Antouny v R

Court of Criminal Appeal (NSW)|2020-06-24|Before: Hoeben CJ, Fagan J, Cavanagh J

Judgment

HOEBEN CJ at CL: I agree with Cavanagh J and the orders which he proposes.
FAGAN J: I agree with Cavanagh J and with the orders he proposes.
CAVANAGH J: The applicant, Elie Antouny, seeks leave to appeal against his conviction on three counts of sexual intercourse with a person under the age of 10 contrary to s 66A of the Crimes Act 1900 (NSW).
On 28 July 2016, the applicant was found guilty on each count by a jury of 12 sitting in the District Court with his Honour Judge Farmer SC. Unfortunately, his Honour died before sentencing the applicant. The applicant was sentenced by her Honour Judge Culver on 28 March 2017 to an aggregate sentence of imprisonment for 8 years with a non-parole period of 4 years. The sentence dates from 3 February 2017 and the non-parole period is due to expire on 2 February 2021.
The applicant appeals against his conviction on two grounds being: "1. That His Honour erred in directing the jury that the answers given by the appellant in his record of interview were 'not evidence in the same way as the witnesses have given evidence', without also directing the jury that the weight to be given to such evidence was entirely a matter for the jury. 2. That a miscarriage of justice was occasioned by the Crown Prosecutor's cross-examination of the defence witness, Josephine Moussa, in relation to MFI/17, in contravention of s.44(1) Evidence Act 1995."

