A I have no idea sir.
…
Q Had you ever looked at that compact disk?
A Not to the best of my knowledge sir, no.
Q How did you come to acquire it?
A I didn't acquire it sir.
Q Well it was in your house?
A Yes sir.
Q Well can you explain how it was in your house?
A Yes sir I can. I burnt a copy off my Fax program onto a blank CD ROM.
Q So do you say as at the time of your arrest you were quite unaware what was on that CD?
A I was sir, yes.
Q And it was only some time after your arrest that you became aware of what was on that CD?
A Mr Johnson did make me aware of it. To this day I still don't know what's on that CD ROM sir.
Q And are you shocked to think that you had, in your possession, a CD with between 500 and 1,000 child pornographic images, and/or videos?
A I'd be dismayed sir if that's in fact true.
28 The Crown application made and granted was limited to the cross-examination of the appellant, though it was in law also an application to adduce evidence in reply. Even so, the Crown did not seek leave to call further evidence to prove the detailed contents of the records as put to and either denied or not admitted by the accused. The result was that although the jury knew exactly what the Crown was asserting, there was for the most part no evidence of it.
29 As to the third ground of appeal, counsel for the appellant submitted first that evidence of the existence of an image like that described by the complainant was irrelevant and therefore inadmissible. It was submitted that defence counsel ought to have objected to the tender. (Counsel went so far as to submit that the complainant's evidence of what she saw ought to have been objected to, though I think that the submission was ultimately not pressed).
30 In my view it was permissible for the Crown to show that the appellant had available to him at a relevant time an image corresponding to that described by the complainant because it made it more probable in that respect that the complainant was telling the truth. So the conditions of s55 Evidence Act were met. In my view defence counsel's acknowledgement that the evidence was admissible was rightly made.
31 In this Court it was submitted in the alternative that if admissible, the evidence of an available image on the computer brought with it such a risk of unfair prejudice that it ought to have been excluded. Counsel described it as of an obscene and abhorrent nature, a description with which I agree. Counsel asserted that since the possession of pornographic material was not the subject matter of any of the charges and since the evidence was by nature inflammatory, the need for a fair trial for the appellant required its rejection.
32 It must be said that the need for a fair trial is not one that attaches itself exclusively to accused persons. It would in my view have been quite unjust if the Crown had been prevented from adducing evidence independent of the complainant proving the existence or probable existence of something she claimed to have seen at the time of one of the offences and apparently associated with it. No doubt the image would have been accepted by the jury as obscene and abhorrent, even though it was not shown to them, though scarcely more so than the description of the primary acts the accused was said to have committed. The evidence was not inflammatory. It was highly probative. It brought with it no great risk of unfair prejudice. It was rightly admitted, and in a manner which gave proper protection to the accused upon his Honour's insistence that the reference be to a single image and that no actual image be shown to the jury. I would reject the third ground of appeal.
33 As to the fourth ground, the question for this Court is whether, by the answers pointed to, the appellant intended to raise his good character.
34 Sections 110 and 112 of the Evidence Act are as follows -
110 Evidence about character of accused persons
(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
Note. The Commonwealth Act includes an additional subsection relating to unsworn statements.
…
112 Leave required to cross-examine about character of accused or co-accused
A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.
35 The raising of good character requires a conscious decision on the part of the accused. It has been held that such evidence must be intentionally and deliberately adduced for the purpose of raising character before the Crown may be granted leave to cross-examine: Gabriel v R (1997) 76 FCR 279. See also R v Bartle & Others [2003] NSWCCA 329. So good character is not raised, for example, where a witness volunteers the evidence: R v Redd [1923] 1 KB 104 at 106.
36 The field into which the Crown Prosecutor ventured when challenging the appellant's evidence about the "image" was one which presented some difficulty. As the questioner and the witness knew, the jury had been told that there was at the time of search "an image" that could be derived from the computer and its equipment. As both also knew, although that statement was true, it was only part of the truth. There was, as his Honour said, a large number of images which fitted the relevant description. The Crown Prosecutor was asking about "an image" but could not be more precise. He must have meant the image the accused said that he had seen, but did not know which image that might have been. In responding to the questions, the appellant might have had in mind a particular image or might have been referring to any image matching the description given by the complainant or the Crown Prosecutor. The difficulty stemmed from the introductory questions -
Did you have on you computer an image of a ten year old girl with her legs apart ?
