R v Mayberry

Grounds 1 and 3: Adequacy of the Trial Judge's Directions 26 The appellant contends that the directions of the trial judge were inadequate in two significant respects: "1. That the … trial judge's warning to the jury as to the need for caution in scrutinising the evidence was … inadequate. [Ground 1] … 3. The trial judge failed to direct and warn the jury adequately against the use of evidence touching on the allegations made by each complainant in respect of the other. [Ground 3]" 27 Before commencing his summing up, the trial judge raised with the Crown and counsel for the appellant the particular directions each considered were necessary to be given to the jury. Initially the discussion focussed upon the direction which was required in relation to corroboration in a case where collusion was alleged. However, it was eventually accepted by the Crown at the trial that there was no corroborative evidence and accordingly it was only necessary to give a direction as to collusion. 28 The Crown then submitted that two other directions might be necessary: first, an instruction to the jury against the misuse of the evidence of one complainant in the case against the other; secondly, a direction to the jury that they could not use evidence of propensity to reason that a father who sexually abused one child sexually abused another child. 29 The trial judge summarised the direction he was being asked to make in these terms: "In effect saying, in order to be satisfied of the guilt of the accused in regard to any one count, they must be satisfied from the evidence that relates to that count."

Crown counsel agreed and his Honour further commented: "They cannot use the relationship evidence to establish the guilt" 30 The appellant's counsel at trial agreed such a direction was necessary. 31 The appellant's counsel at trial also sought a direction in accordance with R v Mitchell (unreported, New South Wales Court of Criminal Appeal, 5 April 1995) (the Mitchell direction) to the effect that it was necessary to warn the jury, in a case where there was a possibility of contact and contamination between complainants, that the evidence of one complainant could not be used in proof of the Crown case against the other. 32 Both counsel at trial agreed that because of the delay in complaint a direction in accordance with Longman v The Queen (1989) 168 CLR 79 was required. In particular, the appellant's counsel at trial submitted that, if the trial judge proposed to give a direction to the jury favourable to the complainants in relation to delay - by putting before the jury reasons why they may have failed to complain - it was necessary that a direction also be given that "they should scrutinise the evidence carefully, because conviction on the evidence of [each] complainant alone, in the absence of corroboration, would be dangerous". See R v Murray (1987) 11 NSWLR 12. 33 The appellant contends that notwithstanding these discussions as to the appropriate directions, his Honour's directions were inadequate in two fundamental respects. The first was that his Honour failed to adequately explain to the jury that they could not use the evidence of one complainant to assist in the determination of the charges that related to the other, as required by Mitchell. The second was that his Honour's Longman direction was inadequate. 34 Counsel for the Crown submitted however that the summing up, viewed as a whole, was adequate.

