Budrodeen v R

BEAZLEY ACJ: On 30 September 2015, the applicant pleaded guilty to one count of sexual intercourse with a person between the age of 14 and 16 years contrary to the Crimes Act 1900 (NSW), s 66C(3). The applicant had originally been further charged with two counts of indecent assault on a person under the age of 16 years contrary to the Crimes Act, s 61M(2). The Crown did not proceed with these charges.

The applicant had been in custody from January 2014. The trial judge proceeded to sentence the applicant on the day of the entry of his plea, and imposed a period of imprisonment of 3 years and a non-parole period of 1 year and 8 months, which was coextensive with the time that he had already spent in prison on remand. The applicant was consequently released on parole immediately.

The applicant seeks leave to appeal against his conviction on two grounds, alleging:

In oral submissions on the appeal, the applicant informed the Court that he was seeking an acquittal and not a retrial.

As at the date of the offence, the complainant was a 15 year old school student who had been at a hotel in the company of his parents and family. There were a number of areas in the hotel where persons under the age of 18 years were entitled to be present, including the bistro area. The courtyard and public bar were not approved for the presence of minors.

The complainant and his parents were known to the staff at the hotel. Mr Justin Ireland, who was working at the hotel that night had provided a statement to the police in which he said he had known the complainant’s mother for about 6 years and that she attended the hotel when functions and special events were on and that she was very conscious of the areas of the hotel in which the complainant was permitted to be present. He also said that he had been working on 23 October 2012 and that the complainant did not enter the public bar or the smoking area. He said that he was aware the complainant was being served coke and that on one occasion a staff member took a can of coke to the complainant when he was outside.

The complainant’s mother and stepfather left the hotel at about 7:00pm. The complainant’s mother had made arrangements for a taxi to be called for the complainant. The applicant, who was a taxi driver/owner and who was working that night, responded to the radio call and picked up the complainant from the front of the hotel shortly after 7:30pm. The complainant sat in the front seat of the taxi. Stated briefly, the sexual assault to which the applicant pleaded guilty occurred when the applicant stopped his taxi during the course of driving the complainant to his home, which was his booked destination. The complainant and his parents reported the matter to the police later that night.

The day following the incident, the applicant participated in an electronic record of interview (ERISP). The ERISP records that when he was first questioned by police about the incident earlier in the day, the applicant told police that the complainant told him that he was 16 and that the sexual conduct was consensual, as the complainant had got into the back of the taxi willingly. In a conversation with another police officer prior to, but also recorded in the ERISP, the applicant said that he thought that the complainant was 18, having come out of a “gay pub”. In his ERISP, he said:

On the day following the incident, the complainant also participated in an interview conducted by the same police officer as had conducted the interview with the applicant. The complainant gave a description of what he alleged occurred. The complainant said that he and the applicant had discussed where he worked and that he had told the applicant that he went to school but only had one week left because he was an apprentice chef. The complainant stated that the applicant asked if he (the complainant) was gay, to which the complainant replied “[n]o”.

The applicant first commenced to touch the complainant on the outside of his clothing whilst still driving. He then drove to an industrial area and got into the back seat of the taxi. At the applicant’s suggestion, the complainant also got into the back seat where the assault, which was captured on a CCTV camera in the taxi, occurred. The complainant then asked the applicant to drive him to an alleyway near his house, as he did not want the applicant to know where he lived. He did not state in that record of interview, nor was he asked, whether the applicant had asked him his age.

The charges against the applicant were listed for a jury trial before Ellis DCJ to commence on 28 September 2015. This was to be the second trial of the applicant. The applicant had previously been convicted of all three charges, but those convictions had been set aside on appeal and a new trial ordered. The applicant was legally represented at the second trial, as he had been at the first trial.

Prior to the jury being empanelled, a number of matters were raised before the trial judge relating to the conduct of the trial, including the fact that the applicant was seeking leave to adduce evidence of a prior inconsistent statement made by the complainant to a police officer in March 2012. The inconsistency was said to relate to precisely what the complainant had told the applicant about whether or not he still went to school.

The purpose of seeking to adduce the evidence was so that, if it was admitted in the pending trial, the applicant could seek to challenge the complainant’s credit on the question whether the complainant told the applicant he was 15, or whether, as the applicant alleged, he said he was 16. That was a critical matter as, if the jury accepted that the complainant told the applicant he was 15, there could be no question that the applicant held an honest or reasonable belief that the complainant was over 16.

