R v JT

Court of Criminal Appeal (NSW)|2017-09-27|Before: Hoeben CJ, Latham J, Adams J

Solicitors: Solicitor for Public Prosecutions (Appellant) PJM Lawyers (Respondent) File Number(s): 2016/00139794; 2016/00138470 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 10 July 2017 Before: Bennett SC DCJ File Number(s): 2016/00138470; 2016/00139794

Judgment

HOEBEN CJ at CL: I agree with N Adams J and the order which she proposes.
LATHAM J: I agree with N Adams J.
N ADAMS J: By amended notice of appeal filed on 5 September 2017, the Director of Public Prosecutions (NSW) ("DPP") appeals pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) from an order of Bennett SC DCJ on 10 July 2017 staying the indictment in the respondent's trial until such time as further particulars in respect of Counts 1 to 4 are provided.
The sole ground of appeal alleges that his Honour erred in finding that Counts 1 to 4 in the indictment suffered from latent ambiguity such that greater particulars were required.

Count 1 (fellatio)

Count 1 is brought under s 66A(1) of the Crimes Act 1900 (NSW). It is an allegation that the respondent put his penis into KM's mouth at a time when he was 14 and she was 7. The particulars provided in the two recorded interviews with KM are as follows: 1. KM recalled that the respondent put his "thing" in her mouth. She could not remember the first time or last time that happened: Q&A 63-67. 2. She was asked to recount everything that she could remember about "that time": Q160. 3. KM said that it occurred in the respondent's bedroom and that she tried to go away because she thought someone was coming in but the respondent told her to "shush": Q&A 159-160. 4. KM stated that no one else was in the room but she thought her sister was in the house. She was not sure what the day of the week was nor where the adults were at that time: Q&A 162-167. 5. On this occasion she thought that she walked into JT's room, which she would do sometimes: Q&A 168-169. 6. JT put his "thing" in her mouth whilst they were on the bed. She could not recall what either of them was wearing: Q&A 171-174. 7. She said that the word "thing" meant a "beepee". She identified what she meant on a diagram of a boy and wrote the word "dick". She said that boys would use it to "wee": Q&A 179-191. 8. KM was not able to say for how long the respondent's "beepee" was in her mouth: Q&A 192-196. 9. The incident ended when the respondent removed his "beepee" from her mouth. She could not recall whether anything made him take it out or stop: Q&A 211-212.
In the second recorded interview, KM repeated the above allegation. She stated that the respondent put his "dick" in her mouth and that it happened more than once: Q&A 23; Q&A 33. It lasted for quite a while: Q&A33. She was asked whether the respondent said anything when he did that and she replied "No," but indicated that, once, when he was "on [her]" and it was dark, she thought someone was coming. She was scared and she was trying to get off him. He told her to be quiet, to "shush". She was unable to say how many times this sort of thing happened: Q&A 34-35.

Count 2 (digital penetration)

