R v M

IN THE COURT OF CRIMINAL APPEAL CCA 60120/01 DC 99/21/1168

HEYDON JA DUNFORD J BUDDIN J 12 March 2002

R v M Judgment 1 HEYDON JA: After a trial lasting four days before Job ADCJ and a jury, the appellant was convicted on the first three counts of the indictment against him. The appellant was represented by counsel, though not the counsel who appeared on this appeal. 2 The first count was: "[The appellant on] 20 December 1998 … did assault [the complainant] and … he … did, at the time of such assault, commit an act of indecency upon the said [complainant] she then being a child under the age of 10 years namely of the age of 6 years."

The second count was: "[The appellant on] 20 December 1998 … did assault [the complainant] and … he … did, at the time of such assault, commit an act of indecency upon the said [complainant] she then being a child under the age of 10 years namely of the age of 6 years."

These counts alleged contraventions of s 61M(1) of the Crimes Act 1900. 3 The third count was: "[The appellant on] 20 December 1998 … did have sexual intercourse with [the complainant] a child then under the age of 10 years namely of the age of six years."

This alleged a contravention of s 66A of the Crimes Act . 4 The appellant was sentenced to six years imprisonment on the third count, which, allowing for time served, was a sentence of five years ten months and fourteen days dating from 22 February 2001. A non-parole period of three years and four months was fixed. On the other two charges the trial judge imposed a fixed term of two years and six months dating from 22 February 2001 to be served concurrently with the sentence on the third count. 5 The appellant appeals against the convictions, and seeks leave to appeal against sentence.

The factual background 6 The factual background as narrated by the trial judge in his remarks on sentence was as follows. In considering it, it is to be remembered that the appellant denies that he was the criminal. "The complainant was born on 15 January 1992 and was six years and 10 months old at the time of the offences committed by the prisoner. She and her mother and the complainant's two brothers lived next door to the prisoner and his wife. The prisoner kept birds and the complainant was a frequent visitor to the prisoner's home and the complainant liked to help look after the birds. The prisoner had promised the complainant a baby budgie for her 7th birthday. On the day of the offence the complainant and her family had just returned from holidays. She went into the prisoner's premises. The prisoner's wife had left to go to work. During the morning whilst in the spare bedroom the complainant was assisting the prisoner vacuum a … bed cover. At one stage the complainant was on the cover and the prisoner placed the nozzle of the vacuum cleaner onto her legs and ran it up her legs. He pulled the leg of the complainant's panties aside and placed the nozzle of the cleaner onto her genitals [count 1]. The sequence of the next two events is not clear. The prisoner did take hold of the complainant's wrist and made her rub his penis up and down for a couple of seconds [count 2]. The prisoner lowered the shorts he was wearing and the complainant noticed that he was not wearing underwear. The prisoner put his legs on either side of the complainant and placed his penis into her genitalia. The complainant's evidence was that 'it went in a little bit' [count 3]. After these events the prisoner and the complainant cleaned some of the bird cages. The prisoner supplied the complainant with some lunch which she took home with her. In the afternoon she went back to the prisoner's home and was speaking to the prisoner and his wife. That evening the complainant told her mother of some of the things that the prisoner had done to her. The mother saw that the complainant's genitalia was red and appeared to have some abrasions. The next day the complainant was examined by a doctor and the doctor found that there were red marks on the top of the child's legs and other areas, that there was reddening of the labia minora and labia majora and the labia majora was too tender for the proper examination to be carried out. The complainant complained both to her mother and to the doctor of pain when urinating. The injuries fortunately were not serious, for a week later when the complainant was again examined it was found that all of the injuries had cleared up and it was noted that the hymen was intact. The prisoner was interviewed by the police and denied that he had ever interfered with the complainant in any way. He went to great lengths to tell the police that the complainant was a nuisance and often coming to his home and getting in his way in his efforts to do his duties. However he did tell the police that he did not wear underwear. The prisoner did not give evidence at his trial."

