Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Magoulias v R [2012] NSWCCA 160 Hearing dates: 16 July 2012 Decision date: 30 July 2012 Before: Allsop P at [1] Latham J at [21] Davies J at [22] Decision: 1. Appeal against conviction allowed. 2. Convictions on counts 1 and 2 on the indictment quashed. Catchwords: CRIMINAL LAW - appeal against conviction - act of indecency - inconsistencies in complainant's account - summing up failed fairly to state appellant's case - summing up unbalanced as to failure of appellant to give evidence - convictions quashed - appropriate sentence served pending appeal - no requirement for re-sentencing or retrial Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Category: Principal judgment Parties: Ross Magoulias (Appellant) Regina (Respondent) Representation: G Porter (Appellant) N Bruni (Respondent) Adams and Partners Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/154237, 2009/281916 Decision under appeal Date of Decision: 2011-02-11 00:00:00 Before: Finnane QC DCJ File Number(s): 2009/154237; 2009/281916 Judgment 1ALLSOP P: On 2 December 2010 a jury in the District Court found the appellant guilty of two charges: count 1: that on 8 December 2009 he entered part of a building, a bathroom of a dwelling house at Bellevue Hill, with intent to commit an indictable offence, namely an act of indecency, contrary to the Crimes Act 1900 (NSW), s 114 (1)(d); and count 2: that on the same day he did commit an act of indecency towards the complainant, a young woman of 24 years of age, contrary to the Crimes Act 1900 (NSW), s 61N(2). 2The appellant was also called up for bonds under the Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 and 12. The bonds under s 9 related to four counts of possessing a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) and the bond under s 12 related to a six month suspended sentence for driving a vehicle recklessly or furiously in a manner and speed that was dangerous contrary to the Road Transport (Safety and Traffic Management) Act 1999 (NSW). 3He was sentenced on 11 February 2011. The s 12 bond was revoked and he was sentenced to a fixed term of imprisonment for 6 months to commence on 11 February 2011 and to expire on 10 August 2011. On count 1, he was sentenced to a non-parole period of 2 years imprisonment to commence on 11 August 2011 and to expire on 10 August 2013 with a balance of term of 1 year and 6 months to expire on 10 February 2015. On count 2, he was sentenced to a fixed term of imprisonment for 6 months to commence on 11 February 2011 and to expire on 10 August 2011. The s 9 bonds were revoked and a conviction was recorded with no additional penalty under the Crimes (Sentencing Procedure) Act 1999, s 10A. 4The grounds of appeal were originally four, as follows: "1.His Honour erred in failing to direct the jury that the evidence of the complainant should be scrutinised with care; 2.His Honour erred in failing to discharge the jury on the ground that his comments as to the failure of the appellant to give or call any evidence effectively undermined those directions given as to the appellant's silence; 3.His Honour's summing up was unfair and unbalanced to the appellant; 4.In all the circumstances a miscarriage of justice occurred." Ground 1 was abandoned at the hearing of the appeal. 5The grounds of the application for leave to appeal against the sentence were as follows: "1.His Honour erred in failing to give any or any sufficient weight to the applicant's mental condition; 2.The sentence was manifestly excessive." 6For the reasons expressed below, the appeal against conviction should be allowed and the convictions quashed. Whilst that makes the application for leave to appeal against the sentence strictly unnecessary to deal with, the reasons below state why, if I be wrong about the conviction appeal, I would have granted leave to appeal and allowed the appeal on sentence on the ground of manifest excess. Those reasons are sufficient to explain why I would not order a retrial: the appellant has already spent time in custody that is a more than adequate reflection of a non-parole period (at least) that would reflect the criminality of what occurred. 7The appellant was engaged as a painter working on the exterior of a block of flats at Bellevue Hill. The complainant was a 24 year old woman who was staying in a flat in the block, which flat was occupied by her brother and his flatmate. The complainant had become aware of the painters on the day before. On the day in question (8 December 2009) she got up at about 10.30 am. She changed for the beach. Her brother and the flatmate had left for work earlier in the morning. Upon opening the blinds she saw a male person (who was the appellant) working on a ladder on the balcony. It was a hot day. She asked him if he would like some water. He said yes. She took him a mug of water. She then worked on her computer for a short period of time. The appellant then sought to strike up a conversation with the complainant. She then went into the bathroom to brush her teeth, before going to the beach. While brushing her teeth, the complainant said that she felt a presence and turned to her left towards the bathroom door. She said there was a