Chivers v R

CATCHWORDS: CRIMINAL LAW - appeal - appeal against conviction - sexual intercourse without consent - whether the trial judge failed to adequately identify the acts constituting count 1 - whether the trial judge failed to direct the jury that they should scrutinise the evidence with great care in relation to uncharged incidents and uncorroborated evidence - leave to appeal granted - appeal upheld - CRIMINAL LAW - appeal against sentence - common assault - whether sentence imposed manifestly excessive - preferable for appeal to be dealt within appeal proceedings brought in relation to other convictions in respect of same victim - leave to appeal refused - - CRIMINAL LAW - varying commencement dates of other sentences - s 59 Crimes (Sentencing Procedure) Act 1999 - commencement dates of other sentences varied - CRIMINAL LAW - sentences - lapse of time since offence committed - application of sentencing law and practice at date of offence

Children (Criminal Proceedings) Act 1987 (NSW), s 15A Criminal Appeal Act 1912 (NSW), s 5(1) Crimes Act 1900 (NSW), s 61D(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 45, s 59 LEGISLATION CITED: Evidence Act 1995 (NSW) Prisons Act 1952 (NSW), s 41 Prisons Regulations 1968, reg 110A Probation and Parole Act 1983 (NSW) Sentencing Act 1989 (NSW), s 46

Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 DJV v R [2008] NSWCCA 272 DTS v The Queen [2008] NSWCCA 329 Kelleher v Parole Board of New South Wales [1984] HCA 77 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, CASES CITED : Lozanovski v R [2006] NSWCCA 143 R v Murray (1987) 11 NSWLR 12 R v MJR [2002] NSWCCA 129 Radenkovic v The Queen [1990] HCA 54; 170 CLR 623 Rasic v R [2009] NSWCCA 202 Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

PARTIES: Kevin Chivers (Appellant) Regina (Respondent)

COUNSEL: Mr P Boulten (Appellant) Ms N Noman (Respondent)

SOLICITORS: Hardinlaw Lawyers (Appellant) Director of Public Prosecutions (Sydney) (Respondent)

• 57 - IN THE COURT OF CRIMINAL APPEAL 2007/16340

BASTEN JA RS HULME J SCHMIDT J

Friday, 30 July 2010 CHIVERS v REGINA Judgment 1 BASTEN JA: On 21 July 2008 the Director of Public Prosecutions charged the appellant, Kevin Chivers, with having sexual intercourse with a girl under the age of 16 years, without her consent and knowing that she was not consenting: Crimes Act 1900 (NSW), s 61D(1), as in force in 1983-1985, when the offence was alleged to have occurred. Because the complainant was 10 or 11 years old at the time of the offence charged, there is a statutory prohibition on publication of her name, the relevant provision now being s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Accordingly, it is convenient to refer to her as the complainant. 2 The indictment of 21 July 2008 contained, in addition to the charge concerning the complainant (count 1), two charges of committing acts of indecency and one of sexual intercourse involving the complainant's sister (counts 2, 3 and 4). The appellant was convicted of the offence in respect of the complainant, but acquitted of the charges involving her sister. He now seeks to appeal against the conviction. 3 In respect of the conviction, the appellant was sentenced by Goldring DCJ to serve a non-parole period of three years, commencing on 16 June 2008, with a further period of two years, giving a sentence of five years imprisonment. He seeks leave to appeal against that sentence, in the event that it is not set aside with the conviction. 4 The appellant was also sentenced by Goldring DCJ on a separate charge of common assault upon a young woman, who lived as a member of his household, for which he was sentenced to a non-parole period of nine months, commencing on 16 January 2011 and expiring on 15 October 2011, with a balance of term of a further nine months, giving a total sentence period of 18 months imprisonment. He seeks leave to appeal against the severity of that sentence. 5 The appeal against conviction relies upon two grounds, each being concerned with the manner in which the trial judge directed the jury. Ground 1 alleged that his Honour erred "by failing to adequately identify the evidence of the act constituting count 1". Ground 2 alleged that his Honour failed to direct the jury that they should "scrutinise the evidence of [the complainant] with great care". The substance of the challenges concerned the language used by his Honour in the summing up, in the circumstances presented by the evidence. The grounds did not involve "a question of law alone" and required leave: Criminal Appeal Act 1912 (NSW), s 5(1); see also Rasic v R [2009] NSWCCA 202 at [12], and authorities referred to therein. There are, however, features of the case which warrant a grant of leave to consider the adequacy of the directions given by the trial judge. These include:

(a) the degree of uncertainty in the prosecution case as to the number of incidents involving the appellant and the complainant or her sister;

(b) the differential verdicts, indicating that the jury were not satisfied with the evidence of the complainant's sister alone, and

(c) the fact that further directions were sought and, in part, given in relation to the matters now the subject of complaint. 6 In these circumstances, I would grant leave to appeal but dismiss the appeal. I would grant leave to appeal in relation to each of the sentences under challenge, uphold the appeals and resentence the appellant on each count.

Conviction appeal: challenge to directions 7 In order to understand the complaint as to the directions given to the jury by the judge in summing up, it is necessary to refer to aspects of the evidence. It is neither necessary nor appropriate to review the evidence as a whole, as might be required if the appellant alleged that the verdict should be set aside on the ground that it was unreasonable or could not be supported or that, error having been identified, it was necessary to consider whether there had been a substantial miscarriage of justice: Criminal Appeal Act, s 6(1). Senior counsel for the appellant did not attempt some wide ranging challenge to the safety of the conviction; rather, in a focused and cogent address, he highlighted the particular inconsistencies and points of confusion arising from the evidence of the complainant and her sister, as to which it was contended inadequate directions had been given. 8 In considering the adequacy of the directions given to the jury, care must be taken not to analyse the trial on the basis of the transcript of evidence and the summing up, without taking account of the fact that both prosecution and defence have addressed the jury, prior to the judge's summing up. 9 Despite the formulation of ground 1, there was no doubt as to the acts which constituted the first count (being the only count involving the complainant), nor was there any inadequacy of the summing up in that regard. Omitting certain matters of detail, his Honour explained (summing up, 29/07/08, pp 5-6):

"The first count on the indictment charges sexual intercourse without consent on [the complainant]. At the time, the Crown says, that [the complainant] was under 16. The Crown says that this event took place in a bedroom at the Oaks and [the complainant] described it this way: 'Yes, and so I woke up and because I was disturbed and looked down and I saw Kevin [the appellant] there between my legs and his head was big because I was only small and I could see his curly hair and his eyes and instantly I didn't want him to recognise me, so I turned away and I could see the shard of light coming through the doorway. I was scared because I didn't know why he was there. … I just thought it was wrong and I was going to get killed and the next think you know I realised the sensation, the only thing I could think of was sandpaper rubbing against my vagina and then I realised that he was licking my vagina.' The complainant said that she clearly recalled this incident and that it happened at The Oaks when she was about 10 or 12. Now, what she described is, as a matter of law, sexual intercourse because the legislation says that sexual intercourse includes cunnilingus, that is, the licking of the female genitals." 10 His Honour then gave further directions in relation to the need to be satisfied beyond reasonable doubt as to the acts so described and the need then to consider the issues of consent. No objection was taken in respect of any aspect of that material. 11 There were three further aspects of the evidence which were of considerable significance and which required careful direction by the trial judge. These were: (a) the delay in recollection and complaint; (b) an earlier uncharged incident, relied on by way of contextual material, and (c) the belated and partly supportive evidence of the complainant's sister. 12 In relation to the first matter, there were two periods of delay. The first was as to recollection: the complainant gave evidence that she had repressed her memories of the event until an occasion when she was 16 years old and she was reading an article in a magazine at a school sports day, which triggered her memory. She told her mother some two or three years later when she was 18 or 19 years old: Tcpt, 21/07/08, p 58 (35). She sought to dissuade her mother from taking any action at that time. She did not speak to the police until September 2006: Tcpt, p 60 (10). It was put to her in cross-examination that the sexual assault never occurred, a proposition which she categorically denied: Tcpt, p 60 (25). 13 The second factual element concerned an incident which she said occurred some four years earlier when both her family and that of the appellant were living in or near Campbelltown. It was an incident she described as more embarrassing than traumatic. She described it in the following terms (Tcpt, pp 34-35):

"What happened on that occasion was I, I was asleep and it wasn't as dark as the other time. It felt as though it was early morning and I woke up and Kevin was in front of me again. … Just as a presence that he was there in front of me and I thought what is he doing and then his son came to the left and over to where he was and he shifted over towards to the right, but he was still there and his son and him were having a look at my vagina." 14 In cross-examination, she identified that incident as probably occurring when she was six or seven because she recalled that the appellant's family had a new baby girl at that time. However, she agreed that when she made her statement to the police in 2006 she was not sure whether the uncharged incident occurred on the same night as the s 61D offence, or on a separate occasion: Tcpt, p 48. 15 The third aspect of the evidence involved the complainant's sister. The complainant gave evidence that her sister was in the room at the time of the offence: Tcpt, p 30 (40). Her sister gave evidence of an occasion when she and the complainant were sleeping at The Oaks and the appellant entered the room carrying a torch. She continued (Tcpt, pp 105):

"A. He had the torch on when he came into the room and I believe the torch - that's how I remember it shining into my eyes so that's why I don't recall exactly what the torch looked like because I saw the front of the torch not the back of the torch because he put it on the bed. It was sitting by itself so it was like a Dolphin lamp. He came into the room and he had something in his hand or something under his arm and he had a torch and he went over to my sister's bed, sort of stepped over the bottom of the bed, went over to my sister's bed and pulled back the sheets, like the bottom of the sheets, and he sat the torch on the bed and whatever he had in his hand on the bed and I kind of sat up and said, I can't remember if I said 'Is everything all right' or 'What are you doing' like [the complainant] was asleep. Q. What did [the accused] do when you asked if everything was all right? A. He said 'Just go back to sleep'. Q. What did he do with the torch as you recall? A. He put it on the bed and as I looked at what he was doing there was a little boy behind him." 16 She then gave evidence that she saw the appellant pull back the covers to expose the complainant's legs and that she saw him pull down the complainant's pants. She said that he "actually told me roll over and go to sleep and I remember as I rolled over I just seen his face go down towards her vagina area". She then recalled (Tcpt, p 106):

"I remember a short time later to me I must have fallen asleep but I remember waking up. My underpants were down near my ankles and [the appellant] was kind of laying on top of my legs and he was down at my vagina area and he was licking my vagina and my clitoris and I remember the feel." 17 The complainant's sister first spoke to the police on 8 September 2006, after the complainant had spoken to them. She said that she had had "fun" at the appellant's property at The Oaks (which she describes as "the farm") (Tcpt, p 111 (45)) and said that she had never been sexually assaulted by the appellant: Tcpt, p 128. 18 There were three respects in which the sister's evidence was troubling. First, the complainant was four years older than her sister and, when the incident which formed the charge in count 1 occurred, if the complainant was 10 or 11, her sister must have been six or seven years old. Similarly, if the uncharged event involving the appellant and his son occurred four years earlier, the complainant's sister would have had no memory at all of the event. Secondly, the sister's evidence involved the son being present, apparently at the time that the appellant committed the charged offence with the complainant. That evidence was inconsistent with the complainant's account. Thirdly, the evidence was first presented only during the trial. As explained by counsel for the appellant in his written submissions:

"When the trial commenced neither party had any notice that [the complainant's sister] intended to give evidence that was in any way relevant to count 1. [The complainant's sister] had given statements to the police and given evidence at the committal hearing about having been sexually assaulted by the appellant. Significantly, she also claimed to have received her memories of the appellant sexually assaulting her in a 'flashback image' many years after the event. She had never complained about any incident during her childhood. When the police first approached her in September 2006 after [the complainant] made her complaint, [the complainant's sister] told Detective Cordery 'I only have really good memories of going to [the appellant's property]' and 'nothing bad had happened at that time'. … On the second day of the trial [the complainant's sister] revealed to the Crown Prosecutor that she could give further evidence about an incident in the bedroom when the appellant had a torch and did something improper (T 67). This is the first time that [the complainant's sister] had revealed to any person in authority that she could give evidence implicating the appellant in any assault upon [the complainant]. Ultimately, a statement was taken from [the sister] and, on 23 July, she gave evidence in conformity with it." 19 Following the sister's evidence, the complainant was recalled for further cross-examination. She confirmed her earlier evidence with respect to the incident which was the subject of the charge, namely that her sister was present on the night in question, that the appellant did not have a torch with him, nor a box of tissues, that she could recall. She also agreed that she did not see the appellant sexually assault her sister: Tcpt, p 183. 20 She was asked further questions about the uncharged incident that she had said occurred when she was six or seven years old. She confirmed her method of reasoning which suggested to her that it was in a different place at a different time from the charged offence, although she was not sure. She said she had no memory of her sister in relation to that incident, nor of a torch or box of tissues, nor of anything happening to her sister, who was four years younger than her: Tcpt, 24/07/08, p 184. 21 The points of inconsistency between the evidence of the complainant and that of her sister were matters which the trial judge was required to address in the course of his summing up. He did so: it is the manner in which he did so which is the source of complaint. The summing up was clear, methodical and fair. He dealt in order with the elements of each of the counts and the evidence given by the complainant (count 1) and her sister (counts 2, 3 and 4) respectively. He then referred to the evidence of the uncharged incident, as recounted by the complainant "which she thought was some years before the events charged in count 1 but she was not quite certain": summing up, p 13. He set out the evidence of the complainant's sister in relation to the incident which she said involved the appellant's son. His Honour then proceeded to give certain warnings in respect of the evidence of other acts, of which no complaint is made. 22 Thereafter his Honour summarised the evidence given by the appellant and his wife and noted that in relation to counts 2, 3 and 4 there was only one witness (the complainant's sister) who was "essential to the proof of the Crown case": summing up, p 17. He gave a warning in accordance with R v Murray (1987) 11 NSWLR 12 at 19 (Lee J, Maxwell and Yeldham JJ agreeing) in relation to the sister's evidence. Still referring to the sister, his Honour continued:

"You should consider what she has said carefully. But it is a matter for you entirely whether or not you accept her evidence. If you accept that the event described by [the complainant], the subject of count 1, is an event that her sister witnessed, then you may treat [the sister's] evidence as corroborating or supporting the evidence of [the complainant]. If that is the case then there is no need for me to give you a similar warning about [the complainant's] evidence because it is not the only evidence of what she alleges. However if you do not accept [the sister's] evidence that she saw the accused sexually assaulting her sister, then you must subject [the complainant's] evidence to the same strict scrutiny because it is the only evidence apart from that of [the sister] that the accused assaulted her. And if you do not accept [the sister's] evidence, it is the only evidence." 23 Following the completion of the summing up, senior counsel for the appellant raised a number of matters with his Honour of which two are presently significant. The first was expressed in the following terms (Tcpt, 30/07/08, p 38):

"Now Your Honour has given a conditional direction in relation to the scrutiny of [the complainant's] evidence. … That is based on a misapprehension that [the complainant's sister] has described the events which constitute count 1, but she has not. [The sister's] evidence concerning the bedroom incident is inconsistent with [the complainant's] evidence concerning count 1. … In any event, given the degree of uncertainty attaching to this evidence generally about the bedroom incident or incidents, this is a case where the jury should in any event be directed to scrutinise carefully the evidence of both complainants." 24 The second matter which was raised by counsel was in the following terms (p 42):

"There could be confusion about the particularisation of the acts concerning count 1 unless Your Honour tells them that it is the description of [the complainant] where she says the accused licked her vagina that constitutes it. The Crown opened on the basis that [the appellant] and [his son] incident was not part of count 1 but was relationship evidence. [The complainant's] evidence throughout has been 'I tend to believe they were separate incidents although at one time I thought they were the same. But by the time I unravelled it all I had determined they were different incidents and here's the reasons why'. Therefore, unless there is strong direction given about that the jury might simply think they can convict on the basis of the description of the [the appellant and son] incident whereas that would be contrary to the way [the] case has been run. Therefore, if there is this clear delineation in the particulars then that underscores my submissions that the description by [the complainant's sister] of the [son/appellant] incident is a description of relationship evidence not of count 1. Therefore, the jury must be told to give the same scrutiny to [the complainant] as they gave to [the sister]." 25 As may be seen, these matters were interrelated. His Honour treated them as such and gave the following further direction (pp 43-44):

"When I was warning you about the special scrutiny that you must give to a witness whose evidence is the only evidence of essential matters that the Crown must prove I said that if you did not accept [the complainant's sister's] evidence in relation to what she says was an assault on her sister then you would have to subject [the complainant's] evidence to the same degree of scrutiny. I want to make it clear that [the complainant] gave evidence that she was assaulted when the accused licked her vagina that is count 1. She gave evidence that there may have been another occasion which she believed was different and that was the occasion in which [the son] was present. If you are to accept [the complainant's sister's] evidence as corroborating that of her sister you would have to be satisfied that [the son] [incident] was the same incident as the matters charged in count 1 because that was the incident about which [the sister] gave evidence. [The complainant] was not certain. She said that it was her belief they was separate and separated by some years but she was not sure about it." 26 The trial judge gave a brief judgment on 30 July 2008 dealing with two matters raised in the absence of the jury. The first concerned the need for a warning as to the unreliability of the complainant's sister's evidence, based on s 165 of the Evidence Act 1995 (NSW). His Honour rejected the need to give such a warning and that ruling has not been challenged. The second matter was identified by his Honour as a submission that he should give a Murray direction (presumably unqualified) in respect of the evidence of the complainant because the evidence of her sister was "incapable of corroborating" her evidence. His Honour declined to give a direction in those terms, which he described as usurping the function of the jury. It is that matter which is sought to be challenged on the appeal and forms the heart of the appellant's appeal against conviction. 27 In my view the complaint must be rejected. It involved two unwarranted assumptions. 28 The first assumption was that it was not open to the jury to accept that the incident involving the son occurred on the same night as the incident involving count 1. That, as counsel for the appellant demonstrated in cross-examination, was the view which the complainant had held when she originally spoke to the police. It was her later reconstruction of various aspects of her memory which led to the view that there were probably two incidents separate in time. The complainant's own uncertainty would have allowed the jury to find that both occurred on the same night, if they accepted the evidence of the sister. 29 The second assumption was that the jury must accept or reject the whole of the evidence of the complainant's sister in relation to the acts involving the complainant and must accept the completeness of the complainant's own evidence. However, it would have been open to the jury to accept the complainant's evidence of the sexual assault by the appellant and also the evidence given by her sister that she witnessed the assault. The presence of the boy, the torch and the box of tissues, none of which the complainant recollected, would not have rendered the account of the critical assault implausible. Alternatively, those additional elements, recounted by her sister, may not have been accepted by the jury, but the evidence of the central sexual assault accepted. 30 Apart from leaving the possibility of corroboration to the jury, the further direction given by his Honour on 30 July 2008, consistently with his earlier direction, confirmed that, absent corroboration, the complainant's evidence was to be subject to the same degree of special scrutiny as that of her sister, being the only evidence of essential matters. 31 What his Honour did not leave to the jury was the possibility that the complainant's sister was giving evidence of an uncharged incident which had occurred some four years earlier, not involving cunnilingus on the part of the appellant, but involving his son. That omission was correct. If the jury were minded to accept the complainant's evidence that that incident had occurred four years earlier, it was not open to them to accept that the complainant's sister (who would then have been two or three years old) and whose presence the complainant did not recall, could have witnessed and recalled the incident. Accordingly, the challenges to the directions should be rejected. 32 If, contrary to the conclusion expressed above, his Honour should not have left to the jury the possibility that the complainant's sister was describing the incident the subject of count 1, I would, nevertheless, not uphold the appeal. The rejection by the jury of the prosecution case in respect of each count (2, 3 and 4), involving only the complainant's sister, demonstrated that it was capable of applying the Murray warning. The extraordinarily late recollection of the assault on the complainant, as recounted by the complainant's sister, is, in those circumstances, most unlikely to have been accepted beyond reasonable doubt by a jury which was not so satisfied of any other part of her evidence. On any view, it must have accepted the complainant's evidence on count 1. Further, a reading of the transcript of the complainant's evidence, despite the appellant's denials and the other evidence in support of his case, does not suggest there was anything inherently implausible in her account, nor was such a submission put for the appellant. The possibility that the appellant was only convicted on count 1 because it accepted so much of the sister's evidence as corroborated the complainant is a remote and unrealistic possibility. Accordingly, even if the error identified by the appellant were thought to be made out, in my view there was no substantial miscarriage of justice. Accordingly, I would dismiss the appeal.

Sentence: sexual intercourse without consent 33 Section 61D of the Crimes Act 1900 (NSW) was introduced in 1981. From that time until 1985, it involved, in effect, an offence of sexual intercourse without consent (carrying a maximum term of penal servitude for seven years) with a circumstance of aggravation, where the person was under the age of 16 years (carrying a maximum term of penal servitude for 10 years). 34 In 1985, when the appellant might have been sentenced, if the offence had been discovered at or shortly after the time of commission, his head sentence would have been subject to "ordinary" remissions under s 41 of the Prisons Act 1952 (NSW) and the Prisons Regulations 1968, reg 110A, of one-third of the full term of the sentence, together with additional "earned" remissions, which might reduce the sentence further: see, eg, regs 110B, 111. Remissions were then understood to be conditional upon "good behaviour", but in fact reduced the term of a sentence, absent loss for disciplinary offences: reg 113. Because a period of parole could not exceed the nominal term of the sentence, it was sound sentencing practice to fix a non-parole period which would allow an appropriate period of conditional release, before the expiration of the nominal term, reduced by remissions: see Kelleher v Parole Board of New South Wales [1984] HCA 77; 156 CLR 364. 35 The need for a sentencing court to take account of the likely effect of remissions in setting a non-parole period was diminished by the regulation made under the Probation and Parole Act 1983 (NSW): see Probation and Parole Regulation 1984, reg 18. That provided that the non-parole period was to be reduced proportionately to the reduction in the head sentence: see Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 294 (Hope JA, Mahoney and McHugh JJA agreeing). The system of remissions was abolished with the "truth in sentencing" reforms incorporated in the Sentencing Act 1989 (NSW). 36 These considerations give rise to an issue as to the appropriate standard to be applied when sentencing, in 2008, for an offence committed in about 1984. Authority now governing in this Court requires that it should not "refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender": R v MJR [2002] NSWCCA 129 at [31] (Spigelman CJ; Grove J, Sully J and Newman AJ agreeing; Mason P dissenting). Indeed, the dissent of Mason P was limited to the proposition that sentencing "practice" might change, his Honour identifying the issue as arising in cases where "the statutory maximum penalty for an offence has not been altered": at [34]. His Honour distinguished Radenkovic v The Queen [1990] HCA 54; 170 CLR 623, relied on by the majority, as being concerned with situations "where statute has impacted to some degree on the appropriate sentence": at [37]. This is such a case. Further, as noted by the Chief Justice in MJR, when the remission regime was abolished by the Sentencing Act, transitional provisions granted all prisoners with existing sentences the benefit of the pre-existing remission system: at [24]. 37 The objective circumstances of the present case were by no means in the higher range of seriousness. Aggravating factors included the violation of trust, the offence taking place in the appellant's home, whilst he was in loco parentis, as a family friend, trusted by the complainant's mother. In addition, he was a serving police officer. Although the offence did not take place in the exercise of his authority as such, that was a point of distinction which was blurred in the mind of the complainant. By way of mitigation of the seriousness of the offence, there was no element of violence or force, there was no penetration of the vagina and the incident appears to have lasted for a short period only. 38 So far as the effects on the complainant are concerned, his Honour made the following finding (judgment on sentence, 28/11/08, p 3):