Background

The offending is said to have occurred between 19 December 1990 and 20 December 1992. At the time, the applicant was between 25 and 27 years of age and the victim was between 7 and 8 years of age.
The victim is the applicant's niece. The victim's mother is his sister. The applicant lived in his family home with his parents but not with the victim or his sister.
The victim gave evidence by AVL. At the time when she gave her evidence, she was 32 years of age.
Around the time of the events that gave rise to the charges, the victim and her family would regularly visit the applicant's family or visit with the extended family at least once a week.
The victim gave evidence as to the offending as follows. On one occasion when the victim was between the age of 7 and 8, she was in the applicant's bedroom with him. No one else was in the room. The applicant closed the door. He placed the victim on the edge of his bed and pulled down her clothes from the waist down. He inserted his penis into her vagina. She said that she felt excruciating pain. She was shocked and confused. She did not know what to do. She said she went along with it just because she did not want to upset him because she thought it was normal what he was doing. When he asked if he was hurting her, she replied in the negative because she did not want to upset him. She said the intercourse lasted for about 10 to 20 minutes after which he pulled up his pants and pulled up the victim's pants and said, "Don't tell anyone". They then went downstairs to join the rest of the family.
The victim said that the next incident occurred about six months later again in the same bedroom. The applicant again placed the victim on the bed and removed her clothes from the waist down. He again inserted his penis into her vagina and again she experienced pain and a stretching feeling. He stopped suddenly when some people could be heard coming up the stairs. The victim said that he managed to pull up his pants but did not get the pants all the way up so he quickly sat on the bed and put the victim on his lap. Relatives came into the room but did not stay. She was again admonished not to say anything to anyone.
The next incident occurred in the same house. On this occasion, the applicant followed the victim into the bathroom and locked the door after him. He grabbed her and pinned her against the wall. He pulled down her clothes and his clothes from the waist down. Whilst her legs were not touching the ground, he inserted his penis into her vagina. She experienced extreme discomfort and pain. The intercourse is said to have lasted for about 15 to 20 minutes. Again, when he had finished, he admonished her not to say anything or she would get into trouble. When she went to the toilet after the event she felt a stinging sensation and observed discharge which she now knows to be semen.
In addition to giving evidence specific to the three incidents, the victim gave evidence of a regular pattern of behaviour involving the applicant rubbing himself on the victim; grabbing her from behind and grinding his pelvis into her; and putting her directly on his lap over his crotch area.
On 15 March 1993, the victim told a school friend that her Uncle Elie, being the applicant, had touched her inappropriately. The matter was reported to the school authorities and the Department of Community Services ("DoCS") attended the school and spoke to the teaching staff. The victim's mother was informed that day and she informed her husband that evening.
On 17 March 1993, DoCS conducted an interview with the victim with her mother in attendance. During that interview, she said that the applicant had sex with her on three occasions. DoCS directed that she undergo counselling at the Westmead Hospital Sexual Assault Service Unit, known as "Grevillea House".
The victim's mother gave evidence. She said that she took the victim to the family GP, Dr Sheila Bhatt. The victim said in cross-examination that her recollection was that she was taken to see the doctor to make sure that everything was okay between her legs. She says she had a recollection of the doctor making both an exterior and internal examination.
Dr Bhatt gave evidence. She no longer had her medical records from that time. She did not recall any examination of the victim. However, she said that she has never carried out an internal examination of a girl of that age. She said, in a hypothetical situation, if her mother had reported to her that her child was alleged to have had sexual intercourse, she would have carried out an external examination to see if there was any bleeding or bruising and would have referred the matter onto the Westmead Children's Hospital, as well as to the Police.
The significance of this evidence is that the victim's mother, being the applicant's sister, was called in the case for the applicant. Her evidence was to the effect that on her observation, the interaction between the victim and the applicant was normal, like between any child and uncle. She did not observe any physical affection between them. She never observed anything that was of concern to her. The victim did not make a complaint to her about the applicant at any time prior to her being contacted by the victim's school and DoCS.
DoCS came to her house that night. The victim's mother and her husband had a conversation with the victim in the room about taking the victim to Dr Bhatt the next day. She took the victim to Dr Bhatt the next day. She described the examination, stating that Dr Bhatt put her daughter on the table and examined her from below and told her, "rest assured your daughter is okay. There's no evidence to say that what said is - actually happened".
The victim's mother said that the victim went to one or two sessions of counselling and thereafter they went back to Lebanon. That is, the victim's family returned to Lebanon where they lived for six years before returning to Australia.
There was an issue as to when the matter was first reported to the Police. The DoCS records tend to suggest that the matter was reported to the Police on 19 March 1993. On 19 March 1993, Westmead Hospital Sexual Assault Service Unit generated an intake information record for the victim. There was an intake meeting. The record of that meeting records that no physical examination was required, as the victim had already been examined by a GP. The notes also record that the matter had already been reported to the NSW Police. However, the NSW Police hold no record of the matter being reported prior to 2013.
As the sentencing judge observed, the victim reported the matter directly to the Police in 2013, at which time she felt she had sufficient strength to report the matter. There is no Police record of any engagement between the Police and the applicant in 1993.
In addition to the victim, the Crown adduced evidence from: 1. Ms Sunny Hong, a social worker employed at the Westmead Hospital Sexual Assault Centre, Grevillea Cottage, in 1993, in relation to her intake notes; 2. Detective Senior Constable Christopher Fisher, in relation to information obtained from the victim when he made contact with her in March 2015, the victim originally having made contact with the Police and provided information on 18 November 2013, and 3. Detective Constable Alex Cabrera, who accompanied Detective Senior Constable Fisher on attendance at the applicant's premises, on 6 July 2015.
As observed by the sentencing judge, it must be that the jury accepted the victim's evidence.

Ground 1

Ground 1 relates to the words used by the trial judge in directing the jury about the answers given by the applicant in his record of interview. The applicant complains about the following statement made by the trial judge: "The answers given by the accused in the record of interview are not evidence in the same way as the witnesses have given evidence. It has not been tested by cross-examination in the Court before you. You might think that by reading it, in some part the police officers did cross-examine him a little during the course of their interview with him; but as I say it is a version of events which is open to you to take into account. If having reviewed the interview, and listen to it again if you need to or reread it if you need to, it causes you to have a doubt as to whether the accused is guilty of any of these three charges, then you would not be satisfied that the Crown has proved the charges beyond reasonable doubt. The accused is entitled to have it taken into account by you when determining whether or not the Crown has proved beyond reasonable doubt the case it brings against him."

