Binns v R

Court of Criminal Appeal (NSW)|2017-11-15|Before: Basten JA, Hulme J, Garling J

Solicitors: Hunter Flood Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/248004 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 September 2015 Before: Hanley SC DCJ File Number(s): 2013/248004

Judgment

BASTEN JA: On 5 August 2015 the applicant, David Binns, was convicted by a jury on one count of sexual intercourse (cunnilingus) with a person under the age of 10 years. The complainant's mother and Mr Binns' partner (Elizabeth) were cousins. The complainant was a friend of Elizabeth's daughter. The offence was said to have taken place of the bedroom of the daughter, who will be referred to by the pseudonym Jenny.
Following the applicant's conviction his solicitor filed a notice of intention to appeal. That notice was allowed to lapse in September 2016. The application for leave to appeal presently before this Court was filed on 23 August 2017. The applicant's non-parole period will expire on 4 August 2018.

Issues at trial

The events the subject of the charge were quite circumscribed. The complainant alleged that she was staying with the family of her friend Jenny at Whalan and was sleeping in the spare bed in Jenny's bedroom. The applicant, who lived with Jenny's mother in the same household, came up to the girls' bedroom late in the evening. The complainant said she half-woke when he opened the door; she felt the cold as her blanket was moved and then felt hands on her waist, which pulled down her pyjama bottoms and pants. The complainant said she was awake when she felt him licking her vagina. She said that she then kicked him away. The sexual assault took no more than 5-6 seconds.
The defence sought to cast doubt on the complainant's account. The accused did not give evidence and did not call any evidence. However, he relied upon evidence given by Elizabeth and her daughter Jenny. Each was called by the prosecution, although each was cross-examined as to particular aspects of their evidence on the basis that they were adverse witnesses.
Based on the evidence of the mother and her daughter, the defence submitted that: 1. the complainant had never stayed overnight at the house they occupied in Whalan; 2. the complainant had misdescribed the position of Jenny's bedroom in the house; 3. the complainant had said that there were separate beds, whereas Jenny and her mother said there were bunk beds, and 4. the first complaint to anyone was made in 2013, at which stage the complainant's mother was no longer on speaking terms with her cousin and the complaint was false and vindictive and made at the instigation of the complainant's mother.