male person, who was moving towards her with his penis out of his trousers. His eyes were directed down. She immediately shouted, "What the fuck are you doing?" There was no reply and she shouted, "Get the fuck out, you sick mother fucker." She said the person walked inwards a little more, blocking her in the bathroom. She pushed him back and moved past him into the hallway and from there said, pointing to the balcony, "Get the fuck out. Get the fuck out." He walked out and said, "I just need to use the bathroom. I just needed to use the bathroom." To which she said, "Get the fuck out." 8In her evidence, she said that she looked at his face first and that she noticed he had his penis out of his trousers when his eyes went down. He did not put his whole head down to look, he just gave an indication to look with his eyes. She said that his arm had a bit of movement and he was holding his penis in one of his hands and it was pointing at her. She could not say if it was erect or not. 9In cross-examination she said that it was both his eyes looking down and the movement in his arm that drew her attention to his penis. She was not sure which arm was moving. It all took a couple of seconds. The summary of the trial prepared by the Crown summarised aspects of the cross-examination as follows: "The complainant agreed that she had made two or three statements. She made a statement on 8 December 2009. She said she was in shock on that day but she knew it was an important document. She agreed that she said in the statement 'He wasn't moving his hand while holding his penis' and that this was different to the evidence she had given. She agreed that she said in her statement, 'I looked down and saw him holding his penis in his left hand.' She didn't think her evidence was different because his face was there first and his eyes went down and she was noticing that there was movement in his arm at the same time. The complainant was asked whether she saw his arm moving or his hand moving and she responded: 'No he was holding it with his hand. He was - I was in shock, so basically, like, okay his eyes did that. His hand was there, and it's not like he was - like, you know, doing that fast or anything. It was sort of, like his hand was moving and penis was literally facing me, and he was taking steps forward towards me.' He maybe took a couple of steps toward her. He attempted to take steps forward and she couldn't tell exactly how many. She agreed that nowhere in her statement did it say that the man took steps toward her but she could swear that he did. She accepted that there are a few different things in her evidence from what she had put in her statement." 10Grounds 2, 3 and 4 can be dealt with together as the parties did in their submissions. The essence of the complaint was that the judge delivered an unbalanced and unfair summing up to the jury. The matters in dispute went essentially to proof beyond reasonable doubt as to the appellant's intention. Relevant to that was the resolution of questions as to where he was standing, whether he was moving forward and whether his arm or hand was moving. These matters were relevant to the inferring of the relevant intent and could be seen as perhaps contradictory to the purpose expressed by him at the time, of wanting to go to the bathroom. 11It is unnecessary to set out all the summing up and directions. As a preliminary matter it is to be noted that nowhere in the directions was there any clear direction about proof beyond reasonable doubt of the necessary intention in the offences derived from inference from objective facts. That was important because the matters to which I have earlier referred - his position in the hallway or the bathroom, moving forward and whether his hand or arm was moving - were the subject of a degree of inconsistency in prior statements and in the evidence of the complainant. It was necessary to focus upon those inconsistencies in order that the jury properly attend to the drawing of factual conclusions about intent from relevant inferences. That process of fact finding did not turn on whether the complainant was truthful or on whether there was contrary evidence. (The appellant did not give evidence.) Rather, it required a dispassionate direction as to the possible inconsistencies in the versions the plaintiff had given and the need for the jury to address the question of the proof of intent from the objective circumstances, some of which were the subject of the inconsistencies. 12The summing up contained the following: (a)The judge referred to the evidence of the complainant being in a unit. He said 'She has given evidence of that. There is no evidence to the contrary. As there is no evidence to the contrary it would be perverse to come to any conclusion other than ...'