R v AT

Court of Criminal Appeal (NSW)|2000-08-28|Before: Studdert J, Simpson J, Dowd J

CITATION : R v AT [2000] NSWCCA 342 FILE NUMBER(S) : CCA 60143/99 HEARING DATE(S) : 28 August 2000 JUDGMENT DATE : 1 September 2000

PARTIES : R v AT JUDGMENT OF : Studdert J at 1; Simpson J at 87; Dowd J at 88

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0132 LOWER COURT JUDICIAL Karpin DCJ OFFICER :

STUDDERT J SIMPSON J DOWD J

1 STUDDERT J: The appellant, to whom I shall refer simply as "AT", stood trial in the District Court at Parramatta in March 1999 charged with the commission of eight sexual offences against his stepdaughter. It was the prosecution case that these offences were committed over a period in the complainant's childhood between the ages of eleven and thirteen years. The offences were allegedly committed between May 1992 and December 1994. The appellant was convicted of six of the eight offences charged and was sentenced to concurrent terms of imprisonment in respect of the various convictions. The effect of the sentences imposed was that the appellant was required to serve altogether a minimum term of four years and an additional term of two years six months, with all the sentences backdated to commence on 23 March 1999, when the appellant was taken into custody. 2 The appellant appeals against his conviction on a number of grounds which I will consider in due course. He also seeks leave to appeal against the sentences imposed. 3 The complainant, CT, was born in the Philippines on 28 January 1981. Her mother later married the appellant and when the complainant was three and a half years old she joined her mother, RT, and the appellant, her stepfather, in Australia. The home was at Rosehill, originally comprising a two bedroom granny flat at the back of the main house. The family consisted of the appellant, the complainant's mother, the complainant and her half-brother, ATJ, who was born to the appellant and the complainant's mother in February 1984. The family moved into the main house in front of the granny flat in 1994. All the offences charged were alleged to have been committed in the home environment. 4 I will now consider the complainant's evidence as to the various grounds in the indictment.

Count 1 5 In May 1992 around Mothers' Day, the child ATJ was struck by a car and was taken to hospital. According to the complainant, whilst her mother was away from home at the hospital the appellant asked the complainant to remove her clothing and she did so. As she lay naked on her mother's bed, the appellant rubbed her breasts.

Count 2 6 About one month later whilst the complainant's mother was at work and the complainant was at home with the appellant, he told her to remove her pants and she lay on the bed. The appellant joined her, removing his pants and underwear and they lay under the doona. The appellant then touched the complainant's vagina with his hand and then had the complainant place her hand on his penis.

Count 3 7 Whilst the complainant's mother was at work, the appellant showed the complainant a pornographic video in the granny flat, fast forwarding it to a part where a woman was giving a man oral sex. The appellant then removed his pants and lowered his underpants and had the complainant place his penis in her mouth. The appellant withdrew his penis before ejaculation.

Count 4 8 On another occasion whilst the complainant's mother was at work, the appellant and the complainant were on the bed in the main bedroom in the granny flat. The appellant had his pants off and the complainant had her pants off and the appellant told the complainant to sit on top of him. The complainant straddled the appellant, who tried to insert his penis into her vagina. The complainant protested that this hurt and the activity ceased.

Count 5 9 The appellant was doing renovations to the house in front of the granny flat and on an occasion when the complainant was assisting him in some painting the appellant told the complainant to wear a dress without underwear and after she had attired herself in this fashion, went with the appellant into a bedroom where the complainant lay on the floor. The appellant lifted her dress and put his tongue around and in her vagina. He then removed his pants and placed his penis in her mouth, removing it prior to ejaculation.

Count 6 10 In April 1994, the complainant, with a school friend, was suspected of smoking in the toilets at school. The complainant had to take a letter home to her parents on 28 April 1994. The letter requested the appellant and the complainant's mother to attend at the school at a nominated time on 29 April. The appellant woke the complainant up at about 5.00 am that morning and told her to go to the granny flat where he was writing a note for her to take to school. In the granny flat the appellant questioned the complainant about her conduct at school the day before and then told her to go to the bedroom where he handled her vagina. This conduct was interrupted when the complainant's mother came to the front door of the granny flat and knocked on it.

Count 7 11 Whilst the complainant's mother was away at work, the complainant, the appellant and ATJ went into her room to watch television. They lay on the bed under the doona and the appellant placed his finger inside her vagina. 12 According to the complainant this was not an isolated incident and her evidence was that whilst her mother was at work there was sexual activity on a weekly basis unless the complainant was experiencing a period.

