 s61M(2), s66A Criminal Procedure Act 1912 s161(1) CATEGORY: Principal judgment Domican v The Queen (1992) 173 CLR 555 CASES CITED : Edwards v R (1993) 178 CLR 193 Pemble v The Queen (1970) 124 CLR 107 R v Veverka (1978) 1 NSWLR 478 PARTIES: CC (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2008/16456014 COUNSEL: A Francis (Appellant) N Noman (Respondent) SOLICITORS: S E O'Connor, Legal Aid Commission S Kavanagh, Solicitor for Public Prosecutions LOWER COURT JURISDICTION: LOWER COURT FILE NUMBER(S): 2008/16456 LOWER COURT JUDICIAL OFFICER: Conlon DCJ LOWER COURT DATE OF DECISION: 31March 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v CC IN THE COURT OF CRIMINAL APPEAL CCA 2008/16456 SIMPSON J BLANCH J GARLING J 10 December, 2010 CC v Regina JUDGMENT 1 THE COURT: On 23 March, 2009 the appellant entered pleas of not guilty to an indictment charging four counts of aggravated indecent assault contrary to s61M(2) of the Crimes Act 1900 which carries a maximum penalty of ten years and a standard non-parole period of eight years and two counts of sexual intercourse with a child under the age of ten contrary to s66A of the Crimes Act 1900 which carries a maximum penalty of 25 years and a standard non-parole period of 15 years. The first two offences of indecent assault were said to have occurred at Albion Park between 1 January, 2006 and 30 April, 2006. The third and fourth charges of indecent assault were said to have occurred between 1 April, 2006 and 30 September, 2006. The two counts of sexual intercourse with a child under the age of ten were also said to have occurred between 1 April, 2006 and 30 September, 2006. 2 The appellant was convicted in respect of all charges and sentenced on count 1 to a fixed term of 18 months to date from 31 March, 2009, on count 2 to a fixed term of two years to date from 31 March, 2009, on counts 3 and 4 to fixed terms of two years imprisonment to date from 31 March, 2010, on counts 5 and 6 on each count to a non-parole period of seven years to date from 31 March, 2010 with an additional term of four years. The total sentence therefore was 12 years with a non-parole period of eight years from 31 March, 2009. He appeals against the conviction and seeks leave to appeal against the sentence imposed. The facts 3 The appellant commenced a relationship with the complainant's mother in 2003. The mother had separated from her husband and had custody of five children. The complainant was the third child born on 1 January, 1997. 4 The first count involved a complaint that one night at their home in Albion Park the complainant's mother was in bed and the complainant was sitting on a lounge when the appellant sat next to her. She said the appellant touched her on the breasts and the vagina and described a rubbing motion for ten minutes. The complainant agreed she was unsure of when the offence was committed and she made no complaint. 5 The complainant said the second offence occurred at their house at Albion Park again when her mother had gone to get pizza. She said she was asleep when the appellant came in and lay down next to her and did the same thing as before, touching her all over, including on the breasts and vagina. She thought this incident occurred about two or three weeks after the first occasion. She agreed no complaint was made by her. 6 The complainant said the third occasion was when they were at the appellant's mother's house at Kiama. She said she was watching a movie on television sitting on a lounge and the appellant came up to her and started touching her including rubbing her breasts and thighs. He then took her into his bed where he did the same thing. She believed this offence occurred a short time after the second offence. She said while she was on the lounge the appellant was squeezing her breasts and when she told him to stop he put his hand down her pants and squeezed her vagina. 7 The fourth count related to the appellant putting the complainant into his bed and on that occasion touching her breasts and vagina again at Kiama. 8 The fifth count related again to the incident on the bed referred to in the fourth count. The complainant failed to provide this information to police on the first occasion but subsequently did so. She gave evidence that the appellant put his fingers into her vagina. She thought this incident lasted for ten minutes. 9 The sixth count related to the same episode on the bed. The complainant gave evidence that after the incident referred to in count 5 the appellant went to the end of the bed, pulled down her pants and started licking her vagina on the inside. 10 The complainant gave evidence that after the various incidents at the appellant's mother's house forming the charges three to six, she sent a message on her phone to her mother asking could she please come and pick her up because the appellant was touching her in places "… that I don't want to be touched." She said he then drove her home but that on the way he stopped and parked and said to her that he was sorry and started crying. The evidence of the complainant and her mother was that the mother asked the appellant then to stay the night because he was talking of committing suicide. 11 The complainant's mother also gave evidence about the complaint by way of text message. She was sitting having a drink with her next door neighbour KL and she showed KL the text message. He also gave evidence of seeing the text message complaining of a sexual assault by the appellant. 12 After the complainant arrived home with the appellant either that night or the next day the mother asked the complainant what happened and she said he had touched her private parts. The mother then spoke to the appellant and asked him if it was true and he said it was. He was crying and upset and talking about committing suicide. She said at that stage she wanted to give him another chance and the complainant agreed with her not to go to the police. 13 Late on the night that the mother received the complainant's text message, the mother decided she needed some time off work so she drove with the appellant to her manager's house at Dapto. Her manager was able to specify the night was 10 December, 2006 because the next two days were the days the mother took off work. The mother agreed in cross-examination that she had told police she didn't tell her manager what the allegation was and that was because she knew her manager was a mandatory reporter in respect of allegations of child abuse. 14 At some stage shortly after this, the appellant returned to live at his mother's house but by Christmas 2006 he had returned to live with the mother and they resumed their de facto relationship. 15 At a subsequent time there was a family function for Mother's Day hosted by the appellant's stepsister CW and at that function the mother spoke about these complainants to a member of the family (KM). Later the mother told the appellant that the stepsister CW wanted them to go down and talk about it and the appellant agreed to go to CW's house. 