R v HENMAN [2001] NSWCCA 4 | Case summary

JUDGMENT 1 GILES JA : I will ask Hulme J to deliver the first reasons. 2 HULME J : On 16 June last the appellant was convicted on two grounds of having sexual intercourse without consent with a person under the age of ten years and one count of indecent assault with a person under the age of ten years. The three charges concerning the same complainant, a niece or step-niece of the appellant. 3 The complainant asserted that at the time of the first offence, said by her to be one of digital penetration of her vagina, she was four years old, that the second offence, also digital penetration, occurred when she was five years old and that the sexual assault occurred when she was about nine years old, the circumstances of that incident, as described by her, being during the course of a game of tip between members of the extended family when, instead of tipping her, the appellant groped at her breasts and around her vaginal area outside of her clothes. 4 There was no independent corroboration of the complainant's evidence, albeit there was some evidence of circumstances of their meeting substantially within an extended family context. 5 The complainant was born in May 1982. The first record of any complaint or account of these incidents was in the form of a journal entry - if I can use the term - she made on 5 June 1997. Some six months or more later that document was found by the complainant's mother, read by her and she then tackled the complainant with it. A confrontation with the appellant then occurred and the police became involved. 6 The document itself was tendered in evidence. It does contain some record of the indecent assault and what I have referred to as the second offence but no record or perhaps no record, with particularity so as to identify it, of the matters the subject of the first charge. The terms of the document do provide some scope for cross-examination of the complainant on her account given in evidence. Thus her reference to the indecent assault event was in terms, "When he would tip me he would grab me on the boobs or near my fork or something", an account which obviously differs in some respect from the account in evidence that he grabbed her on her breasts and near her vagina. However, such differences were not, as I have said, the subject of cross-examination. 7 The appellant himself gave evidence and denied the matters alleged by the complainant. There was also called on his behalf a psychiatrist, Dr Roberts. Dr Roberts' evidence-in-chief was directed to the capacity of very young children to remember. His evidence-in-chief was to the effect that up to the age of about three infants suffer from what is referred to as infantile amnesia wherein the form of memory as generally understood does not exist. Asked then about the situation at older ages he said that in respect of a child aged four memory is inherently unreliable and what a child aged four says cannot be accepted as a matter of actual fact without independent corroboration. The memory of a child at five, he said, was unreliable, any statement must require independent verification but not as chaotic as a child of four (sic). Asked as to the capacity of a child aged six, he said again the answer is the same as at age five but to a lesser degree. In his next answer he said that by the age of nine the child is approaching but has not reached what we fully understand as the adult capacity to recount but it is more approximating that by that age. 8 He was cross-examined at a little length and undoubtedly he gave evidence that one of the factors liable to affect or corrupt the apparent memory of a very young child was prompting or external sources. However, it was not suggested to him that such matters were the sole explanation for the reservations he had expressed about the memory of very young children and I understand his evidence to be that the incapacity or deficiencies in memory of which he spoke were, in significant measure, attributable to the time taken for the brain to appropriately develop. 9 There was no evidence called to the contrary of that of Dr Roberts, albeit the Crown was, in my view, on fair notice that there was likely to be called on the appellant's behalf evidence along the lines of that given by Dr Roberts. That notice arose from the fact that an application had been made to the District Court for a stay of the proceedings some time earlier and in the course of that application an affidavit from a Dr Samuels addressing the topic of memory had been read and there was discussion between Judge Knight, who heard the application, and the solicitor then representing the appellant, on the topic and the solicitor's need to obtain another witness to replace Dr Samuels who was likely to be unavailable at the time of the then anticipated trial. 10 Apart from the witnesses I have mentioned there were a number of others who gave evidence but it is not I think necessary to refer to what they had to say. The principal issue, as defined by the evidence, was whether the jury was sufficiently satisfied by the evidence of the complainant to find the accused guilty despite the evidence of the appellant and of Dr Roberts. 11 I should, however, divert to say that there was a third charge of sexual intercourse without consent arising from an event said to have occurred between the incident said to have occurred when the appellant was five and the indecent assault, but on that the jury found the appellant not guilty. It was submitted that that finding indicated that the jury had or must have had significant doubt as to the credibility of the complainant but I do not think that follows. The complainant's evidence of the event the subject of the charge where the appellant was found not guilty was that her eyes were shut at the relevant time and her identification of the appellant was by reason of her hearing a chain which she asserted he wore and the fact that he was the only one who did things to her like that at the time. 12 The jury's failure to be persuaded beyond reasonable doubt of the appellant's guilt of that offence is clearly explicable on the basis that they were not persuaded beyond reasonable doubt that he was the offender on that occasion. The jury may well have had no doubt of the complainant's evidence that the incident occurred. 