The Crown case 7 The appellant's written submissions summarised the Crown case, and put submissions about alleged weaknesses in it, in the following way. "The Complainant gave evidence that she used to visit the Appellant's house and that sometimes the Appellant was there with his wife … and that sometimes he was there by himself (19/02: T5). She said that she went over to the Appellant's house on the morning of 20 December 1998 which was the day after she had returned from holidays The Appellant was there by himself, his wife having gone to work. She said that she helped the Appellant clean some bird cages (he kept caged birds in his garage and in his backyard). She said that she then helped the Appellant with some housework (T7). They went to the spare bedroom and the Appellant was using a vacuum cleaner to 'get the wool off the lammy', that is vacuuming the wool underlay on the bed. She said that whilst she was on the floor the Appellant started rubbing the nozzle of the vacuum cleaner over her legs getting closer to her vagina. He then rubbed the vacuum cleaner on her vagina: 'he started rubbing it, like putting it on my fanny' (T8: Count 1). At the time she was wearing a dress and underpants. The Appellant allegedly pulled her underpants to one side when he put the vacuum cleaner on her vagina. The Complainant said that the Appellant then placed his penis into her vagina and that it went in 'a little bit' (Count 3, or in the alternative Count 4). He had his pants down and he wasn't wearing any underpants. It was the first time that she saw his penis (T11-12). She then said that he took her wrist and made her 'rub his penis up and down' (T12: Count 2). At some point of time she saw 'yellow pussy stuff' come out of his penis (T12). The Complainant gave evidence that after the incident she went out the back with the Appellant and helped him with the cages. The Appellant made her some pasta for lunch, which she took home to eat. She said that before she left the Appellant told her 'don't tell anyone because we will get in trouble' (T16). After lunch she returned to the Appellant's house. Later she went back home. Before going to bed she went to the toilet. She said that she told her mother that the Appellant 'went up and down my leg with the vacuum thing' and that 'he put his doodle in my fanny' (T15). In cross-examination the Complainant agreed that in her statement to police she said that the vacuum cleaner incident occurred when she was lying on the bed (20/2: T10). When reminded of her statement she said that she thought she was on the bed when the Appellant touched her with the vacuum cleaner (and not on the floor as she had said in her evidence in chief). She also said that after he pulled her underpants to one side she held them in that position (not having said that in chief). She said that the vacuum cleaner was small (T14). She was 'pretty sure' that she told her mother that night that the Appellant put his 'doodle' in her 'fanny' (T21). At T22, the Complainant said that she was sure the vacuum cleaner incident came first but she wasn't sure whether the rubbing of the penis or the penis in the vagina came next (T22). The Complainant agreed that in her police statement she said that there were two occasions when the Appellant did something with the vacuum cleaner. She agreed that her earlier evidence was that there was just one occasion. She said that 'he must have done it two times but I just probably forgot' (T23). [The] Complainant's mother gave evidence that her daughter told her in the evening that she had a secret and that she said 'when I was at [the appellant's] today he made me rub his penis' (or perhaps she used the word doodle) and that at some point he 'rubbed his doodle against my fanny' and 'put it in her hole' (T9). She said that the complainant said that it hurt and that she noticed the genital area was red and grazed as well (T7). She said that she put the underpants and dress that the Complainant was wearing into a bag which was later handed over to [a medical practitioner]. In cross-examination she agreed that she had said nothing in either of her two statements about her daughter telling her on the night of the incidents that the Appellant had put his penis in her vagina (T14). She then gave evidence that to the best of her recollection her daughter did not say anything on the night of the incident about the Appellant putting his penis in her vagina or fanny (T15). [The medical practitioner] gave evidence that she examined the Complainant on 21 December 1998 who complained of soreness in the genital area. The Complainant said that the Appellant had hurt her 'rude part' with a vacuum cleaner (20/2: T5). The Complainant initially told [the medical practitioner] that the Appellant didn't do anything else and that nothing else happened. After further questioning, the Complainant said that his 'rude part went in there', pointing at her vaginal area (T6). She said that nothing came out of his penis (contrary to her evidence at the trial). Upon examination [the medical practitioner] saw redness of the labia minora. The hymen was intact and 'normal'. There were a few scattered red non-tender spots up to half a centimetre in diameter on the mons pubis. The marks 'could have been caused by the use of a suction device' or some other cause (T7). As mentioned above [the medical practitioner] was handed underpants, a dress and a nightie, items which were later forwarded to the Government Analyst for examination (Suzanne Briese). In cross-examination [the medical practitioner] said that lack of sperm in a semen could be due to the donor having had a vasectomy ([the complainant's mother's friend] gave evidence that he had had a vasectomy (T33)). Other reasons included the donor being sterile or drug use by the donor. Although questions asked in re-examination regarding the effect of steroids on the presence or otherwise of sperm were rejected, it is submitted that the effect was very prejudicial in the context of the trial. The jury having heard the question were left with the impression that [the medical practitioner] was then not allowed to give her answer, arguably prejudicing the Defendant more than if the answer had been given. Suzanne Briese, forensic biologist, gave evidence that she was given a sexual assault investigation kit to examine (20/2: T23). The kit included the underpants worn by the Complainant, her dress, her nightie and vulval and oral swabs. Ms Briese detected a semen stain (10cmx5cm) in the crutch area of underpants. She gave evidence that the semen stain 'most likely' originated from the inside of the underpants. A smaller stain (about the size of a 5 cent coin) was also located on the outside front of the underpants. Semen was not detected on the oral or vulval swabs. There was no evidence that Ms Briese examined the dress. It is submitted that her failure to examine the dress is of significance having regard to the evidence given by [the complainant's mother's friend] (see paragraph 2.11 below). Blood samples were taken from the Complainant, the Appellant, [the complainant's mother's friend] and the Complainant's two brothers … . Robert Goetz (Bachelor of Science) gave evidence that he conducted protein typing analysis (PGM system) using the above blood samples and the underpants that had been examined by Suzanne Briese (20/2: T30). Both of the Complainant's brothers were excluded as being possible donors of the semen found on the underpants. He found that: · the underpants had a PGM type '2+1+'. · the Appellant had a PGM type '2+'. · [the complainant's mother's friend] had a PGM type '2+1+'. · the Complainant had a PGM type '1+'. Mr Goetz concluded that about 25% of the population could have contributed to the semen on the underpants. Either the Appellant or [the complainant's mother's friend] could have been the contributor of the semen (T31). In cross-examination Mr Goetz was asked whether there was 'any way of determining the likelihood of it being one against the other? That is [the complainant's mother's friend] versus the Accused …?' Mr Goetz said that there was not. He agreed that having regard to his scientific knowledge, it was not possible for him to say 'whether it might have been more likely one or the other ' (T33). Mr Goetz also found that the semen stain detected was devoid of sperm cells. As such it was impossible to take the testing any further. DNA testing could not be carried out (T33). The Appellant's submissions as to the significance of Mr Goetz's evidence are set out at paragraph 4 below. [The complainant's mother's friend] gave evidence that the Complainant went next door to the Appellant's house about mid-morning on 20 December 1998 and helped him with his birds (20/2: T34). She came back home to eat lunch and then he, [the complainant's mother] and the Complainant went shopping. When they got back the Complainant went next door again. [The complainant's mother's friend] and [the complainant's mother] started to watch a video before [the complainant's mother] left to go for a walk with a friend. Whilst he was alone in the house [the complainant's mother's friend] said that he put on an R-rated movie and masturbated and ejaculated into his hand (T35). At the time he was sitting on a three-seater lounge. He then said that [one of the complainant's brothers] came home, then the Complainant, and then [the complainant's mother]. [The complainant's brother] (who would have been 15 or 16 in December 1998) did not give any evidence in the trial. The effect of [the complainant's mother's] evidence was that her son … arrived as she was leaving 'because he saw me going, he said 'I got home just after you left' (20/201: T15). She made no mention of any such conversation with her son in her police statement (T16). It is submitted that on her evidence [the complainant's mother's friend] would not have had enough time to do what he said he did. Contrary to her mother's and [the complainant's mother's friend's] evidence, the Complainant said that when she arrived home from next door [the complainant's mother's friend], her two brothers and her mother were present. It is submitted that these contradictions and the Crown's failure to call [the complainant's brother] are significant as bearing on the fact of whether [the complainant's mother's friend] was alone with the child at any time so as to give him the opportunity for some sexual impropriety. [The complainant's mother's friend] said that after the Complainant got home she sat on the lounge with him and that she sat in the position he had been in when he was masturbating (T36-7). Under cross-examination [the complainant's mother's friend] agreed that he said nothing to police in his first statement dated 29 March 1999 about the masturbation and ejaculation (T38). He said he telephoned Det Carroll on 6 September 1999 and asked to make another statement because [the complainant's mother] had asked him 'was there any reason why there'd be semen around' (T38). He said that he told her there would be and that he'd better speak to Jodie Carroll. He agreed that he had a vasectomy on 13 February 1997 (which would account for there being no sperm in the stains on the Complainant's underpants if the stains emanated from [the complainant's mother's friend]. On the other hand, the Appellant's wife gave evidence that some months after December 1998 she conceived a child with the Appellant (see paragraph 3.2 below) and there was no evidence in the trial that he was sterile for any reason as at December 1998. In cross-examination, [the complainant's mother's friend] could give no explanation as to how this semen could have got on the area identified by Ms Briese as containing semen. He denied sexually abusing the Complainant on 20 December 1998 (T39). It is submitted that in the context of [the complainant's mother's friend's] evidence Ms Briese's failure to examine the Complainant's dress assumes great significance. If [the complainant's mother's friend's] semen ended up on the Complainant's underpants one would have expected to find his semen on her dress given that, on his evidence the only way she could have come into contact with his semen was by sitting on the couch (presumably whilst wearing her dress). If the dress had been tested and showed no trace of semen, it is submitted that such evidence would have had the potential to significantly undermine [the complainant's mother's friend's] evidence and raise the real possibility that he was involved in some kind of sexual impropriety with the Complainant (which he denied). This in turn would have undermined the Complainant's assertion that no such impropriety occurred and her credibility generally."