The applicant's submissions

The applicant submits that the trial judge erred in that his Honour was also required to include (as part of the direction referred to above) a direction that the weight to be given to the answers given by the applicant in the record of interview was entirely a matter for the jury.
The applicant relies on the direction approved by the High Court in Mule v The Queen [1] as follows: "The denial - his denials and the assertions that he makes, are not supported by evidence from him on oath in the witness box and therefore those matters do not have the same weight as evidence, as his admissions or confession, if you like, of possession, for example, against interest, doesn't have the same evidential weight, but the accused's denials and his assertions are still matters for you to consider. They are before you and you give them what weight you see fit." (Emphasis omitted.)
In making this submission, the applicant acknowledges that the trial judge specifically stated that he had no role to play in the assessment of the weight to be given to any particular part of the evidence at the beginning of his summing up.
The applicant submits that a jury would not have understood such a general statement at the commencement of summing up to be relevant to any specific direction given during the summing up.
Further, the applicant submits that the answers given by the applicant during the interview were every bit as much evidence as the rest of the evidence in the case and were capable of being afforded equal weight. As such, the statement by the trial judge that the answers "were not evidence in the same way as the witnesses have given evidence" created the risk that the answers would be treated differently by the jury in the sense that they were necessarily deserving of less weight.
The applicant summarised his position on this ground as follows: "Because of course one does not look at the evidence in a compartmentalised fashion… in other words it is not the case where the jury could look at the record of interview and say therefore we would acquit the accused because his evidence in the record of interview would have to be assessed as against the other evidence in the trial. The jury would have to go through a process of weighting the evidence, perhaps not in a formal sense, but in analysing the evidence and determine what evidence they accepted and what weight was to be given to that evidence. And it's in that respect that a direction where less than full weight might be thought to be required to be given where an accused in evidence would materially affect that analysis which the jury would be undertaking."

The Crown submissions

The Crown submits that the words the subject of complaint must be considered in context, particularly in the context of the statement that the jury must acquit if the interview caused them to have a doubt as to guilt. The Crown submits that the directions to the jury must be read as a whole and that, when reading the directions as a whole, the trial judge did not direct the jury that they were bound to give the interview less weight than other evidence.
Further, the Crown submits that the absence of objection by the applicant's counsel in the Court below is a strong indication that, in the atmosphere of the trial, counsel formed the view that there was no injustice in the direction. [2] Even if there was error in the direction, no miscarriage of justice has been established and leave to appeal should not be granted.

