R. v. AJL [2000] NSWCCA 104

COUNSEL : C.K. Maxwell QC (Respondent) P.J. O'Donnell (Appellant) S.E. O'Connor, Solicitor for Public Prosecutions SOLICITORS : (Respondent) P.A. Wiggins (Parramatta) (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Appeal - Verdict - Whether unreasonable or cannot be supported - CRIMINAL LAW AND PROCEDURE - Sexual offences - Evidence - Complaints - Whether "fresh in the memory" of the complainant - Long delay - Admissibility. DECISION : Appeal allowed; Convictions and sentences quashed; New Trial ordered

CCA 60674/98 DC 97/21/0282

POWELL JA HULME J DOWD J

JUDGMENT 1 POWELL JA: On 17 August 1998 the Appellant was indicted before Backhouse DCJ at the Parramatta District Court on three charges, each alleging that, on 6 December 1995, at Fairfield, he assaulted DKN and, at the time of such assault, did commit an act of indecency on DKN, he being a person under the Appellant's authority (Crimes Act 61M(1), (3)(c)). 2 The Appellant pleaded not guilty to each of the charges in the indictment and was tried before her Honour and a jury of 12. 3 On 24 August 1998 the jury returned with a verdict of guilty to each of the counts in the indictment. 4 On 16 October 1998 her Honour sentenced the Appellant on each of the charges to community service for 400 hours, with the sentences on each charge to be concurrent. The Appellant was ordered to report on 21 October 1998. 5 The Appellant is an ordained minister of religion who, at the time of the alleged offences, was aged 47 years and who, at that time, was a teacher at a private school in the Western suburbs of Sydney - he had, at that time, been a teacher for about 22 years. Although, at the time of the alleged offences, the Appellant was accustomed to teach ancient history and religious studies, it would seem that, in addition, he had, over the years acquired an extensive and expert knowledge of iconography and calligraphy, subjects in which, so it would seem, the Complainant had an interest. 6 At the time of the alleged offences, the Complainant was aged 16 years and was in Year 10 at the school at which the Appellant was then teaching. The Complainant, so it would seem, had been a student at the school since the commencement of his secondary education - Year 7 - and had been taught by the Appellant during the previous year, Year 9. The Complainant regarded the Appellant very highly as a teacher and, as well, because he (the Complainant) had an interest in such subjects as Christian history, iconography and calligraphy, would from time to time discuss such subjects with the Appellant. 7 The Complainant gave evidence - which was not disputed - that if, while he was a student at the school, the Appellant had given him an instruction or direction, he would be required to follow that instruction or direction. 8 I record below, in summary form, the case which the Crown set out to establish at the hearing before Backhouse DCJ. 9 As I have earlier recorded, at the time of the alleged offences, the Complainant was in Year 10 at the school which he then attended. Towards the end of that year - the date was later identified by the investigating police officer as 6 December 1995 - there was held at the school a function, apparently known as an employers' awards night - the awards were apparently sponsored by employers and businesses in the district and went to students who, during the year, had been doing work which was relevant to the business of the sponsors. Associated with the presentation of the awards was a dinner for the sponsors, teachers and pupils who were to receive awards. At the time wine and beer were available for the adults who were present and there were soft drinks - such as Coca Cola and lemonade - for the pupils who had attended. As the Complainant was to receive an award that evening, he was in attendance both for the presentation and at the dinner. 10 Although the evidence is not entirely clear, it would seem that, after the presentations but before dinner had been served, many of those present stood around in conversation. The Complainant's evidence was that, while was this was occurring he was talking to the Appellant. While they were talking, the Appellant obtained a cup of white wine for the Complainant who, when he tasted it, did not like it and drank no more of it. 11 At the time when this function was held, there had been erected in the school grounds a new chapel which, at the time, was in the process of being fitted out. The plan which was tendered on the hearing indicates that the chapel was rectangular and the description later given of it by the Appellant when interviewed by the police was that it contained three rooms, they being, the body of the chapel and, separated by a wall which was behind the place where the altar was to be installed, two rooms described by the Appellant as a work area with a sink and a storage area. 12 While the Complainant and the Appellant were talking, the Appellant asked the Complainant if he wished to see the chapel. Although the chapel was situated in a area to the side of the hall, access to it was restricted and direct access was not possible so that, if one wished to see the chapel, one had to proceed from the hall around three sides of a building then used as a library and thence to the chapel. 13 When they reached the chapel, they entered it and the Appellant pointed out to the Complainant various features of it, such as lighting and the effects which could be achieved by the lighting and the intended place for various items, such as the cross - when the chapel had been fully fitted out. 14 When that had been done, the Appellant and the Complainant then proceeded to the far end of the chapel where the Appellant opened the door into what the Complainant, in his evidence, described as a room "where the priests get changed into the - into the garments" - this I take to be a reference to the priests' vestments. Although not further identified, it seems probable that the room in question was that described by the Appellant in his record of interview as the storage area. The Complainant walked in, followed by the Appellant. Although the room was not lighted the door was then closed by the Appellant. The Appellant then held the Complainant's arms near his shoulders and said something about right or wrong. He then bent over and kissed the Complainant on the mouth. The Complainant could feel the Appellant's tongue on his lips and could smell alcohol on his breath. The kiss lasted no more than a minute. When the Appellant stopped he said "This is wrong" and they walked back out of the room. The Complainant did not consent to the Appellant kissing him. This incident was the subject of the first charge in the indictment. 