The Crown did not intend to call the complainant at the second trial: see the Criminal Procedure Act 1986 (NSW), s 306C. Section 306C is contained in Pt 5, Div 3 which relates to “special provisions relating to retrials of sexual offence proceedings”. Section 306C provides that:

The Crown accordingly resisted the application as the complainant would not be available to explain or otherwise deal with the alleged inconsistency. In other words, his credit may have been impugned without the jury hearing and seeing the complainant directly and without having any evidence from him on this particular statement.

Notwithstanding these difficulties, the trial judge ruled in the applicant’s favour and ordered that the evidence could be adduced, a ruling which might have been seen as a significant forensic victory for the applicant. His Honour then stood the matter over to the following day, 29 September 2015. On the morning of 29 September, the applicant’s counsel informed Ellis DCJ that he had had a conference with the applicant who had given him certain instructions as a result of which he had made an “offer” to the Crown. It is apparent from what occurred the following day that the offer was of a plea to the charge under s 66C of the Crimes Act on the basis that the Crown offered no evidence on the other two charges.

The matter was adjourned until the following day, 30 September 2015 when the applicant was re-arraigned and pleaded guilty to the charge under s 66C. No evidence was adduced on the other two charges. The matter proceeded immediately to a sentence hearing on agreed facts, which essentially replicated the information in the complainant’s interview.

As the applicant pleaded guilty, the issue to be determined on an appeal against his conviction is the “integrity of the plea”: see R v Rae (No 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at [21] per Giles JA, Hislop and Rothman JJ agreeing. In pleading guilty, the applicant admitted the elements of the offence: see Meissner v The Queen (1995) 184 CLR 132 at 157. In Meissner, the plurality (Brennan, Toohey and McHugh JJ) stated, at 141:

Dawson J, at 157, explained the governing principle as follows:

Dawson J acknowledged that there were other circumstances in which a miscarriage of justice might be established so as to enable a party to withdraw a plea of guilty and have the conviction set aside. His Honour instanced, by way of example, where the plea of guilty “was induced by intimidation of one kind or another, or by an improper inducement or by fraud”.

The authorities have identified other circumstances in which a miscarriage of justice may have occurred such that a conviction following a plea of guilty may be set aside. These include situations in which: the person did not appreciate the nature of the charge to which the plea was entered: R v Ferrer-Esis (1991) 55 A Crim R 231; the plea was not a free and voluntary confession: R v Chiron [1980] 1 NSWLR 218; the plea was not attributable to a genuine consciousness of guilt: R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1996, unreported); Maxwell v The Queen (1996) 184 CLR 501 at 511; or the person was not in possession of all the facts and did not entertain a genuine consciousness of guilt: R v Davies (1993) 19 MVR 481 at 485.

In Rae (No 2), Giles JA explained, at [20]

His Honour further observed, at [25], that even if the circumstances that have been referred to in the authorities were established:

In support of ground 1 of the appeal, namely, the destruction of evidence, the applicant relied upon the following matters:

The applicant stated that he did not dispute, and had never disputed, that the conduct the subject of the charge had occurred. However, he disagreed that he knew that the applicant was under the age of 16 years. The applicant said that as the complainant had been at the hotel and that he, the applicant, could smell alcohol on the complainant’s breath, he thought the complainant must be 18 years of age, but considered that he looked younger than that. He said, therefore, that he asked the complainant how old he was and the complainant said that he was 16. The applicant also submitted that the complainant might have said that he was 15, but that he could have misheard what he said, over the noise of the traffic outside the taxi.

The Crimes Act, s 317 provides:

The applicant complained that the manager on duty at the hotel, Justin Ireland, failed to provide all of the available CCTV footage of all areas of the hotel for the period during which the complainant was at the hotel. At the first trial, the statement of Mr Ireland, to which reference is made above at [6], had been tendered through Detective Sergeant Aylett. Mr Ireland did not give oral evidence. Mr Ireland’s statement was placed before this Court through an affidavit of Ms Meagan Betteridge, solicitor in the Office of the Director of Public Prosecutions. The applicant did not object to the affidavit being read.