"There is no doubt that the complainant was terrified by the offence and has retained deep seated fear of the offender in particular and of the police generally, and there have been other permanent effects of which she spoke eloquently in the victim impact statement that she read to the Court. One consequence of this, and it is just an example, is that she had never held a driving licence, because of her fear of the police." 39 His Honour took into account the likelihood that, being a police officer, he would suffer conditions in custody which would be harsher than those suffered by most prisoners. He also took into account that the appellant was a person of prior good character and had suffered from mental distress, although he was not satisfied that in the years between 1983 and 1985 his conduct was affected by the mental health problems which later revealed themselves. 40 His Honour referred to MJR and took into account what he understood to be the general practice at the time, namely to impose a non-parole period of between one-third and one-half of the head sentence: judgment at pp 5-6. He backdated the commencement of the sentence to take into account a period spent in custody before the sentencing occurred. 41 However, despite referring correctly to the general proportion of the sentence commonly imposed as a non-parole period at the time of the offending, his Honour imposed a period which was 60% of the head sentence, that is a non-parole period of three years with an additional term of two years, giving a sentence period of five years. 42 The appellant submitted that such a sentence was manifestly excessive "for one act of cunnilingus" under s 61D(1), committed in about 1984. Support for that submission was derived from the judgment of this Court in Lozanovski v R [2006] NSWCCA 143 (Latham J, McColl JA and Adams J agreeing). That case involved a series of charges laid with respect to conduct which occurred between 1982 and 1989. Of a series of nine charges, counts 2, 4 and 8 related to offences under s 61D, the first two involving a child under 16 years of age. The applicant was convicted at trial and, like the present appellant, did not obtain any benefit resulting from an early plea. In respect of counts 2 and 4, this Court declined to interfere with sentences of imprisonment for three years and three years six months respectively, (although it reversed the sentences recorded by the trial judge) with, in each case, a non-parole period of two years. 43 Given the considerations set out above, even if his Honour's estimate of likely sentences imposed in 1985 were accurate, an appellant so sentenced would not have served more than two years as the non-parole period, with a further year on parole. Thus, the length of sentences served would be in accordance with those considered in Lozanovski and not the subject of reduction in this Court. 44 Consistently with that approach, which I consider correct, the sentence imposed by the trial judge in respect of the offence under s 61D(1) of the Crimes Act should be set aside and in lieu thereof a non-parole period of two years imposed to date from 16 June 2008, expiring on 15 June 2010 with a further term of one year, commencing on 16 June 2010 and expiring on 15 June 2011.

Sentence: common assault 45 The second matter on which the appellant was sentenced involved an assault on 20 March 2004 upon a different young woman, CB, who had lived in the appellant's household "as a daughter" since she was nine years of age and who was 18 years old at the time of the offence: Judgment on sentencing, p 1. She and the appellant gave differing accounts of what happened on 20 March 2004. There was undoubtedly a difference of opinion as to a domestic matter. On either version, the appellant threw a bowl which contained (or had contained) ice cream at her and grabbed (or pushed) her throat with his hand. She gave the more dramatic account of the event, which appears to have been largely accepted by the trial judge, who described it as "a violent and serious assault": Judgment, p 9. His Honour indicated that only a small discount would be given for the plea, as it did not occur at the earliest opportunity. He further noted that, had the matter been dealt with in the Local Court, the maximum penalty would have been 12 months imprisonment, but that, having not entered a plea in the Local Court, the appellant "must accept the consequences". Because of the conviction for the sexual assault, he further held that the appellant could not be regarded as a person of previous good character. 46 On the other hand, he accepted that, by 2004, the appellant was suffering from "quite severe mental problems". He noted medical evidence that he suffered from a "chronic adjustment disorder, with depressed and anxious mood" and revealed "features often noted in individuals with post traumatic stress disorder". His Honour accepted that evidence. He noted that the Police Service had referred the appellant for "anxiety/depression management" in 2003 and noted the view of a psychologist, Ms Powell, who was satisfied in June 2004 that he was "suffering from a mental disorder". His Honour concluded that "although it does not absolve him from responsibility, it does lessen the degree to which general deterrence is an element in the sentence that is to be imposed": Judgment, p 10. His Honour specified a non-parole period of nine months, with a further term of nine months, giving a total sentence period of 18 months. The non-parole period was to commence on 16 January 2011, and expire on 15 October 2011. The period of accumulation on the non-parole period on the sexual intercourse charge was thus five months. 47 There is no doubt that, as submitted on behalf of the appellant, the assault fell below the high range for such an offence. The bowl of ice cream (or which had contained ice cream) was thrown at the feet of CB. She did not say that the bowl hit her. She alleged (and the sentencing judge appears to have accepted) that he grabbed her by the throat and pushed her to the door, causing significant distress, but no identified physical harm. On her own evidence she was trying to gain his attention. His mental state must have been found to account in part for his excessive reaction. 48 Even accepting CB's account of the event, the sentence imposed was manifestly excessive. Although the minimum term of imprisonment fixed by the trial judge would not be entirely concurrent with the term for the more serious offence under s 61D, the balance of the terms would be. Accordingly, it would have been an appropriate case in which to decline to set a non-parole period, pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). Further, a sentence of imprisonment of six months or less would be sufficient, in which case there is no power to set a non-parole period: Sentencing Procedure Act, s 46. 49 The assault is of an entirely different kind from the offence of sexual intercourse. It occurred some 20 years later, in relation to a young woman living in the appellant's household, and arose in quite different circumstances to that of the earlier offence. It is appropriate that the sentence should be entirely accumulated on the non-parole period for the offence under s 61D. However, a sufficient sentence is a fixed term of two months imprisonment. (Had the appellant been of prior good character, he might well have received a good behaviour bond.)

Orders 50 Because this is a minority view, there is no purpose served in undertaking the adjustment of other sentences imposed on the appellant. It is sufficient that I indicate the orders which should be made as a direct result of the preceding reasons: (1) In relation to the conviction under s 61D(1) of the Crimes Act ,

(a) grant leave to appeal; (b) dismiss the appeal.

(2) In respect of the sentence for the offence under s 61D(1),

(b) allow the appeal and set aside the sentence imposed in the District Court on 28 November 2008;

(c) sentence the appellant to a non-parole period of two years imprisonment, to date from 16 June 2008 and expire on 15 June 2010, with a balance of term to commence on 16 June 2010 and expire on 15 June 2011.

(b) allow the appeal and set aside the sentence imposed in the District Court on 28 November 2008;

(c) sentence the appellant to a fixed term of imprisonment for two months to commence on 16 June 2010 and expire on 15 August 2010. (4) Order that the appellant be released at the end of the non-parole period, namely on 15 August 2010. 51 The last order is made pursuant to s 50 of the Sentencing Procedure Act: it will be ineffective if the appellant is ineligible for release because of other sentences to which he is subject. 52 RS HULME J: In this matter I have had the advantage of reading the reasons for judgment of Basten JA and Schmidt J. I agree with Schmidt J that the Appellant's conviction on the charge of sexual intercourse without consent should be set aside and a new trial ordered. I substantially agree with her Honour's reasons for that course. 53 Whether a new trial should be held is, of course, a matter for the Director of Public Prosecutions and there are clearly a number of factors he must bear in mind. However, in light of my consideration of the evidence in the trial from which this appeal is brought, it is appropriate to say this. Cases of "recovered memories" as this one is, always have their difficulties but the differences in the evidence of KC and RC are such that, if both again give evidence, the achievement of clarity in any future summing-up is again likely to be difficult to achieve. A fortiori will this be so if, as seems not unlikely, there are inconsistencies between their evidence before Goldring DCJ and that given in any new trial. 54 So far as the Application for leave to appeal against sentence in respect of the charge of common assault on CB, I agree with Schmidt J, and for the reasons advanced by her Honour, that leave to appeal against that sentence should be refused. 55 I agree also that, in consequence of the conclusions her Honour and I reach on the two matters the subject of the present appeal, the commencing and concluding dates of the sentences imposed on the Appellant and still extant, and the non-parole periods incidental thereto, should be varied as suggested by Schmidt J. 56 SCHMIDT J: The appellant was tried in the District Court before Goldring J in an indictment containing one count of sexual intercourse without consent with KC, a person under 16 years of age, knowing that she was not consenting under s 61D(1) of the Crimes Act 1900; one count of sexual intercourse without consent with her sister RC, also a person under 16 years of age, without consent and knowing that she was not consenting; and two counts of assaulting RC, a person under 16 years of age and at the time of each assault, committing an act of indecency on RC. All these charges were defended. 57 Before Goldring DCJ, the appellant was also tried on another indictment containing 14 counts of sexual assault of his niece CB, which he defended. The appellant was also charged with one count of common assault under s 61 of the Crimes Act, to which he pleaded guilty. The jury was discharged, having been unable to reach a verdict in relation to the sexual assault counts. At a subsequent trial the appellant was convicted on 10 of these counts. On 6 November 2009, he was sentenced in relation to these 10 offences by Tupman DCJ. There are separate appeal proceedings on foot in relation to those convictions. 58 The appellant was convicted on the common assault count involving CB and on the count involving KC and acquitted of all counts of sexual intercourse without consent with RC. Goldring DCJ sentenced the appellant in relation to the counts involving KC and CB. The sentences imposed were: sexual intercourse without consent with KC - 5 years imprisonment with a non-parole period of 3 years to date from 16 June 2008 (maximum penalty 10 years)

assault of CB - 18 months imprisonment with a non-parole period of 9 months to date from 16 January 2011 (maximum penalty 2 years) 59 The appellant appeals against his conviction of sexual intercourse without consent with KC. He also seeks leave to appeal against each of the sentences imposed by Goldring DCJ.