Count 2 is also charged under s 66A(1) of the Crimes Act. During the first interview, while KM was discussing Count 1, she remembered a time when she was sitting with the respondent on a couch and a blanket was over them and he put his finger "into mine": Q&A 175; 176. This was a different occasion to the fellatio: Q&A 178. She described this incident as follows: 1. It occurred in the living room at the respondent's house. LM was on the other lounge at the time: Q&A 218-221. 2. The respondent's finger went into her "hole" and it hurt: Q&A222. 3. The respondent did not say anything: Q&A225. 4. KM demonstrated where she was sitting relative to her sister. She said that the respondent was sitting beside her (that is, next to KM): Q&A 226-234. 5. KM said that the blanket covered both of them and that she thought the TV was on. She could not remember what either of them was wearing: Q&A234-37. 6. She was unable to remember if this incident occurred before or after Count 1 or the other occasions that he had "done it": Q&A238-39. 7. The incident occurred during the day: Q&A240. When she was asked about this later in the interview, she stated that she knew this because it was bright in the house: Q&A264. 8. She did not think that anyone else was home (besides LM). She did not know where either her mother or the respondent's mother was: Q&A241-243. 9. The interviewer asked KM to tell her more about how the respondent put his finger in her "beepee". She repeated that it hurt and that the respondent did it by putting his hands in her pants: Q&A243-245. 10. She said she did not know what her "beepee" was called but that you use it to wee: Q&A 251-254. She was able to indicate on a diagram where this was: Q&A 248-251. 11. She said that it did not last long and it stopped when he took his finger out of her "beepee": Q&A256-262. 12. She described the respondent as only using one finger and said that his other hand was still and on "the other side of him". She was sitting on the left: Q&A266-269. 13. Although LM could see where KM was, KM did not know if LM saw what happened: Q&A 270-272.
In her second recorded interview, KM repeated that "once when when we [they] were sitting in the living room" the respondent put his hand in her "private part" and then took her hand and put it in his "private part": Q&A 26. She thought that there were people sitting around but they could not see: Q&A 27. "Once" he put his hand in her private part and he was pushing it and it really hurt: Q&A 27. She clarified that her "private part" meant her vagina: Q&A 49. His hand was underneath her clothes and he was touching her vagina with his fingers: Q&A 48-52. She described that he was "…pushing his body up, it hurt because it was going in, and like his nail": Q&A 54. While he was doing that he took her hand and put it underneath his clothes on his "private part", which she also described as his "dick" or penis: Q&A 55-59.
She thought that the TV and light were on. She was pretty sure that there were other people in the room, but she could not remember who they were: Q&A 61-63.

Count 3 (frottage; respondent on top)

Counts 3 and 4 are brought under s 61M(2) of the Crimes Act. In her first interview, after KM described the matters that form the basis of Count 2 on the indictment, she was asked whether she could remember any other times. She replied "Um, he was on me": Q&A 273. She then provided the following further particulars: 1. She described the respondent as being heavy: Q&A 274; 280. 2. She told him to get off her because he was heavy: Q&A 281. 3. It happened in his grandmother's room: Q&A 276. 4. She was used to it and thought it was normal: Q&A 282. 5. Because she thought that it was normal, there were some times when she would go into the room and "go on him": Q&A 283. 6. Both of them had clothes on. She could not remember what she was wearing: Q&A 290-291; 305-306. 7. He was on top of her and his "beepee" was touching hers: Q&A 290-291. 8. He was moving his body up and down. His hands were not doing anything: Q&A 292-295. 9. She was unable to say how long it went on for, but it stopped when she told him to get off her because he was heavy: Q&A 296-297. 10. They were lying on the bed: Q&A 302. 11. There was no one else around. She was not sure whether anyone else was in the house at that time: Q&A303-304.

Count 4 (frottage, KM on top)

In her first interview, KM described going into the bedroom of the respondent's sisters: 1. Sometimes she would "go on him" and she thought it was normal: Q&A 332-336. 2. She would go on him after he had done the things to her: Q&A337. 3. She was not sure how many times it had happened, but on one occasion her sister LM saw her on him: Q&A 338-339. 4. She described LM looking in from outside the door. LM told her to get off him and then said, "Come, mum wants to see you": Q&A 340-342. 5. She described how the respondent was lying down on the bed and she was on top of him on the bed: Q&A 345-346. She was lying down with her stomach down and she was moving back and forth: Q&A 347-348. She could feel the respondent's "beepee" and body: Q&A 353. 6. She was wearing clothes. She could not remember what she was wearing: Q&A349-350. 7. She remembers that LM was angry at her for being "on" the respondent, but she did not think that LM said anything to her at the time: Q&A 356-358. 8. Although this conduct occurred more than once, this was the only time when anyone else saw it: Q&A 362-363.
LM made a police statement on 30 March 2016 in which she describes going to look for KM on an occasion and finding her with the respondent. He was lying on his bed on his back with his knees up looking at his mobile telephone. KM was on top of the respondent facing him and moving up and down his pelvis like she was "humping" him. They were both wearing clothes. LM was angry and told KM that their mother wanted her. LM took KM to the girls' room, grabbed a coathanger and shook it in front of KM's face, asking her why she was doing that. KM did not reply. LM said that she was going to tell their mother. KM replied, "No, don't tell mum."
LM also recalls walking in on another occasion when the respondent and KM were together in his room. On this occasion, the respondent was sitting up on the edge of the bed and KM was on his lap facing away from him. The respondent was on his phone as if he were watching something. She says that KM looked at her, LM shook her head at her and KM came out of the room with her. KM looked scared.

