Ground 3: The trial miscarried as a result of erroneous submissions made by the learned Crown Prosecutor and the failure of the trial judge to correct those submissions in his charge to the jury.
66 There are a number of complaints made by the appellant under this ground of appeal.
67 Section 164 of the Evidence Act abolished the common law requirements with respect to corroboration except in relation to offences of perjury or similar related offences. Section 164(3) provides that if there is a jury it is not necessary that the judge:
"(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effects; or
(b) give a direction in relation to the absence of corroboration."
68 However, this provision does not prohibit a warning that it would be dangerous to convict on uncorroborated evidence (Conway v The Queen (2002) 209 CLR 203 at 53) and a warning may still be necessary "to avoid the perceptible risk of miscarriage of justice arising from the circumstances of the case" (Longman v The Queen (1989) 168 CLR 79 at 86). That obligation is a reflection of the fact that the judge must ensure that the accused has a fair trial (Crofts v The Queen (1996) 186 CLR 427 at 451).
69 There can be no doubt that in a trial involving allegations of sexual assault it is preferable if possible to avoid reference to corroboration in any manner which may raise the difficulties which the common law previously identified. At common law corroboration was a technical concept and the use of the expression could lead to "arid arguments arising as to whether that evidence amounted to corroboration" (see R v Lozano (unreported, NSWCCA, 10 June 1997 at 7; see also R v ST (1997) 92 A Crim R 390 at 393; R v Milton (2004) NSWCCA 195 at [42]).
70 The appellant complained that in the course of her submissions to the jury the Crown Prosecutor repeatedly referred to evidence which was said to corroborate the complainant and invited them to "prefer the evidence of the complainant to that of the appellant." On one occasion the Prosecutor submitted that the evidence of the mother of the complainant's friend "corroborates everything the [complainant] has told you." Elsewhere the prosecutor submitted that the witness TR, a family friend, "corroborates [the complainant]." The evidence of the young female employee, LJ, to the effect that the complainant was acting normally was said to corroborate the complainant. Elsewhere the prosecutor said that the family friend, TR's evidence corroborates or assists the Crown case whereas the appellant submitted the evidence in question (that the family friend used to come over for dinner) was consistent with both the defence and prosecution case. The appellant emphasised that on one occasion the Crown Prosecutor suggested that the inability of the defence witnesses to rule out absolutely the evidence of opportunity "also corroborates the complainant."
71 The appellant submitted that none of the evidence to which reference was made was capable of amounting to corroboration in the common law sense of that word.
72 It was further submitted that the Crown Prosecutor's address, in the absence of a firm correction by the trial judge, misled the jury by inviting it to "prefer" the evidence of the complainant and suggesting that such preference would lead to satisfaction of the appellant's guilt beyond reasonable doubt. As an illustration of this submission the appellant draws attention to the Crown Prosecutor's remarks:
"In relation to the first count other than what I put to you is her very credible evidence, you have nothing against which to compare it other than if we listen to the accused and you feel that perhaps he's less than honest with you, you might then think that you'd prefer her evidence and that her evidence would satisfy you beyond reasonable doubt."
73 On another occasion the Crown Prosecutor in her address said, in relation to the evidence of the complainant's friend's mother, who was the adult who received the complaint from the complainant which caused her to go to the police, "you might think that she would have no reason to lie." It was submitted that this submission invited the jury to engage in impermissible reasoning: see Palmer v The Queen (1998) 193 CLR 1; R v Jovanovic (1997) 42 NSWLR 520; F (1995) 83 A Crim R 502; R v E (1996) 39 NSWLR 450.
74 The appellant submitted that although the prosecutor cautioned the jury that the trial judge would correct her if anything she said was wrong, the judge never did this. It was submitted that the judge repeated the complainant's submissions in relation to corroboration and although defence counsel told the jury that the matters referred to by the Crown were not corroboration, the trial judge failed to refer to counsel's submissions and failed to instruct the jury, that as a matter of law, the defence submission was correct.
75 An examination of the transcript of the Prosecutor's address discloses, in my opinion, that the expression "corroboration" or "corroborative" were used colloquially to mean "consistent with", "not contradicted by", "supportive of", or "confirms." I am satisfied that both the Crown Prosecutor and his Honour when outlining to the jury the submissions which the prosecution had made used the expression in a non-technical sense. I do not think the jury would have understood the expression otherwise. The substantial effect of the Crown submission was that there was a body of evidence which was not inconsistent with the complainant's allegations.
76 The appellant also complained about another aspect of the Crown Prosecutor's address. It was submitted that the prosecutor's comments would have had the effect of undermining the Longman direction which the trial judge gave to the jury. Particular complaint is made about the following remark:
"His Honour will also direct you that in relation to the first count, it is also dangerous to convict because all you have is one person giving you that evidence, with (sic) you might think, is no corroboration."