Ground 1 - absence of direction as to forensic disadvantage resulting from delay

There was no doubt that there had been a lapse of some four and a half years between the date of the alleged offending and the first complaint by the complainant. There was some brief discussion between the trial judge and counsel as to whether the delay had caused any "significant forensic disadvantage" to the accused. The applicant's submission that there should have been a direction given on the basis of such disadvantage depended on the application of s 165B of the Evidence Act 1995 (NSW). That section provides: 165B Delay in prosecution (1) This section applies in a criminal proceeding in which there is a jury. (2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay. (5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury. (6) For the purposes of this section: (a) delay includes delay between the alleged offence and its being reported, and (b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay. (7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following: (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable.
The applicant submitted that, upon an application by counsel for the accused, the trial judge was under an obligation to provide a relevant warning unless he had been positively satisfied that the defendant "did not suffer a significant forensic disadvantage because of the consequences of delay" or that there were "other good reasons for not providing such a direction". That submission appears to have resulted from reliance upon what was said to be a "summary of principles in relation to s 165B directions" derived from the judgment of this Court in TO v R. [2] Each of the eight principles identified was in turn derived from other authority in this Court. However, as so often happens in reliance on statements in the case law, rather than the language of the statute, the fact that the restatement by a judge may involve paraphrase or may be directed towards a particular set of circumstances is lost sight of.
In TO, a submission that the judge had erred in failing to give a direction in accordance with s 165B was summarily dismissed on the basis that counsel had not asked for such a direction, nor submitted that the accused had suffered any significant forensic disadvantage. [3] The Court therefore had no need to set out a comprehensive statement of the requirements in s 165B. The submissions in the present case failed to engage with the terms of s 165B(2). True it is that subs (2) imposes an obligation on the trial judge to give a direction, subject to the qualification in subs (3). However, the existence of the obligation is subject to a precondition, namely that the judge "is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay". It is tolerably clear from the exchange with counsel set out below that the trial judge was not so satisfied. Further, given the circumstances, also noted below, there was no reason why he should have been so satisfied.
The second day of the trial was Thursday, 30 July 2015. The trial was stood over from that day to Monday, 3 August 2015. As there was a possibility that the evidence would conclude on that day, the judge asked counsel for specific points of the defence that he could put to the jury and, further, "any specific directions you want." [4] After dealing with a possible direction as to why witnesses might lie, the following exchange took place with Mr Schaudin for the accused: [5] "HIS HONOUR: … Are there any Longman issues? The only ones that struck me was the possibility that the clothing and person if it had been complained then might have had some DNA or - I don't know whether that's a matter you want to raise or that's been lost? SCHAUDIN: Well I might be wrong but I thought that being a statutory alteration you needed to show-- HIS HONOUR: Well I'm raising it as to whether you want [to] try and demonstrate - … I need to know what you want put." Nothing of substance arose from that discussion, except that counsel for the accused was on notice that the judge wanted his views as to any particular direction.
The evidence was completed on day 3 and the jury was excused on the basis that counsel would address the following day; the judge then asked counsel for an indication as to what directions were sought. The following exchange took place: [6] "SCHAUDIN: Perhaps something your Honour spoke about and having had a look at the sexual assault Bench Book and Juvanovic, [7] whether or not due to the lack of complaint and the evidence that flowed from the officer about what other evidentiary availabilities, whether or not the lack of the early complaint has meant it's more difficult for the accused and the Longman scenario that there's no DNA to test or anything of that nature. HIS HONOUR: What about the text messages that you raised? That's not really a Longman situation, is it? … It's a failure to do something? SCHAUDIN: It's a failure to do something by the officer that he could've done. The issue in relation to the lack of complaint means that capacity to establish that something didn't occur is lost to the accused. HIS HONOUR: By? SCHAUDIN: If you follow the accused's process that this never happened, then if she makes the complaint and they undertake a kit, there'd be no DNA-- HIS HONOUR: You're talking about a Longman direction? SCHAUDIN: Yes. HIS HONOUR: But that's not a Juvanovic. SCHAUDIN: No, no, I think Juvanovic - I think my friend's right about Juvanovic, I was just saying there's the substantial forensic dis-benefit or whatever it is in 165B - off the top of my head I'm not getting it right, whereby he's unable to test some aspects of the complainant's version by virtue of the lack of the early complaint. By the lack of the early complaint-- HIS HONOUR: By lack of the early complaint. SCHAUDIN: And that's predicated on the officer saying in the course, and I think his own answer was 'Well we got a late complaint so that's - can't do it'. HIS HONOUR: Yes. What about memories and things like that in relation to where people were in that time? SCHAUDIN: There's the embargo and it can't be said it is a class of person - HIS HONOUR: No, no, no. There's been no photographs produced of anything at around those times in relation to rooms or …. SCHAUDIN: There's certainly been no photographs, the evidence at least from [the mother] was that she had one of the rooms on the left - whether it's on the right. This witness' most recent was 'This is where my bedroom was' and the complainant's version is that the bedroom where the incident occurred was the top right on the stairs. HIS HONOUR: Anything else? SCHAUDIN: No."
The reference to the lack of text messages appears to have been based upon a speculative suggestion to the investigating officer that the complainant and her mother may have exchanged text messages in July 2013 which were not recovered by police. On the appeal, no reliance was placed on this matter. Rather, the focus of the appeal was on the contention that had there been a complaint within hours, or at least days, of the alleged incident it was possible that there may have been DNA evidence available to confirm or contradict the complaint.
Two further matters relied upon in the submissions in this Court were the possibility of determining the layout of the upstairs section of the Whalan address at the time of the alleged incident and whether there were bunk beds in the room at the time.
While confirmation of both of these latter details may have been possible, it is unlikely that it would have had a significant impact on the case. Thus, both the complainant's mother and Jenny and her mother agreed that the complainant's description of the layout of the bedrooms at the top of the stairs was incorrect and that the girl's bedroom was in fact on the left and not on the right as stated by the complainant. (In the record of her interview with the officer from Community Services the complainant had actually said, "I'm pretty sure it was the first room on the right when you walk up the stairs." [8] ) It is probable that the jury accepted that to be a mistake on the complainant's part. Secondly, although the sleeping arrangements were relevant to the reliability of the complainant's evidence, it is unlikely that confirmation of the true situation would have supported the attack on her credibility, as her account of the arrangement of the beds would have been different. The cross-examination of the complainant on this topic was lengthy, relating to the sleeping arrangements at various houses. The cross-examiner accepted that she stayed over on various occasions with her friend and would sleep "head to toe in the same bed". [9] Although the submission was made that she had never stayed overnight at the Whalan address, perhaps on the basis that they would only sleep head to toe in a single bed, rather than a bunk bed, counsel did not expressly put that proposition to her in cross-examination.
So far as DNA testing was concerned, the submission was based upon the following exchange with the officer in charge of the investigation: [10] "Q. … where there is contact between an alleged offender or accused and a complainant or victim it is not unusual, is it, for clothing to be seized and subjected to scientific examination, be it DNA or otherwise, correct? A. When the offence is contemporaneous yes. Q. Absolutely and because the allegation occurs - or the allegation is alleged to have occurred in 2008, maybe early 2009 the fact that the complaint or you weren't made aware of it until July 2013 meant it was impossible to obtain any scientific material from bed clothes or clothes or anything of that nature, correct? A. Yes."
