R v Williams [1999] NSWCCA 9 | Case summary

1 SPIGELMAN CJ: I will invite Mr Justice Wood to give the first judgment. 2 WOOD CJ AT CL: The appellant was convicted, after trial before a jury, of one count of sexual intercourse with a child above the age of ten years and under the age of sixteen years ( Crimes Act 1900 s 66C(1)). For that offence he was sentenced to a minimum term of penal servitude for three years and to an additional term of three years. He now appeals against that conviction and seeks leave to appeal against the sentence. 3 He was initially indicted on three counts, two of indecent assault and one of sexual intercourse without consent, each allegedly occurring over a weekend, when the complainant went to stay at his home, in order to assist him with the muster of some cattle. The three counts spanned the period 6 May 1989 to 8 May 1990. It became apparent during the trial that the relevant occasion of the muster was the weekend of 4 and 5 May 1991. 4 The trial judge thereupon permitted an amendment of count 3 to accommodate this circumstance and directed an acquittal on the other two counts for the reason that s 61E, under which the charges had been brought, had been repealed before May 1991. 5 It was the Crown case that the complainant, who was a keen horsewoman and aged fifteen years in May 1991, was invited to the home of the appellant for the muster. The appellant was a friend of her father. He had performed some work as a farrier in relation to her horse and he had also had contact with her through the local Pony Club. The complainant's recollection in chief was that the visit to the appellant's home, and the muster at Chichester Dam, occurred when she was in Year 7 and aged thirteen years. She recalled that the appellant's wife had been present at the home, along with their three daughters, the youngest of whom was a baby. She also recalled that his wife had been pregnant with their fourth child at the time. 6 That was one of two material circumstances in dating the alleged incident, since it was established that this fourth child was born in November 1991. 7 The complainant said that a bed was made up for her in the sitting room and placed next to a common wall to the main bedroom. It was her account that during the night the appellant came to her bed, and committed an indecent assault that was charged as one of the two counts, that were later taken away. In the course of rebuffing the appellant she said, "No" several times to him, in a progressively louder voice. Her intention was to attract the attention of his wife and to discourage him. She was successful in that latter respect. 8 The next day she went out with him to the dam to muster the cattle. During the afternoon she said that he touched her breasts, removed her riding pants and placed his penis in her vagina before withdrawing and ejaculating. He said that he desired to marry her. This conduct gave rise to the second count of indecent assault and to the count of sexual intercourse with a child aged between ten and sixteen years. 9 The victim said that she did not complain to her parents because: "my father was very good friends with Kim, and my father's also got a very bad temper, yeah, and I was just frightened of the consequences. The way I felt, Mum had no power or say anyhow, over my father." 10 The complainant brought the matter to the notice of police in May 1996. By the time she gave evidence she was aged twenty-one years. 11 The appellant gave sworn evidence to the effect that the cattle had been mustered for sale, because he had suffered an injury, and had decided not to keep them any longer. He produced records showing their sale on 6 May 1991 through the Maitland Saleyards. It was his evidence that he had enlisted the assistance of the complainant, because the muster was to take place in rugged country, and could not safely be done alone. He was certain that it had lasted for the two days of the weekend, whereas the complainant thought that she had only been to Dungog for one night and one day. 12 He recalled going to her home on the Friday night to pick her up, and having to wait until she returned from a Blue Light Disco. The bed on which she slept was made up in the sunroom and placed on the opposite side of that room to the position described by the complainant. He said that the house was of fibro construction, with walls that were paper thin. 13 He denied committing any of the offences alleged, and said that he had been asked by the complainant, on several subsequent occasions, to carry out farrier work for her. Additionally, he said she had been to his house on several occasions to give his children riding instruction. 14 The appellant's wife also gave evidence. She said that her fourth pregnancy had been very difficult, and that she had not been sleeping well, at the time of the complainant's visit. She also said that the bedroom door was very noisy and that, if opened during the night, it would awaken her. 15 She said that the appellant had originally asked for the complainant's younger brother to assist in the muster, and that it was only at her family's suggestion, that the complainant had been invited for that purpose. 