The defence case 8 The appellant's written submissions summarise the defence case as follows. "The Defendant did not give evidence at the trial, relying on his record of interview with police which attached a document he had prepared at the time that he was served with an Apprehended Violence Order. The Appellant denied all of the allegations, which were put to him in his record of interview He gave a detailed account of the events of 20 December 1998. No evidence was led to explain the context in which the Appellant elected not to give evidence (see paragraph 6 below). The Appellant's wife … gave evidence that she and the Appellant had had a child born on 19 February 2000 and that the child had been conceived in the normal course (21/2: T4). She said that she went to work on 20 December 1998 and that the Complainant came over some time after she got home. She said that the Complainant was 'fine" and that she asked for an ice-cream and a drink. In cross-examination she agreed that her husband was into bodybuilding but that he wasn't training at the time because of his bowel problem (T6)."

Ground 3 9 It is convenient, in understanding other grounds of appeal, to deal first with Ground 3. Ground 3 is: "The verdicts were unreasonable and incapable of being supported by the evidence." 10 The appellant submitted: "The Appellant contends that a jury acting reasonably and properly ought to have entertained a reasonable doubt so as to warrant appellate intervention Gipp (1998) 196 CLR 106; Jones (1997) 149 ALR 598; M (1994) 181 CLR 487; Morris 163 CLR 454. In support of this ground the Appellant relies on: · the various submissions set out in paragraph 2 above as to the frailties in the Complainant's evidence and the various shortcomings in the Crown case. · concerning the s 66A count, the inconsistency between the Complainant's evidence that she told her mother on the night that the Appellant had 'put his doodle in her fanny' and the mother's evidence that to the best of her recollection the Complainant hadn't said anything about that on the night. The Complainant's initial response to [the medical practitioner] is noted (that other than the vacuum cleaner incident he didn't do anything else and that nothing else happened). [The medical practitioner's] evidence that the hymen was intact and 'normal' is also noted in relation to the s 66A count. · the significant problem faced by the Crown (particularly having regard to the report of Dr McDonald) concerning the possibility of some sexual impropriety between [the complainant's mother's friend] and the Complainant and the adverse consequences for the Complainant's credibility given her denials in that regard." 11 In evaluating these submissions it is necessary initially to keep out of account Dr McDonald's report, since it was not before the jury. Its relevance is to Grounds 1 and 2. However, at a later stage the significance of Dr McDonald's report in conjunction with the other Ground 3 arguments will be considered. 12 The Crown's submissions in answer were: "It was open to the jury, upon the whole of the evidence in the trial of the appellant, to be satisfied beyond reasonable doubt that he was guilty of the offences for which he was found guilty: Jones v The Queen (1997) 191 CLR 439, 450-1 per Gaudron, McHugh & Gummow JJ; further in answering the question whether it was open to the jury to be so satisfied, 'the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': see M v The Queen (1994) 181 CLR 487, 493 and Jones v The Queen (supra) 451 per Gaudron, McHugh & Gummow JJ. The frailties in the complainant's evidence and the shortcomings in the Crown case set forth in paragraph 2, and in particular paragraph 2.4, of the appellant's submissions are not such that it was not open to the jury to be so satisfied, and the jury had the advantage of seeing her give evidence; although the complainant's mother gave, in cross-examination, evidence of complaint that differed from that of the complainant, it was open to the jury to accept the complainant's account. The evidence of [the complainant's mother's friend] Transcript, 20 Feb 2001, pages 35-6 and of the complainant's mother (Transcript, 20 Feb 2001, page 15) (see paragraph 2.11 of the appellant's submissions) was not such that the jury could have found that there was not available time for [the complainant's mother's friend] to have done what he said he had done or that he could not have done so; since [the complainant's brother] could not have known how long [the complainant's mother's friend] was alone his evidence on this point is not shown likely to be relevant; it was well open to the jury to accept [the complainant's mother's friend's] account. The evidence of [the complainant's mother's friend] (Transcript, 20 Feb 2001, page 36) and of the complainant (Transcript, 19 Feb 2001, page 14) was that [the complainant's brother] was at home with [the complainant's mother's friend] when the complainant returned; the evidence of the complainant's mother referred to in paragraph 2.11 (Transcript 20 Feb 2001, page 15) was also to that effect, that is that [the complainant's mother's friend] and the complainant were not alone at the relevant time; it is not shown that the evidence of [the complainant's brother] could have been relevant. It is not shown that the sperm detected on the complainant's underpants was that of [the complainant's mother's friend] or that it was there as a result of any sexual impropriety committed by him against the complainant; both [the complainant's mother's friend] and the complainant denied that any such impropriety took place; the evidence goes no further than that of Mr Goetz (Transcript, 20 Feb 2001, page 31) that the sperm could have been that of [the complainant's mother's friend] (and also could have been that of the appellant) and the evidence of Dr McDonald can take it no further; there is nothing to suggest that the circumstances were such that absence of sperm on the complainant's dress would have had any bearing, since the sperm on the complainant's underpants was not shown to be that of [the complainant's mother's friend]; accordingly it is now shown that the failure of Mr Briese to test it for sperm is of any significance. The normal appearance of the hymen and the lack of injuries noted by [the medical practitioner] (Transcript, 20 Feb 2001, page 6) (who also noted that the hymen was located relatively deeply) did not show that there had been no sexual penetration of the complainant's vagina; the complainant's evidence was that the appellant was wearing no underpants at the time: Transcript, 19 Feb 2001, page 19; this was supported by the answer given by the appellant in answer to Question 227 in the ERISP (Transcript of ERISP, Exhibit K) that he did not wear underwear. This answer strongly supports the complainant's evidence. This Ground of Appeal ought to be rejected." 13 The following issues arise. It is convenient initially to examine them separately to see whether any individual point supports the ground, and at the end consider whether any two or more of them in combination do so.

Weaknesses in the complainant's evidence Differences in relation to the evidence of complaint to the police 14 One point taken in the appellant's submissions is that in chief the complainant said the appellant had touched her with the vacuum cleaner while she was lying on the "lammy", and it was on the floor; but in cross-examination she admitted that she told the police that she was lying on the "lammy" while it was on the bed; and in cross-examination she also said she thought she was on the bed, and that the "lammy" was moved to the floor only after the vacuum cleaner touched her. She was asked to explain this and said: "Q. Is there any reason why you make a mistake about where you were when I asked you those questions earlier? A. Because then probably after that it was on the floor. Q. So having looked at those questions and answers you say the lambie was placed on the floor after you had the vacuum cleaner placed on your fanny, is that right? A. Yes, I think so." 15 The jury was entitled not to treat this divergence as sufficient to raise a reasonable doubt about the central parts of her testimony.