The assumption underlying the question and the submissions appears to have been that what was relevant was a delay in excess of four years. However, there was no exploration of what the officer meant by "contemporaneous". A delay of a week may have been sufficient to render it unlikely that clothing would have been seized and tested, with a reasonable expectation of meaningful results. The submission therefore appeared to equate "delay" with any lapse of time. The correctness of this assumption may be doubted. It was widely understood when s 165B was introduced into the Act that, in accordance with the explanation in the Australian Law Reform Commission Report No 102, [11] its purpose was to address criticisms of the requirement in Longman v The Queen [12] that a warning should be given where "[t]he fairness of the trial had necessarily been impaired by the long delay". (The delay in Longman was some 20 years between the date of a sexual assault and the first complaint. [13] ) In that context, "delay" was not equated with any particular lapse of time, but it was certainly not suggested that a warning was required in all cases which lacked a contemporaneous complaint.
Subsequent cases emphasised three factors, namely, that (i) the delay in question was understood to involve many years, or at least many months; (ii) there were particular steps which the accused might have been unable to undertake in his or her own interest, rather than steps which the police investigator might otherwise have taken, [14] and (iii) the point of the warning was to alert the jury to a factor which may have been apparent to an experienced trial judge, but not to a juror.
Those principles were not applicable in the case of a brief delay which rendered DNA testing unavailable, where the absence of DNA testing, if relevant at all, would not have been an obscure factor. [15] This issue was addressed in Regina v King, [16] a case decided some years before the enactment of s 165B, pursuant to the Evidence Amendment Act 2007 (NSW). The complaint of sexual assault in that case had been delayed for about a month. Whealy J described the facts in the following terms: [17] "The fact is that the attacker, according to Mrs Kapeen's evidence did not ejaculate at any time during the repeated sexual assaults. This is not to say there could not have been some physical material which may have provided a sample from which a DNA profile could have been obtained. The most that can be said is that there was no evidence given in the trial as to the likelihood of DNA testing being successful in circumstances where the attacker had not ejaculated. The jury had before it the evidence of both Mrs Kapeen and Detective Weir which would have clearly alerted it to the fact that an early examination of the victim, had she complained about sexual assault immediately, may have revealed some evidence to identify her attacker. The jury would also have realised that the delay, albeit brief, may have placed the appellant in a position where he did not have access to that material, if it in fact existed. Although [counsel's] recollection appears uncertain, it seems he addressed the jury to the effect that had a complaint been made immediately, material may have been discovered as a result of the normal forensic investigation procedures which could have exculpated the appellant." Whealy J analysed the circumstances in the following terms: [18] "… I do not consider that the situation which arose at the appellant's trial relating to the absence of DNA testing was one which directly attracted the principles in Longman as explained in Crampton. … There was no issue, however, as to the fact that the appellant [sic] had been the subject of the most degrading of sexual assaults. The issue in relation to the absence of DNA testing was not, in truth, a delay issue. More significantly the 'imperative warning' required in Longman arose in a very different environment where 'the fairness of the trial had necessarily been impaired by the long delay'."
This analysis should now be accepted on at least three bases. First, as Whealy J explained, it is right to describe any potential disadvantage as resulting from the lack of DNA evidence, not from delay in complaining or, which is probably the relevant end point, delay in the matter being reported to the police. That is because the concept of "delay" involves a departure from a time period which would be expected or might be considered reasonable in the circumstances. It is by no means clear that the failure of a nine year old girl to complain of a sexual assault for a period of, say, three weeks, would, in that sense, constitute a delayed complaint. Yet the possibility of useful DNA evidence would probably be lost in that time. Secondly, there was no evidence as to the likelihood of useful DNA being obtained within any particular period and from any particular source.
Thirdly, under the current statutory regime, DNA evidence will not usually be evidence falling within s 165B(2) because it will rarely be possible for a judge to say that he or she is "satisfied" that the absence of such evidence involves a significant forensic disadvantage to the defendant; there is no basis for knowing whether the evidence would be inculpatory or exculpatory. In short, this was not the kind of disadvantage to which the section was directed.
The applicant sought to avoid these propositions by reliance on passages in Groundstroem v R. [19] There were convictions in that case on four counts of aggravated sexual assault committed on the appellant's then wife. The events occurred, broadly speaking, between 1 March 1992 and 30 April 1993 and in the month of April 2003. The only ground of appeal was that the trial judge erred in failing to inform the jury of "the significant forensic disadvantage suffered by the appellant as a consequence of delay." [20] It is not entirely easy to identify how much of the reasoning was dispositive. With respect to certain "additional matters" raised on the appeal leave was refused pursuant to r 4. [21] In a case in which the only issue was as to consent, the only significant forensic disadvantage relied upon by the appellant at trial and pressed on appeal was the "impossibility of gathering 'fresh forensic evidence, say blood on sheets'". [22] This element was dismissed on the basis that it could only have assisted the defence if it was inconsistent with the complainant's evidence and she had not been cross-examined as to whether the sheets were stained. [23] In the course of the reasoning, however, Adams J stated: [24] "The fundamental question is whether there has been a significant forensic disadvantage, which will depend on the nature of the complaint and the extent of the delay in the circumstances of the particular case. The extent of delay is not the test. Rather, it is the consequence of delay which is decisive. The focus on the length of delay has, I think, arisen because of the notion of presumptive prejudice, especially as to reliability of recollection, which was earlier regarded as giving rise to the need for a warning."
It is true that s 165B is not engaged on the basis of "presumptive prejudice", if by that it is meant that a significant forensic disadvantage must be demonstrated, rather than assumed by reference to the lapse of time. As explained by the Victorian Supreme Court in PT v The Queen: [25] "The section recognises that delay in the reporting and/or charging of an offence can create significant forensic difficulties for an accused, and that it may be necessary that these difficulties be drawn to the attention of the jury. By contrast with Longman, a court is prohibited from suggesting in any way that it would be dangerous or unsafe to convict the accused solely because of the delay or forensic disadvantage suffered. The phrase 'significant forensic disadvantage' requires examination of the consequences of the delay for the accused in relation to the particular case. Such disadvantage arises not because of delay itself, but because of the consequences of delay. For example, it may be that potential witnesses have died, or are not now able to be located. Alternatively, potential evidence may have been lost or is otherwise unavailable." The Court also noted that delay may be of such a magnitude that significant forensic disadvantage "is a matter of necessary inference." [26]
Three observations may be made about the passage set out above from Groundstroem. First, it is not part of the dispositive reasoning in the case. Secondly, in circumstances where the period involved was one or two decades, no issue arose as to the meaning of "delay". Thirdly, as the discussion of Longman and subsequent cases referred to above indicates, the concern has always been that a long passage of time may make it difficult to have a fair trial, in ways which may not be immediately apparent to jurors. Thus, contrary to the applicant's arguments, Groundstroem does not assist in resolving the issues of construction noted above. The logic of the applicant's argument was that any lapse of time which resulted in the loss of a possible source of relevant evidence engaged the obligation to warn in s 165B. That submission should not be accepted.
There are other problems with the applicant's case in relation to ground 1. First, the better view is that, despite the nature of the discussion between counsel and trial judge, there was no application for a specific direction under s 165B. The applicant was critical of the trial judge for not giving reasons for refusing the application, but in truth it is apparent that the trial judge did not think there had been an application. Certainly there was no attempt to formulate a direction, nor, when the summing up had been completed without any specific direction being given, did counsel complain.
If there were no application, rule 4 is engaged and no miscarriage has been established to warrant a grant of leave. If the preferred view is that there was an application, nevertheless, for the same reason leave to appeal should not be granted with respect to this ground.

