R v SCOTT

Court of Criminal Appeal (NSW)|2004-02-13|Before: Sully J, James J, Hulme J

CITATION : R v SCOTT [2004] NSWCCA 254 HEARING DATE(S) : 13 February 2004 JUDGMENT DATE : 30 July 2004

JUDGMENT OF : Sully J at 1; James J at 2; Hulme J at 3 DECISION : See paragraph 105

CATCHWORDS : Criminal law - conduct of counsel - cross examination of accused to suggest he has changed his story - care and directions needed. CASES CITED : R v Birks (1990) NSWLR 677 followed R v Dennis [1999] NSWCCA 223; R v Abdallah [2001] NSWCCA 506; Picker v R [2002] NSWCCA 78 considered PARTIES : Regina Christopher Geoffrey SCOTT FILE NUMBER(S) : CCA 60368/03 COUNSEL : Crown: D Arnott Appellant: R Button SOLICITORS : Crown: S Kavanagh Appellant: S O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 00/61/0146 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

46 - IN THE COURT OF CRIMINAL APPEAL 60368/03

SULLY J JAMES J HULME J

Friday, 30 July 2004 R v Christopher Geoffrey SCOTT Judgment 1 SULLY J: I agree with the orders proposed by and the reasons of Hulme J. 2 JAMES J: I agree with the orders proposed by and the reasons of Hulme J. 3 HULME J: On 7 December 2001 the abovenamed Appellant was convicted of a charge that he, between 1 October and 6 November 1997 at Dubbo, did have homosexual intercourse with a male person aged 12 at the time. 4 On 28 February 2002 Judge Woods sentenced the Appellant to imprisonment for a term of 7 years including a non-parole period of 4 years, both periods to commence on 3 December 2001. By Notice of Appeal and Grounds of Appeal dated 12 September 2003, the Appellant has appealed against his conviction but made no application to appeal against sentence. There are two grounds of appeal viz:- 1. The cross-examination of the Appellant by the Crown Prosecutor created a miscarriage of justice. 2. In the circumstances of this case, the failure of the trial judge to give a full "Longman warning" constituted a miscarriage of justice. 5 The Crown case was that the Appellant was slightly acquainted with the parents of the complainant, having been introduced to them by his then fiancé Lisa Condie, that he attended on their home which was some distance out of town and suggested to their mother that her boys, the complainant and his younger brother, might like to spend a few days staying with him in town, inter alia, going to the pictures and McDonalds. At most, the Appellant would seem to have met the brother once previously and the complainant not at all. It was the school holidays, their mother agreed and the Appellant, a male friend also known to the complainant's mother, the complainant and his younger brother then drove to the Appellant's home. Both boys stayed there for two or three nights being picked up by their mother on the morning of the last day. 6 The complainant alleged that on one night he ingested some beer and rum which the Appellant provided. He said that on that occasion he passed out on a lounge in the premises and when he awoke he was conscious of the Appellant, stark naked, fondling his, i.e. the complainant's, penis. His evidence was not entirely consistent about all the circumstances or the events that followed but he said that the Appellant asked him or pushed him over into a kneeling position and then inserted his penis into the victim's anus. According to the complainant it hurt; after a little time the Appellant desisted. 7 The Appellant denied that the complainant had any alcohol except on the first night and asserted that on that occasion the complainant drank only 2 stubbies and a bit of rum. The Appellant denied that the complainant had been drunk and passed out. The Appellant also denied that he was naked and had engaged in any sexual activity. The balance of the evidence, including the cross-examination, related to incidental and, in themselves, largely inconsequential matters. 8 Mention should be made of the Appellant's age and of his financial situation at the time. He was born on 30 July 1964. (I have taken that date from the Antecedent Report tendered on sentence. However, the Appellant's approximate age must have been apparent to the jury.) The Appellant said in evidence that he had no money that weekend. He knew that at the time he invited the boys to stay but said that he knew he could rely on Lisa to pay to go to the pictures. He said that he spoke to her by phone from their parents' home. 9 The approximate dates when the complainant and his brother stayed at the Appellant's home, i.e. between 1 October and 6 November 1997, were fixed by reference to when a particular film was showing at the local cinema. The complaint was made to the police in November 1999. The Appellant was arrested and charged in August 2000. There is nothing to suggest that he had any knowledge of the complaint before then. His trial took place in December 2001, one in the previous month having been aborted when it became apparent some jurors knew one of the witnesses.