Consideration

I accept the Crown's submissions.
It is sometimes possible to point to a choice of words, used as part of a particular direction, and identify other words that might have been used. However, it is important to consider the words used by a trial judge in giving directions in context. The context includes not just the particular sentence, but also the particular topic and with reference to all of the statements made by the trial judge on that particular topic or piece of evidence. Further, the context includes the summing up as a whole.
It is not always necessary for the trial judge to repeat directions already made in canvassing each piece of evidence. The trial judge had already made a direction in respect of weight at the commencement of summing up as follows: "I am the judge of the law, but you are quite correctly called the judges of the facts. I have nothing to do with those facts or your decisions in relation to them. I have nothing to do with what evidence is to be accepted by you as truthful or what evidence is to be rejected by you as being untruthful or for some other reason unreliable. Nor, indeed, do I have anything to do with what weight you might give to any one particular part of the evidence which has been given or what inferences or conclusions you might draw from any of those facts that you find."
Further, the actual statement, "the answers given by the accused in the record of interview are not evidence in the same way as the witnesses have given evidence" could not be the subject of complaint. They must be read in the context of the next paragraph.
This was a clear direction to the effect that, if having considered the interview, they had a doubt as to the guilt of the accused they must acquit. No inference could be drawn that the judge was suggesting to the jury that they should give the interview no weight or not consider it as part of the evidence.
The question raised by the applicant on Ground 1 is whether the absence of a direct statement as to weight in the same part of the summing up rendered the summing up deficient or unfair to the applicant.
In Mule v The Queen at [24], the High Court said: "24. The appellant's alternative submission to this Court is that, in the present case, what the trial judge said in the paragraph in question amounted to an erroneous instruction of law. The paragraph contains some obvious hesitations, and some internal corrections. It is wrong to read it by overemphasising one fragment of it. It is necessary to read it as a whole and in context. If so read, it had conveyed to the jurors that, as a matter of law, they were bound to give less weight to some parts of what was said to the police than to others, then it would have been a misdirection. (Whether it would have involved a miscarriage of justice is another matter. In this case no jury, acting reasonably, could have failed to discriminate, in terms of weight, between the admissions as to the identity of the tablets and as to possession and the assertions as to purpose.) As the judge said in the same paragraph, as he told the jury at the commencement of the trial, and as he said again later in his summing-up, it was for the jury, and the jury alone, to decide what weight to give particular parts of the evidence. There is some internal inconsistency in the paragraph, but it is impossible to accept that the jury would have been left with the erroneous impression claimed by the appellant. This conclusion is reinforced by the consideration that experienced trial counsel made no complaint at the end of the summing-up."
In R v Wilson [3] (which pre-dated Mule v The Queen), Hunt AJA (as his Honour then was) suggested, when considering the warning that should be given in respect of hearsay evidence, that "judges who intend to give such a warning would … do well to leave to the jury the issue of the weight actually to be given to the hearsay evidence in the particular case before them."
Similarly, in Burke (a pseudonym) v R, [4] Redlich, Weinberg and Priest JJA said: "71. The answer to be given to the jury had to address the question whether the record of interview was the same as sworn evidence. The jury needed to be told in clear terms that the answers in the record of interview were part of the evidence to which they could have regard but that they were not obliged to give the accused's answers in the interview the same weight as sworn testimony."
The applicant's highlighting of similar directions in other cases certainly demonstrates that a reference to the weight that a record of interview should be given is generally a constant in such directions.
However, it remains important to state that: 1. the statement by the trial judge was not in the nature of an Azzopardi [5] direction; 2. there is no prescription in respect of the words that should be used and reference to directions in other cases in different terms does not of itself establish error; and 3. it is always a matter of considering the summing up as a whole and the words used as part of any specific direction in the context of other statements made both as part of the specific direction and in other parts of the summing up.
Further, as the Crown submits, there was no statement by the trial judge that the jury was bound to give less weight to the answers given by the applicant in the interview. That would be a misdirection. This was the conclusion of the Court in Burke (at [71]) as follows: "Any direction which conveys to a jury that they are bound to give less weight to any unsworn statement or answers of the accused would constitute a misdirection."
The trial judge in the present case made no such statement.
In any event, even if there was some deficiency in the words used when directing in relation to the interview, not made up for by the direction immediately following in the next paragraph of the summing up, it is difficult to see how this could have resulted in a miscarriage of justice.
Indeed, the applicant did not submit that the Court would consider whether there was a miscarriage of justice, having regard to the alleged misdirection alone. The applicant submitted (in oral submissions) that the alleged misdirection in combination with the impermissible cross-examination, which is the subject of Ground 2, resulted in a miscarriage of justice.

