Evidence Act 1906 (WA), s 36B, s 36BA, s 36BC, s 36BD, s 107

Boonudnoon v The Queen [2002] WASCA 313

Galea v The Queen (1989) 1 WAR 450

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

R v Horan [1951] VicLawRp 32; [1951] VLR 249

R v Nalberski (1989) 44 A Crim R 434

R v Schmahl [1965] VicRp 95; [1965] VR 745

1 MURRAY J: I have had the advantage of reading in draft the reasons for decision to be delivered by McLure J. I am relieved of the need to do more than shortly express my views where I would differ from her Honour.

2 As to ground 1 and the question of cross-examination of the complainant during the process of pre-recording her evidence, leave was required under the Evidence Act 1906 (WA), s 36BC. I agree with McLure J when her Honour concludes that leave could not be granted under the section because the Court could not be satisfied that what was sought to be adduced would have substantial relevance to the facts in issue as raised by the offences charged in the indictment before the Court.

3 However, I would go further than her Honour and express the view that the material sought to be elicited to demonstrate confusion on the part of the complainant and inconsistencies in relation to allegations made against a third party, were relevant only to the applicant's credit and had no relevance at all, let alone substantial relevance, to the facts in issue in respect of the offences allegedly committed by the applicant. In my opinion, this Court expressed itself clearly on the point in Narkle v The Queen [2001] WASCA 31; (2001) 23 WAR 468, per Murray J with whom Kennedy and Pidgeon JJ agreed, a case applied again in this Court in Hoy & Ors v The Queen [2002] WASCA 275, by Miller J with whom Anderson J agreed, and expressly by Wheeler J at [13]. In my opinion also, for the reasons given by McLure J and for these additional reasons, ground 1 was not made out.

4 I can add nothing useful to her Honour's reasons in respect of grounds 2, 3, 4 and 6. None of those grounds succeeds, in my view.

5 It is in respect of ground 5, the complaint that the trial Judge failed to adequately put the defence case to the jury, that I differ from her Honour.

6 As to the principles applicable to the duty of a trial judge in putting the cases of the parties to the jury, I respectfully agree with her Honour. To the authorities she cites may be added the decision of this Court in Avis v The Queen [2002] WASCA 250, in which I made some observations on the topic, with which Malcolm CJ and Steytler J agreed. In that case I cited the observations of the majority of the High Court in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637 [41] - [42]. It is in this case useful to set out again what their Honours Gaudron ACJ, Gummow, Kirby and Hayne JJ had to say:

"...The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.

But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."

7 As I said in Avis, the starting point for a trial judge in this State is the Criminal Code (WA), s 638, which imposes upon a trial judge the duty "to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make". In Avis, at paragraph [33], I added:

"The fundamental task is to ensure a fair trial. That will involve not only instructing the jury about the law, but enabling them to understand how it is that the accused person may be guilty of the offence charged in the indictment or any alternative open upon that indictment and why it is that the accused asserts that his guilt has not been established beyond reasonable doubt. So far as the accused is concerned, it is the case he or she makes which the jury must be given to understand. If that may be done by reminding the jury of the arguments of counsel, then that will be a convenient process, but there is no authority for the proposition that the trial judge must again put to the jury the arguments of counsel, much less that he or she must do so as if they were propositions which appeal to the court."

8 In this case, in relation to the four offences committed upon the one occasion of which the applicant was convicted, his case was simplicity itself. The evidence given by the complainant has been summarised by McLure J. The applicant denied that any such incident occurred and defence counsel addressed at length in relation to the reasons why the complainant's evidence should not be accepted. Reference was made to the complainant's experience with other sexual matters. It was put that she was a liar who was, because of her sexual experience, able to fabricate a convincing story. Alternatively, it was suggested that she may have substituted the applicant for the true offender. She had been cross-examined at length about inconsistencies in the story she had given at different times. These were detailed by counsel at some length.

9 It was argued that there was a delay in complaint which was a significant reflection upon her credibility. Arguments were put in respect of the risk of discovery if the offences occurred in the circumstances detailed by the complainant. Then there was a reference to her attitude to the applicant when she apparently showed real affection for and reliance upon the applicant after the offences had allegedly been committed.

10 The trial Judge reviewed the complainant's evidence. It was, in my opinion, necessary that he should do so in view of the nature of the attack upon the credibility of the complainant which the defence had made. His Honour did not regurgitate all the various inconsistencies, but he mentioned that such inconsistencies reflected adversely upon the complainant's credibility.

11 I do not propose to refer in detail to the directions given by the trial Judge. In my opinion, where instruction was required to enable the jury to know how to approach particular pieces of evidence and the use to which they might be put, that instruction was given. I do not think this jury could have been under any misapprehension as to the basis upon which the applicant fought the case. The trial Judge did not leave it at the simple proposition that the applicant denied that any conduct of the kind described by the complainant had occurred, but it was not necessary for him to state again the criticisms which had been advanced of the complainant by defence counsel in his address to the jury.

12 Those matters were before the jury and it was for them to evaluate and weigh the complainant's evidence in the light of the criticisms which had been advanced by counsel. The argument presented in support of this ground carried the implication that a miscarriage of justice would occur unless the trial Judge gave equal time, so to speak, to a discussion of the arguments put by defence counsel as his Honour did to a review of the evidence of the complainant, which was, of course, of crucial importance to the jury in considering whether the Crown case had been proved beyond reasonable doubt.

