Wallace v R

1. [1]

   HARRISON CJ AT CL: I agree with Davies J.

2. [2]

   DAVIES J: The applicant was charged with one count of sexual intercourse without consent with a person under the age of 16 years and under his authority, contrary to s 61J(1) of the Crimes Act 1900 (NSW). He pleaded not guilty and stood trial before Judge Priestley SC and a jury in Coffs Harbour on 29 March 2023.

3. [3]

   The applicant was unrepresented at the trial. On 5 April 2023, the jury retired to consider its verdict. On the same day the jury returned a verdict of guilty.

4. [4]

   On 18 July 2023 Judge Priestly sentenced the applicant to imprisonment for 4 years 6 months commencing 5 April 2023 and expiring 4 October 2027 with a non-parole period of 2 years 6 months expiring 4 October 2025.

The offending:

1. [5]

   In about April 2011, LT, the complainant’s maternal aunt, married the applicant. In around June or July 2011, the complainant, AM, moved in with LT and the applicant in Coffs Harbour. Sometime around September 2011, the complainant went on a trip to Jindabyne with the applicant in his car to visit a friend and his friend’s daughter, C. LT did not go with them.

2. [6]

   While traveling to Jindabyne, the applicant asked the complainant, who was then aged 15 years, if she was his age, would she date him. She said, ‘I don’t know, maybe’, and felt awkward and uncomfortable.

3. [7]

   That night the complainant had dinner and watched TV with C in the living room. The complainant said she had a headache, so the applicant gave her some Panadol and she went to bed. The bed was in a room referred to as a ‘spare room with bunks’. She slept on the bottom bunk of the bed closest to the outside of the house. After falling asleep, the next thing she remembered was waking with pain in her vaginal area. She saw the applicant on top of her, and his penis was in her vagina.

4. [8]

   The complainant said she ‘was in a lot of shock’, and she ‘completely froze up’. She said the applicant was moving his penis inside and out of her vagina, and it felt like it went on for quite a while. After he stopped, he got off the complainant and lay on the other bunk bed.

5. [9]

   The complainant said she did not seek help from anybody that night because she did not know the people at the house, she was in a lot of shock, and she did not know what to do. The next day she spent most of the day by herself, and she went for a walk with C. She did not say anything to her about what had happened.

6. [10]

   The applicant and the complainant stayed for another night or two and then travelled back to Coffs Harbour.

7. [11]

   In the days following, the complainant did not say anything to anyone about what had happened. One day whilst at sport she broke down in the girl’s bathroom and a teacher consoled her, but the complainant did not say anything specific. Around that time she mentioned it to her friend NW. She did not say anything to her aunt because she did not want to disappoint her. She said her aunt seemed really happy in her relationship with the applicant.

8. [12]

   Later that year she told a cousin’s friend, EF, at a New Years Eve party. She told her that she was sexually assaulted on a trip to Jindabyne. She was distressed and was crying when she told her.

9. [13]

   After the Jindabyne trip, but before the complainant went to live with her nan, there were a few instances when she and the applicant were sitting on the lounge watching horror movies and he put his hand on her thigh. There were also a number of mornings when, after her aunt had left for work, the applicant would wake her up by lying in bed next to her and tickling her on the stomach above her clothing.

10. [14]

    About a month later, the complainant ran away from the house where her aunt and the applicant lived because she did not want to live with them anymore. While she was en route to her nan’s place at Bonnells Bay, the police called her to check on her. She said she had been assaulted and did not want to live with her aunt anymore. The police officer asked if she wanted to press charges and she said that she did not.

11. [15]

    On the day the complainant moved in with her nan, she told her that the applicant had sexually assaulted her, which was the reason why she wanted to live with her nan. Her nan suggested she called her father. She did so, and she told her father the applicant had sexually assaulted her. She told her mother also on the same day.

12. [16]

    Around late 2018 or early 2019 the complainant contacted the police. She did not complain to the police earlier as she did not have a lot of support. She also had a lot of fear around what would happen.

13. [17]

    It is not necessary to detail the complaint evidence. It is sufficient to note that evidence of complaint was given by EF, the complainant’s mother, the complainant’s father, the complainant’s nan and the complainant’s aunt.

