R v Dwyer [1999] NSWCCA 47 | Case summary

JUDGMENT 1 MEAGHER JA: I agree with Dunford J. 2 GROVE J: I agree with Dunford J. 3 DUNFORD J: This is an appeal by James Anthony Dwyer against his conviction in the District Court at Sydney on 8 May 1998 following his trial before Judge Phegan and a jury on three counts of sexual assault on a person under the age of sixteen years contrary to s 61E Crimes Act 1900, three counts of indecent assault on a person under the age of sixteen years contrary to s 61E(1A)(a) and one count of attempted sexual intercourse with a person under the age of sixteen years. 4 The complainant was born on 25 March 1975 and as a young child lived at Hebersham with her mother, FG, and three sisters D, B and K. In late 1981 or early 1982 her mother started dating the appellant and subsequently the appellant commenced staying at the complainant's house on occasional weekends. Eventually he commenced residing with the complainant's family and the children called him "Dad". During this relationship, the complainant's family and the appellant, visited Byron Bay for various holidays, and stayed at the house of the appellant's parents. 5 The Crown case related to four separate incidents; in about 1981 or 1982 at Hebersham (counts 1 and 2), during the Christmas school holidays in December 1983 - January 1984 at Byron Bay (counts 2 and 3), about Easter time 1984, also at Byron Bay (counts 5 and 6) and in 1985 at Doonside (count 7). The first three incidents alleged the appellant rubbed the complainant on the outside of her vagina (counts 2, 4 and 6) followed by digital penetration (counts 1, 3 and 5), whilst the 7th count alleged attempted fellatio. 6 Dr Rapson (a general practitioner) gave evidence that the complainant attended his surgery with her mother on 9 April 1984 for symptoms of wheezing, and was treated for asthma. Two days later she returned for a further check up. There was mention made of vaginal discharge, possibly blood, and the complainant was asked to obtain a urine sample, which she did not. Dr Rapson was asked in evidence if this type of discharge was consistent with digital penetration of the vagina. He responded that it was not necessarily the case, however that type of rubbing could cause discharge through abrasion. There was other evidence that in 1984 the Easter weekend was 20 - 23 April. 7 The complainant gave evidence that in 1990 she saw a video at school on sexual abuse and realised that it had been happening to her. She told her sister, D, about the incidents which had occurred with the appellant and became very depressed. She said she told D that "Jim used to touch me and finger me . . . I didn't know how to put it, I was ashamed of myself." She said this was the first time she had told anyone about what had happened. 8 Around 1991, when she was about fifteen or sixteen years old, she started going out with one Robert Carro. Six months after they commenced going out she told him that she had been sexually abused. Carro gave evidence that as their relationship developed she told him more. He suggested she report the matters to the Police, but she was too scared. 9 Around 1993, after the birth of her daughter, the complainant told her mother about the sexual abuse and in 1996 she told her other sister, B, about what the appellant had done, but told B not to tell anyone. 10 Robert Carro gave evidence that on 10 September 1996 he visited the complainant at her house, the telephone rang and the complainant answered; she became very upset and threw the phone down. Carro picked the phone up but there was no-one there whereupon the complainant told Carro that it was the appellant. The following day Carro visited the appellant and asked him if he had sexually abused the complainant. There was an altercation, Carro hit the appellant, he was charged and subsequently pleaded guilty to assault, for which he was fined. A couple of weeks later, that is whilst Carro was on remand, the complainant reported the matter to the Police. The appellant was first interviewed on 29 December 1996. 11 In his recorded interview with the Police and in his sworn evidence at the trial the appellant gave evidence that he had at no time sexually or indecently assaulted the complainant. He said that he had met the complainant's mother in around February 1981 when the complainant was about six years old. Shortly afterwards the relationship became intimate and he moved in with the complainant's family. They resided at Hebersham until 1984 and then all moved to Doonside. 12 He said that he met his current partner, Robyn Ann Robertson, in about 1984, the relationship developed intimately and he began living with her. In August 1988 they moved to Airlie Beach where they purchased a house and resided there until 1990 although he did not sell his Sydney residence or business. 13 Grounds of Appeal 1 and 2 were as follows: 1. The learned trial judge erred in directing the jury as to the evidence given by the complainant and the appellant that the jury's fundamental task was to choose between the two competing versions. 