Appeal Against Sexual Assault Conviction Dismissed

The Court of Criminal Appeal dismissed an appeal against a conviction for sexual assault. The appellant claimed a miscarriage of justice due to police investigation delays and juror misconduct. The court rejected these claims, upholding the original conviction.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] (aka CREIGHTON), [NAME] v R [2013] NSWCCA 153 Hearing dates: Friday 7 June 2013 Decision date: 03 July 2013 Before: Hoeben CJ at CL at [1] Hidden J at [2] Fullerton J at [37] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - appeal against conviction - charges of sexual assault - a number of potential witnesses not called in the [NAME] case - fresh material served on [NAME] during course of the trial - suggested misconduct by juror - whether miscarriage of justice Legislation Cited: Evidence Act 1995 [NAME] Act 1977 Cases Cited: - [NAME] v The Queen (1989) 168 CLR 79 - R v Skaf [2004] NSWCCA 37, 60 NSWLR 86 Category: Principal judgment Parties: [NAME] (appellant) [NAME] ([NAME]) Representation: Counsel: [redacted] [NAME] ([NAME]) Solicitors: [redacted] [NAME] - Solicitor for Public Prosecutions ([NAME]) File Number(s): 2010/233760 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-04-20 00:00:00 Before: Toner DCJ File Number(s): 2010/233760

Judgment 1HOEBEN CJ at CL: I agree with Hidden J. 2HIDDEN J: The appellant, [NAME], was found guilty at trial in the District Court of four counts of sexual assault, and was sentenced to a term of imprisonment. He appeals against conviction only. 3Given the nature of the grounds of appeal, it is unnecessary to recite the facts. It is sufficient to say that the complainant of the offences was the appellant's cousin. His name is not [NAME]. He was aged between 15 and 16 years at the time. The offences occurred in 1998 and 1999. The appellant and the complainant were members of a [NAME], which at the relevant time was living in the Newcastle area, having moved there from Moree. Another cousin of the appellant, [NAME], was playing football for the [NAME] team. The family home was at North Lambton, but [NAME] was living in a unit at Adamstown. Sometimes the appellant stayed with a family friend, [NAME], who lived in a townhouse also at Adamstown. 4The complainant's evidence was that the first offence occurred at Mr [NAME]'s home in about May 1998. Other family members were at the home on the occasion but at the time the offence occurred they had left to buy some alcohol. 5The second and third offences occurred on another occasion, sometime in the winter of 1998, at [NAME]'s unit, where the complainant was staying overnight. Again, various members of the family, together with [NAME] and two other men, [NAME] and [NAME], had been at the unit, but had left with [NAME] to go out for drinks. The offences occurred in their absence, and after them the complainant locked himself in [NAME]'s room. It was sometime later that [NAME] returned to the unit. 6The fourth offence occurred in February 1999 at the family home at North Lambton. Yet again, other members of the family were at the home. The complainant excused himself from the gathering and went to sleep in a granny flat in the backyard. He was woken by the appellant, and it was there that the offence was committed. 7The complainant told no-one about any of this until 2007, and in November of that year he made a statement to the police. The appellant was not arrested until 1 July 2010, and the trial took place between late February and early March 2012. 8There are two grounds of appeal: (1) The unsatisfactory police investigation and the continuous service of critical fresh evidence, after the trial had commenced, has resulted in a substantial miscarriage of justice. (2) The trial miscarried by reason of the misconduct of a juror, locating a relevant witness during the trial. Neither the prosecutor (a trial advocate) nor [NAME] counsel at the trial appeared in this court.

