Healey v Regina

Court of Criminal Appeal (NSW)|2006-02-27|Before: McClellan CJ, Rothman J, Smart AJ, Dr P, Clellan CJ

For the reasons given by Heydon JA in JBV leave to rely on this ground should be given. The ground should be upheld.

For the reasons given earlier this case is not one for the application of the proviso.

Appeal Ground 5 reads : "The … judge erred by failing to direct the jury that they needed to be satisfied that uncharged criminal conduct occurred before they could use evidence of the conduct against the appellant."

The Crown led two instances of uncharged sexual misconduct by the appellant on M. The first was alleged to have occurred in the same undercover car park as before on the occasion of M's second visit to the appellant's unit. M alleged that they sat in the car talking for about 5 or 10 minutes and the appellant performed oral sex on him in the car.

The second uncharged act of fellatio allegedly occurred about a week later. He had his test and a remedial lesson. He returned to the appellant who did "another CT scan". M said he was made to strip down to his underwear and the appellant performed oral sex.

The judge told the jury that evidence had been given of offences for which there was no charge on the indictment. The judge explained that evidence had been given in respect of these other acts simply to put the whole of the relationship between the appellant and M into a framework. The judge gave rhe jury these directions: "Now, it would be wrong for you, and you must not, for example, come to a conclusion that one of the uncharged acts did occur, and argue from that that therefore all the other acts must have occurred. You are not permitted to argue to yourselves in that way. That evidence is solely there to explain the circumstances in which [M] and Mr Healey were in that situation. You also cannot use that evidence as establishing some likelihood on the part of the accused to commit the offences for which he has been charged, because you have to be satisfied beyond reasonable doubt that the charged offences have been committed. You are not there determining a likelihood of them being committed. You have to be satisfied beyond reasonable doubt that they were committed. So that you cannot look at those other matters to establish, or as helping you to establish beyond reasonable doubt that the charged matters occurred. That is, again, a direction of law that I am to give in cases where that sort of situation occurs, because the defence would argue to you that when you look at the matters that were charged in these other matters that they create a doubt that any offences were committed rather than the opposite. Again, you have heard that argument and that is entirely a matter for you."

The appellant complained that the judge omitted to direct the jury that they could only use evidence of criminal acts against the appellant if they were first satisfied that the acts occurred. Reliance was placed on this passage from R v Vonarx, unreported, VSCA 15 November 1995 at 12-13 per Winneke P, Callaway JA and Southwell AJA: "[W]here evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting."

The initial words of the quoted direction assume that the jury has come to the conclusion that one of the uncharged acts did occur. Perhaps they also assume that the jury will decide whether the uncharged acts did occur. However, this is very indirect. The jury was not told with reasonable clarity that they could only use the uncharged acts by way of relationship evidence if they were satisfied that they had occurred.

I am not sure what was meant by the latter part of the direction, namely : "Because the defence would argue to you that when you look at the matters that were charged in these other matters that they create a doubt that any offences were committed rather than the opposite. Again you have heard that argument and that is entirely a matter for you."

The appellant was relying on the errors made by M as to the car park and it being under 170 Phillip Street to cast serious doubt upon M's evidence as to the alleged incident in the car and on the whole of his evidence. The clause "rather than the opposite" suggests the use of the evidence as substantiating the commission of the offences. That is going further than using the evidence as relationship evidence. Such an approach is confirmed by the following sentence, that that argument is entirely a matter for the jury.

While the language used may have been less than ideal, the jury probably proceeded on the basis that the appellant was relying on M's evidence as to intercourse in a car in a car park which did not exist as casting serious doubt on M's evidence as to that incident and the whole of his evidence.

The Crown contended that the directions given by the judge as to the uses the jury may and may not make of the uncharged sexual acts were correct. That was not the appellant's complaint. His complaint was that the judge did not tell the jury that before they could use the evidence of any of the uncharged acts as relationship evidence, they had to be satisfied that such acts had occurred. As earlier mentioned, the jury was not told this with reasonable clarity.

The Crown contended that leave should not be granted to raise this point. It could have easily been accommodated if it had been raised at the end of the summing-up. On the other hand, the jury has been told as to the use they could make of evidence of uncharged acts of sexual assaults without being told that they have to be satisfied that they occurred. There is a real basis for doubting whether they did occur. There has been a miscarriage of justice. I would grant the appellant leave to rely on that ground and uphold it.

Appeal Ground 6 reads: "The … judge erred by (a) suggesting to the jury that their determination would involve accepting 'one version as opposed to the other'; and (b) failing to direct the jury that they did not have to believe that the appellant was telling the truth before he was entitled to be acquitted."

The judge, after directing the jury that where you have a situation where one person says one thing and that is denied by another, both as a matter of common sense and of law, you would have to scrutinise very carefully the evidence of the complainant before you could be satisfied beyond reasonable doubt that you would accept that evidence and rely upon it (the Murray direction) continued (SU9.3-9.6): "The reliability and the credibility of a witness are matters for you to determine, not for me to determine, and as I said at the very beginning of my summing-up to you, these are directions that I am required to give you in cases like this. They are not to be considered by you as indicating any view that I have about the complainant. (But, obviously, it is a matter of commonsense, if you were dealing with something outside the court room where someone said one thing and another person said something completely different, that you'd have to exercise great caution in determining to accept one version as opposed to the other.) The Crown has to prove the case to you beyond reasonable doubt, remember that at all times."
The appellant submitted that the italicised passage was intended to guide the jury in their resolution of the conflicting versions of M and the appellant. Reliance was placed on the judgment of Wood CJ at CL in R v PAH unrep. NSWCCA, 18 December 1998: "It is important to ensure that the jury understands that it is not a question of making a choice between the evidence of the principal witness called by the Crown and that of the accused. It will generally be advisable, particularly when the accused has given evidence, to advise the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt, notwithstanding the denial by the accused, and that they do not have to believe that he was telling the truth before he is entitled to be acquitted,"

The appellant submitted that the italicised passage suggested to the jury that their task was essentially one of deciding which of the two competing versions they accepted and that this suggested error and the attendant risk of miscarriage were compounded by the judge not telling the jury that it was not necessary that they believe that the appellant was telling the truth before he was entitled to be acquitted. It was further submitted that the reference in the italicised passage to "accepting one version as opposed to the other" made it necessary to give the direction to ensure that the jury did not reason in an impermissible way towards guilt.

I am unable to accept these arguments. Immediately after the italicised passage the judge reminded the jury that the Crown had to prove the case beyond reasonable doubt. In the course of the Murray direction the jury was reminded of the need for them to be satisfied beyond reasonable doubt of the truth of the complainant's evidence. The italicised sentence must be read in the context of the whole summing-up. At an early point in the summing-up (p5) the judge stressed that the evidence must be sufficient to satisfy the jury beyond reasonable doubt of each of the elements of each of the offences. The judge reminded the jury that an accused person does not have any responsibility or obligation to prove or disprove anything (P5). The jury were warned that it would be dangerous to convict on M's evidence alone. On two occasions the judge told the jury that merely because the accused gave evidence that did not mean that he had to prove or disprove anything.

Sometime later in the summing-up the judge instructed the jury that before they could accept M's evidence as establishing beyond reasonable doubt that these offences have been committed they would have to be satisfied beyond reasonable doubt that M was reliable, accurate, consistent and telling the truth. That involved rejecting the evidence of the appellant that the offences did not occur.

When the summing-up is taken as a whole the jury would have understood that they had to be satisfied beyond reasonable doubt of the accuracy, reliability, consistency and truthfulness of M's evidence before they could convict.

I would refuse the appellant leave to rely on Ground 6.

Appeal Ground 7 reads: "The … judge erred by failing to direct the jury that rejection of the complainant's motive to lie does not mean that the complainant is necessarily telling the truth."

M admitted in cross-examination that both he and his de facto wife had virtually no assets. They had a car each, that was all. M had been unemployed for over 12 years and on a disability support pension for 2½ years. He was granted that pension because of the child abuse he had suffered.