15 After they had left the chapel, the Complainant and the Appellant walked alongside one wall of the library building before turning right to pass along what appears to have been the front wall of the library building before turning right again in order to walk back to the hall. As they did so, the Appellant had his hand on the Complainant's shoulder. While they were walking along the front of the library building, they were passed by another teacher - either a Mr. Mc or a Mr. D, the Complainant could not remember which - walking in the opposite direction. 16 After they had passed the other teacher, instead of turning right at the end of the library building, the Appellant guided the Complainant towards the front gate of the school, using his hand on the Complainant's shoulder to do so. When they reached the entrance of a building described as the Year 12 block, they entered and went up a staircase stopping on a landing. The block was closed that night and it was dark. 17 When they reached the landing, the Appellant started to kiss the Complainant again. The Complainant may have said something about wanting to go back to the hall. The Appellant said "Don't worry this won't take long". As the Appellant kissed him, he (the Appellant) rubbed the area of the Complainant's penis on the outside of his clothes. The Complainant had an erection. The Appellant unzipped the Complainant's trousers and put his hand on the inside of the Complainant's underpants and began rubbing the Complainant's penis. The Complainant did not consent to the Appellant kissing him on this occasion or touching his penis. This incident was the subject of the second charge in the indictment. 18 The Appellant then unzipped his own trousers and began masturbating himself. The Appellant was touching his own penis with one hand and the Complainant's penis with the other. The Appellant then took the Complainant's hand and placed it on the Appellant's penis and started moving his body in a thrusting motion. At this point the Complainant noticed that the Appellant was circumcised. The Appellant pushed the Complainant's head down towards his penis. The Complainant moved back and the Appellant started touching himself again until he ejaculated. The Complainant could see a white spot on the ground. The Complainant did not consent to the Appellant touching his penis or to the Appellant putting his (the Complainant's) hand on the Appellant's penis. This incident was the subject of the third charge in the indictment. 19 The Appellant then zipped his trousers up and apologised. They then left the Year 12 building, turned left to walk back towards the hall which they entered. The Complainant did not tell anyone at the hall what had happened. He said he wanted to forget it, he was confused, and could not make sense of it. 20 The following year the Complainant continued to attend the school as a pupil in Year 11. During the year he saw the Appellant occasionally but never in private. In 1997 the Complainant, for reasons which do not bear on the present matter, changed school and moved out of his parent's home. When he did so, he stayed in various crisis centres, staying in the third such centre for most of the year 1997. 21 Shortly after he went to live in the third centre he disclosed to his case worker Ms. B. what had happened to him in Year 10. 22 Ms. B. gave evidence that, in March 1997 she was a youth worker at the third of the centres where the Complainant lived in 1997. According to the records of that centre, the Complainant arrived there on 10 March 1997. On 15 March 1997 the Complainant disclosed to her what had happened to him at school. Ms. B. made notes about the conversation with the Complainant on the following morning and made an entry in the communications book which was kept at the centre. In the circumstances, it is unnecessary to record in any detail what was the evidence given by Ms. B. as to what the Complainant told her in March 1997. 23 Detective Senior Constable Fileman attached to the Child Protection and Enforcement Agency was officer in charge of the case. He gave evidence of having spoken to the Appellant on 20 May 1997 and informed him that he had received a complaint from the Complainant, which complaint the Appellant said he rejected. The Appellant was taken to the Police Station and interviewed by way of ERISP in the course of which interview the Appellant denied the allegations which were put to him. However, while he said he was not sure whether he showed the Complainant the chapel he said that he may have done so, and that, while he could not recall giving the Complainant a glass of wine, it was possible that he did so. Detective Fileman attended the school with the Complainant during June 1997 and took some photographs. He checked a diary entry which identified the evening in question as having been on 6 December 1995. 24 Each of Mr. Mc. and Mr. D. was called to give evidence, the former giving evidence that he attended the function in question and recalled the Complainant and the Appellant being present but did not recall crossing paths with anyone when he walked from the hall to his car that evening, and the latter giving evidence that he attended the function in question but could not recall whether the Complainant or the Appellant was present nor did he recall seeing the Complainant in company with the Appellant that night. 25 Having summarised the case which the Crown sought to put forward, it is convenient here to pause to record the particular aspect of that case which provides the basis for the first ground of appeal taken on behalf of the Appellant. 26 After the Appellant had been arraigned, his pleas entered and the jury empanelled, P. J. O'Donnell, who then appeared, as he did on the hearing of this appeal, for the Appellant, in the absence of the jury sought to have Backhouse DCJ rule that the evidence of complaint which it was anticipated would be led from the Complainant and from Ms. B. was inadmissible. Although the transcript record (T. 17/8/98 p. 2) does not record the discussion which then occurred, the detailed written reasons which Backhouse DCJ was later to provide - they are dated 16 December 1998 - would indicate that Mr. O'Donnell's application was advanced on two bases:

1. that given the sixteen months which had passed since the evening in question, the complaint made by the Complainant to Ms. B. in March 1997 was not "fresh in the memory of (the Complainant)" with the meaning of s. 66(2) of the Evidence Act 1995; and

2. that, even if the evidence of complaint were admissible under s. 66 of the Evidence Act 1995, the manner in which it was intended that the evidence of Ms. B. would be led would lead to unfair prejudice to the Appellant and, thus, that evidence ought not to be admitted (Evidence Act 1995 s. 137). 27 At the commencement of the second day of the hearing and before any evidence was tendered in the Crown case Backhouse DCJ formally recorded her rulings, first, that the evidence of the complaint was admissible and, second, that any prejudice to the Appellant arising from the editing of the evidence of Ms. B. did not outweigh the probative value of that evidence. At the same time her Honour indicated that she would reduce her reasons for so ruling to writing. 28 It is clear from her written reasons - which, as I have earlier noted, were dated 16 December 1998 - that, in ruling that the evidence of the complaint was admissible under s.66 of the Evidence Act 1995, Backhouse DCJ had relied upon the decision of this Court (Newman, Levine and Barr JJ) in R. v. Graham 2 December 1997 (unreported) an appeal from the decision in which had been heard, and upheld, by the High Court on 6 August 1998 although the Judgment of the High Court in which was not delivered until 30 September 1998. In the circumstances, the Crown now concedes that the evidence of the Complainant's complaint to Ms. B. was not admissible under s.66 of the Evidence Act 1995. 29 Since the delivery of the High Court's Judgment in Graham v. The Queen [1998] HCA 61; 72 ALJR 1491; 157 ALR 404 similar issues have been examined in this Court on a number of occasions, as, for example, R. v. Gillard [1999] NSWCCA 21 in which case the period between occurrence and complaint was twelve months, R. v. Dwyer [1999] NSWCCA 47 in which case the periods between occurrence and complaint ranged between six to ten years, and R. v. Whitmore [1999] NSWCCA 247 in which case the period between occurrence and complaint was about three years. In each case, this Court held that the evidence of complaint was not admissible under s. 66 of the Evidence Act 1995, quashed the convictions and directed new trials. 30 In the circumstances, as I have already noted, the Crown concedes that the evidence of complaint to Ms. B. was inadmissible but, as I will later record, submits that no miscarriage of justice has occurred as - so it is submitted - in the circumstances, if sought, leave to adduce the evidence would have been granted pursuant to the provisions of s.108(3)(b) of the Evidence Act 1995. 31 At the end of the Crown case and, in the absence of the jury, Mr. O'Donnell sought from Backhouse DCJ what has come to be known as "a Prasad direction" (R. v. Prasad (1979) 23 SASR 161) the bases upon which he advanced his application being, first, that the Crown case ultimately depended upon the acceptability of the Complainant as a witness of truth, there being no corroboration of that evidence either by way of independent evidence or by admission on the part of the Appellant and, the delay in making the complaint, which delay, so he submitted, was a significant factor to be borne in mind when assessing the credit of the Complainant. However, her Honour declined to give the direction which was sought (T. 19/8/98 pp. 31-32). 32 I record, in summary form, the case which the Appellant sought to advance on the hearing. 33 The Appellant gave evidence that he had been a school teacher for twenty-eight years and that apart from matters then under consideration he had been never charged with, or convicted of, any criminal offence. 34 It was the Appellant's duty to co-ordinate the catering for the evening in question. The evening was a means of thanking employers who had given time and effort to make the work experience programme a success. It was a chance for them to see the work of the students. It was a general "PR exercise" for the school. 35 The Complainant was a student at the school and was present at the awards night function. During the night there was some talk among the students about trying to get some wine. The Complainant asked him for some wine. The Appellant said that as a joke he obtained a small plastic party glass of wine and gave it to the Complainant in front of some other people. The Complainant took a sip and said "Oh that's revolting" and gave it back to the Appellant. The Appellant said that they all laughed. 36 The Appellant had a conversation with the Complainant about the chapel during which the Complainant asked if he could see the lighting in the chapel. The Appellant can recall saying to someone "I'm just going to show (the Complainant) the lighting". The Appellant and the Complainant left the hall. At the chapel, the entrance doors were open and the lights were on. The Appellant switched some of the lights up and down and the Complainant used the lights to get different effects. The Appellant then said "We'd best go". At no time did the Appellant enter the small rooms near the altar with the Complainant on that evening. Earlier that afternoon the Appellant did go into one of the rooms to prepare the chapel. At no stage whilst in the chapel did the Appellant kiss the Complainant or touch him on the shoulders. 