Ground 2 - failure to direct the jury with respect to the complainant's evidence

This ground asserted that, the trial having taken place shortly after judgment was delivered by this Court in Ewen v R, [27] the trial judge "treated that decision as operating as an absolute prohibition on the jury being given a Murray direction …." For reasons which need not be explored, submissions to trial judges in the course of criminal trials (and indeed in this Court) consistently refer to jury directions by reference, not to their content, but to the decision which is thought to give universal approval to the content of, and to require the giving of, particular directions. Further, in circumstances where there are no reasons given for not adopting a particular course (almost invariably because no reasons were sought) counsel seek to glean a reasoning process from observations made in the course of submissions. Both of these approaches are fallacious and both were revealed in the submissions with respect to this ground.
The label "Murray direction", derived from language used by Lee J in R v Murray, [28] and approved by the High Court in Robinson v The Queen, [29] is imprecise. As explained by Simpson J in Ewen v R, [30] there may be doubt as to how much of the language adopted in Murray was intended to be dispositive, and in what class of cases. Murray was decided at a time when, by statute, specific rules relating to conviction on the uncorroborated testimony of a single witness had been abolished, and the judge was not required to warn the jury that it was unsafe to convict in such a case. The reasoning in Murray was in discursive terms; it did not purport to formulate the content of any specific direction. Rather, Lee J noted that it remained appropriate (i) to draw attention to "the absence of corroborating testimony from witnesses who are shown by the evidence to have been present and able to offer corroboration of the girl's story, if it were true"; (ii) to stress "the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case" and (iii) "to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in". [31]
Murray dealt with one particular limitation: that is, if the law said that a person could be convicted on uncorroborated testimony, care must be taken not to direct the jury in such a way as to suggest the contrary. However, to stress that "there is only one witness asserting the commission of the crime" is to state that the complainant's evidence is uncorroborated. To remind a jury that they must be satisfied beyond reasonable doubt as to the truthfulness and reliability of the complainant in such circumstances is to do no more than stress the role of the prosecutor and the onus of proof. However, to state that the evidence of that witness "must be scrutinised with great care" might be thought to suggest that something further is required in the case of uncorroborated testimony. Nevertheless, it appears to be the latter phrase which is identified as the critical element in a "Murray direction", which is said to be required in the case of an uncorroborated complainant in a sexual assault case.
As was explained in Ewen, and repeated by this Court in AL v R, [32] the content of such a direction must now be approached with some care given the statutory enactments which post-date Murray. The focus now is upon warnings and information relating to "unreliable evidence" as identified in s 165(1) of the Evidence Act. There is a prohibition in s 165A on warning, or suggesting, to a jury that children as a class are unreliable witnesses. Further, where absence of complaint or delay in making a complaint has been suggested to a witness, the judge is required to warn the jury that that "does not necessarily indicate that the allegation that the offence was committed is false" and inform the jury "that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault" and "must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning". [33] Finally and critically, s 294AA of the Criminal Procedure Act states: 294AA Warning to be given by Judge in relation to complainants' evidence (1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses. (2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. (3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.
It is clear from the discussion as to appropriate directions that the trial judge was conscious of the new statutory scheme, and especially the prohibition in s 294AA(2) against warning a jury of the danger of convicting on the uncorroborated evidence, not merely of complainants as a class (a course which did not survive Murray), but also of the particular complainant (a course endorsed in Murray). Thus, in the course of his summing up, during the luncheon adjournment, the judge advised counsel that he proposed to tell the jury that the prosecution case relied on the complainant and that "before they convict they would have to be satisfied she was honest and reliable". [34] The prosecutor inquired whether the judge would say that "you've got to scrutinise her evidence with care", which the judge identified as "a Murray direction." After reference to Ewen, the judge expressed doubt as to the continuing appropriateness of that language. He gave the following direction: [35] "The Crown case I am sure it is clear to you depends upon one witness and that is [the complainant]. In this respect you must carefully consider her evidence. Before you could convict the accused you would have to be satisfied she was a truthful and a reliable witness. If you were not so satisfied then you must acquit the accused."
No further direction was sought in that respect. However, in dealing with the suggestion that the complainant had a motive to concoct a false allegation the judge said: [36] "The accused by suggesting a motive has not assumed any onus of proof. As I have told you he is not required to prove anything. In this respect, I give you the following directions: 1. As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. The case turns on the evidence of [the complainant]. You must be satisfied beyond reasonable doubt that she has told you the truth." Directions in similar terms were scattered throughout the summing up. [37] No further elucidation was required. The leave required under r 4 should be refused with respect to this ground of appeal.