…
Have you ever looked at that image ? and
…
Since that occasion have you ever looked at it ?
37 By the time he was asked these questions the appellant had been giving evidence for a whole day, almost exclusively in cross-examination. His answers had to be seen in context. The relevant part of each answer to the "why" question was the expression "that sort of image". Did the appellant, by using that form of words, mean all images and any image answering the description, as his Honour took the appellant to mean, or did he mean the one image he said he had looked at which bore the description, which was "that sort of image"? His answers seem capable of bearing either meaning.
38 Secondly, the appellant was a witness sworn to tell the truth and obliged to answer the questions he was asked. If his answers were true, he could not properly be said to have given them deliberately, intending thereby to raise his good character. In giving judgment, his Honour observed that the appellant could have answered the questions in a way which would not suggest anything about his good character or whether he was the sort of person who would look at such an image or not, though his Honour did not postulate any answer. During the debate which followed the Crown's application his Honour had asked counsel -
Well, why didn't he just say "because I haven't". The answer could simply have been "why haven't you look at that image?" "I haven't".
39 With respect, such an answer would have been tantamount to a refusal to answer. Although it seems possible that the appellant might have given a responsive and truthful answer which did not appear to raise good character, it is not immediately apparent what it might have been.
40 I do not think that his Honour was entitled to conclude that by his answers the appellant intended to say that he was not the sort of person who looked at images generally meeting the relevant description. What the appellant said, considered in context, seems as consistent with a narrower intention, namely that he did not look again at whatever image he had seen, meeting the description, because he did not like it on his computer.
41 I would in any event have upheld the appellant's alternative submission that his Honour erred in exercising the discretion so as to permit the Crown in cross-examining to adduce evidence of the other images. There are two reasons for this. First, the evidence of a large number of images of adults having sexual relations with prepubescent girls was likely to overwhelm the jury and divert them from their task, notwithstanding strong directions about the way in which the evidence could be used. The evidence had the capacity to shock, even though it had no direct relevance to the matters in issue. As his Honour observed in rejecting the evidence when it was tendered as tendency evidence, its probative value was not significant and it brought with it a risk of high prejudice which exceeded that value.
42 In my view a miscarriage of justice was occasioned by the events that followed. I note that the Crown Prosecutor asked a large number of questions postulating the detail of the contents of the tapes which never actually became evidence because the appellant either denied or did not admit the postulated particulars. That was material the jury were not entitled to use, but it must have been highly prejudicial to the appellant because it must have been apparent that the Crown Prosecutor was asking his questions based upon firm instructions from somebody who had looked at the images. Although the jury were appropriately told about the limited use they could make of evidence of any image and of any lie they considered the accused had told about any image, they were not told that the only images they could find existed were those conceded by the appellant to have existed. On the contrary, his Honour referred in summing-up to the Crown's cross-examination of the appellant about "a large number of such images being found on the computer and on a CD ROM" (SU15) and to "the evidence of the other images and on the evidence conceded by the accused that there were a large number of such similar images …" (SU19).
43 I would uphold the fourth ground of appeal.
44 The first ground of appeal asserts that the verdicts were unreasonable and unsupportable by the evidence. The question for this Court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant: M v The Queen (1994) 181 CLR 487.
45 The evidence of the appellant's commission of the offences came solely from the complainant. The appellant took the oath and denied committing them. The first submission in this Court was that the complainant's evidence was "entirely uncorroborated in respect of each of the matters constituting the essential elements of each offence". Save for evidence adduced to prove the complainant's age, that submission may be accepted. There was no evidence independent of the complainant that the appellant had carried out any act constituting any element of any of the offences. That is not to say that the complainant was without support, however, for her description of the image she saw on the computer was rendered powerful by independent evidence of the existence at the time of just such an image.
46 The complainant gave her evidence by videotape recorded soon after she made her complaint and, at trial, by remote closed circuit television. I have viewed the videotape and have read the transcript of her evidence before the jury. She appears to be an intelligent child able readily to understand what she is asked. Although there is a limit to the weight that can be placed on demeanour, I am satisfied that the complainant showed no outward sign of having been coached. She was questioned on the videotape for more than two hours. She was not led. She was alert and responsive. I detected an occasional reluctance in the first place to recount the details of the appellant's several criminal acts - on one or two occasions she began by saying that nothing had happened - but once she began to recount them she was lucid. Her evidence was sufficient, if accepted, to prove the elements of the offences, other than her age.
