Ground 1
23 It was submitted that his Honour erred in allowing an amendment of counts 2 and 3, so as to substitute the period "between 31 October 1987 and 30 October 1989" for the period originally charged, (ie "between 31 December 1987 and 31 March 1988") in count 2; and "between 31 October 1989 and 30 October 1990" for the period originally charged, (ie "between 1 February 1988 and 31 May 1988") in count 3. The amendment to the original count 8 (now count 6), it was acknowledged, was of no moment, the commencing date having been enlarged from 31 December 1995 as originally charged, to 1 December 1995.
24 In allowing the amendment, and in drawing a distinction between the original counts 4 and 5, which went, and the remaining counts which were preserved, either with or without amendment, his Honour had regard to Westerman (1991) 55 A Crim R 353, where Lee CJ at CL noted that the power to amend an indictment under S 365 of the Crimes Act is a very wide power, but one that:
"ought not to be exercised when it gives rise to a real prejudice to the accused".
25 His Honour concluded that, having regard to the way that the case had been fought, to permit the amendment in relation to counts 4 and 5, where objective evidence was available as to the time that the pool had been constructed, would have unfairly watered down the defence case. As in Westerman, the clash had been one between the Crown and the defence as to whether the events had happened at all; after the amendment sought (to postdate the charge until after the pool had been built, and at a time after the complainant had attained the age of ten years) would have left the jury with the obligation of considering whether NW had been mistaken as to the time of the offences, but not in regard to the fact of them having been committed.
26 As was the case in MacDonald (1995) 84 A Crim R 508, the accused had come to trial to answer the charges as particularised, and the particulars concerning the time of those two alleged offences was vital to the defence as it was to be presented. In those circumstances, his Honour thought it unfair to exercise the discretion he possessed, (since the date of the offences was not an essential element of the charges), to allow the amendment. To do so would have required the appellant to meet a new case which had not been raised until the close of the evidence.
27 His Honour in fact followed MacDonald which had applied Pfizner (1976) 15 SASR 171, where Bray CJ had said (at 185):
"Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it: cf Page v Butcher (1957) SASR 165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson (1979) q WLR 142; (1970) All ER 12; (1970) Cr App R 38".
28 His Honour was, in my view, correct in the way in which he approached counts 4 and 5, and in drawing a distinction between these counts and the remaining counts, where no similar defence or evidentiary issue arose, save for a general denial of the conduct alleged. Time is generally not of the essence for offences of this kind: VHP (Court of Criminal Appeal New South Wales 7 July 1997) although it has a relevance in a different way to which I will return, in the case of count 4.
29 The defence did not pursue the line, in relation to any of the preserved counts, that they did not occur because it could be shown objectively or independently that the complainant's evidence concerning some detail associated with them, such as the time of a holiday, or a visit to a certain location, could not have been true, or that the appellant had an alibi for the period charged. In summary, the kind of problem identified in Pfizner, MacDonald and Westerman, did not arise for these counts.
30 As an associated submission it was asserted that the evidence given, in relation to these counts, fell into the difficulty identified in S, (1989) 168 CLR 267. The problem there identified was however very different, the complainant being unable in that case to do more than say that there were
"further acts (of intercourse) but I cannot recall all the details of them or when they were. I have blanked them out".
31 The point of that decision was that, in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence the legal nature of which is described in the charge, and invite the jury to convict on any one of them.
32 The present case is very different in that specific acts were identified in relation to each count, with accompanying detail that related them to a particular circumstance or place such as a holiday, a night in a tent, an incident in a shower, or a plan to join the appellant on his garbage run, as well as to the age of the complainant.
33 The inability of a complainant to be precise as to dates, leaving an accused with little more than a blanket denial, does not necessarily mean that the trial is unfair, although it may call for suitable directions to be given to the jury of the kind discussed later in these reasons: Kennedy (Court of Criminal Appeal New South Wales 9 December 1998). It may also require a critical review of the complainant's evidence where the "unsafe and unsatisfactory" ground of appeal is raised.
34 The present case is in fact little different from very many, if not the majority of cases involving allegations of sexual assault where, although the details of the assault are clear and explicit in memory, the precise timing of them is not. I am unable to conclude that any vagueness concerning the precise dates of incidents alleged, resulted in an unfairness for the appellant in allowing counts 2 and 3 to remain, or otherwise. In this regard it is not irrelevant that, whether amended or unamended, the only defence that the appellant raised in relation to these counts was one of a blanket denial.
35 I am accordingly of the view that his Honour's discretion to allow the amendment to counts 2 and 3, and to count 6 (formerly count 8), in the fresh indictment, did not miscarry. This ground has not been made good on this point, or on the more general S point.