16 There were three grounds of appeal against conviction. GROUND 1. ADEQUACY OF DIRECTIONS CONCERNING THE DELAY IN COMPLAINT 17 Assuming that the offences occurred in May 1991, there was a five year delay in complaint. The directions given in relation to delay were in the following terms: "There are a couple of directions of law that it remains for me to give you. There's a section of the Crimes Act relating to what's called absence of complaint, and I'm required to tell you that when evidence is given which suggests absence of complaint on the part of the complainant with respect to the commission of this offence - an offence of this kind, I'm required to tell you that - I'm required to warn you, the Act says that I should warn you - that I should warn the jury to the effect that absence of complaint or delay in complaining, in this case of course it's a case of delay in complaining because the common ground is that it was some years before a complaint was made, does not necessarily indicate that the allegation made by the complainant was false. So the delay in complaining does not necessarily indicate that the allegation that the offence was committed was false. That's a provision of the Crimes Act and I'm required to warn the jury in those terms. I'm required to warn you that the mere fact that a complainant doesn't complain or that the complainant delays the complaint doesn't necessarily mean that the allegation is a false one. And I'm to inform you, the Act goes on to say, that there may be good reasons why a victim of a sexual assault may hesitate in making or may refrain from making a complaint about the assault. Now you have to apply your common sense to that because that's very much an area that the jury's experience of life applies to. You have to ask yourselves in the circumstances of this case what reasons might there have been and were they good reasons, were they not good reasons. I'm sorry, I'm hesitating myself to start suggesting things to you because there might be no end to that. I'm sure if you all think about this in a general way not applying your mind to this case for the moment, you may be able to think of 101 reasons why a woman might not complain immediately about an event that occurred. What you have to do is to apply your mind to this case and say in relation to this case, what reasons may have operated on the mind of this woman, the complainant, if the assault actually did occur, the sexual intercourse, to delay her complaining, and you would ask yourselves were they good reasons. I think the Act if I may say so uses that word 'good' in a rather strange way. It's not so much the goodness of the reasons that might justify a delay. What you have to ask yourselves is - I think that's a colloquialism, good reason for doing something. You don't necessarily mean that there was something good about the reasons, but was there a reason that explains the delay. It may have been quite a bad reason, but it's the genuineness I think, was there a sincere or a genuine or valid or cogent reason, something like that. But the expression used is 'good reason' and sometimes we do use that expression colloquially, he or she had good reason for doing something. It may not involve a value judgment that something was actually good as distinct from evil or - but that's what the Act says, I should inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making a complaint. I could perhaps give an example so far removed from this case that it couldn't be - couldn't confuse you at all, but one could imagine a situation where complaints have been made before and the person's parents or guardian had just laughed at them because it had happened with someone else six months earlier, and the victim might give a reason, 'Well, I didn't complain because last time I complained I was laughed at.' As I said, you could imagine not 101, 1001 reasons why something like that might occur or not occur. So I've given you the warning and I've given you that bit of information that I'm required to give you under the Crimes Act, but I'm also required to remind you that notwithstanding this section, you may, it's entirely a matter for you and I'm certainly not telling you to do it, you may nevertheless consider the delay when you're considering the credibility or believability of the witness. You may consider it. It may have some bearing on it in your mind. Just as an immediate complaint, an immediate complaint. Supposing she had banged the wall immediately as suggested by the defence counsel and said, 'Stop, help', that would have been something that you may well have considered in her favour. It is possible for you although you may see, as I said, there may be good reason why she didn't, but it is possible for you to consider a delay, a long delay, in the opposite way as reflecting adversely on her credibility. You would also take into account may I remind you that she was a child at the time. On one view of it she could have been quite young, although it could have been - on one view could have been thirteen, but the preponderance of evidence seems to be fairly well produced now that she was older than that, possibly around about fifteen, and I'm not going to buy into the fact finding, but I have to think perhaps along the lines you may be thinking in order to make relevant comments to you. If you think she's about fifteen, you take into account the environment she grew up in, perhaps - there are many things a juror might want to consider when considering whether a person would complain. Consider whether he understanding of what happened at the time was something that would evoke an immediate complaint or might have allowed her to, so to speak, put it out of her mind at least for some time. They're all sorts of things that you're going to have to debate about and I assure you I'm not intending to convey any view one way or the other to you." 18 It was submitted that these directions, in respect of which no complaint was made at the trial, were unbalanced, so far as they laboured in favour of the prosecution the matters referred to in s 405B(2) of the Crimes Act ; in so far as they invited speculation as to possible reasons for delay that had not been offered by the complainant; in so far as they might have implied that delay was the norm in this type of case; and in so far as insufficient explanation was given concerning the way in which the jury were to assess the relevance of delay in relation to the complainant's credibility, or concerning any impact that delay had upon the appellant's ability to defend himself. 