47 Counsel for the appellant drew this Court's attention to a great many features of the complainant's evidence, so many in fact that I do not propose to mention them all. It was pointed out that the complainant knew the names of the sexual parts of men and women, that she had participated in classroom activities for directions about the sexual molestation of children and knew what the term "sexual abuse" meant. The implication was that the complainant knew enough to be able to fabricate her allegations. Then patent or apparent inconsistencies in her account were pointed to - her varying accounts of how many times a particular thing happened or precisely where and when, and exactly how particular things happened. For example, a distinction was made between her description of the appellant's licking and sucking. Although she had been taught to tell her mother if she was sexually abused, she did not do so. It was pointed out that although on the videotape the complainant said only that the appellant's penis tickled her, she said for the first time at trial, during cross-examination, that it hurt. Sketches that she drew during her interview were criticised for their anatomical inaccuracy. All these matters were said to be indicators of unreliability.
48 Counsel relied on three features in particular. The first was that whereas the complainant's evidence was that the appellant had ejaculated onto a certain piece of furniture, the evidence was that swabs taken later on failed to reveal the presence of DNA. That circumstance was said to render "untenable" the complainant's account of the ejaculation. This submission should be rejected. The negative result of a test made some indeterminable time, perhaps months, after the event seems unsurprising and equally consistent with the event's having happened and not having happened.
49 The second of these features was medical evidence of the condition of the complainant's hymen. Dr Johnson gave evidence. He had examined the complainant. There were these questions and answers -
Q And on the physical examination you noted the hymen was normal?
A Yes.
Q And you noted that it was a crescentic hymen. What's the significance of any of that?
A Yep. What we mean by that is that a hymen is not a perfect barrier. If you imagine a clock-face. Then it may be incomplete between say the 10 o'clock and the 2 o'clock position or the 9 o'clock and the 3 o'clock position, so it becomes a crescentic shape, that of a half-moon to an upside half-moon, so and that's - that was indeed how the hymen looked with (the complainant).
Q So what's the significance of all that?
A That means it's a normal looking hymen. I mean there's many shapes that a hymen can take but the crescentic hymen as I've just got there is the most common description that you would find. Really what I suppose I am saying is that hymen's vary in their shape and they vary in their elasticity according to age. As you enter puberty, the effects of oestrogen allow a hymen to become more elastic. But even in younger girls, particularly the age of seven, you would have increasing amounts of oestrogen, so the hymen becomes more elastic. So in essence, it means that you can't just, just by looking at somebody, by inspecting that area, you can't tell whether or not there's been sexual contact or not or any sort of contact.
Q Is a normal hymen, in particular a crescentic hymen consistent with penetration?
A It can be, because after penetration, usually in the first seventy-two hours is the best time, the optimal time to perform an examination. You'd be looking for redness or laceration or even semen but after that time, these changes will have gone and very rarely you may see a scar but the hymen can just look as it always, the normal shape.
50 It seems to me that these findings, like the absence of DNA, were not inconsistent with penetration.
51 The third matter relied on is of more substance. During the videotaped interview the complainant was describing the appellant's use of cream and there were these questions and answers -
Q933 Have you, how do you know that? Have you seen kids using that type of cream?
A Yeah.
Q934 Yeah. When or ---
A Um, well, grownups, I've seen the boy, well, (the appellant) used to have this child.
Q935 Ah hmm.
A He was um, 18.
Q936 Yeah.
A And he would put it on his son.
Q937 Sorry, he'd put it on?
A His son.
Q938 Whereabouts on his body?
A Um, here's the boy.
Q939 Yeah. Where are we, the boy.
A There.
Q940 There.
A It, he'd put it, like um, there.
Q941 What part of the body's that?
A Um, penis.
Q942 So ---
A He'd put it on his penis and it would squirt out on (the appellant), 'cause he would, he wouldn't know that this was happening.
Q943 Who?
A He would, he would come up to him and squirt it there.
Q944 And you're, what part of the body is that?
A Um, the bum.
Q945 Right.