Ground 3 - directions in relation to evidence of Jenny and Elizabeth

The complainant's friend, Jenny, and her mother, Elizabeth, both gave evidence in the prosecution case. In his summing up, the trial judge explained why each of them had been cross-examined. He said that, contrary to the complainant's evidence (and thus the Crown case) each had denied that the complainant had ever stayed overnight at their Whalan home and each had said that there were bunk beds in the bedroom there.
Two specific errors were identified in these directions; first, with respect to the evidence of Elizabeth, having correctly named the complainant as a person who had never stayed overnight at Whalan, the directions then referred to the complainant (rather than Jenny) as having bunk beds in her bedroom. The equivalent reference in relation to Jenny's evidence did not repeat this error, which can have had no significance in the trial.
Secondly, with respect to Elizabeth, the judge said he had allowed cross-examination on "her evidence that there were no [sic] bunk beds at [Whalan]"; the witnesses had said there were bunk beds. However, read in context, the mistake would not have misled the jury; the full sentence was: [38] "I permitted cross-examination on this and her evidence that there were no bunk beds at the [Whalan] address on the basis that if that evidence was accepted by you as reasonably possible, it could adversely affect the credit of the complainant. It was therefore evidence not favourable to the Crown case." Further, a correct summary of her evidence, namely "that there were no bunk beds" was clarified within moments of the error complained of, in a passage set out below. The issues were correctly stated less than a minute later in dealing with the evidence of Jenny.
The two errors (relating only to the evidence of Elizabeth) were undoubtedly present, at least in the transcription of the summing up at pp 14-15. However, the applicant's assertion that the errors remained uncorrected was only true in the most technical sense. The failure of counsel to seek an explicit correction was probably due either to the fact that they were not noticed or that they were obvious slips, or indeed both. The evidence of the two witnesses would have been fresh in the minds of all, it having been given the day before and having been referred to in counsels' addresses on the same day as the summing up. The evidence was within such a limited compass that there was only the slightest chance that any member of the jury was misled by these mistakes. They did not give rise to a miscarriage of justice.
The second and arguably more substantial complaint was that the judge failed to explain the significance of this evidence as "exculpatory evidence relevant to a critical component of the Crown case." In this respect, it was submitted that both the witnesses should have been treated as equivalent to defence witnesses (and would have been so understood by the jury), so that the jury should have been directed as to how to treat their evidence, in the following terms: "If, having considered that evidence, and the submissions of both counsel in relation to it, you accept it, then of course you must acquit the accused and bring in a verdict of not guilty, because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter which it must prove." The second half of the direction involved the standard direction as to whether, even if not positively accepted, the evidence nevertheless raised a reasonable doubt "as to whether the Crown has made out its case in respect of any essential matter which it must prove".
There are a number of problems with this submission. First, very soon after making the inaccurate statement in relation to Elizabeth set out at [36] above, the trial judge stated with respect to the evidence of Jenny: [39] "Now clearly in relation to whether [the complainant] stayed overnight at [Whalan], if you accepted it as reasonably possible, the Crown case would fail. In respect of whether there were bunk beds in her room, if you accepted that evidence, it could adversely affect the credit of the complainant."
Secondly, if the jury thought that the complainant was wrong about the beds in the Whalan home, it would have been a factor, but not necessarily a determinative factor, as to their view of the reliability of the complainant in relation to the sexual assault. It would, of course, have been fatal, as the trial judge noted, if they were satisfied that the complainant had never stayed overnight at the Whalan home. All of this must have been clear to the jury. It was purely factual material and evidence which they had recently heard.
Thirdly, if there had been any doubt as to whether they were adequately directed with respect to this material, counsel should have sought a further direction. No such direction was sought, almost certainly because it was considered unnecessary. That it was seen to be unnecessary is revealed by a discussion between the judge and counsel at the commencement of proceedings on 4 August 2015 (the fourth day of the trial). The discussion concerned proposed directions which had been reduced to writing and supplied to counsel, relating expressly to the manner in which the judge should deal with the evidence of Elizabeth and Jenny. The discussion covered some six pages of the transcript. Most of it involved the judge and the prosecutor. Once the language had been settled, the judge turned to counsel for the accused and asked if he had "any trouble with any of that", to which counsel responded, "No your Honour." [40] The judge then stated that he thought the result was more appropriate than "the broader way I was putting it", to which counsel for the accused stated, "I take no issue with it."
There is no reason to suppose that any direction given or not given in relation to the evidence of Jenny and her mother gave rise to a miscarriage of justice. Leave to argue ground 3 should be refused.