Ground 1 The cross-examination of the Appellant by the Crown Prosecutor created a miscarriage of justice. 10 On the central issue in the case the only witnesses were the complainant and the Appellant. The Appellant's credibility was therefore important. Although reminded of the matter, the Crown Prosecutor elected not to cross-examine the Appellant on his evidence denying the offending behaviour. However, the Crown Prosecutor did set out to demonstrate that the Appellant had changed his story on other matters. In significant measure, the foundation for this contention lay in the terms of the cross-examination by the Appellant's counsel. 11 According to the submissions advanced on the Appellant's behalf, these matters were themselves unimportant and the suggestions that the Appellant was not mistaken or confused but had changed his story were calculated to be very damaging. It was submitted that the questions were of no probative value but liable to have a profoundly prejudicial effect and went beyond what was appropriate. So, it was submitted, was an implicit suggestion by the Crown, that the Appellant was lying when, according to the Crown Prosecutor's closing address, he claimed a "miraculous memory" of the events of the few days. 12 According to the Appellant's submissions, this approach by the Crown Prosecutor did not demonstrate the degree of caution that this Court has, in cases such as R v Birks (1990) 19 NSWLR 677, R v Abdallah [2001] NSWCCA 506 and Picker v R [2002] NSWCCA 78, called for. It was submitted that Picker v R had certain similarities with the present case. Attention was directed to the fact that in Picker v R the Crown Prosecutor had cross-examined the accused about details that had not been put to the complainant by defence counsel and reliance was placed on remarks of Smart AJ in that case describing the cross-examination as "impermissible and highly and unfairly prejudicial to the appellant's case". 13 Listed below are the topics on which the cross-examination the subject of criticism in this appeal concentrated:- (i) Cooking of lasagne on the first evening, (ii) That Ms Condie had not been asked whether she received a phone call from the Appellant while he was at the complainant's home, (iii) On the fine details of how much the complainant had to drink, (In some places in the submissions, this topic is divided into two.) (iv) On the difference between the complainant having said his father was violent as opposed to the complainant being frightened of him, (v) Whether the Appellant had brought a blanket to the complainant when the latter was on the lounge in the Appellant's premises. (vi) On the details of how a telephone conversation with the complainant's father proceeded, and (vii) That counsel for the Appellant had not put to the complainant's mother the detail of whether she had been to the Appellant's flat previously. 14 To put some of the Appellant's evidence and his cross-examination on these topics in context, the evidence from the Crown witnesses should be referred to. 15 The complainant said he was born in February 1985. He said that he first met the Appellant when the latter attended with a Mr Power at the Appellant's home. He, his brother, the Appellant and Mr Power all went to the Appellant's flat. Lisa Condie was at the flat when they arrived. The Appellant's flatmate Nigel was not there when they arrived but the complainant thinks he saw Nigel once during the period he was there. 16 On the night the complainant said the assault occurred, which was not the first night the boys were there, the Appellant brought beer in stubbies and rum out of the fridge and he and the complainant each drank some of both. The complainant said that he could not remember how many beers or how much rum he drank but said he became pretty drunk and passed out on the lounge. After the assault, the Appellant went upstairs where the bedrooms were situate, returned with a blanket which he placed over the complainant and apparently retired to bed. The complainant spent the rest of the night sleeping on the lounge. The complainant thought he was there for 3 nights. At one stage he spoke by phone to, he thought, his mother. Later he said that it could have been his father he spoke to or it could have been both. He only remembers one call. He could not remember what the call was about. The Appellant put the phone on speaker. 17 In cross-examination he said he was not sure that Mr Power went into the Appellant's flat but he was sure that Ms Condie was there and that it was in her car that the group travelled from the complainant's home. The complainant said he was not sure how many drinks he had or how many beers the Appellant brought out. He had beers first and then rum. Asked if he might have had something like 6 beers, the complainant said he was not sure. He then agreed with a question, "And then you had some sort of rum in glasses?" He rejected a suggestion that he didn't drink that much alcohol while he was there. It was put to him that he drank some alcohol out of 2 glasses on the first night. He responded by saying that he was drinking alcohol out of a glass. 18 The complainant could not remember on which day they saw the film or whether they went to McDonalds. In his statement to the police in November 1999 he had said that they went to the movies on the day he was picked up by the Appellant. He recalled Ms Condie cooking something on one night he was at the Appellant's. He thought this was the first night. He was not sure whether he was there on two or three nights. He said that he thought it was his mother who picked him and his brother up from the Appellant's flat but in his statement he had said that it was his father. He rejected a suggestion that, when he was speaking to his family, it was he who put the phone on speaker, saying that he did not know how. 19 Cross examined about the assault the subject of the charge, the complainant adhered to his evidence of the central aspect of it but there were appreciable differences concerning details between his recollection as recounted in his statement to the police, his evidence in the first trial in November 2001 and in his evidence on 4 December 2001. It is fair to say that in some, not unimportant respects, his recollection was poor. 20 The complainant also denied a suggestion that he had spoken about having, or being able to play at, multiple personalities. In the context of him displaying one of those personalities, it was put to him that "You had two glasses of some alcohol that was present?" and "You had two drinks?" He gave some evidence of knowledge of what a "Berocca" is, aksed if he ever had had one, said "Not to my memory" and when it was suggested to him that he had asked the Appellant if he could taste one, said, "I don't know, I can't remember it." 21 The complainant's brother, born in December 1986, said that he first met the complainant at a concert and this was through Lisa Condie. Others present at that time included the complainant and their mother. On the occasion when the Appellant attended at the boys' home, Mr Power was with him. The complainant's brother said that his father was home at that time though his mother and father said the contrary. Mr Power was dropped off on the way but a flatmate of the Appellant, Nigel, was at the flat when they arrived. The complainant's brother thought that Nigel may have stayed the first night. On one night the complainant slept on the lounge downstairs. His brother thought he saw a blanket on the complainant. 22 In cross-examination the complainant's brother gave the unusual evidence that he was sure, although he could be mistaken, that the complainant was present on the occasion he met the Appellant: He thought there was an occasion during their stay when Lisa Condie cooked tea: He thought he and the complainant were at the flat on only two nights. 23 Ms Condie gave evidence that previously she had invited the complainant's family to meet the Appellant and thought this had occurred at the Appellant's flat. She thought the complainant and his mother (transcribed as "Markie") were there. Ms Condie also said that she first became aware that the boys were at the Appellant's flat on the first morning they were there when she attended to drop her car off. When she arrived the complainant was sitting on the lounge-room floor and the Appellant was giving him a Berocca. She left for a time, returning in the afternoon, then staying and cooking dinner. She said that she went home that night, returned the next day and then all went to the cinema. 24 In cross-examination she said that she did not remember lending the Appellant her car to go out to see the complainant's family. She re-affirmed her memory of first learning that the boys were at the flat when seeing them in the morning and, when it was suggested to her that she was at the flat when the Appellant and the boys arrived on the first night and then cooked dinner, she said that that was not her memory. Her statement about the matter was on 3 April 2000 and that was the first time she had been asked to remember the events. 25 The complainant's mother said that she first met the Appellant through Ms Condie and that this occurred at a concert. The mother said that Ms Condie and the Appellant and possibly Mr Power picked the boys up from her house. She thought the boys were away for 3 nights. She picked them up at the end of this time in the morning. On the previous afternoon, she had rung and spoken to the Appellant and the complainant - she thought the Appellant first. On the phone, the complainant seemed fine. 26 In cross-examination, the complainant's mother was asked whether she had met the Appellant in a flat and denied doing so. She re-affirmed that she met him at a concert and said the complainant was there also. Asked if she had been invited to a flat to meet the Appellant, the witness said that she did not remember that. She repeated that she was not sure whether Mr Power was at her place when the boys were picked up from there and also said that, although she thought Ms Condie was, she was not sure of that. 27 In the mother's statement to the police, given at the end of 1999, she had said that Ms Condie had brought the Appellant out to her place. From the wording of the questions and answers, one may infer this was on the day the boys were picked up from there. Also during the cross-examination, the mother said that after her phone call to the Appellant, her husband rang him. 28 The complainant's father gave evidence that he had met the Appellant at a concert, having been introduced by Ms Condie and his wife. He thought most or all of his family, including the 2 boys who stayed with the Appellant were there. The father said that during the time the boys were at the Appellant's he rang, spoke briefly to the Appellant, then to the complainant and then briefly again to the Appellant. During the call the father asked the complainant how he was and the complainant said he was okay. The father suggested that he would come and pick the boys up that night but the complainant objected to that course. On the second occasion of speaking to the Appellant, the father asked the Appellant if he had been drinking. The Appellant said that he had had a couple. The boys' mother picked them up the next day. 29 The cross-examination at that stage was confined to establishing that to the father's recollection the boys stayed only 2 nights and the cross-examination apparently concluded. Then, in the absence of the jury, the Crown Prosecutor expressed concern that there had not been compliance by defence counsel with the rule in Browne v Dunn (1894) 6 R 67. 30 The Crown Prosecutor drew attention to some questions asked of the complainant in the previous trial some weeks earlier to the effect that during the father's phone call the Appellant's phone had been switched to speaker and the complainant had asked his father if he could stay for a week. Counsel for the Appellant said that he had not put that conversation to the complainant in the current trial and in that situation did not see how he could put it to the father. The Crown Prosecutor responded by saying that he put counsel for the Appellant on notice that he would be cross-examining the Appellant on the changes in the story that had occurred. 31 After discussion between the judge and counsel the father returned to the witness box and was further cross-examined. The questions and answers included:- "Q. Did you ask your son a question in relation to whether or not anyone else could hear the conversation? A. Yes I did. Q What was his reply to that? A. He said, "no." …. Q. Did he also ask you whether or not he could stay for a week? A. No. Q. You don't recall that conversation? A. No I don't. Q. I suggest that that is what he said to you? A. No I don't recall that at all. Q. And your reply was, 'No, you've got work to do at all?' (sic) A. I don't recall anything of that sort." 32 As a result of the discussion following the Crown prosecutor's reference to Browne v Dunn, the complainant was also recalled and further cross-examined. The topics raised were firstly, a conversation said to have occurred on the first night of his stay wherein it was suggested the complainant had talked about his father's discipline and said that he was frightened of his father, secondly, the complainant's recollection of the dates of his visit, thirdly, the complainant's first meeting of the Appellant, and fourthly, the telephone conversation with his father. On this last mentioned topic, the only questions and answers of present significance were:- Q During the course of that conversation did you say to your father or ask him the question, "can we stay here for a week?" A I don't think so. Q You don't think so? A No. Q I suggest that you asked him, you said, "can we stay for a week?" He said, "no, you've got things to do at home.", that that conversation took place? A I can't remember saying anything like that.