1. Investigation and conduct of the trial 9Counsel for the appellant, [NAME], pointed out that almost 3 years elapsed between the complaint to police and the arrest of the appellant, a delay which she said was not adequately explained. The officer in charge of the investigation, [NAME], gave evidence of problems in the course of the investigation, including difficulties in contacting some potential [NAME] witnesses and the refusal of others to assist police. In the result, statements had not been obtained from [NAME] and six members of the extended family, including [NAME]. 10It is not for this court to assess the efficiency and adequacy of a police investigation, except in so far as it might bear upon whether a miscarriage of justice occurred. It is not apparent that the delay, of itself, caused a miscarriage of justice in the present case. Nor, in the event, did [NAME] articulate one. As was pointed out by the [NAME], who appeared with [NAME] for the [NAME], substantial delay between the events complained of and the trial is common enough in cases of this kind. The trial judge gave a thorough direction to the [NAME] about the forensic disadvantage to the appellant from the delay, in accordance with [NAME] v The Queen (1989) 168 CLR 79. No complaint was, or could have been, made about that direction. 11However, the matter does not end there. There appears to have been a flurry of investigative activity at or about the time of the trial, leading to the service on the appellant's legal representatives of new material in the course of the trial. 12A number of additional statements, including two statements by the complainant, were served on the [NAME] shortly before the trial commenced and while it was running. [NAME] counsel appeared to be able to cope with this, assisted on one occasion by an examination of the complainant in a [NAME] enquiry. At no stage did he seek the discharge of the [NAME]. It is unnecessary to go to the detail of these statements. It is sufficient to refer to the issues to which they relate. 13The first of those was evidence of complaint. Prior to the trial the only evidence on that question was that the complainant had told his sister what had happened to him. This was in the context of the sister's allegation that the appellant had sexually assaulted her and another sister. However, in an additional statement made on the first day of the trial the complainant said that he had complained to his [NAME] towards the end of July 2007. This followed a suicide attempt by him (a matter which he had revealed in his initial statement to the police, without reference to any complaint to his [NAME]). [NAME] had since died. In this additional statement he also said that he complained to his father in early August 2007. This was the subject of the [NAME] enquiry. 14The trial judge rejected evidence of the complaint to the sister and of the suicide. (I should add that the appellant was later acquitted in the [ADDRESS] of the charges relating to his sisters.) However, on the second day of the trial the complainant did give evidence before the [NAME] of the complaint to his [NAME] and to his father. 15The father had made a statement to the police before the trial, in which he said nothing about the complainant having made any complaint to him. However, on the third day of the trial the father made an additional statement in which he did recount such a complaint. In that statement the father said that around the middle of 2007 he was told by [NAME] about the complainant's attempt at suicide. Some time later his daughter told him that the appellant had molested her and her sister, and also the complainant. Some time later again, he and [NAME] took the complainant for a drive to a lookout, where he confronted the complainant about the matter and demanded to be told the truth. The complainant then said that the appellant had raped him. He explained that he had been reluctant to tell his father about it because the appellant was the father's favourite nephew and he did not think that anyone would believe him. His father offered him his full support, and it was shortly thereafter that the matter was brought to the attention of police. 16The complainant's evidence of his complaint to his father was to much the same effect but, as I have said, he placed it in early August 2007 and, according to him, it was made in the course of a telephone conversation with his father. 17On the fourth day of the trial, when the complainant had completed his evidence in chief but was yet to be cross-examined, the trial advocate and [NAME] counsel agreed that the father would not be called to give evidence but the [NAME] would be presented with a document setting out agreed facts, pursuant to s 191 of the Evidence Act 1995, concerning his two statements. That document was admitted later that day. It said: "1 The complainant's father ... made two statements to the police in relation to this matter on 21 December 2007 and 29 February 2012. 2 In neither of those statements did [the father] say that he had ever spoken to his son ... on the telephone in around August 2007. 3 In neither of those statements did [the father] say his son ... had ever told him in around August 2007 that he had been 'raped by [the appellant]'." 18In the event, then, the evidence of complaint to the appellant's sister was rejected. The evidence of complaint to [NAME] was admitted, stripped of its context following a suicide attempt. As to that evidence, his Honour cautioned the [NAME] that it may be unreliable because [NAME] was not available to give evidence. The complainant's evidence of complaint to his father was admitted, but the [NAME] were told that his father's statements did not support that evidence. While it is true that this evidence had to be dealt with in the first days of the trial, it emerged more favourably to the appellant than it might have done. It does not appear to me that this course of events gave rise to a miscarriage of justice. 19One further matter should be mentioned. Also on the fourth day of the trial, the complainant made yet another statement. In that statement he did describe the complaint to his father having occurred at the lookout. He said that both his father and [NAME] asked if he was "gay" or "straight", adding that it would be "perfectly alright" if he was gay. He said that he was straight. In written submissions [NAME] also complained that this evidence was not led, arguing that the suggestion that he was gay might have given the complainant a motive to fabricate his evidence against the appellant. 20This submission appears to have been founded upon the mistaken belief that the conversation about whether the appellant was gay emerged from the father's statement. It did not; it appeared only in the additional statement of the complainant. It was material available to [NAME] counsel, about which he could have cross-examined the complainant if he wished. Whether cross-examination about that matter might have been a sound tactical decision is debateable. Counsel's choice not to do so could hardly be criticised. 21The other matter about which additional evidence was served after the trial commenced related to the complainant's schooling in 1998 and 1999, the years during which the offences were said to have been committed. The material disclosed his enrolment at the school in 1998 and term dates and school vacations in 1998 and 1999. This material was used to help establish the dates of the offences, a matter of significance because the first three counts alleged sexual assault in a circumstance of aggravation, being that the complainant was under 16 years of age at the time. 22Again, [NAME] counsel dealt with this material and did not seek a discharge of the [NAME] because of it. The primary argument which [NAME] mounted in written submissions relating to this evidence was not pressed at the hearing of the appeal. 23Certainly, the amount of evidence that was served upon the [NAME] at the eleventh hour was unusual, causing his Honour at one stage to criticise the adequacy of the investigation. In written submissions [NAME] argued that a miscarriage of justice arose "out of [NAME] counsel's inability to adequately reflect upon and properly consider the new evidence and its implications to the nature of the case as it was unfolding - let alone any chance to further investigate or question" the material served. However, [NAME] counsel apparently did not see it that way and, apart from that broad assertion, [NAME] was unable to articulate any specific basis upon which a miscarriage might be found. 24Finally, as to the potential witnesses who were not called, [NAME] noted the length of time between the trial and the events alleged and the need for as much evidence as possible of the surrounding circumstances. In addition, the appellant had suffered a significant brain injury in a car accident in 2001, and had no memory of the relevant events in 1998 and 1999. He did not give evidence at the trial. 25However, apart from the complainant's father, it is not known what any of those witnesses might have said. In the event, the only witnesses in the [NAME] case were the complainant and [NAME]. Yet again, this was not the subject of complaint by trial counsel and one could imagine that he might have been content that the trial was conducted in that way. The complainant's evidence stood alone and, as the Chief Judge suggested in argument, [NAME] counsel may have taken the view that "less is more." His Honour gave the [NAME] directions about the absence of these potential witnesses, and about the appellant's memory difficulties, which were favourable to the appellant. 26Accordingly, I am not persuaded that the matters raised under this ground, individually or collectively, establish a miscarriage of justice. This ground is not made out.