The conviction appeal 60 The evidence was that KC's mother and the appellant's wife were cousins. They had three children, including a son M. The charged incident involving KC related to an incident when KC was 10 or 11 years old, when she slept overnight at the appellant's residence at The Oaks Police Station. KC was in bed asleep, when she woke to find the appellant in the room. He then performed cunnilingus upon her. 61 KC also gave evidence of another incident when she had been indecently assaulted by the appellant, when she slept over at the appellant's home. The appellant's son M was present in the room on that occasion. This incident was not the subject of any charge. 62 KC gave evidence that she had suppressed memories of these two incidents until she was aged 16 years. She told her mother about the incidents when she was 18, but did not complain to the police until she was aged 33 years. 63 RC gave evidence in relation to the alleged offences involving her, as well as evidence that she had observed an incident involving KC and the appellant, when the appellant's son M was present on an occasion when the appellant had then also assaulted her by an act of cunnilingus. RC did not disclose this incident to anyone, until after the commencement of the trial. This incident was also not the subject of any charge. 64 The appellant denied all of the allegations. He and his wife gave evidence that KC and RC had not stayed overnight at their home. KC and RC's mother gave evidence that they had stayed overnight and that KC had reported the charged incident to her when KC was 18. The appellant's son M also gave evidence, but he but did not recall any incident of the kind described by either KC or RC.

Ground 1: His Honour erred by failing to adequately identify the evidence of the acts constituting count 1

Ground 2: His Honour erred by failing to direct the jury that they should scrutinise the evidence of KC with great care 65 It is convenient to deal with these grounds of appeal together. The appellant's complaint was that during the course of his summing up to the jury, his Honour initially described the evidence in relation to KC as concerning two incidents, the first that constituting the charged incident and the second, an uncharged incident involving the appellant's son M, about which RC had also given evidence. Later in his summing up, however, his Honour left open to the jury the possibility that the evidence which RC had given related to a third uncharged incident involving KC or even to the charged incident, rather than to the second uncharged incident involving KC. His Honour then gave a R v Murray (1987) 11 NSWLR 12 warning in relation to RC's evidence, her evidence being the only evidence of the assaults about which she had complained and that her evidence needed to be approached with some caution. The direction given in relation to KC's evidence was that it needed to be treated with such caution, only if RC's evidence was rejected. 66 It was argued that two difficulties emerged from his Honour's directions, which resulted in a miscarriage. The first was that there was confusion as to what evidence related to the charged incident involving KC and the second, that his Honour had erred in giving a qualified direction to the jury as to the care and scrutiny which the jury had to give to KC's evidence about the charged incident. 67 I am satisfied that both grounds of appeal were established. In reaching that conclusion, attention had to be paid to the way in which the parties advanced their cases at the trial, as well as the evidence which the witnesses gave and the directions which his Honour gave to the jury.

The Crown's opening 68 The case was opened for the Crown on the basis that KC would give evidence about two incidents, one the charged incident which had occurred at the residence at the police station at The Oaks where the appellant was living and the second, an uncharged assault, which KC thought might have occurred at the same time, but she was not sure. The evidence RC would give in relation to the charges which concerned her, were also outlined. No mention was made of RC giving evidence in relation to any assault of KC. It was not then known that RC would give evidence of having witnessed any incident involving KC. RC did not reveal this recollection until the second day of the trial, even though she had earlier given evidence at the committal hearing. 69 The Crown provided the jury with a document setting out the elements of each of the counts in the indictment, foreshadowing a direction that cunnilingus constituted sexual intercourse, an element of the charge relating to KC. At that time it was expected that only KC would give evidence about the two incidents which she remembered. 70 The defence opened on the basis that if RC or KC believed that they had been assaulted by the appellant, it was a false belief. The charges were denied by the appellant, who would give evidence. The three crucial witnesses would be he, RC and KC. The son M who it was claimed had witnessed some of the events about which KC would give evidence, would provide no corroboration of those events. The difficulties in dealing with the allegations made so many years after the alleged events were outlined, as were the problems raised by the way in which KC and RC claimed that they had recovered their memories of the assaults.

The evidence 71 KC gave evidence about the two incidents on which the Crown had opened. KC had finished her evidence when it was revealed that RC had made a further statement about an incident involving KC, which also involved a sexual assault on herself, which had not previously been disclosed to police. There had earlier been committal proceedings at which RC had given evidence, but where this incident had not been revealed. It was not the subject of any charges. There was an adjournment of the hearing to permit an investigation of matters raised in RC's new statement to be undertaken. On resumption RC was called and KC was then recalled, in order that she could be cross examined on the new matters RC had disclosed. 72 When she was first called, KC's evidence was that she remembered visiting the appellant's family, both when they were living at Campbelltown and later at The Oaks. The son M was around the same age as her. When the appellant and his family lived at Campbelltown, the daughter K was a baby. KC had started to visit The Oaks, where the family later moved, towards the end of 1983 and she had stayed overnight there with her sister. The charged incident occurred when she was 10 or 11 years of age, when they stayed at The Oaks. She was sleeping on a bed; it was dark; the door was ajar and a light was coming through when she woke to find the appellant between her legs, her underpants and the blanket pulled down. She said nothing, felt petrified, thought that she would be killed and then felt the appellant licking her vagina. She turned her head because she did not want the appellant to realize that she was awake. She thought of the appellant's wife coming in; she remembered feeling frightened and then it went black. 73 KC could also remember a second incident. She could not be sure, but thought it had occurred some years earlier at Campbelltown when she was 6 or 7. It wasn't as dark as the other time, it felt like early morning. She woke to find the appellant in front of her. His son M came from the left and he and the appellant were having a look at her vagina. The son then came onto the bed, had a look and raced off. She was lying on a mattress on the floor. This was not as traumatic as the charged incident, she just felt embarrassed. 74 KC told no-one about these incidents, she blocked them out completely. She did not remember them until she was 16, when she lived in Queensland. Her recollection returned when she was sitting at an oval reading an article in a magazine about a girl who had been sexually molested. A memory of the charged incident came flooding back, as if she was completely reliving it. Immediately after reliving the charged incident, there was a flash straight into what had happened with the appellant and his son in the uncharged incident. She did not speak to her mother about these memories until some years later and did not approach anyone in authority, until she went to the police in 2006. 75 In cross examination KC explained that when she recovered her memory, it was like reliving the whole experience and that she could remember every thought and feeling which she had. She explained why she thought the uncharged incident occurred when she was 6 or 7 and the charged incident when she was 10 or 11. When she was 16 she was not sure if the two incidents had occurred on the same day, in the same bed. It was not until she sat down with the police and looked through photographs and went over her memories, that she realised that her memory suggested that she was 6 or 7 when the uncharged incident occurred, because she could specifically remember then thinking about the appellant's baby daughter K. She wasn't a baby at The Oaks. KC remembered that the uncharged incident had occurred at Campbelltown, when M was present. This suggested to her that the two incidents were separate. So did the light. 76 KC said that when she made her statement to the police in 2006, she was not sure if they had occurred at different times during the same night. But when she gave her evidence, she was sure that the uncharged incident had occurred when she was 6 or 7, because she had then been thinking about the baby. K was a baby at Campbelltown. Her feelings about her body image changed when she was 10, after visiting The Oaks. After the charged incident, she did not want to go there again. This made her realise the incidents were separate. KC also explained that her sister was in the room during the charged incident. She thought about her at the time, but did not look at her. 77 KC explained that she had spoken to her sister at different times over the years, but couldn't recall when. All that she had asked her sister was whether the appellant had done anything to her. RC always said nothing had happened to her. Her sister was a support person when she went to the police. KC also explained her fears and why she had delayed in making her report. 78 KC was further cross examined as to where the uncharged incident had occurred. She again explained that the uncharged incident had occurred when she was on a mattress on the floor when she was 6 or 7 and the charged incident when she was 10 or 11, when in a bed at The Oaks. She had not been sure what had happened first, until she sat down and thought about the thought processes which she had during the two incidents. She came to separate them because of her thinking about the baby K during the uncharged incident, about M being there and M running from the left. She reasoned that she couldn't have been at The Oaks because she recalled there was a wall there at The Oaks. Her last thought was of the baby, who was a baby when she was 6 or 7. She also felt young. She remembered exactly what she was thinking and feeling then. She was definitely sure that there were two separate incidents. 79 When RC was called, she gave evidence about the incidents relating to her, which were the subject of charges. RC also gave evidence that on one night when they had stayed over at The Oaks, she and KC had been sent to bed. KC was on a bed and she was on a mattress on the floor. She saw the appellant come into the room and step over her bed. He had a dolphin torch and a box of tissues and his son M was with him. She saw the appellant pull down the sheets covering KC. She sat up and said 'Is everything alright?' or 'what are you doing?'. KC was asleep. The appellant said 'Just go back to sleep'. He put the torch on the bed and she saw the little boy behind him in his pyjamas. The appellant pulled back the remaining covers and pulled down KC's underpants. RC sat up on her elbows and peered over to see what was going on. He told her to roll over and go to sleep. As she rolled over, she saw his face go down towards KC's vagina. He was talking either to KC or the boy, but KC did not say anything. RC fell asleep and a short time later she woke up and her underpants were down and the appellant was laying on top of her legs and he was licking her vagina and clitoris. She was scared and shaking. She said 'what are you'd doing?' He said 'don't worry go back to sleep'. She lay there frozen, scared. He sat up and wiped his mouth with a tissue. She looked at him, said nothing and rolled over and went to sleep 80 RC also gave evidence that she was present when KC spoke to her mother about the assaults, when she was 13 or 14. She was asked, but denied to them that anything inappropriate had happened to her, even though she then had memories of what the appellant had done to her. She did not want to think about it. She did not tell her mother about the sexual assaults with which the appellant was later charged in respect of her. Nor did she reveal what she had witnessed in relation to KC and what had occurred to her on that occasion. She had discussed what had happened to KC with her many years later, but had again denied that anything had happened to her. She did not tell KC what she remembered. She claimed that the appellant had told her not to tell anybody. 81 RC confirmed that after KC approached the police, she had also been asked by the police if anything had happened to her. Again she denied that anything had occurred. Nor did she tell the police of what she had witnessed in relation to KC and what had occurred to her on that occasion. It was not until later, after speaking to her partner, after she had read something on the internet about the appellant being associated with a child care centre, that RC herself approached the police in relation to the assaults with which the appellant was later charged in relation to her. 82 This was after she had a flashback about what the appellant had done, while in the shower. This was like watching a video, of all the things which the appellant had done to her. It all played back in her head. She then spoke to her partner, then KC and then approached the police. She also spoke to a counsellor on a number of occasions, before and after she spoke to the police. She had told the counsellor about the incident involving KC, after she had made her statement and before she came to Sydney for the committal hearing, but she made no statement to the police in relation to that incident, until the day before she gave her evidence at the trial. 83 RC was cross examined on the basis that her evidence was fabricated and that what she claimed to have seen in relation to KC was recent invention, which she denied. 84 In cross examination, RC said that the incident involving KC had occurred at The Oaks. She was very young when she went to the other house and that was why she did not remember it. She also explained why she had not disclosed the assaults, even to the police when approached. She had good memories of going to The Oaks and playing there and she didn't want to think about what had happened to her, even though she had always remembered all of the full incidents, which had been fresh in her memory, but she didn't want to divulge the secret. She was scared of the appellant, even when she knew her sister was going to court. What she saw the appellant do to her sister seemed worse to her than what he had done to her, which included putting his penis in her mouth. She didn't tell the police everything, because she wanted to protect herself. 85 RC was 13 or 14 when her sister told her mother of the assaults. She then remembered the appellant assaulting her as well, but did not reveal this because she was frightened of her mother. Her statement to the police, that this was the first she knew of the assault on her sister was untrue, as was the evidence which she later gave to this effect at the committal hearing. She deliberately did not reveal to the police what she had seen the appellant do to KC. She claimed, however, that she had later told Detective Cordery about what she had seen the appellant doing to KC, before the committal hearing. 86 When further examined as to what she remembered of the assault on KC, RC said that she believed that the son M was the boy present. When asked whether there was a girl in the family then, RC volunteered that 'there was a baby actually', but she could not remember her. Later RC agreed that the daughter K was two years younger than her and no baby when she was 6 or 7. 87 RC said that she had not gone to sleep before the appellant entered the room, it was some time after they had been put to bed and he entered with a torch, followed by M. She knew at the time that what had been done was wrong. She saw the appellant put his face near her sister's genitals and pull her pants down. M was standing at the end of the bed her sister was sleeping in. She did what she was told when directed to roll over and go to sleep. She remembered waking to find the appellant licking her vagina, not saying or doing anything and the appellant then wiping his mouth with a tissue. She agreed that she had not put this in the new statement which she had made the previous day, even though she had always remembered this and that she had then made a second statement to that effect, after realizing that something had been left out. 88 RC was also cross examined as to a different account of this incident which she had given her counsellor, in which she had said that the appellant had touched her and her sister under the bedclothes, but had not mentioned him licking her vagina. 89 In re-examination RC was asked about evidence which she had given at the committal hearing, which included that she had a vague recollection of what had happened, only because her sister had discussed it with her. She explained that until she had the video-like recall of what had happened to her while in the shower, what she could remember was a lot of images which she could not clarify and which she didn't want to think or talk about. 90 KC was then recalled and further cross examined. She explained again that the charged incident had occurred when she was 10 or 11; that she remembered her sister then being present; she was not sure if she was on a bed or on a mattress on the floor. She did not remember the appellant having a torch or a box of tissues with him. She said she never saw him assault her sister. 91 KC said the uncharged incident occurred when she was 6 or 7. She was not certain whether it was in different place, but she thought so, because she felt younger and had then thought about the baby. She was not lying in the same bed, or in the same position as during the charged incident. It was a different time. Her sister was not there, she had no thought or memory of her sister being present then. She remembered the appellant and his son M being there. She recalled no torch or box of tissues or anything happening to her sister. 92 KC and RC's mother gave evidence that she was close to the appellant's wife, who had invited her daughters for a sleep over at The Oaks when KC was 10 or 11 and RC was 6 or 7. That was the only occasion which she could remember. KC was upset the next day when she collected her daughters and she learned from RC that they had been locked in a gaol cell there by the appellant. When KC was 18 she had told her about the appellant assaulting her by performing oral sex on her. RC was then asked, but denied that anything had happened to her. The account of what she was told by KC differed in a number of respects from that of KC, which it is unnecessary to outline. 93 M's evidence was that he was 10 or 11 when the family lived at The Oaks. He was blonde and slighter than his younger brother. He could not recall KC and RC staying over at The Oaks, or being present on any occasion when the appellant went into a bedroom where KC or RC were sleeping. He also could not recall being present when his father had sexually assaulted KC or RC. In cross examination he said he recalled KC visiting the Campbelltown house and The Oaks. KC was his friend, but he could not remember RC as a child, or KC having a sister. He was estranged from his family at the time he gave his evidence, but said that he imagined that he would remember, if he had seen the appellant lick KC's vagina when he was 10 or 11. 94 Detective Sergeant Cordery gave evidence as to various matters, including how KC and RC had come to make their original statements and how RC had approached him before the committal hearing, to advise that she had remembered further details of staying at The Oaks. She had not then mentioned remembering a further sexual assault. This evidence contradicted RC's evidence. The counsellor Ms Mellor's evidence was that in July 2008, RC had told her that she remembered another incident not in her statement, when the appellant had come into a room she was sharing with KC with a Dolphin torch and had put his hands under the bed clothes and touched her. The counselling session was disturbed by RC's young son, who she had with her. In March 2008, RC had told Ms Mellor that she remembered a lot more, but she did not want to go there. She wasn't sure if she wanted to change her statement, because she thought the appellant would be going to gaol anyway. In cross examination, Ms Mellor explained that RC had said that during this incident the appellant had touched her on the body under the bedclothes. The session was chaotic because the child was present and she remembered RC saying something about her sister, which she didn't write down, but nothing about a boy being present. She could recall no discussion of anyone having their vagina licked. 95 The appellant gave evidence that he did not assault either KC or RC. KC used to play with M when they lived at Campbelltown. He did not remember them staying overnight at Campbelltown or at The Oaks. He denied having locked KC or RC in a cell there, although the kids used to play there sometimes. In cross examination he denied that other children had slept over. He denied that he had a dolphin torch, he had a police torch. It was the evidence of the appellant's wife that when they had lived at Campbelltown, she had on occasions picked KC and M up from school and they had afternoon tea and stayed together until KC was picked up. KC and RC did not stay overnight there, nor at The Oaks, where they called in only a couple of times. She had not invited them for a sleepover, nor did other children stay over. 96 The son M was recalled and gave evidence about other children sleeping over at The Oaks, friends of his, his brother, or sister, on spare bedding, a fold out bed and a spare mattress. He recalled torches at the house, including a dolphin style torch when he was about 10, but he could not recall when he was 6. He explained the nature of his dispute with his parents over money. He confirmed that he had given evidence at the committal that he could not remember any occasion where a girl had stayed over in his sister's room. He insisted that he could remember the torch and spare bedding. 97 KC was four years older than RC. RC was born in 1977 and KC in 1973. Accordingly, RC was 6 or 7 years when the charged incident occurred when KC was 10 or 11. If the uncharged incident about which KC gave evidence occurred when KC was 6 or 7 as she believed, RC would then have been 2 or 3 years. The Crown conceded in submissions that RC would not have remembered the incident about which she gave evidence, if it had occurred when RC was that young. 98 The appellant's son M was born in 1974 and he was about 10 years at the time of the charged incident. KC did not remember him being present during that incident. M was also 3 or 4 years younger, if the uncharged incident had occurred when KC was 6 or 7 years. M did not remember KC or RC being assaulted by his father. KC remembered M being present and thinking about the appellant's daughter K as a baby at the time of the uncharged incident. K was born in 1979, so would have been a baby when KC was 6 or 7 and RC was 2 or 3. K was not a baby when KC was 10 or 11 and RC was 6 or 7. In her cross examination, RC volunteered that K was a baby at the time of the incident involving KC which she described, with M being present. RC cannot then have been 6 or 7 years.