The Mitchell Direction 35 R v Mitchell involved four charges of aggravated indecent assault against two complainants. The appellant was the de facto husband of the complainants' mother. The allegations surfaced when the complainants went to live with their father. 36 All charges were heard together and each complainant gave evidence so that "the jury had before them the whole of the evidence relating to both complainants". The appellant denied the charges and alleged that the complaints were concocted to get back at him and the complainants' mother. 37 The trial judge accepted that collusion was open on the evidence. However, the trial judge did not give any direction against using the evidence of one complainant in proof of the Crown case relating to the other complainant. On appeal, it was held the trial judge had erred in failing to do so. Gleeson CJ stated at 4: "…the trial judge was obliged to warn the jury in clear terms against using the evidence of one complainant towards proof of the guilt of the appellant of offences involving the other complainant. There was also a need to give the jury careful directions about the way in which evidence admissible towards proof of the guilt of the appellant of a particular offence against one complainant could be treated in relation to the other alleged offence against the same complainant." 38 The need for such a direction is obvious. When there is more than one complainant there is invariably some common features in their evidence. Although an accused can seek to use this to advantage by trying to establish inconsistencies in such evidence, it can work to the serious disadvantage of the accused if the evidence is largely consistent. In that circumstance, the evidence of one complainant can help to strengthen the case relating to the other or others. The disadvantage can be even more marked where the evidence of one complainant is particularly under attack. In that case the possibility of a jury assessing that complainant's evidence favourably, because the evidence of the other is more reliable, is a real one. 39 In this case, the trial judge did not give the first part of the direction to which the Chief Justice referred in Mitchell. He did, on more than one occasion, however, refer to the need to look at each charge separately. The Crown submitted that in the context of the summing up as a whole the directions were, in all the circumstances, adequate. That submission is difficult to sustain in light of the further statement by the Chief Justice in Mitchell at 5 that: "The directions given about considering the charges separately and returning separate verdicts are standard directions given in any case where there is more than one charge against an accused person." 40 Nevertheless, as the point has been taken by the Crown that the directions were sufficient, it is necessary to consider the summing up to determine whether the appellant might have been deprived of a fair trial. 41 The trial judge referred on a number of occasions to the need for the jury to look at each charge separately. He did so at the very commencement of the summing up in clear and unequivocal terms: "[Y]ou must look at each charge separately and determine what your verdict will be in regard to that charge before you turn to a consideration of the second charge … the verdict that you bring in in regard to any one charge should not influence you in the verdict you will bring in regard to the other charges." 42 He informed the jury that the charges related to two complainants and that the eleven counts were being heard together as a matter of convenience and that the onus was on the Crown "to prove each of those charges". 43 His Honour re-emphasised the importance of considering each charge separately again at page 6: "… you will look at each of them separately. You will identify the evidence that relates to each charge and determine whether that evidence establishes beyond reasonable doubt the guilt of the accused in relation to that charge. … if you were satisfied beyond reasonable doubt that the essential elements that go to constitute the charge you are then considering was proven you will be duty bound to return a verdict of guilty. But you must look at each charge separately. It would be quite wrong for you to look at the charges globally. That is not the way the law operates. … … look at the evidence that relates to that charge to determine what your verdict will be by applying the law that I direct you that is applicable to that type of charge, having determined what your verdict will be you then turn to a consideration of the second charge. It by no means follows that because your verdict in regard to one charge is a verdict of guilty or not guilty that the same verdict will be found in regard to the other charges because each charge must be looked at separately so that you can determine what your verdict in relation to that charge is." 44 His Honour then directed the jury that the ultimate question for their determination was: "… when you come to deal with each of these counts in regard to each of these charges and which you have to ask yourself is am I satisfied from the evidentiary material that relates to that charge of the guilt of the accused." 45 Senior counsel for the appellant submitted that, although these directions were both necessary and unexceptional, they were insufficient in the circumstances because there was no direction that there were two separate complainants and that the evidence of one could not be used towards proof of the charges brought by the other as required by Mitchell. It was further submitted that his Honour's omission to give an appropriate direction was compounded because he thereafter tended to consider the charges as a "job lot". It was submitted this was particularly obvious when his Honour came to deal with the essential elements of the offences. 46 His Honour first referred to counts 3, 6, 8, 9, 2 and 5 - all of which, he told the jury, related to NRD. He then mentioned counts 1, 4, 7, 10 and 11 together. He said "counts 1, 4 and 7 related to the complainant [NRD] and counts 10 and 11 relate to the complainant [JMD]". His purpose in dealing with the counts in this way was clear - they fitted into the four categories of charges with which, he informed the jury, the appellant had been charged. This emerges from the next passage in the summing up. He suggested to them that when considering their verdicts they "start at the first and deal with the first charge in the indictment and go through it in that way". He said, however, …when I come to deal with ... the essential elements that go to constitute [the charges] I will deal with the four different types of charges that the [appellant] faces in these proceedings…" 47 The summing up went into a second day and his Honour summarised where he had got to the previous day and reminded the jury that he had been dealing with the essential elements of the counts against the accused. Again he referred to them in categories: "I then went on to take you to the first group of charges I have mentioned … I said then that I would defer saying anything about the concept of homosexual intercourse until I identified the essential elements which related to the next group of charges I mentioned, that is the three counts, being counts six, eight and nine, which allege that the accused had homosexual intercourse with a male under the age of ten. I will turn now to a consideration of 'that' charge. … then I will turn to a consideration or identify the evidence the Crown relies upon in support of the three charges of homosexual intercourse. Then we will go on to deal with the sexual intercourse charge without consent … and the five counts of indecent assault and I will approach them the same way." (emphasis added) 48 It is worth noting at this stage that there are three problems with this passage. His Honour again rolled up the charges into groups. He referred to one count of sexual intercourse without consent, when there were two. And he referred to the indecent assault charges as a group without reference to the fact that there were three separate counts involving NRD and two separate counts involving JMD. 49 His Honour then proceeded to deal with the evidence relevant to each charge - dealing with the charges in the categories which he had established at the outset. In doing so his Honour grouped aspects of the evidence together. The charges in relation to sexual assault are a good example. His Honour directed the jury that they would have no difficulty in being satisfied that the appropriate age limit had been proved but that the "real live issues in regard [to] those charges … [is that they] occurred without … consent …". 50 He then dealt with the indecent assault charges which related to both complainants. He distinguished those which related to JMD from those that related to NRD. He identified the "live issues" in respect of those charges as being whether they occurred and whether they constituted indecent assaults. He then gave certain directions about what was meant by assault "[i]n regard to this charge of indecent assault" (emphasis added). There were five such charges, three involving NRD and two involving JMD. 51 His Honour continued dealing with this category in mostly global terms, but then said: "Let me identify the evidence on which the Crown relies in regard to each of those charges". 52 Senior counsel for the appellant resisted any suggestion that, by directing the jury in respect of each charge, the trial judge was, in effect, impliedly directing them not to permit evidence of one complainant to have a flow over effect to the case of the other complainant. He submitted that a jury could not possibly have any perception that was the purpose of such direction which, as Gleeson CJ pointed out in Mitchell, is a standard direction in any trial involving more than one count. He submitted that the trial judge was required to give a warning in the strongest possible terms that the evidence in respect of one complainant could not be used as evidence in relation to the other. He submitted that the closest his Honour came to so instructing the jury was in the direction: "When you come to consider the question of whether the Crown has established the guilt of the accused on any one of these charges you must look at the evidence given by the complainant about that incident. The other relationship evidence is put before you solely as relationship evidence. … You must not use the relationship evidence other than to put in context the evidence, other evidence given by the complainants about the specific instances on which the Crown relies. So in regard to counts one to nine the Crown relies specifically on the evidence of [NRD], while in respect of counts ten and eleven it relies specifically on the evidence of [JMD] . (emphasis added) 53 His Honour then told the jury that there was no corroborative evidence to support any of the individual acts which the complainant alleged although there was "some support for some of the evidence". 54 In my opinion, the appellant has made good this ground of appeal. Although his Honour gave directions in relation to the requirement to look at each charge separately, from time to time during his summing up he treated the charges globally. That, in itself, could potentially have been misleading to the jury. However, the fundamental error was that his Honour failed to give what I have referred to as the Mitchell direction. I do not think that the direction which I have emphasised in para 52 satisfied the requirement in Mitchell and in any event, it has its own inbuilt flaw. His Honour 'rolled up' counts 1 to 9 and counts 10 and 11 and invited the jury to consider the evidence of NRD in respect of counts 1 to 9 and the evidence of JMD in respect of counts 10 and 11. The correct direction was that each charge had to be considered separately and that the evidence in respect of each count in JMD's case could not be used in respect of the offences in NRD's case. The direction was not sufficiently close to the required directions as to be adequate in the circumstances. There was nothing else in the summing up to ameliorate this failure. Rather, the tendency from time to time to treat the charges in categories, in my opinion, compounded the failure. I consider that on this ground alone the appellant should have a new trial.