13 It is no part of the function of a trial judge to repeat the arguments and submissions made by counsel, as if to give them the imprimatur of their adoption by the judge, unless there are particular parts of the evidence which require a warning by the trial judge or assistance of the trial judge if the jury are to have a proper understanding of dangers, difficulties and limitations inherent in the evidence, which understanding it is thought by the court the jury might not achieve unaided by the direction of the trial judge.

14 I would not uphold ground 5 and in my opinion this application for leave to appeal against conviction should be refused.

15 WHEELER J: I have had the advantage of reading in draft the reasons for decision to be published by both Murray and McLure JJ. Save as to grounds 1 and 5, I am in agreement with the reasons of McLure J, and have nothing to add to them.

16 So far as ground 1 is concerned, I agree with McLure J's conclusion that leave could not have been granted pursuant to s 36BC of the Evidence Act to cross-examine the complainant in the way sought by counsel for the applicant, since the court could not be satisfied that what was sought to be adduced would have had substantial relevance to the facts in issue. However, I would also agree with Murray J that the material upon which it was sought to cross-examine the complainant was relevant only to her credit, and was not a statement "relative to the subject matter" of the offences allegedly committed by the applicant. In my view, this Court's decision in Narkle v The Queen (2001) 23 WAR 268 is decisive of that issue.

17 So far as ground 5 is concerned, I observe that his Honour's obligation was to "put fairly" before the jury the case made by the accused. It was necessary therefore that his Honour remind the jury of the case which the applicant sought to make. It was not however necessary

that his Honour refer to, let alone endorse, each of the various points sought to be made on behalf of the applicant.

18 In relation to very many of the issues raised in the applicant's outline of submissions as being part of the "defence case" which his Honour ought to have put to the jury, it appears to me that they were either points of limited (if any) significance, or that they were matters clearly susceptible of more than one interpretation. If his Honour had put those matters in detail to the jury, it would in my view have been open to him to comment on the significance of those matters and on the competing possible interpretations. The choice open to his Honour was, it seems to me, one of putting the case of the applicant in relatively general terms, or of putting the case in detail, but in a way which might not necessarily have been seen as of assistance to the applicant.

19 In order to illustrate the observations I have just made, it is desirable for me to turn in a little more detail to the matters which it is said that his Honour should have put to the jury. The first matter referred to is the question of "lies" told by the complainant to officers from the Department of Family and Children's Services. As I understand it, the lie in question was one admitted by the complainant during the course of cross-examination. The lie was, that she had told the officers that there had only been two occasions on which the applicant had dealt with her in a sexual way, while in her evidence she asserted that there were more such occasions. She said that she had lied to the officers, by understating the number of such occasions, because she "just wanted to get on with my life". Although, of course, any previous inconsistent statement is, as his Honour pointed out to the jury, a matter which can go to the credit of a witness, one can readily see that this is not the type of inconsistency which was likely to be of great concern to a jury. Demonstrating that a complainant had on a previous occasion exaggerated or overstated incidents of sexual abuse would plainly have a significantly adverse effect on her credit; however, a tendency to minimise such matters, for whatever reason, would not necessarily have the same effect.

20 Tied in with the question of the false minimisation of prior incidents of abuse by the applicant, is the question of the attitude towards the applicant demonstrated by the complainant over a period of time. She was cross-examined at some length about opportunities which she had had to complain to a variety of persons about the applicant's behaviour. It was in evidence, and appears to have been pointed out to members of the jury during the course of the closing address by the applicant's counsel, that the complainant had on prior occasions complained of sexual abuse perpetrated by a number of persons, including her natural father. Notwithstanding that she had made complaints about others, she had not, on many occasions on which she had discussed those other matters, complained about the applicant. Particular issue is taken with his Honour's not directing the jury in relation to the evidence of a clinical psychologist, whose view it was that the complainant tended to idealise her relationship with the applicant.

21 Viewed in context, it seems to me that the evidence surrounding the complainant's failure to complain of the applicant's behaviour on occasions when she complained of others, and in particular her failure to complain to the clinical psychologist Ms Fraser, is readily explicable. Put very broadly, it is clear from the evidence that the applicant's childhood had been chaotic. Her mother had been an alcoholic and the applicant, who had lived with her mother for periods of time, had also been a very heavy drinker. Although the complainant suggested to Ms Fraser that both her mother and the applicant had looked after her and provided her with adequate food and got her to school on time, the departmental records suggested that it was really the case that the complainant had been looking after both herself and the adults in the household. Her discussions with Ms Fraser took place at a time when she was in foster care and when she very clearly longed to be reunited with her mother.

22 In my view, the picture which emerges from the whole of the evidence about the complainant's attitude to her mother and about what she was prepared to say about the applicant from time to time was that she was a girl who very much loved and wished to be with her mother, and who understood that disclosures which reflected adversely on her mother's care for her would not improve her chances of being reunited with her mother. One can well understand that she may have viewed the making of any adverse comment about the applicant as something which would reflect adversely on her mother's protection of her. It also seems that she may have viewed a reunion between her mother and the applicant (who at the time of the interview with Ms Fraser were living apart from each other) as presenting her with the best chance of being returned to what she regarded as her only family. If his Honour had commenced comment in any detail upon the complainant's various failures to complain of abuse by the applicant and upon her interaction with Ms Fraser, it seems to me that it would have been necessary to place those remarks in some sort of context by reminding the jury of the sorts of factors to which I have referred.

23 Finally, it is also suggested that his Honour should have told the jury that it was inherently improbable that certain of the offences would have occurred because of the significant risk of discovery. The risk obviously arises from the fact that in relation to certain of the counts the complainant's mother, the applicant and the complainant were all in one bed, while in relation to others they were in the complainant's bedroom which was near the room in which the mother was in bed. That risk, which in some cases may well be seen as significant, has to be seen against the background of the evidence about the habitual very heavy drinking by the complainant's mother, which one would expect to make her a heavier sleeper and generally less observant, the heavy drinking of the applicant, which might well have impaired his perceptions of risk, and the fact that on the complainant's version of events, even when she did directly tell her mother that the applicant had been "messing around" with her, her mother took no action.

24 I should also note that it was said that there were numerous inconsistencies in the complainant's evidence in that, for example, on some occasions she failed to mention touching or stroking which on other occasions she said had occurred during the course of particular incidents. Those variations as to matters of detail are not generally the subject of detailed observations by a trial Judge, unless there is something in the type or the pattern of inconsistencies which takes them outside the range of those which one would normally expect from any witness, and particularly from any young witness.

25 While his Honour did not put the detail of the matters to which I have referred above to the jury, and therefore was not required to consider the question of whether he should balance such observations with further observations of the type to which I have referred above, he did put to the jury central features of the applicant's case. He referred to the complainant's experience of sexual matters with others as a reason why she might be able to fabricate a convincing story. He referred to the suggestion that she may have substituted the applicant for the true offender. His Honour referred generally to inconsistencies in a manner which suggested that there might well be inconsistencies which the jury should consider with care, and referred them to counsel's address, which one assumes canvassed those matters in some detail. He discussed in some detail the delay in complaint and the way in which that might reflect upon credibility and also, of course, the disadvantage under which the applicant would labour because of that delay.

26 In my view, those were the central features of the applicant's case. It was not necessary, and may in the circumstances of this case have been positively undesirable, for his Honour to explore with the jury in any great detail the particular matters upon which the applicant now relies as being ones which should have been put in some detail by his Honour to the jury.

27 The only other observation I would make in relation to this ground of appeal is that the only submission made by defence counsel at the conclusion of his Honour's direction to the jury was:

"It's just I'm concerned that some crucial bits of the defence case - some inconsistencies weren't made apparent to the jury and I ask that that be done particularly in regard to - well, one in particular, in regard to when she admitted she lied to Family and Children's Services ... ".

Counsel went on to refer to that as a "major and crucial inconsistency". His Honour asked whether there was anything else in relation to which counsel sought a redirection and received the answer "No sir". It is consistent with the view which I take of his Honour's direction to the jury, that there was only one omission which was of concern to counsel who conducted the trial on behalf of the applicant. In relation to that matter, while it appeared to be of some significance to counsel, I cannot for myself think that it was such a crucial matter that his Honour was obliged to refer specifically to it.

29 MCLURE J: This is an application for leave to appeal against conviction. The applicant was convicted after a trial in the District Court at Bunbury before his Hon Judge Blaxell and a jury on an indictment charging four counts of indecently dealing with a child under the age of 13 years, and three counts of sexual penetration of that child.

30 The jury convicted the applicant of two counts of sexually penetrating the child and two counts of indecently dealing with her. Each of the four offences of which he was convicted arose out of events on one night.

32 The complainant was born on 6 October 1985 and thus was under the age of 13 years when all of the offences were alleged to have been committed. The complainant was 16 years old at the time of testifying.

33 The complainant's evidence was pre-recorded and later played to the jury at the trial. Prior to the complainant commencing her evidence, the presiding Judge made a number of rulings concerning the nature and extent of the cross-examination of the complainant to be permitted under s 36BC of the Evidence Act 1906 (WA) ("Evidence Act").

34 The complainant's mother, Patricia Clinch, was deceased at the time of trial. At one stage the complainant believed her father to be one Huey Phillips, but at the material time the applicant, who was her mother's partner, was in loco parentis. It is unnecessary to refer to the details of the counts of which the applicant was found not guilty for the disposition of this appeal. Counts 3, 4, 5 and 6 relate to a course of conduct on one night while the family lived in Collie.

35 The complainant's evidence was to the effect that she recalled that her mother and the applicant were talking about there being a ghost in the house which frightened her. She lay down in their bed between them. After her mother fell asleep, the applicant put his hand under the doona and into the complainant's pants. He first put his hand on her genitals and rubbed her (count 3). He then put his finger into her vagina and "wiggled it around" (count 4). The applicant instructed the complainant to go to her bedroom and he followed her there. Once in the room he pulled his pants down to his knees and instructed the girl to put her hand on his penis, which she did (count 5). He then lay alongside her in her bed, got on top of her and pulled her pants down, and penetrated her vagina with his penis (count 6). The complainant's mother interrupted events by calling out for the applicant. He walked back into the main bedroom and the girl followed after wiping herself with a bed sheet, but her mother ordered her out of the room and she returned and lay on her bed. She said that the next day, she told her mother about the applicant "messing around" with her, but that her mother did not do anything.

36 There was evidence at the trial that, before the events the subject of the charges against the applicant, Huey Phillips had sexually abused the complainant for which he had been convicted and sentenced to 2 years' imprisonment. The complainant had also made allegations of sexual abuse against one Phillip Mears in Collie and one Danny Taylor in Port Hedland. Sergeant McKenzie gave evidence that the complainant alleged that on 16 March 1994, while she was asleep on a couch in a lounge room, Mears placed his hand on, and fondled her vagina. The complaint involving Mears was tried at the Perth Children's Court in November 1994 and dismissed. In connection with the complainant's allegations against Taylor, he was charged and pleaded guilty to two counts of indecently dealing with a child under the age of 13 years and two counts of attempted sexual penetration of a child under the age of 13 years.