The Crown's closing case 99 It is apparent that there were numerous conflicts in the evidence. Their resolution depended on whose evidence the jury accepted and whose it rejected. 100 The Crown closed its case on the basis that there was evidence of two incidents involving KC: the charged incident, and one further uncharged incident when the son M was present, about which KC had given evidence. RC's evidence of what she had witnessed was outlined and it was submitted that 'You will recall KC is giving evidence of something that happened when she was about 10 or 11 and RC is giving evidence of something that occurred when she was about 6'. 101 After referring to the cross examination as to the uncharged incident, which KC said had occurred when she was 6 or 7 at Campbelltown, it was submitted that:

"Well it's a matter for you of course because we know that when she was that age that her sister was considerably younger. Her sister would not - the Crown would concede her sister just wouldn't have remembered any sort of event like this whereas RC has said that she does remember an event when the accused came into the room. She remembers it as being something when she was about six or seven." 102 The evidence as to what made KC believe the uncharged incident had occurred when she was 6 or 7 was further outlined and it was submitted:

"Anyway then she was cross-examined at length, you recall about that. She said fairly, quite fairly she just said she wasn't sure. She wasn't sure if the two incidents occurred at the same time or whether they occurred at a greater distance apart but it's just the one thing, the reason she thought that the K and M incident must have occurred at a different time was because she thought about the baby. She remembers thinking something about the baby." 103 After dealing with RC's evidence about the charges relating to her, the Crown returned to KC's evidence and how she had recovered her recollection of the two assaults, when she was 16. The Crown further outlined the detail of the evidence which she had given in cross examination and her demeanour in giving that evidence, submitting that her evidence would be believed and the appellant's evidence and that of his wife, would not.

The appellant's closing case 104 The case for the appellant was that none of the incidents about which KC and RC gave evidence had ever occurred and that none of their allegations were true. Attention was drawn to the way in which RC's evidence about KC had come forward during an incident in which she was also allegedly assaulted, so many years after the events and after her repeated denials that anything had occurred to her. It was submitted that KC and RC's evidence was crucial and that significant question marks hung over their reliability. KC's recollection was submitted to be entirely questionable, given how it had come to her at age 16 in a flashback and much how time had elapsed before she approached her mother at age 18 and the police at age 33. 105 It was argued that on her own evidence it was apparent that KC had reconstructed the events in issue. Her evidence could not be accepted as being a reliable account. The evidence of RC's knowledge since she was 13 or 14 that KC had claimed to her mother that she had been assaulted, her repeated denials of herself having been assaulted and the sisters' discussions of KC's allegations over the years, were also pointed to. RC's recently revealed account of KC's assault and another serious sexual assault on her was submitted to have been entirely implausible and not supported by the evidence called from M, who both KC and RC claimed had been present during uncharged assaults about which they gave evidence. He did not remember either of them ever staying overnight, or being assaulted.

