Her Honour did not have the benefit of a transcript. It was argued that her Honour's paraphrase showed that she had a mistaken appreciation of the evidence and that that appreciation was of a markedly milder potential prejudice to the appellant than the words actually used. I reject that submission. Her Honour's paraphrase shows a clear appreciation of the relevant thrust of the evidence namely that the complainant believed that the appellant was capable of violence of a high order. Of course, the issue in focus was the complainant's belief and not the truth or otherwise of its content.
15 The ground of appeal is expressed in terms of a challenge to the exercise of a discretion by the trial judge and the inhibitions upon appellate intervention against the exercise of such a discretion are governed by well known authority: see House v The King 1936 55 CLR 499 and the many cases in which that authority has been applied. Counsel appearing for the appellant at trial (who did not appear in the appeal) argued his application for discharge of the jury on the basis of somewhat wide ranging submissions but the essential argument referred to the statutory requirement in s137 of the Evidence Act to exclude evidence where probative value is outweighed by the danger of unfair prejudice. The applicability of that section directly faced the obstacle that no ruling was sought before the evidence emerged, it being common ground that the anticipation was that the evidence would be as particularized and not as it emerged. Thus the argument was mounted that if the evidence had been accurately anticipated, her Honour would have in the circumstances ruled that the probative value was relevantly outweighed by the danger of unfair prejudice and that discharge was a necessary remedy to avoid miscarriage.
16 It was not contended that the foreshadowed evidence as particularized was inadmissible. Nor in my view would the evidence as it emerged have been inadmissible if particularized, being both probative of the state of mind of the complainant, and relevant to a fact in issue namely whether the complainant returned to the appellant's house voluntarily. As is obvious, the actual content of the evidence given was hearsay, and provisions of the Evidence Act which permit hearsay to be probative of content were adverted to in the course of argument but it is not necessary to explore such concepts for the purpose of ruling upon the ground of appeal.
17 The learned trial judge refused the application for discharge and gave reasons for her ruling. It was argued that the reasoning in her judgment was vulnerable to attack. The power of this Court to intervene is enlivened by error in decision. In my view her Honour's decision is untainted by such.
18 It is to be noted that her Honour recorded that it was conceded that the evidence given by the complainant was relevant to her state of mind at the time of the second assault, and more particularly relevant to why she returned to the accused's house on a second occasion. Reference was made to Regina v Preston unreported CCA 9 April 1997. The facts of that case bore similarity to the present circumstances in that there was a challenge there to the exercise of discretion by a trial judge admitting evidence by a complainant that she was scared because she heard that the appellant in that case had assaulted people and that he had once taken part in a shooting. As I have said, it was not argued in the present case that the evidence was not admissible; but in effect it was argued that the danger of unfair prejudice was such that, had the matter been adverted to prior to the emergence of the evidence, it must have been excluded when s137 was applied.
19 In my view her Honour was correct to regard Preston as providing relevant guidance. Further, her Honour determined that any unfairness to the appellant could be extinguished by direction limiting the use to which the jury might make of that evidence.
20 The evidence had emerged, and the argument upon it had occupied an afternoon, resuming the following morning. Upon return of the jury, her Honour forthwith adverted to the matter, and gave this direction:
"Yesterday the complainant gave some evidence about rumours that she had heard concerning the accused. The direction of law I give you is this. That is not evidence about the accused's behaviour and you may not take it into account in coming to any - in any way about the behaviour of the accused. You may, if you wish, take the complainant's evidence about the rumours into account in coming to an assessment of her state of mind from time to time but I direct you that the evidence as she gave yesterday about rumours is nothing more than that and it is certainly not evidence about the accused's behaviour".
21 That direction was couched in such terms as to foreclose the possibility of the jury's treating the evidence as proof of any fact, or as proof of some bad character on the part of the appellant. Given that direction, the reliance by counsel for the appellant upon the judgment of the Victorian Full Court in R v Knape 1960 5 VR 469 was misplaced.
22 As has been pointed out, the evidence was not in accordance with particulars supplied, and to that extent it might be described as inadvertent in the Crown case. I would adopt the approach of Sachs LJ speaking for the Court of Appeal in R v Weaver 1968 1 QB 353 where such a situation had arisen:
"It follows, as has been repeated time and again, that every case depends upon its own facts. It also, as has been said time and again, thus depends on the nature of what had been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case when something of this nature gets into evidence through inadvertence the jury must be discharged."
23 There is no dispute that the evidence currently in focus was technically admissible; and the challenge is to discretionary exclusion against the background of s137 of the Evidence Act. In my view the course adopted by her Honour, to limit the use to which the evidence might be put, and to direct the jury in that regard firmly and immediately, was correct.