Holding the complainant's underpants 16 In cross-examination the complainant said that just before the appellant penetrated her, he moved her underpants to one side, he told her to keep them there, and she did so. She did not give evidence about holding them in that position in chief; indeed she said in chief that her underpants were down. In cross-examination, after the evidence just referred to, she was asked: "Q. Did you tell us about that yesterday? A. I don't know. Q. I want to put this to you, you haven't told anyone before today about holding your underpants to the side, do you agree or disagree with that? A. I think I disagree because I think I've told … (not transcribable) … of that before." 17 These assertions were not contradicted. The jury was entitled not to treat this divergence, either, as sufficient to raise a reasonable doubt about the central parts of the complainant's testimony.

Differences between the complainant's evidence of complaint to her mother and her mother's evidence 18 In chief the complainant said she had told her mother that the appellant penetrated her. In cross-examination she said twice that she told her this. The mother said in chief that the complainant had complained of being penetrated. In cross-examination she agreed that in her police statements she had not recorded that aspect of the complaint. The evidence continued: "Q. If she told you that, why - is there any reason why it's not in your statement made ten days after the event? A. Well I was under a fair bit of stress and duress over this and, when I gave my statement 'cause just, I must have omitted it." 19 In view of the confused state of the mother's evidence, the jury was entitled to prefer the complainant's, particularly, as will be seen, a like complaint was made to the medical practitioner the following day.

Two vacuum cleaner incidents or one 20 In chief the complainant described what happened with the vacuum cleaner thus: "Q. Are you able to tell us what happened? A. Well he was rubbing it up and down my legs and each time it went up my leg it got closer and closer to my fanny and then he started rubbing it, like putting it on my fanny." … Q. Now did anything happen to the underpants that you were wearing then when he put the vacuum cleaner on your fanny? A. He pulled them to one side. … Q. What happened with the vacuum cleaner? A. Then he put it on my fanny. Q. Which part of the vacuum cleaner did he put on your fanny? A. The top. Q. Now was the top of the vacuum cleaner on your clothing or under your clothing, like on your underpants or under your underpants? A. Under my underpants. Q. Was it on your skin? A. Yes." 21 In cross-examination she said there was only one incident with a vacuum cleaner. She told the police there had been two. The evidence continued: "Q. That seems to be different to what you remember today about there only being one time? A. Yes. Q. Well what -- A. So he must have done it two times but I just probably forgot. Q. So you've made a mistake today have you? A. Yes." 22 Again the jury were entitled not to treat this as raising a reasonable doubt about the central aspects of the complainant's evidence.

Complaint to medical practitioner 23 When the complainant saw the medical practitioner the next day, she said initially that her genital region had been hurt by the vacuum cleaner. The medical practitioner said "Did he do anything else?", and the complainant said "No". After further questions the complainant complained of penetration, but denied that anything had come out of the appellant's penis. The complainant's evidence was that it had. 24 The medical practitioner recorded a statement by the complainant that she was worried that the appellant would repeat his conduct. There is every reason to suppose that she was nervous during the consultation with the medical practitioner. The jury were entitled to treat the delayed way in which the complaint of penetration was made to the medical practitioner as not being inconsistent with its occurrence, and they were entitled to accept her evidence that something had come out of the appellant's penis even though she told the medical practitioner the opposite.

The problems in the evidence taken in combination 25 Whether taken separately or together, the divergences in the complainant's evidence and the contradictions between it and other evidence were not sufficient to make it obligatory for the jury to have entertained a reasonable doubt either on the third count or on either of the first two. The complaint to the medical practitioner of penetration was made only moments after the denial that the appellant did anything other than hurt her with the vacuum cleaner. That complaint tends to confirm her evidence in chief. The jury were entitled to reject her mother's evidence that she did not complain about penetration; or, alternatively, if they accepted it, were entitled to accept the complainant's evidence that penetration had occurred even though she had not complained about it and wrongly said that she had.

The state of the hymen 26 The appellant submitted that the medical practitioner's evidence was that the hymen was intact and appeared normal. That is to take it out of context. What the medical practitioner recorded was: "It was difficult to separate the labia majora as this was painful and it was therefore difficult to visualise the deeper structures clearly. The labia minor, that's the inner lips were generally reddened. The hymen, which was located relatively deeply and was only visualised briefly, appeared normal, no injuries were noted. That means to the hymen. The urethra and surrounding area were not visualised due to pain. The urethra is the opening that you pass urine through. There was posterior labial fusion. That means that the inner lips were slightly joined together posterially, that's a finding that you sometimes find in young girls." 27 That account is entirely consistent with the small degree of penetration of which the complainant testified ("a little bit"). The medical practitioner also recorded the complainant's complaints of genital soreness and pain on urination, including urination just before the interview.

Rejected question in re-examination 28 The opening questions in the cross-examination of the medical practitioner were: "Q. Doctor a question of a general nature before I ask you about your examination. Tell me this - if there was a semen sample collected which had no sperm in it there might be a variety of reasons why there would be no sperm, correct? A. Yes. Q. One of those reasons might be if the donor of the semen sample had had a vasectomy? Is that right? A. Yes. Q. Another reason might be if the donor of the semen sample was sterile? That it was incapable of producing spermatozoa? Is that right? A. Yes. Q. Can you think of any other reason why there might be a sample of semen absent of sperm? A. There might be temporary reasons for not having sperm in the semen. Drug-related for example. Q. And what type of drugs might -- A. I wouldn't be in a position to comment - I don't consider myself to be an expert on what drugs would cause that. Q. So that the three possible explanations that would occur to you would be - drug related; vasectomy or sterility? Is that right? A. They would be three, yes. Q. Yes. And they're the only three that you can advance at this stage? A. I'm not, I can't think of any others just at the moment." 29 The re-examination was as follows: "Q. Doctor relative to the initial questions that my learned friend asked you about possible reasons for there being no sperm in semen - you suggested that a third reason could be drug-related. Now when you refer to drug-related are you, what types of drugs are you referring to? A. I already declined to answer that question. I mean for example people who are on medication for cancer, that would be an example but I don't consider myself - I'm not a urologist and I'm not an expert on sperm counts. Q. When you speak of drugs is a steroid a drug that you would class as a drug? A. Yes. Q. And could steroids taken by persons wanting to build up their body - can they be I should say? A. Can steroids be taken -- Q. Yes. A. Yes. Q. And could the intake of or ingestion of steroids be a possible or probable cause of there being no sperm in semen? OBJECTION." 30 If the fourth question in re-examination was inadmissible, so were the first three. The basis of inadmissibility would no doubt be lack of expertise. According to the appellant, the asking of that fourth question (not "questions", as the written submissions say) was "very prejudicial" in its effect. Whether that is so can be gauged from the reaction of those present at the trial. Counsel for the appellant, having successfully objected, went no further. For example, counsel did not apply for a discharge of the jury, or demand a judicial comment at that point, or record an intention to seek a special direction in relation to the matter when the trial judge summed up. The trial judge did not mention the re-examination in summing up, only the cross-examination. If counsel for the appellant had thought that what had happened was prejudicial, a special direction could have been requested just before or during the summing up. None was, either before it began, or when the court adjourned near the end of the summing up on 21 February 2001, or when it concluded on 22 February 2001. Further, it is not correct to say that the jury, having heard the rejected question, "were left with the impression that the [medical practitioner] was … not allowed to give her answer, arguably prejudicing the Defendant more than if the answer had been given". It is highly probable that the answer would, for the third time, have been that the medical practitioner was insufficiently expert to answer the question. It is also highly probable that the jury would have inferred that that answer would have been given had there been no objection.