Procedural history

The trial in this matter was listed to commence before Bennett DCJ at the District Court at Parramatta on 4 July 2017. The indictment contained six counts pertaining to the three complainants. Prior to the empanelment of a jury, the respondent was arraigned and pleaded not guilty to all counts. Counsel for the respondent objected to the evidence of each count being relied upon as tendency evidence and, in the event that he was successful in that application, sought the separation of the trials in respect of each complainant.
Each of the three complainants, their mother and the officer in charge then gave evidence on the voir dire concerning possible contamination and or concoction in their evidence. His Honour ruled that he would allow the tendency evidence and accordingly not separate the trials. His Honour indicated that he would provide his reasons at a later date. There is no appeal against that decision at this interlocutory stage of the proceedings.
On 5 July 2017, a jury was empanelled. In the absence of the jury, his Honour observed the following in the context of a discussion as to the basis upon which the Crown proposed to lead context evidence of "uncharged acts": "[W]hen you look at especially the first complainant and her description of events in the interview - this might give rise to a problem at the close of the Crown case but she speaks of "other occasions"…Not a great deal of particularity I might say." [emphasis added]
The trial advocate indicated at that point that he relied upon the charged acts as tendency evidence, with the uncharged acts relied upon solely as context evidence.
On that day, the trial advocate opened to the jury and particularised the first four counts on the indictment in reliance on the evidence of KM contained in her JIRT interviews and summarised above. On 6 July 2017, the jury was discharged on a basis irrelevant to the present appeal. Prior to another jury panel being brought into court, counsel for the respondent indicated to his Honour that he needed time to consider the ruling on tendency evidence and how that evidence was cross-admissible as between each count. His Honour then delivered an ex tempore judgment setting out his reasons for ruling that the Crown could rely upon tendency evidence.
A second jury was empanelled that day, but also had to be discharged for reasons unrelated to this application. The matter was then stood over to Monday, 10 July 2017.
On 10 July 2017, counsel for the respondent invited his Honour to reconsider the tendency judgment under s 130A of the Criminal Procedure Act. He submitted that the evidence of uncharged acts was in fact tendency evidence, even if the Crown did not propose to rely upon it in that way. This meant that there was a real danger that the jury would misuse the evidence. Reliance was placed on the judgment of Simpson J (as her Honour then was), with whom Campbell JA and Whealy J agreed, in RG v R [2010] NSWCCA 173 in support of that submission. During legal argument, his Honour again adverted to the question of how the discrete event upon which Count 1 is preferred was identified. His Honour referred to the decision of the High Court in S v The Queen (1989) 168 CLR 266 and invited counsel for the respondent to make an application in relation to that issue.
On resumption, counsel for the respondent indicated that he sought to have Count 1 quashed on the basis of duplicity. His Honour suggested that his concern was with ambiguity rather than duplicity. His Honour doubted that he had the power to quash any counts on the indictment for ambiguity, but observed that he did have the power to stay the proceedings. He invited further submissions from counsel. The trial advocate appearing for the Crown submitted that there was sufficient particularity and referred his Honour to the relevant parts of the interviews.
His Honour then delivered an ex tempore judgement staying the indictment until further particulars were provided.

