Nona v R [2013] ACTCA 39

[2013] ACTCA 39

Court of Appeal (ACT)|2013-10-22

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2013-10-22

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DENNIS MICHAEL NONA v THE QUEEN [2013] ACTCA 39 (22 October 2013) APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – appeal against convictions – multiple offences of acts of indecency and sexual intercourse with a young person – whether jury adequately directed – impact of DNA evidence – failure to direct about opportunity to commit offences – inadequate redirection on significance of complaint evidence – absence of directions about significance of claim of sexual intercourse while appellant asleep or intoxicated – appeal upheld and new trial ordered. APPEAL – appeal against refusal to stay prosecution – Human Rights Act 2004 (ACT), s 22(2) – right to be tried without unreasonable delay – identification of point from which delay to be assessed – long delay between alleged offences and charging of appellant – appellant unaware of possible proceedings – information sworn but not acted on for some years – earliest point is when accused person arrested or served with summons – delay before appellant charged irrelevant in assessing unreasonable delay – significance of prejudice in assessing whether delay unreasonable – appeal dismissed.

Native Title Act 1993 (Cth) s 87A Crimes Act 1900 (ACT) ss 185, 219 Evidence Act 2011 (ACT) s 69 Human Rights Act 2004 (ACT) ss 18, 21, 22 Magistrates Court Act 1930 (ACT) ss 25, 30, 41B, 47 Supreme Court Act 1933 (ACT), ss 20, 37O Magistrates (Summary Proceedings) Act 1975 (Vic) s 47A Askov v The Queen [1990] 2 SCR 1199 Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 Brooks v State of Queensland [2013] FCA 741 Campagnolo v Attrill [1982] VR 893 Domican v The Queen (1991) 173 CLR 555 Jago v District Court of New South Wales & Others (1989) 168 CLR 23 Kelly v Apps (1998) 98 FCR 101 Martin v Tauranga District Court [1995] 2 NZLR 419 R v Kalanj (1989) 1 SCR 1594 R v Mills [2011] ACTSC 109 R v Morin [1992] 1 SCR 771 R v Nona [2012] ACTSC 41 R v Shepherd (1990) 170 CLR 513 R v The Coroner at Mackay; ex parte Butler [1990] 1 QdR 451 R v Upton [2005] ACTSC 52 R v Williams [2009] 2 NZLR 750 The Constitution Act 1982, Schedule B to the Canada Act 1982 (UK), c 11 s 11 European Convention for the Protection of Fundamental Rights and Freedoms, Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952), Art 6(1)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

It will be observed that the matters charged arose out of incidents allegedly occurring between 29 January 1995 and 15 September 1996. The delay between the dates of those alleged events and the date the charges were laid gave rise to the application for a stay.
However, given that the appellant challenges his conviction on counts two, three, four and five it would be inappropriate to consider that appeal until this appeal is disposed of. If this appeal succeeds then the question of a stay would be otiose if a verdict of acquittal was to be entered. If a new trial is ordered, the delay would, by then, have greater significance. If the appeal fails, the stay appeal might be re-agitated.
The facts alleged by the Crown appear in the case statement: The accused is charged with two counts of having sexual intercourse with [JT] who was under the age of 16 years, and two counts of act of indecency on or in the presence of [JT] whilst she was a person under the age of 16 years. He is also charged with an act of indecency in the presence of [HG] who was under 16 years. [JT] (“the complainant”) was born 1 July 1983. [HG] was born 1 February 1982. During the period of 29 January 1995 to September 1996 [JT] was residing with her mother [AD], her sister [HG], and her brother [AG]. During the period 29 January 1995 to 28 July 1996, the family resided at [the first address]. From mid 1995 [AD]’s partner, the accused, moved into [the first address]. The family then moved to [new address]. Both the premises are within the Australian Capital Territory. During the period 29 January 1995 to 15 September 1996 the complainant was 11 to 13 years old. The complainant and her sister did not have contact with the accused after 15 September 1996. Count 1: act of indecency upon a person under the age of 16 years The first sexual act the accused committed upon the complainant occurred while the family were residing at [the first address]. The accused entered Ms [JT]’s bedroom and exposed his penis to her. He took his penis out of his pants and started to stroke it until his penis became erect. He then said words to the effect “come here and touch my dick”. The complainant became upset and told him to get out and that she would tell her mother, to which he replied “no you won’t”. The accused then went closer to the complainant and began to stroke her breast underneath her clothing, telling her to relax and that she would like it. The complainant was crying and asking him to leave her alone. The accused proceeded to put his hand inside the complainant’s pants and underwear and touched the exterior of her vagina. The complainant’s brother then entered the house and called out. Upon hearing this the accused has left the complainant’s room. The complainant did not report this incident to anyone. This incident occurred prior to that the subject of count 2. General evidence of acts of indecency committed upon the complainant After this occasion when the complainant’s mother would leave the house and the complainant and the accused were home, the accused would touch the complainant’s vagina. This occurred on average three times per week. During these incidents the accused would touch the exterior of the complainant’s vagina and or insert his fingers into her vagina. During these occasions the accused would have his penis exposed and would either force the complainant to stroke it or he would stroke it, until he ejaculated. On other occasions the accused would press his penis against the complainant’s mouth and stroke it until he achieved ejaculation. The accused threatened to ‘bash’ the complainant if she told anyone about the incidents. The complainant had seen him physically abuse her mother and so did not tell anyone of the incidents. Count 2: sexual intercourse with a person under the age of 16 years One evening between 21 October 1995 and 25 February 1996, the complainant’s mother [AD] had been taken to Woden hospital. Hospital records show that Ms [AD] was admitted to hospital on 21 October 1995, 22 – 25 October 1995, 9 December 1995, 28 – 30 January 1996 and 25 February 1996. The complainant and her brother [A] were left in the care of the accused. The complainant and [A] were scared and refused to go to bed so the accused allowed them to sleep in the lounge on a mattress with him. The accused lay in between the two children. After [A] had gone to sleep, the accused put his hands down the front of the complainant’s tracksuit pants and underpants and rubbed his fingers on the outside of her vagina. He then inserted his fingers into her vagina, causing her pain. He continued to do this for about five minutes, during which time the complainant cried and asked him to stop. The accused told her to ‘shh’. The accused got off the mattress, removed the complainant’s pants and underpants and undid his own pants. He lay on top of the complainant and told her to open her legs and to not be scared. The complainant kept asking him to ‘please stop’. He tried to kiss her and inserted his penis in her vagina. He continued to have sex with her for about 10 minutes, causing her sharp pain, before moving his penis and ejaculating on the sheet. He then got dressed and told the complainant ‘not to worry and that she would get used to it’. He lay back down next to her and went to sleep. General evidence of acts of sexual intercourse with the complainant After this incident, the accused would have sexual intercourse with the complainant a couple of times a week, usually in her bedroom. Specific uncharged act of sexual intercourse with the complainant On another occasion when the family lived in [first address] Ms [AD] was entertaining friends in her home. This occurred after the incident the subject of count 2. They were consuming alcohol and Ms [AD] was sleeping or passed out within the house. The complainant was asleep in her bedroom and was woken by the accused pulling the blankets off her. The complainant stated “Please don’t. Where is my mum?” and the accused replied “Shh, don’t worry about your mum, she is gone out of the world”. The accused then started to kiss the complainant on the face. He was also touching her breasts and vagina. He then pulled her underwear down, climbed on top of her and inserted his penis into her vagina. The complainant was begging him to stop and he replied “Don’t worry it will hurt a little bit but you will like it.” The accused proceeded to have sexual intercourse with the complainant for approximately 10 minutes. Whilst this was occurring the complainant was telling the accused it was hurting her vagina, to which he replied “It’s okay, it will only hurt for a little bit.” The accused then withdrew his penis from the complainant’s vagina and she felt wetness on her nightie. The complainant placed her underwear back on and stayed in her room for the rest of the night. The following day when the complainant got up to shower she noticed her vagina was still hurting and that there was some blood on her underwear. After showering she went downstairs where the accused was sitting next to her mother. When she entered the room the accused winked at her. Shortly after this incident, the family moved to [new address]. Whilst residing at this new address the incidents of abuse continued at a rate of approximately twice a week for a period of a few months. Count 3: sexual intercourse with a person under 16 In April 1996 the accused had sexual intercourse with the complainant as a result of which she fell pregnant to him. The matter came to light after police attended the residence at [new address] on 15 September 1996 in response to a domestic violence incident involving Ms [AD] and the accused. Whilst dealing with this domestic violence incident, police became concerned about the reaction the complainant was having to the accused being removed from the premises. Police spoke to the accused about whether there was any sexual relationship between himself and the complainant. He denied any relationship. Police left but warned the accused further enquiries would be made. A few days later the accused left the jurisdiction for Badu Island. As a result of these concerns and in consultation with Family Services, the complainant was taken to Canberra Hospital, Child at Risk Health Unit. Whilst there Dr Bragg conducted a medical examination of the complainant, which revealed she was approximately 20-23 weeks pregnant. She was 13 years old at this time. A decision was made that the foetus was to be terminated and the complainant and Ms [AD] travelled to Queensland for this to take place. On 24 September 1996 the complainant attended the Planned Parenthood of Australia clinic in Bowen Hills, Queensland. Ultrasound and assessment performed by Dr Mark Schulberg confirmed the pregnancy was of 23 weeks gestation. The dates on the indictment for Count 3 reflect this. Over the following 3 day period the complainant attended theatre at the clinic. This theatre attendance was to prepare her body for the removal of the foetus. The termination was completed at 8.00 am on 26 September 1996. The termination was conducted by Dr Mark Schulberg. Around the time of the termination 2 vials of the complainant’s blood were taken and the foetus was retained. These were conveyed to the Queensland Forensic laboratory, the John Tonge Centre. The samples were maintained within this facility. On 29 January 1998, the accused provided a signed consent for a medical examination. He voluntarily supplied a blood test for DNA testing purposes. The sample provided by the accused was transported to the John tonge Centre. Barry Blair, a forensic scientist working with the Queensland Health Department completed DNA analysis on the foetus, the accused’s blood sample, the complainant’s blood sample and samples provided by Towanoa Noble and Tom Hokoi. The analysis showed that probability of paternity of the foetus for the accused was 99.98%. In February 2009 the sample material provided to and stored by Queensland Health Forensic Services was forwarded to the Australian Federal Police, namely the Forensic and Data Centres. The complainant also supplied a further sample of DNA via buccal swab on 4 February 2009. DNA analysis and interpretation of the material was undertaken by Senior Forensic Biologist Mojca Keglovic. Following statistical evaluation, it was determined that the DNA profiling results are at least 17,600 times more likely the accused is the true father and the complainant is the true mother of the foetus than any unrelated person chosen at random from the ACT general population. Count 4 and 5: act of indecency in presence of person under 16 (2 counts) Between 28 July 1996 and 15 September 1996, after the family had moved to the [new address], the complainant and her sister [HD] were in the backyard hanging out the washing. They heard a tap on the window and turned to see the accused standing in the bedroom window. He had his penis in his hand and was masturbating himself. The complainant and her sister did not know what to do and finished hanging out the washing.
The trial commenced on 30 July 2012. At the conclusion of the trial on 10 August 2012, the jury returned a verdict of not guilty on count one but guilty on each of the remaining four counts. The matter was adjourned for sentence but, because of this appeal, sentence has yet to be pronounced. The appellant was remanded in custody pending sentence.
An Amended Notice of Appeal was filed on 6 September 2012. The grounds for appeal relating to the trial were framed as follows: (a) The verdicts referred to in paragraphs 1b, 1c, 1d and 1e were against the evidence and the weight of the evidence; (b) The trial judge failed to admit relevant evidence that went to the heart of the matter, namely the hospital records of the complainant, [JT], which went to opportunity for the appellant as well as state of mind of the complainant; (c) The trial judge failed to direct the jury on critical relevant DNA evidence; (d) The trial judge failed to admit relevant evidence about the Australian Federal Police attempts to obtain the appellant’s buccal swab DNA evidence that went to the unreliability of the 1998 DNA analysis; (e) The trial judge introduced in his summing up new evidence, namely that the hospital admission of the complainant’s mother, [AD] was on a Sunday; (f) The trial judge failed to put the defence case adequately or at all; (g) The trial judge failed to direct adequately on complaint; (h) The trial judge failed to put counts 4 and 5 adequately to the jury; (i) The trial judge failed to put that the appellant raised lack of opportunity in relation to counts 2 and 3; (j) The trial judge failed to put that the children were with [JN] or [ME] when the complainant’s mother, [AD], was in hospital;
I will go to each of these grounds in turn insofar as they raise different issues.

I take this to suggest that the guilty verdicts returned were unsafe and unsatisfactory. I consider this ground apart from the specific complaints made about the learned trial judge’s summing up.
The evidence of [JT] directly alleged that the accused had engaged in sexual intercourse with her and had committed acts of indecency both upon her and in her presence and once in the presence also of her sister [HD].
Police interest had been aroused when, in September 1996, [JT] was found to be 20 to 22 weeks pregnant. She spoke to police on 13 March 1997. She denied that the accused was responsible for her pregnancy or had engaged in any sexual misconduct in respect of her other than indecent exposure. She later explained that statement and the lack of any complaint more recent than 2008 because of fear of the accused, although, as at September 1996, the accused was out of her life and that of her mother. There was certainly confusion when she justified her failure to complain earlier on the basis that, in 1997, she was “only 12”. She was in fact 14.
At about the time she must have fallen pregnant she reported to [ME], an acquaintance of her mother [AD], that she had woken up with “glue on my pants and a bit of blood”. Although not then directly implicating them, she did report sexual misconduct on the part of one [JS] and referred to two other men [THH] and [A], a relative of the accused, who were present at a drinking party preceding that event as being possible fathers of her foetus.
On 30 August 2008, she was recorded as wishing to “reactivate” a complaint of sexual assault made against the appellant in 1994. There was no such complaint and no association with the appellant until 1995 at the earliest.
There had been an occasion on 15 September 1996 when there had been a physical altercation between the appellant and [JT]’s mother with whom he was then living. Attending police observed [JT] to be clinging to the appellant in a manner they considered to be unduly affectionate.
There was no association between the appellant and [JT] thereafter.
Federal Agent Michelle Taylor referred [JT] for medical examination. As at 17 September 1996 she was found to be 20 to 22 weeks pregnant. DNA samples were taken from possible fathers, [THH] and [TN]. They were excluded by subsequent testing. [JS], another potential father, could not be tested. He had returned to PNG. The appellant was not excluded. He had submitted voluntarily to providing a DNA sample.
When first asked whether he had engaged in sexual intercourse with [JT] the appellant denied it.
So far as the accusation of indecent exposure to both [JT] and [HD], there was a discrepancy between them as to the activity they were engaged in at that time.
It was apparent that the DNA evidence was a strong component of the Crown case.
There were two DNA reports; one done in 1998, the other September 2009. The report of Barry Blair, a Queensland forensic scientist, concluded that the test he performed, covering 12 sites on the DNA profile, returned a probability of paternity for the accused as 99.988%. He stated “this means that paternity is practically proven”. That translates to a cohort of potential fathers of 0.012% of the local population. Whilst the local population in Canberra was then ˃ 300,000, prepubescent male children and females would need to be excluded from that cohort. It still leaves a considerable number of potential fathers.
The report and evidence of Mojca Keglovic was also received into evidence. Her testing was more sophisticated, given technical advances since 1998, and yielded a likelihood ratio that the appellant had fathered the foetus in question of 17,600 to 1. That is, it was 17,600 times more likely that the appellant was the father than a random unrelated person. That would produce a cohort of potential fathers of ˃ 700 persons in Canberra again subject to reduction for females and prepubescent males.
There was an important qualification to that. Many of the persons in fact at the “parties” were of Aboriginal, Torres Strait or PNG extraction. They were, at least to that extent, “related” as Ms Keglovic noted.
The ethnic bias thus created, Ms Keglovic acknowledged, would increase the likelihood that a person of Aboriginal, Torres Strait or PNG extraction might be the father compared with persons lacking that ethnicity. Thus, Ms Keglovic further acknowledged, the hypothesis that the appellant, though not excluded, was not the father could not be regarded as unreasonable, particularly if there was a cohort of such persons in proximity at the relevant time.
In this context, the evidence of Dr Brian McDonald, a highly qualified molecular geneticist, could not be disregarded. It was his view that, given the relationships involved, the chance of a relative of the appellant being the true father was less than 50 times more likely than a random person. Thus [JS] could not be excluded as a possible contributor to the DNA of the foetus. However, that, by no means exculpated the appellant. It merely reinforces the view that the DNA evidence did not provide conclusive proof that the appellant was the father rather than a person such as [JS].
The issue is whether, even allowing for his denials, the appellant could, nevertheless, reasonably be found, beyond reasonable doubt, to be the father of the foetus in question and, hence, that it could rationally be concluded that he had, knowingly, engaged in sexual intercourse with [JT] a person he knew was under the age of 16 years.
That fact, if so proved, was rationally probative of each of the other matters.
Whilst the DNA evidence alone did not establish paternity beyond reasonable doubt, the other evidence of opportunity and, of course, the direct evidence of [JT], in my view, sufficed to enable a jury properly instructed to conclude that the guilt of the appellant had been established beyond reasonable doubt.
I would dismiss this ground of appeal. I now turn to specific challenges to the summing up.

The submissions of the accused commenced with an acknowledgement, derived from Domican v The Queen (1991) 173 CLR 555, 560 – 561: A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence (13), and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. ... 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. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused ... Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (16). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.
The appellant’s complaint centred on a number of issues. First was the DNA evidence. Mr Purnell SC contended that a request for a further sample for testing from the appellant recognised the “imperfections” of the 1998 testing of the sample then provided and that should have been put to the jury by the trial judge. His Honour extensively and accurately summarised the DNA evidence presented by both parties over pp 31 – 35 of the Appeal Book. There had not been any challenge to the accuracy of his analysis. Rather, it was the inference open to be drawn that was in contest. His Honour, referring to Mr Blair’s test results noted that he had calculated the result as being a 99.883% likelihood that the accused was the father and then characterised that conclusion as “practically proven”. In fact Mr Blair’s conclusion was based on a percentage likelihood of 99.988% not 99.883%. That error did not disadvantage the appellant.
It is apparent that the jury was not told that the Blair Report left a cohort of several thousand persons who could be the father. However, counsel did not request or urge or make such an analysis. It was left to the jury on the basis that the appellant could not be excluded but that there were other men with opportunity and, perhaps, inclination to engage in sexual intercourse with the complainant. All those persons had been excluded save for [JS].
It is also true that his Honour did not refer to the conclusion of Dr McDonald: (AB 586) From the data you’ve been given in the Blair report and the Keglovic report, is it possible that someone else is the father of the foetus in this cast? ... It’s possible.
What his Honour said was that the accused had not been excluded. He referred to Dr McDonald’s evidence only in the context of the choice of data base and told the jury: (AB35) The statistical evidence interpreting the DNA match is expert evidence that you may use in deciding whether you are satisfied beyond reasonable doubt that the accused was the true father of [JT]’s foetus. The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the true father of [JT]’s foetus, but it is not direct evidence of that fact. The statistical evidence must be considered in the light of the other evidence in this case.
Mr Purnell did request a redirection asking that it be put to the jury that Dr McDonald had accepted that the evidence did not exclude the hypothesis that a person other than the accused was the father of the foetus. (AB583)
That redirection was not given.
However, his Honour did, as asked, refer to the accused’s evidence, denied by the complainant, that she had told him that she had somehow engaged in sexual intercourse with him without his knowledge or consent.
That hypothesis would be consistent with the accused being the father of the foetus. It might well have been used by the jury to support the view that the accused had engaged in sexual intercourse with [JT] and that, knowing that the DNA test would support that conclusion, he was endeavouring to create an alternative explanation that would be exculpatory.
In my view, the failure to put the redirection sought, highlighting the hypothesis that one of the other men of relevant ethnic background might be the father, did not, in context, deprive the accused of any reasonable chance of acquittal.
There were other issues. The question of complaint, of threats and some discrepancies were referred to.
Those discrepancies were not, to my mind, such that a jury must have entertained a reasonable doubt as to guilt. The lack of complaint until 2009 of either intercourse or threats until 2009 was glaringly obvious. The jury was properly directed concerning those matters and it was open to the jury to conclude that the complainants should, nevertheless, be accepted beyond reasonable doubt. The discrepancy between the complainants as to the task they were engaged upon when the act of indecency happened, though capable of creating doubt, did not inevitably lead to the conclusion that their evidence should not be accepted as to the occurrence of that act of indecency.
Each of the assertions as to limits on the opportunity of the accused to engage in sexual intercourse were of relative insignificance when viewed in the context of the assertion by the accused that [JT] had told him she had had sexual intercourse with the accused without his knowledge whilst he was drunk. He did not reject that proposition as impossible, indeed, he gave the impression that it was a credible proposition.

The appellant gave evidence in which: (a) he denied that he was alone with J on plenty of occasions (Appeal Book 491); (b) he denied being at the home where J and H lived with their mother (his then partner A) when the children came home from school some days, pointing out that during the week he was a full-time student and stayed in university accommodation (Appeal Book 484); (c) he denied he was often at the house when J and her brother came home from primary school (Appeal Book 490) while A was not there; and (d) he said he never stayed at home with the children while A went to hospital (Appeal Book 494), but that the children would be with Jane or Mary Emmanuel (Appeal Book 502).
There was evidence from J, her sister H and her mother suggesting that there were in fact occasions on which the appellant was left to care for the children. Evidence from Mary Emmanuel was that she provided a lot of care for the children when their mother was unavailable.
Some of this evidence was mentioned by the trial judge in passing in the course of reviewing the evidence given by each witness, although his Honour does not seem to have mentioned the appellant’s various denials of unsupervised access to the children. Perhaps more significantly, the trial judge did not identify this evidence as a specific element in the appellant’s defence. On the other hand, although defence counsel asked his Honour to give numerous re-directions, he did not ask for a redirection about this matter.
Given that neither the question of opportunity, nor the evidence about it, had any particular complexity in this case, I consider that even in the absence of explicit directions the jury probably had no difficulty in identifying either the relevant evidence or its significance. Alone, this gap in the trial judge’s charge to the jury would not in my view justify ordering a retrial. Complaint evidence
The trial judge initially referred to the evidence of J’s complaint to Dr Bragg in 1996, at which point his Honour gave an orthodox set of directions about how that evidence could be used. Those “orthodox” directions deal with how complaint evidence can be used in particular that it may be able to be used, as evidence of the events complained of, that it may make the complainant’s direct evidence more credible (if the jury considers that she had acted in the way the jury might have expected her to act if her claims were true), and how the jury could treat J’s failure to make a complaint of sexual intercourse to Dr Bragg and her explanation for that failure. His Honour made no reference to J’s failure to expand her complaint to include sexual intercourse in a police interview in March 1997, despite explicit questions from police, nor to the circumstances of the making of the complaint that resulted in the bringing of the charges.
In his re-directions, his Honour drew the jury’s attention specifically to the police interview with J in 1997 when there was no expansion of her original complaint to Dr Bragg, and in particular no claim of sexual intercourse with the appellant. His Honour noted the evidence that by that point, the appellant was out of J’s life and so she was unlikely to be still influenced by any threat he might earlier have made to her. His Honour did not, however, repeat to the jury the significant aspects of the complaint directions mentioned above.
His Honour may have taken the view that the jury would remember and apply to the later complaint evidence the directions he had already given in relation to the original complaint. However, as Dowsett J points out, the failure of J to complain of sexual intercourse during the police interview was more significant than her failure to make such a complaint some months previously, and the jury should have had the benefit of a further explanation of those directions, put in the context of the circumstances of the police interview. This is especially the case because the jury needed to look at this complaint evidence from two perspectives, both for what it did contain (allegations of acts of indecency) and for what it did not contain (allegations of sexual intercourse), despite the fact of a pregnancy and the question from investigating police, in the context of her pregnancy, whether the appellant had done anything to her. Alleged sexual activity while intoxicated
The appellant gave evidence that after a three-day party while J’s family were living in Chifley, J had told him that, on the night before the disclosure, she had had sex with him (by implication, while he was asleep or heavily intoxicated). J denied this in cross-examination.
Asked for a redirection about this matter by defence counsel, his Honour read out to the jury the relevant extracts from the evidence of the appellant and J, but made no comment at all on that evidence.
There are a number of ways in which the jury might have approached the appellant’s evidence.
They might have rejected it as untrue, with or without treating it as an invention by the appellant aimed at addressing any jury finding that the DNA evidence established he was in fact the father of J’s foetus.
However, it is also possible: (a) first, that the jury accepted the evidence not only as a true report of a disclosure by J but also as an admission by the appellant; and (b) secondly, that they treated this as proof of the sexual intercourse charged, and either did not consider the significance of the implication that the appellant had not been a conscious participant in the intercourse, or rejected that aspect of the evidence while accepting the rest of it.
The possibility (however remote) that the jury might have accepted the whole of the appellant’s claim about J’s disclosure and gone on to reason that the appellant was, by giving that evidence, effectively admitting to the sexual intercourse as charged meant, as Dowsett J has pointed out, that the jury should have been directed as to issues relating to intention and voluntariness.
Given that, apart from this one claim, the defence had otherwise been conducted entirely on the basis that the appellant denied any sexual activity with J, it may be understandable that these issues were overlooked.
Furthermore, it may be that giving adequate directions about the appellant’s claim about J’s disclosure would in fact have disadvantaged the appellant, to the extent that those directions would have drawn attention to a claim that a jury could easily assess as invented to address the appellant’s knowledge that the DNA evidence would be unfavourable to him, and therefore tending to prove his guilt.
However, neither of these comments means that the failure to give the relevant directions should be disregarded.

Before the appellant’s trial was held, Burns J had refused an application for a permanent stay of these proceedings, and other proceedings, against the appellant on the grounds of the excessive delay in bringing the matter to trial (R v Nona [2012] ACTSC 41). Now that it is possible that a new trial in this matter may be pursued, it is necessary also to determine the appeal from the decision of Burns J in relation to the charges relevant to this appeal (the current charges).
Burns J refused the stay application on the grounds that “delay” for the purposes of the Human Rights Act 2004 (ACT) should be assessed as starting from the dates on which the appellant was served with summonses alleging the various offences (at [92]), and that on that basis, the delay until trial would be in relation to the current charges three years and four months and in the other case three years (at [93] – as Dowsett J points out, this latter period was in fact only two years).
His Honour found that the delay of three years and four months in relation to the current charges was unreasonable and a breach of the appellant’s right under s 22(2)(c) of the Human Rights Act, but that the delay of three years (in fact two years) in relation to the other set of charges was not unreasonable having regard to the relative complexity of that matter (at [94]).
His Honour then concluded that the length of the relevant delay in relation to the current charges was not significant and the delay was not egregious (at [99]), that the applicant had, in a timely manner, asserted his right to a trial without unreasonable delay (at [101]), that it was for the respondent to establish that the appellant had not been prejudiced (at [102]), and that the appellant had brought evidence of prejudice that was in fact inconclusive (at [102]). From that his Honour inferred that any prejudice was minimal and could be dealt with by directions to the jury in the forthcoming trial (at [102]). The stay application was therefore refused (at [106]).
On appeal, the appellant argued that Burns J misunderstood the time frame against which “delay” should be measured, in that the pre-trial period should have been treated as beginning either: (a) in July 1998 when an information against the appellant was sworn and a warrant was issued (but never executed or even brought to the appellant’s notice); or (b) in September 1996 when a police officer asked the appellant whether he was having a sexual relationship with the complainant J. Conclusions – stay appeal
I agree with Dowsett J’s conclusion, namely that Burns J’s decision to refuse the stay of proceedings was not infected by error in his Honour’s approach to the starting point of the period to be considered in assessing unreasonable delay, and I agree generally for the reasons given by Dowsett J.
I note also that, as was pointed out in Russell v Pangallo [2012] ACTMC 4 by Magistrate Mossop as he then was (at [72]), the significance of starting the relevant period at the time when the information was sworn, as was done in R v Kalanj (1989) 1 SCR 1594 on which the appellant relies, was in that case to reduce the period to be taken into account in assessing delay, and in particular to exclude a period of eight months starting when the appellant was arrested and released without charge and ending when an information was sworn. Magistrate Mossop noted that: both dissenting judgments in that case found that the arrest marked the beginning of the period during which the defendants were subject to a charge. They pointed to the prejudicial impact upon the defendants and their incapacity in the circumstances of that case to have charges brought which they could then defend.
In particular, for present purposes I agree that the period that will be relevant for an assessment of unreasonable delay is the period beginning when a person is arrested pursuant to a warrant or summonsed to appear before the court, although there may also be cases in which an arrest without warrant is the appropriate starting point for the period. However, the period does not in my view begin when an information is sworn without the knowledge of the person, and it certainly does not begin by reason of a police officer merely asking a person about a matter that later turns out to be relevant to proceedings against that person. Other matters
However, in agreeing with Dowsett J’s reasoning generally, I must express my respectful disagreement with one aspect of his Honour’s judgment (which does not affect his conclusion about the calculation of pre-trial delay) and of the approach taken by Burns J (also not fundamental to Burns J’s conclusions). I also wish to comment on one submission made on behalf of the appellant. Prejudice and unreasonable delay
First, given the distinction drawn in the Human Rights Act between the right to a fair trial (s 21(1)) and the right to a trial without unreasonable delay (s 22(2)(c)), I do not agree that prejudice needs to be demonstrated before a finding of unreasonable delay may be made.
The case of Martin v Tauranga District Court [1995] 2 NZLR 419 (Martin), was decided by the New Zealand Court of Appeal. Cooke P adopted the statement made in the Canadian case of R v Morin [1992] 1 SCR 771 (Morin) by Sopinka J as follows at 424: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, ‘[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?’. While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for delay; and 4. prejudice to the accused (citations omitted).
However, Cooke P did not in fact consider the role of prejudice in determining whether there had been undue delay. Richardson J at 426 explicitly reserved the question whether prejudice was necessary to a finding of undue delay; Casey J at 430 said that proven prejudice should not be relevant in determining whether there had been undue delay, and that prejudice was more naturally relevant to remedies; Hardie Boys J did not consider the relevance of prejudice; and McKay J, while suggesting that “prejudice to the accused ... is a relevant factor”, did not make it clear whether prejudice was relevant to whether the delay was undue or to the appropriate remedy, and noted that the issue did not need to be determined for that case (at 434).
In summary, Martin was not authority for the proposition that prejudice was to be considered in determining whether delay had been unreasonable.
Connolly J in R v Upton [2005] ACTSC 52 (Upton) at [22] mentioned Martin in giving his reasons for granting a stay that would be terminated if the prosecution agreed to pay the accused’s costs for an aborted trial and a late-vacated trial. His Honour had noted (at [11] to [14]) that prejudice was necessary in granting a stay under common law principles, and said that in making his orders he had been mindful of the New Zealand and Canadian approaches to the human right to be tried without unreasonable delay (at [23]), but did not explicitly undertake a process of finding unreasonable delay and then considering a remedy. There is nothing in the judgment in Upton that can be identified as a conclusion that prejudice is a pre-requisite to a finding of unreasonable delay under the Human Rights Act.
In R v Mills [2011] ACTSC 109 (Mills) Higgins CJ also mentioned Martin in giving his reasons for granting a permanent stay after an aborted trial and the delayed listing of a second trial. Like Connolly J, his Honour mentioned Cooke P’s adoption of the words of Sopinka J in Morin, but did not explicitly undertake a process of finding unreasonable delay and then considering a remedy. His Honour did mention prejudice accruing to the accused, but those comments were interwoven with comments about, on the one hand, the causes and circumstances of the delay and on the other hand, the availability of remedies including a stay of proceedings. I do not consider that Mills can be treated as authority for the proposition that prejudice is a matter to be taken into account in deciding whether there has been unreasonable delay for the purposes of the Human Rights Act.
After the decision in Upton, Martin was considered by the Supreme Court of New Zealand in R v Williams [2009] 2 NZLR 750, and the court departed in some respects from the approach taken in Martin. In particular, the Supreme Court pointed out explicitly (at [11]) that there can be, in the terms used in New Zealand, “undue delay” without any prejudice to a fair trial. Furthermore, the fact that undue delay neither requires nor implies prejudice means that, as the Supreme Court explained, “a stay is neither a mandatory nor a usual remedy for undue delay”.
A similar approach was taken by the House of Lords in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 (AG’s Reference), in which a majority of the House of Lords concluded that unreasonable delay in bringing an accused person to trial was a breach of the relevant right set out in the European Convention on Human Rights irrespective of prejudice, but that the appropriate remedy for such a breach would depend on the circumstances, and that in particular a stay of proceedings would not be the appropriate remedy unless there was incurable unfairness (that is, that a fair trial was no longer possible or it would be otherwise unfair to try the accused person) (at [29]). Obligation to prove or rebut prejudice
As to who is obliged to prove or rebut prejudice, if it is correct: (a) that unreasonable delay may be found irrespective of prejudice; (b) that a stay is not the usual remedy for unreasonable delay; and (c) that the granting of a stay would generally require a finding that there was prejudice (unfairness as described in AG’s Reference) or something else that could only be addressed by a stay (egregious delay, or prosecutorial misconduct, as mentioned in Williams); then it cannot be said that a finding of unreasonable delay gives rise to a presumption of prejudice leading in turn to a presumption in favour of a stay.
The Canadian approach reflected in Morin is different, in that a finding of prejudice is built into the assessment of whether the delay was unreasonable rather than into the determination of a remedy, but in Morin the majority concluded at 808 that, despite the scope for inferring prejudice from the delay in that case, the absence of evidence of prejudice led by the accused, and the presence of evidence that the accused had taken no action in response to an invitation to seek an earlier date for her trial, permitted a finding that “the accused was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasioned by the delay”. That is, under the Canadian approach, the capacity to infer prejudice does not give rise to a presumption of prejudice that can only be rebutted by the prosecution.
Of course, there may be cases in which the particular circumstances permit such a strong inference of prejudice that it would be necessary for the prosecution to exclude prejudice in order to avoid a stay being ordered. However if, as the United Kingdom, New Zealand and Canadian authorities seem to suggest, there is no basis for starting with a presumption of prejudice, it does not seem to advance matters to say, as Higgins CJ did in Mills, (at [30] but without citing any authority), that: The right to a fair trial challenged by delay is not answered by the accused failing to demonstrate unfair prejudice. It is for the prosecution to demonstrate a lack of unfairness. Status of rights created by Human Rights Act
Finally, I note that counsel who appeared for the appellant on the stay appeal made submissions in support of the appeal against Burns J’s decision that can be summarised as follows: (a) The Human Rights Act does not only provide a basis for statutory interpretation (under s 30 of that Act), and for remedies (under Part 5A of that Act) where public authorities disregard the rights explicitly provided for in the Human Rights Act, but also creates or recognises “free-standing” rights, which do not depend for their impact on the enforcement provisions of the Human Rights Act. (b) Those independent rights may be protected by the Supreme Court in the exercise of its power to do justice in the territory (Supreme Court Act 1930 (ACT), s 20 and Kelly v Apps (1998) 98 FCR 101 at [19]). (c) In this case, the right to be tried without unreasonable delay was breached; Burns J had miscalculated the length of the delay, and once the correct period of delay is calculated there was clearly an unreasonable delay. (d) Conceding that no prejudice and no extended anxiety was asserted, the appellant should nevertheless have a remedy simply for the breach of the right, and the only “worthwhile” remedy is a stay.
The correct way to calculate the period of pre-trial delay is dealt with at [0] above. At this point I wish only to record that I do not agree that the Human Rights Act requires or permits s 20 of the Supreme Court Act, to the extent that it confers jurisdiction on the Court, to be read as conferring powers on the Court to provide remedies for breaches of “free-standing” human rights, to the extent that such remedies go beyond recognised common law remedies and the remedies provided for by the Human Rights Act itself, or by other specific legislation, properly interpreted by reference to the Human Rights Act.
No authority was identified for the proposition that the Human Rights Act creates “free-standing rights” that, by reason of their specification in the Human Rights Act, may be protected by the Supreme Court in ways not provided for by either the common law or by the Human Rights Act itself. The fact that neither in Upton nor Mills did the court provide a detailed explanation of how the Human Rights Act justified the orders ultimately made does not in my view render either of those decisions authority for a general proposition that the effect of the specification of rights in the Human Rights Act is to confer on the court a “jurisdiction” to operate, in relation to those human rights, in ways not recognised or provided by the Human Rights Act itself.

