Ground five - Errors in the summing up
147 Although originally framed more widely this ground was confined at the hearing to the submission that the summing up was not fair and balanced. Complaint is made that her Honour's summing up concentrated on the Crown case but did not adequately reflect the address of the appellant's counsel which, because the appellant neither gave, nor called, evidence, was mostly concerned with the doubts which the jury should have had about the complainant's evidence, including the inconsistencies which it contained.
148 There is no doubt that there are inconsistencies in the Crown case, particularly in the evidence of the complainant. They are identified in the summary of the trial which I have earlier related. They were also referred to by counsel for the appellant in his address to the jury.
149 The evidence in the trial occupied most of nine days. On the tenth day the prosecution addressed the jury. That address extended into the following day. Defence counsel then addressed for most of one day and part of the following day. His address occupies 70 pages of transcript on that day, and a significant portion of the following day, where it occupies 25 pages of transcript. A review of that transcript demonstrates that defence counsel emphasised the possible difficulties in the Crown case in considerable detail, including the inconsistencies in the complainant's evidence. A reading of the transcript leads to the conclusion that it is inconceivable that the jury would not have understood the possible weaknesses in the Crown case. Furthermore they would readily have brought those weaknesses to mind when they were referred to by her Honour. Defence counsel concluded his address with the following remarks:
"KIMMINS: The prosecution case rests on the shoulders as I've indicated to you of BA. You have to be satisfied that his evidence, as I've indicated, was so truthful, so honest, so accurate, so reliable and consistent that his evidence was sufficient to push to one side the presumption of innocence, that it was so overwhelming that you'd be satisfied that not only was he probably guilty of any of these offences but the evidence of this person has reached the status of being able to prove beyond reasonable doubt that he is guilty of the offences. We submit on what you have heard that the only response to that is never. Thank you your Honour."
150 Her Honour's summing up occupies 40 transcript pages following which counsel were invited to raise any matters which they believed may require correction. Counsel for the appellant raised only one matter being the admissibility of the evidence of the complainant's distress. No issue was raised with respect to the balance and fairness of her Honour's summing up. Accordingly, r 4 of the Criminal Appeal Rules applies.
151 In the course of the summing up her Honour gave the usual essential instructions in conventional form. Her Honour then stressed to the jury that the Crown case relies solely on the evidence of the complainant, emphasising that the jury could not convict the accused of any particular count in the indictment "unless they are satisfied beyond reasonable doubt that the complainant's evidence was both honest and accurate in respect of his account of the facts and circumstances on which the particular allegation in that count arises."
152 Having instructed the jury as to the elements of the offences her Honour then briefly recounted the complainant's evidence in relation to each charge. It was essential that her Honour undertake that task. Her Honour then reminded the jury of the addresses of both the prosecutor and counsel for the appellant. In particular, the respective arguments as to why the complainant's evidence should be accepted or rejected were identified.
153 Her Honour said:
"Now I have dealt with the elements and the evidence on which the Crown relies members of the jury in respect of those elements. You would be well aware that the real issue in this case is whether you are satisfied beyond reasonable doubt that the complainant, BA, is being honest with you in his account that he has given you of the relationship between the accused and him from 1993. It could hardly be that he was mistaken about any of the facts which are at the core of his version of these events which he says occurred between those years. He might be mistaken you might think about some of the peripheral details with so many years having passed since he said some of these events occurred but you might think he could hardly be mistaken as to whether he was in the motel room at Chippendale for example and the acts which he alleges occurred to him.
Both counsel have addressed you at length about whether you would find that the complainant was truthful in the witness box. The Crown has pointed to what he said would be your assessment of BA as a witness or a person of truth. He suggested to you that his evidence had the ring of truth. He reminded you that BA was a young boy and a young man, and still is a young man, who had learning difficulties during high school, that does not mean that you would not accept him as a witness of truth as to the elements that he was accurate and reliable.
Mr Kimmins on the other hand has spent a great deal of time pointing out inconsistencies between what BA said to the police and what he has said to you here in the witness box. The purpose of that was to persuade you that you could not rely on the complainant as a witness of truth. I do not propose to go over what was said to you by Mr Kimmins, a large part of yesterday was occupied by that analysis of the evidence, and you would clearly take those matters into account and would clearly have them in mind."
154 Her Honour later said:
"Now as I have said to you, the Crown case relies exclusively on the evidence of BA. There is no evidence at all which proves that the accused committed these offences. Where the Crown case depends on the word of one witness unsupported by any other evidence, a jury has to treat the evidence cautiously because it is upon that evidence alone that the Crown has to prove the allegation or allegations and prove them beyond reasonable doubt. This is so regardless of the nature of the allegations or the nature of the charges which are before the jury. It has nothing to do with the fact that the complainant is raising allegations of a sexual nature. The caution that you have to show in having regard to the evidence of a single witness in relation to a Crown case flows from the fact that the Crown has to prove its case against the accused person, and prove it beyond reasonable doubt, and can only rely on the evidence of the complainant to fulfil that obligation.