19 This is not a case where the trial judge gave only a s 405B(2) direction, without mention of the circumstance that silence or delay on the part of a complainant may weaken his or her credibility. The reason for the balancing direction lies in the assumption that where persons are sexually assaulted, particularly by strangers, they are likely to complain about it, and that absence or delay in complaint bespeaks an inconsistency in conduct on their part: Kilby (1973) 129 CLR 460. Prompt complaint consequent on sexual assault is however no longer regarded as a universal truism of human nature. Whether or not complaint is given may depend upon a number of circumstances including the nature and proximity of the relationship, the age and emotional maturity of the victim, the existence or otherwise of physical violence or threat, and the availability of a sympathetic person to whom a complaint might be made. 20 All this is recognised in the philosophy that underlies s 405B(2). However, as I noted in PAH CCA NSW 18 December 1998, unreported, if the s 405B(2) direction is given, it will normally be appropriate to draw the attention of the jury to the balancing consideration identified by the High Court in Crofts (1996) 186 CLR 427 at 451. The Court there said, in relation to the equivalent provision (s 61) in the Victorian Crimes Act : "...the purpose of such legislation, properly understood, was to reform the balance of jury instruction not to remove the balance. The purpose was not to convert complaints in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complaints from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial. It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts." 21 The balancing direction, concerning the effect of delay upon a complainant's credibility, required by Crofts was in fact given in this trial, and I am not persuaded that it was lost in the remainder of the charge. I shall deal with the associated submission that some greater explanation should have been given, in relation to the way that delay may impact upon credibility, when I come to the second ground of appeal. 22 The question which does require closer attention in this case is whether his Honour fell into error, in so far as he observed that the jury may be able to think of "101 reasons or 1001 reasons", why a victim of sexual assault may not make an immediate complaint. 23 The observations made in this respect were unhelpful and involved something of an exaggeration. However, they need to be understood in the context of the trial and of the summing-up as a whole. His Honour did no more than comply with the statutory direction in saying to the jury that "there may be good reasons why a victim of sexual assault may hesitate in making or may refrain from making a complaint". He correctly instructed the jury that they had to ask themselves, in the circumstances of the instant case, what reasons there might have been and whether they were good reasons. 24 Had the matter been left there and had his Honour reminded the jury of the reason that the complainant had in fact offered, there could have been no criticism. The jury were not necessarily, however, confined to the reason expressly articulated by the complainant, since there may well have been other reasons which she could not put into words or about which she felt some embarrassment. 25 The point of the direction is to bring home to the jury the collective experience and understanding of trial judges, as well as of those who have made a study of sexual assault, as to the difficulty that many complainants, particularly children, have first in bringing such matters to light, and then in articulating in the witness box the painful self reflections that they may have felt after the offence occurred. (Dr Woods, Sexual Assault, Law Reform in New South Wales, 1981, p 20.) 26 That experience, and that understanding, lies behind s 405B(2) of the Act, with which his Honour's direction literally complied. Had his Honour gone further and identified possible but unexpressed reasons why the particular complainant had remained silent for five years, then this ground of appeal would in my view have been made good. To have taken that course would have gone beyond the statutory requirement, and it would have risked sowing seeds in the minds of the jurors for which there was no evidentiary basis. It may have unwittingly misled the jury into assuming that there was in fact some other reason, unexpressed by the complainant, but known to the judge, for her silence. His Honour stopped short of speculating in that regard, or of inviting any consideration of specific reasons which had not been offered. Although his observations concerning "101 or 1001 reasons" would have been better avoided, I am not persuaded that error has been demonstrated in that respect. 27 The remaining leg of the argument raised under this ground relates to the absence of any reference, by the trial judge, to the possible adverse effects of the delay in complaint, so far as that related to the ability of the appellant to defend himself. This involves a quite different argument, although it similarly needs to be examined in the context of the particular trial. 28 In Johnston CCA NSW 31 July 1998, unreported, Spigelman CJ, who delivered the leading judgment, set out the general principles which apply, where there is a delay in complaint, as follows: "(i) Wherever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. (ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt. (iii) The need for, and content of, any comment will depend on the circumstances of the case. (iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (v) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties. (vi) Where the summing-up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate. (vii) In some cases a warning which uses terminology such as 'dangerous' or 'unsafe' to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v)." 