The complainant, J was born on 1 July 1983. The complainant, H was born on 1 February 1982. Prior to September 1996 the appellant was in a relationship with the complainants’ mother, A. At all material times J, H and their brother lived with A, initially in Chifley and later in Kaleen. I understand both places to be within the Australian Capital Territory.
A jury found the appellant “guilty” of two counts of engaging in sexual intercourse with a person under 16 years of age, namely J (“count 2” and “count 3”), one count of committing an act of indecency in the presence of a person under the age of 16 years, namely J (“count 4”) and a further count of committing an act of indecency in the presence of a person under the age of 16 years, namely H (“count 5”). He was acquitted on another count of committing an act of indecency upon J (count 1”).
The counts were alleged to have occurred as follows: count 1 – between 29 January 1995 and 26 February 1996; count 2 – between 20 October 1995 and 26 February 1996; count 3 – between 9 April 1996 and 30 April 1996; count 4 – between 28 July 1996 and 15 September 1996; and count 5 – between 28 July 1996 and 15 September 1996.
Apart from the counts charged, J alleged that the appellant had exposed himself to her, and had sexual relations with her on numerous other occasions. H also claimed that the appellant had exposed himself to her on other occasions. The respective complainants gave quite specific evidence concerning counts 1, 2, 4 and 5. However J gave no direct evidence concerning count 3. The prosecution relied primarily upon the fact that on 20 September 1996 J was found to be about 22 weeks pregnant, and upon J’s general complaint that the appellant had sexual relations with her during 1995 and 1996. The pregnancy was terminated, but the foetus was retained for DNA testing. Such testing did not exclude the appellant as the father. In fact, it suggested a high degree of probability that he was the father.
Counts 4 and 5 arose out of an alleged incident in which the appellant was said to have exposed himself to J and H at the same time. However their respective versions of the event were significantly different.
The appellant’s defence to each count was a simple denial. However he sought to support his denial, and otherwise undermine the prosecution case in various ways, including by reference to:  want of fresh complaint;  alleged ill-will on the part of J towards him;  lack of opportunity;  alleged unreliability of the DNA evidence;  the appellant’s claim that J had told him that she had sexual intercourse with him whilst he was asleep or unconscious as the result of the consumption of liquor; and  certain criticisms of the evidence of the witness, Colrain.
Most of the grounds of appeal deal with one or other of these matters, or with the way in which the trial Judge dealt with them in his charge and in redirections. In the amended notice of appeal, it is asserted that the convictions were against the evidence and the weight of the evidence. This ground was not pressed in argument and is plainly unarguable.
The appellant was charged with other offences against H, but they were the subject of different proceedings. Prior to the appellant’s trial on the present counts, he applied to stay proceedings in respect of all charges, including those of offences against H. The application was unsuccessful. The appellant now appeals against the refusal of a stay of proceedings on counts 2, 3, 4 and 5. I shall deal with that aspect of the appeal after I have dealt with the appeal as it concerns the trial.
The appellant’s submissions on appeal are a little difficult to follow. They are outlined in three documents, one being described as “submissions … re appeal”, the second being described as “further submissions” and the third being described as “submissions in reply”. However the last-mentioned document seems to go somewhat further than one would normally expect in a reply. It is also difficult to know which of the numerous grounds of appeal identified in the notice of appeal are pressed, and how the submissions relate to them.

The appellant appeals against rulings made in the course of the trial concerning the admissibility of certain hospital records. Counsel for the appellant sought to tender almost 30 pages of such records concerning attendances by J at the Woden Valley Hospital between 12 April 1996 and 2 July 1996. That period included most of the period during which she must have fallen pregnant and some months thereafter. The records are largely hand-written. The hand-writing suggests that they were made by a number of different people. It seems that J was then experiencing significant health problems. Counsel for the appellant sought to tender the records in bulk, apparently pursuant to s 69 of the Evidence Act 2011 (ACT) (the “Evidence Act”), as business records. In a jury trial, it will generally be inappropriate to make such a bulk tender, particularly when the documents are likely to deal with technical matters, not easily understood by the jury, and many matters of doubtful, or no relevance.
There was considerable debate concerning the relevance of the various items. The prosecution objected to their receipt in evidence, partly on the basis of relevance, and partly because they had not been put to J for comment in the course of her cross-examination. His Honour eventually admitted some parts and excluded others. The appellant appeals against his Honour’s refusal to receive certain of the records into evidence. The precise nature of the appeal concerning these rulings is unclear. However, in para 9 of his submissions on appeal the appellant provides a list of rulings which, I infer, are those against which he appeals.
The appellant asserted that the records bore upon the relationship between J and the appellant, and between J and her family, particularly her mother, A. The records also seem to relate to concerns about J’s attitude to her pregnancy and other health issues. Some of the records relate to clinical findings. Other entries relate to information derived by the persons making them from other persons, in some cases probably family members. There are also conclusions as to J’s emotional and mental state. Assuming that the appeal is as to the “precise rulings” identified in para 9 of the outline, I shall deal with them individually.
The first relates to a ruling which appears at ts 442 (AB 529) l 5. His Honour there excluded a passage from the hospital records on the ground that it simply repeated a matter which was already in evidence. Counsel for the appellant accepted that ruling as correct. I cannot see any proper basis for his now seeking to appeal against it.
The next aspect of the appeal concerns a passage from the records dated 15 April 1996 at 1800 hours. It appears at ts 442 (AB 529) ll 27-35 as follows: … mother and three children seen briefly and then mother on her own. Mother states family situation is now stable. Family Services were involved for a while but not now. Mother states [J] became difficult after relatives from PNG had been out to stay and she wanted to return to PNG with them. Difficult to manage, ran away and contact Family Services. Mother states patient settled again, generally well behaved. All children reportedly get on well with mother’s boyfriend, not living with them.
The trial Judge refused to admit this statement into evidence on the ground that there was no disclosure of the identity of the person providing the information. Counsel for the appellant submitted that it was clearly information provided by J’s mother. Although his Honour rejected that submission, I consider that counsel was correct. The appellant seems to have wanted to tender the statement because it disclosed that A’s children got on well with the appellant, and that he was not, at that time, living with the family. Assuming that the documents were business records, the passage may have been relevant to the issues identified by the appellant. However there was a substantial amount of other evidence going to both issues. The first seems not to have been in dispute. As to the second, the evidence suggests that the appellant was living partly at A’s house and partly in university accommodation. The exclusion of this evidence had no consequences for the trial.
The next ruling is at ts 443 (AB 530) l 22. It concerns a note, also made on 15 April 1996, recording that A had said that she was not sure about whom she would call if she needed help, then agreed that she could call on the appellant. This statement was irrelevant and was properly excluded by the trial Judge.
At ts 444 (AB 531) l 6 his Honour refused to admit a note dated 17 April 1996 as follows: Discussed support people for [J]; mother says [J] tells worries to mother’s boyfriend but doesn’t talk to her.
The trial Judge appears to have excluded this evidence on the basis that J’s mother could not have known what J had said to the appellant. It is impossible to know whether A knew that J was telling the appellant about her worries, or whether she merely suspected or assumed as much. It may be that a case could have been made for receipt of the evidence pursuant to s 69(2) of the Evidence Act, but counsel seems not to have sought to do so. In any event, in light of other evidence, such evidence would have been of negligible significance in the trial.
At ts 444 (AB 531) ll 13-44 the trial Judge dealt with the following entry: [J] and her mother had argued in the car on the way to hospital school, and [J] stated that her mother had put her out of the car. [J] went off to TAFE counselling office and counsellors contacted [J’s] uncle, who has taken [J] to stay with him.
The trial Judge could see no relevance in that statement, and neither can I. It was correctly excluded.
At ts 445 (AB 532) ll 2-30, the trial Judge dealt with an entry dated 29 June 1996 as follows: … “Patient admitted to Woden Valley following seizure April ’96 under Dr Crawford.” … “Very upset with mother at present as mum has gone out today with her boyfriend. Siblings say they are unable to contact mother. Mother’s boyfriend returned from Torres Strait today.”
The relevance of the statement was that it indicated that the appellant had returned from the Torres Strait on that day. His Honour allowed that part of the statement to be read. Hence there is no basis for any appeal against the ruling.
In summary, all of the extracts from the records which were excluded were of little or no relevance to the case. Some were correctly excluded. In the cases in which they were arguably admissible, it can be said with complete confidence that had they been received, it is inconceivable that they would have affected the outcome of the trial.

In his submissions in reply, the appellant challenges rulings as to admissibility made by the trial Judge in connection with the DNA evidence. He also challenges directions given by the trial Judge concerning the DNA evidence. Before considering those aspects of the appeal, I should outline that evidence.
As I understand it, the DNA evidence related primarily to count 3. That count arose out of J’s pregnancy. The prosecution case depended upon showing that the appellant was the father of the foetus, and that he had intercourse with J at the time of conception. It seems that the evidence indicated that the conduct allegedly comprising count 2 occurred on 25 February 1996. That date was fixed by reference to A’s admission to hospital. The indictment alleged that count 3 occurred between 9 April and 30 April 1996. That period was narrowed to between 18 and 30 April 1996 by reference to periods during which J was in hospital. Apart from evidence of uncharged acts of intercourse at unspecified times, there was no direct evidence of an act of intercourse at that time. The DNA evidence was not directly relevant to the other charges. However, if accepted, it may have bolstered J’s credibility generally. It might also have shown that the relationship between J and the appellant was not that which would have been expected, given their respective ages and his relationship with A, J’s mother.
The DNA evidence came from three sources. The first was a report by Barry Robert Blair dated 6 April 1998. Mr Blair was a forensic scientist employed by the Queensland Department of Health at the John Tonge Centre for Forensic Sciences in Brisbane. On 26 September 1996 he was supplied with a blood sample supplied by the complainant, the foetus, a swab taken from TN, a blood sample from TKH and subsequently, a blood sample supplied by the appellant. TN and TKH had apparently been identified as possible fathers although there was no evidence at the trial that either had sexual relations with J. TN was not much older than J. Their mothers were friends. On occasions J and TN slept in the same room. J suggested that TN had tried to touch her inappropriately but made no other allegation against him. It was not suggested to J in cross-examination that she had ever had sexual relations with any man other than the appellant.
Mr Blair reported that the DNA of the foetus contained paternal genes not possessed by either TN or TKH, leading to their exclusion as potential father. The foetus possessed a number of paternal genes which were also possessed by the appellant. This led Mr Blair to conclude that “the probability of paternity for [the appellant] is 99.988%” meaning that “paternity is practically proven”. Mr Blair’s report was received in evidence by consent, and without his being called for cross-examination.
The second source of DNA evidence was Ms Mojca Keglovic, a team leader and senior forensic biologist employed by the Australian Federal Police. On 4 February 2009 Ms Keglovic received a swab taken from J and five vials of blood said to be from the appellant, TN and TK and foetal samples. It was discovered that the sample said to be from the appellant was not his. Subsequently, the Queensland authorities provided another sample, said to be that of the appellant. The appellant did not suggest that the sample eventually analysed was not his.
Ms Keglovic gave oral evidence concerning the nature of DNA testing and the methods used in her own analysis. She explained that DNA analysis is used to exclude potential candidates as a parent. If a candidate is not excluded, a statistical evaluation is then carried out to determine the probability or otherwise of that candidate being the parent. This statistical evaluation is performed by reference to a relevant database, based upon a selection of random samples from a particular geographical region or ethnic group. As a result of her analysis Ms Keglovic concluded that TN and TKH were excluded as being the possible father of the foetus, but that the appellant could not be excluded. Using a statistical evaluation method based upon a random survey of the ACT general population, Ms Keglovic concluded that it was “at least 17,600 times more likely (that) [the appellant] is the true father, and [J] is the true mother of the product of the conception than if an unknown, unrelated person chosen at random from the ACT general population, is the true father and [J] is the true mother”. Ms Keglovic further concluded that: In my opinion the DNA profiling results provide strong scientific support for the proposition that [the appellant] is the true father and [J] is the true mother of the product of conception ….
Ms Keglovic agreed that race could make a difference to the relevance of the statistical base, but said that this was taken into account in the calculation.
Ms Keglovic was asked about Mr Blair’s report. She said that Mr Blair had used an older system, now superseded. It compared different aspects of the DNA strands from those considered by her more contemporary method. She considered that Mr Blair’s conclusions were substantially consistent with her own. However he approached the question of probability in a different way from that which she had adopted. The two methods produced apparently different results. However each approach seems to have demonstrated a substantial probability that the appellant was the father.
In cross-examination Ms Keglovic said that DNA testing was now more reliable than it had been in 1998. She conceded that the systems were regularly changing, but said that such changes were more the result of automation and the application of robotics than of any significant improvement in actual testing procedures. She said that had she been informed that the appellant’s antecedents were Papuan and from the Torres Strait, she would have used a different population base. She agreed that she could not exclude the possibility that some person other than the appellant was the father of the foetus. Ms Keglovic appears to have accepted as a possibility that if J came from New Guinea, “the likelihood of somebody from New Guinea being the father would be greater than an unrelated Caucasian” In re-examination she said that she would not expect the result, using the PNG database, to vary other than slightly from the result using the ACT database. She said that she had also recalculated probability using an indigenous database, the Riverine database (from New South Wales, extending into Queensland), which yielded a figure of 19,000 instead of 17,600. She also used a second indigenous Australian database for the Fitzmaurice region (at the “top” of the Northern Territory), producing the figure of 18,000 in place of 17,600.
The appellant called Brian Leslie McDonald, a consultant molecular geneticist. He was clearly highly qualified in the relevant field. He had read the reports of Mr Blair and Ms Keglovic. He agreed that the reliability of DNA testing had improved since 1998. He said that:  Mr Blair’s methods would not accord with currently recognized practice for excluding men as fathers;  such testing was done in two stages, firstly with a view to excluding a person and secondly, using frequencies of the particular components of the DNA makeup as a basis, calculating the likelihood that the man is the father, compared to a number of other scenarios;  having regard to the data in the Blair report and the Keglovic report, it was possible that someone other than the appellant was the father; and  the proper database for calculating probability was that of the potential father or, in the absence of evidence as to the “genetic makeup” of the potential father, the database of the area of conception.
Dr McDonald said that it was: … conservative to use a database the same as [the appellant’s], but that’s necessarily determined by the evidence. So if the social cohort, for example, of the mother is one that includes people of a similar genetic background to [the appellant’s] then that determines the database to be used.
He then indicated that he understood that the appellant had an Aboriginal background and was told that his background was a mixture of Torres Strait, Aboriginal and Papuan. Dr McDonald then said: Yes, and the child certainly has a single genetic type D21 that would suggest that – which the mother does not have, which would suggest that the father was of Aboriginal background, or the only other place that those particular markers is seen is in Papua New Guinea. So it’s an historical, very rare, particular genetic type.
Dr McDonald also said that there was a correction method adopted to take account of what he called “background relatedness”. This apparently deals with the possibility or likelihood that the assumption, that nobody in the sample group is related to anybody else in the group is possibly, or probably wrong.
In cross-examination Dr McDonald said that currently, much more information is derived from DNA testing than was the case in 1998. He agreed that the profiles obtained by both Mr Blair and Ms Keglovic were “unambiguous”. He agreed that Mr Blair had tested 12 sites on the DNA strand whilst Ms Keglovic had tested nine sites. However the nine sites which she tested provided information which was “dramatically greater” than that provided by Mr Blair’s tests. This seems to have meant that some of the information derived by Mr Blair may have been of little use in identifying the father, such information being as to characteristics which are shared by a large proportion of any sample group. On the other hand Ms Keglovic’s testing was more likely to provide useful information. He also said that Mr Blair’s testing would not currently “pass muster” as a means of excluding a man who is not the father. He agreed that both Mr Blair’s test and Ms Keglovic’s tests had excluded TN and TKH, and that neither test had excluded the appellant. There was further cross-examination concerning the various databases, but it seems not to have taken the matter further. Dr McDonald was then asked and replied: Do you disagree with Ms Keglovic’s opinion that there is strong scientific support for the proposition that [the appellant] is the true father and [the complainant] is the true mother? - - -No.
In re-examination he said that the statistical figures related to the relative likelihood of the subject person being the father of the child as opposed to any other, unrelated person, and not to the possibility that a relative of the subject person might be the father. If one were considering whether the subject person, or somebody related to him was the father, the likelihood that the subject person was the father might be less than 50 times more likely that that a relation was the father.