Ground 4 - unreasonable verdict

Although this was not a case in which the jury was required to assess the sworn evidence of the complainant against the sworn evidence of the accused, they nevertheless needed to be satisfied as to the truthfulness and reliability of the complainant with respect to the allegation of sexual assault.
Taking the complainant as a witness, her evidence, so far as the transcript revealed, was given clearly and without equivocation. (She was 16 years of age at the date of the trial.) The attack on her in cross-examination involved four principal elements. First, there was a challenge to her ability to locate the room in the Whalan property, as to whether it was on the right hand side or left hand side of the hallway at the top of the stairs. Secondly, it was suggested to her that her friend's bedroom at Whalan had bunk beds, a proposition she denied. She agreed that her friend had lived at a number of addresses over the years, including at Willmot, Whalan and two separate premises in Mortdale. It was suggested that the first time her friend had a single bed was at the fourth home, in Blackshaw Avenue, Mortdale. The complainant said, "I don't remember any bunk beds except for the house in Willmot." She agreed that the accused did not live at that house.
Thirdly, she was challenged as to why, in circumstances where she had an excellent relationship over the years with her friend, she had not complained to her about her stepfather's conduct. It was also suggested to her that had the event in question occurred she would have had ample opportunity to complain to her mother with whom she agreed she had always had a good relationship. Her answer in her recorded interview had been that, "I didn't want to cause more of a fight." That answer was challenged on the basis that there had been no fight at that stage, a proposition with which she agreed. [41]
Finally, she was challenged as to her evidence of her first complaint, which was to a male school friend, "Patrick". The following exchange took place: [42] "Q. When you were being asked questions today by the Crown Prosecutor, he asked you about why you decided to speak to [Patrick], do you recall that? A. Yes. Q. And you said words to this effect, and I don't suggest I'm word perfect but it's pretty close. Your answer was, 'Dave was moving in and I was just thinking about he was the only person I could trust at the time.' That's [Patrick], that's what your answer was-- A. Yes. Q. --wasn't it? A. Yes. Q. You could always trust your mum, couldn't you? A. The reason I didn't tell my mum was because I didn't want, like, Lizzie and my mum to fight about it. Q. By 8 June the relationship between mum and Lizzie, it was poles apart, they're not having anything more to do with each other. That's about right, isn't it? A. Yes. Q. After 8 June, what I'm suggesting to you is, after the fight between Lizzie and your mum, it was decided that a complaint would be made about David as payback? A. Excuse me? Q. That's a proposition you can agree with or disagree with? A. Disagree. … Q. You've indicated in your evidence that you first spoke to [Patrick]. In your interview you talk about February/March, that's your interview? A. Yes. Q. Well I'm suggesting to you that it was much later than that and in fact it was after 8 June? A. (No verbal reply) Q. Do you agree or disagree? A. I don't know what the question was. Q. When you made a complaint to [Patrick] about what you say David Binns had done to you, I'm suggesting to you that it happened after 8 June, the complaint to [Patrick]? A. It was before."
This last cross-examination was addressed to the motive relied on by the defence for what was, on his case, a concocted allegation. There was no doubt that there had been a vigorous disagreement between the complainant's mother and Elizabeth on 8 June 2013. From being close friends over many years, the women had gone entirely separate ways. The defence case was that the complainant's mother had blamed Elizabeth for the break-up and the allegation against her partner, the accused, was a vindictive and false attack in retaliation directed against both Elizabeth and the accused.
As to the complaint to Patrick, both the complainant and Patrick gave evidence that their conversation had been in May 2013 while they were both at school. His evidence was that the conversation took place in May 2013, a date which he had given to the police in a statement provided on 9 August 2013. It was suggested to him in cross-examination both that it was possibly earlier than May, and that it was later than May, both of which propositions he rejected. If he had been believed, the defence case as to the motive for fabricating a complaint must inevitably have been rejected by the jury. A reading of his statement and the transcript provides no basis for doubting his credibility and reliability. Further, the prosecutor, in his address to the jury, relied heavily on their appraisal of the genuineness of the surprise shown by the complainant (her response being recorded as "excuse me?") when the retaliatory concoction theory was put to her in cross-examination.
If the complainant was seen by the jury to be a credible and largely reliable witness, the principal basis upon which doubt may have been cast upon her testimony was the evidence of her friend and Elizabeth as to the furniture in her bedroom at various times and their statements that she had never stayed overnight at Whalan.
Given the close relationship between the girls over a number of years, the jury may not have found it plausible that she did not stay overnight at Whalan as she recounted and as her mother agreed. If that evidence were rejected, it would have cast great doubt on the reliability of the other principal claim by Jenny and Elizabeth, namely that the house at Whalan only had bunk beds in the girl's bedroom.
So far as the lack of contemporaneous complaint was concerned, the complainant gave two reasons for her delay in complaining. First, she thought she would not be believed by her very close friend if she described the conduct of the friend's stepfather. Secondly, she was afraid that if she were believed there would be a fight between the two families which would split them irrevocably, causing significant pain to her mother and resulting in the loss of her own best friend.
As already noted, the assessments of the credibility of the complainant, her mother and Patrick, on the one hand, and her friend and Elizabeth on the other, were essentially matters for the jury. Such cases can turn on small issues. If, for example, the jury had no doubt as to Patrick's evidence, the timing of the complaint was manifestly inconsistent with the defence case as to a possible motive for concoction. There was no suggestion that the event was a fantasy, nor that any other person could have been involved.
Given these narrow confines of the dispute, there was ample evidence upon which the jury could reach a verdict of guilty. I also adopt the two additional matters noted by RA Hulme J at [62]-[67] below. Ground 4 must be rejected.