29 No request was made for any redirection so as to deal with points (v) or (vi) in these general principles. Although the case under appeal was decided before Johnston , the principles there enunciated were not new: (See Harvey CCA NSW 9 April 1998 unreported, per Smart J at pp 11 and 12; and Jones (1997) 72 ALJR 78 at 87.) 30 Nothing emerged, in the evidence led in this trial, to suggest that the appellant was in fact prejudiced by delay. On the contrary, he was able to date the relevant weekend by reference to documents, and both he and his wife professed to have a clear and consistent recollection of what had occurred. Additionally he was able to tender a video of the house, that demonstrated its construction and the squeaky door. At the highest, the appellant pointed to the possibility that, had the complaint been made promptly, he may have been able to provide some more specific detail of post-incident contact, of the actual time spent in the muster, and of the complainant's demeanour after the event. In my assessment, the matters identified do not rise above mere possibilities, which were not even thought of at the trial. They leave cause for wonder as to the kind of evidence or detail that might have been available but was lost. The present case in this regard is very different from Johnston , where the Crown itself used the fact of delay in attacking the reliability of the evidence given by the defence witnesses, to the point where a balancing direction was called for. In such a case it will only be fair to present both sides of the coin. Similarly it will be necessary to bring the effect of delay upon the defence case to notice, where some potential difficulty in that regard has been identified. Mere delay without more is not in my view enough. Each case will need to be considered upon its merits. Where, as in the present case, the defence was able to test the complainant in relation to detail and to call a positive case in reply, the likely effect of delay so far as this aspect is concerned will diminish in significance. 31 As no redirection was sought in respect of the matters raised and as I am unpersuaded of error, I would refuse leave under r 4 of the Criminal Appeal Rules . GROUND 2. WARNING CONCERNING EVIDENCE OF COMPLAINT 32 It was submitted that the directions were deficient, in so far as his Honour did not instruct the jury that they should acquit, if the complainant's "evidence" was not proved beyond reasonable doubt, or that the onus of proof did not shift even when the accused gave evidence. Further, it was submitted that his Honour erred in not giving a warning under s 165(1)(c) of the Evidence Act , and in not highlighting the suggested weaknesses in the prosecution case which had been identified by the defence. 33 Again, no redirection was sought along these lines. The submissions concerning the onus of proof may be shortly disposed of. It is not customary, contrary to the submission advanced, to give a direction that the complainant's "evidence" must be proved beyond reasonable doubt. Such a direction would tend to confuse. What must be proved beyond reasonable doubt are the elements of the offence charged. That was the direction his Honour gave when observing (p 149): "So just let me say in order to be satisfied that a crime was being committed, you must be satisfied that each of the essential elements existed." As to the second leg of this complaint, contrary to the submission put, his Honour did instruct the jury as follows: "it was said rightly that the accused didn't have to give evidence and that flows from the fact that he doesn't have anything to prove. The Crown must prove the case. The Crown carries the onus of proof." 34 So far as the remainder of the submission is concerned, it may be accepted that the need for a caution, in relation to the reliability of a witness' evidence, does not depend solely on whether or not an accused seeks a direction under s 165 of the Evidence Act . As this Court said in Vawdrey CCA NSW 16 April 1998, unreported, a direction may be required where the judge assesses that the evidence may be "unreliable". The matters identified in s 165(1) are but instances of situations where unreliability may arise. They do not purport to be exhaustive. 35 The present case is one where it was patently obvious that the complainant was uncorroborated, and that her evidence was directly contradicted by the appellant, who gave evidence on oath. His Honour at no stage fell into the error of suggesting, or encouraging, the jury to approach their task upon the basis that they were simply to decide which of the two they preferred. He underlined, in specific terms, the need to approach the complainant's evidence with care in the following passage: "Both counsel have suggested to you that I will say to you, both of them, that you should scrutinise carefully the evidence of Ms Chapman. Because we live in an age when we have to be careful that what we say is politically correct if I may say so, it becomes important for me to say to you very hastily and very forcefully, that's not because she's a woman, it's not because she's the female victim of an assault by a male person. I have not suddenly become a sexist. Why I say that to you is this, that in every case whether the person complaining be a male or a female or something else, in every such case where the evidence is not - where the evidence as it were stands alone or very much alone and someone's - and the conviction of another person depends on it, it stands to reason that you will look at the evidence in a critical sense. That's not a sexist remark, and it happens that this person, Ms Chapman is a woman, but that's the only connection between what I'm saying to you and that fact. It of course is important that you look at it critically. In another case where you may have twenty witnesses supporting one another in various ways and where the evidence is not so isolated, you might not have to look quite so critically at individual witnesses. But there is no evidence corroborative of what Ms Chapman says and all I'm asking you to do is to do what counsel have suggested you should do, and that is look at the evidence, scrutinise it carefully and I think the Crown Prosecutor joined in that as well because it's common sense. It's obviously a requirement of justice." 36 Within the context of this trial, this appears to me to have constituted a sufficient warning to the jury to assess the complainant's evidence with care, in accordance with the approach outlined in Murray (1987) 11 NSWLR 12 at 19, even though such a direction is not now automatically required. There is, in that regard, no longer any basis for the assumption, which was always dubious, that the evidence of complainants in sexual assault cases is potentially unreliable. Section 405B of the Crimes Act and recent authority show that to be so. 37 It was next submitted that his Honour failed sufficiently to summarise the key points of the defence case, specifically in relation to weaknesses in the complainant's evidence. The trial was a short one, the evidence having begun and concluded within two days. In those circumstances it was entirely appropriate for his Honour to take the course followed, of not summing-up the evidence, as is permitted by s 405AA of the Crimes Act . 38 It is the case that trial judges should ensure that the jury have sufficient guidance as to the issues, including any issue that arises concerning the credibility of a principal Crown witness: RJC CCA NSW 1 October 1998, unreported. 39 The need for guidance, so as to ensure that the relevant matters are appreciated and taken into account, however, depends upon the nature of the trial, its length and its complexity. In Domican v The Queen (1992) 173 CLR 555 at 561 the Court said: "Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (14)." "Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence(16)." 40 The need to focus upon the critical issues, and to consider that matter in the context of the trial, was also made clear by the observations of Allen J in Condon (1995) 83 ACR 335, where his Honour said at p 347 that the duty of the trial judge is, "to give them assistance so that they understand what the critical issues of fact are upon application of the law to the particular case. The trial judge is not relieved from that duty by the arguments of counsel. Indeed, as Murphy J pointed out in Salvo , it would not be enough even for the trial judge accurately to state what the case for the accused is as it has been presented. He must instruct the jury what the law is in respect of that case and do so in terms which throw up, clearly, what the critical issues of fact are which it raises." 41 In the present case his Honour summarised in short form the essential submissions of the Crown Prosecutor and of defence counsel. So far as the defence was concerned his Honour said, in relation to the credibility issue: "Defence counsel on the other hand says that you should at least have a doubt about the reliability of her evidence, and he gave you a lot of eloquent reasons which I wouldn't do justice to if I tried to repeat them, but they must still be ringing in your ears because he only not long ago stopped talking to you, and he presented his arguments to you very thoroughly and you should give them the weight you think they deserve." 42 His Honour went into no greater depth in dealing with the prosecution case. In a single issue trial as short as this, when the summing-up concluded within a morning and followed immediately upon the address of defence counsel, I am unconvinced that it was necessary for the trial judge to have undertaken a comprehensive analysis of the kind that the appellant now contends for. His Honour's assessment of the position was made evident by the observation as to the eloquence of the defence submissions concerning the complainant's credibility, which he said would "still be ringing" in the jury's ears. 43 The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection. 44 I am unpersuaded that in a short trial, where the focus was on the complainant's credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is undertaken. Again I am of the view that leave should be refused to argue this ground under r 4 of the Criminal Appeal Rules . 45 Without wishing to labour the point which has now been made many times, I would repeat the observations that I made in PAH concerning the need for trial counsel, among whom I include both the Crown Prosecutor and defence counsel, to be vigilant in ensuring that any necessary directions or redirections are sought at trial. A clear risk of a miscarriage of justice will need to be identified, before this Court would intervene, where complaint has not been made at the trial. Particularly is that the case in relation to those matters which are well recognised as potentially calling for warnings. GROUND 3. VERDICT UNSAFE AND UNSATISFACTORY 46 This ground was confined to the question of whether, upon the evidence, the jury ought to have entertained a reasonable doubt as to the guilt of the appellant: M (1994) 181 CLR 487 and Jones (1997) 72 ALJR 78. 47 The matters relied upon included the circumstance that the complainant's evidence was uncorroborated, the delay in complaint, the complainant's mistake as to the time of the relevant events, her age at the time, the suggested inherent unlikelihood of the night events that were said to have given rise to one of the indecent assault charges, the contradiction in the complainant's evidence as to the sequence of the events involved in the night incident, the suggested improbability that the complainant would have gone along with the appellant on the muster had she been assaulted the night before, the later contact or association between them, the fact that the appellant gave sworn evidence denying the offences, and the fact that he was corroborated as to some of those matters of detail by his wife. Counsel also placed reliance upon the remarks passed by the trial judge when sentencing the appellant, which focused upon her vagueness as to the relevant date, the lack of corroboration and the delay in complaint, all of which were said to have been indicative of some unease in his mind as to the verdict. 48 It needs to be immediately observed that any unease that his Honour felt in this regard was not accompanied by a certificate under s 6 of the Criminal Appeal Act , or by any report for the assistance of this Court. Moreover, the three matters identified are common features in trials of this kind, each being understandable consequences of the complex human relationships that are involved in cases of child sexual assault. They are properly to be taken into account when considering this ground, but only so long as they are examined in context, and with due respect to the advantage the jury is still to be taken as having enjoyed in the assessment of the witnesses: Chidiac (1991) 17 CLR 432. 49 The reasons for the delay in complaint were unsurprising and not unreasonable. The uncertainty as to the timing of the weekend, although of considerable legal significance for the first two counts, was of no great significance for the complainant's credibility. She had pinpointed the incidents to a particular weekend from the outset, her evidence as to the visit to the appellant's home for the muster was unchanged and it was accepted by all involved that there was such a visit. The age of the complainant, particularly by the time of the trial, was not such as to invite concern; nor does it seem to me that any differences in the complainant's account of the night incidents were of any great moment. They concerned, for example, whether the appellant lay on her before or after she cried out, "No"; whether there was a door from the lounge room to the kitchen, or whether the bed in which she slept was placed up against the common wall or somewhere else. Those were matters of detail, of no real moment, as to which memories may well be uncertain. 50 The circumstance that the complainant went on the muster the following day is again not inherently improbable. She has been successful in managing to rebuff the appellant the night before, and the activity planned was of an entirely different nature, in which a job outdoors had to be completed. Moreover, I am unable to conclude that the night events were inherently improbable. Experience does show that sexual assault of children does often occur within homes, where others are present, and in circumstances where some risk of discovery exists. In this case the appellant, on the complainant's account, desisted once she made her views known, and without the need for any great deal of effort on her part. 51 Again I do not consider the fact of post-incident contact for horse-related activities to be inherently inconsistent with the complainant's account. In the circumstances described, the opportunity for, and the risk of unwanted sexual advances on those occasions, was remote. 52 After an independent review of the evidence, and taking these matters into account, I am not persuaded that the jury ought to have had a reasonable doubt as to the appellant's guilt. Accordingly I would propose that the appeal against conviction be dismissed. SENTENCE 53 His Honour expressly took into account the excellent subjective circumstances of the appellant in finding special circumstances, so as to alter the usual statutory proportion in favour of the appellant. He also properly recognised that severely deterrent sentences for child sexual assault are required: Fisher (1989) 40 ACR 442 and Baxter CCA NSW 26 May 1994, unreported. 54 The question that exercised my mind is whether an overall sentence of six years, representing 75 per cent of the maximum prescribed under the Act, was manifestly excessive for a one-off offence of this kind involving a fifteen year old girl, without any element of force or abuse of trust, and committed by a person whose antecedents were assessed by the sentencing judge as incapable of being bettered. 55 While sentencing statistics of the kind placed before us need to be viewed with care, and are subject to the limitations that are associated with sample size, the range of activities encompassed particularly within an offence of the kind charged and the inevitable variation in objective and subjective circumstances, they do serve, in the instant case, to show that a full term of six years falls towards the top of the range of sentences recorded. Although at the top of the range it is, by definition, within range, and cannot therefore in my view be said to be manifestly excessive. The offence was one involving penile penetration of a girl under sixteen years. Such conduct properly attracts the condemnation of the community, and the element of general deterrence remains a very important factor. 56 In the present case the favourable subjective circumstances were properly taken into account, in extending the additional term. I am unpersuaded that his Honour fell into error. 57 While I would grant leave to appeal against sentence, in my view the appeal should fail. 58 Accordingly, the formal orders that I would propose are: 59 1) Application for leave to appeal against sentence be granted. 60 2) The appeal against conviction and sentence be dismissed. 61 3) The conviction and sentence below be confirmed. 62 SPIGELMAN CJ: I agree with Justice Wood. 63 MCINERNEY J: I agree also. 64 SPIGELMAN CJ: The orders of the Court are as indicated by Justice Wood. **********

R v Williams

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