33 In connection with the first of the topics, it had been suggested to the complainant that there was a conversation about his father's discipline, to which he said he was not sure. He was then asked, "Did you tell Mr Scott you were frightened of your dad?" to which the witness responded that he did not think so, and later, that it was very unlikely he would have. 34 I turn to the Appellant's evidence. In chief he had said that through Ms Condie he had met the complainant's family at a concert although did not recall that the complainant was present on that occasion. On the day when he picked the complainant and his brother up from their home he drove there in Ms Condie's car but the only person who went with him was Mr Power. Mr Power was dropped off on the way back. On arriving at the Appellant's home the three played on a play station. His flatmate Nigel was upstairs but left the next day with his girlfriend. Ms Condie was there and "prepared lasagne because I had no money". She left, not staying the night. The complainant's brother went to bed. The Appellant and the complainant continued playing the play station and there was conversation in the course of which the complainant talked of "his father being very violent towards him". 35 The complainant "demanded a drink of alcohol" and "was very insistent and aggressive about it". The complainant drank "about two stubbies and a bit of rum" apparently left over from a party the night before. There was no drinking by the complainant during the rest of his stay. The Appellant denied that the complainant became drunk and passed out. 36 On the next morning, Ms Condie turned up while the Appellant "was having a Berocca as I usually do in the mornings and (the complainant) wanted to try some so I gave him some". During the day Ms Condie "decided that she wanted to take us all to the pictures so we went to the pictures". After that the four went to McDonalds then to the Appellant's flat. 37 On the day after going to the pictures the Appellant spoke to the complainant's mother and father on the telephone. The complainant put the phone on speaker phone, his father asked whether the boys were okay. The complainant didn't want to go home. He wanted to stay another week and his father said, "no I want you to come home, you've got things to do". On the next day the boys' mother picked them up. 38 The cross-examination to which exception was taken appears in the following extracts (The particular passages the subject of complaint have been italicised.):- T120 lines 16-56 Q So when you went out to (the boys' home) you had no money then, is that right? A That's right. Q So you had no way of affording to take the children to any movie at that time did you? A That's right. Q Are you sure you offered to take them to the movies at that time? A Yes. Q It wasn't Lisa's idea because she was the one with money? A I knew I could rely on Lisa to pay to go to the pictures. Q Had you spoken to her (Ms Condie) about looking after these children? A Yes I believe I did. Q Had you, when was that? A It was while I was at the (the complainant's home). Q You spoke to Lisa when you were at (the complainant's home)s? A Yes Q So that must've been by way of the phone? A That's correct. Q What did you say to her? A I told her that the boys were coming there to my place and if she could help by preparing a meal. Q Excuse me? A And if she could help by preparing a meal because I had no money. Q And you have a clear memory that that meal was a lasagne? A Yes, that's correct. T121 lines 14-41 Q At the beginning of the trial I gave an explanation of the case to the jury then Mr Wilson said the same, remember that? A Yes Q As part of that he said that he was standing in your shoes in the way he asked questions, do you remember that? A That's correct. Q So when he puts questions to witnesses that's from your instructions to him, isn't it? A That's right Q Because he wasn't there? A That's right Q You see it was never suggested to Lisa Condie that she'd received a phone call from you calling from the (the complainant's) residence explaining about the children, you acknowledge that don't you? A Yes Q You've changed your story to put that in, haven't you? A I never changed my story. It just came to me - to my memory. Q Just came to your memory today? A Yes. T123 lines 18-44 Q And that alcohol as you said is two stubbies and rum from a glass? A Yes Q How many glasses of rum did he drink? A From memory, just the one. Q Just one, I see. See, just going back to the questions you put to (the complainant) through your barrister, you never suggested to him that he drank two stubbies of beer at all did you? A I can't recall CROWN: Well I'd ask my friend to concede that. WILSON: Well I didn't put that, no your Honour, that's not put. CROWN: It wasn't put. Q You've changed your story again haven't you? A I haven't changed my story. I just - came back to my memory. Q Again your memory gets better as time goes on, is that the case? A Well sometimes it does.

T124 lines 17- T125, line 14 Q You said in your evidence that his father had been violent towards him, that's what he told you? A That's correct. Q What other things did he tell you about his dad, did he tell you he didn't get along with his dad, do you remember that? A Yes. Q Do you remember him saying that his father had strong discipline? A yes Q They were questions put by your barrister weren't they? A That's correct. Q And they came from you, your memory? A That's right. Q You said - is it the case that he said he was frightened of his dad? A That's right. Q Those were the questions that were put to (the complainant) about his father weren't they? A Yes. Q And then today in your evidence you've said that his father was actually physically violent, that's the case isn't it? A That's correct. Q Now that's a little bit different isn't it? A I don't see how. Q If someone says they're afraid of someone, for example (the complainant) says he's afraid of his father, that's not the same as saying that he actually -- A Well the reason he'd be afraid of his father would be is if he was physically violent. Q Excuse me? A The reason he would be afraid of his father would be if he was physically violent towards him. Q Yes, it could be a reason couldn't it? A (No verbal reply) Q You see you never suggested to (the complainant) what you've said in evidence about his father being violent towards him, you see, you see what I'm getting at? A (No verbal reply) Q It's a change isn't it? A No I don't see how.

T125 line 36 - T126 line 27 Q Now you've said in your evidence that Lisa Condie prepared a lasagne that first night? A That's correct Q You see your barrister never put to Lisa Condie or the boys that there was a lasagne prepared on that first night, do you understand that? A Yes. Q See again, you've given a different story to what was put to the witnesses, you agree? A It's not a different story. As far as I can remember it was put before the Court. CROWN: In this trial I ask my learned friend to acknowledge he never put that. WILSON: I didn't put it in this trial your Honour WITNESS: In the last one. Q You see it was also put to (the complainant) that he had two small glasses of rum when he was exhibiting this different personality, that was the evidence? A (No verbal reply) Q You acknowledge that? A Yes. Q And now you're saying he had one glass and you had the other? A (No verbal reply) Q It's a difference isn't it? A It's a long way back to remember exactly - - Q Yes, it is isn't it? A -- how much alcohol was consumed. Q Did you bring (the complainant) a blanket -- A Yes. Q -- when he was sleeping on the lounge? A Yes. Q You didn't say that in your evidence in chief did you? A I don't recall. Q So that's just something you forgot, that's the case isn't it? A Yes. T126 line 56 - T127 line 13 Q Now in terms of the conversation with the phone speaking to (the complainant's father), tell me about that conversation, what was said by whom, who answered the phone? A I can't recall who actually answered the phone, but the conversation was from (the complainant's father) - - Q To? A -- to (the complainant). Q And how could you hear that? A (The complainant) put it on the speaker phone. Q How do you put a phone on speaker phone? A By pressing the button that actually has speaker on it. T127 line 30 - 128 line 3 Q And what was (the complainant's father's) response? A No, I would like you to come home. You've got work to do." Q What happened then? A (The complainant) protested and then hung up. Q You see the version I understand it to have been put was that the phone was then handed to you and you spoke to (the complainant's father)? A Well I don't recall that Q So that's a change in your story again A It's not a change in my story, I just don't remember. Q Well you've said that (the complainant) - just then, (the complainant) hung up the phone. Did you ring up (the complainant's father) again, possible? A Not that I can recall. Q So you're not sure whether (the complainant) hung up or not? A Not a hundred percent. Q But that's what your memory is now that he hung up after this speaker phone conversation? A As far as I can remember, yes. Q I suggest that you put that phone on speaker phone? A That's not correct. Q Would you be putting that phone on speaker phone so you could listen to what was said? A I just said I didn't put the phone on speaker phone. T129 lines 16 - 44 Q How many times had you met (the complainant) and (his brother) before you invited them to your home? A I met (his brother) and (J), one of (J's) friends -- Q At that youth concert at the Christian school, is that right? A They actually came round to my place one night, my flat. Q Was that before or after this Christian school concert? A That was before. Q Who came around? A There was (J), a friend of (J's) and (the complainant's mother). Q And who? A (The complainant's mother). Q You said (the complainant's brother) the first time you said it? (No verbal reply) Q Was (the complainant's brother) there? A I meant to say (the complainant's mother). She - well had to be a driver. (The complainant's brother) wasn't there. Q So that was must a mistake to say his name? A Yes.