. (b)The judge referred to evidence as to the appellant coming into the bathroom. He said, 'She has said she was in the bathroom. She has said that the accused came into the bathroom. There is no evidence to the contrary of that. She said he came into the bathroom. He has given no evidence. The fact that he has given no evidence means that he is exercising a right to give no evidence. If he gives no evidence, he does not add to the evidence which is given and the evidence which is given is that she was standing in the bathroom near the vanity basin and the accused came into the bathroom'. (c)The judge reminded the jury of some cross examination of the complainant where he said, 'It was put to her that he merely stood on the carpet outside. She denied that. There is no evidence to the contrary. It follows then, that the only evidence is that the accused was in the bathroom'. (d)The judge reminded the jury of the complainant's evidence as follows: 'She said the accused came towards her and was holding his penis in his hand ... Again, there is no evidence to the contrary of the fact that he came towards her while she was standing at the basin with his penis in his hand. There is no evidence that he was anywhere on a carpet outside the room holding his penis when he encountered her. The evidence is he was inside the unit. You must decide the case based on the evidence, not on suppositions. The question can be put as to some event, but it is not the question that is the evidence, it is the answer. So if there is a denial that something happened, there is no evidence of it'. (e)Further, the judge told the jury that 'There is no evidence that he at any point attempted to cover his penis or hide his penis ... The only evidence is her evidence. Hers is the only evidence in the case as to what occurred in that bathroom'. (f)In relation to intent, the judge told the jury as follows: 'How do you tell what his intention was? The only evidence that he had any intention of an innocent type comes from what the complainant herself has said'. (g)Whilst the judge reminded the jury as to the accused's silence again, shortly after he also reminded the jury that 'the only evidence of the case as to what occurred was given by her as to what occurred in that unit'. (h)As to intention, the judge again reminded the jury that 'The only way in which you can determine whether he had any innocent intention if you like comes from her evidence. The only way that you can determine whether he had any guilty intention comes from her evidence. It is only her evidence as to any intention on his part. There is no evidence of any other type from anybody about his intentions. It all depends on her. The mere fact that you do not like some part of her evidence does not mean she lacks creditability [sic] generally or she should be disbelieved.' 13The jury could only have been left with the impression that crucial to the finding of intent was the fact that the appellant did not give a contrary version and that the complainant's truthfulness was determinative. In fact, the case for the appellant had been that, because of the inconsistencies (such as they were) as to a small number of objective facts, one could not conclude beyond reasonable doubt that the appellant had the requisite intent. This did not depend on truthfulness, but doubt as to accuracy based on past inconsistencies about a very brief episode. This was not fairly put to the jury. 14The unbalanced nature of the summing up meant that the appellant did not receive a fair trial. 15The conviction should be quashed. 16The application for leave to appeal against sentence, therefore, does not strictly arise. It is necessary, however, to explain why I would not order a retrial. 17Even putting to one side the report of Dr Nielssen, the sentence was manifestly excessive. His Honour imposed the six month sentence concerning the reckless driving that had been the subject of the bond. The combined sentence for the two offences was imprisonment for four years with a non-parole period of two years, the sentence of six months for count 2 being wholly concurrent with the penalty for count 1. His Honour found special circumstances. The assessment of the criminality involved includes the fact that this was opportunistic, occurring in a short time, with no actual or threatened violence. The indictable offence (in count 2) which he is taken to have been intending to commit for count 1 (an act of indecency) upon entering the building carries a maximum penalty of 18 months imprisonment. Considering the totality of the criminality involved, I can only conclude that this was an excessive response. This conclusion would be reinforced by the evidence of Dr Nielssen as to the probable chronic schizophrenia of the appellant. 18Because of my view as to the conviction appeal it is not necessary to re-sentence the appellant. Relevant, however, to any decision to put the appellant up for another trial is the fact that he has now served a custodial sentence referable to the principal offences as long as what I would consider to be the maximum possible non-parole period for the offence - about one year. 19The appellant has now served his sentence for the reckless driving offence, his bond under s 12 having been revoked. No additional penalty was imposed for the offences relating to the s 9 bonds, which were revoked. It is unnecessary therefore to deal with these matters in the orders. 20The orders that I would make are: (1)Appeal against conviction allowed; (2)Convictions on counts 1 and 2 on the indictment quashed. 21LATHAM J: I agree. 22DAVIES J: I agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2012