13 A number of grounds were advanced in support of the appeal. One of them was that his Honour had failed to give the jury appropriate directions in accordance with the decision of the High Court in R v. Longman and other cases along similar lines. The Crown in this court conceded that the trial Judge failed in that regard and that, accordingly, the appellant's convictions had to be quashed. A re-direction in terms appropriate and as required by Longman had been sought but the Judge refused to give it. 14 Unfortunately, the trial Judge was not assisted to the extent he should have been in the conduct of the trial either by the solicitor appearing for the accused, whose conduct seems to have been trying in a number of respects, and by the failure of the Crown Prosecutor to acquiesce in the application for a Longman direction. That failure is more surprising by reason of the fact that with the history of the proceedings and particularly the stay application to which I have referred, if not the bare facts of the complainant's story itself, must have made it clear that what I might call the Longman direction would inevitably be required. 15 In light of the Crown's concession that the appellant's convictions had to be quashed, the only grounds argued were that the verdicts were unreasonable or, to use the older expression, unsafe and unsatisfactory, the foundation for these grounds being the complainant's delay in reporting what had occurred, the appellant's apparently unshaken denial in the course of his evidence of guilt of the offences and the evidence of Dr Roberts to which I have referred. 16 I think these grounds of appeal are not easy of resolution for there is, I think, a deal to be said both for and against their success notwithstanding the area of dispute falls within a, in some respects, narrow compass. Fortunately, I do not find it necessary to resolve those grounds, for once the conclusion is reached that the appellant's convictions have to be quashed the court has a discretion whether or not to order a new trial (see s 8 of the Criminal Appeal Act ). 17 In this case I do not think the court should so direct. There are a number of factors which, in totality, have led me to this conclusion. One is the failure of the Crown Prosecutor to assist the Judge and ensure that the appropriate directions were given to the jury. A second lies in the fact that the Crown Prosecutor was, in my view, at fault also in the way he cross-examined Dr Roberts, in clear breach of the terms of s 44 of the Evidence Act , putting before the jury, in oral form, the contents of various psychiatric publications, the terms of which he read and which publications he described. 18 Section 44 is directed to ensuring that that does not occur and it is by no means clear to me that the Crown Prosecutor's offending conduct may not have had an appreciable effect upon the jury's ultimate conclusion. Another failure in the first trial was represented by some statements of his Honour at pp 162 to 165 of the transcript, statements which should not have been made and at least one of which may be described almost as the giving of evidence by his Honour on matters of youthful memory. 19 Another aspect of the trial which has concerned me was the fact that the complainant's journal account of June 1997 was allowed into evidence without, it would appear, any attention being given to the requirement in the Evidence Act that its admission required leave. 20 It was submitted on behalf of the Crown here that the document was admissible in any event arising out of the nature of the attack made on the appellant's behalf in cross-examination of the complainant and made by the evidence of Dr Roberts. I am not persuaded that that was so and I am unable to see any basis upon which leave should have been given, having regard to the inherently prejudicial nature of the document. 21 Also influencing the conclusion at which I have arrived are the factors in favour of the appellant which make the resolution of the unsafe and unsatisfactory ground difficult. Although clearly in the complainant's evidence there was evidence of the appellant's guilt, the Crown case is by no means strong and indeed borderline so far as that ground of appeal is concerned. 22 The appellant has served four and a half months imprisonment following his conviction, a period which may be compared against the total sentence of three years, including a non-parole period of twelve months. The trial miscarried for a variety of reasons, none of which are directly his fault. There is nothing to suggest that the offences of which he was accused are likely to be repeated, they occurred a long time ago and, in totality, I do not think he should be subjected, in consequence of the failures to which I have adverted, to the trauma and stress of another trial. 23 I appreciate that in another trial one would anticipate that many of the matters to which I have referred would not be repeated. I appreciate that generally when an appeal is allowed on grounds such as the failure of the Judge to give the appropriate directions to a jury it is the very common practice of this court to order a re-trial, notwithstanding the presence of one or more of the factors to which I have referred. 24 Nevertheless, in light of the totality of the circumstances to which I have referred, it seems to me that this is a case where the court should not exercise the discretion under s 8 of the Criminal Appeal Act and so direct. 25 I would propose that the only order which the court makes, and the orders which the court makes, are that the appeal be allowed and the appellant's convictions quashed 26 GILES JA : I am not convinced that the deficiencies in the trial to do with the Crown's cross-examination of Dr Roberts, the statements by the trial Judge and the admission of the journal account of 5 June 1997 are matters which significantly bear upon whether or not a new trial should be ordered. However, I consider that the other matters to which Hulme J has referred themselves provide compelling grounds for declining to order a new trial. 27 Adopting, with the qualification I have mentioned, his Honour's reasons, I agree with the orders his Honour proposes. 28 BELL J : I also agree with the orders proposed by Hulme J for the reasons his Honour gives. 29 GILES JA : Those will be the orders of the court.

R v HENMAN

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Judgment (9 paragraphs)

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