Impropriety by the complainant's mother's friend and the complainant's dress 31 The appellant submitted:

(a) that the failure by Ms Briese to examine the complainant's dress is of "great significance";

(b) that if the friend's semen ended up on the complainant's underpants one would have expected to find his semen on her dress given that, on his evidence, the only way she could have come in contact with his semen was by sitting on the couch while wearing her dress;

(c) that if the dress had been tested and showed no trace of semen, that would have had the potential to undermine the friend's evidence and raise the real possibility that he had engaged in sexual impropriety with the complainant; and

(d) that that in turn would have undermined the complainant's denial of impropriety with him, and hence her credibility generally. 32 As to point (a), whether Ms Briese examined the dress is uncertain. Certainly counsel for the appellant did not ask her if she did. If the failure to examine the dress were in truth of "great significance", it is surprising that it was not distinctly established. That it was not distinctly established suggests that it was not in truth of any significance at all. 33 As to point (b), the friend said his semen did not get onto the lounge on which the complainant later sat. He also denied doing anything which would have caused his semen to be in the complainant's underpants. If his semen had been in the complainant's underpants, it is possible that it could have been on her dress; but the submission does not establish that his semen was on her underpants. 34 As to point (c), absence of semen on the complainant's dress could not have undermined the friend's evidence, and hence step (d) does not follow.

Mr Goetz's evidence 35 The appellant's written submissions assert that the significance of Mr Goetz's evidence is set out in paragraph 4 of those submissions. The reasoning in paragraph 4 depends on the reception of Dr McDonald's evidence and thus is to be put on one side for the present.

The appellant's points considered in combination 36 Even if one takes any two or more of the arguments assembled in support of Ground 3 together, the Ground is not made out. That is so partly because of their inherent weakness and partly because of the strength of the Crown case. The medical practitioner was confident that there was redness and soreness in the complainant's genital region, and the complainant's mother observed similar phenomena also. The medical practitioner said there were two possible causes: injury and infection. She took a swab; a laboratory analysis found no infection; and this led her to be "reasonably confident" in excluding infection as a possible cause. That left injury. The medical practitioner also saw spots in the genital region which were tender, unlike marks on her chest. The medical practitioner thought that a vacuum cleaner could have caused them. So far as the appellant's arguments were directed to the suggestion that nothing unlawful had happened to the complainant, they inevitably fail. There was evidence confirming penetration and there was evidence confirming an indecent assault with the vacuum cleaner. 37 On the question of who caused her harm, the evidence of the complainant was confirmed in part by the appellant, who admitted to the police that he habitually did not wear underpants; in part by the immediate complaint made to the mother on 20 December; in part by the complaint made to the medical practitioner the next day; and in part by the complaint made to the police the next day. These items of evidence did not amount to corroboration in the sense of that term as used in the common law rule which preceded the enactment of the Evidence Act, but they did show consistency and they were evidence of the facts asserted. The complainant's evidence was also confirmed by the fact that the complainant seemed depressed on her return home at lunchtime with the lunch which the appellant had prepared. There is also no question that the appellant had a lengthy opportunity to do what the complainant said he did. 38 The jury were confronted by several disputes on matters of primary fact, largely turning on their assessment of oral evidence. They were assisted by a summing up of which no complaint was made, either at the time or before this court. The trial judge warned them of the need for caution in relying on the evidence of a single witness who was a young child testifying about events over two years earlier. He also dealt with the key issues which the appellant now raises on appeal, particularly concerning divergences in complaint and other difficulties in the complainant's position. 39 If the complainant's condition had not been caused by the appellant, then there was only one other possible cause: the friend. The friend denied responsibility. There was substantial evidence that his opportunity to misconduct himself with the complainant was extremely limited, and for practical purposes non-existent. If he and the complainant were accepted on the main parts of their evidence, the Crown case was strong. 40 Indeed, the appellant's case depends on the propositions that:

(a) the complainant is to be disbelieved completely in relation to her evidence against the appellant and in relation to her denial of misconduct by the friend;

(b) the complainant's mother is to be disbelieved at least as to whether her son told her he arrived home just after she left and as to whether he was in the house when first the complainant and then the mother returned;