Ground 2

The applicant contends that a miscarriage of justice was occasioned by the Crown Prosecutor's cross-examination of the applicant's sister, being the victim's mother, in relation to MFI/17, being the typed and handwritten DoCS notes of interview with the victim conducted at her school on 17 March 1993. It is said that the witness ("the mother") was cross-examined in contravention of s 44(1) of the Evidence Act 1995 (NSW).
A representative of DoCS conducted an interview with the victim with her mother in attendance at the school on 17 March 1993. The notes and record of that interview were not tendered at the trial. They remained an MFI.
However, there was reference to the interview, both during the victim's evidence and the cross-examination of the mother.
Evidence was adduced from the victim about the DoCS interview as follows: "Q: Where was this interview conducted? A: It was in the school office. Q: Did the DOCS officers introduce themselves to you? A: Yes, they did. Q: What can you recall that you were asked and what did you answer, to the best of your recollection? A: They asked me what had happened with my uncle and I explained to them what had happened to me, so - Q: Were you asked when the last incident had occurred? A: Yes, I was. Q: What did you answer? A: And I said, 'Before Christmas 92.' Q: What did you tell the officers that had happened? A: I told them that he took me to his room and he laid me down on his bed and he put his penis inside of me. Q: Did you nominate on how many occasions this had occurred? A: Three. I told them three times. Q: Do you recall anything in relation to questions about who you had told, if anyone, who you relayed this to other than the DOCS officers? A: Yes, to Viola. I told them that I told Viola and the teacher. Q: Were there any questions in relation to the state of your mother's knowledge that you can remember, or not? A: At the time, no. I thought Viola was the first person I told."
The content of that interview was not taken up with the victim again in examination-in-chief, albeit the fact that the victim told the DoCS officers later in March 1993 that nothing had happened (the retraction) was raised. She said that her mum had coached her in what she said (what she should say when retracting what she had said to DoCS). That is, nothing had happened and she had been watching a dirty movie and made up a story.
The DoCS interview was taken up with the victim in cross-examination. It was suggested that the first occasion when she actually gave details of the allegation against the applicant was when she spoke to the DoCS people.
Whilst there was a further question relating to further DoCS visits and what DoCS had recommended, there was no further questioning in cross-examination as to the content of that interview. There was an application (which was rejected) with reference to a statement made about a gardener. The Crown sought to tender the notes/interview for the purposes of re-establishing credibility but the trial judge rejected the tender.
The ground of appeal relates to the use of the notes/interview in cross-examination of the mother. There is no complaint about its use in questioning the victim.
The applicant originally complained about three parts of the cross-examination but, during oral submissions, that was narrowed to two. The issues were further narrowed by the Crown's concession that the third part of cross-examination was contrary to s 44 of the Evidence Act.
So that leaves two questions for consideration being: 1. Did the first part of cross-examination identified by the applicant offend s 44 and, if so, what was the effect, that is, was there a miscarriage of justice? 2. What was the effect of the third part of cross-examination in terms of there being a miscarriage of justice?