His Honour's judgment

His Honour commenced his judgment by adverting to some of the difficulties in relation to the context evidence to be adduced at the trial. His Honour observed: "However, another issue is alive in this trial. It is one of which I have been conscious since it came before me. It is in relation to the question of particularity of the charges and the question whether or not there is duplicity or latent ambiguity in the way the Crown intends to present its case."
His Honour went on to quote from Criminal Practice and Procedure NSW on "Duplicity": [1] "The Crown should give sufficient particulars of the offence so that the accused knows the case that he or she has to meet and this includes material to indicate when and where the offence is alleged to have occurred: S v R (1989) 168 CLR 266; 89 ALR 321; 45 A Crim R 221… The Crown can be required to particularise which act of conduct of the accused is relied upon as the act of intercourse which is alleged in the count in the indictment and there is no statutory warrant for aggregating in the one count a number of acts of intercourse: R v Khouzame (1999) 108 A Crim R 170; [1999] NSWCCA 173…(1999) 6 Crim LN 55 [1027]."
His Honour set out the evidence in support of Count 1, extracting the questions and answers in Q&A 62 - 68 of the first interview with KM.
His Honour noted that each count on the indictment specified a time period of between 1 May 2012 and 31 October 2012. He noted that it was common ground that for that six-month period the complainants and their parents lived with the respondent and his family. He noted that the six counts on the indictment and the incidents relied upon as context are all alleged to have occurred during that time period, although there is some context evidence in relation to the first two complainants said to have occurred when the two families were not living together
His Honour extracted part of KM's first interview with police at Q&A 159-177, 178-181 and 211-213.
His Honour then made reference to KM's second interview on 2 June 2017 and extracted Q&A26, 33 and 34-35.
His Honour noted that the allegation of digital penetration the subject of Count 2 was also mentioned in the first interview at Q&A 213-239. His Honour stated that, in the second interview, KM had described digital penetration occurring in the living room at Q&A 26 and following and had provided greater detail as to that incident at Q&A 49 and following.
His Honour then noted: "It is acknowledged that with regard to count 3 and count 4 there were multiple occasions when it is alleged the conduct occurred, with the complainant on top of the accused, which is the subject of count 4, and the accused on top of the complainant, which is count 3, with their bodies moving together when they were clothed, contact being made between the areas of their genitalia. It is common ground that there are allegedly multiple occasions of those offences, in respect of which there is one charge brought for each."
His Honour then made reference to the judgment of the High Court in S v The Queen. His Honour stated that the evidence presented to the jury in that matter was of multiple occasions beyond those that were the subject of charges "…but it was not possible to identify the particular events upon which the accused could be found guilty." His Honour then extracted in his reasons the relevant portions of the judgments of Dawson J, Toohey J and Gaudron and McHugh JJ in a joint judgment in S v The Queen as follows: "Amongst other things, Dawson J said at para 7 of his judgment: 'There was, I think, obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged.' In para 8: 'The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory [sic] of the complainant. An accused is not be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.'"
Judge Bennett then referred to the observations of Dawson J that the applicant was facing what was in effect propensity evidence. His Honour proceeded to extract further portions of that judgment as follows (at 275 - 276): "He continued: 'In other words, the prosecution case sought to go no further than to establish that an incestuous relationship existed between the applicant and his daughter - which is to do no more than establish a particular kind of propensity - and to assert the guilt of the applicant upon three unspecified occasions during the existence of, and upon the basis of, that relationship' Paragraph 11, "Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit.' And at para 13, 'At all events, where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice which precludes the application of the proviso contained in s. 689 of the Code.'"
Judge Bennett then proceeded to extract portions of the judgment of Toohey J from S v The Queen as follows: "Toohey J came to the same conclusion speaking of the real difficulty in that case treating the generalised evidence as evidence of similar facts or relationship, and attempted to identify the alleged offence on which the similar conduct or relationship was said to bear. His Honour referred to the problem of uncertainty in knowing the charge to be met, and quoted Dixon J in Johnson v Miller (1937) 59 CLR 467 at p 489 where his Honour wrote, '…the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charges based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be a prize not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of that charge.' Justice Toohey recognised that the Crown was not obliged to identify the specific date upon which an event is said to have occurred and continued at para 15, 'But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which it is said [sic] to give rise to the offence charged.'"
His Honour then proceeded to quote from the joint judgment of Gaudron and McHugh JJ in S v The Queen at para 10 as follows: "'The question of prejudice goes somewhat deeper than the question whether there is an effective denial of an opportunity to call alibi evidence. The evidence of a number of offences said to have been repeated at two-monthly intervals over a period of one year (which period might for anywhere within a period of almost three years) had the same practical effect as that was noted by Evatt J in relation to the course proposed in Johnson v Miller. Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularised nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance.' Paragraph 11, 'Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. Ordinarily, those difficulties will be averted by ordering particulars, by amending of the indictment, or by putting the prosecution to its election and appropriately confining the evidence in the offences charged…However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice.' And then at para 13, 'The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts. Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods. In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant guilty [sic] of individual acts answering to the description of the offence charged.'"
After extracting the above passages from the judgments in S v The Queen, his Honour noted that the complainant in this case was able to describe four specific events which, if accepted as truthful and accurate, could establish offences of sexual intercourse by fellatio, sexual intercourse by digital penetration, and indecent assault. His Honour then observed: "But it remains that the complainant's evidence is that there were multiple occasions of each such conduct from which the Crown has chosen to draw a description of one such allegation, which upon my assessment of the evidence provides an example of the behaviour in each case. The problem becomes more difficult when the Crown is permitted to have as context evidence other instances of comparable behaviour, so that the jury will have before them a charged act of sexual intercourse by way of fellatio, plus evidence of other occasions when such behaviour occurred, and so too with regard to the misconduct alleged for counts 2, 3 and 4. I accept that this case differs from the decision in S v R ibid, because there the Crown proceeded on three counts relying upon multiple acts of comparable conduct within the same specified period, whereas here the Crown specifies one act of each type of misconduct. But even bringing to account that distinction, I am not satisfied that there has been obviated the risk of ambiguity from the evidence upon which the Crown at present is intending to rely."
His Honour then made an order staying the indictment until the Crown provides "…greater particularity by way of bench marks or otherwise against which the accused might know the occasion when it is said he engaged upon misconduct the subject of each of those charges."