37 They then walked back along the driveway between the Year 12 block and the library. At the first logical point they turned right and walked down past the library and back in the double doors of the hall. At no time that evening did he go to the Year 12 stairwell with the Complainant. At no time did he touch the Complainant in a sexual way or have the Complainant touch him in a sexual way. They returned to the hall and the Appellant spoke to another teacher Mr. R. He saw the Complainant accompany Mr. R. to a table with several others. 38 The Appellant left prior to the end of the evening function because of the condition - sleep apnoea - from which he suffers and which renders him unable to stay awake beyond late evening. He had been working at the function all day and was exhausted. He left quietly, saying goodbye to only a few people. 39 On the day that the Appellant was interviewed by police he was particularly unwell. During the police questioning he felt totally exhausted. He asked both Detective Fileman and Officer Sanders for medication but did not discuss with the officers his ailment. 40 Mr. R. gave evidence that he was a secondary English teacher formerly teaching at the school. A fellow teacher and colleague while he was at the school was the Appellant. Mr. R. can recall the Appellant and the Complainant being present at the function. He observed the Appellant leaving the hall on several occasions during the night to show different groups of people the chapel. He also recalls seeing the Appellant and the Complainant leaving the hall together. The Appellant said to him "I'm just showing (the Complainant) down to the chapel, I'll be back soon." Shortly afterwards Mr. R. left the hall to go to his car to find some headache tablets. 41 Mr. R's car was parked at the end of what was described as F block opposite the library. While he was there, he observed the Appellant and the Complainant walking from the chapel area around the library. From what he could see the Appellant was not touching the Complainant. He saw them walk along the staff car park area which runs parallel to the Year 12 block towards the hall. He was standing at his car when he observed this. 42 Mr. R eventually closed the car door having found no headache tablets. On his walk back to the hall he did not lose sight of the Complainant and the Appellant. From his perspective they could not have gone straight ahead past the library and into the Year 12 block. Upon entering the hall Mr. R spoke to some staff and senior students. He asked the Appellant about getting some headache tablets. He later sat down with the Complainant and his brother and had dinner with them. 43 A Ms. V gave evidence that she was a teacher and in 1995 taught at the school. She did not attend the function on the evening in question. She had been in the Year 12 stairwell after sunset in December. It is very dark. If she was standing on the landing with the internal light fixtures extinguished she would not be able to see the ground. There is a window above the stairwell but it is covered in a thick mesh and is very dirty. 44 A Mr. L gave evidence that he is a teacher and colleague of the Appellant at the school. In December 1997 at about 9.30 in the evening Mr. L had to go into the stairwell area of the Year 12 block. It was extremely dark and he had to hold onto the stair rail even though he was familiar with the building. 45 In addition to the evidence of those witnesses, there were two witnesses who gave evidence as to the good character of the Appellant, one of those, a former student of the Appellant and, at the time, a family friend, also giving evidence that the Appellant's behaviour in the company of children and adults was one of integrity. Further, some of those who treated the Appellant for his condition of sleep apnoea gave evidence as to the effect which that condition can have on a person affected by it. 46 At the commencement of her summing-up, Backhouse DCJ gave what one might call the expected directions as to the respective roles of the jury and herself; as to the onus of proof and the standard of proof, emphasising that the onus of proof remained throughout on the Crown, there being no onus of proof on the accused at all, and emphasising as well that it was for the Crown to establish beyond reasonable doubt each ingredient in each charge. 47 Having done so, her Honour proceeded (p. 4): "In this case there is one witness who is essential to the proof of the Crown case, and that is (the Complainant) and you should therefore examine, and scrutinise, his evidence with great care before you decide that a verdict of guilty should be brought in, if at all, and you should only find the accused guilty if you are satisfied beyond reasonable doubt the truth of the evidence of that witness. Now the fact that I have given you that warning does not mean that I have formed any view as to the honesty or reliability of that witness, it is a warning that would be given in any case where the Crown case depended on the evidence of one witness."