2. In the circumstances of the present case the learned trial judge ought to have directed the jury that they needed to be satisfied beyond reasonable doubt of the account given by the complainant. Attention was drawn to two passages in the summing up (pages 28 and 29) as follows: "There are only two people who were witnesses to those events if they occurred at all, that is the complainant, Leanne Griffiths, and the accused. They have, in their evidence, consistently and in each case without any reservations given accounts which are directly and diametrically at odds. You cannot believe them both. The fundamental task, therefore, which you have to undertake is to decide which of those two versions of what happened, if it happened at all, you believe. " and later, But for essential purposes in this case, it is a case of your having to make a choice between two accounts, diametrically opposed, from the complainant on the one hand, and the accused on the other." (emphasis added) 14 It was submitted that this invitation to the jury to "choose" between the two competing counts was a fundamental error justifying the appellant to a new trial, and further that at no stage did the trial judge direct the jury that in the context of this particular trial they needed to be satisfied beyond reasonable doubt of the truth of the account given by the complainant. If the passages quoted above from the written submissions were all that had been said on this subject, that is, if it had been left on the basis of a "mere choice" between the evidence of the complainant and the evidence of the appellant, the summing-up would have been defective and a new trial justified: Liberato and Others -v- The Queen, (1985) 159 CLR 507 at 515, 519 per Brennan J and Deane J; although the majority in that case held that, although the summing-up was defective, the proviso should be applied. See also R -v- E (1995) 89 A Crim R 325, The Queen -v- Calides (1983) 34 SASR 355; but, they were cases where the jury were told in effect that it was merely a case of choosing between the two versions and the jury could have been misled about the onus of proof. 15 On the other hand, a reference to there being two diametrically opposed versions given by the complainant and the appellant, and even the reference to the jury having to "choose" between the two versions, will not necessarily be fatal provided it is made clear to the jury that it is not "merely" a "choice" between the two versions, but that they must be satisfied beyond reasonable doubt that at least in its essential ingredients the version given by the complainant is true: R -v- Beserick (1993) 30 NSWLR 510 at 528-9, R -v- PAH (unreported - CCA - 18 December 1998) at 8 - 10. 16 Immediately following the passage the first quoted above, his Honour went on: "And in coming to that conclusion, again, and I emphasise this only because of its overriding importance in the conduct of any criminal trial, you must be satisfied beyond reasonable doubt that the accused committed the acts that make up each of the various charges. If you are going to come to such a conclusion, you have to believe the complainant." (emphasis added) And then following the second passage quoted in the appellant's written submissions, after referring to the fact that generally neither a complainant nor an accused is able to produce anyone to support their version of what happened went on to say (at p 30): "But over and above that issue which, in a sense, both of the parties share in common, is the fact that this is a criminal trial and I cannot emphasise this too much, it is a criminal trial where the onus and burden of proof rests squarely on the prosecution. You therefore, in choosing between the evidence of the complainant and the accused, not only must be persuaded that the complainant is to be believed, but in believing the complainant, you must further be satisfied beyond reasonable doubt on the evidence as a whole, of the various matters which I have already explained to you, make up the ingredients of the charges in question. There is no onus at any stage on any matter on the accused. The accused does not have to prove anything. The prosecution bears the total burden in that regard." (emphasis added) 17 Then following the short morning adjournment, and no doubt conscious of the dictum in R -v- Murray (1987) 11 NSWLR 12 at 19 that when a case against an accused depends on the evidence of one witness the jury should be warned to scrutinise the evidence of that witness carefully, his Honour went on at p 33: ". . . [I]f I can just very briefly recapitulate the particular point that I was making at the conclusion of the first stage of my summing-up, and that is that the Crown case essentially depends, in the end, on the evidence of the complainant. It is vital therefore that you scrutinise her version of events particularly closely in order to determine whether, in your mind, she has provided a reliable account of what occurred. In doing that, as of course you must do with all of the witnesses, you have to take note of the evidence which she gave and the way in which she gave it, and if after that, having carefully considered whether you found her a generally reliable witness, and therefore one who gave you an essentially truthful version of events, you are able to rely on her in determining the question of whether the Crown has proved its case, as it must, beyond reasonable doubt. On the other hand it (sic) you're not