The trial
21 A trial commenced on 8 March 2005. Black DCJ ruled on the admissibility of certain evidence and a jury was empanelled, but it was discovered that there was an irregularity in the empanelment and the jury was discharged. A fresh jury was empanelled on 12 March 2005, and the parties agreed to be bound by the earlier rulings.
22 One ruling was concerned with evidence, to be given by CD, JN and NC, that the appellant provided prescription drugs (valium and prothiaden) to the occupants of the units. As I have said, the statements of JN and NC had been principally concerned with the supply of drugs to the occupants, and CD's interview had included reference to it. The appellant had been charged with the summary offences of supply of restricted substances. The Crown proposed to lead evidence of smoking cannabis, drinking alcohol and taking the drugs supplied by the appellant "to put the relationship between the parties in some proper context". The defence did not object to evidence of smoking cannabis and drinking alcohol, but objected to the further evidence, and the trial judge ruled against its admission. As one result, there was editing of the tapes of CD's interview and of the interviews with the appellant, in addition to other editing of the tapes of the interviews on which the prosecution and defence agreed. When JN gave evidence the Crown did not elicit evidence of the drug-taking.
23 The other ruling was concerned with the letters written by the appellant to CD while in prison, to which the defence objected principally because on their face they were written while the appellant was in prison. The trial judge ruled in favour of their admission, while noting that it was agreed that there was to be editing. From what the Crown Prosecutor said, this was to be to remove their disclosure that the appellant "has spent a substantial part of his recent history in gaol".
24 The trial ran to 23 March 2005. Evidence in the Crown case was given by CD and JN, by investigating police officers Detective Senior Constables Manitta and Williams, by CD's mother, and by an officer of Community Connections. The jury was informed by agreement that NC could not give evidence by reason of a serious medical condition unconnected with the trial. The appellant gave evidence, and called evidence in his case from his mother and from the operator of a video store.
25 The evidence was lengthy, and the following is a less than full account but a sufficient framework for consideration of the appellant's complaints.
26 CD initially gave evidence via CCTV (see Evidence (Children) Act, 1997(since repealed), s 18). She gave evidence of the interview with the police on 30 December 2003, and the edited audio tapes of the interview were played to the jury. Copies of a transcript were provided to the jurors. The tapes were in due course tendered and became an exhibit.
27 CD then gave further evidence in chief in the courtroom.
28 She identified and added some explanation of sketch plans of rooms in AE's unit referred to in the interview, in the course of which she gave further evidence of the occasion of the foursome. She identified a number of letters written by the appellant over the period 14 October 2003 to 30 December 2003, and explained some of their contents (for example, that "Viking" was the appellant's nickname and "baby girl" was what he called her). Copies of the letters, edited by agreement between the Crown and the defence, were tendered and became exhibits, further copies were provided to the jurors, and the edited letters were read aloud. She gave evidence that when the appellant was arrested on 26 September 2003 she "didn't want to tell [the police] anything", and that at the time her feelings towards the appellant were that she loved him and would do anything for him. She said that at the time of her interview on 30 December 2003 she "wanted someone else to tell me I was doing the right thing and I was still really confused".
29 CD said that she had forgotten to include in the interview that on the occasion of the foursome the appellant had brought a pornographic DVD or DVDs which were played, and she gave some additional evidence also in relation to the later occasions of sexual intercourse. She was asked about going to the Legal Aid office on 8 December 2003, and gave evidence to the effect earlier mentioned. The trial judge granted a certificate under s 128 of the Evidence Act 1995 in relation to her evidence of making a false affidavit.
30 If the jury accepted CD's evidence of the sexual acts, they were entitled to find the appellant guilty of the charges.
31 CD was cross-examined at some length. The principal thrust of the cross-examination was that CD was making false allegations against the appellant in order to secure victim's compensation, in conjunction with JN and also to restore her relationship with JN. She denied this, including denying that the police had raised or promised that she would get compensation. There was put to CD the change in her attitude to the appellant, particularly the change from making the affidavit in early December, her response being to the effect that she had been in love with the appellant and would have done anything for him but in late December 2003 that was no longer so. There were also put to her some discrepancies in the sequence of the acts of sexual intercourse and some uncertainties in their detail, for example whether on the occasion at the lookout she was on her back or her stomach, and other matters such as discrepancy in telling the police that the pornographic DVDs were videos. In the course of the cross-examination CD's accounts of the sexual acts were gone over, in some respects in more detail than as she had described them in her evidence in chief.
32 CD had said in her interview that the appellant was circumcised and had his pubic hair shaved. The cross-examination included putting to CD that she had never seen the appellant naked, and further questions eliciting that she did not think he had any tattoos, denied that he had a penis ring and did not remember a birthmark or scar on his penis.
33 JN gave evidence of the occasion of the foursome. He said that soon thereafter, because he was worried for CD's safety and health, he and NC went to Community Connections and "told them what was happening in the house". He was taken to the police, where he made a statement; as I have said, the statement was not put in evidence. He and NC were moved to different accommodation. He saw CD from time to time thereafter, but CD was unfriendly towards him until around Christmas 2003 when she "was starting to want to talk". Their relationship improved, and at the time of the trial he was living in CD's household with her mother and sister. The trial judge granted JN a certificate under s 128 of the Evidence Act in relation to his evidence of his own participation in the foursome.