A So (the appellant) ---
Q946 So did you see this happen?
A Um, I was, I was in the um, kitchen and I just saw um, his son running along, like with his pants zipper, zipper down and I saw all this cream on, on (the appellant).
Q947 O.K.
A Oh, I mean on the son, 'cause (the appellant) did it.
Q948 How do you know (the appellant) did it?
A Um, 'cause I saw the boy have some on his, still on his bum.
Q949 Ah hmm.
A Yeah, and ---
Q950 Who, what's his name?
A Um, I don't know, he never told me. And then he got in a car crash and died.
Q951 O.K. So this boy died, did he?
A Yeah. He died when he was 26, 26.
Q952 How long ago was that?
A That was, he was 18 when this happened, and that was pretty long ago, 15 years ago.
Q953 What, when he died?
A Yeah. About then.
Q954 O.K. So sorry, I'm just getting a little confused. Did you see this boy with cream on his bottom?
A Yes.
Q955 You saw it?
A Yes.
Q956 You were in, in the kitchen when you saw it?
A Yes.
Q957 How long ago was that when you saw it?
A Twelve years ago.
Q958 Twelve years ago.
A Oh, no.
Q959 No. Because how old are you?
A 7.
Q960 Yeah.
A About two.
Q961 About two years ago?
A Two, three.
Q962 Yeah.
A I think it might have been three.
Q963 Did that really happen, (the complainant) ?
A Yes.
Q964 Yeah. Because remember we talked about ---
A Yeah.
Q964 --- we'd only talk about things that really happened?
A Yeah, it happened.
Q965 O.K.
A I remember.
Q966 So this happened ---
A Yeah.
Q966 --- but we're not sure how long ago.
A Yeah.
Q967 If you're not sure, O.K., just tell me.
A O.K.
Q968 And that's fine.
A O.K.
Q969 O.K. That's not a problem.
A O.K.
Q970 O.K. So, and you know this boy was (the appellant's) son.
A Yeah.
Q971 Yeah. O.K. Had you met him before?
A Yeah, I've seen him pretty much ---
Q972 Ah hmm.
A --- but then he lost, went out to, went somewhere and got in a car crash.
Q973 O.K. And you know he died?
A Yeah.
…
Q1235 O.K. One question I needed to ask you about was remember you told me about the little boy, or not the little boy but (the appellant's) son?
A (No audible reply)
Q1236 Yeah. And I got a little bit confused when you were talking about him because you told me you saw him in the kitchen.
A Yeah.
Q1237 And you saw him with cream on his bottom.
A Yeah, he was still wearing his shirt.
Q1238 Right. Still wearing a shirt.
A Yeah.
Q1239 And you think he was about 18 years old.
A Yes.
Q1240 O.K. So you think he was older than (complainant's sister)?
A Yes.
Q1241 Yes. O.K. I believe that he died a few years ago, so I'm wondering how you could have seen him.
A I was 4 when he died, when (the appellant) told me about him dying.
Q1242 You think you were about 4.
A Yeah.
Q1243 Right.
A I think it was three years.
Q1244 O.K. And you saw him before he died?
A Yes.
Q1245 And you were in the kitchen.
A Yes.
Q1246 O.K. Had (the appellant ) touched your vagina at that time?
A No.
Q1247 O.K. So that was way, that was before (the appellant) touched your vagina ---
A Yes.
Q1247 --- that you saw him in, this boy in the kitchen.
A Yes.
Q1248 You don't know his name?
A No.
Q1249 Do you remember what he looked like?
A He had brown hair.
Q1250 Brown. This boy, about 18 years old.
A Brown hair.
Q1251 Brown hair. What else can you remember about him?
A He was … I don't know.
Q1252 How tall are you?
A I'm three feet, one or two inches or….
Q1253 So he's taller than you.
A Yeah.
Q1254 Was he taller than (complainant's sister), 'cause (complainant's sister) ---
A He was about (complainant's sister's) size.
Q1255 Ah hmm. O.K. O.K. What colour was his skin?
A Um, he was white.
Q1256 White O.K. And he had brown hair. What was his hair like?
A It was, like, it's like (complainant's brother's).
Q 1257 Like (complainant's brother's) hair. Was it long or short?
A Short.
A1258 Short. Was it straight or curly?
A Curly.