The Longman Direction 55 After his Honour had referred to the fact that there was no corroborative evidence, although there was some supporting evidence, he gave the following direction: "In these circumstances you must carefully scrutinise their evidence, both generally and particularly when you come to consider their evidence in regard to each of the charges the accused faces in these proceedings. You will take into account the time that has elapsed since these events allegedly happened. Their age at the time. The demeanour of the complainants as they gave their evidence. The reliability of their evidence. And you can only act upon their evidence if you are satisfied that it is reliable, it is true and safe to act upon." 56 His Honour drew attention to the difficulties which confronted the appellant because of the time which had elapsed since the alleged happening of the assaults and the complaints, and the appellant's consequential difficulties in being able to meet each allegation specifically. 57 His Honour concluded this portion of the summing up with the statement: Lack of specific details in this case might be of concern to you. Because both [complainants], in most cases, have not been able to tell you, with any degree of certainty as to when a particular event occurred. They use expressions 'while my mother was at Point Cook', 'a week later', and 'a week later', and 'a week later'. … there is no real date been put before you. It does put the accused at a disadvantage. You will bear that in mind when you come to consider the evidence that has been placed before you in these proceedings. You should also take into account, of course, not only that time that has elapsed, but the age of the complainants at that time, their age now and their demeanour. You should always bear in mind, of course, the Crown having laid the charges the onus is on the Crown to prove the charges. There is no onus on the accused to prove anything." 58 Senior counsel for the appellant said that whilst this was an attempt to comply with Longman, it was inadequate in all the circumstances, particularly given the serious attack made upon the reliability of NRD's evidence. He submitted that a warning in terms of s 165 Evidence Act should have been given, and in giving such a warning his Honour should have drawn attention to some of the major inconsistencies in NRD's evidence. It was submitted that similar assistance should have been given in respect of JMD's evidence, although it was conceded that the attack on his credit was not as far reaching. 59 In Longman, the majority (Brennan, Dawson and Toohey JJ) stated at 91: "The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice." 60 The need for a 'Longman direction' in cases of delay was reasserted in Crampton v The Queen [2000] HCA 60, where Gaudron, Gummow and Callinan JJ stated at 45: "… the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions."

Including, in that case, a direction that: "… it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence." 61 The trial judge did not give any such direction. In my opinion, the direction was required. There was no corroboration. The case turned on the credit of the complainants. There was a significant delay in the making of formal complaint and earlier complaints (if the jury accepted them) were not acted upon. NRD said that he was subject to assaults on occasions when other members of the family were not home; or were watching TV, or when JMD was out playing or at his godparents' home. The difficulties in the appellant meeting the specifics of such allegations are obvious. In my opinion, the failure to give an adequate direction on this aspect of the case also requires that there be a new trial. 62 Counsel at trial did not seek a direction under s 165. However, the inconsistencies in NRD's evidence, particularly in relation to complaint, were such as required the judge to give a warning which encompassed the type of matters specified in s 165(2). In particular, he should have warned the jury that NRD's evidence may be unreliable, pointed out for them the matters which might cause the evidence to be unreliable and given a warning to the jury of the need for caution in assessing whether to accept the evidence and the weight to be given to it.

Ground 2: Unsafe and Unsatisfactory 63 Ground 2 was expressed in the following terms: "That the verdicts of the jury are … unsafe and unsatisfactory." 64 The appellant contended that his convictions involved a miscarriage of justice because they were against the evidence and the weight of the evidence. In particular, it was submitted that neither complainant could be relied upon as honest, truthful or reliable so as to establish the Crown case beyond reasonable doubt. 65 In written submissions, counsel for the appellant analysed the evidence by reference to a number of categories, which, it was claimed, demonstrated the inherent improbability of the evidence as truthful or reliable. Those categories were:

(i) the improbable accounts of each complainant and the absence of any corroborative evidence;

(ii) the delay in complaint by each complainant (indicating that the complaints were fabricated);

(iii) NRD's reputation as a person who confabulated;

(iv) the fact that each complainant had a motive to lie; and

(v) the significant contradictions between the evidence of NRD and every other Crown witness. 66 Before dealing with the evidence relied upon to establish this ground, the legal basis upon which it was put forward should be identified. 67 Senior counsel for the appellant submitted that the case was one where the improbability of the accounts, given the inconsistencies in the evidence, the motive to lie and the delay were so obvious that this Court would, by reading the transcript, "be satisfied for itself that there was no reasonable prospect of a conviction": see R v M (1994) 181 CLR 487 at 493; R v Johnston (1998) 45 NSWLR 362 at 378. Senior counsel submitted that this approach was permitted by R v Jones (1997) 191 CLR 439. That case in fact involved inconsistent verdicts. However, it was submitted that here, as in Jones, the Court could assess for itself the credibility and cogency of the evidence from the transcript so as to "ask itself whether … upon the whole of the evidence it is open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". The circumstances in which an appellate court may so act were stated by the majority in M at 494: "It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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 a 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."

It was submitted that this case was one which fell within the precepts in M . 68 In dealing with the arguments advanced in support of this ground, it is convenient to deal first with the 'category' motive to lie and then with the other categories together.