The trial judge's directions to the jury 106 In his summing up, Goldring DCJ initially directed that KC had given evidence that the charged incident, involving cunnilingus, had occurred when she was 10 or 11 years. This was the matter about which the jury had to be satisfied beyond reasonable doubt. His Honour dealt with the essential elements of that offence, before dealing with the offences charged in relation to RC. His Honour then turned to the uncharged incident involving KC, directing:

"The Crown has also led evidence of one other act against KC. KC said that on one occasion, which she thought was some years before the events charged in count 1 but she was not quite certain, the accused came into her room with his son M, lifted the bedclothes and looked at her vagina. In her evidence she did seem to be a little confused as to whether this was the same incident as that charged in count 1, which I have already told you about, or a different incident. Although she said that her recollection was that it may have been different. This is not a matter charged in the indictment, so the Crown does not have to prove it beyond reasonable doubt. But I will have to tell you the purpose of this evidence." 107 Having instructed the jury that there was evidence of only one other act against KC, in an uncharged incident which did not need to be proven beyond reasonable doubt, his Honour then explained the purpose of the evidence led in relation to that uncharged incident, by reference to RC's evidence. His Honour said:

"RC says that one evening when she was asleep on a mattress on the floor in the same room as her sister KC she saw the accused come into the room holding a Dolphin torch. She says she recognised him by the torchlight. She says that there was a small boy with him and that she believed this was his son M who had blond(sic) frizzy hair. RC says that when she saw him lift the bedclothes on her sister's bed, put the torch down and do something to her sister. She asked if things were okay and says that the accused told her to go back to sleep. She says that she must have gone back to sleep but that shortly afterwards she woke and the accused was licking her vagina and clitoris. Now, again, these matters are not the subject of any charges." 108 As the appellant submitted, this direction made clear that RC's evidence did not relate to the charge involving KC, but left open the possibility that what RC observed was an entirely different, uncharged third incident involving KC. His Honour then went on:

"This evidence was led for the purpose of making the circumstances of the offences charged more intelligible to you. If that evidence had not been presented a jury might wonder about the likelihood of the accuracy of evidence about other apparently isolated acts occurring suddenly without any reason. If a complainant gave evidence of acts of sexual misconduct, a jury would be entitled to say to themselves as people of commonsense, well, really it is very odd for there to be such acts between these persons without hearing something about the content. And it is open for that reasons for the Crown to lead evidence of other acts of a sexual nature between this accused and each of the complainants in this case. But I must give you certain warnings in respect of this evidence of other acts. You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. And therefore you cannot use it as an element in the chain of proof of any of the offences charged. Indeed, you cannot use it at all unless you are satisfied beyond a reasonable doubt that it occurred. You must not substitute the evidence of the other acts for the evidence relating to the specific offences charged. You must not reason that because the accused may have done something wrong to KC and RC on another occasion he must have done so on the occasions charged. You must give careful consideration to the timeframe within which the other acts are alleged to have occurred. RC says this was fairly close in time to the other events that she alleges. KC was not quite so certain. I must warn you that the more remote the other sexual activity is from the events charged the less weight you can give to it. The law requires that if the evidence relates to (sic) uncharged act that occurred a long time ago rathe(sic) than less recently, you should give less weight to it." 109 There was another obvious difficulty with the directions so given at this point. His Honour's direction that evidence about other uncharged acts could not be used unless the jury was satisfied beyond reasonable doubt that they had occurred, contradicted his earlier direction that the uncharged incident involving KC did not need to be proven beyond reasonable doubt. 110 This left quite unclear whether or not the jury had to be convinced beyond reasonable doubt that any uncharged incident involving KC had occurred, before any account was taken of that evidence. This assumed real significance, given what his Honour went on to say about RC's evidence. So did a second contradiction which also emerged from the directions given in relation to the charged incident. 111 After referring to the evidence given by the appellant, his wife and their son M, his Honour turned to give the jury a warning in terms which accorded with Murray, in relation to the evidence which RC had given about the three charges which concerned her. The appellant makes no complaint about those directions. His Honour explained that RC was the only witness who had given evidence about the essential elements of those three offences and that accordingly, her uncorroborated evidence had to be approached with great care. His Honour also said that:

'This is a warning that a judge must always give where proof of an essential element of an offence depends on the evidence of a single witness and is not directed at RC personally'. 112 In DTS v The Queen [2008] NSWCCA 329, the necessity for giving a Murray direction was considered. It was there concluded that no warning was necessary in circumstances where there was some corroborating evidence of the charged acts. Beazley JA observed:

47 Finally, the appellant contended that the caveat the trial judge placed at the end of his directions, namely, that he was giving the direction as he was required by law to do so, significantly limited the force and authority that such a direction ought to have. Again, this matter does not arise, as a Murray direction was not required. However, it should be noted that in Longman Deane J adopted the comment of King CJ in R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 at 125, that a judge: "… is free to frame the caution or warning in such terms as he sees fit. It must be clear to the jury, either from a specific direction or at least from the general tenor of the summing up, that they are free to reject the judge's suggested approach to the evidence of the alleged victim or any views which he might express on such questions of fact. He must not convey the impression that the caution or warning is given as a matter of law 113 It follows that his Honour erred in informing the jury that the warning he had given in relation to RC's evidence was a warning which must always be given by a judge where evidence of an essential element of the offence depended on uncorroborated evidence. 114 The appellant's complaint, however, was that a Murray direction ought also to have been given in relation to KC's evidence about the charged incident. To that point, according to the directions his Honour had given, KC was the only witness who had given evidence about the essential elements of that offence. Logically, his Honour ought thus to have given a Murray warning in relation to KC's evidence, in terms similar to that given in relation to RC's evidence. His Honour did not do so. Instead, he then introduced a possibility raised by neither party, namely that RC's evidence, which he had earlier directed was evidence of an uncharged incident in relation to KC, might have been evidence of the charged offence involving KC. His Honour said:

"If you accept that the event described by KC, the subject of count 1, is an event that her sister witnessed, then you may treat RC's evidence as corroborating or supporting the evidence of KC."

115 Thereby, without any explanation to the jury, his Honour contradicted his earlier directions. Having already told the jury that RC's evidence could not be used 'as an element in the chain of proof of any of the offences charged' in relation to KC, his Honour then directed that RC's evidence might be accepted as evidence that she had witnessed the charged incident involving KC. 116 There was a further difficulty. Having warned that RC's evidence in relation to the essential elements of the charges concerning her had to be approached with care, because proof of those offences depended entirely on her evidence, his Honour's direction in relation to KC's evidence was that:

"If you accept that the event described by KC, the subject to count 1, is an event that her sister witnessed, then you may treat RC's evidence as corroborating or supporting the evidence of KC. If that is the case then there is no need for me to give you a similar warning about KC's evidence because it is not the only evidence of what she alleges. However, if you do not accept RC's evidence that she saw the accused sexually assaulting her sister, then you must subject KC's evidence to the same strict scrutiny because it is the only evidence apart from that of RC that the accused assaulted her. And if you do not accept RC's evidence, it is the only evidence." 117 This was an unexplained departure from the Crown case and the earlier direction. RC's evidence could not have been evidence about both the charged incident and about an uncharged incident involving KC. As the appellant complained on appeal, logically, the jury could not have approached the questions it had to determine, in accordance with the contradictory directions given in relation to what constituted the evidence of the charged incident involving KC and the level to which it had to be satisfied about RC's evidence. 118 When his Honour had concluded his summing up, the appellant's counsel raised a number of objections to the directions which had been given. He submitted that the conditional Murray direction given in relation to KC rested on a misapprehension that RC's evidence related to the charged incident, contrary to the Crown's opening and closing addresses. A redirection was sought, it being submitted that there had been an inappropriately conditional direction given in relation to the scrutiny of KC's evidence and that:

"BOULTEN: That is based on a misapprehension that RC has described the events which constitute count one, but she has not. RC's evidence concerning the bedroom incident is inconsistent with KC's evidence concerning count one. KC has suggested that the incident that occurred with M and K, that is the incident which RC - sorry, I'll start again.

KC has suggested that the incident involving M and K, which is possibly similar to - I'll start again. KC has suggested that the incident with M and K occurred when she was six or seven, when she was on a different bed and did not extent(sic) to a description of cunnilingus. In her evidence consistently at these points, page 34, 46, 47, 48, 50, 51, 61, 62, 64, 35(as said) and 76, KC continuously said that her reconstruction of her evidence is that the incident with M and K occurred many years before this one, the subject of count one. Her description of count one did not involve a description of M being present, nor of a torch being used, nor of a box of tissue being used, nor of any incident concerning the accused or M turning their attention towards RC.

Therefore RC's evidence of an incident in a bedroom is so significantly different from the description that KC gave of the event which constitutes count one as to make it unavailable for the jury to conclude that RC is describing the incident which is count one. It is just not open to this jury to conclude that RC is describing the same incident as count one. Therefore the jury cannot treat RC's evidence as being supportive of count one. Therefore KC's evidence is the only evidence of the events constituting count one and the jury must carefully scrutinise her evidence in exactly the same way as you have instructed the jury to carefully scrutinise RC's.

In any event, given the degree of uncertainty attaching to this evidence generally about the bedroom incident or incidents, this is a case where the jury should in any event be directed to scrutinise carefully the evidence of both complainants." 119 A redirection was opposed as being unfair to the prosecution, with the Crown submitting that:

"Your Honour there's no question that there are inconsistencies, but it's arguable in my submission. It's really a matter for the jury. Certainly there are inconsistencies and certainly KC did indicate that the matter - as she understood it, the matters - the other matter occurred several years before, but she also said on several occasions and I just haven't got the references and I'm just taking a little bit of time to get them, where she said that it may have been that they occurred at the same time. She's just not sure. So it's really arguable as to whether they were - whether that incident in her mind occurred years before or occurred at the same time as count one." 120 The appellant's response was:

"BOULTEN: There could be confusion about the particularisation of the acts concerning count one unless your Honour tells them that is the description of KC where she says the accused licked her vagina that constitutes it. The Crown opened on the basis that K and M incident was not part of count one but was relationship evidence. KC's evidence throughout has been "I tend to believe they were separate incidents although at one time I thought they were the same. But by the time I unravelled it all I had determined they were different incidents and here's the reasons why." Therefore, unless there is strong direction given about that the jury might simply think they can convict on the basis of the description of the K and M incident whereas that would be contrary to the way they case has been run.

Therefore, if there is this clear delineation in the particulars then that underscores my submission that the description by RC of the M and K incident is a description of relationship evidence not of count one. Therefore, the jury must be told to give the same scrutiny to KC as they(sic) gave to RC." 121 His Honour declined to give a further Murray direction in relation to KC's evidence, taking the view that:

"Mr Boulton also submits that I should give what is called a Murray direction in respect of the evidence of KC and the count involving her because her evidence is in respect of the matters alleged in count one is the only evidence and the evidence of RC does not corroborate the evidence of KC in respect of that matter but in respect of another matter.

Again, it is my view that it would be usurping the function of the jury to make that assumption. I am certainly not prepared to direct the jury that the evidence of RC is incapable of corroborating the evidence of her sister particularly in view of the fact that KC was not certain as to whether the event at which she says MC was present was the same incident that she related in count one or not.

What is common to the allegations of both RC and KC is that on the occasion of which both witnesses spoke to M was said to be present. There are inconsistencies between what happened on that occasion. It seems to me that I have given a direction to the jury that if they do not accept RC's evidence then they should subject KC's evidence to the same degree of scrutiny as if she were the only witness to those events

What I think I must do in view of the submissions that have been put before me is to tell the jury quite specifically of the evidence to KC being uncertain as to whether there were one or two events but the evidence that RC gave related only to the event when M was said to be present and I will leave it at that for the jury to decide." 122 A further direction was then given, when the jury was recalled. His Honour directed:

"When I was warning you about the special scrutiny that you must give to a witness whose evidence is the only evidence of essential matters that the Crown must prove I said that if you did not accept RC's evidence in relation to what she says was an assault on her sister then you would have to subject KC's evidence to the same degree of scrutiny. I want to make it clear that KC gave evidence that she was assaulted when the accused licked her vagina that is count one. She give evidence that there may have been another occasion which she believed was different and that was the occasion in which M was present.

If you are to accept RC's evidence as corroborating that of her sister you would have to be satisfied that the M incidence was the same incident as the matters charged in count one because that was the incident about which RC gave evidence. KC was not certain. She said that it was her belief that they were separate and separated by some years but she was not sure about it."