In the statement, made on 22 August 2012, Mr Ireland stated that there were 24 cameras in the hotel that recorded CCTV footage. He identified where each camera was located and stated that he had been asked to provide all footage that showed the complainant’s location in the hotel throughout the evening period. Mr Ireland stated that for that reason, he had provided footage from three cameras only and not from all 24 cameras. The footage provided was from camera 3, located across the side of the public bar; camera 5, located in the bistro; and camera 6, located in the corridor of the hotel entrance.

Detective Sergeant Aylett gave evidence at the first trial that he had reviewed that CCTV footage and that it was apparent from that footage that the complainant did not enter the public bar or the smoking area during that evening. There was no cross-examination of the police officer in respect of that evidence.

In his oral submissions on the appeal, the applicant complained that the decision as to what footage from the CCTV cameras was provided to the police investigators ought not to have been left to Mr Ireland. He also made reference to the fact that the complainant’s mother was a friend of Mr Ireland. The applicant contended that the video evidence inside the hotel was critical and could have swayed a jury’s decision. However, the video evidence was not before the Court so it is not possible to determine what it did or did not reveal other than that which was disclosed in the evidence to which I have referred. Importantly, no argument was raised before Ellis DCJ on either 28 or 29 September 2015 that there may have been evidence in the CCTV footage from the other cameras that was critical, or may even have been relevant, to the applicant’s case.

As the provisions of the Crimes Act 1958 (Vic) have no bearing on proceedings in New South Wales, it is not necessary to discuss that aspect of the applicant’s submissions. The same position pertains in respect of Art 11 of the United Nations Universal Declaration of Human Rights. The Declaration is not a binding part of Australian domestic law: Kioa v West (1985) 159 CLR 550 at 570-571 per Gibbs CJ, although it is a central tenet of the law in Australia that every person is innocent until proven guilty. This tenet applied to the applicant up until the time he pleaded guilty. As I have already stated, by pleading guilty to the offence, the applicant admitted the elements of the offence.

Contrary to the applicant’s submission, there was nothing in the material placed before this Court to indicate that the CCTV footage in the hotel was suppressed, concealed, or destroyed. There was no evidence that a complaint to this effect had been raised at the first trial and, as is apparent from the transcript, no complaint was made about the absence of further CCTV footage, nor was any application made for the additional CCTV footage to be produced. The applicant’s plea was entered after he gave instructions to his counsel. No complaint is made about the conduct of counsel.

In my opinion, nothing has been demonstrated under this ground of appeal that raises any doubt as to the integrity of the plea.

In support of ground 2, the applicant raised the following matters:

In Ridgeway v The Queen (1995) 184 CLR 19 at 29-30 per Mason CJ, Deane and Dawson JJ; 46 per Brennan J; 56-57 per Toohey J; 72-73 per Gaudron J; and 82 per McHugh J, the High Court held that there was no substantive defence of entrapment available under Australian common law.

The material upon which the applicant relies in support of each of the matters particularised in points A–I above was presented to the Court as annexures to his written submissions. This course was not objected to by the Crown. The applicant contends that he has been the subject of harassing conduct by the police and others as particularised in these paragraphs, due, in part at least, to his complaint regarding an alleged child sexual offence by a serving police officer.

The complaint referred to in point A above was made to the New South Wales Ombudsman on 10 August 2011. The Ombudsman referred the complaint to the New South Wales Police Force for investigation. However, the New South Wales Police Force advised the applicant on 19 September 2011 that it had determined not to investigate the alleged conduct.

In point B above, the applicant contends that the police were employing the services of security personnel to stalk, intimidate and harass him. In support of this complaint, he annexed a photograph of a security vehicle outside his home taken one week after he moved into that address. There was no evidence as to why the security vehicle was in front of his home or whether it was there on any subsequent occasion. There was no evidence that the police had arranged with the security firm for the car to be parked there. There was no evidence that any person was taking photographs or otherwise undertaking surveillance of the applicant or the applicant’s home. This particular submission rises no higher than a suspicion or belief held by the respondent.

In respect of point C, the applicant relies upon the fact that the voice recording of the booking for a taxi to pick up the complainant from the hotel, the booking which he contended had been deliberately directed to him as part of a “set up”, had been corrupted and thus could not be produced at trial. It should be observed, however, that the Manager of Newcastle Taxis advised the applicant’s solicitors that Newcastle Taxis would co-operate in every way possible and would attend court for the purposes of being cross-examined as to the unavailability of the voice recordings. So far as this Court is aware, no one from Newcastle Taxis was required to attend court to give evidence at the first trial or, for that matter, at the second trial.