Section 44 of the Evidence Act

As set out in s 44(1) of the Evidence Act, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than a witness. Sections 44(2) and (3) set out the exceptions to that general principle.
Firstly, as set out in s 44(2), a cross-examiner may question a witness about the representation and its contents if: 1. evidence of the representation has been admitted, or 2. the court is satisfied that it will be admitted.
Secondly, as set out in s 44(3), if subsection (2) does not apply and the representation is contained in a document, the document may only be used to question the witness in the manner set out in s 44(3). That requires the following: 1. production of the document to the witness; 2. if the document is a tape recorder or another kind of document from which sounds are reproduced, production of some means by which the witness can listen to the contents privately; 3. asking the witness whether, having examined the document or heard its contents, the witness stands by the evidence that he or she has given; 4. neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.
Section 44 thus provides a general preclusion in respect of cross-examining a witness about previous representations made by other persons. However, if evidence of that previous representation has been admitted or the Court is satisfied that it will be admitted, then there is no preclusion.
If s 44(2) does not apply, the cross-examiner may only show the document to the witness and ask the witness whether, having examined it, the witness stands by the evidence thus far given.
As identified by Mason P in R v S, [6] s 44(2) conditionally lifts the barriers that prevent identification of the document or disclosure of its contents to the jury. However, it only does so in circumstances in which evidence of the representation has already been admitted or will be admitted.
Section 44 is directed at the way in which a witness is questioned. It prevents a cross-examiner making reference to the contents of the document containing the previous representation or the previous representation itself in the question unless s 44(2) applies. Section 44(3) is quite clear in specifying the procedure that must be applied by the questioner with reference to a document containing a previous representation made by a person other than the witness.
The vice to which s 44 is directed is the unfairness in cross-examining a witness on another person's statement when the witness has not seen the document previously. [7] Further, the very purpose of s 44(3) must be to ensure that the content of documents, which might otherwise not be tested or be credible, is not introduced to the jury through the process of questioning. This is why s 44(3)(d) precludes the cross-examiner from disclosing the contents of the document as part of the question. [8]
Of course, as happened in this matter, the jury should be cautioned not to have regard to questions which are not answered or the subject of objection and only have regard to the actual evidence. Nevertheless, the requirement for such a caution does not detract from the importance of compliance with s 44.
The Crown Prosecutor did not comply with s 44(3) in any part of the contentious cross-examination. It is thus necessary to consider whether s 44(2) applied.
The Crown submits that s 44(2) applied because evidence of the representation had already been admitted. The representation for the purposes of s 44 was what was said by the victim during the DoCS interview.
Cross-examination on the topic commenced as follows: "Q: Just listen to the questions please. I want to suggest to you that on 17 March 1993, 11 o'clock, you're present during an interview conducted by Trevor Watson, Linda Nilsson, in the presence of Sister Constance from the school, an interview which went for some time, do you agree or not? A: I don't recall, I don't recall that. Q: Do you concede the possibility that you were present for an interview where your daughter was asked a number of questions by Trevor Watson, the DoCS officer and she supplied answers in response to those questions?"
The Crown Prosecutor raised in the opening question to the mother the fact that he would be raising, as a topic, the DoCS interview conducted at the school on 17 March 1993. As the applicant submits, it had become plain to the jury that there was such a document and the Prosecution was in possession of the document.
However, it was already plain to the jury that there was such a document through the questioning of the victim. The document had already been marked for identification. By referring to the document, the Crown Prosecutor was not revealing something not already known by the jury.
The mother was then shown MFI/17 and asked to read it to herself. She was not asked whether she stood by her evidence in accordance with s 44(3)(c) but was asked questions as to the content of the interview, initially, as follows: "Q: I want to suggest to you that after the officers introduced themselves and said who they were Trevor Watson said, 'How old are you'? And [the victim] said, 'Nine years'. And then Mr Watson said, 'Are you able to tell us if you're having any problems?' And then [the victim], there was no response. Mr Watson said, 'Does it have anything to it with your Uncle …?' HICKELTON: I object to this. One question at a time. CROWN PROSECUTOR: I'll do that. HICKELTON: There's another matter I'd like to raise with you. CROWN PROSECUTOR: I can move on to another topic. I think I anticipate what my friend is going to. I can do it one question at a time, that's no problem, but the other matter I can move on."