34 JN was particularly cross-examined to suggest the depth of the breakdown of his relationship with CD after 25 September 2003, it seems in order to emphasise that the later reconciliation was venal. He denied talking to CD about getting victim's compensation, and denied that the police had said anything about compensation.
35 Detective Senior Constables Manitta and Williams variously gave evidence of taking statements from JN and NC on 25 September 2003, the arrest of the appellant on 26 September 2003 and the interview then conducted with him, of CD then being uncooperative and refusing to be interviewed, and of the interviews with CD on 30 December 2003 and with the appellant on 2 March 2004. The edited audio tape of the appellant's interview of 26 September 2003, from which drug supplying had been removed and which was largely a description of relationships between the occupants of the units, was played to the jury; the concluding part in which the appellant denied that he had engaged in sexual acts had by mistake been edited out, and by agreement evidence of his denial was given orally. The audio tape of the interview of 2 March 2004 was played to the jury. Copies of transcripts were provided to the jury. The tapes were tendered and became exhibits.
36 Detective Senior Constable Manitta gave evidence of inquiries into the appellant's membership of a video store club and obtaining a record of his hiring items on 2 September 2003, but the record did not enable the items to be identified. He said that the police had not promised money to CD for making her statement or spoken to her about compensation, save that after the appellant alleged in his interview of 2 March 2004 that CD had told people she was getting money he informally interviewed CD who assured him she had not. He said that in recent times the police had tried to take a statement from AE but received a "negative response", and that she was no longer living in the area.
37 The cross-examination of the police officers touched briefly upon promise of victim's compensation to CD, but did not obtain any support for CD having compensation in mind. It elicited that on an occasion when Detective Senior Constable Manitta had seen AE at CD's home he had not asked her to make a statement; there was at least a toehold for failure sufficiently to try to obtain a statement.
38 CD's mother gave evidence about CD staying out at night, and of seeing some bruising on her (CD had given evidence of bruising as a result of one of the sexual encounters). The mother had not met the appellant. She said that AE had come to stay with them but had moved out in early December 2003, and that from the end of December 2003 JN began to be CD's girlfriend once more. The cross-examination elicited that when CD returned home a little after 26 September 2003 she told her mother that the appellant had done nothing wrong.
39 The officer of Community Connections gave evidence of the accommodation arrangements for the units, and of some dealings with the occupants and the appellant which did not take matters very far. She was not cross-examined.
40 The appellant's evidence in chief was brief, and amounted to denial of any sexual activity with CD. He said of the DVDs that "I call them pornos", but that there was no sex in them "just adult theme at the most, kissing, cuddling, then it would cut". In relation to the foursome, he said that he would not want to be involved because "I'd never let anyone near [AE]", and "I don't even like people looking at her let alone touching her, I'm jealous, simple". He described an occasion when NC had "started wierding out" and abused AE, something which had been part of his account of the relationships in the interview of 26 September 2003. He said that he had beaten NC up.
41 In his interview the appellant had said that he loved CD like a big brother. He said in his evidence that on an occasion CD "offered to have sex and I explained to her, look I don't see her that way, its not how I see her … ". He agreed that there were sexual references in the letters he had written to CD, but explained that CD's self-esteem was low and that she had "expressed an interest in me" and he "jokingly flirted with her a bit, probably not the right thing to do but I didn't want to crush her … ".
42 The appellant said that CD had never seen him naked, and described a birthmark on his penis, a scar from where he had had a marble, and a piercing from a penis ring which he had worn "right until the time I was arrested"; that is, until 26 September 2003. He was not cross-examined in relation to this evidence.
43 In cross-examination the appellant agreed that CD told him she loved him, and wanted sex with him, but said that while he cared about her his feelings were not of a sexual nature and he was madly in love with AE. He was taken to the letters he had written while in prison, which it was suggested to him revealed a quite different relationship. Parts to which he was taken included writing about setting up a home with CD in Queensland, of which he had written "your mum will spin like a top if you fucked off with me, I'm working on it though"; expressing pride that CD and AE had "stuck together" and concern that he would be "in trouble" with AE when he got out of prison (which the Crown Prosecutor suggested reflected AE's knowledge of the appellant having a sexual relationship with CD); and displaying jealousy that CD may have had a relationship with one Nathan. The appellant gave explanations, and it was for the jury to determine in the light of the cross-examination whether the letters supported a sexual relationship with CD or were no more than flirting so as not to be unkind in rebuffing her expressed love for him; it was, however, an effective cross-examination on material well open to the former view.
44 The appellant's mother gave evidence concerning the appellant ordinarily staying at home and having AE as his girlfriend. The video store operator gave evidence concerning the hiring from the store. She could not tell whether the appellant had hired DVDs or videos, or identify the items. The store stocked R rated movies, in which "you know what's going on but we don't actually see the act itself in detail", but not X rated.