The applicant next alleged, in point D, that the police had “vexatious intelligence” about him which they had presented to the Newcastle Magistrates Court five weeks prior to his arrest in relation to this matter. The matter in the Magistrate’s Court related to a charge of using a hand-held mobile phone when he was not permitted to do so. The incident in question in that matter occurred on 26 January 2011. It appears that on that occasion, the police had stopped the applicant when he was driving a taxi and required his passengers to alight from the taxi. Other photographic evidence apparently depicts the applicant being held on the ground by a number of police officers.

The COPS report for the incident recorded that the police believed that the applicant’s actions “were unprofessional and highly inappropriate, given the situation”. The report continued that:

The transcript of the hearing before the Magistrate was not in the material provided by the applicant so this Court does not know what evidence was presented to the Magistrate. The applicant does not assert that any of the material that he has provided to this Court was tendered at his first trial or used in any way in the criminal proceedings on the sexual assault charges against him.

The applicant next said, in point E, that he was being pursued by the police, which included the use of Pol-Air, the New South Wales Police helicopter, for months prior to his arrest. This pursuit was also said to include an incident at 1:00am on the Saturday week prior to his arrest. There was no evidence to support this complaint.

The applicant, in support of point F, presented to the Court a strip of brightly coloured pink paper which he said had been placed in his mailbox and which he said was “gay paraphernalia”. In his oral submissions, the applicant held up other strips of paper and said that they had been placed there by the complainant’s brother. There is no evidence that the complainant’s brother placed anything in the applicant’s mailbox, or that the police did so, or directed or requested any other person to do so.

The applicant, in point G, said that he had been accused of making a terrorist threat by the New South Wales Police prior to his arrest on the sexual assault charges. There was no evidence of this before the Court.

The next complaint, in point H, was that the New South Wales Police/security personnel had “preyed on [his] mental health”. The applicant provided to the Court documents dated 2008 and 2009 from the Mental Health Review Tribunal (Queensland). This material revealed that an involuntary treatment order had been in respect of the applicant and that he had unsuccessfully appealed from the making of that order. There was no evidence before the Court that this order, or the appeal from it, was in any way related to the offence to which he pleaded guilty. Nor was there any material placed before the Court that indicated that the police who investigated this offence were aware of the applicant’s mental health history in general or of the involuntary treatment order or the appeal from that order.

Finally, in point I, the applicant complained that the New South Wales Police Commissioner had made a “threat” on television that any person who made a complaint against “his staff” would face a mandatory two year jail sentence. No television footage or transcript was placed before the Court to support this particular. Given that there is no such offence, the Court cannot accept that any such statement was made by the Police Commissioner. Even if it could be assumed, for the purposes of argument, that the Police Commissioner made any such public statement, there is nothing that would indicate that the Police Commissioner had any knowledge of the applicant, or of his relationship with the Police.

In summary, the various particulars said to support ground 2 are that because of the applicant’s conduct in making a complaint against the police, the police had engaged in a campaign of harassment against him. It would seem that the essential allegation in respect of any entrapment was that Newcastle Taxis deliberately directed the relevant booking request to the applicant, and thus in some way set him up, and that the police were implicated in this. There was no evidence to support any such contention. It is true that the voice recording of the booking is not available. However, the Manager of Newcastle Taxis said he was available to give evidence that the voice recording had been corrupted.

Further, for the allegation of entrapment to have any basis, it would also have to be shown that the police, or Newcastle Taxis, knew that the person for whom the taxi was booked was under 16 years of age and that it was for that reason that the booking was directed to the applicant. It might also be that this allegation required the complainant to be involved in the “set up”. There was no evidence of any of this. There was nothing in the material presented to the Court to indicate that the police knew that a taxi had been called for the complainant or to point to any reason why Newcastle Taxis might engage in any entrapping conduct.

As entrapment does not constitute a common law defence to a criminal charge, there is nothing in what has been presented to the Court that indicates, let alone establishes, that the integrity of the plea was impugned or that otherwise casts doubt upon the applicant’s guilt. This ground must also be rejected.

I would grant leave to appeal but dismiss the appeal.

ADAMSON J: I agree with Beazley ACJ.

WILSON J: I agree with Beazley ACJ.