Count 8 13 On an occasion which the complainant placed as being the night before Christmas Eve in 1994 the complainant was in bed. The appellant came in and joined her under the bed covers. He touched her on the vagina. The complainant cried and protested that she did not want to do this anymore and the appellant desisted. 14 According to the complainant, the appellant persisted in abusing her sexually until about a month before she left home in November 1995. 15 ATJ gave evidence that he was born on 8 February 1984 and that he went to hospital in 1992 after a motor vehicle accident. His mother stayed overnight with him in hospital. He remembered living in the granny flat and later moving into the main house. He recalled that his mother worked on Saturdays and some weekdays. He did recall that there were occasions when he, CT and the appellant lay in the appellant's bed watching television. He said this happened two or three times on Saturdays. He never saw the appellant do anything improper to CT. 16 RT gave evidence that she married the appellant in October 1982 but separated in March or April 1998, after which ATJ lived with the appellant. RT said that CT came to live with her and the appellant in Australia in 1984 at the property at Rosehill. RT said they lived in the granny flat before moving into the main house, an event which she placed as occurring in 1992. RT worked in a newsagency from Mondays to Fridays between 9.30 am and 5.30 pm. After some three years she took a position at BP at Rosehill from about August 1994 and worked three days from 8.00 am to 4.00 pm and also worked on Saturdays from 4.00 pm until midnight. There was a change in that arrangement of working hours at a point of time after the last of the alleged offences. She said that on the day ATJ was injured in the accident she spent the night at hospital with him. RT recalled one occasion seeing CT, AT and the appellant lying on the bed in the main house watching television, and the witness said that she was aware that the appellant had pornographic videos in the granny flat, at least in 1992 to 1993. RT confirmed that there were times when CT and the appellant were in the main house alone. RT remembered being told by the appellant that CT was concerned that she had missed her period and had gone to a doctor at Newtown. RT remembered the incident involving the allegation of smoking at school and said that on the morning after she learnt of this she went to the granny flat prior to 6.00 am and knocked on the door about six times before the appellant opened it. She went in and noticed the appellant was wearing pyjamas. She said that when she entered the granny flat, CT was sitting on a chair. RT said that there documents and pens on a table inside the granny flat. 17 Dr Panopoulos gave evidence of an occasion when she examined CT but I shall review that evidence in the context of considering Ground 1. 18 A number of witnesses gave evidence of complaint. 19 A school friend gave evidence that at school in 1995 CT told her words to the effect that "her step dad keeps touching her, locking him and her in the room and turning the music on." It is to be observed that the complainant denied giving that account of the appellant's behaviour in cross examination, but the complainant said she did tell her schoolfriend her stepfather had been "doing things" to her. CT told her girlfriend that she was scared and she cried when she made the complaint, which the friend relayed to her own mother and then she accompanied CT to a teacher. 20 Ms Wilson said that she was a supervisor of girls at CT's school and that it was on 7 November 1995 CT came to her in the company of two girlfriends. CT complained to her that the appellant had been sexually abusing her since she was eleven years of age and that the abuse usually took place on weekends when her mother was out of the house. The abuse included asking her to undress, digital penetration, asking CT to sit on him and giving him a "head job". 21 Peta Wicks gave evidence as a district officer at DOCS. She saw CT at school on 7 November 1995 when CT complained that she had been undressed by the appellant. She said that the abuse started on a night when her brother was in hospital following an accident and her mother stayed overnight at the hospital. She reported mutual touching and fondling, and that the appellant touched her vagina. According to Ms Wicks, the complainant said the abuse continued to occur on a regular basis after that and the complainant also complained of digital penetration of her vagina and oral sex. She said that she touched the appellant's penis and that he had attempted penile penetration more than once. 22 Detective Senior Constable Carol gave evidence that she spoke to CT on 10 January 1996 and again on 4 May 1996 but CT was not willing to proceed with the allegations. 23 Later, however, she did so and Detective Senior Constable Gordon gave evidence of speaking to the appellant on 12 August 1997. He arranged an interview which occurred six days later. At that interview the appellant denied any wrongdoing with CT. 24 The appellant gave evidence at the trial and good character was raised. The appellant denied that he ever touched CT in a sexual way. He said that before renovations were commenced on the main house in 1992 he and the family lived in the granny flat and that after the renovations were completed the house was let for about three months so that the family moved into the house early in 1994. He remembered ATJ's admission to hospital after a car accident and he said that he spent the night at home with CT but denied any sexual impropriety. He said that he did own some pornographic videos in 1992 and early in 1993, but they were stolen then and at no time did he show them to CT. 25 The appellant said that there was an occasion when CT told him that she had missed her period and he called his relative Jenny Cahill who worked at DOCS. It was this relative that suggested the child be taken to Dr Panopoulos. He denied CT's assertion that he had told her what to say to the doctor and in particular he denied that he had told her to suggest that she had been playing around with a boyfriend. 26 The appellant admitted that there were three times when he and CT and ATJ watched television while lying on the bed but he denied touching CT in a sexual way. 27 The appellant remembered the occasion when CT was in trouble about smoking and he said that he did take her to the granny flat the next morning and he then wrote a letter to the school about the smoking incident but he denied any sexual activity in the granny flat with the complainant. 28 The appellant called a retired solicitor who gave evidence that could be categorised as evidence of good character. 29 The appellant was convicted on counts 2, 3, 4, 5, 6 and 7 but was acquitted on counts 1 and 8. 30 I now turn to consider the various grounds of appeal.