T130 line 29 - T131 line 1 Q And in terms of contact with this family it was two occasions in the past, not very lengthy meetings were they? A When (the complainant's mother), (J) and her friend came round to my flat they were lengthy. That wasn't a lengthy time, but the time before was just at a Christian concert, but not the one - it was another one. Q It was never suggested to (the complainant's mother) that she'd attend your flat before this stay of (the complainant) and (his brother) was it? A Well that's what happened. Q So you've changed your story again haven't you? A No I haven't. Q Your memory's got better again? A I haven't changed my story, that's just what - that's what happened. Q Are you saying that your memory's better now than what it was when you gave instructions to your barrister? A I just didn't remember that particular thing at the time. Q Your memory's different now, isn't it? A It's just improved as the case is going along. Q Yes it's improved with time, that's what your evidence is, isn't it? A I'm just remember it. Things spark people's memories. 39 In re-examination, the Appellant was referred to his evidence that there were no questions asked in the current trial about what Ms Condie prepared for dinner, and evidence then obtained that in the previous trial the Appellant had heard his counsel put to her that it was lasagne. 40 An appropriate starting point in a consideration of the complaints about the cross-examination lies in a reference to the relevant law. That includes ss102, 103 and 104 of the Evidence Act. So far as is presently material, those sections provide:- " 102 The credibility rule Evidence that is relevant only to a witness's credibility is not admissible. 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. (2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. 104 Further protections: cross-examination of accused (1) This section applies only in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant's credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or (c) has made a prior inconsistent statement. (4) Leave must not be given for cross-examination by the prosecutor about any matter that is relevant only because it is relevant to the defendant's credibility unless: (a) evidence has been adduced by the defendant that tends to prove that the defendant is, either generally or in a particular respect, a person of good character, or (b) evidence adduced by the defendant has been admitted that tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) (b) to evidence does not include a reference to evidence of conduct in relation to: (a) the events in relation to which the defendant is being prosecuted, or (b) the investigation of the offence for which the defendant is being prosecuted. 41 The Appellant relied, as has been said, on decisions of this Court in R v Birks (1990) 19 NSWLR 677, R v Abdallah [2001] NSWCCA 506 and Picker v R [2002] NSWCCA 78. However, beyond what I have quoted early in my consideration of this first ground of appeal, there was little or no development of the suggested significance of these cases to the circumstances of the present one. 42 All 3 cases involved cross-examination of an accused on the fact that his counsel had not cross-examined Crown witnesses to the effect of evidence subsequently given by that accused and suggestions that the reason for the omission lay in the fact that the evidence was false. In all three cases, the conviction was quashed. 43 However, it is important to see the bases on which this occurred. In R v Birks, Gleeson CJ, with whose reasons McInerney J agreed, made a number of remarks concerning the rule in Browne v Dunn, the rule "that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent's witness the matters in respect of which, or by reason of which, it is intended to contradict the witness' evidence" - see p686. His Honour quoted with approval the following remarks from the earlier decision (at 686-7):- "Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him…" 44 Gleeson CJ observed, at p689, that the central object of the rule was to "secure fairness" but recognised that the effect of the rule was to make available in appropriate circumstances also the comment that evidence of a person should be disbelieved, perhaps as a recent invention, because it raised matters that were not put in cross-examination to other witnesses by that person's counsel. This is clear from his Honour's own observations at p690, and in his acceptance, at p691, of views expressed in R v Manunta (unreported, South Australian CCA, 28 July 1989). Referring to that case his Honour said:- "King CJ said: 'It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an after thought on the part of the Appellant and was simply a lie told in cross-examination because he thought it would serve his interests. The cogency of such an inference might be open to question… I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from Counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds.' I would respectfully adopt those views. I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles … relating to the wide discretion available to counsel as to the manner in which a trial may be conducted." 45 Turning to the facts of the case before him, Gleeson CJ said that the failure of counsel for the accused to cross-examine in particular respects was a breach of the rule in Browne v Dunn, that a number of courses could have been followed to obviate the unfairness which consequently arose but - "In the events that occurred, however, the issue was pursued by the Crown Prosecutor, and taken up by the learned judge, on the subject of the credibility of the appellant's evidence, in a manner which was inconsistent with the need for caution stressed by King CJ; a need which, although neither the Crown Prosecutor nor the judge realised it at the time, was very much in point in the circumstances of the case. The combined effect of these various errors was that there was a miscarriage of justice. The appellant did not receive a fair trial." 46 In R v Abdallah, the Crown in its closing address placed reliance on the inconsistency between counsel's opening address and the accused's evidence. In his summing-up, the trial judge reminded the jury of the Crown's submissions in this regard, adding:- "… you might expect that counsel or certainly competent Queens Counsel, would open a case on what he expected the accused to say according to what instructions counsel had received from the accused. What the Crown submits is that this inconsistency between what Counsel expected the accused to say and what the accused did in fact say was not due to any incompetence on Mr Stratton's part, but to the fact that the accused could not get his story straight in relation to his knowledge of, or his involvement with, the carton." 47 Sheller JA, with whom the other members of the Court agreed, said that the crucial issue for the Court to resolve was "whether, in the circumstances and regardless of the true cause of the inconsistency between the opening address of Mr Stratton and the evidence of the appellant, the direction given by the trial judge was appropriate" and that "the credibility of the accused was a key issue in the trial". His Honour quoted at some length from the remarks of Gleeson CJ in R v Birks including passages his Honour had cited from R v Manunta and went on:- "24 … Whether the inconsistency arose because counsel for the accused failed to cross examine the complainant on aspects of the defence case, or because of statements made by counsel in his opening address, the effect is the same. In both situations, a question arises as to whether the conduct of counsel accords with the instructions given by the accused. And in both situations, the discrepancy between what is said or done by counsel for the accused, and the accused himself, may be due to one of several possibilities. The accused may have changed his story since giving instructions to counsel. Counsel may have misunderstood the instructions given to him, or the solicitor may not have correctly conveyed instructions to counsel. Counsel may simply have forgotten a particular part of the instructions, or become confused between the dates of the 8 and 11 January 1999. The point made in Birks and Manunta is that in such a situation, it is necessary for the trial Judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story. … 27. As a practical matter, I do not think that this Court should assume that a barrister even of Mr Stratton's experience could not make such a mistake. Experience does not, unfortunately, preclude error. More importantly, as was noted above, this Court is not primarily concerned with the actual cause of the inconsistency. Even if the chance of the inconsistency being due to an error or misunderstanding on the part of counsel for the appellant at trial was small, this should none the less have been suggested as a possibility to the jury. The comment of the trial Judge here, though, allowed for no such possibility. …

…the directions given by the trial judge were so clearly lacking in the circumspection and caution recommended in Birks and Manunta that the directions resulted in a miscarriage of justice." 48 In Picker v R, the appellant had been convicted of, inter alia, sexual intercourse without consent. The first ground of appeal had 2 limbs, one of which is of no relevance here, viz. cross-examination of an accused directed to having him assert other witnesses were lying or to retreat from what he had said. The second limb involved an issue, identified at [24], whether it was impermissible for the "prosecutor (to have) asked the appellant questions the effect of which was that he had recently made up some of his evidence because his counsel had not asked the complainant about those matters in cross-examination". Counsel had put his instructions on a number of matters to the complainant but had not put the following:- "(a) that the complainant lent on the appellant's shoulder (b) that the appellant said to the complainant, "You're a bit fresh, you're a bit frisky." (c) the complainant replied "The rain does it to me." (d) after the appellant tried to kiss the complainant she said "I don't want to kiss, I just want sex." 49 The appellant gave evidence that those things had been said or happened. 50 Having recited the Crown Prosecutor's cross-examination to the effect indicated above Smart AJ, with whom Beazley JA and Bell J agreed, said:- "41. That cross-examination was impermissible and highly and unfairly prejudicial to the appellant's case. 42. The gist of the cross-examination was unmistakable, namely because the appellant's counsel had not questioned the complainant about the specified matters, the appellant was telling lies. He had made up his evidence on these points." 51 His Honour then quoted at some length from Gleeson CJ's remarks in R v Birks and said that R v Birks, R v Davies (unreported, CCA, 8 December 1994) and R v Rich (1998) 102 A Crim R had been applied in R v Dennis [1999] NSWCCA 23, "because the Crown in cross-examination tried to drive the accused into saying that an independent witness and the complainant were lying and also put that he (the accused) was lying because his counsel had not cross-examined the independent witness on particular points on which the accused had given evidence. The latter matter was canvassed at some length in the summing-up.