The matters constituting count 1 were not adequately clarified and an inadequate Murray direction was given 123 There is no question that an accused may be convicted on the uncorroborated evidence of a single witness, or on the evidence of witnesses whose reliability has been challenged. Justice requires, however, that appropriate directions be given to a jury, to ensure that the accused is given a fair trial. What directions must be given in a particular case, depends on what is in issue. As Hayne J discussed in Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234:

"[76] It is to be noted that reference is made in Alford v Magee to the "real" issues in the case. The word "real" is no mere verbal flourish. It is important. By hypothesis, the accused has pleaded not guilty and, by that plea, has put in issue every element of the offence or offences charged. But it by no means follows that there is a "real" issue about every one of those elements. Leaving aside cases in which an accused makes some formal admission of one or more elements of an offence charged, by the time the judge comes to instruct the jury, it will often be apparent that evidence adduced by the prosecution in respect of one or more of the elements of the charge is not challenged, and that there is, therefore, no real issue about that element or those elements. To take a simple example, in a murder trial there will very often be no dispute that the victim is dead. There may be no dispute about how, when or where the victim died. In order to prove the case, the prosecution will lead evidence about those matters but it will be apparent, by the end of the trial (if not much sooner), that there is no "real" issue about those matters.

[77] A fundamental part of the task of the trial judge is to decide what are the "real" issues in the case. And another, no less important, part of that task is to tell the jury what those real issues are. It is in respect of those issues (and only those issues) that the judge must instruct the jury about so much of the law as the jury must understand to decide the case." 124 In my view, given the difficulties with the summing up which I have outlined, particularly the conflicting and contradictory directions given in relation to RC's evidence, his Honour failed to adequately clarify what constituted the charge relating to KC and what was in issue in the case. 125 The Crown had put to the jury that there were two incidents involving KC about which KC had given evidence and that RC had given evidence that she had witnessed the uncharged incident. That characterisation of RC's evidence was not put in issue by the appellant. That is what the jury was initially directed by the trial judge. 126 The possibility that RC's evidence concerned the charged incident, rather than the uncharged incident involving KC, was an issue introduced by the trial judge, not the parties, as was the possibility that her evidence concerned a third uncharged incident. A number of difficulties flowed from the introduction of those possibilities, with the result that contradictory directions were given in relation to RC's evidence, and that an inadequate warning was given in relation to KC's evidence about the charged incident, which conflicted with that given in relation to RC. 127 The reliability of the evidence which KC and RC gave was plainly in issue. The appellant was acquitted of the offences charged in relation to RC. Given how her evidence as to what had occurred in relation to KC had emerged, that RC's evidence had to be approached with real caution, as his Honour directed, was apparent. The reliability of KC's evidence was also put in issue. The resolution of that issue did not alone depend on how RC's evidence was received. 128 At its highest, the case which the Crown put to the jury was that there were two incidents involving KC, which might have occurred in proximity to each other. What RC described cannot, however, have been both the charged incident which KC had described, as well as the uncharged incident about which she gave evidence. 129 KC's evidence was that what had occurred to her had happened on two different occasions, years apart, in different rooms, in different houses, on different beds, at different times of the night, when different people were present and different things were done to her. 130 On KC's evidence, the uncharged incident had occurred first in time. It happened towards morning, at the appellant's home at Campbelltown when she was 6 or 7. There was then a baby in the house, who she was thinking about. She was sleeping on a mattress. RC was not present, but M was and he jumped on to her bed at one point, to have a look at her vagina. 131 That both KC and RC gave evidence that there was a baby in the house at the time of the uncharged acts which they described should not be overlooked. That evidence suggested that none of the uncharged acts which they described occurred at The Oaks when RC was 6 or 7 and KC was 10 or 11, as was RC's evidence. The daughter K was not then a baby. If that evidence was accepted, the Crown conceded that RC would not have had a memory of what she described, she was then only two or three years old. RC's evidence otherwise also suggested that what she described had occurred on a different occasion than the charged incident, about which KC gave evidence. 132 KC's evidence about the charged incident was that it occurred years later, when she was 10 or 11, during the middle of the night when it was dark, while she and RC stayed overnight at The Oaks in the same room, but on different beds. The door was ajar and light was coming through, when she woke from sleep to find the appellant committing an act of cunnilingus on her. M was not present on this occasion. KC said that she woke from her sleep, but she did not see RC being assaulted. KC did not speak to the appellant and gave no evidence of hearing voices. She did not remember the appellant having a torch and a box of tissues with him. 133 RC remembered the acts she described as occurring immediately after she and KC went to bed at The Oaks when she was 6 or 7, before she fell asleep and while KC was asleep. RC said that M was present and that while she later woke to find herself being assaulted by an act of cunnilingus, she first saw the appellant's head near KC's vagina, when she sat up to see what he was doing. He had pulled down KC's bedclothes and pants, but KC was not awake. RC remembered the appellant having a torch and a box of tissues. RC spoke to the appellant first when he was with her sister and later when she woke to find him assaulting her. She also heard him speaking to either KC or M. 134 M's evidence was that he remembered KC staying overnight, but not RC and that he never saw either KC nor RC being assaulted by his father. 135 On any fair view of the evidence, KC's evidence that the appellant had performed cunnilingus on her was uncorroborated. There were only two aspects of RC's evidence which could conceivably have suggested that RC had witnessed the incident which comprised the charge. The first, her evidence that she was 6 or 7 years at the time of the events which she had observed, when KC was 10 or 11. The second, when she said in cross examination that 'I just seen his face go down towards her vagina area.' RC gave no evidence, however, that she had observed the appellant performing cunnilingus on KC. RC's evidence that K was a baby at the time of the events which she described and the other many differences in what KC and RC described, did not reasonably leave open the possibility that RC was a witness to the charged incident involving KC. 136 The evidence may have allowed for the possibility that there had been three incidents involving KC, another possibility to which his Honour averted in passing. That is, one incident observed by RC, about which KC gave no evidence, and two incidents about which KC gave evidence and RC did not, she being asleep during one incident, that being the charged incident and not present some years earlier when the first uncharged incident had occurred. That was, however, not the Crown's case. 137 Whether there had been one or two uncharged incidents was undoubtedly, a matter which could have been left to the jury, but a suggestion that RC had given evidence of the charged incident was not open, nor was it the case advanced by the prosecutor. His Honour's departure from the Crown case was uninvited, unexplained and contradicted his earlier directions. In the circumstances, this undoubtedly resulted in the appellant being deprived of a fair trial, given those difficulties were exacerbated by his Honour's refusal to give an unequivocal warning that KC's evidence needed to be approached with some caution in the circumstances. 138 In Murray, Lee J considered the circumstances where the jury should be warned that the evidence of an uncorroborated witness must be scrutinised with care, in order that a miscarriage of justice be avoided. His Honour said at 19:

"Section 405C(2) has brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone. That, of course, does not mean that a judge cannot 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, nor does it preclude the judge from making such observations as he considers ought to be made about the credibility of the complainant's evidence, but always with the proviso, of course, that he must make it clear to the jury that those are his opinions and that the weight to be given to the testimony of the woman is entirely a matter for the jury. The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405 C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury 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. In all cases of serious crime it is customary for judges 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; but a direction of that kind does not of itself imply that the witness' evidence is unreliable.

There will be cases where the failure to bring home to the jury the position of the uncorroborated witness will undoubtedly lead to the verdict being set aside but that is a different matter altogether from requiring a direction that it is unsafe to act on the uncorroborated evidence of the complainant in a sex case." 139 The difficulty with the final directions which his Honour gave in this case, was that they did not remove his Honour's suggestion that the incident which RC had described, when the son M was present, was the subject of the charge, a suggestion which did not fairly arise on the evidence and which was not a part of the prosecution case. It also did not clarify whether or not the jury had to be satisfied beyond reasonable doubt as to RC's evidence about what she had seen in relation to KC. Nor did it give an adequate warning in relation to KC's evidence about the charge, which was on any fair view of the evidence uncorroborated and had been challenged as to its reliability. 140 Those difficulties were revealed by the Crown's submission on appeal that the incident described by RC 'must be the same incident as the context evidence incident described by KC' and that KC's evidence showed that she was confused as to the timing of that second incident. It was argued that the state of the evidence suggested that all of what KC had described had occurred on the one occasion. That was open to the jury and if it had come to that conclusion, RC's evidence was available to support that there was inappropriate dealing with KC at about the same time that KC was sexually assaulted. RC's evidence did not provide direct support for KC's evidence that cunnilingus had occurred, but it did support that the appellant was present while KC had no clothing on her lower body and that the appellant was looking at her vagina. 141 Those submissions in my view also confirmed that an inadequate Murray direction was given in relation to KC. When she was recalled, KC was firm in her explanation in further cross examination of why she believed that the uncharged incident had occurred first in time, when she was 6 or 7, not when she was 10 or 11. Confusion as to timing of the uncharged incident only arose by the introduction of RC's recently revealed recollection of other uncharged acts. There was no cogent evidence that RC had witnessed the events which were the subject of the charge. His Honour fell into error when he departed from his initial direction, that RC's evidence related to the uncharged incident involving KC, contrary to the case which the prosecutor had put to the jury and the earlier part of his summing up and his refusal to give further directions to deal with the difficulties created by the contradictory directions which he had given. 142 The result was that the directions given may have led the jury to a number of misunderstandings. The jury's attention was not drawn to the fact that KC's evidence about the charge was uncorroborated and it was wrongly directed that her evidence only had to be scrutinised with care, if RC's evidence was rejected. 143 In Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162 the High Court observed at [19] that the common law permits a person to be convicted on the uncorroborated evidence of a single witness and requires that a problem of unreliability be addressed by the giving of a warning 'whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. Gleeson CJ discussed the obligation of a trial judge to frame clear, intelligible and fair directions for a jury in summing up (at [23]). At [25] the particular features of the case there under consideration, which demanded that a suitable warning be given, were considered. Similar facts were present in this case. They included the complainant's age at the time of the alleged offence; the long time which had elapsed before complaint, which had made a medical examination impossible; the inconsistency of aspects of the evidence; the absence of any discussion; the maintenance of a subsequent harmonious relationship and a history which indicated a degree of suggestibility. When taken together with the absence of corroboration, justice was found to have required the giving of a warning in that case. 144 In Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, the factors which the majority considered required that a warning be given were the delay in prosecution (of some 20 years); the nature of the allegations; the age of the complainant at the time of the events alleged in the two counts in the indictment; the alleged awakening of a sleeping child by indecent acts; and the absence of complaint either to the applicant or to the complainant's mother (see at 90). The majority concluded that it would have been proper for the trial judge to remind the jury of considerations relevant to the evaluation of the evidence, including that there may be "good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence" (at 91) and that the applicant had lost means of testing the complainant's allegations, which would have been open had there been no delay in prosecution. It was further observed at 91:

"Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) [Ante, pp 31-32, 42-44, 56-57, 71-72.] ) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient." 145 In Tully complaint had been made some two years after the alleged offences. The failure to give a Murray direction in relation to uncorroborated evidence was there not found to have resulted in a miscarriage. It was observed by Kirby J at [62] that:

'When a warning is required, it should be said loudly and clearly by this Court that it is not enough for the trial judge to tell the jury what defence counsel have said. Juries rightly regard counsel's addresses as partisan. They are entitled to look to the judge, himself or herself, to tell them the true issues for decision and to give them any warnings which the law requires, relevant to those issues.' 146 In this case, during the course of his summing up, his Honour departed from the view of the evidence which the prosecutor had advanced and which he initially accepted. Not only was the approach adopted confusing, it obscured that KC's evidence as to the charged incident was uncorroborated. 147 That was a particular difficulty in this case, because it involved a situation where the assault complained of occurred when KC was 10 or 11, but there had been no complaint made to the mother until age 18, after a memory was recovered in the flashback KC had described having at age 16 and no approach to the police until KC was 33 years old. This assault had occurred in a dark room when KC was woken from sleep. The warning which his Honour gave had to be related to the real issues requiring determination in the case, in the light of all of those difficulties (see Tully at [93] - [94]). The delay in the complaint being brought to trial was very considerable, explaining no doubt the difficulties with KC's initial recollection of when the uncharged incident had occurred, on her reckoning at an even younger age than the charged incident and how she later came to the firm view that it had occurred when she was 6 or 7. His Honour's approach to RC's evidence was confused and must have affected the jury's approach to what was relevant to be considered in relation to the charge concerning KC. That included the necessity to consider the reliability of KC's evidence, independently of any difficulty with RC's evidence. 148 While a Murray warning in relation to RC's evidence was clearly necessary, it was also apparent, if a miscarriage was to be avoided, that there should also have been a similar warning given in relation to KC's evidence. The purpose of such a warning is in order to ensure a fair trial. 149 The warning given in relation to KC's evidence was in the context of RC's evidence not being believed. His Honour's summing up was given over two days. On the second day, he addressed honesty and accuracy and returned to the recently revealed evidence given by RC, and the evidence which contradicted her accounts. The reliability of KC's evidence given the circumstances in which KC recovered her memory, in a flashback at age 16, the delay in approaching her mother until aged 18 and the further delay in approaching the police until aged 33, together with her explanation of why she delayed, were not given the same analysis. They were all matters which the jury had to consider in determining whether her evidence should be believed. The jury also had to consider KC's evidence that the charged incident occurred when she found the appellant in her room, when she woke from her sleep during the night when she was aged 10 or 11 years. These matters were not referred to in the direction given as to the reliability of KC's evidence. 150 In my view, the nature of the warning given in relation to RC's evidence, but not that of KC, when considered together with the other patent difficulties with the contradictory directions given in relation to RC's evidence concerning the acts involving KC, shows that there was a miscarriage. In DJV v R [2008] NSWCCA 272, by McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed), observed at [31] that: "31 Context evidence does not require a direction that it be proved beyond reasonable doubt. Where the evidence is of similar sexual misconduct but the jury are told it has only been admitted to explain aspects of the relationship and they may not use the evidence to reason toward guilt, the expectation that they will understand and remain faithful to the direction may not be on firm ground: see Kirby J in HML at [57]. To be told that the accused did the same thing on a number of other occasions but that you cannot use that evidence to reason that he did it on a particular occasion is contrary to ordinary human experience (see the discussion by Debelle J in R v M, RB [2007] SASC 207; (2007) 172 A Crim R 73 at [63] ff). The jury must be left in no doubt that they cannot follow that line of reasoning. The risk in a particular case of an impermissible course of reasoning by the jury which cannot be averted by directions must be a consideration when determining whether the evidence should be admitted." 151 Those observations underline the problems created by the contradictory directions given in this case. While RC's evidence about the uncharged acts she claimed to remember did not have to be proven beyond reasonable doubt, as his Honour directed at one stage, it was not evidence which the jury was entitled to deal with as evidence of the charged incident. The evidence of that offence was that given by KC. Given the directions in relation to RC's uncorroborated evidence of the essential elements of the offences with which the appellant was charged in relation to her, were erroneous in principle. Nevertheless, the same approach ought to have been adopted in relation to KC's uncorroborated evidence as to the essential elements of the offence involving her, if a fair trial was to be ensured. 152 In the light of all of these difficulties, it follows that the appeal must be upheld and a new trial ordered.

The sentence appeal 153 Given the conclusions I have reached in relation to the conviction appeal, it is unnecessary to consider the sentence imposed in relation to count 1. I turn then to the application for leave to appeal in relation to the sentence imposed for the assault of CB. 154 The challenge to the sentence on the assault charge presents a number of difficulties. If one puts to one side the charge of sexual assault on KC, in relation to which the conviction is to be quashed, and also puts aside the appellant's convictions in November 2009, and which had not occurred at the time the appellant was sentenced by Goldring DCJ, then there can be no doubt that the sentence his Honour imposed for the assault was manifestly excessive: The assault was the appellant's first recorded offence, one to which he pleaded guilty, and one that occurred at a time when he was suffering from mental problems. 155 On the other hand, the victim of the assault was the complainant in the offences for which the appellant was convicted and sentenced in late 2009 by Tupman DCJ and, so long as those convictions stand, the assault was arguably but one incident in a lengthy history of abuse of the victim CB. Such a conclusion would have a significant impact on whether one should conclude that the sentence for the assault was manifestly excessive and, if that conclusion was still to be drawn, what sentence should be imposed in lieu. 156 The Court was informed that the 2009 convictions before Tupman DCJ are the subject of another proposed appeal in which a Notice of Intention to Appeal has been filed. In the circumstances, it is clearly preferable that the Court that considers that appeal also deal with the challenge to the sentence for the assault of CB, rather than that this Court deal with it on what may be an entirely erroneous basis. This can be achieved by this Court refusing leave to appeal, so that the appellant may, if he wishes, institute a further appeal, or alternatively seek to amend his notice of appeal relating to those 2009 convictions. Such refusal is the course I would propose.

Variation of sentences imposed by Tupman J 157 Given the conclusions reached in relation to the current appeal, it is necessary to vary the commencing and concluding dates of the sentences imposed on the appellant by Tupman DCJ on other charges, and the non-parole periods incidental thereto and possibly to do the same in respect of the sentence imposed by Goldring DCJ on the assault charge. The Court is empowered to do so by s 59 of the Crimes (Sentencing Procedure) Act, 1999. 158 However, the determination of the appropriate adjustment is not without its difficulty. The sentences to which the Appellant is presently subject are as follows:-

(i) Sexual intercourse without consent with KC, a person under 16 years without consent - imprisonment for 5 years, including a non-parole period of 3 years, both such periods commencing on 16 June 2008.

(ii) Assault on CB - imprisonment for a period of 18 months, including a non-parole period of 9 months, both such periods commencing on 16 January 2011.

(iii) Aggravated indecent assault (under authority) - imprisonment for a fixed term of 12 months commencing on 16 October 2009.

(iv) Sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) - imprisonment for a fixed term of 3 years commencing on 16 October 2010.

(v) Committing an act of indecency towards a person under 16 years (under authority) - imprisonment for a fixed term of 12 months commencing on 16 October 2010.

(vi) Two counts of sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) - (on each count) imprisonment for a fixed term of 3 years commencing on 16 October 2011.

(vii) Two counts of attempted aggravated sexual intercourse without consent (under authority) - (on each count) imprisonment for a fixed term of 3 years commencing on 16 October 2012.

(viii) Sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) - imprisonment for a fixed term of 4 years commencing on 16 October 2012.

(ix) Common assault - imprisonment for a fixed term of 18 months commencing on 16 October 2013.

(x) Sexual intercourse without consent in circumstances of aggravation (under authority) - imprisonment for 10 years (including a non-parole period of 5 years) both such periods commencing on 16 October 2014. 159 Goldring DCJ thus made the non-parole part of the sentence for the assault offence concurrent with the non-parole part of the sentence for the sexual intercourse offence for 5 months and cumulative as to the extent of 4 months. However the effective operation of the sentence for the assault charge was nullified by the sentences imposed by Tupman DCJ for the offences I have referred to in paragraphs (iv) and (v) which were made concurrent with it. It is to be noted also that the sentence imposed by Tupman DCJ for the offence I have referred to in paragraph (iii) in fact ante-dates that imposed by Goldring DCJ for the simple assault offence and commences 16 months after the commencement of the first of the sentences imposed by his Honour. 160 The sentence imposed by Goldring DCJ for the offence the conviction for which is being quashed was 16 June 2008, a date that made allowance for pre-sentence custody for some 7 weeks immediately post arrest and 4 months between conviction for the sexual intercourse offence and sentence. Whether that pre-sentence custody was solely related to that offence is not apparent and thus it is not clear that the appellant should receive the benefit of that custody in any re-sentencing by this Court, the Court not having been apprised of the full history of the charges involving CB. Nor is it clear that he should not. 161 The situation is not entirely satisfactory, but having regard to the length of the incarceration the appellant is subject to in consequence of the orders of Tupman DCJ, in adjusting the sentences to which the appellant will remain subject after the quashing of his conviction on the first matter for which Goldring DCJ sentenced him, it seems to me that both of the matters to which I have just referred should be resolved in favour of the appellant. This Court should adopt as the date upon which the first of the adjusted sentences commences, the first date chosen by Goldring DCJ and allow the extent of the concurrency resulting from Tupman J's orders to remain.

Orders 162 The orders I would propose to reflect the conclusions reached on the substantive issues canvassed in this appeal and the consequent changes to the sentences just referred to are:- (For the purposes of identification of the sentences, there has been access to documents in the CCA file relating to the appeal from Tupman DCJ and to JusticeLink, from which the identification numbers set out below were obtained.)

(i) Grant leave to appeal and allow the appellant's appeal against his conviction on 1 August 2008 of having sexual intercourse with (KC) without consent;

(ii) Quash the conviction and the sentence imposed in consequence and order that there be a new trial;

(iii) Refuse leave to appeal against the sentence imposed by Goldring DCJ on 28 November 2008 in respect of a charge of assaulting (CB).

(iv) Vary the commencing dates of the sentences (and non-parole periods) imposed on 6 November 2009 by Tupman DCJ for the following offences as follows:- (a) 2007/00016340-036 - Aggravated indecent assault (under authority) - imprisonment for a fixed term of 12 months - from 16 October 2009 to 16 June 2008. (b) 2007/00016340-038 - Sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) - imprisonment for a fixed term of 3 years - from 16 October 2010 to 16 June 2009. (c) 2007/00016340-005 - Committing an act of indecency towards a person under 16 years (under authority) - imprisonment for a fixed term of 12 months - from 16 October 2010 to 16 June 2009. (d) 2007/00016340-039-2007/00016340-040 - Two counts of sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) - (on each count) imprisonment for a fixed term of 3 years - from 16 October 2011 to 16 June 2010. (e) 2007/00016340-041-2007/00016340-042 - Two counts of attempted aggravated sexual intercourse without consent (under authority) - (on each count) imprisonment for a fixed term of 3 years - from 16 October 2012 to 16 June 2011. (f) 2007/00016340-043 - Sexual intercourse with a person aged between 10 and 16 years in circumstances of aggravation (under authority) - imprisonment for a fixed term of 4 years - from 16 October 2012 to 16 June 2011. (g) 2007/00016340-016 - Common assault - imprisonment for a fixed term of 18 months - from 16 October 2013 to 16 June 2012. (h) 2007/00016340-019 - Sexual intercourse without consent in circumstances of aggravation (under authority) - imprisonment for 10 years (including a non-parole period of 5 years) - from 16 October 2014 to 16 June 2013.

23/06/2011 - Restricted Judgment now made 'Public' - Paragraph(s) Coversheet amendment - Restricted Judgment now made 'Public'

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.