(c) the friend is to be disbelieved in saying that the son came home before the complainant and before the mother and in denying this conduct with the complainant. 41 In the written submissions, it is contended there is a contradiction between the evidence of the mother and the friend, on the one hand, and the evidence of the mother and the complainant on the other. The complainant said that when she arrived at her home in the afternoon, the friend, her two brothers and her mother were present. Examination in the course of oral argument revealed that in truth the complainant's argument related to when she arrived home that evening and, in effect, during twilight. 42 One major difficulty in disbelieving the friend is that it would have been very easy for him to have kept silent about the conduct that took place while he was alone, and very much in his interests to do so, yet he volunteered it to the police. That increases his overall veracity. Another major difficulty in disbelieving his evidence about who arrived and when is that not one question was addressed to him in cross-examination to suggest that he was wrong. A difficulty in disbelieving the mother is that though her evidence about the son was challenged as being made up, as it were, to give the friend a defence on grounds of want of opportunity, she strongly rejected this suggestion and no attempt was made to shake her. And a difficulty in disbelieving all three witnesses is that, unless their evidence was in essence true, it would have been prudent for them to have agreed in advance on what should be said. Yet it was never suggested in cross-examination that this had happened, and the complaints of the complainant to persons other than her mother were made so speedily as to leave virtually no time for any pre-concert of stories. 43 The appellant complains briefly about the failure of the Crown to call the son, who according to the complainant's mother, arrived just after she left the friend alone. The transcript does not record any complaint about that at the trial. Nor does it record any objection to the mother's evidence about the son. The appellant's team at the trial obviously saw no vice in the Crown's conduct, and it may be inferred that there was in truth no vice in it. 44 The fact is that questions about the timing of the family movements do not seem to have loomed large for most of the trial, to judge from the absence of cross-examination of the friend on that subject. In view of the mother's evidence about the son, and the failure to object to it or challenge it vigorously, to have called the son might well have been open to the charge that the Crown were merely duplicating the evidence already given by both the mother and the friend, which was not contradicted in any way. 45 Full regard must be paid to the fact that the jury was entrusted with the primary responsibility of determining guilt, and they had the benefit denied to this Court of seeing the witnesses. In view of the strength of the case, and in view of the way in which the trial judge exposed to the jury the difficulties in the Crown's case, it is not possible to conclude that the verdicts were incapable of being supported by the evidence or were otherwise unreasonable. In M v R (1994) 181 CLR 487 at 492, followed in Jones v R (1997) 191 CLR 439 at 451, Mason CJ, Deane, Dawson and Toohey JJ said: "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 46 The discrepancies within and inadequacies of the complainant's evidence, and the discrepancies between it and that of others, related to relatively marginal matters. It would be astonishing - perhaps even a ground for suspicion - if a nine year old girl recalling events more than two years earlier, including the terms of complaints to her mother, the medical practitioner and the police, did not fall into error on such issues as the order of events, other details about them and precisely when she said what to whom. The appellant, however, has not demonstrated discrepancies and inadequacies in relation to the essential elements of the three crimes charged. It was not suggested that the evidence was "tainted" in the sense of proceeding from a conspiracy between the complainant, her mother and the friend, nor could it be in view of the lack of cross-examination to that effect and the other circumstances. Nor has it been shown that the evidence lacks probative force in its central elements. In all the circumstances, including the circumstances that crimes unquestionably occurred, that the appellant had opportunities to commit them, and that no other person had an opportunity to commit them, there is no reasonable possibility that the appellant was innocent.

Ground 4 47 Ground 4 is: "A miscarriage of justice occurred due to the failure by the appellant's legal representatives to put before the Court evidence available to the Appellant at his trial to explain the circumstances under which the Appellant elected not to give evidence at the trial … . " 48 This ground is supported by an affidavit dated 14 February 2002 and sworn by the counsel who appeared for the appellant at the trial. His affidavit says: "I was aware of medical problems experienced by the Appellant as set out in the report of Dr Cameron dated 20 July 2000. Given the directions that I was aware the trial judge was required to give where an accused does not give evidence, after the Appellant decided not to give evidence I did not consider that evidence as to the Appellant's medical condition was necessary or particularly helpful to the Appellant's case. The Appellant had elected not to give evidence because of the problems he was having medically, because he had already given a detailed account of his actions on the day in question denying any wrong-doing with the Complainant (in a record of interview conducted with police) and finally, because he had been made aware that he would be subject to cross-examination if he gave evidence and that his credibility could potentially be undermined during cross-examination. He was also advised of the general nature of the directions that the trial judge would be required to give in relation to his election not to give evidence." 49 Dr Cameron's report records that the appellant was suffering from inflammatory bowel disease which left him physically drained and necessitated a number of admissions to hospital. He also suffered from seizures. Dr Cameron described the consequences of a severe assault on 20 June 2000, which caused a number of broken bones and major blood loss. Dr Cameron said that the appellant was taking Panadeine Forte for severe pain, which made him drowsy and affected his mental processes. He also said that the appellant was complaining of headaches affecting his concentration. He said that the appellant was not physically or mentally capable of attending court because his level of pain combined with the nature of his medication would adversely affect his ability to give evidence. He said that the appellant would not be fit to attend court for another two to three months. 50 An affidavit of 12 February 2002 affirmed by the appellant verified the account of his symptoms recorded by Dr Cameron. Paragraphs 4 and 5 of his affidavit state: "At the time of my trial I was still having problems with drowsiness, concentration, mental state and headaches and I continue to experience difficulties in that regard. I told my lawyers about the problems I was experiencing at the time of my trial. Given the problems I was having and because I had given a police record of interview, after receiving advice, I elected not to give evidence. I am not aware as to why no evidence was led on my behalf by those representing me at my trial to explain why I elected not to give evidence in the matter." 51 The appellant submitted that "notwithstanding the protective directions given to the jury (see Summing Up T21)", he "was deprived of a significant chance of acquittal because … the jury were not told of his explanation for electing not to give evidence". The appellant also submitted that "there is no adequate explanation as to why such evidence was not put before the jury by legal representatives for the Appellant". 52 This ground of appeal must fail. 53 First, it is in my experience unprecedented that evidence should be placed before the jury as to why an accused person elects not to give evidence, save for cases where the accused is of low mental capacity or impaired mental capacity. Yet the submission appears to proceed upon the basis that that is a normal practice. Counsel did concede it is rare, particularly since the abolition of dock statements. 54 Secondly, if the jury were to be told anything about why the appellant did not want to give evidence, it would be misleading if they were not told the totality of his position. Among the reasons why, according to counsel's affidavit, the accused elected not to give evidence, was the fear that "his credibility could potentially be undermined during cross-examination". Revelation of that motive would have been far more damaging to the appellant's position than the unexplained failure to give evidence. While Dr Cameron may have been able to give admissible evidence about the appellant's health, he could not have given evidence about the tactical decision to rely on the self-serving parts of the record of interview and on the trial judge's directions. If information about that decision were to be communicated to the jury by anyone other than the appellant, it could only be communicated by one of the appellant's lawyers. To communicate it would waive privilege, and the Crown could have elicited in cross-examination the fears of the appellant's camp about cross-examination of the appellant on credibility. 55 Thirdly, so far as the motivation of the appellant turned on his bad health, there was some evidence that at the time of the trial he suffered from bowel problems. 56 Fourthly, the trial judge directed the jury in accordance with the principles laid down by the majority in Azzopardi v R (2001) 75 ALJR 931, even though that case was decided after the appellant's trial. That direction left the appellant in a much better position than any evidence as to his actual motivation would have. It told the jury that no adverse inference could be drawn, and that they were not to infer guilt from silence. 57 Finally, it has not been demonstrated that the failure to call the evidence complained of would have caused the appellant to lose any chance of acquittal whatever.