52 Returning to the circumstances of the case before him, Smart AJ drew attention to the fact that that in his closing address the Crown Prosecutor had placed emphasis on the topic of fabrication by the appellant and, although the judge had not mentioned the omissions of his counsel to cross-examine the complainant or the Crown Prosecutor's cross-examination presently under consideration, the trial had been a short one, concluding "the lingering illicit prejudice was likely to be high". His Honour observed that "no objection was taken at the hearing to the objectionable portions of the prosecutor's cross-examination nor to the prosecutor's florid address." 53 Smart AJ then referred to second and third grounds of appeal to the effect that there was a miscarriage of justice because the appellant's counsel had not properly put the appellants instructions to the complainant and did not adequately re-examine the appellant concerning them. His Honour observed that "the failure of counsel to object to impermissible and unfairly prejudicial questions and his cursory re-examination of the appellant were adverse to the appellant's interests in a case where the credibility of his evidence was important. The complaints underlying grounds 1, 2 and 3 have been established". In conclusion, his Honour observed (at 62):- "The damage done to the credit of the appellant by the impermissible cross-examination in the two areas earlier identified was probably considerable. The failure of the appellant's counsel to put his instructions adequately to the complainant made matters worse. The cursory re-examination of the appellant did not repair the damage. The prosecutor's florid address capitalised on the impermissible cross-examination. That address was delivered on the same morning as the summing-up. It is the combination of the established complaints which leads to the conclusion that there has been a miscarriage of justice. For the reasons just given this is not a case where this Court can be satisfied to the contrary."

54 Except to the extent to which I have referred, Smart AJ did not identify what it was that rendered the Crown Prosecutor's cross-examination concerning the topics not put to the complainant impermissible and unfairly prejudicial. 55 In R v Dennis, to which Smart AJ referred, the appellant had been charged with robbery and, immediately prior thereto, using corporal violence. At the conclusion of the Crown case, a further charge of assault with intent to rob with corporal violence was preferred. Part of the Crown case was that the appellant had taken and looked through a wallet from the victim who he had punched to the ground. A witness, Mr Cook, said that he had walked into the room and seen the appellant with the wallet in his hand looking through it. According to Mr Cook, the appellant then said, "This is not my wallet", threw it to the victim and left. Counsel for the appellant cross-examined the witness to the effect that he had not seen the appellant take any money. The witness agreed. As Spigelman CJ pointed out, that was sufficient for the purposes of the charge the appellant then faced. Counsel for the appellant did not challenge Mr Cook's evidence that he had seen the appellant looking through the wallet. 56 The appellant gave evidence. He denied assaulting the victim. He said that he had observed the wallet on the floor, was not sure if it was his, picked it up, saw it was not his, threw it back and left. He was cross-examined to the effect that the victim and Mr Cook had been lying - a form of cross-examination which this Court, unsurprisingly, criticised. 57 Of more present relevance is the fact that during cross-examination the Crown Prosecutor also made the point that the appellant had a barrister appearing for him, acting on instructions. Apparently echoing the Crown Prosecutor's address the trial judge, in the course of his summing-up devoted some considerable time to the failure of counsel for the appellant to have cross-examined Mr Cook to suggest that he was telling an untruth or mistaken in his evidence of seeing the appellant looking through the wallet, repeating the suggestion of the prosecutor that this indicated that the appellant had changed his version of events. 58 McInerney J, with the concurrence of Spigelman CJ and Wood CJ at CL said that that was impermissible and highly prejudicial in the circumstances of the case. The Chief Justice, with whom Wood CJ at CL also agreed, also said this:- "46 With respect to the second matter to which Justice McInerney has directed attention, namely the Browne v Dunn point, the same situation often applies. It is a submission often put with strength by Crown Prosecutors and on occasions adopted by trial judges in the summing-up. In this case, as in other cases, including the cases to which Justice McInerney has referred, the degree of prominence given to this issue is such as to undermine the requirements of a fair trial.

47 In the present case, some three pages out of an eighteen page summing-up were devoted to this question. This was based on the shaky assumption of perfection in the conduct of counsel appearing on behalf of the accused below. This is a dubious assumption, as shown in the extracts from King CJ in the case of Manunta , as adopted by Gleeson CJ in Birks , to both of which Justice McInerney has referred. …

49 At the time that this cross-examination occurred, the only charge with which the accused was then confronted, and with which his counsel was dealing, was a charge involving the removal of $20 from the wallet. At this time, accordingly, it was to the advantage of the accused for Mr Cook to have given the evidence that he did: observing Mr Dennis with the wallet in his hands and looking through the wallet, but that whilst so observing him he did not see him remove anything. This, one would have thought, would have been powerful evidence that he did not in fact take $20 from the wallet.

50 In those circumstances it is understandable that the cross-examiner did not pursue the question of whether or not Mr Cook may have been mistaken about the fact that the appellant was in fact looking through the wallet. It was only later when the alternative charge was introduced that the issue of whether or not the accused was looking through the wallet became of considerable significance. " 59 The cases to which the Chief Justice referred in paragraph [46] do not deal with the aspects of cross-examination relevant here. 60 What conclusions flow from the cases upon which counsel for the Appellant relied? There is nothing in R v Birks to suggest that an accused can not be cross-examined on apparent differences between his evidence and his case as presented in his counsel's cross-examination. In that case the Chief Justice indicated that caution and circumspection were required but that is not inconsistent with such cross-examination occurring. Indeed, if such cross-examination were not permissible, there would be little occasion, as was indicated in R v Birks should occur, for the trial judge to draw to a jury's attention, as possible explanations for the inconsistency, factors other than unreliability on the part of an accused. 61 In R v Abdallah, it was not the fact of reliance on the inconsistency between counsel's address and the accused's evidence that led to the success of the appeal but rather the lack of circumspection and caution and the failure to bring to the jury's attention other possibilities. In R v Dennis, again it was not the fact of cross-examination on apparent inconsistency but rather that the circumstance did not justify doing so. As I have said, Smart AJ did not indicate what it was about the cross-examination in Picker v R that led him to characterise it as "impermissible and highly and unfairly prejudicial". In the light of the other authorities to which I have referred, I do not regard Smart AJ's remarks as extending beyond the facts of that case or as providing any guidance here. 62 Furthermore if one accepts, as the Chief Justice's endorsement of the quoted remarks from R v Manunta makes clear one may accept, "that it is legitimate ... to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or witnesses subsequently depose", in cases where it is intended to contrast that failure with evidence subsequently given by an accused, the rule in Browne v Dunn itself make it obligatory to put to an accused the inferences or conclusions which it will be suggested should be drawn, in order that the accused may provide such explanation as he is able. 63 Before I return to the particular circumstances of this case, there is one other point which should be made. The rule in Browne v Dunn does not require that a witness be cross examined on every aspect of his or her evidence, however inconsequential or trivial in the context of the trial, upon which contrary evidence may be given. As is made clear in the passage quoted from that case by Gleeson CJ and in his Honour's own remarks, the rule is one of fairness. The obligation to cross-examine arises when it is intended to impeach a witness or to suggest that the witness is not telling the truth although even then, there may be factors relieving counsel of the obligation - see Browne v Dunn (1893) 6 R 67 at 71, 79; Seymour v Australian Broadcasting Commission (unreported, CA (NSW) 3 June 1977) at p16. Furthermore, even in circumstances where it is not intended to impeach a witness and it is merely a question of whether any inference should be drawn from a failure to ask a witness questions on a topic about which the witness could be expected to know, the importance and relevance of the topic at the time the failure occurs, is a very significant factor. 64 Against this understanding of the relevant principles, I approach the questions or topics in the Crown Prosector's cross-examination which are the subject of objection here. It is convenient to consider them first individually and then in combination. The first group included:- "Q You see it was never suggested to Lisa Condie that she'd received a phone call from you calling from the (the complainant's) residence explaining about the children, you acknowledge that don't you? A Yes Q You've changed your story to put that in, haven't you? A I never changed my story. It just came to me - to my memory." 65 The first question which arises is what, at the time Ms Condie gave evidence, was the relevance in the case of the Appellant of the conversation between the Appellant and Ms Condie. There was none. Given that there was no suggestion that she was involved in the assault, the fact that she may have known the children were coming or the fact that she had agreed to provide funds to enable a visit to the pictures or McDonald's to occur, said nothing on the issue of whether the Appellant indecently assaulted or had intercourse with the complainant. That the Appellant did not have the funds himself was calculated to raise or raise more strongly a question of why he was inviting the boys but this would not provide any reason why counsel for the Appellant would ask Ms Condie about the conversation. 66 It appears that the inspiration for the first of the Crown Prosecutor's questions which I quoted earlier, "So when you went out to (the boys' home) you had no money then, is that right?" may well have been an unresponsive part of an answer the Appellant gave in chief to the question, "So after you arrived what happened in relation to eating?", viz. "Lisa prepared lasagne because I had no money", but be that as it may, I see no relevance in the fact that Ms Condie was not asked about the phone call or any basis for the inferring from the fact she was not that the Appellant was changing his story. 67 The second area of evidence concerned the complainant's consumption of alcohol. There were 2 places where questions, the subject of present objection were asked:- Q And that alcohol as you said is two stubbies and rum from a glass? A Yes Q How many glasses of rum did he drink? A From memory, just the one. Q Just one, I see. See, just going back to the questions you put to (the complainant) through your barrister, you never suggested to him that he drank two stubbies of beer at all did you? A I can't recall CROWN: Well I'd ask my friend to concede that. WILSON: Well I didn't put that, no your Honour, that's not put. CROWN: It wasn't put. Q You've changed your story again haven't you? A I haven't changed my story. I just - came back to my memory.