Ground 1: Evidence led by the Crown of the complainant's lack of sexual experience was in contravention of s 409B of the Crimes Act 1900 and led to a miscarriage of justice 31 After the attempted sexual intercourse the subject of Count 4, the complainant's evidence was that she missed her period and her concern was that she might have been pregnant. The complainant spoke to the appellant, who suggested that she speak to her mother about it and the complainant told her mother that she had not had sex with anyone. Her mother told her there was nothing to worry about. Nevertheless the complainant's anxiety continued and the appellant took her to Dr Panopoulos at Newtown. The complainant said that on the way to the doctor's surgery the appellant told her to tell the doctor that she had been "mucking around" with her boyfriend, and that she felt something wet come onto her vagina. 32 Dr Panopoulos told the court of the history given by CT which was that her period was overdue by two and a half weeks. The complainant expressed concern to her about a sexual contact with a boy in late February and said that although there had been no vaginal penetration, she was uncertain whether the boy had ejaculated near her vaginal outlet. The doctor took a blood sample for testing and the testing proved that the child was not pregnant. 33 The complainant's mother, when called, said that the complainant did not tell her anything about having missed her period but that the appellant told her about the visit to the doctor after this visit had taken place. He then told the complainant's mother that the complainant was worried about missing her period. The appellant said, according to the mother, "Maybe she's got a boyfriend", to which the mother replied, "She hasn't got a boyfriend" (AB 182). 34 It is in this setting that the evidence which the appellant argues attracted s 409B of the Crimes Act was given. 35 According to the complainant, after she had spoken to her mother at the suggestion of the appellant, she reported to the appellant: "I said, like I repeated what Mum had said like. I haven't had sex with anyone, so there's nothing to worry about…" (AB 79). Then there was the evidence of the mother in relation to the conversation she had had with the appellant: "Why would she be worried about her period when she's a virgin and she's not having sex with anyone" (AB 181). 36 Ms Burgess has submitted that that evidence was inadmissible under s 409B of the Crimes Act. This section was, of course, repealed by Act No. 94 of 1999, but the provision remains substantially in place as s 105 of the Criminal Procedure Act. The transfer of the provision did not come into operation until 1 January 2000 so that it is relevant to heed s 409B as applicable for this trial. The ground argued focuses on s 409B(3) which provides: "(3) In prescribed sexual offence proceedings, evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken or not taken part in any sexual activity is inadmissible except: (a) where it is evidence: (i) of sexual experience or a lack of sexual experience of, or sexual activity or a lack of sexual activity taken part in by, the complainant at or about the time of the commission of the alleged prescribed offence; and (ii) of events which are alleged to form part of a connected set of circumstances in which the alleged prescribed offence was committed; (b) where it is evidence relating to a relationship which was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant; (c) where (i) the accused person is alleged to have had sexual intercourse, as defined in s 61H(1), with the complainant and the accused person does not concede the sexual intercourse so alleged; and (ii) it is evidence relevant to the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person…" 37 It has been submitted on behalf of the appellant that although no objection was taken at the time the evidence was introduced, the evidence that the complainant had no sexual experience other than the experience with the appellant, no boyfriend, and, by implication, no opportunity for a sexual experience other than with the appellant, was inadmissible because it did not fall under any of the categories contemplated in sub-s (3). 38 The Crown has submitted that the section has not been infringed. Regard has to be had to the context in which the evidence was given, and what CT was telling her mother about not having had sex with anybody of course involved no complaint about what CT claimed the appellant had done to her in attempting penile intercourse. The evidence was relevant evidence of the relationship between the appellant and CT. The evidence given by RT to the effect that there was no need for concern was only a repetition of what CT had told her at the time when she expressed her fear of being pregnant and that she had spoken to her mother at all about the mother was at the urging of the appellant. 39 The Crown submitted that the evidence was led without objection and was the subject of no application by counsel for the appellant at the trial once it had been introduced. Its introduction involved no improper prejudice to the appellant having regard to the circumstances in which it was introduced. I accept that submission, and that the introduction did not cause the trial to miscarry. 40 Because no objection was taken to the introduction of the evidence at the trial and because the trial judge was not asked to make any decision about that evidence once it had been introduced, r 4 of the Criminal Appeal Rules applies. 41 Since I do not consider that the introduction of the evidence did involve any improper prejudice to the appellant, I would refuse leave to the appellant to rely upon this ground.