2. The juror 27It was on the fourth day of the trial that [NAME] gave evidence. In the course of explaining his difficulties in obtaining statements from potential witnesses, he said that he had been informed that [NAME] was in China on business. As the [NAME] were leaving the court at the end of that day's hearing, a juror had a conversation with one of the sheriff's officers about the whereabouts of [NAME]. The officer reported what occurred in a note to the trial judge, as follows: "A male juror said that I know the location of [NAME]. He is at Wallsend Oval now playing football." The note went on to record that the officer told the juror that he should not discuss any aspect of the trial with sheriff's officers. 28His Honour discussed the matter with the trial advocate and [NAME] counsel the following morning. The sheriff's officer told the court that other jurors were in the immediate vicinity when the juror spoke to him. By agreement, his Honour gave a direction to the [NAME] to the effect that the only evidence before them was that [NAME] was in China, and that the statement by the juror to the contrary should be ignored. He emphasised that the case was to be decided on the evidence heard in court, the addresses of counsel and his directions of law. 29Ms [NAME] submitted that these directions were insufficient to guard against a miscarriage of justice. She argued that his Honour should have enquired how the juror knew of the location of [NAME], adding that this court could not be satisfied that the juror had not made enquiries of his own and may even have himself spoken to [NAME] about the matter. This, she said, would have amounted to juror misconduct akin to that identified in R v Skaf [2004] NSWCCA 37, 60 NSWLR 86. 30In Skaf two jurors had privately inspected the area where the offences were said to have occurred, there being an issue whether the complainant could have identified the accused in the lighting available at the scene. The appellant had been convicted, but the Court of Criminal Appeal ordered a new trial because it could not be satisfied that there had not been a material irregularity affecting the verdict. However, the court accepted a [NAME] submission that "the simple fact that the jurors went to the park for a private view, whilst clearly wrongful, did not of itself amount to a material irregularity." Their Honours added that the "issue of materiality depends of what was actually seen and done at the park": [267] (p 102). Clearly, the present case is very different from Skaf. 31This trial was held at Newcastle. It is highly likely that members of the [NAME] knew of [NAME] because he played for the [NAME]. At the outset of the trial, in the course of addressing the [NAME] panel in accordance with s 38(7)(a) of the [NAME] Act 1977, the trial advocate said that [NAME] might be mentioned in the evidence, and that he was "a professional footballer that played for the [NAME] around the time that the facts are concerned with in this case ... ." After the [NAME] was empanelled, in the course of conventional opening directions, his Honour told the [NAME] that they must not make any enquiries outside the courtroom about any matter relating to any of the issues in the trial, and that they should not discuss the case with anybody except their fellow jurors and only when they were all together in the [NAME] room. 32His Honour was not asked to examine the juror to determine the source of his knowledge of [NAME]'s whereabouts. In discussion with counsel, he observed that it was probably information the juror had "anyway." [NAME] counsel responded that that was perhaps the case but that, in any event, he did not want to "set off a chain of enquiry by that particular juror or anything ... ." 33The appellant's legal representatives in the appeal did not seek to set in train an investigation into the matter by the sheriff under s 73A of the [NAME] Act. However, at the hearing [NAME] submitted that that was an option this court could consider. Upon reflection, I do not believe that an investigation is necessary. 34It might have been preferable for his Honour to have examined the juror. Nevertheless, the likely explanation for the juror's observation is that he was aware that [NAME] was playing football at that particular oval because of [NAME]'s prominence as a footballer in the area. Certainly, in the time between [NAME]'s evidence that he believed [NAME] to be in China and the juror's disclosure to the sheriff's officer, the juror would have had no opportunity to make his own enquiries about [NAME]'s whereabouts. 35If the juror had personal contact with [NAME] before the trial, one would have expected him to come forward when the prosecutor addressed the panel under s 37(7)(a); and if he had had any discussion with [NAME] about the trial while it was in progress, he would have been in breach of his Honour's clear directions after the [NAME] was empanelled. The possibility that there was an irregularity through the juror's contact with [NAME] is no more than speculative. Here again, I am not persuaded that this incident gave rise to a miscarriage of justice. This ground also is not made out. 36I would dismiss the appeal. 37FULLERTON J: I agree with Hidden J.

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