48 Having done so, her Honour then reminded the jury of the three charges which were before them, identified the essential facts which the Crown had to establish in respect of those charges and then gave the jury directions as to the meaning in law of the word "assault", of the phrase "an act of indecency" and as to the necessity for the Complainant being under the authority of the Appellant, which fact had not been challenged during the hearing on behalf of the Appellant. 49 Having done so, her Honour then proceeded to deal in an extended fashion with the evidence which had been tendered on behalf of both the Crown and the Appellant, as she did so drawing the jury's attention to the various matters upon which either the Crown Prosecutor or Mr. O'Donnell had sought to place emphasis during the course of their submissions. 50 Her Honour then proceeded to discuss with the jury how they might go about their task of fact finding. In the course of doing so, her Honour said (pp. 34-36): "The next direction of law that I give you relates to what is called complaint evidence. The evidence which is described as complaint evidence is the evidence from (sic) which you have heard from (Ms. B). You have heard evidence from the complainant that he, at the refuge, met - I think he was only there for a matter of perhaps a few days, up to a week - when apparently he had this conversation at the refuge with (Ms. B), who was then his case worker. You have heard the evidence from (Ms. B) herself as to what she said happened on that occasion. The first matter which I direct you about is that the evidence of (Ms. B), that it is evidence going to the truth of what it asserts, in other words it is capable of establishing the fact, that is the fact of what she says was said on that occasion. In other words, that if you accept her evidence, that it is capable of assisting you in your assessing the guilt, or otherwise, of the accused in this trial. That is, it is evidence of the truth of what it asserts, that is what was said. I will, at this point of time, direct you, as I am obliged to under the law, with respect to the evidence of (Ms. B). I am obliged to warn you that the evidence of (Ms. B) may be unreliable because her evidence, in effect, emanates from the complainant himself, and therefore depends, in turn, upon whether you accept the complainant as a credible witness, and what he has told you in his evidence. The fact is, the evidence which she is giving is a repeated assertion to her, and that being so, it does not enhance a basic lack of reliability - if you find that to be the case - in other words if you do not accept the complainant, the evidence of (Ms. B) cannot improve the veracity of his evidence. It is because of that that I am required to warn you of the need for caution in determining whether to accept the evidence of (Ms. B) and the weight to be given to it by you. The next matter is a direction, having in mind the aspect of delay in the making of the complaint by the complainant. Firstly, I am required to warn you that delay in complaining does not necessarily indicate that the allegation that the offence committed was false. I am also required to inform you that there may be good reason why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about the assault. You may think that that is perfectly obvious. There may, of course, be good reasons for delay. The question for you to consider is whether, in this case, the complaint and the circumstances in which it was made are consistent with the allegations, or whether they throw doubt upon them. The next matter which I must direct you about in relation to this question of delay is that in evaluating the evidence of the complainant, and in determining whether to believe him, you may take into account his failure to make a complaint at the earliest reasonable opportunity, as reducing his credibility. Finally in relation to this question of delay by the complainant in making his complaint, I direct you that delay by the complainant in making his complaint in this case, has created difficulty for the accused in meeting the allegations, because of the absence of any opportunity to investigate the circumstances in which the events were alleged to have taken place."