Counsel for the applicant came back to his objection in the following context: "HIS HONOUR: I've told the jury 10 o'clock but I've listed the matter for 9.30. You oppose Mr Crown going through the record of interview and putting each of the questions and answers, do you? HICKLETON: Yes, I do. This document is not her document. HIS HONOUR: But she was there. HICKLETON: She was there but has very good memory of it. HIS HONOUR: He should be entitled to test her memory, shouldn't he? HICKLETON: Yes. HIS HONOUR: She does have a clear recollection she says of saying to her brother something along the lines of, 'There's been allegations at the school that you molested her'. Why isn't the Crown entitled in short form to say well look you've read that interview now, you've agreed you were there. In that interview it says that he had sexual intercourse, why wouldn't she put that to her rather than just molested. It may explicable, I don't know, but I thought the Crown is entitled to test it. HICKLETON: I can't answer that but to go through it line by line to try and get it into evidence by reading it line by line, if he wants to put it in general terms as your Honour has just put it, that you were there and you heard that allegation that he had sexual intercourse with her and then put it to her 'and that's what you told your brother', not molested but sexual intercourse, I can't complain of that but this way he wishes to effectively put a document in that he really should have put in through [the victim] herself. HIS HONOUR: Again it was led in a short form way from her to the effect as I recall it that what she complained of in her evidence was in substance what she told DoCS so I think that's a preferable way to go but you can dwell on that overnight Mr Crown."
The applicant submits that this constituted a proper objection to the cross-examination of the Crown Prosecutor on the document, having regard to s 44. In my view, the comment "this document is not her document" must have been a reference to the very prohibition on cross-examination on such a document as set out in s 44. Having said that, counsel for the applicant appears to have conceded that the cross-examination on the document could proceed in a more general way.
However, it is not necessary to comment further on the nature of the objection as, for the reasons set out below, I am satisfied that: 1. the relevant part of the cross-examination (extracted below) did not offend s 44 because evidence of the representation had already been admitted and thus s 44(2) was satisfied; and 2. the Crown has already conceded s 44 was not complied with in respect of the third part of the cross-examination.
The contentious part of the cross-examination is as follows: "Q: Have a look at that interview in front of you and you read it yesterday. You recall that there were introductions from the DoCS officer to yourself and your daughter at the school? A: Yes. Q: And Sister Constance was there. Then I suggest that Mr Watson asked [the victim] who [sic] how old she was, she said nine. HICKLETON: Your Honour, we were here yesterday. CROWN PROSECUTOR: I got that far yesterday. HIS HONOUR: I think we all know how old she was. CROWN PROSECUTOR: Okay. Q: Then Mr Watson said, 'Are you able to tell us if you are having any problems?' And then [the victim] - there was no response. Mr Watson then says, 'Does it have anything to do' - HICKLETON: Your Honour - HIS HONOUR: The point is that when these matters were raised earlier in the trial it was done in a global way. You can do that for the purposes of cross-examination of this witness. CROWN PROSECUTOR: All right. Q: You were present when your daughter said that 'he takes me to his room, he locks the door, he takes my clothes off, he took' - HICKLETON: Your Honour, I'm sorry - CROWN PROSECUTOR: I'll withdraw that question. Q: You were present when your daughter, in response to the questions informed the DoCS officer that her uncle had taken his shorts off and got his dick and - words to the effect of that he had sex with your daughter, you were present when that supplied by your daughter weren't you? HIS HONOUR: Don't answer that. That's the general type of the question to be put. Put it again so it's nice and clear thank you. CROWN PROSECUTOR Q. You were present when your daughter informed the DoCS officer that her Uncle Elie had sex with her, weren't you? A. Yes, I was present, yes. Q. You heard the DoCS officer asking questions and her supplying answers about the details of what happened, yes? A. Yes. Q. Did you hear your daughter say, 'The last time it had happened was before Christmas'? A. I can't recall every detail of it but I was in the - yes, I was in the room, yeah. Q. Okay, I'm not asking for every detail, but you don't dispute that is what your daughter said? A. No, I don't dispute that."
There are three contentious questions, the first of which was withdrawn, the trial judge intervened on the second and the third was answered.
The Crown initially submitted that it could only be the third question and answer which gave rise to any concern, but that rather ignores the fact that s 44 of the Evidence Act is intended to preclude a form of questioning.
The three questions asked in that form at that stage had the potential to cause prejudice to the applicant. The cross-examiner was introducing to the jury prior representations made by another person.
However, I accept the Crown's submission that s 44(2) applied. The questioning as to the content of what was said by the victim to the DoCS officers is consistent with the evidence the victim had already given in evidence-in-chief, to which I have already referred. The content of the question may not be identical to that evidence but it is very similar and consistent with that evidence. As such, evidence of the representations had already been admitted, such that the questioning did not infringe s 44(1).
Similarly, the further questioning by the Crown Prosecutor shortly thereafter did not offend s 44, as the focus of the questioning and the answer was on the same representation, for example: "Q: I'm talking about in the interview where you were present? A: In the interview she told them what the note says here, that took the pants down and all this."
I accept the substance of the applicant's submission as to what the Crown Prosecutor was seeking to achieve. I accept that if s 44(2) did not apply, there is room for the proposition that the procedure adopted by the Crown Prosecutor was unfair.
However, the prior representation of the victim that would be the subject of the preclusion in s 44(1), except for s 44(2), is the victim's description of what she had already said in her evidence about what she said during the DoCS interview.
In those circumstances, the cross-examination was permissible under s 44(2).