77 When his Honour came to deal in his summing up with the earlier counts, which had occurred three and a half to four years before the complainant reported the matters to the police, he was careful to highlight a number of effects which delay may have had on the ability of the appellant to defend himself. His Honour said that one of these was the fact that "the prosecution case is confined to the evidence of the complainant."
78 Shortly thereafter his Honour said:
"Further, because of the passage of time of several years it would be dangerous to convict on the complainant's evidence alone unless you are satisfied of its truth and accuracy having scrutinised that evidence as I have said, and with much care considered the circumstances relevant to its evaluation and paid careful heed to this warning.
I am not suggesting to you that because there was a failure to complain of the events alleged that you could not thereby believe the complainant's evidence. What you make of her evidence of course is entirely a matter for you. It is the Crown case that on the facts the complainant was only thirteen at this time or thereabouts that she was clearly bewildered and confused in the situation where her guardian, or person that she thought of as her father, was suddenly on the first count touching her breasts and vagina and having sexual intercourse with her in a situation where he said it was all right to do so and in circumstances where she was told it may harm the family if she reported it … There are clearly circumstances in the Crown case explaining why she did not complain at the time. Those are questions of fact. That was the Crown case that was put to you."
79 His Honour also gave directions as to the use which the jury could make of the complaint to the complainant's friend's mother, SH and said:
"Evidence of recent complaint relates to statements allegedly made to SH in the past outside the courtroom. It is referred to at law as hearsay evidence. The witness SH has merely repeated in court what she says the complainant said to her about the alleged incidents. She was not present to observe what allegedly occurred.
Accordingly she could not give direct evidence to you of that. You will therefore necessarily approach her evidence with caution. However, bear in mind this warning, if you accept that the complaint was made to SH then you may take that into consideration as some evidence of the fact that the sexual assault alleged actually took place.
The fact that the complaint was made may assist you in that task because the Crown says it shows a consistency of conduct on the part of the complainant and that she complained to a person to whom she might reasonably have been expected to complain if she had been sexually assault. The Crown says that such is the conduct of a truthful person whose been sexually assaulted.
In other words the evidence is also relevant to the credit of the complainant as a witness and that it may increase the weight which you give to her evidence as to the sexual assault with which the accused has been charged.
Of course I remind you that the accused says that no such sexual assault took place. You should consider the reasons and arguments put forward by the parties to determine for yourselves what weight should be given to the complainant's evidence in the case."
80 As the Crown pointed out in submissions, when giving these directions his Honour was careful not to refer to "corroborated" or "uncorroborated" evidence but rather used the expression "it would be dangerous to convict on the complainant's evidence alone." This adequately avoided the jury linking the direction to the question of corroboration in the way in which that expression had been used by the Crown.
81 The appellant also submitted that his Honour should have repeated to the jury a portion of defence counsel's address as a current statement of the law. Defence counsel addressed the jury in the following terms, referring to count 2 and regarding the inconsistent account given by the appellant and his wife:
"What they did is gave you versions inconsistent between the two of them. Left open the opportunity, that's all, opportunity … The complainant says this act occurred and these witnesses can't say it was impossible. That's it. They in no way corroborate the complainant. They certainly don't corroborate the complainant with respect to the allegation."
82 It is clear in this passage that defence counsel was using the expression "corroboration" in its technical common law meaning. This was different to the way in which it was used by the Prosecutor and repeated by the trial judge.
83 It is important that although defence counsel addressed in these terms the trial judge was not asked to give a similar direction or explain the concept of corroboration or the use of that word by either the prosecutor or by his Honour in his summing up. Accordingly, r 4 applies.
84 Having regard to the fact that the expression "corroboration" or similar expressions were frequently used by the prosecutor and a comprehensive reference was made to the prosecutor's submission by the trial judge, the failure to seek a direction cannot have been through inadvertence. The explanation must be that neither the submissions of the prosecutor, nor, the directions of the judge raised any concerns. I would decline leave to argue these matters.
85 With respect to the submission by the appellant that the Crown Prosecutor's address invited the jury to lower the standard of proof, I am satisfied that his Honour gave a clear direction in relation to these matters. It was in the following terms:
"It is and always has been a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. This is known as the presumption of innocence and this expression proved beyond reasonable doubt is an ancient one. It needs no explanation from trial judges.
The Crown does not have to prove however every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges beyond reasonable doubt and I shall subsequently outline to you the elements of each charge."
86 Finally in relation to the evidence of SH, the complainant's friend's mother, the appellant submitted that the Prosecutor invited the jury to reverse the onus of proof when she stated that the jury "might think she would have no reason to lie about anything that she said."
87 Although the submission in other circumstances may have given rise to difficulties this was not the case in the present matter. The cross-examination of SH was brief and her evidence was not challenged. She was questioned about one topic, whether or not she told the complainant she had to report to the police any allegations she might make of sexual assault. Her reply was that she could not remember. SH's evidence was uncontroversial and no redirection was sought by defence counsel. This is hardly surprising. I would also decline leave in relation to this aspect of the matter.