51 Except for the matter to which I next refer, there is no other aspect of her Honour's summing-up which need be recorded. 52 The transcript (T. 18/8/98 p.27) records the following in the course of the Complainant's cross-examination after Mr. O'Donnell had pointed out to the Complainant what appeared to be differences between the evidence which he had given in chief and the statement which he had made to the police in 1997: "Q. Which version is incorrect, that is, what is in your statement or what you think you remember in the witness box today? A. I think the statement would be more accurate because I wasn't feeling so nervous when I made it. Q. You were more relaxed when you made the police statement? A. Yes. Q. Can I suggest the reason for the difference is that (the Appellant) never took you into that room at all, what do you say about that? A. I say that is not true. Q. See, what I am suggesting to you is that you falsely accused him of being in that room with you, what do you say about that? A. There was no reason for me to falsely accuse him of anything, out of all the teachers I admired him most. I have nothing - besides that I have nothing against him. Q. Can I suggest to you that the reason why there is a difference is that it never happened and you are having trouble remembering what you said previously? A. I might forget the order in who walked in that room first, but what I said did happen."

53 At the conclusion of the final addresses of the Crown Prosecutor and Mr. O'Donnell, there followed, in the absence of the jury, a considerable debate as to the directions which her Honour should give in her summing-up to the jury. The transcript (T. 20/8/99 pp. 49-50) records the following (inter alia) at the commencement of that debate: "Your Honour the second complaint is this. In cross-examination the complainant in answer to a suggestion by me that he had made it up, said there was no reason by me to falsely accuse the accused of anything, and I think he went on to say, 'I idolised him'. That answer of course was not responsive to the question. In other words he introduced the additional consideration that he had no motive to fabricate the allegation against the accused. I formed the opinion at that stage your Honour that it was - although it wasn't strictly admissible, it was best left alone in that if it were excluded from the evidence it would only highlight the jury's appreciation of it. My friend decided to incorporate that evidence into her address to the jury. Your Honour there is now a long line of authority culminating in the decision of Jovanovic that's reported in 1997 42 NSWLR 520, where the advancing of that submission by the Crown or the reference to that line of logic by the trial judge in summing-up is a serious miscarriage. It amounts your Honour to the assertion why would the complainant rely, which of course is the prohibited logic that the courts have been anxious to stamp out in this type of litigation. That is my second complaint your Honour."