Orders

As noted above, the applicant needed an extension of time within which to file his notice of appeal. That order not being resisted by the prosecutor, except upon the implicit basis that the appeal was without merit, it is appropriate to grant an extension of time to the date of filing of the notice on 23 August 2017.
The applicant also needs leave to appeal with respect to all grounds, since none can be described as involving a question of law only. Further, grounds 1, 2 and 3 require leave pursuant to rule 4.
Dealing with the question of rule 4 first, the Court is reluctant to grant leave in circumstances where complaints about jury directions could and properly should have been brought to the attention of the judge at the trial, if defence counsel had in truth believed there was a real concern as to the correctness of a particular direction or the need for some further direction. The present is an example of a case in which a review of the transcript appears to have persuaded counsel who did not appear at trial to pursue arguments which had not been seen to be persuasive by counsel who did appear at the trial. The points were not obscure; in circumstances where none raised more than an arguable case of error, and in circumstances where no miscarriage of justice has been demonstrated, leave should be refused with respect to grounds 1, 2 and 3.
With respect to ground 4, the case was one which was fairly and properly left to the jury in circumstances where the prosecution had gone out of its way to call all available witnesses, including those who were not expected to be favourable to its case. The argument for the applicant was, in large part, no more than that the jury should have had a reasonable doubt because there was conflicting evidence, not as to the event in question, but as to the surrounding circumstances. It may be that had leave been granted with respect to a specific substantive ground, it would have been appropriate to allow leave with respect to ground 4. However, as that course has not been taken, ground 4 did not enjoy sufficient substance to warrant a grant of leave in its own right. Accordingly leave to appeal should be refused.
The Court should make the following orders: 1. Grant the applicant an extension of time to file his notice of appeal to the date of filing of the notice on 23 August 2017. 2. Pursuant to rule 4, refuse leave with respect to grounds 1, 2 and 3. 3. Refuse leave to appeal with respect to ground 4. 4. Accordingly the application for leave to appeal is dismissed.
R A HULME J: I agree that leave in respect of each ground of appeal should be refused for the reasons provided by Basten JA.
It is unsurprising that no merit has been found in any of the grounds. Material provided in support of the application for an extension of time included evidence of a merit advice having been provided by other counsel which had found that "there was no merit in a conviction appeal". (That advice was funded by Legal Aid NSW; the present application was not.)
In relation to Ground 4 (unreasonable verdict), my own assessment of the evidence is consistent with that set out in the judgment of Basten JA. However, there are some particular features that strengthen my view that it was well open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.
The events in question occurred in December 2008 and no complaint was made either then or in the years that followed. In that period the complainant continued to see the applicant on occasions in a family context. However, in April 2013 the applicant and his partner, Elizabeth, moved into a granny flat at the back of the home where the complainant lived with her family. The complainant's mother began to observe her daughter acting "a bit strange". Her bedroom was upstairs and overlooked the granny flat. Her mother observed that she "always closed her back blind … it was always dark in her room and she'd lock her door through the day" and she "spent most of her time in her bedroom". She also told her mother that she did not like the applicant.
The prosecutor asked the complainant why she told her school friend, Patrick, in 2013 what the applicant had done. She replied, "Because he was moving in with us like Dave was moving into a house with … (not transcribable) … and I was just worried and scared like. I was just thinking about it over and over and so I needed someone to tell …"
It would have been well open to the jury to consider that the applicant's moving to live in close quarters with the complainant precipitated her complaint. Patrick was unwavering in his evidence that the complaint was made in May 2013; not before and not later. The complainant's evidence about the timing of the complaint was consistent with his.
These matters would have entitled the jury to conclude that there was a plausible basis for the complainant to raise her complaint when she did. Further, and significantly, the jury would have been entitled to reject the defence theory that the complaint was a concoction emanating from the complainant's mother after her falling out with the applicant's partner in June 2013.
Another matter bearing adversely upon the acceptability of the defence case theory was the assertion by Elizabeth that the complainant came to the home at Whalan on one occasion; she was with her family; it was probably in the afternoon; and they stayed for a short period of time but they all left together. When asked further about this occasion, she repeated that "she only came on that one occasion". When asked if the complainant went inside the premises, she replied, "Not that I can remember, no … We were all just sitting out the front".
If Elizabeth's evidence was correct, the complainant would not have had any knowledge of the interior of the home. Even if Elizabeth had failed to recall that the complainant went inside, given the relative brevity of the visit (on Elizabeth's account) it would not be expected that she would be able to recall years later any detail of the interior. Nevertheless, she was cross-examined about the interior of the home and was only challenged on the subjects of how the bedroom was furnished and whether it was on one side of the hallway or the other. She was able to say, correctly, that the bedroom was upstairs and that there were two rooms on the opposite side of the hallway. Counsel for the applicant showed her a diagram of the layout of the downstairs area of the home showing the location of the laundry, kitchen, dining and lounge rooms. She agreed without any apparent hesitation that it was "a fair description of the bottom of the premises".
The foregoing are examples of why the jury would have been entitled to reject the defence response to aspects of the prosecution case. What remained was a seemingly plausible account by the complainant.
Upon my assessment of the evidence, not having the jury's advantage of seeing and hearing the witnesses, I can discern no reason why there ought to have been a doubt about the guilt of the applicant.
I agree with the orders proposed by Basten JA.
GARLING J: I agree with Basten JA that leave to appeal with respect to Grounds 1, 2 and 3 should be refused.
In considering the issue of whether the conviction of the applicant should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, I have carefully examined, and independently assessed, the sufficiency and quality of the evidence in the trial. The nature of, and the evidence in this case demonstrates that particular regard must be given to the advantage which the jury had of seeing the witnesses, especially the complainant.
In my assessment, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. I do not myself entertain any doubt at all as to the guilt of the applicant. I agree with Basten JA that leave should be refused with respect to Ground 4.
It follows that the application for leave to appeal ought to be dismissed