Motive to Lie 69 It was contended on behalf of the appellant that each complainant had a motive to lie. In NRD's case two motives were advanced: one, that it would have some positive effect on his mother's property settlement, his mother and the appellant having separated in 1995; and two, as a way of obtaining victim's compensation. In JMD's case, the mother's property settlement and a desire to get back at the appellant for his authoritarian behaviour were relied upon, although in one set of submissions, the appellant contended that both complainants were seeking to avenge themselves on him because of his authoritarian attitude. 70 NRD said he was aware his mother and the appellant had separated a few weeks after it happened and that he also knew there were divorce proceedings in 1997. He said however that he was not aware at that time that there was a property dispute and did not know there was any dispute prior to going to the police in 1997. He agreed in cross-examination that JMD told him about a dispute between their mother and the appellant over the sum of $5,000, but said he had also heard of a dispute over $250,000 "so I don't know what's going on". 71 JMD said he was not aware in 1997 that there were property disputes between his mother and the complainant although he knew there were divorce proceedings. His cross-examination on this issue continued: "Q I am suggesting that you have brought up these allegations in September 1997 because you thought it might assist your mother in relation to property disputes that existed between her and your stepfather? A Why would I care about the property dispute? I have nothing to gain out of it, so why would I care about it? No, that's a lie. I deny it, your Honour. HIS HONOUR: Q You say you haven't brought these allegations up to assist your mother? A As far as I know, even if he went to gaol he still gets a property settlement anyway so its not going to help anyway." 72 Ms D's evidence on this issue is also relevant. She said that sometime around the time of the divorce (the decree nisi was made in May 1997 and became absolute in June 1997) the appellant told her he wished to have a property settlement. She said to her recollection nothing then happened for about twelve months when the appellant filed a property application. She said at that time she sought legal advice from her solicitor Andrew Swift. It was her understanding that the criminal proceedings had no relevance to the property proceedings. She said: "I have been given very clear advice by Andrew Swift that the proceedings in this Court have absolutely no bearing on any property matters at all. The Family Court will not take any notice." 73 She denied that she had used the criminal proceedings as a means of delaying the property settlement although she conceded she had given an affidavit in those proceedings stating the criminal proceedings had caused her "unbelievable distress" and that she understood her solicitor had said at the conciliation conference relating to the property settlement that she was too distressed to continue with the conciliation matter. Her understanding, however, was that the property proceedings were "undergoing due process in the Family Court". 74 The appellant relied upon the property settlement at trial and again on appeal as providing a motive for each of the complainants to lie. He was entitled to do so and it was a matter for the jury to determine if they accepted that was the case or not. It is clear from the verdicts they did not. This is not surprising. The attack made on each of the complainants and on Ms D in cross-examination on this issue failed, in my opinion, to produce any real comfort to the appellant. 75 The potential entitlement to receive a substantial sum (up to $50,000) by way of victim's compensation was, potentially, forensically more powerful. NRD said that, although he had been told in relation to an unconnected matter he had the possibility of getting $50,000 as compensation as a victim of crime, it did not occur to him that he might be able to likewise benefit if he made allegations against the appellant. That was a matter for the jury to assess. Again it is clear from the verdicts that they did not accept the appellant's case on this issue. That course was open to them and taken on its own there is nothing remarkable in the jury accepting NRD's denial that that was the reason for him making these allegations. 76 The same is to be said in relation to the contention that JMD (or both complainants) had a motive to get back at the appellant for being so authoritarian. JMD was not directly challenged in cross-examination that he had such a motive although he agreed the appellant was authoritarian. NRD was not cross-examined on this at all. Even if it could be said that this particular matter was properly before the jury two things must be said. First, such a motive is less likely in my opinion than the potential for financial reward. Secondly, in any event, it was a jury issue. 77 There was another basis for motivation to lie put to JMD in cross-examination, namely that he wanted to excuse his own bad behaviour. He was cross-examined in particular about an incident of alleged assault in 1989. A series of questions were asked seeking to establish that, at about that time, he was in trouble at school. He had been suspended on a number of occasions and had punched a younger boy. He was then cross-examined in detail about having deliberately run over the cord of the electric lawn mower because he did not want to mow the lawn. He agreed that was correct. He identified that day as being an occurrence of one of the relationship assaults. He was cross-examined as follows: "Q See, the whole of this story about this event happening in 1989 is invented to excuse your behaviour in smashing the lawn mower, wasn't it? A Why do I have to excuse my behaviour in smashing the lawn mower? I mean, explain to me why. HIS HONOUR: Q It is being put to you -- A Well, that's a lie your Honour. Q --you invented this incident to excuse you for it? A Why would I do such a thing? No, that's a blatant lie. Q You deny it, you say it wasn't? A Why would I - yeah, why would I do it? I mean, what do I care about a lawn mower for? I mean -- … Q … I am suggesting to you … that if you did something wrong, you had a habit of blaming -- A Hold on. Q The other person? A Like, let's put this in perspective. You are saying because I broke the lawn mower, let me get my head around this, because I broke the lawn mower I fabricated this huge story about this. Wake up to yourself. I put myself through all this torment over a lawn mower? If Mum was really worried about it, I would buy her a new lawn mower tomorrow. I have put myself through all this torment, nearly split up my marriage, over a lawn mower. Where did you get your qualifications, out of a Weetbix box?" 78 His Honour called a short adjournment at this point. 79 This evidence is also relevant to the importance of demeanour in this case, to which I shall refer shortly. But again, it was a jury question whether they accepted JMD refutation of the suggested motivation or not. 80 In my opinion, this category of evidence provides little, if any, support to the unsafe and unsatisfactory ground.