persuaded that she has given you a reliable account, then you clearly cannot be satisfied that the accused is guilty with regard to each of the charges beyond reasonable doubt and he must be acquitted." (emphasis added) 18 In this case, although the passages quoted in the written submissions if taken in isolation may have been misleading, and although it would have been preferable to give a direction based on the passage in the judgment of Brennan J in Liberato at 515, I am satisfied that when the relevant part of the summing-up is read in context and as a whole, the jury were clearly warned that they should carefully scrutinise her evidence and could only convict if they were satisfied beyond reasonable doubt that the complainant's evidence was reliable and true, and that at no stage was there any onus on the accused to prove anything. 19 Moreover, contrary to one of the submissions made on behalf of the appellant, it is not correct to say that the jury needed to be told in express words that they could only convict if they were satisfied beyond reasonable doubt of the truth of the complainant's evidence. In R -v- Williams [1999] NSWCCA 9, Wood CJ at CL with whom the other members of the Court agreed, at p 15 said: "It is not customary, contrary to the submission advanced, to give a direction that the complainant's "evidence" must be proved beyond reasonable doubt. Such a direction would tend to confuse. What must be proved beyond reasonable doubt are the elements of the offence charged." 20 In my opinion there was in the present case no chance of the jury been left in any doubt that the onus was, and remained, on the Crown to prove the guilt of the accused beyond reasonable doubt, and that they could only be so satisfied if after carefully scrutinising the evidence of the complainant they were satisfied that the substance of her evidence was truthful and reliable. In my view neither of these grounds of appeal are made good. 21 Ground 3 was: 3. None of the "complaints" made by the complainant could properly be described as "fresh" and evidence of them ought not to have been admitted at the trial. 22 I have already summarised the evidence given by the complainant as to the occasions when she told members of her family or her boyfriend about what she claimed the appellant had done to her. There was also evidence from her mother that the complainant had mentioned the matter to her in 1988, although the complainant said the first time she told anyone was when she told her sister, D, in 1990. She said that when it first happened she was very young and did not realise the significance of it, and it was only after she saw the video on sexual abuse at school when she was in year seven, that is in 1987, that she realised that what happened to her was wrong. 23 At no stage was it objected that the evidence of these complaints was inadmissible either on common law principles or under the provisions of the Evidence Act 1995 (the Act). The only reference to the Act in relation to the evidence of complaints was at the conclusion of the summing-up when the Crown raised the question whether a warning that the evidence may be unreliable should be given because it was hearsay evidence: s 165(1)(a). The judge said he had considered it but he was reluctant to do so because further directions on the point might confuse the jury, and counsel then appearing for the appellant said he did not want a direction under s 165 that the evidence may be unreliable but a direction in accordance with Murray that the jury should carefully scrutinise the evidence of the complainant; and it was pointed out that such a direction had already been given; but the judge did subsequently give further directions to the effect that a delay in complaining was relevant on the issue of the credibility of the complainant. 24 The evidence of complaint was hearsay and therefore inadmissible (s 59) unless it came within one of the exceptions. It did not come within the exception provided for in s 66 because it was not "fresh": Graham -v- The Queen (1998) 157 ALR 404, R -v- Gillard [1999] NSWCCA 21, and although it may have been admissible under s 108(3) as an exception to the credibility rule if the leave of the Court had been obtained, that leave was neither obtained nor sought. 25 As I say no objection was taken to the admissibility of this evidence at the trial, although the appellant was defended by competent and experienced counsel. Generally, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted, particularly as to what questions may or may not be asked, what points to press, what points to abandon and what evidence to object to: R -v- Birks (1990) 19 NSWLR 677 at 683; and because a particular approach has been adopted at the trial, leave to argue a point not taken at the trial will not normally be granted simply because the approach taken at the trial has not been successful and evidence not objected to which could have been objected to. 26 There may have been good tactical reasons to not object to this evidence because counsel for the appellant was then able to challenge the complainant's credibility by cross-examining her on the failure to complain promptly after the alleged event, the failure to complain promptly after she saw the video in year seven