37 Some time after 13 December 1995, being the date on which Taylor committed the offences, the complainant was placed under the care of the Department of Family and Children's Services ("Department") and put into foster care. The complainant maintained contact with the applicant by telephone and visits. In a letter to the Department in February 1997 the complainant advised that she did not want to be put in Huey Phillip's care and referred to the applicant as the person she wanted to be her father. On 20 December 1997 the complainant was driven to Bunbury by her Departmental caseworker, Catherine King, to meet the applicant. Some time after that visit, the complainant informed her foster mother, Maria Garlett, that the applicant had told her to touch him in a sexual way and that she did not want to see him again. As at December 1997 there had been no complaint or comment to Departmental officers by the complainant of any improper conduct by the applicant. The complainant's caseworker first became aware on 10 June 1998 of sexual abuse allegations by the complainant against the applicant. There were inconsistencies between the charges against the applicant and what the complainant told the caseworker.

38 A psychologist with the Department, Anne Fraser gave evidence for the defence of consulting with the complainant eight times between October 1996 and March 1997. She gave evidence that the complainant was fearful of Huey Phillips and appeared to idealise her relationship with the applicant who she viewed as having protected and cared for her. The complainant spoke to the psychologist about her experiences of sexual abuse by others but not of any sexual abuse by the applicant.

1. the learned trial Judge presiding at the video link evidence of the complainant erred in law in refusing to permit the complainant to be cross-examined in relation to allegations of sexual abuse that the complainant had made against Taylor;

2. the learned trial Judge erred in law in permitting the applicant to be cross-examined about irrelevant and prejudicial matters;

3. the prosecutor had failed to disclose to the applicant his statement to police in relation to the alleged sexual assaults committed by Taylor yet cross-examined the applicant on that statement;

4. the learned trial Judge erred in law in failing to exercise his discretion to exclude a statement made by the complainant's mother which had a prejudicial effect that outweighed its probative force;

5. the learned trial Judge failed to adequately put the defence case in his direction to the jury;

6. the learned trial Judge directed the jury so as to reverse the onus of proof.

40 Prior to the pre-recording of the complainant's evidence, the applicant sought leave pursuant to s 36BC of the Evidence Act to cross-examine the complainant upon a statement she had made to police concerning the sexual assault committed upon her by Taylor in Port Hedland on 13 December 1995 and a letter the complainant had subsequently written that the applicant contended qualified aspects of her statement to police.

41 In her police statement, the complainant refers to when she was raped by a man in Merredin. Her statement of what occurred in Port Hedland was to the effect, inter alia, that Taylor had tried to insert his penis into her vagina. As stated earlier, in relation to these matters Taylor pleaded guilty to two counts of indecently dealing with a child under the age of 13 years and two counts of attempted sexual penetration of a child under the age of 13 years.

42 The complainant's subsequent letter is to the effect that the man in Port Hedland did not rape her but touched her and that he should not go to jail just for that. The letter continues:

"... the reason you know also that about the statement it was wrong that's the other man that done to me in Merredin he's the one that should go to jail not that man in Port Hedland ..."

43 The purpose of the cross-examination on the police statement and the letter was said to be to show that the complainant had:

(a) the opportunity when making a statement to police about the abuse by Taylor to also reveal the offences allegedly committed by the applicant;

(b) made a false complaint to police of penile or attempted penile penetration by Taylor;

(c) been confused as to who had committed prior acts of sexual abuse (described by the applicant as transference).

44 As events transpired, the applicant was permitted to cross-examine the complainant on why she did not tell the police of the applicant's conduct when talking to them about the Taylor incident (her response to which was that she did not know). Accordingly, the only live issues are (b) and (c).

45 The logical first question is whether the proposed cross-examination is on a relevant matter. If so, the second question is whether s 36BC of the Evidence Act applies.

46 It is not in dispute that the proposed cross-examination is relevant (at least) to the complainant's credit. I will return later to the question of whether it is also relevant to a fact in issue.

47 Section 36BC of the Evidence Act provides:

"(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave of the court has first been obtained on application made in the absence of the jury (if any).

(2) The court shall not grant leave under subsection (1) unless satisfied that -

(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and

(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission."

48 The term "sexual offence" is widely defined to include offences in which consent is not in issue. On a literal reading of s 36BC, the prohibition applies even if the complainant's sexual experience was as a victim of a sexual offence. There is no indication in the text or the relevant parliamentary material (in particular, the second reading speech) that such a construction is inconsistent with the legislative purpose of the reforms in this area of the criminal law. There being no ambiguity in the language or any other legislative indication that would require the section to be read down, I conclude that s 36BC applies to the proposed cross-examination.

49 The next question is the extent of the statutory prohibition. It is clear from the legislative history that evidence relating to the sexual experiences of a complainant of any kind at any time with any person (not being part of the res gestae) that goes only to credit cannot in any circumstances be adduced or elicited by or on behalf of the defendant.

50 Section 36BC, s 36B and s 36BA were inserted in the Evidence Act by the Acts Amendment (Sexual Assaults) Act 1985 ("1985 Amendment Act"). Their purpose was to further restrict the admissibility of evidence relating to a victim's sexual history. Under the sections of the Evidence Act they replaced (being s 36A and s 36B which were inserted in the Evidence Act in 1976 and deleted by the 1985 Amendment Act), the court had the power to grant leave when what was sought to be adduced had "substantial relevance to the facts in issue or to the credit of the complainant". The removal of the reference to "the credit of the complainant" clearly indicates that the court now does not have the power to permit questions where the only relevance of the proposed evidence is as to the complainant's credit. The current law is that a court cannot grant leave unless the proposed evidence has substantial relevance to the facts in issue and the probative value of the evidence outweighs any distress, humiliation or embarrassment to the complainant.