Ground 2: 42 This ground relates to certain evidence which was not led at the trial and it is contended that the failure to lead this evidence resulted in a miscarriage of justice. The ground relates to Count 4 in the indictment.

(a) There is evidence, not led at trial, of an explanation for the complainant's fear of pregnancy other than the alleged conduct of the appellant 43 The evidence which was not used at the trial was evidence contained in a notebook or diary kept by the complainant. There are two entries in particular in this document which, on the appellant's submission, assume significance for the purposes of Ground 2(a). Whilst there is no entry in the diary for 26 February 1993 (and that was the date that the complainant mentioned as being the relevant date of sexual activity with a boyfriend when she saw the doctor), there is an entry for 18 February 1993 (AB 51): "On Tuesday afternoon I went over to Dan's place at Dartbrook Road, in Auburn. I went into his room and looked around, a bit later on we saw his Mum coming. And I was just about to leave though his Mum was near the door, I ran into his room and hid in his bed. Then I swapped around and hid in his wardrobe. It was a real funny classic…" 44 The diary records for 22 March 1993: "Visit to the doctor", but nothing else. 45 However, there is a later entry in the diary (AB 55) which has no date but it is obviously some time after the previous page (AB 54) which refers to Friday 7 May. The entry reads: "Today we got an afternoon detention and it is on next Wednesday. Amoud's a feeler. He feel me and I feel his dick. He doesn't stop. Nelab said that I have to pull Daniel's dick. I will only do it if Lisa come with me." 46 The submission is that those diary entries warranted an application for leave to cross examine the complainant under s 409B(5): "(5) In prescribed sexual offence proceedings, where the court or justice is satisfied that: (a) it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general specified nature; or (ii) taken part or not taken part in sexual activity of a general or specified nature; and (b) the accused person might be unfairly prejudiced if the complainant could not be cross examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross examined but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified." 47 It seems to me that the entry for 18 February 1993 is a long way from affording a basis for the inference of some sexual relationship. 48 So far as the later entry is concerned, it is not dated, but it is hardly evidence as to a relationship either existing at the time of the attempted act of sexual intercourse or recent at that time. To the extent that it refers to some contemplated activity with Daniel, what the entry does suggest is that this is not something that the complainant has done and, indeed, she writes that she will only do it if accompanied by Lisa. It is a very, very immature diary entry. 49 There is a further problem, as I see it, about these diary entries. The appellant had the diary available to him. His affidavit sworn on 28 July 2000 indicates that he discovered it in the complainant's bedroom in November 1995 and he gave it to his solicitor. According to the appellant, his counsel told him that he could not use the book. Although this was not explained to the appellant, it is a reasonable inference to draw, if counsel gave him that advice, that counsel did not think justification existed for the necessary application for the purposes of s 409B(5). It would be reasonable to infer that counsel perceived shortcomings in the nature of those entries such as those to which I have adverted. There is a letter from counsel which comprises Annexure B to the affidavit of Mary Spiers Williams sworn 2 August 2000. Counsel commented that having read the entries it was his opinion that the material fell well short of grounding a successful s 409B application. At the same time counsel noted that he was now unable to recall whether he had been given the diary. 50 It is for the appellant to persuade this Court that the failure to use the diary evidence resulted in a miscarriage of justice. In their joint judgment in Mickelberg v The Queen (1988) 167 CLR 259, Toohey and Gaudron JJ expressed the test for fresh evidence at 301: "The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, eg, Gallagher v The Queen (1986) 160 CLR 392, at pp 395, 402, 410.. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510, at pp 516-517., per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen (1979) 142 CLR 659, at pp 666, 675-677. There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be "credible", "cogent", "relevant", "plausible": see, eg, Gallagher (1986) 160 CLR, at pp 395-396, 401-402, 408-409; Craig v The King (1933) 49 CLR 429, at p 439; Ratten (1974) 131 CLR, at pp 519-520; Lawless (1979) 142 CLR, at pp 671, 676-677.. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher (1986) 160 CLR, at p 410., per Brennan J) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused]' (Gallagher (1986) 160 CLR, at p 399., per Gibbs CJ and per Mason and Deane JJ (1986) 160 CLR, at p 402.)." 51 Then in R v Hemsley (unreported, NSWCCA, 29 November 1995) Hunt CJ at CL, with whose judgment the other members of the court agreed, said in point (at pp 4-5): "As stated by the majority in Gallagher v The Queen (1986) 160 CLR 392 at 399, 402 what must be established in support of a claim that there is fresh evidence is that the absence at the trial of the evidence upon which reliance is placed by the appellant resulted in a miscarriage of justice; an appellate court will so conclude in favour of the appellant only if it considers that there is a significant possibility that the jury at his original trial, acting reasonably, would have acquitted the appellant if that evidence had been before them (see also Michelberg v The Queen (1989) 167 CLR 259 at 273, 301-302). In Mickelberg v The Queen (at 273, 275, 301-302) the High Court left open whether such a test differs from others which had been stated by it from time to time, but that is the test which has usually been applied by this Court (see, for example, Regina v Zaidi (1991) 57 A Crim R 189 at 193; Regina v Tuckey (1991) 57 A Crim R 464 at 472; Regina v Asfour (1992) 60 A Crim R 409 at 413; Regina v Goonan (1993) 69 A Crim R 338 at 341-342; Regina v Barnett (1994) 71 A Crim R 515 at 529; Regina v Boag (1994) 73 A Crim R 35 at 38) and by other appellate courts in Australia (see, for example, Federal Court: Cheney v The Queen (1991) 99 ALR 360 at 365; Victoria: Regina v Vincec (1990) 50 A Crim R 203 at 210-211; Queensland: Regina v Condren (1990) 49 A Crim R 79 at 80; Regina v Scouller (1995) 76 A Crim R 487 at 501; Western Australia: Regina v Bond (1992) 67 A Crim R 383 at 386-387, 422-423, 439; Northern Territory: Regina v Crabbe (1990) 49 A Crim R 446 at 449 [This was the appeal from the second trial, in which the appellant was again found guilty of murder, following the decision of the High Court: (1985) 156 CLR 464]. In some cases, emphasis has been placed upon the statements made in the High Court that there should be no absolute or hard and fast rules where the fundamental question is whether a miscarriage of justice has occurred (see, for example, Green v The King (1939) 61 CLR 167 at 175; Gallagher v The Queen (at 395, 413), and occasionally the relevant court has said that, whatever difference there may possibly be between the various tests stated, the evidence in the particular case satisfies either both tests being considered or neither.