The third extract

The Crown Prosecutor returned to cross-examination of the mother on the DOCS interview on a third occasion. The Crown concedes that, on this occasion, the Prosecutor did offend s 44.
However, it is difficult to understand how it could have led to any unfairness to the applicant. The passage commenced: "Q: Wait for the question. I suggest that in your presence on 17 March the officer, Trevor Watson, said, 'Have you told your father, does he know?' And [the victim] said, 'No, he doesn't know'. A: He questioned her on the 15th. I keep telling you this and you keep saying 'two days after the father doesn't know'. He questioned her on the 15th. She was a child. Q: I suggest that your daughter in your presence was asked, 'What do you think will happen' - A: You're told to make a story out of hearsay. I'm telling you my daughter was questioned by me and her father on the 15th. You're saying on the 17th Sunny Hong asked her and she said, 'No, my father does not know.' I'm telling you the father does know, he's alive, give him a call, ask him. Q: I suggest to you that in your presence your daughter said in answer to a question, 'What did you think would happen?' She answered, 'Mum told me not to tell him'? A: That's a lie in itself. I'm telling you the father knew on the 15th. It's the 17th, this is two days after the event. She's a child."
The applicant submits that the cross-examination with reference to the DoCS interview was adopted to create a particular aura about the interview. In particular, it was intended to impeach the credibility of the mother. The applicant submits that the Crown Prosecutor sought to demonstrate that the mother was not telling the truth because she had before her the interview in which the victim had said certain things, for example, about not telling her father and the mother refused to concede the point. That is, the point of the cross-examination was to set up a conflict between the victim and her mother, as to who said what about telling the father/husband.
If the purpose of this part of the cross-examination was to impeach the credibility of the mother, I doubt that it would have added much to other matters already raised in cross-examination.
For example, the victim had already stated quite specifically that she had retracted the complaints she made to DoCS shortly thereafter with a particular excuse because she was coached to do so by her mother.
Further, the jury had before it the conflict between the evidence of Dr Bhatt and the mother as to whether Dr Bhatt carried out an internal examination of the victim back in 1993.
Accepting that this part of the cross-examination offended s 44, the question is whether, on that ground, there was a miscarriage of justice such as to engage s 6(1) of the Criminal Appeal Act 1912 (NSW).
I do not consider that there was any wrong decision on any question of law. I accept the Crown submission that there was no objection to the third part of the cross-examination. The trial judge did not make any error when there was no objection or request for a ruling. [9]
Further, as I indicated at [76], whatever counsel for the applicant was intending by the objection based on the fact that "this document is not her document", this statement could hardly be taken as general objection to any and all cross-examination with reference to the document.
I do not accept that the applicant has demonstrated any miscarriage of justice based only on the limited cross-examination that offended s 44 of the Evidence Act.
I accept the Crown submission that the limited cross-examination that offended s 44 was directed at a topic which could not have taken the witness by surprise and which would have resulted in the same answers even if s 44 had been complied with. There may have been more merit in the applicant's contentions as to miscarriage if all of the cross-examination had been undertaken contrary to s 44.
It is not necessary to consider the applicant's ultimate submission on miscarriage of justice (that is, it should be considered with reference to the combined errors demonstrated in Grounds 1 and 2) as the applicant has not established Ground 1.
In the circumstances, I would propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.

Endnotes

[2005] HCA 49; 221 ALR 85 at [11] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).
ARS v R [2011] NSWCCA 266 at [148].
(2005) 62 NSWLR 346; [2005] NSWCCA 20 at [39].
(2013) 40 VR 161; [2013] VSCA 351 at [71].
Azzopardi v R (2001) 205 CLR 50; [2001] HCA 25.
[2003] NSWCCA 122 at [49].
ASIC v Rich [2006] NSWSC 643; 201 FLR 207 at [23].
Michael McHugh, 'Cross-Examination on Documents' (1985) 1 Aust Bar Rev 51.
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72]. 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: 12 August 2020

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