51 Thus it is necessary to consider the question whether the proposed evidence is relevant to a fact in issue.

52 Both the making of, and the failure to make, a complaint following a sexual assault go to credit rather than to a fact in issue: Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460; Jones v The Queen (1997) 191 CLR 439 at 453-454. Notwithstanding that a complaint or failure to complain is received as evidence of credibility, it is not treated in the same way as evidence as to credit for the purposes of the finality rule which prohibits evidence in rebuttal on collateral matters: Kilby v The Queen (supra); Heydon J D, "Cross on Evidence" 6th Australian ed, Butterworths, Sydney, 2000 at par 17285.

53 However, it can be misleading to make general statements about categories or types of evidence. A failure to complain may, in the particular factual circumstances of a case, be relevant not merely to credit but also to the facts in issue. For example, evidence of failure to complain when making complaints about sexual assaults by others may go to the question of whether or not there has been any sexual assault.

54 Questions on whether the complainant subsequently resiled from or qualified aspects of her allegations against Taylor or was confused as to who did what goes to her credit. However, in some circumstances evidence of complaints subsequently denied in whole or in part or confusion may also go to the central issue of whether or not there has been any sexual assault: R v Chandu Nagrecha [1997] 2 Cr App R 401.

55 In the context of the finality rule, there is a debate as to whether matters going to the credit of a witness cannot be described as collateral where the witness in question provides the only evidence upon that issue, as in sexual assault cases: Natta v Canham [1991] FCA 470; (1991) 32 FCR 282; R v Lawrence [2001] QCA 441; Hoy & Ors v The Queen [2002] WASCA 275 at par 116-124. Courts in England have been prepared to relax the finality rule in such cases: R v Funderburk [1990] 1 WLR 587 at 597-598.

56 Different views have been expressed in this court as to whether in cases where the central issue of guilt depends entirely on resolving a conflict in testimony, particularly in sexual matters, that the difference between questions going to credit and questions going to the issues reduces to vanishing point: Bannister v The Queen (1993) 10 WAR 484 at 487-488 per Kennedy J; Narkle v The Queen [2001] WASCA 31; (2001) 23 WAR 468 at 480-481 per Murray J; Hoy & Ors v The Queen (supra) at par 13 per Wheeler J and par 120 per Miller J.

57 It has been observed that the relaxation of the finality rule in Australia has manifested itself in a number of ways such as by a greater preparedness to characterise evidence as relevant to a fact in issue or by extending the bias exception or by formulating the finality rule as a general rule with no closed list of exceptions (in effect, discretionary): Natta v Canham (supra); R v Lawrence (supra). However, regardless of shifts and developments in the content and application of the finality rule, it is the case that s 36BC of the Evidence Act contains an absolute prohibition on questions that go only to credit.

58 My preliminary view is that the proposed questions directed at whether there was a false complaint or confusion were potentially relevant to the issues (as well as to credit). However, it is unnecessary to determine the characterisation issue in this case because, even if the proposed evidence is properly characterised as relevant to a fact in issue it did not, in my view, have substantial relevance such as to permit its admission. In particular, the fact that the complainant had written a letter saying that Taylor had touched but not raped her in circumstances where Taylor had pleaded guilty to having indecently dealt with and attempted to sexually penetrate her, does not have substantial relevance to the central question in this case of whether the applicant had sexually assaulted her. I would dismiss this ground of appeal.

59 The specific matters of which the applicant complains are that the trial Judge erred in:

(a) permitting the applicant to be cross-examined on the accuracy of a statement he made to police in Port Hedland in December 1995 concerning the complainant's allegations of being sexually assaulted by Taylor;

(b) admitting the applicant's statement to police into evidence;

(c) allowing the applicant to be cross-examined as to his opinion of whether or not the complainant had been sexually assaulted by Taylor or by Mears;

(d) allowing the applicant to be cross-examined in connection with a file note made by Catherine King of a telephone conversation with the applicant in November 1997.

60 The cross-examination progressed in this way. In response to a question concerning the complainant's allegations, the applicant said the complainant was lying and volunteered that she was mentally disturbed as a result of what Huey Phillips had done to her and that he, the applicant had counselled and supported the complainant. The applicant was asked whether he remembered Danny Taylor and his response was that he did not. After some further questions concerning the Taylor incident, defence counsel objected on the grounds of relevance. The trial Judge ruled that the evidence was admissible without giving reasons. No further objection was taken on behalf of the applicant to the balance of the evidence objected to in this ground of appeal.

61 The applicant had said in his statement to police on the Taylor matter that the complainant ran to him scared and upset and said Taylor had "tried to do bad things to me down there, he tried to enter me", that he knew that the complainant meant that Taylor had tried to have sex with her and that the applicant waved down police and told them what happened. After reading his police statement the applicant said that some of the things in the statement were incorrect. The cross-examination proceeded as follows:

"All right. You agree that you sent her away with the healer?---Yeah, because the mother agreed too.

The mother agreed to, yes, and it says in the statement that she complained because she was frightened. You say that she wasn't frightened?---No, she didn't look frightened when she came to me after.

The statement, though, says that she did look frightened, but that's wrong?---That's wrong because she's come and said to me that 'He molest me' or something. I said, 'Oh, no. He just heal you from your asthma.'

All right, and you say that the statement's wrong because you didn't flag down the police car?---No, I did not flag the police car down, but the bloke he was fighting with before I went there.