Improbable Accounts: Delay in Complaint; Fabricated Evidence; Tendency to Confabulate; Inconsistent Evidence Amongst the Various Witnesses 81 As these 'categories' are all directed to specific aspects of credibility it is convenient to deal with them together. 82 It was submitted that, given the extensive period over which NRD alleged he had been assaulted, it was extraordinary that there was no evidence of him being noticeably upset, being overheard to cry or being reluctant to stay in the appellant's company and no evidence that he complained or sought help. It was further submitted that the incidents took place in circumstances where there was a high risk of detection and that they could have been easily avoided by the complainants. It was said that the incidents involving NRD "were so brazen and so easily avoided by him (yet he apparently did little to avoid them)". 83 It was submitted that it was improbable that NRD would not have stayed out of the house if the assaults occurred at all, let alone with the frequency alleged. It was also submitted that the basic theme of NRD's evidence was that the assaults came to fit a pattern. An examination of that evidence showed, however, that there were significant variations in the alleged complaints, so as to make it unlikely that NRD's evidence was true. Again a number of examples were given, such as the fact that sometimes condoms were used and sometimes they were not; he said he did not know where the condoms came from, yet in cross examination he said they were contained in a black bag under the appellant's bed; sometimes NRD's sister and, on other occasions, the whole family were at home yet the allegation was that the appellant tended to take advantage of NRD when no one else was at home. 84 It was also submitted that there was the absence of detail, when detail might have been expected. For example, neither complainant was sure whether the appellant was circumcised although JMD said he thought he was not. The Crown pointed out, however, that although the appellant gave evidence, he did not give evidence as to whether he was circumcised, as he presumably would have done, if JMD's recollection was wrong. 85 In the case of JMD, it was said that he could have physically resisted the appellant and, on his account, had done so on one occasion, when he was about 13. It was therefore improbable that he did not resist the appellant on later occasions when the appellant allegedly assaulted him, particularly when JMD was a physically fit youth. There was evidence he was a member of the Australian gridiron football team. 86 In my opinion, these were all matters which the jury were entitled to assess in determining whether the complainants' evidence should be accepted. However, it is not without relevance that these assaults were sexual in nature and commenced when the complainants were young children. The degree of maturity, knowledge, resilience and self reliance with which, it is implied in this submission, the complainants should have acted, is somewhat unrealistic, given their ages and family circumstances. This is particularly demonstrated by the complainants' evidence in relation to failure to complain. 87 Having given evidence of the events which gave rise to the first three counts, NRD said the appellant told him he would "kill" him if he told anyone. NRD said he believed him because he used to hit them a fair bit. His sister was asleep during this incident and JMD was away. The incident ceased when his sister woke up crying and the appellant blamed NRD for waking her up. He said he was "too young and too scared" to tell anyone. He was aged 7 at the time and was in second class at school. He said his reason for doing as the appellant told him in relation to the second incident was because he "didn't want to get belted". His evidence remained consistent as to being scared of the appellant. The appellant admitted he hit the complainants with the cord from an electric jug. He said this only happened two to three times a year and only if all else failed (for example grounding, withdrawing pocket money, not allowing them to watch television or to play with their friends). He also said he smacked them "as soft as I could manage". 88 NRD gave similar evidence as to why he didn't complain to anyone at school. He said that he did not tell anyone at school when he discovered he was bleeding after one of the assaults because he was "too scared"; that he and his brother both got into a bit of trouble at school; that he knew what would happen to him if he told anyone; that he was too scared to say anything. 89 He described the incidents as "just [becoming] a set routine" and said he had no one to talk to about it - his mother was away at that time. He said there was nothing he could do about it to stop it. 90 He said he told his brother JMD that the appellant was "a faggot" but that JMD did not believe him so he did not tell him what was happening and when said "he didn't believe me about that … I just got too scared to tell him what had been happening". 91 This conversation probably occurred in 1986, although NRD also said that he told JMD this repeatedly. It was submitted that if the conversation had occurred, it would be extraordinary if JMD did not believe him, because by this time, JMD had come to realise that the appellant was homosexual. 92 JMD's evidence about his awareness of the appellant's sexual orientation began in 1987 (he thought that was the year) when the appellant took him into a room and asked him "did I want to learn what you did about sex". He said that on this occasion the appellant said: "… that when he was at school he would like boys and I said, 'Oh, I like boys as well' and then he said, no, he liked them in a different way." 93 He said that when the appellant said that he, JMD: "Had a fair inkling what he was talking about, that he, you know, I thought he was gay straight away or a poofter, that is what I would have thought." 94 JMD's evidence as to whether NRD told him the appellant was "a faggot" does not precisely reflect what NRD said, particularly as to the language used. However, JMD said there were conversations with NRD about incidents involving the appellant. JMD said that NRD would be "yelling and screaming" and would saying something like "he'd done it", "he'd fucked me", "things like that". He said however that NRD was not "very coherent" in these conversations. He also said he did not pursue the complaints because: "A … I don't know, I just didn't think it was the appropriate time. Didn't really want to talk about it either. Q Why didn't you want to talk about it? A It was something I tried to suppress. … I tried to keep it all out of my mind." 95 This is how JMD appears to have always dealt with NRD's complaints right up until 1997. For example, when asked about complaints during the period 1992 - 1997 he said: "As I've stated, there were a few ramblings that he'd said but I just took it to say that he was off his head or something like that." 96 JMD also pointed out that the family was not close. He gave evidence that he had not wanted to invite his brother to his wedding, that he had little contact with him after he left home, and he wanted to get on with his own life. 97 Although the appellant sought to make something of the fact that NRD did not complain to anyone at home (it being alleged he made no complaints to JMD) and did not appear upset after these assaults, the fact is NRD experienced considerable