Submissions on behalf of the Crown

The Crown submitted, in reliance upon S v The Queen and Yildiz v R [2006] NSWCCA 97, that the trial judge had misapplied the principles in S v The Queen. Three errors were relied upon. First, it was submitted that his Honour had misapplied the principles discussed in S v The Queen with respect to the facts of the present matter. Second, it was submitted that the conclusion reached by the trial judge in the first sentence of the first paragraph of the passage extracted at [38] above contradicts the conclusion to which his Honour had already come. Third, it was submitted that his Honour failed to address the evidence upon which the Crown relied in respect of Counts 3 and 4 to distinguish them from the other occasions.
It was submitted that the respondent must know for which particular incident he is being tried in relation to each count on the indictment. The facts of the decision in S v The Queen were distinguishable on a number of bases.
The Crown submitted that in this case, unlike in S v The Queen, all of the alleged offences occurred within a six-month period. Having regard to the narrow timeframe in which it is alleged that particular acts occurred in particular rooms in the house, it was submitted that there is ample scope for the respondent to test KM's account of the general and specific circumstances of the offending.

Submissions on behalf of the respondent

It was accepted by the respondent that KM describes four incidents of a sexual nature occurring between her and the respondent. However, it was also submitted that, in each case, those incidents are said to have occurred more than once in the six-month period covered by the charges. It was submitted that, consistent with S v That Queen, each charged count must be sufficiently particularised such that the substance of the particular event is not indistinguishable from the context evidence.
Counsel for the respondent submitted that the assessment of whether a count is adequately particularised such that it can be distinguished from other similar conduct will depend on the nature of the allegation in the particulars provided. It was submitted that the particulars provided varied as between each count. The interviewer attempted to identify an example of each of the categories and elicit details of that example with varying success. It was submitted that Count 1 lacks any details when it comes to a particularised event, but that Count 2 is admittedly reasonably particularised. Counts 3 and 4 are better particularised, but nonetheless contain generalised statements.
It was submitted that Count 1 suffered from latent ambiguity. Although KM identified a sexual act that she says happened on many occasions in the respondent's bedroom, she was unable to identify features of a specific time when it occurred. She repeatedly spoke of what would happen "sometimes". Even if it were to be assumed that there may have been some times when the features described were different, KM's responses speak of more than one occasion when that feature was present.
It was conceded that Count 2 does not appear to suffer from latent ambiguity. KM was able to describe some detail of the particular instance of digital penetration.
The respondent contended that Count 3 suffers from latent ambiguity because KM makes clear that she is suggesting that that type of conduct happened on more than one occasion and that it happened with both the respondent and his brother. It was submitted that the details that distinguish this incident are limited, notwithstanding that KM says that it happened in the grandmother's room and that she told the respondent to get off her. In this way, it is to be inferred that KM is describing a course of conduct rather than a specific event.
Finally, it was conceded in relation to Count 4 that some detail is provided in that the event was witnessed by the sister. KM's account of that occasion is not as detailed as in relation to Count 2, but is more detailed than Counts 1 and 3.
In circumstances where the sufficiency of particulars varies as between the four counts, it was submitted that if the Court were of the view that one or more of the counts was adequately particularised, the Court could quash the order of the trial judge and substitute an order staying the prosecution until adequate particulars were provided as to those counts that suffer from latent ambiguity.