M agreed that he told the police that he thought that the appellant was a doctor.

M was cross-examined about evidence he gave in the committal proceedings as to making enquiries about applying for compensation for the psychological trauma or problems suffered as a result of the appellant's conduct. Initially he said that he had made no enquiries. When pressed he said he had only made enquiries in the last two years. (That may have been a slip for two days). On being further pressed he said that he had made enquiries about getting compensation two days ago. Then M added, "I had to come down for my committal hearing and while I was at my committal hearing I had to fill my VCT claim out, I was made to by the solicitor and while I was there he said to me about this case. I did not mention it to him, he asked me, he wanted to see the whole lot." M said it was when he came to Sydney (from Queensland). He said that he did not enquire about compensation but was told about it. He agreed that he did say in the Local Court that he had made enquiries about getting compensation. M explained that the enquiry was virtually a recommendation and that he didn't ask anyone. It was M's contention that he was told by a solicitor about the legitimacy of compensation and that he was not looking to make money out of what had happened to him. He agreed that the incidents were very traumatic and that it was very hard to forget about them. My reading of the cross-examination is that M was struggling to handle it

In her closing address the Crown Prosecutor said: "There is also the suggestion that's been made and will be made to you again, and in my submission it's a misleading suggestion that [M] is making this whole thing up for the purpose of financial gain. You will remember that he was cross-examined about victim compensation payments and that it was put to him that he was doing all of this so that he could claim victim's compensation. [M's] evidence is that he was first made aware of victim's compensation for victims of sexual assault long after he had given his statement to the police, and again long after he had told his wife. He said that it was only when he came to Sydney for the committal hearing in this trial that he was provided with information of victim's compensation by the DPP and another solicitor gave him some advice about that and this is, in my submission, a weak effort by the defence, by the accused, to explain away these allegations." (TT, 8.12.04, 12.8 ff)

Counsel for the appellant closed his address on this aspect of the evidence. After reading some of the evidence counsel continued: "Now members of the jury my submission to you is that [the complainant] must have known when he gave his evidence in the Local Court that he'd made, himself, inquiries about some form of financial compensation because it was only two days before he had given the evidence. It's impossible that he couldn't have remembered that or had forgotten it. The only conclusion that you could come to members of the jury about that issue, about what he said about making inquiries about compensation, is that he lied under oath. Forget about whether his motives for coming forward with his allegations is indeed to claim any form of financial compensation. He lied about it under oath in the Local Court. He agreed in this trial that he's got no money, investment, or assets, nor does his wife, and that he thought the accused was a doctor, which is wrong. So members of the jury that is all I wish to say to you about the defence case …" (TT 8.12.04, 27.39 ff)

The appellant submitted that in view of the cross-examination of the complainant and the competing arguments put to the jury, the issue of he complainant's motive to lie assumed prominence in the trial. The Crown Prosecutor referred to the misleading suggestion that M was "making this whole thing up for the purpose of financial gain" and described this suggestion as "a weak effort by the accused to explain away the allegations." On the other hand the appellant contended that M had lied under oath in his evidence in the Local Court when he denied he had made enquiries about compensation.

It was not put to the jury in his final address by counsel for the appellant that M had made the complaint and caused the proceedings to be brought, and lied in support of them for the purpose of financial gain. What was put was that M lied under oath in the Local Court about making enquiries about compensation. That falls far short of saying that the proceedings had been brought to obtain compensation and that he had lied in support of such a claim. I put to one side that the jury may well have accepted M's explanation. The jury may also have thought that M had not lied to them.

The appellant submitted that the judge erred in not directing the jury that, if they rejected the defence suggestion that M had a motive to lie, that would not mean that M was necessarily telling the truth: R v Ulhrig (unrep, NSWCCA 24 October 1996). The appellant contended that the failure to so direct created a tangible possibility the jury might consider that there had been a reversal of the onus of proof in relation to the existence of a motive to lie and that the way in which this issue was left to the jury caused the trial to miscarry.