difficulty both at home and at school. The appellant sought to rely on this fact to undermine NRD's credibility and to attack his character. However, it is clear from a reading of the transcript that this was a two-edged sword for the appellant. On the one hand it might have demonstrated that NRD was a devious individual who lied, stole and had been in a lot of trouble and therefore was someone who should not be believed. On the other hand, his conduct may well have been explained by the conduct of the appellant towards him. NRD left home at the age of 14 after an argument with the appellant during which, he said, the appellant told him that his mother did not want him at home and she would never believe him if he told her of the assaults. He said he was "pretty upset about it all" and "took a whole bunch of pills" and ended up in hospital. He said he felt he had lost all his family, his mother did not want him any more and she had not come looking for him and he believed what the appellant told him. 98 He agreed in cross-examination that he had used a false name when he went to the refuge (where he first went when he left home) and although he had seen his mother and brother in the shopping centre a few days later he had run away from them. He was cross-examined about the "story" he had given concerning where he got the tablets from on which he attempted to overdose. He agreed that when he overdosed on prescription migraine pills in 1992 he told doctors, staff and social workers about a variety of matters (including that his brother had been given $5,000 to go overseas by his mother, which was true). He agreed, however, that he did not "tell a single one of [them] you'd been sexually assaulted, let alone by your stepfather". He sought to explain his position as follows: "I'm pretty sure I didn't tell them, its like why I didn't tell them about the pills". 99 However, NRD had given evidence that his life had been ruined because of what the appellant had done to him. Again he was challenged that he had fabricated these allegations "in order to justify your own bad behaviour". He responded: "No, I mean, why would I do that? Who do I have to justify it to?" 100 Not only was NRD's credit attacked, so was his character. He was cross-examined about drug taking, drunkenness, stealing money to buy drugs, about being in trouble with the police and about having a criminal record, all of which were true. It was also put to him in cross-examination that he had been expelled from a couple of schools, that his "own bad behaviour" had been the cause of his running away from home, from school and from the refuge. 101 It was suggested that he had made up these allegations so that he might be able to get $50,000 as a victim of crime. He refuted that allegation. It was suggested he had colluded with his brother, which he denied and that making these allegations might put him in his mother's "good books". He responded: "A Why would I want to be in the good books with her. I don't speak to her. Q That may be one reason, maybe things would settle down? A I haven't spoken to her for a while but that's my choosing. Why would I want to speak to her. If she'd done her job properly as a mum I wouldn't be here now." 102 Again, for the reasons already given (see para 97) it seems to me that these attacks on NRD, although legitimate, carried a significant risk for the appellant. 103 Another area of significant attack made on the credit of both complainant's was in respect of complaint. The appellant submitted that it was: "difficult to escape the very strong possibility that [NRD] fabricated evidence of complaint to a number of people. It is also clear that his family, particularly his brother and mother were of the view that [NRD] was capable of making wild and incoherent allegations. … he had 'mood swings' for which he was seeking professional assistance. He had a history of dishonesty, anti-social and illegal behaviour. The evidence tends to establish he had a tendency to confabulate." 104 JMD gave evidence of two assaults, one in 1983 and one in 1985, which were the subject of counts 10 and 11. He also gave evidence of two other assaults, one in 1987 and the other in 1989, to which I have referred earlier. These were admitted as relationship evidence. 105 He first complained, on his evidence, to his mother after the 1989 incident when he left a note in her lunch box. That complaint related only to the incident the previous day. He made no other complaint until 1997. It was submitted that JMD failed to explain why he did not complain at that time about the earlier incidents, which touched upon his credibility and upon the probability of his allegations both truthful and reliable. 106 In my opinion, JMD gave evidence which explained his failure to complain which was open to the jury to accept. In relation to the 1987 incident he said: "Q Did you tell your Mum what had happened to you? A No, still hadn't told her. Q And at that stage, why didn't you tell her what had happened? A Just shame, just shamed about it all. How can you tell your Mum someone - like, she was happy at this stage. We had watched her as kids being upset, with no father, she had struggled to support us and everything and she was happy, you know, you can't tell her - we didn't want to make her unhappy. … Q And was there anyone at school that you felt you could tell about what had happened? A No, its just not the sort of thing I wanted to talk about, you know. In hindsight, great, there was probably a counsellor I could have spoken to but I spent my whole time getting into trouble, not thinking about how I could sort things out." 107 He said that after the 1989 incident he was scared and could not sleep. He said he thought he "had to tell [his mother] but [he] couldn't tell her to her face" because he was "just so ashamed about it … I didn't know what to say". He explained that his mother was "a very hard to approach person". Ms D gave evidence. The jury, therefore, had an opportunity to assess whether JMD's view about his mother was likely to be accurate. 108 The appellant also relied upon the discrepancy between JMD's evidence that he complained in 1989 when he put a note in his mother's lunch box, whereas Ms D placed this as having occurred in 1990. For my part, I doubt whether a jury would place a great deal of importance on the difference in the dates in respect of this incident. What was important was the account each gave about it. In that regard, there were some discrepancies but significant correlation. Again it was a jury question. It is worth commenting at that point that the mother's reaction to the complaint provides another reason why JMD might have been reluctant to complain to her again, or at all. She told JMD that he and the appellant would have to work out who was telling the truth and she would either report JMD for creating a public nuisance or the appellant for sexual assault. 109 JMD also explained why he said nothing to his mother when she called him in 1997 and told him NRD had made a statement to police: "At first I wasn't going to make a statement. I was getting on with my life and thought I was over it all and quite happy with my life." 110 He said he changed his mind after being contacted by police because he was "tormented". He continued, "I thought I was over it but obviously its still there". He was asked: "Q You're now 24 years of age. Now, after this period of time, how do you feel about what your stepfather had done to you? A Well, it's wrong. I go to counselling for it all and that seems to be helping. Now I think I'm starting to be over it and starting to realise it wasn't my fault and I'm not the only one in the whole world. At first I thought it was such a shameful thing; I must have asked for it. But now it seems that it is quite a common thing and I'm not the only one." 111 The other significant area relied on in relation to complaint and discrepancies was in relation to NRD's evidence of complaint made to counsellors. 