at High School and the failure to report the matter to Police after she spoke to her sisters and subsequently to her boyfriend. Moreover, although the complainant said that the complaint to D was her first complaint, there was the evidence from her mother that she had previously complained to her, and this was an inconsistency which was open to defence counsel to exploit, and presumably he did so. 27 However, prior to the coming into force of the Evidence Act, evidence of late complaints was often admitted, although for myself I am not entirely clear on what basis this was so. This trial was held in May 1998 and the judgment in Graham was not delivered until September 1998. A similar situation arose in Gillard, where the trial had been heard before the decision in Graham, and this Court considered that in all the circumstances there was sufficient reason for granting leave to argue the point even though objection had not been taken at the trial. In my view, the Court should adopt a similar approach in this case; and the evidence being inadmissible I would grant leave to argue the point notwithstanding Rule 4, and I would uphold the appeal on this ground. 28 In the light of Graham, it will in future be the responsibility of Crown Prosecutors, where the evidence of complaint is not "fresh" in the sense discussed in that case or in cases of doubt, to ensure (if appropriate) that an application for leave to adduce the evidence is made pursuant to s 108(3). Likewise it will be the responsibility of defence counsel when objecting to evidence of complaint, or any other evidence for that matter, to relate their objections to the relevant provisions of the Act. 29 Although in view of my finding in relation to the admissibility of the evidence of complaint, it is not necessary to consider a number of other grounds in any detail, suffice to say that ground 5 (that the trial judge erred when during his summing-up he proffered an explanation to the jury as to why the complainant might have shut out from her mind the earlier complaint that she had made to her mother) gives me cause for concern, as I can see no evidence to support the suggestion and it appears to be an invitation to the jury to speculate. 30 The evidence of Dr Rapson (grounds 6, 7 and 8) appears to me to have been inadmissible. In my view it did not establish anything; the evidence went no further than that the vaginal discharge which may, but which was not established to have been blood, may have been consistent with rubbing of the vaginal area as alleged by the complainant, nevertheless there was no evidence that it was, and there was ample scope for it being consistent with a number of other conditions not related to any alleged conduct of the appellant. 31 Likewise the evidence of the complainant undergoing counselling during her early secondary school years (ground 12); she only went to counselling twice, and there was no evidence that the counselling was in any way related to any sexual abuse of her. As with the evidence of Dr Rapson, this evidence was not objected to but in my view it should have been; and although in accordance with what was said in Birks, this Court is reluctant to interfere with trial counsel's conduct of the trial, it seems to me that the accumulation of these matters not objected to, gives one an uneasy feeling concerning the trial as a whole. 32 I also have concern about the admission of the Crown case in reply (grounds 9 and 11). This was expressly agreed to by counsel then appearing for the appellant (who was not counsel who appeared for him on the appeal) but this agreement appears to have been based on a misconception, namely the issue of when the relationship between the complainant's mother and the appellant ceased (or when her relationship with her now husband commenced), whereas this matter had in fact been raised by cross-examination in the Crown case. It is difficult to see how the case in reply should have been permitted: Killick -v- The Queen (1981) 147 CLR 565, The Queen -v- Chin (1985) 157 CLR 671. 33 The only other outstanding issue is whether the appeal should be disposed of by verdicts of acquittal, or an order for a new trial, and in this regard ground 13 is relevant. That ground is expressed as being that: The verdicts are unsafe and unsatisfactory. That is not the correct way to express the relevant ground which is that: The convictions are unreasonable and/or cannot be supported having regard to the evidence: see Fleming -v- The Queen (1998) 158 ALR 379, R -v- Maxwell (CCA - unreported - 23 December 1998) at 21-2. Nevertheless the principles on which this Court should determine such grounds remain as set out in M -v- The Queen (1994) 181 CLR 487. Having regard to the whole of the evidence, I am satisfied that a jury properly instructed and acting reasonably, and with the advantage of seeing the witnesses, could have been satisfied beyond reasonable doubt of the guilt of the appellant provided that they believed the complainant. For these reasons this ground fails and the appropriate order is for a new trial. 34 I therefore propose the following orders: 1. Appeal upheld; 2. Convictions and sentences quashed; 3. New trial ordered. **********

R v Dwyer

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