54 The debate as to directions continued for some considerable time, at the conclusion of which her Honour indicated, albeit with some reluctance, that she proposed to give "a Jovanovic direction" in order to avoid the possibility of the trial miscarrying. 55 Accordingly, at the conclusion of her summing-up, her Honour said (pp. 47-48): "The final matter of which I give you a direction about is that it would be natural to ask yourselves why the complainant … would make up such serious allegations against the accused. I give you the following directions about that question. As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt, or the accused must be acquitted. The case turns on the evidence of (the complainant) you must be satisfied beyond reasonable doubt that (the complainant) has told the truth. As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part, (the complainant) is no exception to that. It would be wrong to conclude that (the complainant) is telling the truth because there is no reason, in your view, for (the complainant) to lie. People lie for all sorts of reasons, sometimes it is apparent, sometimes it is not. Sometimes the reason is discovered, sometimes it is not. You cannot be satisfied that (the complainant) is telling the truth merely because there is no apparent reason for (the complainant) to have made up these allegations. There might be a reason for (the complainant) to be untruthful that nobody knows about."

56 As I have earlier recorded, the jury returned a verdict of guilty to each of the counts in the indictment. 57 The Appellant sought to appeal against his convictions upon two grounds:

1. that Backhouse DCJ erred in allowing evidence of complaint under s. 66 of the Evidence Act 1995; and

2. that the verdicts were unsafe and unsatisfactory - on the hearing of the appeal this ground was by consent amended so as to read "the convictions were unreasonable and could not be supported having regard to the evidence". ( Fleming v. R. [1998] HCA 68; 73 ALJR 1; 158 ALR 379 ). 58 As I have earlier noted, Mr. P.J. O'Donnell appeared for the Appellant on the hearing of the appeal, while Mr. C.K. Maxwell QC appeared for the Crown. 59 Mr. O'Donnell sought to argue the second ground of appeal first upon the basis that, if that ground were to succeed, it would be unnecessary to consider the first ground of appeal. 60 At the outset, Mr. O'Donnell accepted that, notwithstanding the change in terminology, the principles to be applied in determining this ground were those laid down by the High Court in M. v. The Queen (1994) 181 CLR 487. Having done so, Mr. O'Donnell identified as matters which ought to lead the Court to conclude that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty of the offences charged:

(b) the evidence of Mr. R cast a significant doubt on the Complainant's assertion that he was taken into the stairwell of the Year 12 block where he stated that the incidents the subject of counts 2 and 3 occurred;

(c) the Complainant admitted giving false information to a refuge worker in March 1997;

(d) the Complainant reversed the order in which he and the Appellant entered the chapel when his evidence was compared with his police statement;

(e) in his evidence, the Complainant failed to recall a second separate incident of kissing to which he had referred in his police statement;

(f) the evidence of Ms. V and Mr. L as to the lighting conditions in the stairwell in the Year 12 building cast extreme doubt upon the ability of the Complainant - as he claimed - to have seen semen on the floor of the stairwell in the Year 12 building after the Appellant ejaculated;

(g) the Complainant omitted from his police statement an allegation which he made in evidence that the Appellant pushed his head towards his penis; and

(h) the Appellant made no admissions to the police and gave sworn evidence denying the allegations. 61 Of these matters, Mr. O'Donnell appeared to place the greatest stress upon (b), (f) and (g). 62 In the leading Judgment in M v. The Queen, Mason CJ, Deane, Dawson and Toohey JJ wrote supra at 493-495: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. ……… … In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lack probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the positions in the form in which they are set out above."