Bearing in mind the nature of the fundamental question involved - whether there has been a miscarriage of justice - I prefer to retain the test as it has been stated at the commencement of the last paragraph, but I recognize the absence of any absolute or hard and fast rules. Relevant to that test is the credibility and the cogency of the evidence put forward, considered in the context of the evidence which was given at the original trial (Craig v The King (1933) 49 CLR 429 at 439; Gallagher v The Queen (at 395-396), 300, 401-402, 408-409). There is no miscarriage of justice if that evidence was available to be called at that trial and if the appellant had been content to go to trial without it (Lawless v The Queen (1979) 142 CLR 659 at 666, 675; Mickelberg v The Queen (at 301), Regina v Asfour (at 413). He will not be given a second trial simply because the material which he was content to produce at the original trial was unsuccessful in achieving the result which he sought to achieve and because the result at a second trial with the additional evidence may be different . That is not, of course,, a universal and inflexible rule, but it will be departed from only in unusual circumstances; those circumstances will ordinarily be related to the strength of the fresh evidence in question (Gallagher v The Queen (at 395); Regina v Goonan (at 342))." 52 This diary evidence was available for use at the trial. The appellant is not entitled to have a second trial simply because he failed at the first trial without using it and the result may be different if he was able to use it at a second trial. Having considered the diary evidence in point, I am not persuaded that there was any miscarriage of justice because it was not employed at the appellant's trial in the manner now contemplated. 53 In my opinion Ground 2(a) fails.

(b): There is evidence, not led at trial, confirming the appellant's explanation why he took the complainant to a doctor at Newtown for a pregnancy test 54 The appellant took the complainant to a doctor chosen by him away from the suburb where he lived. This decision was referred to in a passage in the summing-up which perhaps reflects something that was said in the Crown Prosecutor's final address to the jury (AB 306-307). Referring to the visit to the doctor, the judge said: "I do not propose to go into all of that, it has been touched upon by both counsel this morning as to what view you would take of that whole incident. Whether you regard it as just a quite normal occasion in which the accused sought help, as it were, by speaking to a relative and then took [the complainant] to the doctor at Newtown, or whether you take the view that has been put by the Crown that this is a very peculiar form of behaviour." 55 The evidence given by the appellant was that he spoke to his relative, who happened to be Jenny Cahill and who worked with the Department of Community Services. He told her that his doctor was a male and it was suggested to him that it might be better to take the complainant to a female doctor and the appellant was then given the name of the doctor who examined the complainant. Ms Cahill was not called at the trial and the appellant was cross examined about Jenny Cahill and the failure to arrange for her to give evidence (see AB 269-270). 56 The appellant submits that there was a miscarriage of justice because this relative, Jenny Cahill, was not called. There is an affidavit from Jennifer Cahill (AB 40-42) which discloses the evidence she would have been able to give. That evidence is consistent with the evidence given by the appellant to the effect that it was Jennifer Cahill who nominated the doctor to whom the appellant took the complainant. This witness would also have been able to give evidence as to the appellant's good character. 57 It is not at all clear why Jennifer Cahill was not called but the appellant's affidavit filed in support of this particular ground makes it clear that he would have been able to secure her attendance had he been asked to do so (see para 11, AB 5). The letter from counsel, to which I made earlier reference (AB 57), discloses that his recollection is that Jennifer Cahill was unavailable at the time and that the appellant wanted the trial to proceed regardless. The recollection of his instructing solicitor at the time (AB 44, para 7) was that either the witness was unavailable or that the appellant did not know where she was. His recollection was that the appellant wanted the trial to proceed. 58 It seems fairly clear that the witness could have been called if need be. A decision was made not to call her, or alternatively no attempt was made to call her. Consistently with what was said in Hemsley, the appellant is not to be given a second trial simply because the result of the second trial with the additional evidence may have been different. Counsel appearing for the appellant at the trial was experienced and generally speaking a party to legal proceedings is bound by the way counsel conducts his case: see R v Birks (1990) 19 NSWLR 677 at 683-684. I am not persuaded that any miscarriage of justice has been demonstrated by reason of the failure to call this witness at the trial. 59 Ground 2 fails.

Ground 3: Her Honour erred in failing adequately to direct the jury about the significance of delay in complaint 60 The last of the offences charged, and this is one of the two offences in relation to which the appellant was acquitted, allegedly took place at Christmas time in 1994. The complainant left home some eleven months later in November 1995 and she then made complaint to her school friend, to the school counsellor and to the officer of the Department of Community Services. The complainant was placed in foster care in November 1995 and it was not until January and May 1996 that she first made a statement to police about the allegations but at that time she was unwilling to press charges. CT spoke to police again in May 1997 and it was not until August 1997 that the appellant was interviewed by police and denied the allegations. 61 The trial judge gave the following directions upon delay in complaining in the course of the summing-up: "That is a matter which you should consider of course, that delay in complaint, but I should warn you that mere delay in making a complaint does not necessarily indicate that the evidence of [the complainant] is false. It may be an indication of fabrication on her part but that is not necessarily so. A direction to consider whether delay in complaint may indicate fabrication is given in every case of sexual assault in which there has been no complaint at the time the assault in which there has been no complaint at the time the assault is said to have occurred. That is not a reflection of my opinion, you are the judges of the fact, not me. That is just some of the evidence which you will consider and decide, what weight is to be given to that fact of delay and complaint. You will bear in mind, however, that there may be very good reasons why a person, particularly a child who has been sexually assaulted, does not complain at the time that sexual assault or those sexual assaults, occur. We know, regrettable though it is, that young children can be the victims of sexual assault. Where the assailant is a stranger we might more readily expect that anyone, including children, will complain at the earliest opportunity. A child who complains he, or she, has been sexually assaulted by a member of the household in which that child lives, might find itself in a more difficult position. You know that [the complainant] did not return to live at home after she reported these assaults. You have heard some evidence from her mother, which supports some of the rather bizarre punishments to which she was subjected, and it is perhaps worth considering that the reason put forward by [the complainant's] mother for these punishments, was frustration at [the complainant's] failure to communicate. You might consider whether, if she had trouble communicating in the ordinary way, she had some trouble communicating about these events. You also have to consider the position in the household, and her relationship with her mother. You know that her mother continued to live with the accused until April of last year. When [the complainant] was asked why she did not complain to her mother, and she told you about the fact that she believed she had a poor relationship with her mother, and her fears about her mother, about her reaction if she should complain. She told you that she found it too embarrassing. She said, 'You just don't tell people that sort of thing.' You have heard other evidence which may assist you to comprehend her failure to complain at that time. But failure to complain at or about the time a sexual assault, or assaults, occur, may reflect upon the credibility of the complainant, so in evaluating her evidence it is a matter which must be considered." 62 The judge then went on to remind the jury of those to whom the complainant did complain. The jury was correctly instructed that the evidence of complaint could not be used as corroboration and the jury was reminded of the submissions made as to the inconsistencies in the terms of the various complaints. The judge went on (at 293): "You may use the evidence of complaint in this way: [the complainant's] credit has been attacked, obviously. These allegations are said to have been fabricated. The Crown says that, in effect, you should look at those complaints to Nicole and to Mrs Wilson, and to Peter Wicks, as demonstrating a level of consistency on the part of [the complainant]. In other words, it is put that it is relevant to her credit in that you are entitled to look at reasons why she says she did not complain when these things happened, and the circumstances in which you find she did make the complaint, after she left home, and is insisting she would not go back. You are entitled to look at her conduct at the time she did complain, and if you find that is consistent with the explanation she has given, that may give weight to her evidence in your mind." 63 The judge was asked by counsel at the trial to add to the directions given by expanding upon the consideration of the significance of delay and the decision in R v Johnston (1998) 45 NSWLR 362 was cited. 64 It was emphasised in Johnston that what is required by way of comment or direction must depend on all the circumstances of the case: see the judgment of Spigelman CJ at 369. 65 In the present case the only instruction given by the judge in the summing-up as to the significance of delay appeared in the context of reviewing the case for the appellant. Having reminded the jury of the appellant's denial that any of the sexual assaults occurred, the judge went on (AB 299): "These allegations were first brought to the attention of the accused some years after they were said to have occurred. Necessarily, any substantial delay in complaint tends to hamper the accused in mounting a defence, because memory does fade over time which applies to everybody who is involved in a trial of this nature. That is a matter which you will bear in mind in assessing the case for the accused." 66 Counsel at the trial submitted that the direction was inadequate and pointed to the appellant's problems being compounded by the lack of precision as to the dates of the alleged offences and the difficulties in testing the complaints that arose because of this. Counsel also drew attention to the difficulties of recall of events. 67 In this case there was a five year gap between the date upon which the first of the offences was alleged to have been committed and the date that the appellant was first interviewed by the police. That is a very substantial period and it seems to me, consistently with Johnston, that this enlivened a need for the trial judge to give such warning as ensured the fairness of the trial. The offences charged in the indictment were alleged to have occurred in the following time frames:

Count 4: Between 31 December 1992 and 22 March 1993;

Count 8: Between 22 and 26 December 1994. 68 In my opinion in these circumstances the instruction given to the jury as to the significance of the delay was insufficient. That instruction was necessarily double-edged. However, more was required. The effluxion of time, compounded by the imprecision of dates, deprived the appellant of the opportunity which prompt complaint would have afforded him of determining whether evidence could have been assembled to cast doubt on the evidence of the complainant and to support his evidence that no wrongdoing occurred. The jury should have been alerted by appropriate direction to the practical difficulties for the appellant in meeting the charges because of the delay. This was a case in which essentially proof of each of the offences depended upon the jury accepting the evidence of the complainant beyond reasonable doubt and the jury should have been alerted to the need to consider her evidence very carefully, and in so doing the jury should have been alerted to the significance of the practical difficulty for the appellant in endeavouring to meet the offences charged because of the time that had elapsed. 69 In my opinion, Ground 3 has been established.

Ground 4: The verdicts on Counts 2-7 are unreasonable and cannot be supported having regard to the evidence 70 It has been submitted that the verdicts on Counts 2-7 cannot be supported and that they are unreasonable having regard to the evidence: see Fleming v The Queen (1998) 158 ALR 379 and R v Giam [1999] NSWCCA 53. 71 The principal matter relied upon to support this ground is the fact that the jury acquitted the appellant on Counts 1 and 8. The appellant also relied upon the substance of the grounds already considered. 72 It was argued that since the jury obviously entertained a reasonable doubt as to whether the offences charged in Counts 1 and 8 had been committed, the jury ought to have entertained a reasonable doubt of Counts 2-7 because this was essentially a case in which the jury was dependent upon its assessment of the complainant on the one hand and of the appellant on the other hand. 73 The appellant relied upon the decision of the High Court in Jones v The Queen (1997) 191 CLR 439. 74 In Jones the appellant was charged with three counts of sexual assault committed on the same complainant. There was a period of four years delay between the date of the first alleged offence and the making of a complaint. The jury acquitted the appellant on one of the three counts but convicted on the other two counts. The appellant succeeded in the High Court where verdicts of acquittal were directed. In their joint judgment Gaudron, McHugh and Gummow JJ said at 453: "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count." 75 After considering what the possible explanation for the different verdicts may have been, their Honours went on to say: "Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count… It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count." 76 There have been a number of decisions of this Court since Jones was decided in which the practical application of that decision has been considered. The relevant authorities were reviewed by Dunford J in his judgment in R v RAT [2000] NSWCCA 77. In RAT the appellant stood trial on six counts. The trial judge directed a verdict of not guilty on one count. Subsequently the jury found the appellant guilty of three of the remaining five counts and not guilty on two of them. On appeal the appellant argued two grounds: (i) inconsistency; and (ii) that, having regard to the evidence, the verdicts of guilty were unreasonable. 77 The inconsistency ground was rejected but the appeal was successful on the second ground. Having referred to the advantage that the jury had enjoyed of seeing and hearing the witnesses, and to the remarks of the judge who presided at the trial in which he recorded his assessment of the truthfulness of the complainant, Dunford J, with whose reasons and decision on this ground Barr J agreed, said: "The fact remains that all counts depended on the evidence of the complainant being accepted as true beyond reasonable doubt and on the only two counts where her evidence could be set against other apparently or potentially reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof in the eyes of the jury. There is nothing in her evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to the first three counts where it could not be tested than it was in relation to the other counts where it could be, and was, tested. On the two counts where on the complainant's evidence, corroboration was available, such corroboration was not forthcoming. The very matters which justify a finding that the verdicts are not inconsistent in the sense of being a compromise are matters which call into question the complainant's credibility in respect of the counts on which the appellant was acquitted." 78 Returning to the present case, how was it open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant on six of the eight counts when it was not so satisfied on the remaining two counts? This was essentially a case, as I have already observed, of oath against oath. There was some evidence given by the complainant's mother which was consistent with the complainant's evidence, at least in relation to Count 6, and the complainant's brother gave evidence that there were several occasions on which he lay in bed with the appellant and the complainant. That evidence was consistent with the complainant's evidence in relation to Count 7. Then there was the evidence of the visit to the doctor and the circumstances of it, which evidence was consistent with the complainant's evidence concerning Count 4. But there was no direct evidence supporting the complainant's account of the commission of any one of the eight offences charged. 