112 In his evidence in chief, NRD said he had seen a number of different counsellors. He said he was seen by a female counsellor, whose name he could not recall. He said he told her his stepfather had been assaulting him and he was told "it was something I should try and forget about and to get on with my life". 113 He said that about this time he was placed in foster care. He said that he saw Sue Ryan, a counsellor from DOCS, and was "pretty sure [he] had mentioned" the assaults to her. In cross-examination he said that he was "sure she knew about it"; "I don't know if I complained but we spoke about it" but she effectively brushed it aside. He also spoke to his mother at about this time but she said she did not believe him. He said his mother had actually raised the topic and said it never happened. 114 NRD also saw a school counsellor at Orange High School. However, he did not say anything in his evidence in chief about making a complaint to that counsellor. Initially, in cross-examination, he said he did not tell him. NRD's evidence at the committal hearing was then put to him. That evidence was: "Q And you complained to a counsellor at Orange High School? A Yep but I only saw the one counsellor in relation to this. The other counsellors I told them but I had to see them for something else. They decided that my drug problems I had to go and see a counsellor for. Q So the counsellors you saw were people referred by Family Services in Canberra? A Yep. Q One of them is a school counsellor at Orange High School? A Yep. Q And one of them was Sue Ryan? A Mm, mm. Q And to each of these people you made a compliant(sic) of being repeatedly sexually assaulted, is that right? A I don't know if I said repeatedly. All I said was 'I was sexually assaulted by my stepfather' and they were like, oh well brush that aside." 115 NRD then said: "A Yeah, we spoke. I didn't come up and say this happened and this happened and this happened but we spoke about different things, about problems I was having with it, yes. Q You said you'd been sexually assaulted when you'd spoken to that person? A I said I'd been assaulted, yeah." 116 He was also cross-examined about his evidence at the committal that he complained to a male counsellor that he had been sexually assaulted, a matter he did not refer to in his evidence in chief: "Yeah, we spoke about what happened. I didn't say this happened and this happened and this happened. What I said was I was having problems sleeping at night. What else - you know just various different things like that. You've probably got the notes in front of you and can read them yourself that he would have taken." 117 NRD also mentioned that he had seen an "Open Family Counsellor". He stated that he thought the counsellor's name was Ted but he could not "really remember". NRD did not say in his evidence in chief whether he had told Ted that he had been assaulted. In cross-examination he stated: "No, I didn't tell him. I didn't come up and say, 'This is what happened to me', no. We talked around it, but I didn't say this happened, this happened, and this happened and this happened." 118 NRD was then cross-examined about his committal evidence in which he stated that he had "complained to" Ted but had told him he "didn't want it to go further … [and] .. said [he] didn't want anything … done about it". 119 Following these comments, NRD was asked in re-examination: "… you were asked about whether you told him about being sexually assault 'No, I didn't say this is what happened to me. We talked around it'? … Did you ever outline as you've done for us, all the things that had happened to you?" 120 He answered, "no". 121 It was submitted that NRD's evidence was internally inconsistent and that when challenged with the committal proceedings evidence he gradually enlarged his evidence to say he had complained to four counsellors and that "when … confronted with the proposition none of these complaints had been made he refused to answer and left the court". The transcript records the following to have occurred: "Q I suggest that these - what you're putting is that there's been a whole series of people to whom you said that you'd been sexually assaulted by your stepfather and you said that you complained to them in 1992 and that's just not true, is it? A It is. Q None of those complaints were made, were they? A (No verbal answer.) HIS HONOUR: Just answer the question. You say you spoke to those people? A Yeah I did. I've just answered that. HIS HONOUR: Just answer the questions, that's all. A I want a break. HIS HONOUR: Wait a minute, just sit down, please. Members of the jury, I think we will take a morning adjournment now and we will adjourn. Would you leave the witness box [NRD], please? A How many times do I have to answer the same question? What do you do, go home and jerk off over it?" 122 The trial judge then explained to NRD, in the absence of the jury, that he understood how distressing the proceedings were but the barrister was entitled to ask certain questions. NRD responded: "I can answer that. It's when he said that never happened; the same question over." 123 After a short adjournment the cross-examination continued. 124 There was no doubt the appellant's counsel had managed to create inconsistencies in NRD's evidence. Having done so, counsel for the appellant then sought to use NRD's behaviour to underscore that his evidence was inherently unreliable. This particular attack in cross-examination was undoubtedly a moment of great tension in the trial. But contrary to the appellant's submission, this was not an incident which unequivocally pointed to NRD being a confabulator. NRD's reaction was of such a nature that it could too have been assessed by the jury in one of two ways: either as impugning NRD's credit or as a factor which pointed to him being a witness of credit. Either way, it was a matter for the jury to assess. What can be said, however, is that this incident was a palpable demonstration that demeanour must have played a part, and probably a very significant part in the jury's assessment of the various witnesses. 125 Other parts of the cross-examination point to the importance of demeanour in the case. For example, at the commencement of the third day of giving evidence, NRD's credit was immediately attacked: "Q … these allegations, all of them, about sexual assault by your stepfather, they are a total fabrication, they are made up, aren't they? A No. Q And this is an act that you bunged on to draw attention to yourself, isn't it? A No. Q And when you were in the witness box the other day giving evidence-in-chief, you were play acting, weren't you? I will be specific, the shaking hands, the sniffling nose, that was an act, wasn't it? A No. Q Designed to attract sympathy to yourself? A (No verbal answer). HIS HONOUR: Q Would you answer this question, it is being put to you it is an act to draw sympathy to yourself? A No." 126 This cross-examination was vigorous and NRD obviously reacted to it adversely by not answering the question, requiring the judge's intervention. 