On the matters you can take into account when determining whether or not you accept the honesty of the complainant is when it was that these allegations were first raised by him. You would understand that normally the fact that somebody has made such allegations to another person does not really tell you anything about whether those allegations might possibly be true. However, in some circumstances, the fact that a person made a complaint or raised an allegation of sexual assault is a matter which can be used by the jury in determining whether the person is actually telling the truth in the allegation made in Court. Where the allegation of sexual assault is raised by a complainant at the first reasonable opportunity after the alleged assault occurred, the fact that the complainant made such an allegation or raised such a complaint after the alleged assault, might indicate that the complainant is being consistent in his or her conduct. This is because experience of human nature might suggest that if a person was the victim of a sexual assault, that person would raise a complaint about it at the first reasonable opportunity that presented itself. If such consistency in the complainant's conduct is demonstrated, then this might be material which would indicate that the complainant, or could indicate that the complainant is telling the truth in the allegations made in Court. But the converse is that if a person fails to complain at the first reasonable opportunity which presented itself, then that might indicate that the person is not telling the truth about the allegation. This is because the failure to raise such an allegations shortly after the assault may indicate that the person is not behaving in a consistent manner in relation to the allegation that he or she makes. Thus the failure of the complainant at the first reasonable opportunity to raise any of these allegations might indicate that the allegation is not true and the failure of the complainant to raise these allegations can be used by you, the jury, as material which might indicate that the complainant's account ought not to be accepted. The failure of the complainant to raise this allegation with any person shortly after he said any of these acts took place, is a matter you can take into account when assessing the allegations he has made to the police and has made before you in this Court room.
I am not suggesting for one moment that you would, or should, for that reason alone disbelieve the complainant. What you make of this matter is for you to determine using your commonsense, your experience of life and taking into account the relevant circumstances. For example, his age at the time, the nature of the act of sexual intercourse or act of indecency which he alleges, the relationship between him and the accused as you find that relationship to be, and any other matter which you believe is significant when looking at and evaluating the complainant's conduct at this time.
You should understand that just because a person fails to complain about a sexual assault at the first opportunity, it does not necessarily follow that the person must not be telling the truth about it. There may be good reasons why a person in the position of a particular complainant might not complain about a sexual assault, even if a person cannot adequately identify or articulate those reasons.
Now in this case the complainant told you as to the first count when he was aged ten that he did not know what was going on and he did not say anything to Aunty. He also said in respect of other counts that he did not know what other people would have thought and he would not be able to go out with the accused any more. He told you that he thought he might have got into trouble and also that the accused said to him "If I told anyone we would both in trouble and it is none of anyone's business".
The Crown says that looking at BA's age at the time that these sexual assaults commenced and looking at the relationship between him and the accused, what the complainant said to you and his actions in not making the allegations at the time, is consistent with your commonsense and your experience of life. He suggested to you that the accused fostered a relationship with BA from the time he was a little boy, that BA was trusting, immature and easily influenced by a person to whom he looked for attention and who was a "father figure to him".
Mr Kimmins' submission to you about this aspect on behalf of the accused is that the failure of the complainant to tell anyone about what occurred indicates that the allegations are not true. He suggested to you that consistently with your experience of human nature and children, you would have expected there to be immediate complaint if any of these acts occurred. Again these are other matters, members of the jury, that you are going to have to determine.
…
LUNCHEON ADJOURNMENT
…
Going back to what I said before the lunch break, there are other matters which, of course, you need to take into account when considering and assessing the complainant's evidence and whether you can rely on it to the appropriate degree necessary. There has been a delay in this matter being brought to the accused's attention. The allegations relate to incidents which are said to have occurred between approximately three and eleven years ago. Because of the delay in the matters being brought to the attention of the accused, he has been unable adequately to test and to meet the evidence of the prosecution. To give you an example, because of the passage of years you would be aware that the recollections of some of the witnesses, if not all of the witnesses, are less accurate. You should understand that you are perfectly entitled to convict the accused on any of the charges he faces on this indictment, otherwise you would not have been empanelled as jurors. However, because of the matters I have brought to your attention, specifically the absence of early complaint, and the delay in the prosecution, I am required to warn you that it would be dangerous to convict on the complainant's evidence alone unless after you have scrutinised it with great care, considered the matters relevant to its evaluation and taken note of this warning, you are satisfied beyond reasonable doubt of its truth and accuracy so far as it establishes the essential elements of each charge.
As I have been endeavouring to point out to you, your deliberations in this matter must centre on the evidence of the complainant. You will primarily be concerned with making an assessment of his evidence and determining whether his account is an honest one. All of the other evidence in this trial has been placed before you to assist you with that task. For example, the Crown says that you would be assisted in finding that the complainant was telling the truth about these matters by other evidence that has been placed before you. Such as, for example, the content of the telephone calls, exhibits Q and R, and the e-mails, exhibit S which the Crown says support the nature of the relationship between the complainant and the accused as the complainant has told you it was."
155 At the conclusion of the summing up her Honour said:
"Finally, members of the jury you have heard lengthy addresses from both counsel and they have raised many matters for your consideration. I do not propose to recapitulate what counsel said. As I said earlier you should consider carefully everything that each counsel has put to you and I am sure it is fresh in your mind.