Having regard to the terms of the summing-up and its emphasis upon the Crown having to prove its case beyond reasonable doubt and the various warnings which were given there was no reasonable possibility that the jury might consider that there had been a reversal of the onus of proof in relation to the existence of a motive to lie. Nor was there any reasonable possibility of the trial miscarrying on that account.

The judge told the jury that the onus of proving the case beyond reasonable doubt rests with the Crown throughout the whole of the proceedings and that it has to prove each of the ingredients of the offences charged to that standard (SU5). The judge also told the jury to bear in mind that an accused does not have any responsibility or obligation to prove or disprove anything. The judge made a similar observation when he said: "But I just remind you once again that merely because he came into the witness box and gave evidence, does not mean that he is under any obligation to prove or disprove anything in regard to this trial and the allegations made against him … The Crown has the obligation of proving the case from the very beginning to the very end of the trial."

The question of whether M told lies as to making compensation enquiries before the Local Court was not of major importance. What became of greater importance were the periods M and the appellant were alone in the lab room and alone in the clinic and how M became familiar with the location, features and inside of the appellant's unit and the details of his car. M denied that the Bondi Junction meeting occurred.

In the circumstances of the present case, the suggested direction was not necessary. As the ground has no prospect of succeeding I would refuse leave to raise this ground. It is unnecessary for me to consider the proviso although the Crown relied on it as a matter of last resort.

Appeal Ground 8 reads: "The … trial judge erred by giving an inadequate Crofts direction."
The judge gave this direction "… the fact that there has been a delay in making a complaint, as there has in this particular case, does not necessarily indicate that the offence, that allegation as to the commission of these offences, is not true. There may be many reasons why a person does not complain about something immediately or shortly after it occurs, and you have heard the explanation given in this case. It is a matter for you to determine whether or not that explanation is reasonable and believable. You have been urged to consider the situation of the complainant at the time these things were happening. A young boy, thirteen, fourteen, suffering a degree of psychological disturbance, and in the circumstances that he found himself at the time, where shortly after his time at the clinic he went to Magnetic Island with his mother, and has remained there ever since, in effect."

At the close of the summing-up the Crown Prosecutor asked the judge for a Crofts' direction and summarised it. The judge agreed and said to the jury: …you remember what I said about the question of complaint, that delay in complaint does not necessarily indicate that the allegation that the offence has been committed is not true, and there may be many reasons why persons do not complain, but you can also use the absence of complaint at an earlier time than was in fact the case as something going towards the credibility of the complainant, but bearing in mind that there may be good reasons why people do not complain. And you have heard the reasons given by the complainant, and one of the things that of course you would bear in mind in that regard is that at the time of these allegations the complainant was not an adult, so that how a child might react to situations like that as to whether or not they might complain, may be different as to how an adult should react"

The appellant complains that the trial judge repeated the direction about the explicable delay in complaint both before and after the Crofts' direction and that the Crof'ts' direction was entirely subsumed by the judge's remarks about why a delay in complaint was understandable. The appellant submitted that the judge in effect "sterilised" the complaint against critical comment on the issue of delay in complaint and that the imbalance which arose constituted error.

As to r4 it was submitted that after the judge had given the further direction, any request by the appellant's counsel for a further re-direction would have entailed a risk of adding to the imbalance, the subject of this ground. It was the Crown Prosecutor who drew the judge's attention to the need for a Crofts' direction. Counsel for the appellant could have sought to have the judge correct the balance.

It is not suggested that the further direction (the Crofts' direction) which was given was in its terms incorrect. The complaint is as to a lack of balance.

The effect of the judge's direction was to emphasise that M had a good explanation for the delay in complaint and that while the jury was entitled to use the absence of earlier complaint as bearing on the credibility of M, the jury should bear in mind that M had a good explanation. While the judge gave the jury a strong pointer as to the approach they should take, ultimately he left the matter to the jury to decide. Unfortunately for the appellant the facts which emerged in evidence pointed to M having a good explanation for the delay.

While greater emphasis was given to the explanation for the delay than the delay itself, I do not think that the directions exceeded the permissible bounds. The jury was made fully aware of the delay. While the issue of delay in complaint was one of the issues relied upon by the appellant, the issues relating to the conduct and opportunities of the appellant at the clinic were at the centre of this trial.

I would refuse leave to rely on Ground 8. I am not persuaded that there was a miscarriage of justice on this Ground.

Appeal Ground 9 reads: "The … judge erred by failing to direct the jury that they should disregard evidence and arguments concerning the 'inappropriateness' of the appellant's conduct."

The appellant submitted that the Crown Prosecutor cross-examined the appellant at length and repetitively about what was described by the Crown Prosecutor as "his inappropriate conduct". As earlier mentioned she attacked him for not investigating why M was in the Mall at Bondi Junction and reporting this to his colleagues and M's mother, taking M to his unit, forming a friendship with M and failing in the discharge of his professional duties.

The appellant complained that the Crown Prosecutor's questions sought to emphasise that in forming a friendship with M, the appellant had acted unethically and had perpetrated an abuse of trust. It was submitted that the questions were highly objectionable on the basis of relevance and unfair prejudice to the appellant and that the questions sought to raise the bad character of the appellant (even though he did not adduce evidence of character) and pronounce moral condemnation upon him. No objection was taken to the cross-examination.

The appellant complained that the Crown Prosecutor had reiterated the evidence in her address and elaborated upon it (as later quoted).

The appellant submitted that once the Crown Prosecutor returned to the issue in her address, it was necessary for the judge to direct the jury not to have regard to such evidence and submissions and remind the jury that the appellant was not on trial for professional misconduct. Not doing so, it was submitted, created an appreciable risk that the jurors were deflected from their proper task by irrelevant and prejudicial material.

The Crown submitted that it was entitled to rely upon the body of evidence in question as it revealed the nature of the relationship between M and the appellant. The Crown submitted that the evidence was properly admitted and that it was entitled to rely upon and make reference to that evidence in closing address. Reliance was placed upon the remarks of McClellan CJ at CL in Qualtieri v R [2006] NSWCCA 95 esp at [80].

I agree that evidence showing the relationship between the appellant and M was admissible. It is one thing to adduce whether in chief or in cross-examination evidence showing the relationship between them. It is another matter to cross-examine the appellant to the effect that he has failed seriously in his professional duty by (a) failing to question M about why he was not at school and not reporting his meeting at Bondi Junction to M's mother and the appellant's colleagues at the clinic, (b) forming a friendship with M and (c) taking a 14 year old patient back to his unit and not realising this lacked propriety and wisdom.

It was not unfairly prejudicial to elicit the prime facts of the meeting at Bondi Junction and the trip to his unit, and the friendship which formed. However, the cross-examination went further in seeking to establish and obtain admissions that the appellant had seriously failed in his professional duty in the respects mentioned.

While no objection could correctly be taken to the questions eliciting primary facts showing the relationship between the appellant and M, objection was not taken by the appellant's trial counsel to questions suggesting serious failure of professional duty.

In her final address the Crown Prosecutor said to the jury that on the appellant's version of events of the Bondi meeting, the trip back to the appellant's unit for the Eurythmics tape and the subsequent trip to M's home, she had put to the appellant that what he was doing was highly inappropriate given that M was probably 14 years old, a disturbed child who was a patient at the clinic where the appellant was a nurse and that the appellant had disagreed that it was inappropriate. The Crown Prosecutor continued: "Members of the jury using your experience and your common sense, it was and is highly inappropriate behaviour by the accused [to take the complainant back to his home] and his refusal to acknowledge that undermines his evidence considerably. You will note that he didn't tell [the complainant's] mother about this trip to his home and he didn't tell his colleagues either, although he refused to agree with me when I suggested that that was because they would not have approved of him taking this child back to his unit." (TT, 8.12.04, 16.58-1717)

Trial counsel for the appellant did not raise any objection or ask the judge for any direction. This matter was not addressed in his closing speech, counsel concentrating on weaknesses in the Crown case and particularly in M's evidence.

The now challenged evidence having been admitted without objection, no objection being raised to the closing speech of the Crown Prosecutor nor any direction sought, it is too late for these matters to be raised. If timely objections had been taken the problems could have been cured. The appellant's strategy at the trial was to focus on what were believed to be the weaknesses in the Crown case.

The jury would not have thought that they were dealing with a case of professional misconduct and they were clearly directed as to what the Crown had to prove before they could convict the appellant. The unfairly prejudicial portions of cross-examination and of the prosecutor's address to which I have referred would, to put it mildly, not have helped the appellant when the jury were assessing his credit and considering his evidence.

I return to Ground 1, namely that the verdicts are unreasonable and cannot be supported having regard to the evidence for reasons, which I summarise and comment upon, namely: (1) The sexual assaults could not have happened. M's evidence and the Crown case was that each of the three assaults the subjects of Counts 1, 2 and 4 respectively occurred during a neurological test. The clinical records from Serfontein Clinic revealed that only one such test was conducted and that was on M's first visit on 20 January 1987. According to Mrs Serfontein the clinical records with respect to M were complete. M confirmed that there was no sexual contact as between himself and the appellant on his first visit to the clinic. The clinical records were in accordance with the Serfontein Clinic's testing protocol which involved testing patients never more frequently than once every six months. Mrs Serfontein said that patients were never tested once or twice per week. In cross-examination M initially disagreed that he was only scan tested on one occasion. This evidence followed: "Q: I suggest to you sir that the only time that you were ever subjected to a scan or neurological test at the Clinic was on 20 January 1987? A: Yep

Q: Do you agree with that? A: Yes

Q: You do? A: Well, if you're saying that it's in the statement I'd have to agree with that.

Q: I suggest to you sir that that was the first date upon which you ever attended the Clinic, that is 20 January 1987. A: Yep

Q: I suggest to you sir that it's inconceivable that you would have been tested twice or even once per week with the scan tests? A. I don't know." Comment M seems to be proceeding on the basis that if 'the statement' said he was only tested once that must be so. The burden of his evidence was that there were many apparent tests. The clinic had a record of one test, that is on 20 January 1987. That does not mean that M sat in the testing chair, the cap placed on his head and the strap around his chest but once. It does not exclude fake or simulated tests nor tests of which no record was kept. This does not exclude the appellant sucking M's penis after having M strip to his underwear and occupy the chair. Having regard to the clinic protocols, records of more than one test would not be expected. It was not unreasonable for M to accept what the clinic's records showed. (2) The complainant gave contrary versions as to when Counts 1 and 2 occurred. M's evidence at trial was that the offence the subject of Count 1 occurred on his second visit to the clinic (T1611, T17.06). When M complained to his de facto wife he told her nothing happened during his second visit (T87.53 and following). M gave evidence of attending the clinic on seven occasions. He gave this evidence: "Q: … I am suggesting to you that you told your spouse that nothing happened to you at all of a sexual nature on the second occasion that you attended the Serfontein clinic? A I don't recall

Q: You told her that the first time that anything of a sexual nature happened between yourself and Chris [the appellant] was at the clinic after your fourth visit? A: No I don't recall." In his evidence in chief (T22.40) M said that the incident and offence the subject of Count 2 occurred on his fourth visit to the clinic. That evidence was in accordance with what M had told the police in his police statement. (T41.21). That was the second time he was sexually assaulted. When M gave evidence at the committal proceedings (T41.56-T42.27) he said that no sexual act took place on the fourth visit. He was offered by the appellant and took a sum of cash ($50-$100) and cannabis. At T42.40 of the trial M gave this evidence: "Q: So you weren't sexually assaulted at the clinic on your fourth visit at all were you? A: Well - says in my statement I mustn't have been." Comment : The jury must have been satisfied that each act of fellatio alleged occurred. They may not have thought that it was important to identify with precision on which visit the sexual assaults occurred. The appellant did not dispute that M made a number of visits to the clinic between 20 January 1987 and July 1987. M's evidence of three sexual assaults was cogent. He went into the lab room, stripped to his underwear at the appellant's request, underwent preparations for the purported test and after the preparations and in the course of his time in the lab the appellant performed oral sex. This happened late in the afternoon, that is, about 5pm or later when most, if not all, the other staff at the clinic had left. The remedial teachers would not be concerned to enter the lab, the door to which could and would be shut. (3) The complainant gave evidence as to highly significant events occurring by reference to a car park that did not and has never existed. M said that at the end of his third visit to the clinic the appellant offered him a lift home and he accepted. M said that he and the appellant went down to the latter's car by lift. The car "seemed to be underneath the building of the Serfontein Clinic". He described the lighting in the car park as very dark and not very well lit and the appellant's car as a dark coloured Volvo. He gave evidence of travelling in the Volvo to the appellant's unit. M said that at the end of his fifth visit he was again offered and accepted a lift. Again they went down to the appellant's car in the same car park where the appellant performed an act of fellatio upon him. This act of intercourse was one of the two uncharged acts of intercourse. The first time M disclosed that allegation was to the Crown Prosecutor on 3 December 2004, the Friday before the trial commenced. When M told the Crown Prosecutor about that he said it occurred following the third (not fifth) visit to the clinic (T.75.23). It was common ground between the Crown and the appellant that there was no car park under the Law Society Building at 170 Phillip Street, Sydney. Comment : The appellant gave evidence that while he did not usually drive into the city he did on occasions and parked in the Domain car park. After such a long period a mistake as to the location of the car park is not of consequence. It was not part of the Crown case that the appellant took M to the Domain car park. 4. The complainant's evidence as to seeking compensation. M initially said at the trial that at no time prior to 6 December 2004 had he made any enquiries about applying for compensation for psychological trauma or problems that he alleged had been caused by the appellant. M said he had not attempted to get any compensation. He had received advice but had not made any enquiries personally. He referred to having filled out the VCT claim form through a solicitor. He was cross-examined about the evidence he gave in the Local Court and that has been summarised earlier, along with M's explanation. Comment: I do not agree that M's evidence as to seeking compensation should have caused the jury to look with real disfavour upon the complainant's credibility. It was apparent that he was trying to say a solicitor had advised him that he was entitled to compensation and that a solicitor had caused him to fill out a VCT claim form. He had been referred to that solicitor two days before the committal proceedings. The claim for compensation was not related back to the time when M made his statement to the police. M did not regard himself as the moving force for compensation or being motivated by a desire for compensation. 5. The delay in complaint The appellant submitted that there was no satisfactory explanation behind M's failure to make a prompt complaint, nor for the two year delay between telling his de facto wife and making a statement to the police. Comment: The materials show that when the offences are alleged to have occurred NM was a disadvantaged boy needing treatment. He also needed friendship. His family situation was unsettled and unsatisfactory and he did not want to add to his mother's difficulties. He had been in trouble in the past and did not want to get into further trouble. He tried to put the experiences behind him. Eventually he found a partner and started a new life having his own family. The TV programme triggered bitter memories and his partner sensed that something was wrong. He felt able to tell her. She was the only person he felt able to tell. Ultimately he went to the police, at least partly at the prompting of his partner. He also thought that it was time something was done about the matter. 6. The complainant's evidence as to the allegations is entirely uncorroborated. Comment : No detailed submissions were made in support of this ground but the point was made. This deficiency was drawn to the attention of the jury and the judge gave the jury the necessary warning.

I have paid close attention to each of the matters upon which the appellant has relied and the effect of them in combination. I have examined the whole of the evidence in detail.

The surrounding circumstances are not in doubt: (a) M attended at the clinic from 20 January 1987 to July 1987 on a number of occasions. (b) On occasions M and the appellant were the only persons present in the clinic after 5,00pm. On occasions the appellant was the last person to leave the clinic but generally the remedial teacher was the last person to leave. (c) M was a disadvantaged and disturbed boy with behavioural and learning problems needing treatment. He attended remedial classes. (d) The appellant and M formed a friendship, one unusual aspect of which was that on at least one occasion the appellant took M to the appellant's unit before driving him to his home at Haberfield. (e) The appellant spent most of his time at the clinic in the lab or testing room. That had a door which could be closed. (f) The opportunity existed for the commission of the alleged offences and there was an unusually close relationship between the appellant and M.