16 At CW's house there was a discussion between the complainant's mother, the appellant's stepsister CW and the appellant. CW gave evidence that the mother had telephoned her to say she was worried that the appellant might commit suicide and could they come around. She said that she and the mother did most of the talking and that the appellant was quite upset and crying quite a bit. CW said she was saying to the appellant you need help and he responded by nodding his head or shaking his head and at different times said "Yes I know". She was not able to give specific evidence that this related to any particular allegation. 17 Some time after that visit to CW's house, the mother told CW that the whole thing had been a misunderstanding. She said she did this because she wanted to resume the relationship with the appellant. In about March, 2007 the appellant moved back to his mother's house and in May, 2007 the mother moved away with her children. The appellant continued to visit at weekends and sometimes staying overnight until the relationship came to an end in November, 2007. In April, 2008 the mother reported the allegations to a social worker who put her in touch with the police. The complainant was first interviewed on 22 April, 2008. Grounds of Appeal 18 The first ground of appeal is that "the trial judge failed to properly put the defence case. It has long been the law that an accused is entitled to have his case presented to the jury – see Pemble v The Queen (1971) 124 CLR 107 at pp.117,118. However, in Domican v The Queen (1992) 173 CLR 555 the Court said: "Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused." "Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence." In this case the defence case consisted of denials in the record of interview and denials in the evidence of the appellant at the trial that he had not committed the offences. He also raised his own good character. Otherwise his case was an alternative reason for the complainant texting her mother and wanting to go home on the night she was staying at his mother's (because she was sick), and a criticism of the prosecution case because of lack of specificity. He also raised a question of credibility of the complainant because she had kept in touch well after the relationship between the appellant and her mother ceased. He raised the question of the mother's credibility because there was a dispute that arose in early April, 2008 over a property the appellant and the mother had purchased together and a telescope valued at $10,000 in the possession of the appellant. The appellant indicated he would not return the telescope and there was discussion about the property dispute. About one week later the mother approached the social worker concerning the allegations for the first time. The defence case also consisted of an attack on the credibility of the complainant because she made a statement about the matter to the police which did not include any allegation relating to the last two more serious offences. It also included an attack on the credibility of the mother who agreed she had told CW the whole story was a mistake after the initial conversation and she had not told the truth about what she had told her manager. 19 Here the judge in the summing up did refer to the denials by the appellant in the record of interview which was an exhibit. He also referred to the evidence of the appellant about texting her mother because she was sick – see pp31, 32 of the summing up. The judge also referred to the criticism of the lack of precision in the evidence of the complainant and read out part of the cross-examination relating to it – see p23 of the summing up. The judge also referred to the evidence of the appellant's mother that on the night of the texting and going home the complainant said she was going home because she was sick – see p31 of the summing up. He did not refer to other aspects of the defence case. 20 The central issue in this case was the allegation made by the complainant and denied by the appellant but it was not simply a case of word against word. There were two important pieces of evidence supporting the Crown case. The first of these was the text message of complaint sent by the complainant, received by the mother and seen by an independent witness at the time of its reception. The second was the evidence relating to the meeting between the appellant, the mother and CW when the appellant was crying. 21 In dealing with the text message the trial judge went through the evidence and postulated that the defence case suggested the mother received a text message saying the complainant was sick but then told the witness L that it was a complaint about a sexual assault. The judge then said: "You might find that that is a little difficult to accept members of the jury." He went on to point out that the witness L actually read the text. 22 There is no prohibition against judges expressing a view about the facts of a case if it is made clear to a jury that they are the only judges of the facts. It would be prudent for judges not to express a view about significant and contentious facts if that might be seen as abandoning a position of impartiality and entering the arena. In this case the comment of the judge coming as it did at the end of the summing up might well have been seen in that light. 23 The second important piece of evidence supporting the Crown case was the evidence of the meeting with CW. In his judgment on the admissibility of this evidence, the judge made it clear he was admitting it as an admission. In his address to the jury the prosecutor said it was an admission. However, the evidence as given did not indicate any admission to any particular act. The evidence was of a general discussion of the appellant's need for treatment and of him nodding his head or shaking it and crying. This might be argued to be an admission but it might also have been interpreted by the jury as a consciousness of guilt. The second ground of appeal argued here is that a direction should have been given in accordance with Edwards v R (1993) 178 CLR 193. Such a direction would have been advisable. 24 At the end of the day the question is whether the summing up was balanced enough to afford a fair trial. Section 161(1) of the Criminal Procedure Act 1912 states that a judge need not summarise the evidence in a trial if it is not necessary. In this case the judge did choose to summarise the evidence in the Crown case fully. So far as the defence case was concerned, he referred only to aspects of it. On the important aspect of the text message he referred to the appellant's account but to disparage it. On another important aspect of the meeting with CW, no direction was given to assist the jury. As to another important aspect of the defence case, namely the credibility of the complainant and the mother, there was no reference in the summing up. 25 In Reg. v Veverka (1978) 1 NSWLR 478 this Court held that an accused is entitled to have his case presented to the jury in the summing up so as to enable the jury, from the terms of the summing up itself, to comprehend and understand what the defence case is – see per Street CJ at p482. This summing up fell short of that test and the appellant was not afforded a fair trial. 26 Accordingly, the order of the Court is that leave to appeal out of time is granted, the appeal is allowed and the conviction is quashed and a new trial is ordered. It is therefore unnecessary to deal with the application for leave to appeal against sentence. 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