Grounds 1 and 2 58 Grounds 1 and 2 are as follows: "The appellant has available to him fresh evidence the absence of which at trial resulted in a miscarriage of justice (refer Annexure "A"). There is a significant possibility that the jury, acting reasonably, would have acquitted the Appellant if the new evidence had been before them" 59 Annexure A to Ground 1 is a two page report by Dr Brian L McDonald dated 12 February 2002. It forms part of an affidavit affirmed by Dr McDonald on 13 February 2002. That affidavit annexes an extensive statement of Dr McDonald's qualifications and experience, and also his report. 60 The Crown opposed the reception of the evidence on the ground that it had to be shown that it was unavailable without the exercise of reasonable diligence, and this was not shown; that it was not cogent; and that it was not likely to give rise to a reasonable doubt. The court decided to admit the evidence provisionally so that the last two of the Crown's points could be properly considered. In relation to diligence, an affidavit was read on behalf of the Crown sworn by Stephen Murray Thomson dated 5 March 2002. 61 The question is whether Dr McDonald's evidence reveals that there was a miscarriage of justice at trial within the meaning of s 6(1) of the Criminal Appeal Act 1912. 62 In Ratten v R (1974) 131 CLR 510 at 518.6-520.3 Barwick CJ (McTiernan, Stephen and Jacobs JJ) said: "In every situation the court must decide on the relevance of the new evidence, even in the case of a reference by the Attorney-General such as the present. It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence, and as to authenticity in the case of documentary evidence. But in some situations, as I shall point out, the court will decide whether it believes the evidence. In other situations it will be enough that, whatever its own view, the evidence is capable of belief, and likely to be believed, by reasonable men. Having considered relevance and credibility, the court will weigh the cogency of the evidence, having in mind always the evidence produced at the trial. That evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it. For all these purposes the court may see and hear the witnesses of the new evidence, both Crown and appellant being entitled to examine and cross-examine as the case may be. Further, the court will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom. It is now necessary to differentiate the use which the court may make of the new evidence according to which of the instances of miscarriage it is considering. If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged. Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish. But if the material before the court of criminal appeal does not convince the court of such a miscarriage, or if the appellant's claim is only for a new trial, the fact that the new material is not wholly fresh evidence in the sense I have described will be material. I have already pointed out that the non-production by the accused of evidence available to him at the trial - available actually or constructively in the sense I have mentioned - will not make the trial in any sense unfair. But there is the situation where, although the trial so far has been fair, evidence is discovered after the verdict which could not reasonably have been available at the trial: that is to say, fresh evidence is produced to the court of criminal appeal. The claim on behalf of the appellant, whether as an alternative to a claim to the absolute quashing of the conviction, or as his sole claim, is that without the consideration of the fresh evidence by the jury a miscarriage will have occurred: the trial will not have been a fair trial. In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might property accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take. Of course, it may be said, as was said in Stafford v Director of Public Prosecutions [(28) [1974] AC 878] that the view of the court must be taken to be a reasonable one, and a contrary view, by whomsoever held, to be an unreasonable one: and no doubt at times this must be so. But I conceive that there may be reasonable views of facts which do not commend themselves to the court which do not become unreasonable because the court does not entertain them. In the situation with which I am presenting dealing, namely of fresh evidence not claimed to establish innocence but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration. Of course, if the court thinks that there is no doubt that its own view of the evidence is the only reasonable view, it will act upon that view as one upon which the jury would be bound to act." 63 In Lawless v R (1979) 142 CLR 659 at 674-5 Mason J said that Barwick CJ had correctly stated the relevant principles; Barwick CJ (not surprisingly) and Aickin J agreed. 64 Accordingly the first question is whether Dr McDonald's evidence causes this Court either to conclude that the appellant was innocent or to experience a reasonable doubt as to his guilt. 65 Dr McDonald's evidence should not cause this Court to conclude either that the appellant was innocent or that there was a reasonable doubt. Indeed the appellant does not invite the court to come to either conclusion. Rather he invites the court to conclude that the jury would have acquitted or, at least, that there was a significant possibility of that outcome had Dr McDonald's evidence been before it. The appellant's submission was: "Dr McDonald's conclusion is noted that 'it is 20 times more likely that a single person of type 1+2+ [the complainant's mother's friend] contributed to the stain on the Complainant's underpants than two people, one of type 1+ (the Complainant) and the other 2+ (the Appellant) contributed to the stain'. It is also noted Dr McDonald's conclusion that 'if a person of type 1+ is a contributor then it is 7 times more likely for a second person to be a 1+2+ type than a 2+ type'. It is submitted that on the basis of Mr Goetz's evidence (see paragraphs 2.9 and 2.10 above) the jury were left with the proposition that the stain on the Complainant's underpants emanated from either the Appellant or [the complainant's mother's friend], and that it was equally likely that it emanated from one or the other. If Dr McDonald had given evidence before the jury in accordance with his report, it is submitted that it is likely the jury would have formed the view that it was significantly more probable that the stain on the underpants emanated from [the complainant's mother's friend] and not from the Appellant. Arguably, that would lead them to conclude that there was a significant possibility that some kind of sexual impropriety occurred between [the complainant's mother's friend] and the Complainant. In the context of the Complainant's denial of any such impropriety, it is submitted that her overall credibility would be diminished to such a significant extent that there is a significant likelihood that the jury would not be able to accept her version beyond a reasonable doubt on any of the counts, and that not guilty verdicts would be returned: Mickelberg (1989) 43 A Crim R 182; Zaidi (1991) 57 A Crim R 189; Frawley (1993) 69 A Crim R 208; PLV 51 NSWLR 736." 66 It is to be noted that the appellant does not claim that Dr McDonald's evidence excludes him as a possible wrongdoer, and it does not. Quite independently of the fact that the appellant did not ask the court to conclude that the appellant was innocent or that there was a reasonable doubt, the reasons why the evidence does not cause a conclusion of innocence to be arrived at or a reasonable doubt to be experienced are that the complainant's evidence is basically credible both as to her experiences with the appellant and with her lack of maltreatment by the friend; the evidence of the friend, too, in view of its self-disparaging nature is credible; and, as noted earlier, important parts of the complainant's evidence are confirmed by the appellant in his record of interview (as to not wearing underpants), by the complaint to the complainant's mother, by the complaint to the medical practitioner, and by the complaint to the police. 67 Accordingly it is necessary to consider whether, had the evidence of Dr McDonald been before the jury, they would have acquitted or whether there was a significant possibility of that outcome. Let it be assumed, contrary to what Barwick CJ said, that the question whether the evidence relied on could with reasonable diligence have been produced at the trial should be put aside. (Gibbs CJ in Gallagher v R (1986) 160 CLR 392 at 395 said that that "is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.") The fact is that the appellant's submissions are no more than an appeal to speculation. They are replete with words such as "if", "arguably" and "possibility". Up to a point that form of argument, which is designed to generate the possibility of the jury having a reasonable doubt, is permissible, but possibility is heaped on assumption to far too great an extent. The submissions depend on there being a reasonable possibility of sexual impropriety between the friend and the complainant. The only time when this could have occurred was after the complainant's mother left her house and before she or anyone else returned. The appellant's case creates contradictions: on the one hand it is said that the complainant's brother arrived too soon for the friend to do what he said he did; on the other hand it is said the friend had time to assault the complainant. The existence of disparities between the recollections of the mother, the friend and the complainant, even if they existed, which they do not, is immaterial in view of the fact that they do not demonstrate a reasonable possibility of an opportunity to assault the complainant. Even if Dr McDonald's conclusions as to probabilities are correct, it is not reasonably contestable that some crime was committed against the complainant, and there is no satisfactory evidence that the friend had an opportunity to commit it. 68 The question of Dr McDonald's evidence was the topic of the bulk of the vigorous oral argument advanced by Mr W C Terracini, SC, who appeared with Mr G A Newton for the appellant. At an early stage in the appellant's argument, it was apparently suggested that the appellant's advisers before the trial had failed to understand the significance of mixing the bodily fluids of either the complainant and the appellant or the complainant and the friend or whether the fluid on the underpants was only that of the friend. The appellant submitted that if the Crown could not make out that there was DNA from the victim on the under garment then the DNA evidence goes nowhere. 69 After an adjournment, the appellant's counsel was taken to a report on behalf of the appellant dated 31 July 2000 prepared by Genetic Technologies Corporation Pty Limited of Fitzroy, Victoria. That report stated that the DNA on a portion of the complainant's underclothes was female, the only possible female source being the complainant. The appellant then refined the submission and said that the question did not turn on DNA testing but on PGM testing and on the mixing of fluid from two sources. It is hard to understand why the possibility of PGM testing and its relationship to the mixing of fluids did not occur to the appellant's lawyers at trial if it were thought profitable to do so. 70 The report of Dr Goetz, served by the Crown, on which his evidence at the trial was presumably based, dealt with that subject. Trial counsel, as has been seen, swore an affidavit in respect to other aspects of the trial. That affidavit did not deal with that subject. The date of the affidavit was 14 February 2002. Dr McDonald's affidavit was sworn on 13 February 2002. The issue was thus present to the mind of the appellant's lawyers when they were in contact with trial counsel. The appellant's counsel conceded that Dr McDonald's report did not rule his client out. He said that there was a significant possibility that it would have made a difference at the trial because "scientific material has the weight of impartiality and carries with it far greater effect than evidence from lay persons merely saying what they saw and heard." While that may sometimes be true, it is not true in the circumstances of this case. 71 The appellant's submissions set out above rely on Dr McDonald's evidence on probabilities. The jury would have been likely to give it much less weight than and, indeed, not to give it any significance in comparison with, the evidence which they did accept, namely: (a) that the complainant had plainly been abused; (b) that only two persons could have abused her; (c) that the appellant had lengthy opportunities to do so; (d) that the time within which the friend could have done so was at most about one hour and all the evidence, namely, that of the friend, the mother and the mother's report of what her son said, pointed to the fact that there were only a few minutes within which the complainant was present; (e) that the complainant gave essentially convincing evidence that the accused was the person responsible for abusing her; (f) that that was confirmed by the appellant's submission that he only wore underpants. There was no suggestion that the complainant could have acquired knowledge about his habitual non-wearing of underpants on any occasion other than that of which the complainant complained; (g) that her evidence was confirmed by substantially similar complaints to her mother, the medical practitioner and the police, all of which identified the appellant as the offender; (h) that it was never suggested to the friend that he used a vacuum cleaner on the day in question on the complainant. The vacuum cleaner in evidence was before this court and, as counsel for the appellant said, it was a large industrial type of vacuum cleaner. He did not say, but, in my opinion, it is correct to say, that it was the type of vacuum cleaner not usually found in domestic households. The complainant drew a diagram of it, which was before the court. 72 In the course of argument in this Court, some stress was placed on questions of opportunity. The fact is that the friend's denial of opportunity was never challenged by a single question at the trial. Counsel for the appellant declined to advance a R v Birks (1990) 19 NSWLR 677 submission on that point or any other point. For that reason, Dr McDonald's evidence is unlikely to have changed the verdict of the jury or led to any other result. There is no significant possibility that there would have been any other result before this jury or a reasonable hypothetical jury. 73 In any event, no explanation is offered by Dr McDonald as to why his evidence was not tendered at the trial. Nor, despite the evidence from the appellant and Mr O'Donnell about why evidence relating to the appellant's election not to testify took place, is there any other evidence explaining why Dr McDonald's evidence was not tendered at the trial. Counsel for the appellant conceded there was no adequate explanation. The appellant does not suggest that the reports of Ms Briese and Mr Goetz, on which their evidence at the trial was based, were not available to the appellant for a significant time before the trial. There is also evidence that on 6 July 2000 the appellant's solicitors were served with a statement dated 30 June 2000 by the friend asserting that on 13 February 1997 he had a vasectomy, and that on 6 July the Crown indicated willingness for the complainant's underpants to be tested in Victoria by a company of the appellant's choice. On 31 July the appellant's solicitors received a report on that test from Genetic Technologies Corporation Pty Limited. On 12 September 2000 the appellant's solicitors indicated to the Crown by telephone a desire for further testing and the Crown indicated its co-operation. In the meantime, on 16 August 2000, the appellant had obtained an adjournment of the trial fixed for that day in part because of the desire to have further testing carried out. On 13 September 2000 a letter from the appellant's solicitors in relation to the further testing was sent. It is plain that the appellant's advisers were alive to the possible utility in the case of forensic evidence. In those circumstances it is not possible to infer that there is any explanation for their failure to call evidence in the nature of that which Dr McDonald has now given, that it would not now materially exist in the client's interests. 74 It is necessary to return to the question of whether the appellant's Ground 3 arguments, taken with Dr McDonald's evidence, would result in that ground being upheld. For the reasons just given, they could not. Accordingly, Dr McDonald's evidence should be rejected. Grounds 1 and 2 fail.