While there were aspects of the evidence of M which were fairly open to criticism, the core of his evidence as to the commission of acts of fellatio at the clinic was solid. Too much importance should not be attached to matters of secondary detail. What is important is cogent proof that the acts alleged happened rather than proof of the particular visit in a series of visits on which each assault occurred.

The chance Bondi Junction meeting and its aftermath deposed to by the appellant was remarkable and very hard to accept. The evidence of the appellant was not persuasive, although of course he does not have to prove anything.

My examination and assessment of the evidence has led me to the conclusion that upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the three offences it was considering. See M v The (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606. The appellant is not entitled to have a verdict entered on his behalf.

I return to the other grounds of appeal. I have held that the summing-up was deficient in a number of respects. It is not a case for the application of the proviso. While the Crown case was one of some strength there were weaknesses. The deficiencies in the summing-up were of consequence. Regrettably, there must be a new trial. I propose the following orders: 1. Appeal against conviction allowed. 2. That there be a new trial, at the discretion of the Director of Public Prosecutions at such time and place as may be directed by the District Court. **********

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CITATION: Healey v Regina [2006] NSWCCA 235

Crampton v The Queen (2000) 206 CLR 161 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 MFA v The Queen 2002 213 CLR 606 Qualtieri v R [2006] NSWCCA 95 R v Folli [2001] NSWCCA 531 CASES CITED: R v JBV [2002] NSWCCA 212 R v MDB [2002] NSWCCA 354 R v PAH (unrep) NSWCCA 18/12/98 R v Sukkar [2005]NSWCCA 54 R v Ulrig (unrep) NSWCCA 24/10/96 R v Vonarx unrep VSCA 15/11/95 Stokes v The Queen (1960) 105 CLR

There is a substantial body of authority that a summing-up must put the defence case fairly and adequately to the jury. The jury must be given an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. See Stokes v The Queen (1960) 105 CLR 279 at 284, R v Sukkar [2005] NSWCCA 54 at [93] and the cases there cited. Putting a defence case fairly and adequately does not require the summing-up to trawl through the evidence or an exhaustive reiteration or analysis of the entirety of the evidence.

The Crown accepted that in light of Mason P's observations in R v Folli [2001] NSWCCA 531 that when the judge gave the Longman warning it was inappropriate to have made reference to the possible difficulties created for the Crown by the delay. "Inappropriate" is a gentle word. In R v Folli (supra), Mason P (Sperling and McClellan JJ concurring) said: "[22] … There is a further difficulty with that passage in that it suggests that the Crown case was also entitled to be viewed sympathetically having regard to the problems of delay. The purpose and form of a Longman warning are directed at protecting the accused from being convicted otherwise than in circumstances of heightened jury scrutiny and caution."

The Crown further submitted that this Court should adopt the same approach as was adopted by Simpson J in R v MDB [2002] NSWCCA 354, namely: "40. On the authority of Folli it was imprudent for the judge in the present case to suggest to the jury, as he did in the last sentence of the first paragraph extracted above, that the delay, such as it was, may have affected the prosecution witnesses. It may have been taken as suggesting that the Crown, like the appellant, laboured under a disadvantage created by the delay and that, absent that delay, its case might have been stronger. Equally, however, it may have cast doubt upon the complainant's reliability. I am of the view that, to the extent that the single sentence constituted error, it was an error of no effect."

In R v JBV [2002] NSWCCA 212 at [14] Heydon JA said: "The trial judge referred to the impact on recollection of the passing of time, but he did not refer specifically to the fact that 'the recollection of events occurring in childhood '… is frequently erroneous and liable to distortion by reason of various factors' to use the words of McHugh J in Longman v The Queen … For that shortly stated reason the summing up was defective."

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