and later, Q You see it was also put to (the complainant) that he had two small glasses of rum when he was exhibiting this different personality ,that was the evidence? A (No verbal reply) Q You acknowledge that? A Yes. Q And now you're saying he had one glass and you had the other? A (No verbal reply) Q It's a difference isn't it? A It's a long way back to remember exactly - - Q Yes, it is isn't it? A -- how much alcohol was consumed. 68 Whether the Appellant had supplied the complainant with a, or certainly any significant, quantity of alcohol was clearly a relevant issue. Given that the complainant had said on more than one occasion that he did not know how many drinks he had had, it does not seem to me essential that the Appellant's counsel should have put to him that he had had 2 stubbies of beer and rum from a glass. However the difference between that evidence and the suggestion which was made in cross-examination of the complainant that he had 2 drinks and this from 2 glasses was significant. Given the latter version had been put, one way or another, to the complainant the question to the effect that his counsel had never suggested to the complainant that he had had 2 stubbies of beer was admissible. In so concluding I do not ignore the fact that the complainant had been asked whether the Appellant had brought stubbies out and put them on the table. It follows that the question about a change of story was also admissible. 69 The question that it had been put to the complainant that he had had two small glasses of rum was not admissible because, despite the Appellant's subsequent acquiescence, no such question had in fact been put. On a similar basis, not admissible either was the question "And now you're saying he had one glass and you had the other?" 70 The third area of evidence lies in the following questions:- Q And then today in your evidence you've said that his father was actually physically violent, that's the case isn't it? A That's correct. Q Now that's a little bit different isn't it? A I don't see how.

and later, Q You see you never suggested to (the complainant) what you've said in evidence about his father being violent towards him, you see, you see what I'm getting at? A (No verbal reply) Q It's a change isn't it? A No I don't see how. 71 As has been indicated, it had been suggested to the complainant that there was a conversation about his father's discipline, to which he said he was not sure and he had then been asked, "Did you tell Mr Scott you were frightened of your dad?" 72 It is unnecessary to decide whether questions on these matters addressed to the complainant were admissible. They have no relevance to the charge against the Appellant and, insofar as it may be suggested they were relevant to credibility, I confess to a deal of difficulty in seeing that they had, as required by s103 of the Evidence Act, "substantial probative value". However, as the complainant's recollection was in issue concerning matters that were closely allied to the central issue of the charge, it may be the questions to him in this area could be justified as bearing on his recollection. 73 The questions to the Appellant which I have set out above had no relevance to the charge. To be admissible they had to have "substantial probative value" within s103. No leave was sought under s104(2), nor do the questions come within the ambit of s104(5) so to be admissible they had also to fall within s104(3). Although both circumstances may co-exist and one is a not unlikely result of the other, clearly there is a difference between the complainant being frightened of his father and the latter being violent. This difference means that the requirements of s104(3)(b) and (c) are satisfied. However neither the difference nor the topics otherwise satisfy the requirement of "substantial probative value". So removed in kind was the charge the Appellant faced from the topics involved in this questioning that any confusion or lack or recollection or inconsistency involved in relation to those topics said nothing on the issue of whether the Appellant should be believed in the evidence he gave concerning the charge itself. Accordingly, the questions the subject of this complaint were inadmissible. 74 The fourth area of evidence was:-

"Q Now you've said in your evidence that Lisa Condie prepared a lasagne that first night? A That's correct Q You see your barrister never put to Lisa Condie or the boys that there was a lasagne prepared on that first night, do you understand that? A Yes. Q See again, you've given a different story to what was put to the witnesses, you agree? A It's not a different story. As far as I can remember it was put before the Court. CROWN: In this trial I ask my learned friend to acknowledge he never put that. WILSON: I didn't put it in this trial your Honour WITNESS: In the last one." 75 Given that the complainant had given evidence that Ms Condie had cooked something on one night which he thought was the first, the first of the italicised questions just quoted was utterly irrelevant to any issue in the trial or to the Appellant's credibility. So was the second. Neither was admissible. Furthermore, because the Appellant's counsel had apparently asked a question about lasagne in the earlier trial, it was quite improper for the Crown Prosecutor to ask either question. 76 In its submissions in this appeal the Crown acknowledged that there was error in the asking of the principal question here, claimed that defence counsel had incorrectly agreed but submitted that the matter was defused in re-examination. Undoubtedly the re-examination has to be taken into account in any assessment of the significance of the original error. It is not however a complete answer. Impressions of witnesses are formed as their evidence proceeds. It is not easy always to dispel impressions once formed. 77 The fifth topic involved the following:- Q Did you bring (the complainant) a blanket -- A Yes. Q -- when he was sleeping on the lounge? A Yes. Q You didn't say that in your evidence in chief did you? A I don't recall. Q So that's just something you forgot, that's the case isn't it? A Yes. 78 In its written submissions in this appeal the Crown acknowledged that the "comment", "You didn't say that in your evidence in chief did you?" was better not said, adding that the evidence was consistent with and supported, the Crown case. 79 The first question was probably admissible as tending to confirm evidence of the complainant of events surrounding the assault alleged and that, in effect the Appellant had at the time shown solicitude for the complainant. However, the remaining questions had no relevance unless they came within ss103 and 104. They failed the requirements of both sections. 80 The sixth area involved the following evidence:- Q Now in terms of the conversation with the phone speaking to (the complainant's father), tell me about that conversation, what was said by whom, who answered the phone? A I can't recall who actually answered the phone, but the conversation was from (the complainant's father) - - Q To? A -- to (the complainant). Q And how could you hear that? A (the complainant) put it on the speaker phone. Q How do you put a phone on speaker phone? A By pressing the button that actually has speaker on it.