63 Having read the whole of the evidence which was tendered at the trial, I have concluded that, notwithstanding the various matters upon which Mr. O'Donnell has sought to rely, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although - unless the evidence of complaint to Ms B were available to provide it - there was no evidence corroborative of the evidence of the Complainant, it is not without point to recall that the Complainant's evidence was that, during the course of the incident the subject of the third charge in the indictment, he noticed that - as the Appellant was later to concede - that the Appellant was circumcised. This, one would think, was a fact of which the Complainant would not have been aware if he had not seen the Appellant in a state of undress. Further, the evidence which the Appellant gave at the hearing differed in a number of respects - which the jury might have thought to be of some significance - from the answers given by him and recorded in the ERISP. Nor, if I may say so, need the jury have placed upon the evidence of Mr. R, Ms. V and Mr. L the weight which Mr. O'Donnell would seek to have put on it - indeed, it seems to me, that the evidence of Mr. R had an air of unreality about it. 64 In the result, I conclude that this ground of appeal has not been made out. 65 As I have previously recorded, the Crown, while conceding that the evidence of complaint to Ms. B was not admissible under s. 66 of the Evidence Act 1995, nonetheless submitted that no miscarriage of justice had occurred as - so it was submitted - in the circumstances, if sought, leave to adduce the evidence would have been granted pursuant to the provisions of s.108(3)(b) of the Evidence Act 1995. 66 I am by no means persuaded that, if Backhouse DCJ had acceded to Mr. O'Donnell's submission that the complaint to Ms. B was not made at a time when the matters the subject of that complaint were fresh in the memory of the Complainant, she would then, on application made pursuant to the provisions of s. 108 of the Evidence Act 1995, have been disposed to grant leave to adduce evidence of the complaint. 67 While it may be that the Appellant's denial, both at the time of his being interviewed by Detective Fileman and in the course of the ERISP, of the matters complained of by the Complainant, coupled with the suggestion, in the course of cross-examination, to which I have earlier (see para. 52 (above)) referred, that the Complainant had falsely accused the Appellant of being in the room off the chapel, could well have amounted to a suggestion that the evidence of the Complainant had been "fabricated", which suggestion might have enlivened the discretion in s. 108(3)(b) of the Evidence Act 1995, the questions which would need to be asked are, first, whether, and to what extent, allowing the evidence of complaint would assist the jury in resolving the question whether or not the Complainant had fabricated his evidence, and, second, whether allowing the evidence of the complaint would be productive of unfair prejudice to the Appellant so that the evidence should be rejected pursuant to the provisions of s.137 of the Evidence Act 1995. Furthermore, it may well be that the cross-examination may not have taken the course it did but for the earlier ruling of her Honour. 68 So far as the first of those questions is concerned, the observations of Gaudron, Gummow and Hayne JJ in Graham v. The Queen ALJR at p. 1493; ALR at p.406 are instructive. In paras. 8-9 of their joint Judgment, their Honours say: "In exercising the discretion under s. 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s. 108 creates an exception to the 'credibility rule' - the rule that evidence that is relevant only to a witness' credibility is not admissible. Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, a complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s.108. The exercise of the discretion under s. 108 depends upon the effect of the evidence upon the witness' credibility: here the suggestion of fabrication. How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of a complaint is not important and would do nothing except add to the length of the hearing. And in this case, it is by no means clear that the making of a complaint six years after the event does assist deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was 'making it all up', the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury would gain assistance from its making in deciding whether the complainant had fabricated her story."

69 So far as the second question is concerned, I note that, if - a question which Gaudron, Gummow and Hayne JJ left open in the course of their Judgment in Graham v. The Queen - the effect of the joint operation of ss. 60, 66 of the Evidence Act 1995 is that, if evidence of complaint admitted pursuant to the provisions of s.108(3)(b) of the Evidence Act 1995 were to become evidence not merely of the complainant's complaint, but evidence also of the facts related in the complaint, it might be open to a court to conclude that to admit the evidence of complaint would be productive of unfair prejudice to an accused. 70 In the present case, as I have earlier recorded, Backhouse DCJ instructed the jury that the evidence of Ms. B as to the complaint made to her by the Complainant was evidence of the truth of what she was told. Because the admission of the evidence of that complaint was not justified under s.66 of the Evidence Act 1995, and its admission was not inevitable pursuant to s.108(3)(b) of the Evidence Act 1995, and because of the direction given by Backhouse DCJ to the jury in respect of the evidence of the complaint, I am unable to conclude that the Appellant did not lose a significant chance of an acquittal, it following, in my view, that the appeal should be allowed on this ground. 71 The formal Orders which I propose are:

2. ORDER that the convictions and sentences be quashed.

73 DOWD J: I have read the judgment in draft form of Powell JA. I agree with the proposed orders and with his Honour's reasons for those orders. ********

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