127 There was another occasion that day where the following exchange took place: "Q … I suggest that you have made that up and the reason there is a confusion about these dates 1989 and 1992 is because you can't remember a lot of the things that you told the police? A No. HIS HONOUR: Q What is your answer to that, sorry? A No. Q Sorry? A No. It's not true. I mean, we were interrupted by my brother once. HIS HONOUR: All right, just answer the question. WITNESS: This is really annoying, I should just get a tape recorder and leave it saying, 'No, no, no'." 128 JMD's response to his cross-examination in respect of the lawn mower incident (para 77) provides another illustration of the importance of demeanour in this case. 129 There are other inconsistencies relied upon to demonstrate that it was unreasonable of the jury to find that the Crown had proved its case beyond a reasonable doubt. The evidence relating to the counselling session with Susan Ryan was an example. 130 I have already referred to NRD's evidence in respect of the counselling sessions. JMD recalled being present on one occasion with NRD and his mother at a counselling session with Susan Ryan. He said they were there to try and work out "problems in the family between [NRD] and I think it was Mum". He said that the meeting lasted about three minutes. He described what happened in the meeting: "A … Mum was yelling at Sue, Sue was yelling at Mum, [NRD] was yelling at everybody. I was just watching this screaming match going on. Q Do you remember anything that [NRD] said during that? A Not at all. It was just noise, just yelling, screaming, he was calling Mum a bitch and Mum was saying it's not her fault and just everything. Q What about Sue Ryan, do you remember anything she was saying? A She was blaming Mum mostly, that's all I could see. She was a very pro person, children have rights, that is what I gathered from what she was saying. … Q How did that meeting come to an end? A Mum walked out and I walked out and I think NRD walked out as well." 131 Ms D said she believed JMD came to one of the meetings with Susan Ryan and she believed it was the one where NRD raised the sexual assault. 132 She described the conferences generally with Susan Ryan as involving NRD making a lot of allegations against her - how she had favoured the other two children over him; against JMD - that he had bashed him up; and against the appellant having "beaten him up and … assaulted him … I understood he had made a statement that indicated he had been sexually assaulted by [the appellant]". She went on to describe her own confusion at the time. She said: "[I] believed because he made some many statements. Susan Ryan, and I have the impression that she gave me, to understand that he was saying whatever he could think of saying to get back at me, that he was upset, distressed and certainly he wouldn't return home. I carried that impression and that inability to understand or to determine what was correct and what wasn't correct right up until 1997 when [NRD] rang me and told me he was going to make a police statement." 133 Susan Ryan had no recollection of NRD having told her that he had been sexually assaulted nor did her file have any notation to that effect. She said the law in the Australian Capital Territory at that time required her to make a note of and report such disclosures. 134 Although the evidence of each does not correspond precisely with the evidence of the others and JMD's evidence, in particular, does not correspond, I do not think the evidence of NRD, JMD and Ms D is inconsistent or in conflict. If the conference occurred as JMD described it, it was quite possible he did not hear or comprehend what had been said about the sexual assault. Ms D's evidence supports the view the conference was volatile. Ms Ryan's evidence, however, is inconsistent and it was a matter for the jury to determine whether they accepted her or NRD. It should be noted that even if the jury did accept Ms Ryan on the question of complaint, that would not necessarily have been fatal to the Crown case. Complaint is not an ingredient of any of the offences with which the appellant was charged. 135 Another incident relied on by the appellant to demonstrate NRD could not be believed occurred in 1992 when NRD alleged another assault. After that he and the appellant went to pick up his sister at the shopping centre. He said that he told the appellant that he was going to tell his mother what had occurred. He said they had a "big argument" in the shopping centre which continued on in the car. He said the appellant stopped the car and told him to get out and not bother coming back. He then went to a refuge. He said he returned home a few days later to collect some clothes and had another argument with the appellant. NRD gave evidence that as he was leaving, the appellant said to him "that [his] Mum would never believe [him] if [he] told her and she didn't want [him] there anyway". 136 His sister's recollection of that incident was that it involved an argument over oatmeal biscuits. She did not hear any argument concerning whether NRD was going to complain to their mother. Again, whilst it was appropriate for the appellant's counsel to make a forensic point about this discrepancy, this incident does not, of itself, advance the appellant's case. The jury may have considered that S was too young at the time to appreciate the import of the argument. As she was seated in the back seat, they may have decided that she did not hear everything that was said. They may have considered that NRD was wrong in respect of the incident, but still accepted his evidence beyond a reasonable doubt in respect of the nine assaults with which the appellant was charged. Whatever view they came to, it was a matter for them to assess. 137 The above summary of the evidence does not encompass the whole of the evidence or all of the evidence to which counsel referred in written and oral submissions. However, it is a sufficient exposition to demonstrate that the second ground of appeal must fail. The evidence is such that, rather than coming to a conclusion that a jury must have had a reasonable doubt about the evidence, one is left with the overwhelming impression that this was a case where the appellant's counsel, having set out to discredit both complainants, was left in a position where their demeanour must have played an important role in the jury's assessment of their credit. As such, the case is not one which invites appellate interference on the basis that it is apparent from the transcript that a jury would have a real doubt as to the guilt of the accused: R v M. It must be said that to the extent that demeanour can be gleaned from the transcript, there were significant parts of the evidence of both complainants which a jury might have found compelling. The verdicts of guilty indicates that this jury must have so found it. 138 In the result, the appellant has succeeded in establishing that the trial judge's directions were inadequate and accordingly there should be a new trial. 139 I propose the following Orders:

(ii) The convictions and sentences on all counts to be quashed.

(iii) Order that there be a new trial on all counts. 140 GREG JAMES J: I agree with Beazley JA. 141 KIRBY J: I agree with Beazley JA.

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