Consideration

I am satisfied that the Crown's interlocutory appeal should be allowed and the stay lifted in this matter.
Counsel for the respondent on this appeal properly conceded that the appeal should be allowed in relation to Count 2 on the indictment in that the complainant was able to describe a particular instance of digital penetration in support of that count. It was further conceded that some detail is provided in relation to Count 4 as the event was witnessed by the complainant's sister. Although the respondent's position was that Counts 1 and 3 suffer from latent ambiguity, I am satisfied that sufficient details have been provided by the complainant in relation to all four counts. The particulars are extracted above at [8] - [14] and I do not repeat them here. The detail provided in the complainant's interviews is sufficient for the accused to know the nature of the charges brought against him. I am satisfied that the concessions made by the respondent in relation to Count 2 and (albeit less forcefully) in relation to Count 4 were properly made.
It seems to me that the learned trial judge misapplied the principles derived from the decision of the High Court in S v The Queen to the facts of the present matter. Although his Honour quoted extensively from that decision in his reasons for granting a stay, that case was distinguishable from this matter on a number of bases, some of which are as follows.
Unlike in the present case, the applicant in S v The Queen had unsuccessfully sought particulars of the three counts prior to arraignment. There was no request for particulars made by the accused in this matter. In fact, the trial advocate appearing for the Crown had already given an opening address before the first jury was discharged. No complaint was made regarding any absence of particulars at that time.
In S v The Queen, the evidence disclosed a number of offences with nothing to identify which offences were those charged beyond the fact that the complainant in that matter remembered the first time that intercourse took place and also the first time that her father wore female clothing during the assault. In S v The Queen, the first time that sexual intercourse occurred may have taken place outside the period covered by the first count on the indictment. Furthermore, the first time that the applicant wore female clothing could have pertained to any of the three counts on the indictment. None of those features, or similar features, was present in this case.
The periods of the second and third counts in S v The Queen overlapped such that, if an occasion fell within an overlapping period, it was not possible to determine whether it was an offence charged in Count 2 or Count 3. The trial proceeded in a manner that made it impossible to deal with questions of the admissibility of similar fact evidence. As a result, the jury could have convicted the applicant on the basis of a general propensity to commit offences of the kind charged and without any specific act in mind. The jury was invited to convict the applicant so long as they were satisfied that at least one act of carnal knowledge occurred within the particular period specified. They were not instructed that they all had to agree on which particular act of carnal knowledge was found proved in respect of each count. Again, none of those features was present in this case.
Further, in S v The Queen, the applicant was denied the opportunity to test the credit of the complainant by reference to the surrounding circumstances that would have existed if the acts charged had been identified in relation to some more precise time or by reference to some other event or circumstance. Finally, the applicant in S v The Queen may have faced difficulty in pleading autrefois convict or autrefois acquit in the event that he were charged in the future with similar offences alleged to have occurred in the same period of time.
None of the above factual matters present in the appeal to the High Court in S v The Queen is present in this manner. On the contrary, the relevant time is confined to the period during which the complainant's family was living at the home of the respondent. All counts on the indictment are said to have occurred during that time. The complainant is able to identify where in the house particular acts took place and surrounding circumstances in relation to each of the four offences charged. In relation to Count 4, there is the additional evidence that LM witnessed the act and is available to give evidence of that fact.
