Juan Carlos Cruz(Appellant) v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Mossop J,Bromwich J,Robinson AJ
• Judgment Date: 23 October 2017
• Docket Number: File Numbers: ACTCA 44 of 2016
• Date: 23 October 2017

[2017] ACTCA 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Mossop, Bromwich JJ and Robinson AJ

File Numbers: ACTCA 44 of 2016

ACTCA 45 of 2016

Juan Carlos Cruz

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

G D Wendler (Appellant)

M Jones (Respondent)

Cases Cited:

Aytugrul v The Queen [2012] HCA 15 ; 247 CLR 170

Dinsdale v The Queen [2000] HCA 54 ; 202 CLR 321

Hili v The Queen [2010] HCA 45 ; 242 CLR 520

House v The King (1936) 55 CLR 499

IMM v The Queen [2016] HCA 14 ; 257 CLR 300

M v The Queen [1994] HCA 63 ; 181 CLR 487

Morris v The Queen [1987] HCA 50 ; 163 CLR 454

R v Bull [2004] ACTCA 8

R v Doff [2005] NSWCCA 119 ; 54 ACSR 200

R v GE [2014] ACTSC 181 ; 242 A Crim R 41

R v Pham [2015] HCA 39 ; 256 CLR 550

R v Sophear Em [2003] NSWCCA 374

R v Suteski [2002] NSWCCA 509 ; 56 NSWLR 182

R v Williams [2014] ACTCA 30

SKA v The Queen [2011] HCA 13 ; 243 CLR 400

The Queen v Baden-Clay [2016] HCA 35 ; 258 CLR 308

The Queen v Hillier [2007] HCA 13 ; 228 CLR 618

Wong v The Queen [2001] HCA 64 ; 207 CLR 584

Legislation Cited:

Crimes Act 1900 (ACT), ss 55(1), 61(1)

Evidence Act 2011 (ACT), ss 137, 165

Supreme Court Act 1933 (ACT), s 37O(2)(a)

APPEAL — GENERAL PRINCIPLES — Appeal against conviction — whether verdict is unreasonable or cannot be supported having regard to the evidence — whether error in pre-trial decision not to exclude hearsay evidence under s 137 of the Evidence Act 2011 (ACT)

APPEAL — GENERAL PRINCIPLES — Crown appeal against sentence — whether sentence manifestly inadequate

Decision:

• 1. The appeal against conviction be dismissed.

• 2. The Crown appeal against sentence be dismissed.

Mossop J

1 I agree with Bromwich J.

I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 23 October 2017

Bromwich J

2 This is a conviction appeal by Juan Carlos Cruz from his conviction, following trial by jury, on charges of engaging in sexual intercourse (cunnilingus) with, and committing an act of indecency (ejaculation) in the presence of, a female child who was at the time two years and 10 months old. It is also a Crown appeal against the sentences imposed.

3 It is convenient to refer to Mr Cruz as the appellant, despite him being the respondent to the Crown appeal. It is convenient also to refer to the child victim of the two relevant offences as the complainant, even though she did not make any complaint as such, provide a statement or give evidence.

4 The appellant appeals upon the grounds that:

• (a) the verdict is unreasonable or cannot be supported having regard to the evidence; and

• (b) hearsay evidence of the complainant should have been excluded in the exercise of discretion under s 137 of the Evidence Act 2011 (ACT).

5 The Crown defends both convictions and also appeals upon the basis that each of the sentences imposed was manifestly inadequate.

6 For the reasons that follow, both appeals should be dismissed.

Background

7 The following overview is largely drawn from the ex tempore reasons for sentence of Murrell CJ, given on 6 September 2016, four days after guilty verdicts were returned by a jury on 2 September 2016.

8 On 2 September 2016, a jury found the appellant guilty of two charges of engaging in sexual intercourse (cunnilingus) with, and committing an act of indecency (ejaculation) in the presence of, a female child who was at the time two years and 10 months old. This was alleged to have taken place on 27 June 2013. Under s 55(1) of the Crimes Act 1900 (ACT), engaging in sexual intercourse with a child under 10 years of age is an offence carrying a maximum penalty of 17 years' imprisonment. Under s 61(1) of the Crimes Act, committing an act of indecency in the presence of a child under the age of 10 years is an offence carrying a maximum penalty of 12 years' imprisonment.

9 In 2013, the appellant lived with his parents in a suburb in Canberra. He was at that time a 36-year-old single man, albeit that he gave evidence at his trial that he had at that time been in a long-standing sexual relationship with a woman and had engaged in sexual relations with other women.

10 The appellant came with his family from El Salvador as a child and he is a native speaker of Spanish. While he speaks fluent English, his mother speaks little or no English.

11 During weekdays in 2013, the appellant's mother provided family day care to her two young nephews and her niece, who were children of her daughters, and to the complainant. The complainant's mother was a long-standing friend of one of her daughters. The complainant was well advanced in toilet training, but wore a particular kind of disposable nappy in order to complete her toilet training.

12 The appellant was in full-time employment, starting work very early each day before the children arrived, but often arriving home before the complainant was collected by her mother.

13 On Thursday, 27 June 2013, the complainant's mother collected her from day care. During the course of the car journey home, and following some general conversation, the complainant, in a conversation reproduced in further detail below, asked her mother not to clean her bottom with her tongue. When her mother questioned her as to what she meant, the complainant stated that “ Tio Carlos licked my bum bum”. The word “ Tio” means “ uncle” in Spanish, and was the term the other three children in day care used to refer to the appellant, who was their uncle. The term “ bum bum” was used by the complainant at that time to refer to both her genital and anus area as she was too young at that time to distinguish between the two.

14 The complainant's mother reported the incident immediately. That evening, the complainant was medically examined and no injury was detected. However, forensic analysis of the interior of the complainant's nappy worn that day revealed evidence of both semen and saliva, particularly around the leg areas of the nappy.

15 Following further testing, sperm were observed in samples that were taken. DNA testing supported the proposition that the appellant was the source of the DNA. The evidence also supported a conclusion relied upon by the Crown that there was a high probability that the DNA came from the sperm and saliva that had been detected, although, in part only, it may have come as well from other bodily material, such as skin. The appellant challenges the true strength of that scientific evidence as part of his challenge to the safety of the guilty verdicts.

16 It was common ground that the appellant's conviction on each of the two offences required the imposition of a full-time custodial sentence. The appellant was sentenced to two years and six months' imprisonment on the charge of intercourse with a child under 10 years of age, and 18 months' imprisonment on the charge of committing an act of indecency in the presence of a child under 10 years of age. The two sentences were partially accumulated by nine months, producing an overall head sentence of three years and three months' imprisonment (or 39 months). A single nonparole period was imposed of 20 months. The appellant is eligible for release on parole in May 2018.

CONVICTION APPEAL

17 It is convenient to deal first with the ground of appeal concerning the exercise of discretion under s 137 of the Evidence Act before the broader ground of the verdict being unreasonable or unable to be supported having regard to the evidence.

Alleged error in the exercise of discretion under s 137, Evidence Act 2011 (ACT)

18 This ground of appeal was expressed as follows:

… the learned trial judge erred in refusing to exclude hearsay from the complainant to her mother on 27.6.13 under s.137 of the Evidence Act 2011 (ACT).

19 This ground concerned a pre-trial ruling by another judge of this Court, Burns J, granting an application by the Crown to admit the hearsay comments made by the complainant to her mother on the day of the alleged offences, 27 June 2013. The Crown's application was made pursuant to s 65(2)(b) of the Evidence Act. The pre-trial application was heard by Burns J on 28 January 2016. His Honour delivered judgment on 15 February 2016. The trial commenced just over six months later on 29 August 2016. Murrell CJ declined to revisit that ruling at trial.

20 No issue is taken by the appellant as to the correctness of his Honour's conclusion that the requirements of s 65 were met, such that the hearsay evidence was admissible. Rather, the appellant challenges his Honour's decision, in the exercise of the discretion under s 137 of the Evidence Act, to refuse an application on the behalf of the appellant that the evidence, otherwise found to be admissible, be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant.

21 The hearsay evidence that was sought to be adduced and used was set out in Burns J's reasons at [3] as follows:

Complainant: You can't clean my bum bum with your tongue!

Mother: What?

Complainant: You can't clean my bum bum with your tongue!

Mother: No, we use wipes or toilet paper!

Complainant: Tio Carlos licked my bum bum.

22 The evidence as ultimately adduced at the trial, which was slightly different but to the same effect, was as follows:

Complainant: You cannot clean my bottom with your tongue.

Mother: What do you mean?

Complainant: Tio Carlos licked my bum bum.

Mother: What do you mean?

Complainant: He licked my bum bum.

23 It was...