And you say the statement's wrong in saying that you wanted to tell the police, because you wouldn't tell the police about something like that?---If he did something, I would have waved the police down and done it, but I didn't wave the police down because he didn't do it.

You think that Penny was lying about that incident too?---Yeah, because I was subpoenaed to go up there to Port Hedland court when he pleaded not guilty and that afternoon he changed his plea to guilty, but I made all the arrangements to go to Port Hedland. Now, what the police do to him up there? That's what I'd like to know.

Just stop there a moment. So in the end he actually pleaded guilty to doing things to Penny. Correct?---What I heard.

You heard, but you still think that she was lying about that?---Yeah, because Penny was mentally disturbed still and had no counselling whatsoever at the time. Since I took her in my care, when the counsellor came around to counsel Penny, her mother got jealous for Penny.

When you say in the statement that you signed that you knew what he had done when you said, 'He's entered me' or 'Tried to enter me', that part's not true, either?---Because she didn't say that to me, that he tried to enter her.

You've put it in your statement?---I don't remember putting that in my statement."

63 The applicant was also asked "who is this fellow Mears in Collie" to which he said he did not know. He later said that Mears was his nephew but that he did not know what had happened in connection with the complainant. The applicant was then asked whether he made a phone call to Ms King at the Department to which his response was that he did not remember.

64 Ms King gave evidence in re-examination of a telephone conversation she had with the applicant on 14 November 1997. She was asked whether she had made a file note of the telephone conversation which question she did not answer because an objection was taken on the ground that it had not been the subject of cross-examination. Notwithstanding that counsel for the prosecution said he would not pursue the matter, the trial Judge asked the following questions:

"All right. So that's your note of the conversation with Mr Hill, setting out the contents of that conversation?---Yes.

All right. And you can confirm the accuracy of what you have written?---Yes."

The trial Judge then marked the file note for identification. The applicant was requested in cross-examination to read out the file note to the court. He was unable to decipher it so the prosecutor read out the note which stated inter alia:

"Claude saying that he does not agree with information on the file about [the complainant] being sexually abused by either Phillip Mears or Danny Taylor. He was present with [the complainant] and says that the department did not have the full story. [The complainant] was not abused by either man. They were just healing [the complainant]."

65 The applicant denied having any conversation with Ms King to that effect and suggested that she had made the story up.

66 I understand that the applicant's objection is that the evidence referred to in ground 2(a) to (d) was irrelevant or disproportionately prejudicial. In my view, the cross-examination of the applicant concerning the statement he made to police was relevant and properly admitted. The applicant's defence was that the complainant was lying about the conduct with which he was charged. He volunteered that the explanation for her fabrication of the evidence was that she was mentally disturbed as a result of what Huey Phillips had done. Yet the applicant's statement to police immediately after the Taylor incident, which post dated the events the subject of the charges against the applicant, is generally supportive of the complainant's allegations against Taylor and is inconsistent with the applicant's evidence.

67 In cross-examination the applicant departed from the statement in material respects and on the basis of the departures, stated his conclusion that the complainant had also lied about what Taylor had done to her because she was mentally disturbed. The direction of the cross-examination was driven by the applicant's answers, many of which were non-responsive. The applicant volunteered his opinion on whether Taylor and Mears sexually abused the complainant. In my view there is no substance in ground 2(a), (b) and (c).

68 As to ground 2(d), questions concerning the content of his alleged telephone conversation with Ms King were also relevant to the applicant's credit.

69 What is recorded in the file note is inconsistent with his police statement and his evidence that he had no personal knowledge of the complaint concerning Mears. No complaint was made at trial or in the appeal about the contents of the file note being read to the Court or the file note being admitted into evidence. Other than to observe that the prosecution approach was arguably objectionable (as to which see The Queen's Case [1820] EngR 563; (1820) Brod & Bing 284; 129 ER 976), I do not intend to address those matters. I would dismiss this ground of appeal.

70 The applicant complains of the prosecution's failure to disclose to the defence the applicant's statement to police concerning Taylor and Ms King 's file note.

71 The applicant relies on s 611B of the Criminal Code which materially provides:

"(1) If an indictment has been presented to a court against a person, the prosecution is required to file and serve on the person -

(a) a copy of every statement or deposition, obtained by the prosecution, of any person who may be able to give relevant evidence at the trial;

...

(d) a copy of every other document or exhibit that the prosecution proposes to adduce at the trial or, if it is not practicable to copy the document or exhibit, a description of it and notice of where and when it can be inspected;

...

(2) The requirements of subsection (1) must be complied with as soon as practicable after the prosecution has obtained the document."

72 The applicant's statement to police concerning Taylor became material as a result of the applicant's answers in cross-examination concerning why the complainant lied and his denial of any knowledge of the incident. The file note attributed to Ms King was produced as a result of a subpoena from the applicant to the Department. The prosecution did not question Ms King about the file note in her evidence-in-chief. When the prosecution sought to re-examine on it, objection was successfully taken to that course.

73 In my view, neither document was subject to the disclosure obligation in s 611B of the Criminal Code. Both documents became material as a result of the applicant's evidence in cross-examination. The prosecution's obligation under s 611B relates to evidence that the Crown can or may present as part of its case and not to documents that may be used in cross-examination. This is confirmed in the Explanatory Memorandum to the Criminal Law (Prodedure) Amendment Act 2002 which inserted s 611B into the Criminal Code. In the commentary on s 611B the Explanatory Memorandum states:

"... the prosecution must file and serve on the defendant its case in-chief including every witness statement, expert report, notice of any person whom the prosecution proposes to call as a witness at trial, copies of every document or exhibit that the prosecution proposes to adduce at trial, etc."