As stated above, the stay of the indictment in this matter came about in circumstances where there was no complaint about any lack of particulars nor any formal request for particulars ever made. KM has been interviewed twice. The transcript of those interviews reveals that the questioner sought to focus KM's attention on specific allegations rather than generalities. All of the relevant particulars are contained in those interviews. Not only has the Crown supplied sufficient particulars of each count as contained in those interviews and in the opening address by the trial advocate, it is difficult to see how further particulars could have been obtained in any event, given the complainant has been interviewed twice and those interviews will constitute her evidence in chief at the trial.
The concern of the trial judge is that the four counts identified by the complainant are not four individual incidents that she independently remembers but, rather, example of assaults that happened frequently as between which she is unable to distinguish. If that were indeed the case there may be some force in his Honour's finding, but I am not satisfied of this based on the transcripts of her recorded interview. I am satisfied that the interviews disclose that the complainant is able to provide particulars of four discrete events. For example, in relation to Count 1, she recalls being told to "shush". If the trial judge were correct, that would mean that every time the respondent caused KM to fellate him, someone came by and she was told to "shush". It is to be accepted that KM also remembers other incidents, but on the current state of the evidence I am not satisfied that this means that she does not recall independently the four counts on the indictment.
The purpose of particulars is to permit the accused to know the case that he or she is to meet and, if the allegations are denied, to enable him or her to mount a defence. The degree of particularisation required will differ from case to case. In the present case, the alleged offences took place over a fixed and relatively short period of time during which the respondent and the complainant KM were living in the same house. It was not suggested that this is the sort of trial in which alibi evidence might be relevant. These matters are relevant to the question of the sufficiency of the particulars.
The submission made on behalf of the respondent in this Court that the complainant KM tends to drift from one type of complaint to another and from the specific to the general is not without some force. Despite this, I am satisfied that sufficient particularity exists for the respondent to understand the charges against him.
There is an important distinction between having sufficient particulars and having material with which to cross-examine a complainant that suggests that he or she might be confusing the incident with other incidents. In this regard, it is pertinent to note that these proceedings are at a different stage to that considered by the High Court in S v The Queen. It might well be the case that KM's specific allegations in her recorded interviews become less specific after cross-examination, but that is a different question.
There is no doubt that, as is the case for many prosecutions for sexual offences said to have been committed against children, the trial in this matter will not be without its complexities. The indictment relies upon the evidence of three siblings. The Crown relies upon the evidence of the three complainants as to the charged offences as tendency evidence. In addition, there is also considerable context evidence of a non-specific nature to be adduced at the trial. It may be that the complainants, and in particular KM, will become confused during cross-examination as to the circumstances of the offences charged as opposed to the other context evidence. That is a matter relevant to the question of whether the Crown can prove each of the elements of each offence on the indictment beyond reasonable doubt. It is not a basis upon which to stay the indictment.
I propose that the Court allow the appeal and set aside the stay ordered by the primary judge on 10 July 2017.

Endnote

LexisNexis Butterworths, Criminal Practice and Procedure NSW, vol 1, (at Service 156), [8-s 61I.7].

Amendments 16 August 2019 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2019

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