And later, Q And what was (the complainant's father's) response? A No, I would like you to come home. You've got work to do." Q What happened then? A (The complainant) protested and then hung up. Q You see the version I understand it to have been put was that the phone was then handed to you and you spoke to (the complainant's father)? A Well I don't recall that Q So that's a change in your story again A It's not a change in my story, I just don't remember. Q Well you've said that (the complainant) - just then, (the complainant) hung up the phone. Did you ring up (the complainant's father) again possible? A Not that I can recall. Q So you're not sure whether (the complainant) hung up or not? A Not a hundred percent. Q But that's what your memory is now that he hung up after this speaker phone conversation? A As far as I can remember, yes. Q I suggest that you put that phone on speaker phone? A That's not correct. Q Would you be putting that phone on speaker phone so you could listen to what was said? A I just said I didn't put the phone on speaker phone. 81 It is appropriate first to reflect on the extent to which the incidents of the phone conversation with the Appellant's father were not in dispute. There was no dispute that the father had spoken to the complainant. The latter had indicated that he was okay and that he did not wish to accept his father's offer to pick him up that night. The complainant's father gave evidence of also having conversation with the Appellant in which the latter admitted having a couple of drinks. Neither the fact of both men talking, nor the terms of such conversation were challenged in cross-examination of the father or in the Appellant's evidence in chief. It was common ground that at the Appellant's end, the phone was put on speaker. 82 The Appellant's answer to the effect that the conversation was with (only) (the complainant) is, on its face, inconsistent with the evidence to that point, an inconsistency confirmed or exacerbated by the Appellant's answer that "(the complainant) protested and then hung up". The only topic of conversation which, on any evidence, occurred thereafter concerned the Appellant's drinking. However, according to the complainant, the assault occurred after the one occasion he had been drinking, and it occurred on the second or third night he was there. Thus the conversation between the complainant's father and the Appellant could have been regarded as relevant as bearing on the night the assault occurred and rendering less significant in favour of the Appellant the complainant's father's evidence that in the conversation the complainant had indicated he was okay and wished not to be picked up that night. 83 Thus I regard the questions the subject of present consideration, challenging the Appellant's evidence to the effect that the complainant hung up the phone, as relevant to an issue in the trial and not merely to credibility. They were admissible. 84 The seventh area in which there was challenge encompasses the following:- Q How many times had you met (the complainant) and (his brother) before you invited them to your home? A I met his brother and (J), one of (J)'s friends -- A At that youth convert at the Christian school, is that right? A They actually came round to my place one night, my flat. Q Was that before or after this Christian school concert? A That was before. Q Who came around? A There was (J), a friend of (J's) and (the complainant's mother). Q And who? A (The complainant's mother). Q You said (the complainant's brother) the first time you said it? (No verbal reply) Q Was (the complainant's brother) there? A I meant to say (the complainant's mother). She - well had to be a driver. (The complainant's brother) wasn't there. Q So that was must a mistake to say his name? A Yes. and later, Q And in terms of contact with this family it was two occasions in the past, not very lengthy meetings were they? A When (the complainant's mother), (J) and her friend came round to my flat they were lengthy. That wasn't a lengthy time, but the time before was just at a Christian concert, but not the one - it was another one. Q It was never suggested to (the complainant's mother) that she'd attend your flat before this stay of (the complainant) and (the complainant's brother) was it? A Well that's what happened. Q So you've changed your story again haven't you? A No I haven't. Q Your memory's got better again? A I haven't changed my story, that's just what - that's what happened. Q Are you saying that your memory's better now than what it was when you gave instructions to your barrister? A I just didn't remember that particular thing at the time. Q Your memory's different now, isn't it? A It's just improved as the case is going along. Q Yes it's improved with time, that's what your evidence is, isn't it? A I'm just remember it. Things spark people's memories. 85 The questions the subject of present consideration were inadmissible upon, at least, the simple ground that the complainant's mother had been specifically asked, "And you didn't meet him (the Appellant) in a flat at any stage with Lisa Condie?" and "You weren't invited to a flat to meet him by Lisa Condie at any stage earlier?" 86 In summary, and subject to the impact of the strictures for which R v Birks stands as authority, (i) The questions about the phone call to Lisa Condie and the suggested change of story in that regard were inadmissible; (ii) The questions relating to the complainant having 2 stubbies of beer and the suggested change of story in that regard were admissible; The questions relating to the complainant having 2 small glasses of rum and the suggested change of story in that regard were inadmissible; (iii) The questions about the complainant's father being violent and the suggested change of story in that regard were inadmissible;

(iv) The questions about Ms Condie cooking lasagne and the suggested change of story in that regard were inadmissible;

(v) The question about bringing the complainant a blanket was admissible; The questions about not giving that evidence in chief and forgetting it were inadmissible; (vi) The questions about the ending of the phone call to the complainant's father and the suggested change of story in that regard were admissible; and (vii) The question about the complainant's mother attending the Appellant's flat and the suggested change of story in that regard were inadmissible. 87 Thus to a substantial degree at least, the attack on the Appellant's credibility upon the basis that he had changed his story was effected by inadmissible questions. 88 During the course of his closing address, which is recorded in only 3 pages of transcript, the Crown Prosecutor drew attention to some inconsistencies in the complainant's evidence suggesting they were not significant and said:- "The real issue is whether you accept (the complainant) is telling the truth. You have to focus on his evidence. Was he doing his best to tell the truth and as I've emphasised to you he has now been through two trials. He has never swayed on the central issue… His inconsistencies in his evidence… wouldn't lead you to the conclusion that he wasn't doing his best to tell the truth. 89 The Crown Prosecutor referred to inconsistencies between witnesses and that (in consequence) the jury "couldn't say that they'd got their heads together" and "there's no issue about them putting their heads together". He also said:- "Now looking at the question of who was at the flat when they arrived home. Now you remember Mr Scott's evidence as just occurred, he said that there was Nigel upstairs in his room. Lisa Condie was there. Now he never suggested to witnesses that Nigel was at the flat. So you're entitled to see that as an inconsistency in his account because it was never suggested to any witness about that. … Firstly he suggested to the witnesses that there were two glasses of rum drunk by (the complainant). Then he gives evidence today that there were stubbies of beer as well as rum and that he was drinking rum as well. So he's given quite a different account there. … He gave evidence that he discussed on the phone when he was at (the boys' home) the children coming to stay with him with Lisa Condie. Now he never suggested that to any witness. I would suggest to you that's a significant difference in his account. He is now trying to portray that they're doing it jointly, Lisa's in on everything. Whereas her evidence was clearly the first thing she knew about it, turned up and there was (the complainant) being given a Berocca. That's a significant difference I'd suggest to you. … And finally, according to Christopher Scott nothing out of the ordinary happened. Yet he's given detailed accounts of conversations of movements of people and so on about an event that occurred 4 years ago. He was only arrested on 23 August the year 2000, 3 years after it. I'd suggest to you it's implausible that he'd had this miraculous memory of something and you wouldn't accept what he's told you is the truth." 90 So far as is relevant to this ground, all the trial judge said in his summing up was the following:- "….So in a situation where we only have one witness (complainant on one side and Appellant on the other) it is important that you carefully examine that witness' version of events and treat it with consideration caution in determining whether he has given you a reliable account. So you will remember and note the evidence, his demeanour and the inconsistencies which have been pointed out to you by counsel in their addresses, but what you make of the evidence is a matter for you. The two counsel in the case have separately highlighted and referred to contradictions and inconsistencies in the evidence and it is quite obvious to you that some of it is because of the time lapse. And they have highlighted the ability or not to recall events and you have been referred to specific things by each counsel. For example, how many days did they stay at the flat. When people met. When the parents and the family met the accused. Who was there when they met. And then on the night of incident, alleged incident, how much was drunk. The exact details of the incident itself given by the complainant. There is inconsistencies. Some of these are to be expected I think you must appreciate. Some inconsistencies are to be expected after first, two years, and then now four years since the alleged incident happened, but it is up to you to assess this from your own experience, from you own experience how you recall things and not be sure of other details of events from some time in the past". (sic) 91 It is thus apparent that in his address, the Crown Prosecutor maintained the attack on the Appellant's credibility which he had pursued during cross-examination and there was no attempt by him or the judge to draw to the jury's attention any of the alternate explanations for inconsistencies which were referred to in R v Birks. I should add that there was no attempt to do so by defence counsel either. It is clear that the caution and circumspection referred to in R v Birks was not displayed in the Appellant's trial. 92 This Court's attention was drawn to the fact that none of the questions about which complaint is now made were the subject of objection during the trial, nor was there any request for a re-direction relevant to this first ground of appeal. The Crown submitted that rule 4 of the Criminal Appeal Rules applied. The Appellant countered with the claim that there had been a miscarriage of justice such that the Court would not allow the rule to govern the result of the appeal. 93 It may be mentioned that quite apart from the errors the subject of this ground, the Crown Prosecutor did not seek leave on occasions when he clearly should have, and in the 11½ pages of the cross-examination of the Appellant his counsel raised not one objection. However the appeals in this area also show that the nature and magnitude of the departure from proper practice is regarded as going to the root of the trial. In a case where an accused's credibility is of importance, it is very difficult to conclude that an illegitimate attack, apparently successful, on that credibility has not deprived that accused of a chance of acquittal. I do not so conclude in this case. 94 In my opinion the first ground of appeal has been made out. The appeal should be allowed and the conviction should be quashed. The Court should order that there be a new trial.

Ground 2 In the circumstances of this case, the failure of the trial judge to give a full "Longman warning" constituted a miscarriage of justice. 95 Having regard to the conclusion at which I have arrived in respect of the first ground of appeal, it is unnecessary that I form a concluded view on this one. However, as the matter has been argued and I take the view that, subject to the Director of Public Prosecutor's discretion, there should be a new trial, it seems to me desirable to say something about this second ground. 96 What His Honour said in the course of his directions to the jury, relevant to this ground is as follows:- "Sexual assaults are almost invariably conducted in private and away from the gaze of witnesses. That is obvious. So it is not surprising then that the complainant cannot call witnesses to support his version of what happened. But it is not the law that the complainant's evidence must be supported by evidence of witnesses to confirm his account. But just as I say there is no one who can support the account of events alleged by the complainant, the accused too is unable to call a witness to support his denials. However, I must emphasise there is no obligation at all on the accused to call witnesses to disprove the allegation. The Crown must prove the elements of the charge and prove them beyond reasonable doubt. So in a situation where we only have one witness it is important that you carefully examine that witness' version of events and treat it with considerable caution in determining whether he has given you a reliable account. So you will remember and note the evidence, his demeanour and the inconsistencies which have been pointed out to you by counsel in their addresses, but what you make of the evidence is a matter for you. It is suggested that there is some delay. Well it is noted there is some delay in making the complaint and that suggests to anyone that it could raise questions about the veracity of an allegation that is made some time after the event, although we note here it was only a delay of two years between the alleged incident and the first complaint and now four years of course before it comes to trial. But I think this is a matter that you must consider. First of all I warn you that the mere absence of a immediate complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of a complainant, but it doesn't necessarily do so. There may be good reasons why a person who has been sexually assaulted, particularly a young child, does not complain to anyone, but you must realise that it is important for you to realise the effects of absence of complaint on the ability of an accused to defend himself by testing prosecution evidence or to establish a reasonable doubt about his guilt. It has been mentioned to you already that a person has difficulties when suddenly two years after the event or three years after the event when he was charged he has to try and remember things. And with delay, and this works on both sides of course, with delay there is the possibility of distortion in human recollection. All the witnesses' recollection can be distorted, the accused, the complainant and any other witness in the case. The age of people involved in the incident could affect the issue with delay. So these are things that you have to consider and you must exercise considerable care or caution in the way you approach the evidence, but at the end of the day it is a matter for you to determine what weight you give to the complainant's evidence and how you assess it." 97 His Honour then continued (and virtually concluded his summing-up) with the paragraph I have set out in paragraph 90 above, commencing "The two counsel …" 98 The topic of delay had featured in the address of counsel for the Appellant. He suggested that during the period over which the complainant's age changed from 12 to 16 the memory, particularly of a child, might alter. The preparation of a case on behalf of someone accused might be more difficult in relation to a memory of where someone was, who they were with or what they did. Counsel pointed out that after the passage of time one may be left recalling general circumstances about an event that might have been quite detailed and gave as examples some of the different recollections of the witnesses in the case as to the occasion of the Appellant meeting the complainant and members of his family, whether the boys had stayed at the Appellant's for two nights or three nights and when the group went to the pictures. He suggested those sorts of "major signposts or reference points" were important. 99 The topic of what directions should be given in relation to the delay in complaint was raised immediately prior to the summing up, counsel for the Appellant asking for "the full warning that it's dangerous to convict in this case". Counsel for the Crown submitted that, given that delay in the case was of limited duration, such a warning was not required and referred his Honour to R v Collins [2001] NSWCCA 386. Immediately after the jury retired counsel for the Appellant raised with Woods DCJ that he had told the jury they "must exercise considerable care and caution in determining the case". His Honour acknowledged that he had watered down the delay warning to some degree because of the shortness of the time - I infer between suggested offence and the Appellant becoming aware of the complaint - and that he had not used the words "dangerous …" but declined to say anything stronger. 100 On behalf of the Appellant it was submitted that although the delay between the suggested offence in late 1997 and arrest in August 2000 was only about 3 years, that was enough to affect recollection of the sorts of matters upon which the Appellant was cross-examined and his credibility strongly attacked. Thus, it was submitted, the delay was severely detrimental. It was enough also to mean that no medical examination of the complainant could usefully occur, nor could the demeanour of the complainant on the day following the offence be usefully considered. 101 It was submitted by the Crown that counsel for the Appellant at the trial had not in fact asked for a "Longman" warning and that there was, in any event, corroboration of the complainant's story. This and other matters were said to have made a "Longman" warning unnecessary. 102 R v Collins was a case where there were 2 groups of offences. One group occurred within 2 months prior to the Appellant being interviewed by police. A second group had occurred 2 years earlier. Mason P recorded that he was not aware of any evidence indicating when the appellant was first confronted with allegations concerning the earlier group but was prepared to assume that this occurred some little time after the police interview. His Honour remarked that no particular prejudice arising from the delay was suggested apart from the possibility of more conclusive medical evidence and, with the concurrence of Sully J and Newman AJ concluded that "There was no long delay sufficient to trigger an obligation to give a specific Longman warning about the appellant being deprived of proper means to test the complainant's allegations" and that the case was not one "Where the effluxion of time deprived the appellant of the forensic weapons that a timely complaint would have allowed him to assemble, such that a judicial warning to that effect was called for". No Longman direction had been sought at trial. 103 Since R v Collins this Court has decided the matters reported as R v BWT [2002] 54 NSWLR 241 and R v DBG [2002] NSWCCA 328 and as a result it seems to me that the law is more stringent than it was as to when a warning consequent on the occurrence of delay is required. In light of the remarks in the cases just mentioned, it is clear that the summing-up in this case did not deal adequately with the topic. It is not unlikely that the delay which occurred here contributed to some of the inconsistencies upon which the Crown relied. Furthermore, if the day on which the assault was said to have occurred could have been identified, there was clear potential for some of the evidence to argue against the assault alleged having occurred. Included in this type of evidence is the phone conversation between the complainant and his father. In addition, the evidence of Ms Condie that the Appellant was giving the complainant a Berocca may have been regarded as providing some support for the complainant's evidence that he drank so much that he passed out. That evidence could not have been so regarded, at least consistently with other evidence in the case, if the night of the assault - said to have occurred on the same night as the drinking - could have been identified.

Other Matters 104 At the time of imposing sentence in respect of the charge dealt with above, Judge Woods altered the commencing date but otherwise dismissed appeals by the Appellant against the severity of sentences imposed in consequence of convictions before a magistrate in respect of 3 charges of indecent assault on a victim under the age of 16 years and one charge of inciting a person under the age of 16 to commit an act of indecency. In respect of those 4 charges, the Appellant had been sentenced to concurrent terms of imprisonment of 18 months with non-parole periods of 9 months. Judge Woods directed that those sentences should commence on 2 December 2005, which his Honour took to be the conclusion of the non-parole period imposed in respect of the charge with which this appeal has been concerned. (In fact, he overlapped the periods by one day.) 105 The allowance of the appeal against the charge of homosexual intercourse means that the commencing dates of those 4 sentences of 18 months must be changed. Section 59 of the Crimes (Sentencing Procedure) Act enables this to occur. Accordingly the orders I propose are:- (i) Allow the appeal. (ii) Quash the conviction of the Appellant in respect of the charge that he, between 1 October and 6 November 1997 did have homosexual intercourse with (the complainant) and the sentence imposed on the Appellant by Judge Woods on 28 February 2002. (iii) Order that there be a new trial on that charge. (iv) In respect of each of the 3 charges of indecent assault on a person under the age of 16 years and the charge of inciting a person under the age of 16 years upon which the Appellant was convicted at the Dubbo Local Court on or about 14 March 2001, vary the commencement dates of the sentences (and non-parole periods) imposed for those offences to 3 December 2001. **********

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