79 It seems to me that there is a reasonable explanation for the acquittal on Count 8 which is not inconsistent with the jury having accepted beyond reasonable doubt that the complainant was truthful in the evidence that she gave concerning Counts 2-7. The complainant was firm in her evidence that the offence was committed on 23 December 1994 and there was evidence, seemingly reliable, which the complainant's mother gave to the effect that she did not work on 23 December 1994. Given that the complainant's evidence was that the incident happened when her mother was at work, an explanation for the acquittal on Count 8 was that the jury, whilst accepting that the event occurred, was not satisfied beyond reasonable doubt that it occurred at the time the complainant said it occurred. 80 In this regard the jury had been given the following direction in the course of the summing-up referable to Count 8: "The evidence put before you by the Crown makes it clear that if [the complainant] is correct, either her mother was not at work or she was wrong about the date, as her mother worked on 25 December. For the accused it is put to you that it shows she is not telling the truth. She was undoubtedly adamant that this happened on 23 December, and that is clearly something you are going to have to look at very carefully. The Crown must prove the elements of the case as charged, and although the Crown was alleged to amend, taking into account the totality of the evidence that the Crown had put before you, it must prove the counts as now charged. If you are satisfied, for example, that this did happen, but you cannot be satisfied beyond reasonable doubt that it happened between those dates, that is between 22 December and 26 December 1994, then you must acquit the accused, even if you feel sure that the event actually occurred, because the dates are important to be proved as well. It is part of the charge the Crown must prove." 81 Consistently with the above direction, the jury may have been satisfied beyond reasonable doubt that the incident took place but it may not have been satisfied beyond reasonable doubt that the complainant recalled the date of the offence correctly. If this be so, it still remains the position that the complainant's evidence was not accepted as reliable. 82 This analysis still leaves Count 1 to be considered. What is the explanation for the acquittal on this count if the complainant's evidence was otherwise to be accepted beyond reasonable doubt as being truthful and reliable? In relation to this count, there was, of course, the inconsistent account of what happened as given by the complainant to the psychologist. In her cross examination the complainant admitted that when she spoke to Ms Starkey in December 1995 she told the psychologist that the appellant did tell her to take her clothes off but that the appellant did not do anything to her at that time. Further she told the psychologist that he talked to her about the changes her body would be going through. The complainant agreed that she did not tell Ms Starkey that the appellant had touched her breasts. In relation to the first count, there was also the complaint made to Ms Wicks which I referred to earlier at para 21. That complaint differed in substance from what the complainant told Ms Starkey. 83 It may well be that, having regard to what the complainant conceded she said to Ms Starkey and/or what Ms Wicks said the complainant told her, the jury decided that it could not be satisfied beyond reasonable doubt that there was an indecent assault as charged in the first count but, of course, the complainant's evidence was that there had been such an assault. Applying the reasoning in Jones, once the jury found that the evidence of the complainant on this ground lacked the cogency to justify a conviction, how could they have approached her evidence differently on the other counts all of which depended upon an acceptance of the reliability of her evidence beyond reasonable doubt? There is, to my mind, no satisfactory answer to this question. 84 The verdicts on Counts 1 and 8 indicate that where there was evidence apart from that of the appellant to be set against the complainant's evidence of an episode of sexual abuse, the jury was not satisfied beyond reasonable doubt that the complainant's evidence was reliable. The Crown was unable to point to features of the evidence concerning the remaining six counts, or any one of them, such as might indicate that the complainant's evidence ought to have been regarded as being any more reliable in respect of the offences charged in those six counts. 85 It seems to me, having regard to the reasoning in Jones, that Ground 4 has been established and that this Court must intervene. The appellant's success on Ground 3 would result in an order for a new trial, but success on Ground 4 must, as the Crown acknowledged, result in judgments of acquittal. 86 I propose the following orders:

That judgments of acquittal be entered. 87 SIMPSON J: I agree with the orders proposed by Studdert J and with his reasons therefor. 88 DOWD J: I have seen the reasons for judgment of Studdert J. I concur with the proposed orders, and with His Honour's judgment. **********

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Cases Cited (15)