24 The next ground argued was expressed with notable lack of specificity, but as I understood it, the principal thrust of argument was focussed upon the initial absence of complaint and subsequent delay in making complaint, as being destructive of the complainant's credibility. It was necessary for the trial judge to instruct the jury, in terms of s405B of the Crimes Act, that delay in complaint does not necessarily indicate that the allegation is false; and that there may be good reason for a victim's hesitating in making complaint. Her Honour did so. It was contended that "her Honour ought properly have instructed the jury that the delay in complaint may affect (adversely) the credit of the complainant". There is ample authority that in an appropriate case fairness provokes a requirement for such a direction: Longman v The Queen 1989 168 CLR 79; Crofts v The Queen 1996 186 CLR 427; R v Gust 1999 NSW CCA 265.
25 Included in her Honour's charge to the jury was the following:
"It is for you to decide whether the fact that she complained to other people does or does not support her evidence.
It has been put to you on behalf of the accused that the delay in making the complaint is inconsistent with the complainant's evidence because if it happened in the way she said she would have complained earlier ……
However, I also instruct you that delay in making a complaint does not necessarily mean that the allegation is false. There may be a good reason why a victim of sexual assault might hesitate in making a complaint about the assault. The question for you to consider is whether, in this case, the complaint and the circumstances in which it is made, is consistent with the evidence of the complainant or whether it throws doubt on the evidence of the complainant."
26 No application was made by trial counsel for further elaboration of these directions; nor for any additional directions. The issue in this trial was not whether acts in private between two people were consensual, but whether the jury was satisfied to the requisite standard that sexual assault, or indeed any form of sexual contact had occurred at all. In the context of that stark issue, and in the absence of any perception by trial counsel that elaboration was required, I am unable to conclude that there was error in her Honour's directions.
27 It was argued that the learned trial judge should have added her imprimatur to the potential for delay in complaint to erode credibility. Imprimatur is a latin expression which translates as it may be published but the submission used it in the sense of adding the authority of the Court itself to the argument advanced at trial for the appellant. It was no part of her Honour's duty to strengthen or weaken partisan contentions. I do not say that occasions may not arise where comment by a trial judge in respect of some particular submission is appropriate, and even necessary but this was not such a case. It is inconceivable that the jury did not appreciate the plain contradiction between the appellant and the complainant and her Honour's directions appropriately pointed to the approach the jury should take in resolving that contradiction. Further it should not be overlooked that her Honour's charge to the jury was delivered following upon addresses by counsel which, it is reasonable to assume, would have made emphatic reference to matters relied upon in support of, or in derogation from, credibility. A considerable bulk of the submissions on appeal, when analysed, amount to complaint that the summing up did not repeat in terms every argument maintainable on behalf of the defence. Her Honour was not required so to do; and the summing up, read as a whole, fairly summarized the competing cases, and fairly emphasized the obligation to apply the correct onus and standard of proof.
28 Neither of the grounds of appeal against conviction has been made out.
29 Application for leave to appeal against severity of sentence was made. Attention was drawn to psychological testing which indicated that the appellant was of low intellectual ability, being statistically placed in the bottom 1 percent of the population, and categorized as mildly mentally retarded.
30 Counsel for the appellant referred to R v Scognamiglio 1991 56 A Crim R 81 and R v Bus unreported CCA 3 November 1995. Those and other authorities indicate that persons suffering from mental disorder - her Honour described him as mildly intellectually disabled - are inappropriate vehicles for sentences manifesting general deterrence. However, allowing this to be a matter attracting moderation of sentence in the instant case, the evidence of the appellant and his responses to police at interview make it clear that he appreciated the gravity of the conduct alleged; and the finding of the jury is conclusive that he perpetrated the actions involved. As remarked by Hunt CJ at CL in Bus, in such circumstances moderation need not be great.
31 I have already described without detail the nature of the sexual assaults. As to the first count, the appellant forced penile intercourse; and as to the second count, forced the complainant to fellate him. She was a fourteen year old girl at the time of the offences. In my view the sentences imposed by her Honour are well within the range of the sound exercise of discretion.
32 The sentences were cumulated with those on the additional indictment, but I see no error on the part of her Honour in terms of totality. The sentences for which the appellant received an effective custodial term of twelve months involved serious misconduct. The assault occasioning actual bodily harm related to an attack at a railway station upon a man who was struck on the head from the rear, and robbed of money whilst he lay unconscious from the blow.
33 The appellant is still a relatively young man, but it is to be noted that at the time of the sexual assault offences he was on parole, having been released after serving a minimum term of fifteen months for an offence of robbery in company. Further, the offences at the railway station to which I have just made reference were committed whilst the appellant was on bail.
34 I am unpersuaded that this Court should intervene to vary the sentence.
35 I propose the following orders: