ALS v R

Court of Criminal Appeal (NSW)|2014-10-15|Before: Macfarlan JA, Fullerton J, Bellew J, MacFarlan JA

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/82752 Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 2 August 2013 (conviction) 20 August 2013 (sentence) Before: Maiden SC DCJ File Number(s): 2011/82752

Judgment

MACFARLAN JA: In August 2013 the appellant was convicted after a jury trial of an offence under the then s 67 of the Crimes Act 1900 (NSW) that between 22 April 1974 and 21 April 1975 he carnally knew the complainant who was a person then under the age of 10 years. He was charged with the offence by an indictment dated 25 July 2013. The appellant had previously been convicted of the same offence by a judge sitting without a jury but the conviction was quashed and a new trial ordered ([2013] NSWCCA 63). The basis of those orders was that further evidence, arguably supporting the appellant's case, had become available since the trial. This evidence comprised a letter written by the complainant and a video recording to which I refer below.

The complainant's evidence

The complainant was born in April 1965. She has a sister about 18 months older than her and a younger sister, all with the same father (not the appellant). When the complainant was about three years old her mother entered into a relationship with the appellant with whom she had another daughter.
The complainant gave evidence that when she was about four years old, the appellant had the complainant and her older sister lie naked on a double bed in their home where he made them touch each other's genitals and kiss each other whilst he masturbated. The complainant said that she was very scared about what had happened and that the appellant told her not to tell anyone. She obeyed that instruction because she was frightened of the appellant as he had previously hit her.
The complainant also gave evidence that when she was about six years old, before the family moved house, the appellant would come into her room about two or three times per week, wake her up, put his hands underneath the bed covers and touch her on the genitals, with the appellant sometimes putting his finger inside her. This occurred in the complainant's bedroom which she shared with her older sister.
The complainant gave evidence that there were occasions when the appellant hit her and, after the family moved house, when the appellant acting violently towards the complainant's mother.
The complainant said that at this house also the appellant used to come into her room at night and touch her genitals. This occurred in a room that she shared with her two sisters and in a bed that she shared with her older sister.
The complainant gave evidence of an occasion when she was nine years old (being that the subject of the charge against the appellant) when the appellant asked the complainant's mother if the complainant could stay home and help him in the garden whilst the rest of the family went on a shopping trip. She said that the appellant took her into a bedroom, removed her shorts and underwear, but left her top on, and removed his own shorts and underwear. She said that he started to touch her, that his penis was erect and that he said "when I put this in you, I'm going to split you in half". At the time, the appellant's father was watching television in an adjacent room with the volume turned up because he was very hard of hearing. There was no door separating the two rooms. The complainant sought to deter the appellant by saying that she thought she heard his father but he proceeded to have penile vaginal intercourse with her.
The complainant said that she told her mother what had happened when her mother returned home, with the result that her mother confronted the appellant. An argument ensued during which the appellant said that the complainant had made up the allegation. The complainant's sisters were present at the time. The appellant then took the complainant into another room and flogged her severely. The following day, the complainant found out that her mother had asked the appellant to leave the home. He returned after about two weeks but did not touch her in a sexual way again.
The complainant gave evidence that when she was about 14 years old she told her school counsellor what had happened to her. She said that the counsellor left the room for about 15 minutes and when she came back she told the complainant that she had contacted the complainant's parents and told them what the complainant had said. The counsellor told her that her parents had said she was going to be in trouble when she got home because she had made it up. When she returned home, the complainant received a "belting" from the appellant.
When she was 17 years old, the complainant moved out of home. Prior to moving out she had a "big" argument with the appellant because he would not let her go out on the weekend. She told him she was leaving and he slapped her across the face.
The complainant had limited contact with her mother in the following two years and only on occasions when she was sure that the appellant would not be present. After an argument with her mother when she was 19 years old, the complainant decided not to have any further contact with her.
In 2008, the complainant commenced making notes about what had happened to her and in September 2008 she made a statement to the police. In June 2010, at the instigation of the police, she had a lawfully recorded telephone conversation with the appellant in which she told him that she was seeing a counsellor and that what he had done had a big impact on her life. The appellant denied that he had ever sexually assaulted or molested the complainant.

The photograph, postcards, letter and video evidence

A photograph taken at the wedding in 1995 of one of the complainant's sisters was tendered at trial. It showed the complainant in a family group, posing for the photograph with her hand placed upon the appellant's chest in an apparently friendly fashion. The complainant gave evidence that the photographer told her to place her hand in that position.
Also tendered were a number of postcards and a letter written by the complainant to her mother and the appellant whilst she was in Queensland when aged about 20 or 21 years. The postcards were affectionate in tone, were addressed to "Dear Mum and Dad" and signed with "love" or "all my love", and one said "PS please write". A three-page letter written by the complainant referred to the appellant as "Dad" and said "I wish I could come down to say hello at Christmas" and "I miss you all very much now, and am always thinking of you". In another letter addressed to "Dear Dad" and signed "all my love", the complainant wrote "Dad could you please write a letter to me and tell me what's happening down there" and suggested that the appellant "should come up here and fish the marlin".
In video recordings of her sister's 1995 wedding, the complainant appears spontaneously to rub or touch the appellant's back in an affectionate manner and to squeeze his chin and pinch his chest.

The complainant's inheritance

A Statement of Agreed Facts in evidence recorded that in 1962, the complainant's mother had transferred to her mother an entitlement that she would otherwise have had in respect of the estate of her late father. Her mother died in 1995 leaving her estate to be divided equally between her grandchildren, subject to a life tenancy in favour of her de facto partner, thus excluding the complainant's mother.
After her mother's partner died in June 2009, the complainant's mother commenced proceedings in the Supreme Court claiming that she had not been properly provided for by her mother. In 2011 a Deed of Family Arrangement brought the court proceedings to an end. Under the Deed, the complainant and her three sisters received about $29,000 each and their mother received $75,000.

The evidence of the complainant's sisters

The complainant's older sister and the sister next after the complainant in age gave evidence about what occurred at the wedding in 1995. The complainant's older sister said that the relationship between the appellant and the complainant was "very strained" at the wedding (Transcript p 73). Neither sister gave evidence of sexual misconduct on the part of the appellant and the complainant's older sister said that she had "no recollection" of the incident referred to at [6] above.

The evidence of the complainant's mother

The complainant's mother gave evidence that she never left the appellant alone with her daughters or with the complainant and that the complainant never spoke to her about sexual misconduct on the part of the appellant. She said that the appellant could not have gotten up during the night and gone into the complainant's room without her knowing. In addition, she denied that she had ever received a call from a school counsellor concerning any complaints made by the complainant, and said that on no occasion did she ask the appellant to leave the home.

The school counsellor

A police officer gave evidence that the complainant's school no longer had any records of the complainant's dealings with the school counsellor as student records had been destroyed after eight years. He also gave evidence of a letter from the manager of student counselling employed by the Department of Education and Training which stated that inquiries had been made with the counsellor who was employed at the school at the relevant time and she had no recollection of a student by the name of the complainant.

The appellant's evidence

The appellant gave evidence and denied that he had engaged in any sexual misconduct in relation to the complainant. He had made a similar denial in his earlier interview with the police, which was in evidence at the trial. In that interview, the appellant said that the complainant was motivated to make false complaints by the dispute concerning her grandmother's will and the prospect of losing her share in her grandmother's estate (see [19]-[20] above).

RESOLUTION OF THE APPEAL

Having conducted an independent assessment of the evidence at the trial, I have a reasonable doubt as to the appellant's guilt of the offence of which he was convicted. I consider that it is a doubt that the jury ought also to have experienced and do not consider that the fact that the jury did not have it is explicable by the jury's advantage in seeing and hearing the witnesses at trial (SKA v The Queen at [13] citing M v The Queen [1994] HCA 63; 181 CLR 487 at 494).
I emphasise that none of the factors to which I will now refer is alone decisive. Rather, my conclusion was arrived at on the basis of the combined effect of the following matters.
First, the complainant's evidence was not corroborated in any material respect.
The complainant's older sister, whom the complainant said was involved in the incident referred to at [6] above, was called to give evidence but did not depose to any recollection supportive of the complainant's evidence in that regard, despite the incident having been likely, on the complainant's description, to have been traumatic and therefore not easily forgotten. The fact that she is 18 months older than the complainant could be expected to have increased the likelihood of her remembering such an incident.
Furthermore, that sister gave no evidence supportive of the complainant's account of the repeated sexual misconduct of the appellant in a bedroom that the complainant shared with that sister and, as to part of it, in the bed that she shared with her.
Likewise, the younger sister of the complainant who gave evidence did not give any evidence in support of the complainant's account of the appellant's sexual misconduct, despite the fact that, on the complainant's evidence, this occurred repeatedly over a substantial period in a room that that sister (who was two years younger than the complainant) also shared with the complainant.
The complainant's mother did not corroborate the complainant's evidence in any way. Indeed, she denied knowledge of any complaints made by the complainant concerning sexual abuse by the appellant, including that which the complainant said she made to the school counsellor and which she said was passed on to her mother and the appellant. Her evidence remains significant in this context notwithstanding that there were other aspects of her evidence that should reasonably have caused the jury to entertain doubts about her evidence generally. I refer in particular to her adamant evidence, first, that despite the appellant living with her and her daughters for many years, there were no occasions at all when the appellant was left with the care of the four daughters or with the complainant alone and, secondly, that it was not possible for the appellant ever to have gotten out of bed during the night and gone into the complainant's room without her knowing (Transcript p 91).
Nor was the complainant's evidence concerning what must have been, on her evidence, a particularly noteworthy occasion even for the school counsellor, corroborated by that counsellor.
Secondly, the postcards, letter and video evidence referred to in [17] and [18] above appear to contradict the complainant's evidence of deep-seated ill-will on her part towards the appellant. The complainant gave evidence that she hated the appellant, that she has trouble being in the same room with him and that she would not willingly have physical contact with him (Transcript p 40). Her explanation for the postcards and letter to the effect that her mother told her to write them is difficult to reconcile with the number of communications and the warmth of their tone. So too is her evidence that she wrote to her mother and the appellant in order to "keep the peace", in the hope that they would accept her and her partner, and the family could reconcile (Transcript pp 55 (first trial), 27 (second trial)).
Likewise, the video recording referred to in [18] above appears to demonstrate the existence of affection on the part of the complainant towards the appellant which is inconsistent with her evidence. Her explanations of that conduct in cross-examination were varied and unconvincing. For instance, she stated that she was in fact "strangling" the appellant and that she did not want to ruin her sister's wedding by causing any trouble (Transcript pp 51, 54). That evidence did not correspond with the seemingly comfortable interactions between the complainant and appellant depicted by the video recording, and the spontaneous physical contact which she appeared to initiate with him.
I add that I have not attached any significance to the family photograph in which the complainant has her hand on the appellant's chest (see [16] above). The complainant's explanation that the photographer told her to put her hand there seemed credible and derived support from the testimony of both sisters who were called to give evidence (Transcript pp 71, 77).
Thirdly, there are at least two aspects of the complainant's description of the incident that was the subject of the charge against the appellant (see [10] above) that raise questions about its veracity. In particular, the description of it occurring within a few metres of the appellant's father, who was watching television in the adjacent room where no door intervened between him and his son who was having sexual intercourse with a semi-naked nine year old girl, is not easy to accept. Although the appellant's father was hard of hearing, there was no suggestion that he had any difficulties with his sight or that he was too old to appreciate what was going on if he observed it. The absence in the complainant's account of any reference to the pain which one would have expected a nine year old girl to experience as a result of sexual intercourse with an adult male, is also significant.
Fourthly, the appellant gave evidence and denied the charge in a way that did not appear, on reading the transcript, to have any obvious lack of credibility about it. His evidence accorded with the answers he had given to the police in his recorded interview with them and with the vociferous denials he made when the complainant telephoned him at the instigation of the police, the appellant being unaware that the call was being recorded.
Before finalising this judgment, I had the advantage of reading the judgment of Fullerton J in draft form. I have considered the matters to which her Honour refers but nevertheless remain of the opinion that the appeal should be allowed. Her Honour gives reasons why the passage of almost 40 years between the dates of the alleged offences and the trial rendered it difficult for the Crown to prove its case beyond reasonable doubt. That is undoubtedly so but the fact remains that no evidence corroborative of the complainant's evidence was able to be called. The existence of reasons for the absence of such evidence does not fill that lacuna. Furthermore, even if the jury considered the matters to which her Honour refers in relation to the complainant's mother's evidence to be well-founded, the mother's evidence, negative as it was to the Crown case, does not become evidence that provides positive support for it.
Moreover, I do not consider that the complainant adequately explained her correspondence with the appellant and the wedding video. On my assessment, that evidence stands in conflict with her evidence of her relationship with the appellant. Certainly, when considered in conjunction with the other matters to which I have referred, I consider that it raises a reasonable doubt as to the appellant's guilt. This is not a doubt that is in my opinion capable of being dispelled by recognition of the jury's advantage in observing the manner in which the witnesses gave their evidence (M v The Queen at 494-5; Lachlan Wilson v R [2014] NSWCCA 266 at [161]). As required by M v The Queen at 493 (approved in SKA at [11]), I have formed my view upon the whole of the evidence. I am left with the conclusion that "there is a significant possibility that an innocent person has been convicted" (M v The Queen at 494; MFA v The Queen [2002] HCA 53; 213 CLR 606 at [95]-[96]; SKA at [14]).

ORDERS

For the reasons I have given, I consider that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. It is not necessary to grant the appellant leave to appeal as he was entitled to appeal as of right on the two other grounds (which I have found it unnecessary to deal with) which he advanced. I propose the following orders: 1. Appeal allowed. 2. Quash the appellant's conviction on the charge contained in the indictment against him dated 25 July 2013. 3. Enter a verdict of acquittal on that charge.
FULLERTON J: I have had the advantage of reading in draft the judgment of Macfarlan JA and his Honour's reasons for concluding that, upon the whole of the evidence at the appellant's trial, it was not open to the jury to convict him of the carnal knowledge of the complainant and that the conviction on that count should be quashed and a verdict of acquittal entered.
I have also read the draft judgment of Bellew J in which he expresses his agreement with Macfarlan JA's reasons for concluding that the jury's verdict could not be supported having regard to the evidence, and his agreement with the orders his Honour proposes.
In compliance with the principled approach to an appeal under s 6(1) of the Criminal Appeal Act, I have undertaken my own assessment of the evidence led at the appellant's retrial, both as to its sufficiency and quality. I have also taken into account what I consider to be the inferences available to be drawn from the facts established by that evidence that both support the Crown case and those that undermine it. In the result, I have come to the conclusion that, despite all matters properly put in issue in the trial, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt and that the first ground of appeal should be dismissed.
For that reason, it will be necessary for me to consider the second and third grounds of appeal, filed as supplementary grounds after the Crown's submissions in answer to the first ground of appeal were filed. The Crown filed supplementary submissions to address the supplementary grounds.
Both the second and third grounds of appeal relate to what is said to be the Crown's breach of the rule in Browne v Dunn (1893) 6 R 67 when, in closing submissions, the trial advocate urged the jury to accept that the complainant made an immediate complaint to her mother after she was sexually assaulted by the appellant, in support of his further submission that the jury would find the complainant an honest and reliable witness, but had failed to challenge the evidence of the complainant's mother as untrue when she denied that her daughter had complained to her.

The first ground of appeal: The verdict of guilty was unreasonable, or cannot be supported, having regard to the evidence.

The obligation of the Court in considering whether a verdict of a jury is unreasonable is the subject of settled principle. The question the Court must ask itself was restated in SKA v The Queen [2011] HCA 13; 243 CLR 400. The majority (French CJ, Gummow and Kiefel JJ) held at [11] that, in conformity with the approach by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, the question is: … whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In Sami Kurdi v R [2011] NSWCCA 179, Bathurst CJ said at [8] that in order to comply with M v The Queen: … it is necessary for the Court to review the whole of the evidence available to the jury. That is not to say that a court of appeal conducts its own trial. The question which it must answer is whether it was open to the jury to reach the verdict which it in fact reached. Further, as was pointed out in M v The Queen supra, the Court must pay full regard to the primacy of the jury as the fact-finding tribunal and to the fact that the jury has had the benefit of having seen and heard the evidence.
The primacy of the jury is of particular importance in a case where, as here, without corroboration of the complainant's evidence, the jury's assessment of her reliability and credibility as a witness depended upon the opportunity they had (which this Court does not enjoy) of viewing her give her evidence, including, importantly, her demeanour under cross-examination (see GL v R [2014] NSWCCA 68 at [129]).
The primacy of the jury's position as fact finders is of additional importance in this case given the opportunity they had to see and hear the complainant's mother give evidence denying that her daughter reported being sexually assaulted by the appellant; denying that her daughter informed a school counsellor in 1984 that she had been sexually abused by him; denying that they attended at the school in response to that allegation; and denying that the appellant physically assaulted the complainant in retribution for making the complaint. The jury also had the opportunity of considering the demeanour of the complainant's mother when she denied that the appellant was ever left at home alone with the complainant (or any of her daughters) and denied that he physically disciplined the complainant in the ways she described in her evidence. The jury also had the opportunity of making their assessment of her evidence in circumstances where she admitted she was the victim of repeated domestic violence at the hand of the appellant but that she had never complained to police about his mistreatment of her.
In undertaking my own evaluative review of the evidence, I have also taken into account that the Crown case suffered from the deficiencies of proof frequently encountered in a case where an adult alleges s/he was sexually abused as a child. In this case, almost 40 years had elapsed from the date of the offence, particularised in the indictment as between dates in 1974 and 1975 when the complainant was aged nine, and the sexual and other abuse she claimed to have suffered as a child before that assault, and the appellant's first trial in 2013, five years after the complainant first reported the matter to police in September 2008 at a time when she was aged 33.
In this case, the passage of years not only attracted a Longman direction (Longman v The Queen [1989] HCA 60; 168 CLR 79) but also had the potential to deprive the Crown case of evidence corroborative of the complainant's evidence - a deficiency in the Crown case to which both Macfarlan JA referred at [27] and Bellew J referred at [123] in reasoning to the conclusion that the jury's verdict was unreasonable.
The high school the complainant attended in 1979 when, at age 14, she said she told a school counsellor that she had been sexually abused by the appellant, was unable to produce any record of the complaint (assuming one were made) or the attendance of the appellant and her mother at the counsellor's invitation (assuming that invitation was extended and they attended), since the school routinely destroyed its student records after eight years. In addition, after this Court overturned the appellant's conviction on fresh evidence grounds in 2013 following a judge alone trial in 2012 (ALS v R [2013] NSWCCA 63), and after additional enquiries by the police identified the counsellor who was apparently associated with the school, she told police she had no recollection of the complainant by her name. A police officer gave evidence to that effect at the appellant's trial.
The complainant's grandmother died in 1995. The complainant gave evidence that she sought and gained solace and protection from her grandmother. Although the complainant did not give evidence that she told her grandmother that the appellant had ever sexually abused her, on the day of the sexual assault charged on the indictment, and after she said she was beaten by the appellant for complaining to her mother that he had sexually assaulted her whilst her mother and her sisters were away from the house, her grandmother removed her from her parents' house.
These observations are, of course, collateral to the enquiry whether I consider that upon the whole of the evidence that was led at trial it was open to the jury to be satisfied beyond reasonable doubt that the Crown proved the appellant's guilt. That said, the fact that the complainant's grandmother was not available to be called as a witness is not unimportant given that the complainant's evidence that she was routinely physically disciplined by the appellant, sometimes by thrashing her with his belt, was also denied by him and by the complainant's mother.
The complainant's older sister by eighteen months (referred to in the evidence as "K"), gave evidence in the Crown case. She was not asked whether she witnessed the complainant being physically assaulted by the appellant with a belt or in the other ways the complainant deposed to in her evidence. Neither was it put to her in cross-examination that this did not happen. She did give evidence, however, that she had no recollection of being the victim of the indecent assault involving herself and K as detailed by the complainant in her evidence and relied upon by the Crown as relationship evidence.
Despite the fact that the complainant's evidence (both of the act of sexual intercourse charged as a breach of the then s 67 of the Crimes Act and the evidence she gave of other indecent assaults led as context evidence) was uncorroborated, I remain of the opinion that it was open to the jury to be left in no doubt as to the appellant's guilt. I have come to that conclusion despite the attack upon the complainant's credibility and, in particular, despite the cross-examination which focused on the letters and cards she sent to the appellant and her mother many years after the sexual assault the subject of the charge on the indictment, and what is said to be her display of spontaneous and genuine affection for him at her sister's wedding in 1995. The three excerpts of video footage of the wedding, and one letter additional to the letters and cards tendered at the appellant's first trial, comprised the fresh evidence that resulted in a retrial being ordered by this Court in 2013.
I have reviewed the transcript of evidence led at the appellant's retrial for its sufficiency and quality, inclusive of the fresh evidence upon which the complainant was cross-examined at length, and the evidence of the complainant's mother and the appellant, neither of whom gave evidence at the earlier trial. What follows is a summary of that evidence.

The complainant's evidence

I gratefully adopt the comprehensive summary of the complainant's evidence summarised by Beech-Jones J at [11]-[42] in ALS v R [2013] NSWCCA 63, apparently extracted from the Crown Part A Summary prepared for the earlier appeal. The same summary was prepared by the Crown for this appeal. The complainant's evidence in chief, cross-examination and re-examination at the first trial was before the jury at the appellant's retrial pursuant to orders made under s 306B(1) of the Criminal Procedure Act. Chronology of events [10] ... [11] TW was born in April 1965. The appellant formed a relationship with TW's mother sometime in the late 1960s. Initially he lived with TW's mother, TW and her two sisters, K and J, at their grandparents' house in Cardiff. When TW was four she, her mother, her sisters and the appellant moved to a house in Adamstown Heights. In 1972 the appellant and TW's mother had a daughter, A, being TW's half-sister. [12] When TW was six they moved to a house in Merewether. It was at this house that the events the subject of the charge were said by TW to have occurred, although TW gave evidence of other uncharged acts by the appellant which were said to have placed the offence in context (see Steadman v R (No 1) [2013] NSWCCA 55 at [7] to [11] per Macfarlan JA). They were all denied by the appellant. [13] In the late 1970s the family moved to Lambton Heights. Sometime around 1982 when TW was aged seventeen she left home. Around the age of nineteen she left the Newcastle area. It appears to have been common ground that she had little contact with the appellant or her mother until the mid-1990s although certain letters and postcards were sent by her which I refer to below. TW's half-sister, A, married in February 1995. TW attended the wedding. [14] In June 1995 TW's maternal grandmother passed away. This touched off a dispute which the appellant claimed, and TW denied, was of significance to her in making the allegations against him (the "will dispute"). The will dispute had its origins in 1962 when TW's mother transferred her entitlement under the estate of her late father to her mother, which included a home. In 1967 TW's grandmother made a will leaving all of her estate in equal portions to her grandchildren once they had reached 21 years of age. However their interests were subject to a life tenancy over her home granted to her de facto partner. When she died in 1995 the terms of the will became known and the life tenancy commenced. TW and her sisters were due to receive the remainder of the estate upon the tenant's death. Apparently from that time TW's mother began pressing her children to return some of the remainder of the estate to her. On 22 June 2009 the life tenant died and the contingent interests of the grandchildren crystallised. On 27 May 2010 Letters of Administration were granted. On 21 November 2010 TW's mother commenced proceedings. On 21 March 2011 those proceedings were settled in accordance with a deed. Under the deed TW's mother received $75,000.00 and each of her four daughters received $29,230.07. [15] On 26 September 2008 TW provided a statement to the police. On 4 June 2010 TW telephoned the appellant. Pursuant to a warrant granted by this Court the conversation was recorded. In the conversation TW confronted him with accusations which he denied. [16] On 17 June 2010 the appellant was arrested. He was taken to the police station and participated in an Electronically Recorded Interview with a Suspected Person ("ERISP"). The allegations concerning TW (as well as her sisters) were put to him and denied. The Evidence at the Second Trial [17] At the second trial the Crown called two witnesses: TW and one of the investigating Detectives, Senior Constable Evans. Senior Constable Evans confirmed the dates noted in [15] and [16]. He also stated that an approach was made to the principal of Lambton High School to ascertain if the school had any records concerning TW (see [30]), but was advised that records were destroyed after eight years. He also made an inquiry in relation to a particular school counsellor, but no records were available concerning her either (see [31]). [18] The Crown tendered a recording of the ERISP, a transcript of the ERISP that edited out references to the accusations of K and J, as well as a recording and transcript of the telephone call between TW and the appellant on 4 June 2010. There were also agreed facts concerning the will dispute. TW's evidence in chief - background and context evidence [19] TW gave evidence of her personal background consistent with [11] to [12] above. She recalled that when she lived with her grandmother before she was four years old the appellant hit her with a belt or his hand on her bottom outside her clothes. [20] TW recounted an incident after they moved to the house in Adamstown Heights in which the appellant made her and her sister sit on the double bed in her mother's bedroom. Both girls were naked and the appellant made them touch each other's genitals and kiss each other while he masturbated by rubbing his penis up and down. TW could not remember how she came to be naked in the room. The incident lasted for about five minutes, during which she did not say anything. No one was at home at the time and TW did not say anything afterwards because she was scared of the appellant as he had hit her previously. [21] TW stated that the appellant used to come into the room which she shared with her sister at night. She said that about two to three times a week he would wake her up, place his hands underneath the covers and touch her on the genitals both outside of and inside her underpants. Sometimes he would put his finger inside her. He told her to be quiet and she remained so because she was too scared to say anything. She prepared a sketch of the layout of the house at Adamstown Heights which was tendered, depicting her and her sister's bedroom. [22] TW stated that sometimes the appellant hit her with a belt, leaving big swollen lumps across her bottom and lower back. She was sent to her grandmother's place to recover. She said that the appellant also hit her very hard across her ear and head and she suffered partial hearing loss in her left ear as a result. [23] TW stated that after they moved to the house in Merewether, the appellant continued to come into the room that she shared with her two sisters at night and touch her genitals. He told her to be quiet and she listened because she was terrified. She said that the appellant also frequently hit her with his hand and belt, which was doubled over a couple of times. He made her pull her underwear down and bend over one of the beds before hitting her with the belt. [24] Often when the appellant came home from work he was drunk and bashed TW's mother, who as a result suffered bruises around her neck, face and wrists. TW said she was scared that the appellant would kill her mother. From the age of seven years she would sometimes punch him to help her mother. On one occasion the appellant responded by picking TW up and throwing her against a wall. On another occasion the appellant was bashing her mother and she ran next door and asked the neighbours to call the police. The police attended the house and the appellant stood at the front door with his arm up so that the police could not enter, and he told them that everything was all right. He would not let TW's mother speak and the children were told to go to their bedrooms. TW's evidence in chief - the offence [25] TW stated that when she was nine years old the appellant's father came to live with them at the house in Merewether. Sometime in the warmer months but before the Christmas holidays TW, her sisters and mother planned a shopping trip. Before they left, the appellant said "[TW] can stay home with me and help in the garden and do some, like, work". TW said she was very upset that the appellant had told her she was not allowed to go on the shopping trip. She cried and then went out the back to play. The appellant's father was still at home and watching the television with the sound blaring. [26] The appellant told TW to come inside. He led her into her parents' bedroom and made her lay on the bed. He removed her underwear and shorts but left her top on. He removed his own shorts and underwear. He started to touch her and his penis was erect. He said to her "[w]hen I put this in you, I'm going to split you in half". When he said this, TW heard the television blaring and told him "I think I hear granddad". The appellant did not respond. He put his penis inside her vagina and moved it in and out. He had her legs spread and he was on his knees in front of her. TW said that she clenched her fists, held her arms up to her chest, turned away and closed her eyes. After a few minutes, the appellant removed his penis and told her that she could go. [27] TW said she put on her underwear and shorts and went to the outside toilet, where she sat and cried until her mother and sister returned home. She waited until her mother went to the outside toilet, knocked at the door and asked if she could go in to speak to her. TW went inside the toilet and told her mother that the appellant "had stuck his thing in me" and said to her that "he was going to split me in two". [28] TW could not recall what her mother said. She said her mother went inside the house and confronted the appellant. There was an argument and the appellant said that TW had made it all up. TW protested. The appellant took TW into her room, pulled down her pants and shorts, made her bend over and struck her six or seven times with his belt. TW suffered welts to her body as result. Later that day TW's grandmother took her away. She said that she did not tell her grandmother what the appellant had done because she was too scared. [29] When TW returned the next day, she was surprised to learn that her mother had asked the appellant to leave. He left, but moved back into the house after about two weeks. TW's mother and the appellant did not discuss what had happened after this time. TW said that the appellant did not touch her in a sexual way again. However she thought that the appellant was treating her worse than before the incident. She said she was grounded all the time, had to do extra work and was not allowed to go out when her sisters were. TW's evidence in chief - complaint and post-offence relations [30] When TW was thirteen years old the family moved to Lambton Heights and she attended Lambton High School. Once, when she was fourteen years old, she became ill at school. An ambulance officer was called and she was sent home after being treated. Her mother took her to the hospital but when the doctors asked if something was troubling her, she felt that she could not reply because her mother and the appellant were in the room. [31] In her evidence TW said that she had realised at school after a personal development class that what the appellant had done to her constituted sexual intercourse. TW told her school counsellor that the appellant had molested her from a young age and had sex with her when she was nine. She recalled that the counsellor left the room and when she returned said that she had spoken to her parents. The counsellor told her that her parents said that she had made it all up and that she would be in trouble when she got home. When TW arrived at home the appellant yelled at her and gave her a "belting". She said that as a result she was too scared to tell anyone else about what happened and did not think anyone could help her. [32] TW left school after Year 10 but continued to live at home until she was seventeen years old. After moving out she did not have much contact with her mother as the appellant had told her not to see her mother or contact the florist shop they operated together. Nevertheless they maintained some contact, but when TW was nineteen she had an argument with her mother and decided not to have further contact with her. [33] She moved away from Newcastle. She agreed that she did not "have much contact with [her] family" after she moved away. The next contact she recounted was being advised in 1995 that her grandmother had died and attending the funeral in Newcastle. [34] TW said that sometime in 1995 or the year after she received a phone call from her mother and the appellant threatening that her mother would contest her grandmother's will if she did not sign over her 25% stake in her grandmother's house. TW said the phone call became heated and she said "[how] dare youse ring me up after all these years and threaten me?" She asked the appellant "[w]ho are you molesting now?", and said "people like you just don't stop doing this". She said that TW's mother and the appellant hung up the phone on the complainant. The complainant rang them back and asked the appellant again "[w]ho are you molesting now?" They hung up on her again. TW said that was the last contact she had with them. [35] As I have said, TW made a statement to police on 26 September 2008. She said that prior to making that statement she kept notes on her experiences for around three months after speaking to a sexual assault counsellor. She said that she was motivated to do so by her depression and the effect of what had happened to her when she was a child. In addition, she said that she had just discovered the bodies of the family members of a friend, and had become a witness in that matter. [36] Consistent with the defence case, it was put to TW that all of the events of abuse and violence that she said she suffered did not happen. She also confirmed that, after the argument with her mother when she was nineteen (see [32]), she resolved not to see her mother again. [37] In cross-examination TW was shown a bundle of documents which were tendered. One of those documents was a photograph taken at A's wedding in 1995. As I explain below, she identified herself as the woman with her hand on the appellant's torso in what appears to be a friendly gesture towards him. [38] TW was shown a postcard written by her to her mother and the appellant from North Queensland. She said that she thought the card had been written when she was 20 or 21 years old. She agreed that she wrote "Dear Mum and Dad" and signed off "All my love, [TW]". She said that she had never stopped loving her mother despite what happened. [39] TW was shown another postcard from the Gold Coast and two postcards stapled together from Cape Tribulation which TW said had been sent in a three to four month period when she was travelling with someone her mother and the appellant did not like. She agreed that the postcard started with "Dear Dad and Mum" and was signed off "Love [TW]" "PS please write". [40] She was also shown a three page letter written by her which included a reference to "Dad" (ie the appellant). She agreed that in it she wrote "I wish I could come home to say hello at Christmas", "I miss you all very much now and am always thinking of you", and on the last page "[w]ell I love you all very much" and "PS Mum don't work to [sic] hard". The complainant disagreed that the content of these items was inconsistent with what she had alleged in the proceedings. [41] In cross-examination the complainant denied that her entire motivation was her anger at the prospect of being deprived of her share in her grandmother's estate. She denied that she timed her statement so that it would coincide almost exactly with the death of her grandmother's surviving de facto partner on 22 June 2009 and the end of his life tenancy of the estate. She said that she knew he suffered from lung cancer but not that it was "that bad". She also denied that she had in effect carried out her threat to cause trouble if her mother challenged the will. It was put to her that during the conversation referred to in [34] she said "[y]ou deprive me of my money and I'll cause you trouble". She said "I don't remember that". TW's re-examination [42] In re-examination TW stated that she wrote the postcards and the letter in an effort to "keep the peace with mum and, like, because [I] tried to let her know just where I was to make, like, say I was all right too". She also said that she had not seen any family members prior to attending her half-sister's wedding and that at the wedding she spoke to her sisters but not the appellant.

Mr Rosser QC's cross-examination of the complainant at the retrial

The complainant confirmed that on 4 February 2013 she attended at the Bega Police Station, where she was invited by police to view three brief segments of a video taken at her sister A's wedding in 1995. The video, which extended over some hours, was located by A after her father was convicted in the judge alone trial.
The complainant also confirmed she was invited by police to read a letter she sent from Cairns, Queensland to the appellant addressed, "Dear Dad" and signed, "All my love". That letter was sent in the same timeframe as letters and cards tendered in the defence case at the earlier trial and summarised by Beech-Jones J at [38]-[40].
The three segments from the wedding video and the "Dear Dad" letter was the focus of Mr Rosser's cross-examination. It was also central to the evidence relied upon by the appellant on the appeal as evidence so seriously undermining the complainant's credibility that the jury ought to have had a reasonable doubt as to the appellant's guilt. The additional feature of the evidence relied upon by the appellant's counsel on the appeal as compounding the doubt the jury should have had was the evidence of the complainant's mother contradicting the complainant's evidence that she complained to her about the appellant's sexual assault when she was aged nine (the charge on the indictment) and contradicting the complainant's evidence that when the appellant was confronted with that allegation an argument ensued and her mother excluded him from the family home.

The "Dear Dad" letter

In essence, the complainant gave evidence that she wrote the "Dear Dad" letter because her mother asked her to. She said that her mother made that request of her by telephone in one of the calls she made each fortnight from Queensland at her mother's insistence so that her mother would know she was "still alive". While she agreed that her mother did not suggest how she might express herself in the "Dear Dad" letter, or ask her to sign it "All my love", she said that she did what her mother asked of her in the hope that it would help to reconcile what had, by that time, become a family rift because of her fractured relationship with the appellant, and that she did what her mother asked of her principally in her mother's interests.
It was not put to the complainant in cross-examination that the appellant responded favourably to the letter by acknowledging its receipt, or that her overtures smoothed the way for her inclusion as a family member before her sister K's wedding. To the contrary. She gave evidence, as did her sister K, that the complainant was ostracised at her wedding in 1986.
It was put to the complainant in cross-examination that her evidence that her mother asked her to write the letter was a lie and that the truth was that the letter was a genuine expression of her loving regard for the appellant. It was also put to her that she falsely attributed to her mother a request that she write to the appellant to cover up the fact that she had been "caught out" after the first trial. She rejected both propositions. When she was cross-examined as to why she included in the letter an express request that the appellant write to her, she explained that the tone and content of the entire letter was because her mother had asked her to "write him a nice letter" so that the appellant may allow her entry back into the family. She said that she also included in that letter a desire to "come down to say hello at Christmas" because she wanted to see her family and she knew that she would not be allowed contact with them until the appellant gave his permission.

Impact of the "Dear Dad" letter on the complainant's credibility

I regard the complainant's explanations for the "Dear Dad" letter as open to the jury to be accepted as consistent with the explanations she gave under cross-examination at the earlier trial for the cards and letters she had addressed to both her mother and the appellant from Queensland, all of which was before the jury for their consideration, as was the complainant's explanation for sending them. I respectfully disagree with Macfarlan JA at [33] and Bellew J at [125], that the complainant's explanation for sending the postcards and letters cannot be reconciled with the warmth of her tone and the number of communications, or that it is necessarily inconsistent with her deep, but by that time unexpressed, hatred of the appellant for his abuse of her as a child. I consider that her explanation for the "Dear Dad" letter (as with her explanations for the course of correspondence of which the "Dear Dad" letter was a further example) was credible and the attack upon her credibility by reference to that material was a matter properly within the province of the jury when considering whether they were sufficiently confident of her honesty and reliability to return a guilty verdict.

The wedding video

The most controversial of the three video segments of A's wedding was a group portrait of the complainant's family. The appellant and his wife were seated with the bride standing immediately behind the appellant. The complainant was standing to the bride's right and her two other sisters (J and K) to the far left of the bride, standing behind the complainant's mother. A still photograph of the same arrangement, either lifted from the video or taken by a photographer at the same time as the video was being shot, was tendered at the first trial. That photograph, as with the corresponding video segment, shows the complainant with her right hand extended over the appellant's shoulder and placed on the centre of his chest. The complainant gave evidence at the first trial, which she confirmed in the retrial, that she was included in the photograph as a family member at the insistence of the photographer and directed by that person to place her hand on the appellant. She agreed that both the photograph and the video segment showed an apparently happy family, but said the reality was that she was nervous and uneasy in the appellant's presence. She said she obliged her sister, it being her sister's wedding day, by not resisting what the photographer asked of her.
As the third segment of the video comprises a sequence of moving images (albeit over a period of a minute or thereabouts), it reveals more than the still photograph. The video segment shows the complainant touching the appellant, which has the appearance of being a spontaneous action as she placed her hand on the appellant's chest. It then reveals that she moved her hand (again, seemingly spontaneously) and touched or tickled his dewlap. It was suggested to her in cross-examination that she was "playing with his chins" as a display of affection. She disagreed. She said that, in the moment, she "tried to be as nice as she could to everybody, including the appellant". She accepted that the video gave the appearance of her touching the appellant in an affectionate and natural way, and that others viewing it may perceive it that way, but it was not a reflection of her real feelings. She also gave evidence that she had already had an argument with the appellant at her sister K's wedding a couple of years earlier and that she "didn't want to ruin [her] little sister's wedding". She said on the day of A's wedding she was told not to cause any trouble.
Her sister K gave evidence consistent with the complainant's evidence in this respect. She also confirmed the complainant's evidence that at neither her wedding nor A's wedding was the complainant permitted to sit with the wedding party, being seated, at the appellant's and their mother's direction, "down the back" with people she did not know. K also confirmed that in the family photograph (and video) taken at A's wedding, the complainant was positioned behind the appellant at the direction of the photographer, despite the complainant's efforts to distance herself from the appellant and that it was the photographer who directed that she put her hand on the appellant's shoulder. K gave evidence in chief as follows: Q. And I take it that the photographer asked [the complainant] to put her hand on whose shoulder? A. [The appellant's]. Q. Did she do that? A. Yes, reluctantly, but she did kick up a bit of a song and dance about it, like to me like she didn't want to and in the end she just did. Q. Just pause there, you said she did it reluctantly. Why do you say that? What did she say? A. She just looked at me and she just went, "I don't want to do that", more or less, you know, just said, "I don't want to" and yeah, in the end she just did, just 'cause she didn't want to cause an argument. Q. Did you see what happened after she put her hand on the accused? A. Well the photo was taken. Q. See what happened then? A. And then she sort of gave like a strangling sort of motion. … Q. Did she say anything at that time, when she made that gesture? A. No, she just gave me a look. … Q. At the wedding, what were your observations as to the relationship between - if any - between the accused and [the complainant]? A. Very strained.
In his cross-examination of K, Mr Rosser did not suggest that the arrangement of the family members in the wedding photograph (as revealed in the moving images on the video) was other than to "balance the photograph". He did suggest to her, however, that the complainant had quite spontaneously, voluntarily and happily displayed affection toward the appellant, by the touching of his chest and the "tickling of his chins". K said, "I don't see it as that, no". Mr Rosser did not challenge K's evidence in any other respect including, in particular, her evidence (extracted above) which is supportive of the complainant's evidence, or her evidence that the complainant expressed nervousness in advance of attending A's wedding given what had occurred at her own wedding some years earlier.

The impact of the "wedding video" on the complainant's credibility

Having given close consideration to the third segment of the wedding video and the complainant's evidence, and her sister K's evidence about the circumstances in which the sequence was filmed, I am not persuaded that this evidence renders the complainant's evidence concerning the sexual assault she sustained as a child inherently incredible. I respectfully disagree with Macfarlan JA's assessment of the complainant's explanations for what is shown in the third segment as "varied and unconvincing". To the contrary. I consider her explanations for her apparent but disingenuous demonstrations of affection for the appellant as open and available and, viewed in that way, not inconsistent with her evidence that she had a deep and lasting enmity for him for his sexual mistreatment of her as a child, but which she concealed for understandable reasons.
In so far as concerns the remaining two segments of the wedding video, I do not regard them as undermining the complainant's credibility in the way contended for by the appellant's counsel at trial and by his counsel on the appeal. Whilst it is true that under cross-examination she initially resisted any suggestion that in the second video segment she moved toward the appellant and rubbed his back in an apparent gesture of affection and warmth, she ultimately accepted that the video showed that gesture. She explained this conduct consistently with her evidence generally, in that she was endeavouring to give the appearance of being a member of a close and integrated family to guests at the wedding for her sister's sake, when in truth, at least from her perspective, the appellant's mistreatment of her as a child had made her fearful of him and his determination to exclude her from the family made her wary of him.
There was also evidence before the jury that months prior to the complainant making a formal police statement in September 2008, she had commenced a written statement detailing the past abuse and had also been undertaking counselling for some time. This was evidence the jury were entitled to take into account not only as part of the complainant's evidence bearing upon the question whether she had been sexually assaulted as a child, but evidence they were entitled to take into account in considering whether the jury found her to be a truthful witness, upon whose evidence they could confidently rely as distinct from a witness who would or might be motivated to make false accusations for financial reasons.

The complainant's motive to lie

It was put to the complainant by cross-examining counsel at the earlier trial (doubtless as a result of what the appellant told police in his ERISP) that the reason she falsely accused the appellant of sexual and physical abuse was to ensure that she was not deprived of her quarter share of her grandmother's estate. It was suggested to her that it was after being advised that her mother was going to pursue her entitlement to challenge the grandmother's will that the complainant decided to "cause trouble". One obvious difficulty with the attribution to the complainant of that as a motive for the making of false allegations against the appellant (the only motive ever suggested to her) is that the person who was seeking a share of her grandmother's estate was not the appellant but her mother. Furthermore, as the evidence before the jury made clear, it was the complainant's mother who was the only party to the proceedings in the Supreme Court. Further, by the time the complainant first came to give evidence under oath, the dispute in relation to the grandmother's estate had been resolved by the complainant and each of her sisters entering into a deed of arrangement with their mother.

The complainant's mother's evidence

As noted by Beech-Jones J at [48] in ALS v R [2013] NSWCCA 63, the Crown, by agreement with the defence, did not call the appellant's wife at the earlier trial after adverse credit findings were made by the trial judge in the judge alone trial which preceded the appellant's earlier trial at which he was charged, but acquitted, of sexually assaulting the complainant's sisters K and J.
She was called as a Crown witness at the appellant's retrial before the jury, no doubt at the request of the defence and in discharge of the Crown's obligation to call her as a Crown witness. However, given that when first spoken to by police in 2010 she gave an account contradicting the complainant's evidence and supporting the appellant's account that he had never sexually or physically assaulted the complainant, the defence could have been under no illusion that her evidence would not be embraced by the Crown.

The complainant's mother's evidence in chief

The trial advocate led evidence confirming that when she commenced her relationship with the appellant, she had three young daughters and that when the appellant moved in with her he assumed the role of a step-parent. When describing the degree of discipline he exercised over the complainant in that role, she said that he would sometimes smack her and once used a belt to discipline her. The complainant's mother volunteered that she told him that was not to happen and he did not do use a belt again.
She also gave evidence that on Friday nights the appellant would go to the hotel and, after returning home, would behave aggressively toward her. She said: Q. Did he consume a lot of alcohol on those occasions? A. He didn't have to consume a lot of alcohol, because he didn't drink a lot. It didn't take much to put him over. Q. And when he, in your words, put him over, how did he behave towards you when he came home? A. Sometimes he was aggressive. Q. And when you say aggressive, what do you mean? A. We had arguments. Q. Did those arguments become physical at any stage? A. Yes. Q. And when you agree that they became physical, what would he do in relation to you? A. He'd hit me.
When pressed by the trial advocate as to what the arguments were about, she said that it would have been about the appellant's drinking, despite suggesting in the evidence extracted above that he "didn't drink a lot". She said the domestic violence associated with his drinking extended over seven years and in a succession of houses they lived in during that time. Given the modest size of the houses, she agreed that the complainant would have seen the appellant assaulting her. When asked whether she was injured as a result of the assaults, she said: Q. Were you ever injured as a result of the assaults by your husband? A. No. Q. Did you ever have any - a bruise? A. I've had bruises. Q. You don't count that as an injury, is that what you say? A. I bruise now. Q. But I'm talking about that time when you were living at …, over that seven year period and the accused assaulted you by hitting you with his open hand, you had bruises, is that the case? A. I couldn't have had too many bruises. It wasn't as if he bashed and bashed at me. Q. And did he ever use a fist, a closed fist? A. No, never. Never. Q. What about choking you? A. Never. Q. Was there ever a time when you were on the floor and he was hitting you? A. No. Q. Did you ever have an injury above your eye? A. Yes. Q. And what was the nature of that injury? A. It was here and it was caused by hitting into the corner of her car door in the night time. Q. Well just be clear about it, do you say that the accused did something in relation to you with the car door? A. No. No I didn't say that. We'd been to my brother-in-law and sister-in-law's for dinner. It was late at night. When we got out of the car, the footpath was slanted a bit so that made it that once I was out of the car I was low and I'd forgotten to get something out of the car and I've turned back around and the door wasn't back far enough and it hit me just here. Q. You understand I was asking you questions about injuries occasioned to you at the hands of the accused? A. Yes. Q. You say that's the eye, the area you pointed to, just for the transcript, above your left eye in the area of your eyebrow, you say that was some sort of accident, do you? A. Yes, it was here. Q. Do you recall an occasion when the accused was assaulting you and [the complainant] came to your aid? A. Never. The girls were told to stay in the bedroom out of the way. Q. Who told the girls to stay in the bedroom out of the way? A. I did and [the appellant] did. Q. Was there ever an occasion where she tried to fight him and pull him off you? A. No. Q. Did you ever see her try to jump on his back at a time when he was being violent towards you? A. No. Q. Did he ever throw her across the room, when she was trying to come to your aid? A. Never. Q. Did you ever hit him? A. Yes. Q. What happened when you hit him? A. He'd hit back.
When the trial advocate asked whether there were occasions when, after coming home drunk, the appellant had occasion to get out of bed and use the toilet during the night, she said that once the appellant went to bed he usually stayed in bed and even were he to have need to use the toilet, she would know about it because she was a light sleeper. She went on to deny any possibility that the appellant could have got out of bed at any time and gone into the complainant's room without her knowing. In essence, she said that had never happened. She said the only time he may have gone into the room was to kiss the complainant goodnight or to tell her to come out for dinner.
Leave was applied for under s 38 of the Evidence Act (and not opposed) to cross-examine the complainant's mother as to this aspect of her evidence in light of answers she had given to police in an interview in June 2010: Q. You told us in your evidence earlier today that, I think you were asked [by police], "Did the accused go into the girls' room" and said, "Sometimes he'd kiss them goodnight, he never went into the girls' room drunk" is that right, do you remember that evidence this morning? A. Yes. Q. You told the police something different when you were interviewed by them on 17 June 2010, didn't you? A. I had said that he never went into their room. Q. You were asked at 174, "Did you ever know [the appellant] to go into the girls' room?" and you said, "No". Remember that? A. I remember that. Q. And-- A. Meaning that he didn't-- Q. Just pardon me for a moment. It was then put to you, "Q 175. Never? A. No. Q 176. Not for any particular reason? A. Not that I know of, no. Q 177. Why is that? A. There was no reason for him to go in there." Do you remember that evidence in-- A. Yes. Q. And you've changed your evidence today, haven't you? A. I've said yes he had gone in perhaps to kiss them goodnight. Q. That's different to the evidence you-- A. But the evidence that-- Q. Just pardon me ma'am. We can't talk over each other. You've changed your evidence today from the evidence you gave to the police, that's true isn't it? HIS HONOUR: Well please Mr Crown I think we should be careful with what's being put. What should be, I think, if we put what was said today and what was said previously without any adjectives. TRIAL ADVOCATE: Thank you, your Honour. Q. You say today that sometimes he'd kiss them goodnight, do you mean by that he went into their rooms? A. Yes. Q. And you say today that he never went into the girls' room when he was drunk? A. No he didn't. Q. You told the police that-- HIS HONOUR: On what day? TRIAL ADVOCATE Q. On 17 June 2010 that he never went into the girls' room for any particular reason. Do you see that? A. Yes and with the line of questioning that was going on then it was - they were trying to make out smut with him and that was why I said, "No".
In my view, from that line of questioning the jury would be entitled to draw an inference adverse to the credibility of the complainant's mother as an impartial and unbiased witness given her implicit admission that she framed her answers to police because her husband was being accused of sexual interference with her daughters and then changed her account in evidence before the jury to be coincident with her husband's evidence.
The witness also denied any occasion when her daughters were left unsupervised by her in the appellant's care, as exemplified in the following questions: Q. - generally the girls were with you and that they weren't often left with him? A. They were never left with him there. Q. What about at … Street? A. No, my girls used to go shopping with me. I'm an only child and I like the company. Q. Were there occasions where he was left with the care of the girls at … Street? A. No. Q. Not ever? A. No. Q. You say that there was no time when the accused was left with [the complainant] for example? A. No. Q. Never, ever? A. No. We all used to go shopping, the girls liked going shopping. Q. But you had, at that stage you had four girls, is that right? A. Yes. Q. Various ages? A. Yeah. Q. And you always took them shopping? A. Always took them shopping. Q. They were never alone with the accused? A. No.
The trial advocate followed that answer with this question, "Is that something you've just thought of just now?", to which she answered, "No".
After denying that there was ever an occasion when the complainant might have been left at home with the appellant, the complainant's mother gave the following evidence on the issue of complaint (it is this aspect of the trial advocate's examination of the witness that is the subject of the second and third grounds of appeal): Q. Did [the complainant] ever complain to you about something that the accused had done to her? A. No. Q. I'm talking about a time when she was nine and you were living at [the place where the complainant gave evidence she was sexually assaulted], did she ever complain to you about something the accused-- A. No. Q. Did she ever tell you that he had touched her in a sexual way at … Street? A. No. Q. Did you ever have an argument with him about him touching [the complainant]? A. No. Q. Was there an occasion where you asked the accused to leave the house? A. No. Q. Did he ever go and live at a pub in … at some stage? A. No. Q. In 1974? A. No.
The complainant's mother agreed that the complainant ran away from home when she was age 17. However, the explanation she gave for her daughter's departure was because "she lost an apprenticeship" the appellant had secured for her. She agreed that the complainant never lived with the family again, and although she maintained contact with her daughter, there was no communication between her daughter and the appellant for many years. She attributed that to embarrassment on the complainant's part because she had lost the apprenticeship. She also confirmed that the appellant had made it clear he "didn't want [the complainant] near the house or in the house", despite being aware that this was during a time when she was sending cards and letters to her mother. She denied ever asking the complainant to write to the appellant to try to mend the relationship with him, which she persistently attributed to embarrassment on the complainant's part for having lost the apprenticeship. I note (as will be obvious when I come to summarise the appellant's evidence) the appellant gives the same explanation for the complainant leaving home and his insistence that all contact with her be severed. In my view, the jury would be entitled to find their evidence a contrivance and their joint explanation for the complainant leaving the family home and being thereafter unwelcome in it as utterly implausible.
The complainant's mother also denied that there was any trouble at A's wedding between the appellant and the complainant as to which she said, "No, why would there be?". This evidence was not only in conflict with the complainant, but also her daughter K.

Cross-examination of the complainant's mother

Mr Rosser's cross-examination was brief but on the issue of complaint it was direct and focused. I extract it in full not only for its significance as part of the evidence available to be considered by the jury but for the bearing it has to Grounds 2 and 3 on the appeal. Q. Just to make it clear, we are told that there is a date that probably just before school holidays in December 1974 when you came home from shopping with K, J and A and your daughter [the complainant] told you that the accused had just that day had sexual intercourse with her? A. No. Q. Did that ever happen? A. No. Q. What would you have done if she'd told you that? A. I'd have rang the police straight away. Q. Was it something - is that something you'd have been prepared to overlook? A. No. Q. We're also told that that day after you were - after [the complainant] told you that she was taken by the accused into her bedroom and given a flogging? A. No. Q. And that you kicked him out of the house for a couple of weeks? A. No. He was never-- Q. Did that ever happen? A. Sorry? Q. Did that ever happen? A. No.
The trial advocate did not re-examine.

The impact of the evidence of the complainant's mother

On my analysis of the evidence of the complainant's mother, the jury could have been in no doubt that the trial advocate's questioning of her as to whether the appellant was ever alone with the children and whether he ever went into their rooms (drunk or sober), and what was led as prior inconsistent statements in her interview with police concerning the latter, was to challenge her credibility. Since much of the questioning was in the form of leading questions put as if in cross-examination (as to which no objection was taken), the jury could have been in no doubt that the trial advocate sought to discredit the complainant's mother's assertion that there was no occasion when the appellant was alone with the complainant (or any of her daughters), or that he ever went into their bedrooms such as might have afforded him the opportunity to commit the offence with which he was charged or perpetrate the abuse led by the Crown as relationship evidence, inclusive of her denials that her daughter made a complaint of sexual abuse.
The jury also heard evidence that the complainant's mother had suffered years of domestic violence at the hands of the appellant without taking any steps to protect herself or prevent her young daughters from being exposed to violence. It would also have been open to the jury to consider that the complainant's mother only revealed the fact that she was a victim of domestic violence because the appellant had revealed in his ERISP that he had beaten his wife and that their evidence on this issue deliberately understated the extent of the violence as exemplified by the evidence under questioning as to whether police attended (see the appellant's evidence on this question at [95] below).
That being so, in my view it also follows that it was also open to the jury to find that, on the whole of her evidence, the complainant's mother was not a reliable witness on matters of substance, including whether the complainant had complained to her in the terms and in the circumstances the complainant deposed to in her evidence and the way the appellant treated the complainant, thereafter culminating in her being progressively ostracised from the family.
The appellant's evidence
The appellant's evidence in chief was limited to confirming the accuracy and truthfulness of his denials to police when interviewed in June 2010. The ERISP and a transcript edited to remove questions directed to the complaints of abuse by K and J was tendered in the Crown case. It was also summarised by Beech-Jones J in ALS v R [2013] NSWCCA 63, and which I gratefully adopt: [43] I note five matters about the appellant's ERISP. First the appellant denied each and every allegation that he was either violent or sexually abusive towards TW. [44] Second, while the appellant stated that he used to drink "no more than anyone else", he did admit to assaulting his wife in the past but said that he had not done so for forty years. [45] Third, the appellant said that when the family lived at the houses in Adamstown Heights and Merewether he would not go into the girls' room unless he needed to get them for something. However, he said he did go into their room to kiss them goodnight on the cheek, and sometimes he would go in there after he had been to the hotel to say "goodnight". [46] Fourth, in relation to the alleged offence against TW, the appellant said that only rarely would his wife leave the girls at home. He said that it was possible that he had been alone in the house with TW, but he denied any sexual misconduct or any of the events following the assault that she alleged occurred. [47] Fifth, the appellant stated that TW's account of events was fabricated and motivated by the will dispute.
Specifically, as concerns the allegation of sexual intercourse the subject of the indictment, the appellant said in his evidence, "It didn't happen, it just didn't happen". He also denied the allegations of sexual misconduct led by the Crown as relationship evidence.

The cross-examination of the appellant

Under cross-examination, the appellant confirmed that he was aged 18 when he first met the complainant's mother at a club. She was aged 27 and not working at that time. He confirmed that he was working (in some unstated capacity) at BHP on a seven-day roster, including weekends. He said that for that reason, he did not go to the hotel very much during the week to drink with "the boys", but did drink with them after football. He agreed that when he arrived home drunk, there were often arguments. After some pressing by the trial advocate, he agreed that the arguments were about his drinking and that those arguments erupted into violence, however he denied that he ever punched his wife with a fist. He said he only ever hit her with an open hand. This was available to be considered by the jury as either an honest account of the domestic violence inflicted by the appellant and suffered by the complainant's mother in the family home at the time when the complainant says she was assaulted both physically and sexually, or a contrived account in an attempt to minimise the extent of his assaultive behaviour generally and his sexual assault of the complainant in particular.
When asked whether, after hitting his wife with an open hand, the appellant hit her more than once, he said: A. I don't know. I can't say I hit her more than once. Look, it's hard to explain it. If I hit [my wife], [my wife] would hit me back. She wouldn't just stand there and be passive. It wasn't like I went home and dragged her out and did that. It wasn't like that assaulting. Just the argument would happen. If I hit her, she'd try to defend herself. I regret that. Q. Didn't you try and choke her? A. Never. Q. Didn't you have her on the-- A. Never. Q. -floor and try to choke her? A. Never ever, ever. Q. And you didn't hit her and cause her - did you cause an injury to her face? A. I could have, a bruise or whatever, because it was an open hand. Q. You said in the interview that you'd have to ask [your wife] and she agreed that she had bruises? A. Well, it's not like I know that she had bruises but I don't-- Q. You hit her. You knew-- A. I don't deny-- Q. You saw the bruise, didn't you? A. -that she would have some.
The appellant agreed in cross-examination that he was physically stronger than both his wife and his children, and that his physical presence was such that he was able to intimidate his wife. In answer to a question asked by the trial judge, the appellant gave the following evidence which, in my view, the jury would be entitled to take into account adverse to him when assessing his credibility: Q. I think the question that's being put to you is that by your physical presence you were able to intimidate your wife, I think that's what's being put? A. Well I probably could if I was aggressive your Honour, you know, I mean I think anybody could to most wives.
He also gave evidence, consistently with his wife's evidence, that there was no occasion, even after he had assaulted her on arriving home from the hotel, when he did not sleep in the marital bed. Although he agreed that the arguments consisted of loud yelling, he denied that there was ever an occasion when the complainant came out of her room to protect her mother.
He claimed no recollection (as did his wife) of the argument detailed by the complainant in her evidence which resulted in the attendance of police, as to which he gave the following evidence: Q. When you say the arguments got loud, I think you agreed with that, was there an occasion when an argument between you and your wife saw the police come to the door? A. I can't recall that. I heard you say it before but I can't recall that. It could have happened. I don't know. Q. And is it the case that when the - well, do you agree that it could have happened, you just can't remember? Is that right? A. I don't know. I know the police came on time for a - when I went for my bus licence but I can't recall the other time. Q. The police came to your house in relation to a bus licence? A. Because I went for a bus licence. I had my semi licence and I went to get a bus licence. You have to - the police come to your door and interview you. Q. You lived next door at … to Mrs Robinson, is that right? A. That's correct. Q. And you don't remember the police coming to your house at … Street? A. No, I don't. Q. You don't remember speaking to the police at the front door? A. I don't. I could've. I don't recall that though. Q. It'd be a fairly significant event though, isn't it, if a police officer comes to your front door about a disturbance? A. It is, yes. Q. But you say you can't remember? A. I can't remember that. They could've come. I'm not saying they didn't. Q. Did you tell - do you remember speaking to the police if they could've come? Do you remember - you would've spoken to the police? A. I can't tell you I spoke to the police when I can't even remember whether they come to my house.
Again, on this evidence it would have been open to the jury to reject the appellant's claim to having no memory of police attending in response to a complaint of domestic violence as untrue, and to treat the evidence of his wife to similar effect as adverse to her credibility on the question whether the complainant told her of the sexual assault.
The appellant was also asked whether there were occasions when he came home from the pub when he had to discipline the children. He said he never went near the children, having had no need to discipline them, but he may have gone into their rooms to say "goodnight".
Again consistently with the complainant's mother's evidence, he said that there were no occasions when he was left alone with the children and that his wife "used to take the children everywhere with her".
The appellant also gave evidence, consistently with the evidence of his wife, that his relationship with the complainant was a good relationship until she discontinued her apprenticeship and left home at age 17. He said, "I never had that much contact after that". The trial advocate suggested to him that the relationship with the complainant changed many years before that in the context of his drinking and the violence he inflicted on her mother, as to which he gave the following evidence: Q. I suggest to you that the relationship changed with [the complainant] many years before that in that changed because of your drinking and you violence towards her mother. What do you say about that? A. I say that's wrong. Q. That she saw you being violent with her mother and she heard you being violent towards her mother? A. Well why didn't the other ones, there's three other daughters. Why hasn't it affected them? Q. She saw marks on her mother caused by you when you hit her? A. I can't say what she saw. Q. She also was struck by you and she had welts on her bottom because of you? A. Never. Never, ever, ever did they ever get hit. When I had an argument with K they were sent to their room and they never, ever were touched. The only time they ever got a smack was when they were naughty or they'd get sent in the corner.
In my view, the jury would be entitled to see the last answer, in the almost identical terms with which the complainant's mother dealt with the question of the appellant disciplining the children, as another deliberate contrivance on their part to give false evidence and, viewed in that way, as the appellant deliberately underplaying his violent disposition generally and the opportunity he had to assault the complainant in the ways she detailed in her evidence, including the sexual assault charged on the indictment.
The trial advocate put a detailed series of propositions to the appellant consistently with his obligations under the rule in Browne v Dunn, directing the appellant to each of the allegations detailed by the complainant in her evidence. To each of those propositions the appellant denied in increasingly emphatic terms that he had at any time mistreated any of his daughters and, in particular, the complainant.
The appellant's denials under oath, as with his denials when first confronted by the complainant in the recorded conversation under warrant and his denials to police when interviewed, were all equally emphatic. After giving consideration to that fact in the context of his evidence generally, I do not regard his denials to be of such overwhelming weight that I am left with a reasonable doubt as to his guilt. As I have also sought to emphasise in the context of my review of the complainant's evidence, it is essential when exercising the jurisdiction under s 6(1) of the Criminal Appeal Act to give full regard to the primacy of the jury as the fact-finding tribunal and the opportunity they had to consider the way in which a witness gives their evidence.
By their verdict in this case, the jury must have rejected the appellant's denials under oath as unconvincing, as do I.

GROUND 2: The trial miscarried by reason of the conduct of the presentation of the case by the Crown Prosecutor.

GROUND 3: The trial miscarried in that his Honour failed to direct the jury that, because the Crown Prosecutor failed to challenge the complainant's mother's evidence that the complainant did not make an immediate complaint to her about the alleged offence, the jury should take that failure into account in assessing the complainant's evidence.

The appellant's senior counsel accepted that leave was required under Rule 4 of the Criminal Appeal Rules (NSW) to argue both grounds of appeal. He submitted that leave should be granted as the decision by trial counsel not to complain about the trial advocate's closing address (in the very limited respect complained of) and to seek directions from the trial judge to address the unfairness to which that submission was said to give rise, could not reasonably be said to have been the result of any forensic decision by trial counsel. It was further submitted that leave should be granted as the rule of unfairness which underpins the principal in Browne and Dunn has been so egregiously breached in this trial that the trial has miscarried.
I would refuse leave under Rule 4 and dismiss both grounds of appeal.
The appellant submitted that in his closing address to the jury the trial advocate breached the rule in Browne v Dunn by submitting that there was evidence of immediate complaint when the complainant's mother had not given that evidence and where he had made no application under s 38 of the Evidence Act to cross-examine her on the issue so as to afford her the opportunity of answering the suggestion in his closing address that she should not be believed.
The passage in the closing address to which exception was taken on the appeal arose in the way following context: After reminding the jury of the complainant's evidence, including what the trial advocate submitted was her courage in standing up to the appellant when he was drunk and abusive, and her fears when she watched her mother and sisters walk away from the home leaving her alone with him on the day he had sexual intercourse with her, and after he summarised her evidence of the assault and how she felt, the trial advocate said: What she is telling you is, in the Crown's submission, the real circumstances of what happened. It's not made up, in the Crown's submission to you. After she says she tells her mother that he "stuck his thing in me and said he was going to split me in two." What that amounts to, in the Crown's submission to you, is that she made immediate complaint to her mother.
The appellant submitted that what his counsel characterised as the breach of the rule in Browne v Dunn by the trial advocate's assertion that "she made immediate complaint" was productive of two consequences. First, he ought not to have addressed the jury that an "immediate complaint" was made. This was said to be the substance of Ground 2 of the amended grounds of appeal. R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34 at [35]-[37] was cited as authority for that proposition.
As Latham J observed in Soames v R [2012] NSWCCA 188 at [104]-[106], the authorities (of which Kennedy is one) which deal with the conduct of a prosecutor where an attack is made on the credibility of a witness called in the Crown case in breach of the rule in Browne v Dunn, emphasise that the unfairness which is said to result from that conduct is because the witness has not had the opportunity to answer an allegation of bias or dishonesty.
In this case, after some trenchant questioning of the complainant's mother about the extent of violence in the household, the trial advocate raised the issue of complaint with the complainant's mother in a non-leading way. At [84] I set out the questions the trial advocate asked the complainant's mother as to whether the complainant ever complained to her about the appellant's sexual mistreatment of her, as to which (after interrupting the trial advocate as he framed the question) she gave an emphatic denial. This was consistent with her evidence that the appellant had never inflicted physical violence of any kind on her children and only minor injuries, if any, on her; a position from which she did not resile. The submission advanced on the appeal seems to be that the trial advocate was obliged at that time, in order to comply with the rule in Browne v Dunn, to make an application under s 38 of the Evidence Act in order to cross-examine the witness by a series of leading questions (I assume in the form of positive propositions to the effect that her daughter did complain), and that when he was met again with her anticipated denial, to then accuse her of lying to support her husband in order to make clear that the Crown was challenging her credibility and to permit her to defend herself against that accusation.
In the circumstances of this case I do not regard adherence to the principle of unfairness that underpins the rule of the rule in Browne v Dunn to have required the trial advocate to have made that application. As I have already observed in my assessment of the evidence in considering Ground 1 of the appeal, the jury would have been in no doubt that the trial advocate did not regard the complainant's mother as a witness of truth given his questioning of her generally. Although the Court was not referred to it, in his closing address the trial advocate did not go the distance of accusing the complainant's mother of lying. His treatment of her evidence and her lack of credibility was more subtle. When dealing further with the complainant's credibility later in his address (the mainstay of his submission that the jury would be left in no doubt as to the appellant's guilt), he said: The Crown says to you that she was a compelling witness. She told you in that extraordinary detail the events subject to the charge. And she did it in a way the Crown says to you was convincing because of its warts and all detail. Her evidence in the Crown's - and you might think - of an unspeakable act, she described in detail and that evidence was of such a quality that you would be convinced of its veracity. Now, in the Crown's submission to you she was honest and that she was accurate in the circumstances of a person relating what a nine year old had experienced; that that [sic] amalgam of honesty and accuracy is something on which you can rely in this court. She was an extremely forthright witness. Now, some of her evidence did not reflect well upon her, you might think. She talked about having a breakdown later in life, she talked about her depression, she talked about her associates, a bad man she might have associated with. She blamed herself for not being able to protect her mother. Now, thank goodness we live in more enlightened times. We see that as naïve. We understand why a child may not tell somebody outside the family. But she did tell her mother. Now, you might think - it's a matter for you whether that trust was correctly placed. It's a matter for you. But she still said to you, quite plainly, she still loved her mother, a bond you might think is not easily broken. [Emphasis added.]
In leaving the issue of complaint as he did in evidence in chief, the trial advocate afforded Mr Rosser the forensic opportunity to cross-examine the complainant's mother which he did, potentially, to very considerable effect. This in turn laid the ground work for a submission he advanced, also with considerable force, in his closing address on the appellant's behalf, as the following extract makes clear: But let's look, shall we, at the evidence of the complainant. Does the evidence fit with other evidence? I've already referred to the fact of the very big conflict between what she says and what her mother says. "I told mum that day." Her mum says that's just not so. "I was never told anything like that." The accused was kicked out of the house for two weeks. Her mother says - well, the accused says it's not true but the mother says it's not true. Look, members of the jury, this is a mother we're talking about and effectively what you are asked to believe is that that woman you saw you're asked to believe that that woman is such an unnatural mother, is so callous and unfeeling that when she's told by her daughter "your husband has had sexual intercourse with me this morning" within two weeks she's got him back in the house living with her. This is her mother. Members of the jury, if nothing else, that's got to give you the greatest pause in accepting what the complainant says to you. You really can't divorce her allegations from the fact that she says, "I told mum that day", and how could you be satisfied that she told mum that day? There's something else perhaps a bit revealing about whether she told her mother. Remember the calls [referring to the calls recorded under warrant]? Mum is on the phone a couple of times in those calls. In the first one, "Let me talk to [the appellant]", and I'm paraphrasing. "What do you want to talk to him about?" This woman [the complainant] says, "I told my mother about this". Wouldn't you have thought that what you'd have heard from her then was, "You know what I want to talk about. I told you what he did to me when I was a child"? You didn't hear that. "I want to talk to him about my childhood", she says. Remember if the complainant is telling you the truth … her mum knows. She told her mum the day it happened when she was nine years old that the accused had had sexual intercourse with her. Wouldn't you have thought what she'd have said to mum, "You know what I want to talk to him about. It's what I told you about all those years ago". And in the second of those calls she actually tells her mother, "You have no idea". "You have no idea", she says to her mother. They're her words. She says that to a woman whom she supposedly told about this. Try to fit that together. It's unlikely enough, we would suggest, that she told her mother about it and her mother saw fit just to ignore it and forgive him and overlook it. That's difficult enough to swallow. But then when she speaks to her mother she doesn't make reference to the fact "you know about it". In fact she says the opposite. "You know nothing about it." It is overwhelmingly likely, not, let me emphasise, not that the defence has to prove a thing to you, but it is overwhelmingly likely that her mother is telling you nothing but the simple truth. There was never any complaint like that. "There was never anything said to me like that." You would have to find this to be a very unusual mother indeed just to let this go by the board, kick him out for two weeks and take him back. You just won't accept that. And what does that say to you? There is a bit of evidence that the mother - what does the Crown say to you about it? Not a word. There's not very much to be said about it, is there? This is her own mother and you're asked to accept what you can't accept. That's a very big obstacle, you accepting [the complainant].
It was also submitted in support of Ground 3 that the trial judge should have directed the jury in such a way as to redress what was said to be the unfairness to the appellant by the trial advocate's failure to comply with Browne v Dunn by giving the jury the following directions: 1. The Crown did not challenge the complaint evidence from the complainant's mother; 2. That failure caused an unfairness to the appellant - in particular, the jury did not have a proper opportunity of assessing her credibility; and 3. The jury should take that failure into account in assessing the weight of the complainant's evidence and the weight of the Crown's submission regarding the complaint evidence .
The Crown submitted, and I accept, that there was no unfairness to the appellant in the approach adopted by the trial advocate in the evidence led from the complainant's mother or the way in which he dealt with her evidence on the question of complaint in his closing address and, accordingly, no warrant for the directions appellate counsel submitted should have been given. In particular, the Crown submitted there was a challenge to her evidence by the questions asked in chief, as is aptly demonstrated both by the questions the trial advocate did ask, and, given the way in which Mr Rosser cross-examined the complainant's mother and then dealt with her evidence in his closing address, there was no unfairness of the kind complained of. The Crown submitted that, in this case, the jury had every opportunity to assess the credibility of the complainant's mother by the way in which she was both examined and cross-examined. I accept that submission.
In respect of all witnesses (including the complainant's mother), the jury were directed in conventional terms that it was for them to assess the evidence and to determine whether it was both truthful and reliable, by considering not only what the witness has had to say, but the manner in which the witness gave their evidence and the general impression which the witness made when giving their evidence. The jury could have been left in no doubt that the evidence of the complainant, on the one hand, and her mother, on the other, on the issue of complaint was diametrically opposed. The jury could also have been in no doubt, given the tenor and the style of the trial advocate's questioning of the complainant's mother, that he was inviting the jury to treat her evidence, at the very least, as unreliable and not to reject the complainant's evidence as untruthful because of it.
The order I would propose is that the appeal against conviction should be dismissed.
BELLEW J: I have had the advantage of reading, in draft, the judgments of Macfarlan JA and Fullerton J.
I agree, for the reasons that his Honour has expressed, with the orders that Macfarlan JA proposes. I wish only to add the following brief observations.
In reaching the view that the appeal should be allowed, I agree with Macfarlan JA that no single factor is determinative. However, in the circumstances of the present case, particular significance attaches to three aspects of the evidence.
Firstly, the complainant's evidence was entirely uncorroborated. In matters of this nature that might not be regarded as unusual in one sense. What is significant in the present case is that, accepting the complainant's account of the offending, her two sisters were in a position to corroborate at least some aspects of her evidence. No such corroboration was forthcoming from either of them. As Macfarlan JA has pointed out, the fact that there may be reasons which explain that circumstance does not operate to fill what is an evidentiary void.
Secondly, the multiplicity of communications, in one of which extended the complainant invited the appellant to join her on a holiday, are fundamentally at odds with the complainant's asserted feelings of animosity towards the appellant.
Thirdly, what is depicted in the film taken at the wedding reception of the complainant's sister is inconsistent with the complainant's evidence. I accept that the wedding reception obviously extended over some hours and that the film tendered in evidence was a short "snapshot" of the entire event. The essence of the Crown's submission was that what can be seen in such a snapshot should not be regarded as being generally representative of the complainant's attitude towards the appellant at that time.
In other circumstances, the Crown's submission may have been deserving of greater weight. However, the film demonstrated clear and unequivocal expressions of affection on the part of the complainant towards the appellant. Even when full weight is given to the short duration of the film, what was depicted is fundamentally inconsistent with the complainant's evidence.
Having regard to the combination of matters to which Macfarlan JA has referred, I am driven to the conclusion that the appeal should be allowed.

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: 21 April 2015

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (11)