At para 2 of the appellant’s submissions in reply, he complains that he was “thwarted in his ability to attack the reliability of the 1998 Blair DNA analysis” by the trial Judge’s erroneous rulings. The relevant rulings are then identified.
The first is at ts 266 (AB 352) l 25 and ts 267 (AB 353). The passage deals with the fact that a police officer (Ms Darragh) had, on 2 February 2002, taken a buccal swab from J, apparently for the sake of “thoroughness”. The intention was that there be a fresh DNA analysis. The police also sought to obtain a further sample from the appellant. According to counsel, he advised the appellant to resist such attempts because he wished to explore, at the trial, the improvements in DNA technology which had occurred since Mr Blair’s test.
In cross-examining Ms Darragh, counsel seems to have sought to connect the request to the provision by the Queensland authorities of the wrong vial as the blood sample taken from the appellant. Apparently the vials were identified only by numbers. The vial supplied bore a number other than that attributed to the appellant’s sample. The evidence at ts 267-268 is a little confused, perhaps because the transcriber confused the word “file” with the word “vial”. The witness seems to have distinguished between the two, saying that the file bore both the appellant’s name and the relevant vial number, but the vial bore only a number.
At this stage the prosecution became concerned that counsel for the appellant was seeking to challenge continuity of handling of the appellant’s blood sample, an issue which she had understood to be conceded. Counsel for the appellant said that he was not challenging continuity but wanted to be able to say to the jury that things can go wrong with DNA evidence, an example of which was the forwarding of the wrong vial by the Queensland authorities. After extensive argument, his Honour ruled at ts 282 (AB 368) ll 39-45 as follows: Members of the jury, you heard before lunch that there had been an error in the vial which came from Queensland to Canberra, and that when the error was determined the vial of [the appellant] blood was obtained from Brisbane and brought to Canberra. I consider that matter not to be relevant and, therefore, you must reject it, put it aside. We are concerned with the testing of the right blood, not the testing of the wrong blood. …
Clearly, counsel did not propose to challenge continuity of handling. He rather proposed to use the mistake as a basis for undermining the DNA evidence in a general way, by creating suspicion about the whole process. In those circumstances, evidence as to the earlier error was, as his Honour held, irrelevant. The appellant was at liberty to suggest to the jury that “accidents do happen” but not to adduce evidence of examples supporting that adage.
Counsel also seems to have wanted to suggest that the request for a further sample from the appellant was motivated by concern about some aspect of the earlier sample and/or testing, perhaps related to improvements in DNA testing since Mr Blair’s test. I suspect that counsel was confusing the taking of a DNA sample for analysis with the procedure of analysis. Whilst there had been advances in both areas, I do not understand the expert evidence to have suggested that new procedures for taking samples had necessarily improved the accuracy of the process as a whole. I understand the expert evidence to be that the process of analysis is now much more effective in excluding possible candidates. Further, there was no suggestion by Dr McDonald or Ms Keglovic that there was any reason to doubt the quality of the appellant’s sample.
As far as I can see, there was no evidence as to why the police had sought a further sample, although it may be that counsel for the appellant had derived such information in the course of his involvement with the appellant’s refusal to provide it. If so, and if it went to the reliability of the whole DNA process, one might have expected evidence of it, and that it would have been put to Ms Keglovic and Dr McDonald for comment.
On the evidence as it is, there can only be speculation about why the police sought a further sample. The matter was irrelevant.
A further matter was raised on appeal. At the trial counsel for the appellant sought to adduce evidence of the requirements of the Family Court concerning DNA testing for the purpose of determining paternity. No doubt the Family Court has substantial experience in this area. However its rules and procedures can hardly provide admissible evidence as to the nature and reliability of DNA evidence for use in other courts. That is a subject for expert evidence. His Honour was correct to exclude this evidence.

As I have said, I understand the DNA evidence to have related directly only to count 3. Its relevance to the other counts was more limited. If accepted, it may have bolstered J’s evidence and/or demonstrated that the relationship between her and the appellant was not that which one might have expected, having regard to their respective ages and the appellant’s relationship with J’s mother. The jury ought to have been so directed.
Secondly, the trial Judge should have directed the jury as to the inter-action between the evidence as to the likelihood or probability of the appellant being the father on the one hand, and the jury’s function on the other, particularly having regard to Mr Blair’s reference to paternity having been “practically proven” and Ms Keglovic’s evidence that there was “strong scientific support” for the proposition that J was the mother and the appellant, the father.
Thirdly, the jury should have been told that on count 3, the prosecution case was that because the appellant was the father of the foetus, it might infer that the appellant had intercourse with J at the time of conception. As I have said, that time was fixed by reference to periods during which J was in hospital.
Fourthly, the prosecution case on count 3 was dependent upon the appellant’s being shown to be the father. The jury should have been told that the appellant’s paternity was an “indispensable intermediate step” in the reasoning process, leading to satisfaction as to guilt. As a result, before it could convict on count 3, it had to be satisfied beyond reasonable doubt that he was the father. See R v Shepherd (1990) 170 CLR 573 at 579 and 585.
I do not understand the appellant to complain about the trial Judge’s treatment of these matters.
In his charge to the jury the learned trial Judge effectively summarized much of Ms Keglovic’s evidence, particularly concerning the statistical calculations, including her conclusion as to the statistical likelihood that the appellant was the father. He also referred to the question of racial variation. His Honour pointed out that Ms Keglovic had been asked and answered as follows: You can’t exclude the possibility that some other person, other than [the appellant], is the father of the foetus, can you?- - -I can’t exclude that, because I haven’t tested everybody in the population. So no, not at those sites anyway.
His Honour then referred to Dr McDonald’s evidence that the Blair and Keglovic tests demonstrated “an unambiguous profile, single profile for each of the people tested in this matter”, and that “… the results for each of [J and the appellant] are not in doubt, in my view”.
His Honour then discussed the DNA process in a general way and summarized Mr Blair’s report, referring to his view that the appellant “was determined to be the father … to the extent of 99.988%”, although his Honour also referred erroneously to 99.883%. His Honour then referred to Ms Keglovic’s method which he said, had “overtaken the polymerase chain reaction test method” used by Mr Blair, saying that her method was “different” and “more up to date”. He referred to the ACT database and to the likelihood ratio of 17,600, suggesting that it was 17,600 times more likely that the appellant, rather than that any other unknown, unrelated person, chosen at random from the ACT general population, was the father.
The evidence as to the appropriate database and the consequences of using different databases is not entirely satisfactory. The appropriate database seems to vary, depending upon the persons who may have relevantly contributed DNA. In particular it is not clear how use of a database appropriate to the appellant’s ethnic background would have affected the calculation of the likelihood that he was the father. There appears to have been an unresolved difference between Ms Keglovic and Dr McDonald as to the extent to which racial factors had been taken into account in the ACT database. The matter was further complicated by Dr McDonald’s statement that if the question of probability was to be determined as between related persons, the suspected father might be less than 50 times more likely to be the father. The appellant had suggested that some of his relatives had been at parties at A’s home.
His Honour then observed: So, members of the jury, both test methods have not eliminated the [appellant] as being the true father of the foetus conceived by [J]. In determining whether the [appellant] was the true father of the foetus conceived by [J], you should, I suggest, bear in mind that the period within which [J] conceived the foetus was 18 to 30 April 1996.
His Honour concluded this part of his charge at ts 29 (AB 35) ll 21-31 as follows: Members of the jury, as Mr Purnell, learned senior counsel for the [appellant], put to you in relation to your use of the statistical interpretation of both test methods, the statistical evidence interpreting the evidence – the significance of the DNA match – is not evidence of the probability that the [appellant] was the source of that DNA. The statistical evidence interpreting the DNA match is expert evidence that you may use in deciding whether you are satisfied beyond reasonable doubt that the [appellant] was the true father of [the complainant’s] foetus. The statistical evidence is undeniably strong evidence pointing to a conclusion that the [appellant] was the true father of [the complainant’s] foetus, but it is not direct evidence of that fact. The statistical evidence must be considered in the light of the other evidence in this case. Requests for redirections
Following the completion of the learned trial Judge’s charge, counsel for the appellant requested redirections or further directions, from time to time using language which was at least mildly insulting to his Honour, and therefore unwarranted and inappropriate. Counsel asserted that his Honour had “not put correctly or in proper context the DNA evidence”. It was also suggested that his Honour had “even pick-pocketed and cherry-picked some of the answers of Dr McDonald where you left out the critical answer that he gave that it was possible that someone else was the father of the foetus”.
The requests for redirections appear at ts 495 (AB 582) to ts 501 (AB 588) l 35. The first complaint related to a passage in Dr McDonald’s evidence which appears at ts 354 (AB 441) ll 9-11 as follows: From the data that you’ve been given in the Blair report and the Keglovic report, is it possible that someone else is the father of the foetus in this case?- -- It’s possible.
Although his Honour did not refer specifically to that part of Dr McDonald’s evidence, immediately before his summary of that evidence he had referred to Ms Keglovic’s evidence and, in particular, to the following passage from her cross-examination: You can’t exclude the possibility that some other person, other than [the appellant], is the father of the foetus, can you? - - - I can’t exclude that, because I haven’t tested everybody in the population. So no, not at those sites anyway.
His Honour’s summary of Dr McDonald’s evidence clearly highlighted the fact that the process was initially one of exclusion and that, if a person were not excluded, then an exercise would be carried out to determine the likelihood of his being the father, as opposed to the possibility that somebody else might be. His Honour referred to one passage of the evidence in which Dr McDonald said: [The appellant] was tested and he was not excluded, but that doesn’t necessarily mean that he is the father. You then do a calculation based on the question, is he the father or what is the probability that he is the father compared to another man picked at random.
His Honour also referred to the following passage: [The appellant] has been identified as a potential father. We have not excluded him, but we need to know what the background of the potential father is. So if the social cohort, for example, of the mother is one that includes people of a similar genetic background to the [appellant’s] then that determines the database to be used.
His Honour made it quite clear that Dr McDonald was not asserting that the appellant had been identified as the father, necessarily implying that somebody else might be. The passages from Dr McDonald’s evidence to which I have referred highlighted the fact that if the appellant had not been excluded, it became necessary to consider how likely it was that he was the father as against other possible scenarios, specifically that somebody else was the father. There is no serious prospect that the jury could have concluded that Dr McDonald had asserted that the appellant was the father. All of his evidence proceeded on the assumption that there was a possibility that he was not. Having said all of that, it may well be that, given Dr McDonald’s obvious eminence in the field, it would have been appropriate to point out that he had endorsed Ms Keglovic’s view.
Counsel then asserted that the trial Judge had not referred to material at ts 354 (AB 441) ts 358 (AB 445) and ts 360 (AB 447). The relevant material at p 354 relates to the appropriate database. The material at p 358 relates to improvements in DNA testing since 1998, as does that at p 360.
In considering the appellant’s attack on the DNA evidence, it is important to keep in mind that its purpose was to show that the appellant was the father of the foetus, and therefore had sexual intercourse with J, leading to the conception. There can be no doubt that J had intercourse with some male person. The question is whether it was the appellant. One difficulty with the appellant’s attack is that counsel did not put or suggest to J that she had sexual intercourse with any other man. In any case, criminal or civil, the failure to put or suggest such an important matter to the principal witness affected by it would be to exclude it from consideration as an issue. One would have thought it vital that the jury see J’s response to such allegations, and that she have an opportunity to deny them.
I have previously summarized the directions as to the DNA evidence. His Honour referred to Dr McDonald’s view as to the appropriate database but said nothing about how use of the ACT general population database may have undermined the reliability of the statistical outcome reached by Ms Keglovic. She understood the figures to have been adjusted to take account of racial factors. Dr McDonald understood that there was some adjustment for unidentified relationships which undermined the assumption that those in the random sample were unrelated. That adjustment may or may not have addressed the racial question. The evidence is simply unclear. Ms Keglovic considered that any effect would be minimal. The results from her use of the Riverine and Fitzmaurice databases may offer some support for that view, although neither database reflects the appellant’s ethnicity.
The real difficulty with the evidence concerning use of databases is that it is inconclusive. His Honour could not fill in the gaps or speculate about things unsaid. In the end, there was no evidence indicating that the choice of database significantly undermined Ms Keglovic’s opinion. She said that any effect would be slight. The uncertainty in the evidence was patent. It was for the jury to decide whether such uncertainty caused it to have a reasonable doubt about the appellant’s paternity. His Honour made it clear that the jury had to be satisfied beyond all reasonable doubt as to that matter. See ts 29 (AB 35) ll 25-28. It may have been preferable for his Honour to have said a little more about the DNA evidence and its use, but there can be little doubt that the jury understood that defence counsel was challenging its reliability.
As to the advances in DNA technology and methods between the Blair report and the Keglovic report, the plain fact is that such advances did not materially affect the outcome. In neither case was the appellant excluded as the father and, in both cases, the probability of his being the father was apparently quite high. Given the state of the evidence, there can be little doubt that had the Blair and Keglovic tests produced different results, Ms Keglovic’s test results would have been preferred, but there was no such difference. Whether the jury considered the results obtained by either or both of them, the overall effect was the same. Dr McDonald did not disagree with Ms Keglovic’s conclusion that there was strong scientific support for the proposition that the appellant was the true father and J, the true mother.
The issue of advances in DNA technology was an unhelpful sideshow. Out of an abundance of caution a trial Judge may have dealt with the matter in more detail, but his Honour’s approach had the advantage of isolating the true question for the jury’s consideration.
At ts 501 (AB 588) ll 23-27 counsel asserted that his Honour had failed to say anything: … in relation to the DNA the other stuff about Jack Simbo. You haven’t yet put that there were other people that went to parties that were relatives. You haven’t put the significance of that in the terms of the DNA. Jack Simbo doesn’t fit into that category but three other men do. None of that has been mentioned.
This complaint raises two, discrete issues. The appellant alleged that Jack Simbo sexually assaulted her, but not that he had sexual intercourse with her. Counsel seems to assert that his Honour ought to have said to the jury that he was a possible father. Again I point out that counsel did not put or suggest to J that she had sexual intercourse with any man other than the appellant.
Secondly, the appellant seems to suggest that the DNA evidence might be explained by the fact that men related to him had been at parties at A’s home, and that one of them may have been responsible for J’s pregnancy. Again I point out that no such suggestion was put to J in cross-examination. The appellant identified his relevant relations as Alec Tipoti, Moses Kwapo and Daniel Lovoi. Whilst the evidence might suggest that they attended parties at A’s house, there is no evidence that any of them had improper dealings with J.
However J gave evidence concerning an incident which occurred on the night of a party at A’s house. J woke in the morning to find that her pants were “sticky”, but still in place on her body. The incident seems to have occurred not long before she was found to be pregnant. Jack Simbo and the appellant were at the party. The appellant was not sure whether he and Jack Simbo are related.
Dr McDonald’s evidence was that as between the appellant and a relation, the probability that the former was more likely to be responsible for J’s terminated pregnancy might be less than fifty to one. There was some evidence that persons related to the appellant attended parties at A’s house but no evidence that they were there on the night prior to J’s discovering that her pants were “sticky”. The substance causing the stickiness has not been identified. The appellant tacitly suggested that the appellant had sexual intercourse, possibly whilst she was asleep, and that such intercourse caused both the stickiness and her pregnancy.
However there is a very large amount of speculation in all of this. Given that J noticed the stickiness after she had awoken, it may have seemed pointless to suggest to her that it was the result of sexual intercourse between her and a man other than the appellant. However such a suggestion would have at least given her an opportunity to address the question. Further, it would have flagged the matter as a live issue in the trial. At least in part, the theory depends upon the view that underwear, beds and sexual acts are generally related. In the absence of evidence that the stickiness was male ejaculate, the theory is mere speculation.
We do not know how counsel handled the matter in his address. Out of an abundance of caution, the trial Judge might have referred to the matter in his charge. However I see no error in his having chosen not to do so.
In her 1997 interview, J suggested that Jack had put his hand down her pants and that T had tried to touch her. Presumably this was TN who provided one of the blood samples. TN was aged fourteen at the time. J made no allegations against TKH, the other man mentioned in Mr Blair’s report. J also told Dr Bragg that the appellant’s friends had put their hands down her pants. The only allegation made against the appellant was that he had exposed himself to her and her sister.
His Honour declined to make any further directions concerning these matters. I see no error in that decision.

To the extent that other requested redirections are in issue on this appeal, the relevant matters are addressed in the appellant’s submissions on appeal at paras 18-25.
At ts 500 (AB 587) and ts 501 (AB 588) counsel asserted that his Honour had failed to direct the jury concerning the fact that, by the time at which J saw Dr Bragg (September 1996) and was interviewed by the police (March 1997), the appellant was “out of her life”, and yet she made no complaint about the appellant’s conduct. Of course, on both occasions she referred to his exposing himself to her and her sister, although it seems to be common ground that she did not complain of the incident said to be the subject of counts 4 and 5. The consultation with Dr Bragg was very soon after the incident at A’s house. It may be inaccurate to suggest that the appellant was “out of [J’s] life” at that time.
Counsel also said at ts 501 (AB 588) ll 29-34: Why is it that I have to get up and remind your Honour about what the defence case is? You haven’t fairly put this. You’ve basically told this jury to convict. You’ve done all the right things in terms of the general stuff, absolutely perfect. Copybook trial judge directions. But when it comes to putting the defence case in this case, you have not done it. And I want to go on further.
I do not wish to allow counsel’s conduct at trial to become the focus of my reasons. However I must deprecate such intemperate remarks. A request for redirections should be couched in specific terms which indicate why a specific direction or the overall effect of a charge may be unfair to the appellant. Such a general attack, whilst easy to launch, will not assist in correcting any error which may have occurred.
The question of complaint seems to have been dealt with in the charge at ts 21 (AB 27) l 16 to ts 23 (AB 29) l 11. Unfortunately, the whole passage refers to J’s failure to make any complaint (other than of exposure) to Dr Bragg in September 1996, shortly after the incident at the family home. His Honour treated the complaint of exposure as going to counts 4 and 5 but not to the other counts. As I have said, it seems to be common ground that the complaint did not concern the incident which was the subject of counts 4 and 5. In the course of so directing the jury his Honour also referred briefly to the differences between J and H’s versions of the events comprising those counts , suggesting that, “You might think that if they were going to facilitate that evidence, they would have got their stories correct”.
J’s reason for not complaining about the appellant’s conduct was said to be fear of A (her mother) and the appellant. Whilst that may have been a persuasive reason for her reticence in September 1996, it may not have been quite so persuasive in March 1997.
In the March 1997 interview, J again made no allegation against the appellant other than as to exposure, despite some quite persistent, and even suggestive questioning.
At ts 24 (AB 30) ll 8-13, in summarizing the evidence of the police witness, Michelle Taylor, the trial Judge referred to the recorded interview in a general way, telling the jury that it “should look at it”. However his Honour effectively dismissed Ms Taylor’s evidence, suggesting that it added nothing to the Crown case and saying nothing about the relevance of the interview to the defence case. Whilst his Honour would not have intended this result, the jury may well have inferred that his Honour did not consider the recorded interview to be of much importance.
In response to counsel’s request for a redirection on the matter, his Honour dealt with it at ts 523 (AB 610) l 22-31 as follows: Fifthly, I have not referred other than suggest that you read it to the police interview of [J] on 13 March 1997. I suggest that you read it. Other than what she told Dr Bragg on 17 September 1996, there’s nothing about – nothing recorded about [J] saying anything about anything. So I suggest you read the interview. And I remind you that, at this time, as learned counsel for the [appellant] said, [the appellant] was out of [J’s] life. Indeed, he was out of [A’s] life. And so any threat earlier made by [the appellant] to bash [J] was unlikely to be on [J’s] mind. Yet [J] did not make any complaint to police that [the appellant] had abused her or assaulted her in any sexual way.
The question is whether such redirection sufficiently remedied the failure to explain to the jury that the appellant’s case was that J’s evidence should be rejected, at least in part because she failed to make complaint when invited to do so in March 1997, given the passage of time and the attempts made to encourage her to make a complaint against the appellant. To my mind, her answers appear to have been candid and credible, although the recording, itself may have suggested otherwise. I shall, at a later stage, consider the adequacy of the redirection.
The appellant’s counsel also sought a redirection in respect of an inconsistency between the evidence of J’s sister, H and Superintendant Rippon, concerning the incident at the family home in September 1996. H said, at ts 146 ll 15 and 16 that following an altercation between the appellant and her mother, the police arrived, and that the appellant was arrested. In cross-examination the following passage appears at ts 147 ll 33-37: Are you sure it wasn’t just that the police were called because of the fight between he and your mother?--- I remember him being arrested and getting in the back of the paddy wagon. Are you sure about that?--- Yes.
There was no clear suggestion that she was mistaken.
Superintendant Rippon said that he spoke to A who had a small cut on her forehead and appeared to show signs of concussion. Also present were J, H and the appellant. As previously mentioned, he noted that J seemed to be unusually affectionate towards the appellant. He said that the appellant was not arrested at that time, and not charged with any offence.
In the charge his Honour did not mention this apparent inconsistency, referring only to Rippon’s evidence as to the laceration on the complainant’s mother’s forehead.
At ts 506 ll 32-35 counsel said: The only thing you put was that he saw the laceration on her forehead, that is, [A’s] forehead, but it goes to much more than that. [H] said he had been arrested on that day. Rippon said he hadn’t been arrested on that day.
At ts 507 ll 6-12 counsel said: Your Honour, I’m attacking the credibility of both complainants. You say where there’s clear evidence where I can get from a police officer who puts things down in his notebook, and quite clearly he wasn’t arrested. If [the appellant] had been arrested that would be in the police officer’s notebook. We’d know about that. He wasn’t. So which one is wrong? Easy, [H] is wrong. So that’s important for me in relation to attacking her reliability and credibility.
His Honour then said that he could only point out to the jury that H’s evidence was, in this regard, inconsistent with Rippon’s evidence, and that he did not see any real need to say that to the jury. However counsel for the appellant insisted, and his Honour said: All I can do is say to the jury that one says he was arrested and one says he was not. And if they consider it necessary they’ll make a decision between them as to which one is mistaken.
Counsel asked that his Honour give that direction.
In my view, the matter was probably best left alone but understandably, his Honour erred on the side of caution and redirected as follows at ts 522 (AB 609) l 43 to ts 523 (AB 610) l 3: Also [Rippon] said that the [appellant] was not arrested on 15 September 1996, whereas [H] said that the [appellant] was arrested on 15 September 1996 and put into a police wagon. One must be wrong. Both cannot be right, although both can be wrong. If you think it relevant and necessary, you must decide for yourself as the judges of the facts this difference between Superintendant Rippon and [H].
Given the marginal relevance of the matter, I conclude that the redirection was sufficient.
At ts 508 (AB 595) l 45 to ts 510 (AB 597) l 38, counsel sought a redirection as to the use which the jury might make of the DNA evidence in connection with the evidence of the witness Colrain. Colrain said that he had heard that the appellant had been “charged” with “underage sex in Canberra” and, in 2007, put this matter to him. The appellant replied that some such incident had occurred whilst he was drunk.
Counsel understood the prosecution to have suggested to the jury that the DNA evidence could be used in assessing the credibility of Colrain’s evidence. Counsel seems also to have understood the trial Judge to have said that “Colrain does not reject Blair and doesn’t affect the other evidence”. I do not understand this statement. There were particular criticisms made of Colrain’s evidence. In particular counsel asserted that he had a motive to lie in that he owed money to the appellant. His evidence was also criticized on the basis that no charge had been laid against the appellant prior to the alleged conversation.
In his charge his Honour said, at ts 23 (AB 29) ll 30-39: Members of the jury, if you accept Mr Colrain’s evidence, it may be used by you as an admission by [the appellant] of having had underage sex with a 14 year old girl and that may be used by you as part of the evidence in relation to the charges that the Crown brings against [the appellant]. If you accept the submission by learned senior counsel for [the appellant], then you will reject Mr Colrain’s evidence. If you reject his evidence, it does not affect the evidence of [J] or [H], and it does not affect the evidence of Mr Blair as to the PCR – and I’ll come to this – test or the evidence of Ms Keglovic as to the profiler plus test. Your rejection of the evidence of Mr Colrain does not affect the other evidence in the case.
Counsel’s request for a redirection seems to have been based on a misunderstanding of this passage. However his Honour indicated that he would direct the jury that the DNA evidence, by itself, could not affect the reliability of Colrain’s evidence, but that such evidence was to be assessed in the light of all of the other evidence. His Honour gave a detailed redirection concerning Colrain’s evidence at ts 523 (AB 610) l 33 to ts 525 (AB 612) l 15. That passage, and that which appeared in the original charge at ts 23 (AB 29) ll 13-45 adequately addressed all relevant issues.
Part of the appellant’s case was that he had no opportunity to engage in the conduct with which he was charged. In his evidence the appellant claimed that when J’s mother was incapacitated or absent, her children were always cared for by the witness, Mary Emmanuel or one JN. The latter’s role as child minder appears to have emerged from remarks made by witnesses and from the hospital records. However she did not give evidence. Ms Emmanuel gave evidence. She said that she had “a lot” of contact with J, H and their brother. They told her about A’s drinking problem. On occasions, she took the children away from their mother and to her own home. J said that she was, on occasions, left alone with the appellant as did H and A.
In cross-examination, the appellant denied ever being alone with the children and asserted that they “sometimes” stayed with Ms Emmanuel or “Jane”, presumably JN. At a later stage he said that their mother always left them with “Jan” or Mary when she went to hospital. See ts 403 (AB 490) ll 20-45), ts 404 (AB 49) ll 1-14 and ts 406 (AB 493] ts 27 to ts 407 (AB 494) l 11. Although he seemed to focus on the periods when A was in hospital, such focus may have reflected the way in which he was being cross-examined. At ts 40 (AB 493) ll 27-29, he seems to have denied ever staying alone with A and her brother..
Concerning Ms Emmanuel’s evidence and his Honour’s treatment of it, counsel said at ts 511 (AB 598) ll 9-28: Yes. And Mary goes the other way around. Mary’s the one – and your Honour hasn’t put this and this is critical. All you put from Mary was about the glue and the pants and the blood. What we put which was absolutely critical and this hasn’t been put either, you’ve spoken about opportunity. [The appellant] addresses opportunity in terms of these events by this, he said – and its never been put yet by you – he said he was never there alone with the children when [A] went to hospital. And he further says that the children were either with Mary or with [JN]. Now, we know from one of the hospital notes that [JN] is mentioned but more importantly we know from Mary Emmanuel that she says that she was there 24/7. She gave the impression in her evidence quite clearly that the kids were always with her. She was taking them off [A] all the time. When she was in hospital and when [A] was drunk and when the kids wanted to come over. Now, it’s proper, in my respectful submission, in terms of opportunity that that be put and it’s critical because it’s a critical part of [the appellant] saying not only did I not do it I didn’t have an opportunity to do it because when [A] was in hospital the kids were either with Mary or Jan, so that hasn’t been put.
At ts 514 (AB 601) ll 15-24 counsel said: Now, this is critical for us because it goes to support the defence case that he is not alone with the children when [A] is in hospital. And that’s what he said and he said it was either Jan or Mary. And, as I said, there’s support for Jan in the hospital notes and there’s support for Mary in her evidence-in-chief and that must be put. Well, you can shake your head, your Honour. That’s the defence case and it’s critical that you put that because otherwise it’s not being fairly put. You can then go on and criticise it in any way you want. I don’t care as long as you put the defence case.
In this regard his Honour redirected as follows at ts 523 (AB 610) ll 5-20: Fourthly, I referred, again, very briefly and only to one part of it, to the evidence of Mrs Mary Emmanuel. I referred only to what she said about what she had been told by [J] that she had awoken one morning to find glue and blood on her knickers. I do not want you to ignore the rest of Mrs Emmanuel’s evidence, as I do not want you to ignore any of the evidence. And I have told you already that you must consider all of the evidence. Mrs Emmanuel said that [A] had many drinking parties, that she saw three men – [the appellant], Jack and Alex – regularly at the parties, that she was often at [A’s] house, including a couple of times when [A] was taken to hospital, that she took the children to her house because [A] was drunk, that [A] would forget the children when she was drunk and one of the children would call her, that she had gone to the Kaleen house on only one occasion on which occasion the [appellant] abused [A], pulled her and dragged her.
His Honour did not say anything about the relevance of this evidence to the question of opportunity, that JN had, on occasions, also cared for the children, or that the appellant claimed never to have been left alone with them. I shall later consider the adequacy of the redirection.
One other associated ground of appeal was pressed. In the course of his charge at ts 11 (AB 17) ll 23-29 his Honour said: Members of the jury, you heard evidence that, on occasions, the [appellant] was left alone with [J] and [her brother], and, sometimes, with [J], [H] and [her brother]. You might think that this was an occasion when [J] and [her brother] were alone with the [appellant], bearing in mind, if my memory is correct, that this occasion of [A’s] admission into hospital was a Sunday night and you heard evidence that he often stayed with [A] on weekends.
Counsel submits that his Honour ought not to have said that A was admitted to hospital on a Sunday night, that matter not being in evidence. The remark related to count 2 which, as alleged in the indictment, occurred between 20 October 1995 and 26 February 1996. J’s evidence was that it occurred on a night when A was admitted to hospital. Reference to the hospital records showed that the relevant admission was on 25 February 1996.
There was evidence that the appellant often stayed with A on weekends. Thus his Honour was, in effect, suggesting that A’s evidence as to the incident was supported by, or consistent with the evidence that the appellant did so.
There can be no doubt that a tribunal of fact may refer to a calendar for the purpose of identifying the day of the week on which a particular date fell. The respondent suggests that this proposition disposes of the matter. However the question is whether it was appropriate for his Honour to raise the matter for the first time in the course of his charge. In my view, there is at least one good reason for concluding that it was inappropriate.
A witness, having said that a relevant event occurred on a particular date, and then being told that the date fell on a particular day of the week, might well respond to the effect that for some reason, he or she did not accept that the incident occurred on that day of the week, necessarily accepting that his or her evidence as to the date must be wrong.
If it were relevant that 25 February was a Sunday, then the fact should have been established in the course of evidence, or at least before the addresses, and not in the charge. If it were not relevant, then it should not have been raised. His Honour seems to have thought that it had been mentioned in the evidence but, on appeal, neither side said so. The matter is of little importance, save that his Honour effectively suggested that it strengthened the prosecution case.
In connection with the trial Judge’s directions, counsel said at para 25 of his outline: There were allegations made by [J] that she was in fear of [the appellant]. This fear, it was put by the Crown, prevented her or was instrumental in [J], not complaining. Yet the evidence of police on 15 September 1996 (the last day [J] ever saw [the appellant] before this trial before the jury) was that she had a particular attachment (obvious infatuation) to the extent that police were concerned about the relationship between [J] and [the appellant]. Yet, this vital matter was not referred to by the learned trial Judge. This matter goes also to the critical issue as to whether it would have been feasible/possible/realistic in the face of that attachment for [J] to have sexual intercourse with [the appellant] when he was seriously affected by alcohol or, as the appellant put it, [the complainant] told him she had sexual intercourse with him when he was drunk. It is respectfully submitted that the learned trial Judge could not have dealt with the defence case adequately or at all without referring to this matter.
This complaint partly involves repetition of an earlier complaint. I have already pointed out that, in his redirections at ts 522 ll 35-41, his Honour said that Superintendant Rippon saw J “clinging – and that’s my word, not his – to the accused on 19 September 1996 when [A] was taken to hospital”. He “heard the accused tell other police when spoken to that he did not have any sexual relationship with [J]”.
Counsel then suggested that this matter went to the “critical issue”, being the possibility that J had sexual intercourse with the appellant whilst he was asleep or otherwise unconscious as, according to him, she had told him. Details of J’s alleged statement appear below.
Rippon’s evidence may have suggested that J had feelings for the appellant which might have led her to seek or permit sexual relations with him. However the real complaint seems to have been that in his charge the trial Judge did not refer to the appellant’s evidence concerning J’s alleged statement. His Honour redirected as follows: Now, the last thing I want to say is this, and I have not referred to this. Learned counsel for the Crown and for the [appellant] both referred to it: the [appellant] said that on an occasion when he was sitting on an orange chair under a tree in the backyard of a house, [J] said to him that she had something that she wished to tell him. And I shall, for completeness, read it to you. Question –this comes –this is, as you’ve been told, evidence-in-chief that is to Mr Purnell. Question, “Did you have a conversation with [A] at Chifley after a three-day party that you can remember? Sorry, [J]?” Answer, “Yes.” Question, “And where were you when you had this conversation with [J]?” “Backyard, under one tree on an orange chair.” Question, “And what was the conversation that you remember between you and [J] in that spot?” Answer, “She came to me walking towards me and stand next to me. I said, ‘Oh, how are you [J]?’ ” Question, And did she respond?” Answer, “Yes.” Question, “What did she say, if anything?” Answer, “ ‘I’m okay. I want to tell you something, but can you not tell Mum?’ And I said, ‘What is it?’ And she said, ‘Can you promise not to tell Mum?’ And I said, ‘What is it?’ Then she said, ‘I had sex with you last night.’ ” Question, Did you say anything to that?” “Yes.” Question, “What did you say?” Answer, “I said, “Why did you do that? You going to get me into big trouble.’ ” Question, “And did [J] say anything?” Answer, “Yes.” Question, “What did she say?” Answer, “She said, ‘Please don’t tell Mum.” ’ As to that, [J], was cross-examined by learned counsel for the [appellant]: Question, “Did you ever attend on him –that is, go to him, when he was passed out or asleep with the grog?” Answer, “No.” Question, “Did you ever put his penis inside your vagina when he was asleep and drunk?” Answer, “No.” Question, “Did you ever tell [the appellant] that you had sex with him when he was asleep?” Answer, “No, never.” Question, “I want to suggest to you that there was a time where your mother had a party that went for three days and that you told [the appellant] the next morning after the three-day party when he was sitting in an orange chair under a tree at Chifley – do you remember there was a tree at Chifley and there was an orange chair?” Answer, “I can’t remember, sorry.” Question, “Do you remember that you had a German shepherd dog called Sheena?” Answer, “Yes.” Question, “I want to suggest to you that [the appellant] was sitting on this orange chair with Sheena, that he was patting, and you came up to him and said to him words like, ‘I want to tell you something, but I don’t want you to tell Mum’ Do you member saying that?” Answer, “No.” Question, “And [the appellant] said, ‘What is it?’ and you said, ‘I had sex with you last night,’ or words to that effect. Do you remember saying that to [the appellant?” Answer, “No. I don’t remember ever saying that.” Question, “And [the appellant] said, ‘Oh, God, you shouldn’t have done it. I will be in big trouble.’ Do you remember that?” Answer, “No.”
Although his Honour fully outlined the evidence, he said nothing about its relevance to the case. It supported and perhaps explained the DNA evidence in that it raised the possibility that J’s pregnancy resulted from an act of intercourse which she instigated. However that J may have instigated the act would be no defence to either count 2 or count 3. The relevant exculpatory effect was the possibility that the act had occurred whilst the appellant was asleep or unconscious. In other words the appellant’s allegation opened up lines of defence which seem never to have been expressly referred to during the trial, unless they were referred to in addresses, namely the voluntariness of the appellant’s involvement in the relevant act of intercourse and/or absence of mens rea. As I understand it, the case was conducted upon the basis that the relevant law was that applicable at the time of the alleged offences, and not that which obtained following the adoption of the Uniform Criminal Code. Nothing has been said in the course of the appeal about those lines of defence. I shall return to this matter.
In seeking redirections the appellant also claimed that the trial Judge’s directions concerning counts 4 and 5 were inadequate. J and H gave significantly different accounts of the incident in question. In her evidence-in-chief, J said (at ts 58 (AB 143) l 6 to ts 59 (AB 144) l 20: All right, now you referred earlier in your evidence to the [appellant] exposing his penis to you? - - -Yes. Did that ever happen at Kaleen? - - -Yes. Was that a one off incident? - - -He would do it a few times but there was only one time he did it when my sister and I were together hanging out the clothes. And what happened there? - - -He pulled out his penis and then started playing with it. As myself and my sister were hanging our clothes out and we turned and we saw what he was doing and he sort of laughed it off. Where was he? - - -He was in the main bedroom which faces the clothes line. And where were you two? - - -Well, we were outside – I was outside hanging the clothes out. And where was [H]? - - -She was with me. And how did you come to be looking at the bedroom window? - - -Well, the clothes line faces their room so when we were hanging out the clothes we can pretty much see clearly who is standing at the window. It wasn’t that hard to do. Sorry? - - -Sorry, I just - - - Sorry, I don’t want to talk across you? - - -No, no that’s fine. Can you describe the window? - - -I just remember it being a big window facing the clothes line. HIS HONOUR: How did you know he was there? - - -When we turned we saw him because we – the clothes line is right in front. You just can’t miss somebody standing at the window. MS JONES: And which part of him could you see? - - -His penis. All right, and was he standing up or in another position? - - -He was standing up. Okay, do you remember what he was wearing? - - -No. And did he do anything? - - -Just sort of played with his penis as if it was a joke, you know, as if he was teasing me and my sister or something like that. And did you notice anything about his penis? - - -Unless we didn’t stare at him for that long. I mean we just sort of looked at him in disbelief, continued to do what we do, hang out the clothes and walked away from him. Was – did it appear to you that he was aware you were there? - - -Yes. How did it appear to you? - - -He was looking right at us outside. Right, how long did that go on for, that particular incident? - - -I am not sure. We just saw him doing that for about two minutes, we just continued to hang out the clothes.
In cross-examination she denied having invented this “story”, and that she had discussed the incident with H.
H said at ts 136 (AB 221) l 35 to ts 137 (AB 222) l 44: At some stage did your family move to a house at Kaleen? - - -Yes. When you were at Kaleen did anything happen when you and your sister were outside? - - -Yes. Can you tell us what happened? - - -I remember this one time we were told to go out and do laundry. Sorry, [H], could you just speak up a little bit. I don’t know if the jury is having trouble hearing. I’m having a little bit of trouble. If you could just be a touch louder? - - -I remember this one time that we were told to go out and hang out the washing. Yes? - - -And after doing so we decided to have a little play in the side of the yard. Continue? - - -And while we were playing I heard this tap at the window and when I turned around I saw the [appellant] with his penis in his hand. Where was he standing? - - -In the master bedroom. You could see the master bedroom from where you were? - - -Yes. What size were the windows of the master bedroom? - - -From the roof to the floor, so full. How far away were you and [J] from him? - - -Probably a metre. It was the tap on the window that drew your attention? - - -Yes. Did the [appellant] appear to know that you were there? - - -Yes. What makes you say that? - - -Because he heard us outside. How was he standing when you saw him, or what position was he in when you saw him? - - -He was standing directly in front of the window. You described him doing something with his penis? - - -Yes. Can you just describe what he was doing? - - -He was more or less wanking himself. Wanking himself? - - -Yes. What did you and [J] do? - - -We ran inside. You saw that. Was there anything to indicate that [J] saw what was happening? - - -The tap was pretty loud so. Did she say anything to you? - - -No. You’re saying you and she then ran inside? - - -Yes. Had you ever seen his penis exposed in that way on any other occasion?: - - - Yes.
In cross-examination she said, at ts 148 (AB 233) l 35 to ts 149 (AB 234) l 26: Can you remember where the clothesline was? - - -Yes. Where was it? - - -At the back of the house. And at the back of the house was there two little windows that related to the two rooms that were at the back of the house? - - -Yes. And when I say little windows they were half windows? - - -Yes. And if you looked out through those half windows you would see the clotheslines? - - -Yes. And your mother’s room was nowhere near the clothesline was it? - - -No. And if you looked out at your mother’s room you couldn’t see the clothesline? - - -No. When you say no you mean no you couldn’t see the clothesline? - - -No, I couldn’t see the clothesline. Sorry, I apologise,. I’m old and my hearing’s not so good. What did you say, [H], I - - -? - - -I couldn’t see the clothesline. Couldn’t see the clothesline, alright. Now, in your mother’s room, had you been into that room in Kaleen? - - -Yes. Do you know where the bed was located in that room? - - -I don’t remember exactly where but I think it was in the middle of the room. In front of the window? - - -Well, yes. This claim that you make about [the appellant] wanking in the master bedroom, I suggest to you never happened at all. What do you say to that? - - -It happened. And I suggest to you that [the appellant] didn’t expose himself to you on any occasion at all? - - -It happened.
In the charge his Honour said at ts 12 (AB 18) ll 25-43: The fourth and fifth counts of the indictment, identical in terms, but referring to different complainants, allege that, between 28 July 1996 and 15 September 1996, the [appellant] committed an act of indecency in the presence of [J], that’s count 4, and [H], that’s count 5. The Crown alleges that at the Kaleen house on an occasion when the complainants, [J] and [H], were hanging out clothes, the [appellant] exposed his penis and played with it, that is, the Crown submitted, masturbated, in the sight of [J] and [H], who were playing in the side yard. There is a difference in the evidence between [J] and [H] as to whether they were hanging out the clothes, as [J] said, or playing in the side yard, as [H] said. The question for you in relation to counts 4 and 5 is whether the evidence satisfies you beyond reasonable doubt that the [appellant] exposed himself, that is, exposed his penis and played with it in the sight of [J] and [H]. As you know, the [appellant] denies having done what [J] and [H] allege that he did. If the evidence so satisfies you, you will find the [appellant] to be guilty of counts 4 and 5. If the evidence fails to so satisfy you, you will find the [appellant] not guilty of counts 4 and 5.
In summarizing J’s evidence, his Honour said: at ts 19 (AB 25) ll 10-21: Counts 4 and 5 relate to the one incident, albeit to [J] and [H]. [J] said that the [appellant] exposed his penis to her at Kaleen. There was only one time that he did it when she and her sister were together, hanging out clothes. He was in the main bedroom, facing the clothesline. There was a big window facing the clothesline, she couldn’t miss someone standing at the window. As learned senior counsel for the [appellant] has pointed out, the main bedroom of the Kaleen house did not face the clothesline. The main bedroom of the Kaleen house faced the side fence. The clothesline of the Kaleen housie, which [H] marked on Exhibit 6, was at the back of the house. There is a difference between [J] and [H] as to where they were at the time they say the [appellant] was at the window of the main bedroom exposing himself to them.
In summarizing H’s evidence, his Honour said, at ts 19 (AB 25) l 33 to ts 20 (AB 26) l 19: … She gave evidence that she, her sister and brother were sometimes left alone with the [appellant]. That occurred when her mother was working or studying. Also, that occurred when her sister [J] and [the brother] got home from school. They would be alone with the [appellant] until she arrived home from school. As to the counts 4 and 5 of the indictment, she said at one time at the Kaleen house when they had to hang out the washing, “we played in the side yard. I heard a tap on the window”. The [appellant] was at the window with his penis in his hand. He was in the master bedroom, the window went from roof to floor. We were about 1 metre from the [appellant]. He was more or less wanking himself.” So, members of the jury, as to counts 4 and 5, there is, as I have pointed out, and as learned senior counsel for the [appellant] pointed out, a difference between [J] and [H] as to where they were when they saw the [appellant]. However, both of them say that the [appellant] was in the main or master bedroom, both of them say that he was at the window, both of them say that he had his penis in his hand and was, in the case of [J], playing with it, in the case of [H], wanking. It is for you to decide, having regard to the evidence, whether to accept or reject the evidence of [J] and [H] or both of them. As I have told you, you are entitled as judges of the facts to accept a witness in part, that part you consider worthy of acceptance, and reject a witness in part, that part you consider unworthy of acceptance, and you look into the evidence generally to see if there is something which supports or undermines what a witness has said. She was cross-examined by learned senior counsel for the [appellant] and she confirmed that you could not see into the master bedroom, her mother’s room, from the clothesline area. She said – and this is not disputed by the [appellant], indeed he drew the bed in the position that he said it was located – the bed was located at the middle of the room, in front of the window.
At ts 514 (AB 601) l 30 to ts 516 (AB 603) l 3, counsel asserted that his Honour should have emphasized various aspects of the accounts rather than merely outlining the evidence and indicating that there were discrepancies between the accounts. In my view his Honour dealt exhaustively with the evidence on this issue. The jury could have been in no doubt as to the inconsistency between the evidence of J and H, and as to how they were to proceed. The appellant’s criticism of this aspect of the charge is without foundation.

With all respect to the trial Judge, the original charge was significantly defective in at least two respects. Both relate to considerations to which the appellant pointed as undermining the prosecution case, and therefore supporting his denial of it. They were:  the question of opportunity; and  the absence of complaint.
As to opportunity, by the end of the appellant’s evidence, if not before, it was clear that he alleged that he had never been left alone with the complainants. Of course J suggested that on at least one occasion when the appellant allegedly interfered with her, her mother was at home. However that incident was not one of the acts charged. To my mind it would not have been surprising if, from time to time, A left the children with the appellant as J, H and A all alleged. Contrary to counsel’s assertion to the trial Judge, the evidence does not demonstrate that Ms Emmanuel “was there 24/7”, or that “the kids were always with her”. Nonetheless, the appellant was entitled to have his case in this regard put to the jury.
The evidence of J, H and A that the children were, on occasions, left alone with the appellant was briefly summarized by his Honour at ts 20 (AB 26) ll 31-34. However there was no reference to this aspect of Ms Emmanuel’s evidence, to JN’s occasional role as a child carer or to the appellant’s denial that he was ever left alone with the children. The original charge was deficient in this respect.
In his redirections, his Honour said that he had not, in his charge, dealt with all of Ms Emmanuel’s evidence. He then summarized the balance of her evidence concerning caring for the children and other matters. I have set out the passage above. However his Honour again did not indicate that the evidence was relied upon by the appellant as showing lack of opportunity, did not refer to JN and did not refer to the appellant’s own evidence. I do not, for a moment, suggest that the appellant’s case was strong in this respect but, having raised the issue, he was entitled to have it put fairly to the jury. It was not. It may be that his Honour felt that to deal with the matter fully would have done the appellant’s case more harm than good, but that was a matter for the jury.
The second matter is the absence of complaint by J. In my view this was the strongest aspect of the appellant’s case. Clearly, no complaint, other than as to exposure, was made against the appellant in September 1996 or March 1997. Although it is not entirely clear, it seems that in 2008, the Queensland Police, perhaps acting on behalf of the ACT police, raised the matter with J. At or about that time, she learned that the appellant was responsible for her terminated pregnancy. She signed a statement to the effect that she wished to proceed with a complaint made by her in 1994 or 1995, presumably referring to the interview in March 1997. However it was not until 2009 that she made a statement alleging the offences eventually charged. To the extent that there was any explanation of the absence of complaint prior to 2009, J attributed it to fear of her mother and of the appellant. Whilst this may have been a reasonable explanation in September 1996, when the appellant was 13 years old, it may have been less persuasive in March 1997 when she was a little older, her pregnancy had been terminated and she was no longer in contact with the appellant. Further, those conducting the interview effectively encouraged her to complain about his conduct.
These matters should have been put to the jury in the charge but were not. Although, in the original charge, the trial Judge dealt in detail with the appellant’s failure to make complaint to Dr Bragg, the March interview was not mentioned in connection with the appellant’s reliance on absence of complaint. His Honour said of the transcript of the interview that the jury “should look at it”.
I have set out his Honour’s redirection concerning this matter. His Honour did not, in dealing with the March 1997 interview, repeat the directions given concerning Dr Bragg’s evidence, or even refer back to them. His Honour must have assumed that the jury would understand that those directions also applied to the transcript of the interview. Had his Honour dealt with the absence of complaint in the interview at the same time as he dealt with Dr Bragg’s evidence, it would have been apparent that the comments concerning absence of complaint applied to both. Where a matter is dealt with by way of redirections, there is a risk that it will be either overstated or understated, having regard to the rest of the case. There is also a possibility that the redirection will not set the matter in its proper context. A redirection will only remedy any shortcoming in the original charge if it deals adequately with these pitfalls.
In the present case, the failure to complain at the interview was potentially much more damaging to the prosecution case than was the failure to complain to Dr Bragg. I have given my reasons for that view. His Honour should have drawn attention to those matters, particularly to the steps taken in the interview in order to persuade J to complain about the appellant’s behaviour and her failure to do so. His Honour should also have reminded the jury of his directions concerning Dr Bragg’s evidence, making it clear that they applied to the interview.

Counsel complained that the trial Judge had not directed the jury concerning the appellant’s claim that J had told him that she had sexual relations with him whilst he was asleep or unconscious. His Honour, in his redirections, referred to the relevant evidence in detail. However, as I have said, neither at trial, nor on appeal was any attempt made to identify the relevance of the evidence. I have the impression that it was thought to explain the DNA evidence and, in a sense it did. However it went much further than that. The evidence clearly raised the issue of voluntariness and/or absence of mens rea. Whatever may have been said or not said by counsel in addresses, the trial Judge was obliged to direct the jury as to that issue, notwithstanding the somewhat unlikely nature of the appellant’s allegation. His Honour gave no such direction, and counsel did not expressly seek a redirection on that matter. He rather sought an unspecified redirection concerning J’s alleged statement to the appellant.
Fundamentally, the necessary direction would have been to the effect that before the jury could convict on either count 2 or count 3, it would have to be satisfied beyond reasonable doubt that the appellant was aware of what he was doing, and intended to do it. It is difficult confidently to identify how such a direction may have affected the jury’s consideration of the various counts. As I have said, the evidence seems to have been addressed primarily to count 3 and the DNA evidence, the appellant otherwise denying any act of intercourse with J. However, the evidence would also have had to be taken into account in considering count 2. In any event, it was potentially relevant to J’s credibility. In this respect, it also related to counts 4 and 5. Such effect had to be considered in the light of the absence of complaint in 1996 and 1997.
The transcript suggests that the trial was, in many respects, difficult. It may be that aspects of the appellant’s case were not as clear as they now seem. Nonetheless the failure to put fairly to the jury these three aspects means that the appellant’s trial was not fair. I cannot conclude that there has been no miscarriage of justice.
I would allow the appeal and quash the convictions on counts 2, 3, 4 and 5.

Prior to his trial, the appellant applied for a permanent stay of proceedings, based upon the delay in prosecuting him for the offences of which he has now been convicted and others. There were, at that time, two indictments: one charging offences against J, and the other charging offences against H. As I have observed, on the indictment upon which he was tried, four counts related to alleged offences against J, and one related to an alleged offence against H, arising out of the same circumstances as one of the charges concerning J.
The application for a stay was based upon “common law principles” and the Human Rights Act 2004 (ACT) (the “Human Rights Act”). On 23 March 2012, Burns J refused to grant a stay of either indictment. To the extent that the application was based on common law principles his Honour concluded that any prejudice to the appellant, flowing from the lengthy delay in bringing him to trial, would not preclude a fair trial on either indictment. As to the Human Rights Act, the appellant had argued that s 22(2)(c) conferred upon him the right to be tried without unreasonable delay, and that such right had been infringed. The present respondent resisted that application upon grounds which included the rights of the complainants to have the charges heard and determined. Burns J rejected that submission. It has not been pressed on appeal.
The principal question arising before Burns J appears to have been identification of the point from which any delay was to be measured. By reference to earlier Canadian and Australian authorities, his Honour accepted that undue delay was proscribed in order to:  prevent pre-trial detention;  minimize anxiety and concern on the part of the accused; and  limit any impairment on the accused’s capacity to defend the charge or charges.
Burns J noted that the appellant was not in custody pending trial, nor was he subject to bail conditions. There was no evidence which suggested that he had endured anxiety or concern about the possibility that he might be charged, at least prior to 25 March 2009 when he was served with a summons concerning the alleged offences against J. Burns J considered that the right conferred by s 22(2)(c) resided in a person who had been charged with an offence. Thus any relevant delay was to be calculated from the date of issue of the summons or the date upon which it came to the appellant’s attention. Such approach was consistent with the decision of the House of Lords in Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 and the Canadian decision of Askov v The Queen [1990] 2 SCR 1199.
His Honour concluded that in this case, any delay should be calculated from the date of service of each summons, apparently because, prior to that date, there had been no basis for anxiety or concern on the appellant’s part, nor was there any question of pre-trial detention. The trial for the alleged offences against J was expected to commence in July 2012. The trial for the alleged offences against H was expected to commence in September, 2012. Thus the likely delay in the first case was three years and four months. In his Honour’s reported reasons (R v Nona [2012] 6 ACTLR 203 at 224), Burns J concluded that in respect of the alleged offences against H the delay was for a period of three years. However the period was from September 2010, when the relevant summons was served on the appellant, to September 2012, a period of two years, not three. On appeal no point was taken concerning this discrepancy. It is more likely to have been a typographical error than an error in his Honour’s understanding of the evidence.
Burns J did not accept that a breach of the appellant’s rights pursuant to s 22(2)(c) would necessarily lead to a stay, considering that any remedy would depend upon the circumstances of the case. His Honour cited with apparent approval, Lord Bingham’s observation in Re Attorney General’s Reference (No 2 of 2001) at [24]: If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under art 6(1). For such breach there must be afforded such remedy as may be just and appropriate (s 8(1)) of the Human Rights Act 1998) or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.
At [98] Burns J continued: In [R v Mills (2011) 210 A Crim R 434] Higgins CJ considered that in arriving at the appropriate remedy for a breach of the rights of an accused under s 22(2)(c) of the HRA it is necessary to weigh the reasons for the proscription of delay as set out in Askov against the societal interests in prosecuting offenders. His Honour also considered the “usual factors” of length of delay, reasons for delay, the accused’s assertion of the right in question and prejudice to the accused … to be relevant.
At [102] – [106] his Honour continued: 102 As Higgins CJ noted in [R v Mills], it is for the respondent to establish that the relevant delay has occasioned no prejudice to the [appellant]. While the [appellant] has no onus of proving that he has, or will, suffer prejudice by reason of the delay, in this case he led evidence with a view to demonstrating prejudice. The evidence put before me by way of the report by Dr Adams establishes that at the time the [appellant] consulted Dr Adams he was suffering from depression and cognitive difficulties, which I set out in some detail earlier in this judgment. However, Dr Adams goes on to state that the [appellant’s] conditions may be ameliorated by appropriate treatment. Only the [appellant] can know whether he undertook the treatment recommended by Dr Adams and, if so, whether it did result in amelioration of his condition. Where the [appellant] chooses to bring evidence of actual prejudice, but also chooses to leave the evidence before the Court in its current unsatisfactory state, the Court is entitled to give little weight to that evidence. In addition, the affidavit sworn by the [appellant] for use in the discontinued stay application last year suggests that the [appellant] has a reasonable degree of recollection of events in the period 1996-96 [sic]. Whilst the respondent has not established that the [appellant] will suffer no prejudice as a consequence of the relevant delay, I infer from the length of the relevant delay in comparison with the entire period from the alleged offences to the date of trial that any such prejudice is minimal. Any prejudice to the [appellant] caused by delay can be ameliorated by appropriate directions to the jury. 103 In support of his argument for a stay based on the HRA, the [appellant] submits that by continuing to prosecute him with respect to charges where a breach of his rights under s 22(2)(c) has been established, the Director of Public Prosecutions is acting unlawfully by virtue of s 40B of the HRA, which itself is an abuse of process. A similar argument was firmly rejected in Re Attorney-General’s Reference (No 2 of 2001) and cogent reasons for its rejection given by Lord Bingham, with whom the majority agreed. With respect, I adopt his Lordship’s reasons in rejecting the [appellant’s] submission. In my opinion, the reasoning of Lord Bingham constitutes an application of the principle of proportionality which, as stated by Lord Hobhouse, is a basic principle of human rights law. Conclusion – HRA 104 I have already alluded to the very real public interest in ensuring that allegations of sexual assault against children are determined by a court. In the present case this public interest outweighs any prejudice to the [appellant], especially as any such prejudice will not preclude the [appellant]obtaining a fair trial. 105 I have found that the [appellant’s] rights under s 22(2)(c) of the HRA have been breached with respect to the delay in bringing on for trial the charges concerning [J]. What I have written in this judgment constitutes a public acknowledgement of that breach. Further, the charges concerning [J] are now listed for directions on 25 May this year with a view to bringing those charges on for trial before the presently allocated date in July this year. I am satisfied that these are appropriate remedies. 106 The applications for stay are refused. The Appeal
The relevant grounds of appeal appear at paras 5(k), 5(l) and 5(m) of the amended notice of appeal as follows: (k) the learned Justice Burns erred in his method of calculating the length of delay; (l) the learned Justice Burns failed to calculate the commencement of the relevant delay from the time the information was sworn; or (m) the learned Justice Burns failed to calculate the commencement of the delay from 15 September 1996 when asked by Detective Ball “I’m Detective Ball from Belconnen and I wish to ask you some questions about [J]. Her family have suspicions that you are having a sexual relationship with her. Are you having a sexual relationship with her?” and the appellant answered “No”.
The appeal relates only to the length of the relevant delay for the purposes of s 22(2)(c). Given that I have concluded that the convictions should be quashed, the question of a stay is relevant only to the question of any retrial.

The alleged offences against J were said to have been committed between January 1995 and September 1996. On 15 September 1996, the appellant was questioned by police as to whether he had conducted a sexual relationship with J. He denied that allegation. Subsequently, he left the ACT and returned to Queensland. On 29 January 1998, an officer of the Australian Federal Police (the “AFP”) travelled to Badu Island in the Torres Strait and spoke to the appellant who voluntarily provided a DNA sample. That sample was one of the samples analysed and reported upon by Mr Blair. I have previously discussed the content of that report. It seems that the appellant did not learn of such content until much later.
In June and July 1998, the witness, Michelle Taylor, an officer of the AFP, prepared a brief of evidence against the appellant and, on 28 July 1998, asked that the AFP seek the appellant’s extradition from Queensland. Her request was refused. Ms Taylor was instead instructed to swear an information for the issue of a warrant for the appellant’s arrest. The warrant was issued on 30 July 1998 but never executed. There is no evidence that the appellant became aware of its existence prior to 2009 when he was served with a summons, which summons led to the present proceedings.
In 1999 and 2000 Ms Taylor made enquiries as to the appellant’s whereabouts. She discovered that the appellant had moved from Badu Island to Moa Island. On 23 November 2000, Ms Taylor again unsuccessfully requested that the AFP seek the appellant’s extradition. She resigned from the AFP on 3 December 2000. Burns J records that the AFP’s case file was inactive from that time until July 2008. In July 2008 the appellant applied for a “Working with Children Check” (also known as a “Blue Card”) in Queensland. As a result the AFP file was re-opened.
The AFP ascertained that J wished to proceed with a complaint against the appellant. As I understand it, she had not previously made any allegation against him other than of the incidents of indecent exposure to which I have referred. On 2 February 2009 she made a statement. On 25 March 2009 the appellant was served with a summons requiring him to appear in the ACT Magistrates Court on 20 April 2009. On 23 April 2009, he entered pleas of “not guilty” to the charges and, on 3 December 2009, he was committed for trial. The relevant indictment was dated 29 June 2012. The trial commenced on 30 July 2012. On 10 August 2012 the appellant was convicted on four of the five counts on that indictment. Those convictions are the subject of the present appeal. He has not yet been sentenced on those counts. The Human Rights Act
The preamble to the Human Rights Act provides as follows: 1. Human rights are necessary for individuals to live lives of dignity and value. 2. Respecting, protecting and promoting the rights of individuals improves the welfare of the whole community. 3. Human rights are set out in this Act so that individuals know what their rights are. 4. Setting out these human rights also makes it easier for them to be taken into consideration in the development and interpretation of legislation. 5. This Act encourages individuals to see themselves, and each other, as the holders of rights, and as responsible for upholding the human rights of others. 6. Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual’s rights may also need to be weighed against another individual’s rights. 7. Although human rights belong to all individuals, they have special significance for Indigenous people – the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance.
Section 5 provides that the term “human rights” means: (a) the civil and political rights in Part 3; and (b) the economic, social and cultural rights in Part 3A.
Section 6 provides that: Only individuals have human rights.
Section 7 provides: This Act is not exhaustive of the rights an individual may have under domestic or international law.
In Part 3, sections 8-27 deal with the following matters:  section 8 – recognition and equality before the law;  section 9 – right to life;  section 10 – protection from torture and cruel, inhuman or degrading treatment;  section 11 – protection of the family and children;  section 12 – privacy and reputation;  section 13 – freedom of movement;  section 14 – freedom of thought, conscience, religion and belief;  section 15 – peaceful assembly and freedom of association;  section 16 – freedom of expression;  section 17 – taking part in public life;  section 18 – right to liberty and security of the person;  section 19 – humane treatment when deprived of liberty;  section 20 – children in the criminal process;  section 21 – fair trial;  section 22 – rights in criminal proceedings;  section 23 – compensation for wrongful conviction;  section 24 – right not to be tried or punished more than once;  section 25 – retrospective criminal laws;  section 26 – freedom from forced work; and  section 27 – rights of minorities.
Section 28 in Part 3B provides: (1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society. (2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following: (a) the nature of the right affected; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
Part 4 deals with the application of human rights to ACT laws. Section 30 provides: So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Section 31 provides: (1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right. (2) In deciding whether material mentioned in subsection (1) or any other material should be considered, and the weight to be given to the material, the following matters must be taken into account; (a) the desirability of being able to rely on the ordinary meaning of this Act, having regard to its purpose and its provisions read in the context of the Act as a whole; (b) the undesirability of prolonging proceedings without compensating advantage; (c) the access of the material to the public. (3) For subsection (2)(c), material in the ACT legislation register is taken to be accessible to the public.
Section 32 provides that this Court may declare that any law of the ACT is not consistent with a relevant human right. Such a declaration does not affect the validity, operation or enforcement of the law or the rights or obligations of anyone however notice of the declaration must be given to the Attorney General. The Attorney General must present a copy of the declaration to the Legislative Assembly and prepare a written response to the declaration and present it to the Legislative Assembly.
Part 5 provides for scrutiny of proposed ACT laws in order to ensure consistency with human rights. Part 5A deals with obligations of public authorities. Section 40B provides that it is unlawful for a public authority to act in a way which is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. However subs 40B(2) provides that subs (1) does not apply if the act is done, or a decision made under a law in force in the ACT, and:  that law expressly requires the act to be done, or decision to be made in a particular way which is inconsistent with a human right; or  if that law cannot be interpreted in a way which is consistent with a human right.
Sections 40 and 40A define the term “public authority”. Pursuant to s 40(2), both the Legislative Assembly and the Courts are expressly excluded from inclusion in that term, save where either acts in an administrative capacity. Presumably a court, in staying proceedings on an indictment, is acting in a judicial, rather than an administrative capacity. If so, then the primary effect of the Human Rights Act upon this Court is that it must apply that Act in connection with the interpretation of statutes (s 30) and in cases of incompatibility (s 32). However, in exercising its various discretions, the Court would have regard to the human rights prescribed by the Human Rights Act. Burns J proceeded upon the basis that the discretion to stay proceedings on an indictment was derived from s 20 of the Supreme Court Act 1933 (ACT), and that such conferment of power should be construed so as to give effect to s 30. Whether that discretion is statutory or otherwise, I see little difficulty in concluding that in exercising it, the Court should generally be guided by the statutory regime created by the Human Rights Act, particularly s 22(2)(c).
For present purposes the relevant human rights are those prescribed by ss 18, 21 and 22. Section 18 provides: (1) Everyone has the right to liberty and security of person. In particular, no one may be arbitrarily arrested or detained. (2) No one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law. (3) Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her. (4) Anyone who is arrested or detained on a criminal charge – (a) must be promptly before a judge or magistrate; and (b) has the right to be tried within a reasonable time or released. (5) Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment. (6) Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful. (7) Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention. (8) No one may be imprisoned only because of the inability to carry out a contractual obligation.
Section 21 provides: (1) Everyone has the right to have criminal charges, and rights and obligations recognized by law, decided by a competent independent and impartial court or tribunal after a fair and public hearing. (2) However, the press and public may be excluded from all or part of a trial – (a) to protect morals, public order or national security in a democratic society; or (b) if the interest of the private lives of the parties require the exclusion; or (c) if, and to the extent that, the exclusion is strictly necessary, in special circumstances of a case, because publicity would otherwise prejudice the interests of justice. (3) But each judgment in a criminal law civil proceeding must be made public unless the interests of a child requires that the judgment not be made public.
Section 22 provides: (1) Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. (2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else: (a) to be told promptly and in detail, in a language that he or she understands, about the nature and reason for the charge; (b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her; (c) to be tried without unreasonable delay; (d) to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her; (e) to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her; (f) to have legal assistance provided to him or her, if the interest of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance; (g) to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses; (h) to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court; (i) not to be compelled to testify against himself or herself or to confess guilt. (3) A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation. (4) Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.

Burns J and the parties, at first instance and on appeal, have taken the view that the proper approach to the construction of s 22(2)(c) is to calculate the period from the point at which the appellant was “charged” to the time of trial or likely time of trial, and then to consider whether that period is “unreasonable”. Another approach might be to look at the conduct of the proceedings up to the point in time at which unreasonable delay is alleged, and to determine whether there has been any period of undue delay in the course of such conduct. The former approach implies the existence of a benchmark for the time taken to bring a matter to trial, possibly to be adjusted to take effect of any special circumstances associated with the case in question. The latter approach invites a consideration of the time taken between steps in the process of bringing the matter to trial, also inviting a consideration of the responsibility for such delay. It may be that both approaches are open. Perhaps both should be adopted in each case.
For present purposes, however, it is not necessary to choose between those approaches. The appeal is concerned only with the finding that the delay should have been calculated from September 1997 or July 1998. If that proposition is correct, then his Honour’s decision was based upon a significant legal and factual error and should be set aside. If his Honour was correct in his view as to delay, then this ground of appeal must fail.
I turn to the meaning of the word “charged” in s 22. Section 18(4)(b) provides that any person “arrested or detained on a criminal charge … has the right to be tried within a reasonable time or released”. It seems unlikely that the effects of s 22(2)(c) and s 18(4)(b) were intended to overlap. It is more likely that they were intended to be complementary in their operation. Differences in language may be instructive. Section 18(3) speaks of “any charges”, presumably describing the offences which are alleged. The word “charge” in s 18(4) should be similarly understood.
Section 21 applies to both civil and criminal proceedings. It confers rights on “everyone”. Arguably, it confers rights on accused persons, complainants and potential complainants in criminal proceedings, parties and potential parties in civil proceedings and the general public, as well as special interest groups such as, for example, the police and environmental groups. The word “charges”, as used in that section, seems to describe proceedings by way of prosecution for allegedly criminal conduct.
In s 22 the word “charged” is used in a slightly different way. It describes a particular status which attracts certain rights, including the right to trial without unreasonable delay. The status is that of a “charged” person. This case has, to date, proceeded on the basis that any delay should be taken as commencing at the time at which the relevant person became a “charged” person. This approach is consistent with the approach taken by the House of Lords in Attorney General’s Reference (No 2 of 2001), upon which Burns J relied. That case concerned the European Convention for the Protection of Fundamental Rights and Freedoms, Article 6(1) of which provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the party so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The Attorney General posed two questions for consideration. The first was whether criminal proceedings might be stayed on the ground that there had been a violation of the reasonable time requirement in Article 6(1). The second question was as to the time at which any relevant period of delay commenced. As to the first question, I have already set out his Lordship’s remarks at [24], with which Lord Nicholls, Lord Steyn, Lord Hoffmann, Lord Hobhouse, Lord Millett and Lord Scott concurred. Lord Bingham continued, at [25], again with the concurrence of those of their Lordships who are mentioned above: 25 The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s convention right.
As to the second question, Lord Bingham held at [27]-[28] (all of their Lordships concurring): 27 As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. This formulation gives effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this country. In applying it, regard must be had to the purposes of the reasonable time requirement: to ensure that criminal proceedings, once initiated, are prosecuted without undue delay; and to preserve defendants from the trauma of awaiting trial for an inordinate period. The Court of Appeal correctly held … that the period will ordinarily begin when a defendant is formally charged or served with a summons, but it otherwise forbore … to lay down any inflexible rule. 28 The interviewing of a person for purposes of a regulatory inquiry in England and Wales will not meet the test laid down above … . Nor, ordinarily will time begin to run until after a suspect has been interviewed under caution, since [The Police and Criminal Evidence Act 1984] generally requires the charging process to be set in train once an interviewing officer considers that there is sufficient evidence to prosecute a detained person and that there is sufficient evidence for a prosecution to succeed. …
Clearly, this decision reflected determinations of the European Court of Human Rights and domestic criminal law and practice in England and Wales.
The appellant also relies upon the decision of the Supreme Court of Canada in R v Kalanj (1989) 1 SCR 1594. In that case the appellants were arrested on 5 May 1982, without warrant. On that day they were released without charge. However they were told that they would be charged on summons. There was evidence that the early arrests had caused the appellants and their families serious trauma and public embarrassment. On 14 January 1983, an information was presented, alleging that the appellants had committed the relevant offences. The trial commenced in February 1985. Section 11(b) of the Canadian Charter of Rights and Freedoms provided that a charged person must be tried within a reasonable time. The question was as to the relevant starting point of any period of delay. In the Supreme Court, the majority held that time started from the lodging of the information, a step which may have led to the issue of a warrant or a summons.
Again, that outcome seems to have depended substantially upon domestic criminal practice. It is clear from both the English and the Canadian cases that the word “charge” may have a number of meanings. Both decisions recognize the relevant point as being that at which the investigative process concludes and the judicial process commences.
That question has been considered in this country. In Campagnolo v Attrill [1982] VR 893, O’Bryan J, in the Supreme Court of Victoria, considered a provision of the Magistrates (Summary Proceedings) Act 1975 (Vic) which provided that: In relation to any preliminary examination if the examination relates to a charge of rape: (8) The preliminary examination shall not be commenced after the prescribed period has elapsed. (9) the prescribed period for the purposes of these Rules means the period of three months after the accused person has been charged with any offence to which the preliminary examination relates.
After considering various dictionary definitions, legal dictionaries and authorities, his Honour concluded at 900: In my view the expression “charged with any offence” in section 47A carries the technical legal meaning Mr McArdle contends for. It is used in the technical legal sense of appearing before a competent court to answer an accusation made on summons or information. Section 47A is not concerned with police procedures in a police station when a person may be “charged” or “informed against” or “summonsed”, or “bailed” to appear in a court on some future occasion. It operates when a person is formally charged before a court. The limitation period fixed by section 47A is essentially concerned with events within the jurisdiction of a Magistrates’ Court.
This usage was recognized by the majority in Kalanj but discounted. See pp 1602- 1603.
A similar question was considered by the Full Court of the Supreme Court of Queensland (Kelly SPJ, Ryan J and McKenzie J) in R v The Coroner at Mackay; ex parte Butler [1990] 1 QdR 451. Ryan J concluded at 454 (Kelly SPJ and McKenzie J concurring): In my judgment a person is not charged until he is informed that he has been accused of an offence. This may be done by so informing him before an examining magistrate, but I consider that it may be done in other ways. In this case after proceedings had been commenced in Queensland the prosecutor was charged with the offence of murder at a police station and before a magistrate in New South Wales. It does not seem to me to matter that this was done in another state and for the purpose of his removal to Queensland. Nor is it necessary for the purpose of this case to decide whether he was charged at the police station or only when he was brought before the magistrate. It is enough to say that he is a person who has been charged with an offence which involves causing the death of Miss Douty.
This conclusion was reached after an examination of numerous authorities, including Campagnolo v Attrill and again by reference to relevant statutory provisions.

Section 219 of the Crimes Act 1900 (ACT) (the “Crimes Act”) stipulates that an issuing officer may only issue a warrant for arrest if a written information on oath has been laid before that officer. The “issuing officer” is defined in s 185 of the Crimes Act, in relation to a search warrant or warrant for arrest under Part 10 of that Act, as meaning a judge, the registrar or deputy registrar of this Court and a magistrate or, if authorized by the Chief Magistrate the registrar or deputy registrar of the Magistrates Court.
However s 219 does not actually empower those office holders to issue warrants. In the case of magistrates, the power seems to be derived from the Magistrates Court Act 1930 (ACT) (the “Magistrates Court Act”).
Criminal proceedings may also be commenced by serving and filing a court attendance notice pursuant to s 41B.
Section 25 of that Act provides for the laying of a criminal information before a magistrate in any case where a person has committed, or is suspected of having committed, in the ACT, an indictable offence or an offence which may be dealt with summarily. Section 30 provides that if a warrant is to be issued for arrest of the person charged, the information must be written and on oath. However if a summons is to be issued instead of a warrant, the information need not be on oath and may be oral.
Division 3.3.3 provides for the issue of summonses. Division 3.3.4 deals with warrants. A summons must be directed to the relevant defendant, state shortly the matter of the information and require the defendant to appear at an identified time and place before the court to answer to the information, and to be further dealt with according to law. In the case of a warrant, s 47 provides that a warrant must briefly state the offence or matter of the information, name or describe the person against whom it is issued and order the police officers to whom it is directed to arrest the person and bring him or her before the court to answer the information, and to be further dealt with according to law.
These provisions clearly contemplate service of a summons or court appearance notice or execution of a warrant as part of the process of commencing proceedings. It is difficult to see any basis in the legislation for treating the laying of an information as amounting to the charging of the alleged offender. Quite apart from any other consideration, the issuing officer may find that the information does not justify the issue of a warrant or summons. In any event, a court will generally be unable to proceed with the matter until it is satisfied that the accused person has been properly served. That consideration, alone, points towards satisfaction as to service as being the earliest point at which the person can be said to be charged. The question of service will generally be resolved on the appointed date for appearance by the accused person. Appearance will usually be sufficient proof of service or waiver of the requirement for service. In the event of an appearance by the accused person, the court will generally not have to consider the question of proper service. In the event that the accused person does not appear, the prosecution will either be able to prove proper service or not. If it proves proper service, a warrant may issue for the arrest of the accused person or, in some cases, the court may be able to proceed in his or her absence. If service is not proven, the court may adjourn the matter to allow the prosecution further time in which to effect service.
Traditionally, when an accused person appears, the charge is read over to him or her. Sometimes, a plea is taken. In some cases, the accused person may indicate that he or she does not require the charge to be read.
All of this suggests that there is much to be said for the view expressed by O’Bryan J that a person is charged when he or she appears to answer an accusation.
Generally, there will be only short delays between the laying of the information, the issue of the summons or execution of the warrant and appearance. The criminal justice system proceeds on that basis. However, in the present case, although an information was laid and a warrant issued in 1998, the appellant was not aware that such events had occurred. It is not clear whether the 1998 information was used as the basis for the summons eventually issued in 2009. Nonetheless the appellant submits that the relevant period of delay dates from either the laying of the information in 1998 or an even earlier date, September, 2007, when the appellant was asked whether he had conducted a sexual relationship with J.
There is considerable difficulty in identifying the laying of the information as the charging of the accused person. That act has, itself, no particular consequences. At least in theory, the magistrate or other issuing officer may refuse to issue a summons or warrant, in which case the proceedings could go nowhere. Further, the court does not, itself, serve such process. Thus it would not be able to enforce service other than by declining to proceed with the matter.
In any event it is likely that s 22 necessarily assumes that the accused person has been formally advised that he or she is to be tried for allegedly criminal misconduct. If he or she has been arrested and detained in connection with such conduct, s 18 would have required that he or she be advised of the relevant charges. Section 22 probably assumes that, where relevant, s 18 has been satisfied. Section 21 may also be relevant in this regard. It speaks of both a “public hearing” and circumstances in which the press and public may be excluded from all or part of a “trial”. Section 21 also speaks of a “judgment” being made public.
In Brooks v State of Queensland (No 3) [2013] FCA 741 at [13]-[20] I considered the meaning of the word “hearing” in s 87A of the Native Title Act 1993 (Cth). The cases demonstrate that the word may be used to include, not only the hearing of witnesses and submissions, but also events occurring before and after that process. Given the distinction drawn in s 21 between the “hearing”, the “trial” and the “judgment”, it seems likely that the word “hearing” should be given a meaning which is wide enough to include the process by which proceedings are commenced. That process must be “public”. If so, then s 22 should be read as assuming that the commencement of proceedings will have been “public”. The contemplated “publication” is by service on the accused person.
Such an approach supports the view of the House of Lords in Attorney General’s Reference (No 2 of 2001), adopted by Burns J in this case. When Lord Bingham spoke of the accused person being “officially alerted to the likelihood of criminal proceedings against him”, he was clearly speaking of a system of notification which was officially authorized, not simply of notification by an official. The process prescribed by the Magistrates Court Act plainly contemplates execution of the warrant or service of the summons or court attendance notice as being an integral part of the process for commencing proceedings. I conclude that in the ACT, a person is charged, at the earliest, when he or she is arrested pursuant to a warrant or served with a summons or court appearance notices. I do not understand the appellant to rely upon the approach favoured by O’Bryan J in Campagnolo, although I see much in favour of it. In any event, the further “delay” between service of the summons on 25 March 2009 and appearance on 23 April 2009 could hardly be decisive in the context of an overall delay of three years and four months. I do not understand the appellant to submit to the contrary.
Paragraphs 5(k), (l) and (m) of the amended notice of appeal have not been made out. The appeal against the refusal of a stay must be dismissed. In those circumstances I would order a new trial.