74 In any event there was no relevant unfairness to the applicant. The trial Judge gave the defence the opportunity to examine the applicant's statement to police before it was put to him. No adjournment was sought to take instructions or application made to adjourn the trial. Ms King's file note became available to the defence and prosecution at about the same time. I would dismiss this ground of appeal.

75 The applicant asserts that the trial Judge erred in failing to exercise his discretion to exclude the evidence of the complainant's mother, Patricia Clinch, who had died before the hearing.

76 Mrs Clinch had signed a statement before her death. The Crown applied for leave to read the statement into evidence under s 107 of the Evidence Act.

77 At the hearing of the appeal the applicant's counsel conceded that the admissibility of the evidence was regulated by s 107 of the Evidence Act. I assume the concession was made because the applicant's counsel was satisfied that the statement complied with s 69(2) and (4) of the Justices Act 1902 (WA) (as to which see Birch v The Queen (1994) 12 WAR 292 at 301-304).

78 It is accepted that the court has a discretion to exclude evidence to which s 107 applies. The position is succinctly put by Owen J in Birch (supra) at 306:

"The question whether s 107 ... imports a discretion to exclude evidence falling within the terms of the section is not clear: Nalberski v The Queen (1989) 44 A Crim R 434 at 443, per Brinsden J. However, a discretion of this nature can arise under the overriding general discretion to exclude evidence because its prejudicial effect would outweigh its probative value or because it would result in the accused being denied a fair trial: see Nalberski, per Wallace J (at 438) and Pidgeon J (at 444). Put in a slightly different way, the overriding consideration is that of fairness: Galea (at 460)."

79 The complainant's evidence was that the morning after the conduct the subject of counts (3) to (6) she told her mother that the applicant had been "messing around" with her and that she did not go into any further detail because her mother appeared disinterested. The mother's statement was to the effect that at some time when the family was living at Riley Street the complainant, when going to the toilet said "I'm sore. Dad's touching me but I was frightened to tell you cause you might hit me" and that she asked the applicant whether he had touched the complainant and he said no.

80 The applicant says that any probative value of the statement is outweighed by its prejudicial effect. In particular, the applicant relies on the fact that the statement was made in March 2000 which was remote in time from the events complained of, that the complainant's mother was at the time of the events in question and subsequently an alcoholic and that there were inconsistencies between the complainant's evidence and that of her mother. The alleged consistencies related to the whereabouts of the applicant at the time the complaint was made (Collie or Bunbury) and where the complainant slept (in her own room or with her mother and the applicant).

81 In considering the question of prejudice it needs to be borne in mind that where evidence is admitted under s 107 the jury must be warned to be careful when considering the evidence because it has not seen the witness and the evidence has not been tested by cross-examination. However, the specific content and extent of the warning is dictated by considerations of fairness in each particular case: Birch (supra) at 307-308.

82 The mother's proposed evidence was relevant not only to the question of the consistency of the complainant's behaviour but also to the delay in reporting the offences. The close relationship between questions going to credit and the facts in issue in cases such as this has already been adverted to. The evidence is on a central rather than peripheral issue. In my view that is a factor in favour of its admission not exclusion. The prejudicial effect to justify exclusion cannot arise solely from the fact that the content of the evidence is to a defendant's disadvantage. Although there are grounds for challenging the reliability of the proposed evidence that, as the trial Judge observed, could be used to the applicant's advantage.

83 In my view, the applicant has not demonstrated that the trial Judge erred in the exercise of his discretion in failing to exclude the evidence of the complainant's mother. I would dismiss this ground of appeal.

84 The applicant complains that the learned trial Judge failed to adequately put the defence case in his direction to the jury.

85 The relevant legal principles are not in question. The trial Judge has a duty to put the respective cases of the prosecution and the accused to the jury in a fair and balanced way: Cornelius & Briggs v The Queen (1988) 34 A Crim R 49 at 65. The requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury although a trial Judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 at 560-561; Doughty v The Queen [2002] WASCA 238 at par 43-44.

86 In his summing up, the trial Judge read from the transcript significant portions of the complainant's evidence-in-chief in connection with each count.

87 After reading the transcript of the complainant's evidence-in-chief, the trial Judge summarised the accused's evidence as being in effect a denial of the charges and informed the jury of the difficulties facing an accused who claims that an allegation is false where significant time has passed since the alleged conduct. The trial Judge then read from the transcript the complainant's evidence of what she said to her mother and her mother's evidence on the subject of complaint. He continued:

"So there is evidence from Patricia Clinch which corroborates [the complainant's] evidence that she did complain to her mother. But I do need to warn you that of course Patricia Clinch couldn't be cross-examined on that statement so the defence haven't had an opportunity to challenge that evidence in any way. Therefore the evidence hasn't been fully tested as would normally be the case where the witness comes into court, so you must bear in mind that warning I have just given you when deciding whether or not you should give weight to the deposition from Patricia Clinch and whether or not you should accept that evidence that a complaint was in fact made to her by her daughter ..."

88 No mention was made of other matters going to the reliability of her evidence. In relation to the failure to complain to authority figures such as the police and Departmental officers, the trial Judge gave a warning under s 36BD of the Evidence Act to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation is false and that there may be good reasons why a victim may hesitate in making or refraining from making a complaint. He also read from the transcript the complainant's explanation for her failure to complain.

89 The trial Judge also told the jury that the instances of other sexual abuse were relevant, on the defence case, to the complainant's experience with sexual matters, not only to enable her to detail her allegations against the applicant but because she may have substituted the applicant as the perpetrator of the offences when really she was describing offences committed by others. On what the trial Judge refers to as inconsistencies, he said:

"You have also had a good deal of focus in this trial and previous statements made by the complainant ... and by the accused. With regard to [the complainant], she has been referred in cross-examination to the statement she made to the police ... in ... 1998 and also what she said to Catherine King when interviewed in June 1998 and also what she said to Anne Fraser when being counselled in, I think it was - I think it was also 1998, with regard to the previous sexual offences or the offences committed by other men.

So she has been cross-examined to point out what are said to be inconsistencies in previous statements she has made about various matters."

90 The trial Judge did not refer to any other aspects of the defence's arguments or the evidence in support of them. The applicant relies on the trial Judge's failure to refer, or adequately refer, to a number of matters in the defence case which included:

(a) the complainant's admission that she lied to Departmental officers concerning the extent of the applicant's sexual misconduct;

(b) the unlikelihood of the offences being committed due to the risk of discovery;

(c) the complainant's continued willingness to have contact with the applicant after December 1995;

(d) the improbability of the offences having been committed when, having attended on the clinical psychologist (Ms Fraser) on eight occasions for sexual abuse counseling, she did not allege any sexual abuse by the applicant and advised the psychologist that the applicant was the only man who had protected her;

(e) the many opportunities the complainant had to inform relevant authority figures (police, psychologist, social workers) of the sexual abuse by the applicant;

(f) the improbability of the offences having regard to a letter dated 28 February 1997 from the complainant to the Department stating that she did not want to be put back in Huey Phillip's care because of what he had done to her and referred to the applicant as the person she desired to be her father;

(g) inconsistencies in the complainant's evidence and in prior statements concerning the detail of the offences charged and other incidents (on such matters as whether there was touching or stroking, ejaculation, the location at which the conduct occurred).

91 The applicant was also critical of the trial Judge's direction concerning the evidence of the complainant's mother, there being no reference made to the reliability of the evidence. There is force in that criticism. However, we were told by the applicant's counsel at the appeal (who was also counsel for the applicant at trial) that he had made a decision not to refer to that evidence in his address to the jury because of the risk of emphasising it and did not seek a re-direction on this topic.

92 After the jury had retired defence counsel raised with the trial Judge his failure to identify to the jury what was described as "crucial bits of the defence case" although he expressly referred only to the complainant's admission that she had lied. The trial Judge declined to redirect on the basis that he had given a fair and balanced direction.

93 Fairness and balance must emerge primarily, if not wholly, from the trial Judge's summing up because of the authority and impartiality of the role of the trial Judge. Counsel for the prosecution and the defendant are, as the jury is told, advocates for their respective cases. It is difficult to see how any unfairness or imbalance in a Judge's summing up could effectively be counteracted by counsels' addresses.

94 Further, fairness and a balance is a matter of impression rather than detail. The adequacy of a summing up will depend upon the circumstances of each particular case. In this case, the trial Judge read out large portions of the complainant's evidence-in-chief and other evidence. In contrast, he made passing and general reference to the grounds of the defence attack on the truth and accuracy of the complainant's evidence. The defence raised matters of substance which were glossed over by the trial Judge. In my view, the marked disparity in approach to the prosecution and defence cases rendered the summing up unfair and unbalanced. That situation was not redressed by counsels' addresses. I would uphold this ground of appeal.

95 In this situation it is not possible to save the verdict by the application of the proviso to s 689(1). Indeed, the Crown did not contend that it could be applied.

96 The applicant asserts that the trial Judge in his direction to the jury reversed the onus of proof. After the completion of the trial Judge's summing up, the jury returned to seek a further direction. They asked:

"What is the definition of 'reasonable doubt', and if we find the complainant's story more credible, is this grounds to convict the accused guilty beyond reasonable doubt on all charges?"

97 After explaining what was meant by "reasonable doubt", to which no objection is taken, the trial Judge said:

"It's not enough that you think that the complainant is probably right or that you prefer her evidence to that of the accused. The complainant's evidence has really got to persuade you beyond reasonable doubt that what she has said is - that her version is the honest and correct one.

So really what that means is you have got to believe her when she says that each offence happened. So obviously that involves some degree of persuasion in your own mind that what she has told you is an honest and correct version of events. So really in a case such as this where it's one person's word against the other, as I have said to you before, there are really three alternatives: if you believe the complainant when she says the offence happened, then obviously you will be persuaded beyond reasonable doubt and the accused will be guilty.

If on the other hand, you believe the accused when he said it did not happen, then obviously you have more than a reasonable doubt and you would have to acquit the accused. But the third alternative is if you do not know who to believe, then obviously you're not persuaded beyond reasonable doubt as to the complainant's version and you would have to find him not guilty and be left with a reasonable doubt. So they are the three alternatives.

You can only find the accused guilty of any charge if you believe the complainant's evidence and are persuaded beyond reasonable doubt that the offence did indeed happen."

98 There is a danger when a trial Judge invites a jury to decide which version of events they accept because of the possibility of misleading the jury as to the burden of proof: Murray v The Queen [2002] HCA 26; (2002) 189 ALR 40; Stack v The Queen [2002] WASCA 338.

99 However, the issue is whether, examining the directions as a whole, there was a misdirection as to the burden of proof. In my view, the direction complained of could not mislead the jury in that way. The last sentence of the quoted extract in particular leaves no room for confusion. I would dismiss this ground of appeal.

100 I have concluded that the trial Judge's direction was not fair and balanced and would uphold ground of appeal 5. Thus, I would grant leave to appeal, uphold the appeal, set aside the convictions and order a re-trial.