Additional ground: sentence 75 At the hearing the appellant applied for leave to appeal against the severity of sentence on the ground that it was manifestly excessive. No reasons for this were advanced in written submissions. However, in the course of oral argument, it became plain that the appellant's contentions concentrated simply on the fact the sentence was excessive taking into account the appellant's record. 76 The crimes of which the appellant was convicted were serious ones. The only basis on which lenient sentencing could take place would be subjective considerations. The sentencing judge took into account the fact that the appellant had no prior convictions for any sexual offences, and no prior offences resulting in imprisonment. He took into account the fact that the appellant married early in 1998 and had a small child. He also took into account evidence of the appellant's ill health. In all the circumstances I am unable to see any error in the sentencing process, or to conclude that the duration of the sentence was manifestly excessive.

Role of trial counsel 77 In the foregoing reasons mention has been made of various decisions by counsel for the appellant at the trial, and various instances when particular courses of conduct were not undertaken. It is not intended to suggest that this reflects any incompetence on the part of counsel. In each case it can be seen that the appellant's counsel was confronted with a difficult tactical choice. It does not follow from the actual choices made and from the conduct that was and was not undertaken that counsel behaved in a manner outside the range of a sound professional discretion.

2. The applications for leave to appeal on sentence are refused. 79

81 HEYDON JA: Those two orders are the orders of the court. **********

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