14. [18]

    The matters referred to at [6] and [13] above were admitted as tendency evidence.

Grounds of appeal

1. [19]

   The applicant now seeks leave to appeal against his conviction on the following grounds:

2. [20]

   The Crown conceded that ground 3 was made out. For the reasons which follow, that concession was properly made. If ground 3 is upheld, the result must be that the applicant’s conviction will be quashed and a new trial ordered. In those circumstances, the parties agreed that it was not necessary to consider grounds 1 and 2.

Ground 3: The trial miscarried because the applicant was denied the benefit of a good character direction or, in the alternative, a “limited" good character direction

1. [21]

   No character direction of any sort was given by the trial judge.

2. [22]

   The applicant’s criminal history, which was tendered on the hearing of the appeal but was not before the trial judge, showed that he had a conviction in 1991 for stealing for which he was placed on a 12 month recognisance under s 558 of the Crimes Act (now repealed). In 1998 he was convicted of possession of a prohibited drug, self-administration of a prohibited drug, and possession of equipment for administering of a prohibited drug. For each of those offences he was fined $140. He had no other offences on his record including sexual or violence offences.

3. [23]

   The question of the applicant’s character arose for the first time on the day before the jury was empanelled. The trial judge was giving some general advice to the applicant about the conduct of the trial. The following exchange occurred:

4. [24]

   Towards the end of the trial the trial judge was considering jury directions. During a break in the evidence of the officer in charge, the following exchanges occurred:

5. [25]

   Shortly after that discussion, the Crown prosecutor returned to the matter saying:

6. [26]

   The matter was not thereafter discussed and, as I have noted, no character direction of any sort was given.

7. [27]

   This was not a judge-alone trial. It is a little difficult, therefore, to understand why the trial judge did not want to understand about the prior record of the applicant so that his Honour could both advise the applicant generally about character directions, and also give a limited character direction (if the appropriate evidence was given by the officer in charge), where the jury was at least directed that they could take into account that the applicant had no prior convictions for offences involving sex or violence, and what followed from that.

8. [28]

   Whilst it may be accepted that a trial judge retains a discretion as to whether to give a direction about good character (Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 at [30]-[31]), it is wise for such a direction to be given if it is asked for: Melbourne at [75]-[76]; Simic v The Queen (1980) 144 CLR 319 at 333).

9. [29]

   There can be no doubt that evidence of an accused’s good character in a trial on sexual assault offences may well play a significant role in the outcome of the trial: JV v R [2017] NSWCCA 49 at [122], and it would not be inappropriate for the judge to direct the jury that they should bear in mind the accused’s good character as a factor affecting the likelihood of the accused committing the crime charged: Kanbut v R [2022] NSWCCA 259 at [32].

10. [30]

    It is difficult to conclude that such evidence and the direction that the accused had never been previously convicted of an offence involving sex or violence would not have been a matter of some importance to the jury when the outcome of the trial depended very largely on acceptance of the evidence of the complainant, including in relation to the tendency evidence.

11. [31]

    The Crown quite properly conceded at the hearing of this appeal that it was open to this Court to conclude that it would have been appropriate for the trial judge to have given at least a limited good character direction and that the failure to do so gave rise to a miscarriage of justice.

12. [32]

    Notwithstanding the very considerable assistance provided to the applicant by the trial judge in what was clearly a difficult trial, the trial judge ought to have informed himself about the applicant’s criminal record so that his Honour could explain to the applicant the benefit of obtaining evidence from the officer in charge that he had no prior convictions for offences involving sex or violence, and the benefit of a limited character direction in that regard being given to the jury.

13. [33]

    In my opinion, the failures in this regard resulted in a miscarriage of justice.

14. [34]

    This ground should be upheld.

Conclusion

1. [35]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Uphold ground 3 of the appeal.

   3. (3)

      Quash the conviction of the appellant.

   4. (4)

      Order a new trial.

   5. (5)

      Stand the matter into the arraignments list in the District Court on 11 October 2024.

2. [36]

   RIGG J: I agree with Davies J.