In very brief summary the Crown Prosecutor suggested to you that you would accept BA as a witness of truth. He suggested to you that his evidence was credible and had the ring of truth. He suggested that the accused had fostered a relationship with BA who was trusting, immature and easily influenced and responded to the accused's shared interest in computers and in playing cards.
The Crown Prosecutor suggested that the accused took advantage of BA's trusting nature and manipulated his feelings but eventually BA, as he told you, had had enough. He had left school and had reached a level of maturity where he was able to speak out even though he liked the accused and he did not want the friendship with the accused to end.
The Crown Prosecutor reminded you that other members of BA's family were trusting too. AM was of the older generation. Mr PA, BA's dad, was occupied looking after his large family and with working and he reminded you of BA's evidence that the accused held a position of respect in this family.
Mr Kimmins on the other hand has suggested to you that you would find the complainant is unreliable, that the inconsistencies he reminded you of on Thursday in respect of his account to the police, his evidence-in-chief and his cross-examination would cause you to have a reasonable doubt about the accused's guilt. He suggested as I have just reminded you that he would not accept Mr Mann's evidence at all, that the other matters that the Crown might point to as being capable of supporting BA's account did no such thing. Such matters as the e-mails, the phone calls and the bottle of lubricant. He suggested that it was unlikely or ludicrous to suggest that a person who had been dealt with in this way as BA alleged over many years would go on a trip to Queensland with the accused as he did towards the end of 2001."
156 The trial judge emphasised in her summing up that the real issue for the jury to consider was the honesty of the complainant rather than whether he was mistaken. Although the appellant's counsel takes issue with this characterisation of the issue in this manner I am satisfied that her Honour was correct to do so.
157 In the summing up her Honour emphasised that the facts must be determined by the jury having regard to the evidence which they considered to be honest and reliable. Although reminding the jury of the essential elements of the Crown case her Honour was careful to remind them of the weaknesses asserted by defence counsel to be present in the credibility of the complainant and the reliability of his evidence. Having regard to the detailed examination of that material which had been undertaken by defence counsel I am satisfied that her Honour adequately presented the defence case to the jury.
158 In R v Lars (aka) Larsson (1994) 73 A Crim R 91 this Court emphasised that where, as in the present case, the Crown leads the greater part of the evidence at the trial, it may be expected that the summing up will devote greater attention to the Crown evidence. When the question is whether the summing up is properly balanced, although it is appropriate to consider the proportion related to the Crown case and the proportion related to the defence case, it is necessary to consider the summing up having regard to the whole of the trial including the evidence given and the addresses by counsel.
159 As Street CJ emphasised in R v Veverka [1978] 1 NSWLR 478 it is sometimes not easy to resolve a submission that a summing up was not fair, remote from the atmosphere of the trial (p 482). It is no doubt for this reason, amongst others, r 4 of the Criminal Appeal rules provides that unless objection is taken at the trial such a ground of appeal may only be allowed with the leave of this Court (see R v Abusafiah (1991) 24 NSWLR 531 at 536). Where it is said that by failing to refer to the detailed matters going to credit raised by counsel in a submission put before the jury on the previous day any unfairness is best judged at the time and, if thought necessary objection should be taken. In the present case, if objection had been taken it would, if thought necessary, have been relatively straightforward for her Honour to have reminded the jury of matters raised by counsel the previous day.
160 It is useful to bring to mind, as Hunt J did in Abusafiah, the remarks of this Court in R v Haeney (Court of Criminal Appeal, 13 June 1978, unreported) quoted in R v Aziz [1982] 2 NSWLR 322 at 331:
"What is important to be borne in mind is that the absence of objection by counsel, in particular to matters involving criticism of the form, content or balance of the summing-up, furnishes a basis for concluding that, in the context of the atmosphere at it existed at the trial, and in the contemporary awareness of the manner in which the summing-up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing-up. The Court of Criminal Appeal, no matter how experienced its members, and no matter how comprehensive the written record may be, can never hope to recapture the full texture of the atmosphere in which the question of the accused's guilt was submitted to the jury in the concluding stages of the trial. It is for this reason that, at an appellate level, there is a well recognised hesitance in entertaining grounds of appeal challenging the form, content or balance of a summing-up when those matters have not been adverted to by counsel at the proper time during the trial. This it is that Rule 4 enshrines."
161 This is not a case such as was considered by this Court in R v V (1998) 100 A Crim R 488 when the appellant had given evidence denying the allegations and the defence raised a case which could explain the complainant's motives for making the allegations. In those circumstances there is little difficulty in accepting a submission that a balanced summing up required a summary of the defence.
162 However, the issue in the trial in the present case was whether the complainant should be believed, having regard to the apparent inconsistencies in his evidence. Given that the inconsistencies had been carefully identified by counsel, the jury, having been reminded of their fundamental importance to the defence case did not, in my opinion, require any further assistance from the trial judge.
163 Because the suggested inadequacy in the summing up was not raised before the trial judge and I am satisfied the trial did not miscarry, I would decline leave to raise this ground of appeal.