Endnotes

Criminal Appeal Act 1912 (NSW), s 5(1)(b).
[2017] NSWCCA 12 at [167].
TO at [168].
Tcpt, 30/07/15, p 157(20).
Tcpt, pp 157(47)-158(20).
Tcpt, 3/08/15, pp 243(30)-244(40).
It seems that he intended to refer to R v Jovanovic (1997) 42 NSWLR 520.
Transcript of Child Interview, 23 July 2013, Q 67.
Tcpt, 30/07/15, p 67(35)-(45).
Tcpt, 03/08/15, p 197(5)-(20).
Law Reform Commission, Report No 102: Uniform Evidence Law (December 2005), Ch 18.
(1989) 168 CLR 79; [1989] HCA 60.
Longman at 91.
See, for example, Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 at [45].
See generally Perez v Regina [2008] NSWCCA 46 at [61]-[72] (Kirby J, Beazley JA and James J agreeing).
[2000] NSWCCA 507.
King at [45].
King at [60].
[2013] NSWCCA 237 (Adams J; Macfarlan JA and Button J agreeing).
Groundstroem at [3].
Groundstroem at [65].
Groundstroem at [58].
Groundstroem at [63].
Groundstroem at [61].
[2011] VSCA 43 at [23]-[24] (Maxwell P, Buchanan and Weinberg JJA).
PT at [27], referring to Munn v The Queen [2006] NSWCCA 61 at [43] (Barr J, Spigelman CJ and Simpson J agreeing). (Whether Munn stands for the proposition for which it is cited may be doubted.)
[2015] NSWCCA 117; 250 A Crim R 544.
(1987) 11 NSWLR 12.
(1999) 197 CLR 162; [1999] HCA 42 at [21]-[22].
Ewen at [110]-[111].
Murray at 19.
[2017] NSWCCA 34 (Leeming JA, Schmidt and Wilson JJ).
Criminal Procedure Act 1986 (NSW), s 294.
Summing up, p 8.
Summing up, p 10.
Summing up, p 13.
See, eg, Summing up, pp 14.8, 15.8 and 18.3.
Summing up, pp 14-15 (emphasis added).
Summing up, p 15.8.
Tcpt, 04/08/15, p 251(45).
Tcpt, 30/07/15, p 75(45)-(50).
Tcpt, pp 84(22)-85(34). 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: 27 November 2017

Evidence Amendment Act 2008(NSW)

Evidence Amendment Act 2007(NSW)

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