Ground 1
27 This ground is that the verdicts of the jury are unreasonable and cannot be supported. If the appellant succeeded on this ground, he would be entitled to have the convictions quashed and verdicts of acquittal entered. Therefore, it is appropriate to determine this ground before considering the second ground which, if successful, would usually result in the quashing of the convictions but the ordering of a retrial: Jones v The Queen (1989) 166 CLR 409.
28 This ground of appeal requires the court to review and assess the evidence at the trial in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant, bearing in mind that the jury is the body entrusted with the primary responsibility to determine guilt and innocence, and the advantage of the jury in having seen and heard the witnesses give evidence before them: Jones v The Queen (1997) 191 CLR 439 at 451. This court is required to set aside a conviction if there is a significant possibility that an innocent person has been convicted: M v The Queen (1994) 181 CLR 487 at 508.
29 There are a number of, what are said to be, unsatisfactory aspects in the evidence in the Crown case that are relied upon to support this ground. It was conceded by counsel for the appellant on the hearing of the appeal that, if each of the matters were considered separately, this Court would be unlikely to uphold this ground of the appeal. However, it was argued that the combined effect of the issues raised would lead the Court to the conclusion that it was not open to the jury to convict the accused on either count in the indictment.
30 It should be noted that, although the trial judge warned the jury that "it is unsafe in the circumstances of this case to convict on the evidence of [the complainant] who stands alone as proof of the Crown case", the complainant's evidence was not unsupported as is so often the case in allegations of this nature. There was evidence, which it was open to the jury to accept, that the accused had made statements to his wife that acknowledged some impropriety on his part toward the complainant. These were both what he said to her when she first raised the allegation before they separated in 1992 and the apology that induced her to return with the complainant in 1995. Further the jury were entitled to consider the failure of the accused to attend his trial and travelling to The Philippines in breach of his bail.
31 The first aspect of the evidence relied upon is the change of the date of the second count. It will be recalled that in February 2000, shortly before the trial, the complainant made a statement to police indicating that the date of the incident on which she was first penetrated by the appellant's penis was in 1990 rather than 1992 as she had maintained up until that time. As a result of this information, the Crown changed the date of the second count in the indictment before the appellant was arraigned.
32 Counsel for the appellant has stressed that this change was necessary because, had the date on the charge remained as 1992, the complainant could not have been telling the truth as to the circumstances giving rise to the second count on the indictment. The complainant maintained that the offence occurred after she and the appellant had farewelled her mother at the airport, yet on each of the overseas trips her mother undertook in 1992 she had been accompanied by the appellant. The complainant denied that she had been made aware of this fact before making her February 2000 statement. The police officer in charge of the investigation denied that the statement had come about by reason of any information that she had received about the appellant accompanying his wife overseas in 1992.
33 The complainant explained in her evidence that she had realised her mistake as to the year of this incident after seeing a photograph of herself taken at school in 1990. She said that she was wearing the ribbon her father gave her around about the time of the first act of penile penetration. She said that she did not wear the ribbon again because her hair was cut shorter in 1991. School photographs were placed before the jury for the years 1990, 1991 and 1992. The police officer gave evidence that the complainant's mother had supplied these photographs to police in January 2000 as a result of a request from the prosecution solicitor.
34 Counsel for the appellant conceded that, if the only issue had been the change of date occurring in a statement made to police in 1998, six years after the incident, a jury would have been entitled to accept the explanation proffered by the complainant. But counsel relied upon the fact that the complaint made by the complainant in September 1992 to her mother and then, apparently, to an officer from the Department of Community Services indicated that the incident of sexual assault occurred in April or May of that year. It was submitted that the complainant must have known in 1992 whether the first act of penile penetration occurred earlier that year or some two and a half years before.
35 The evidence of what the complainant had said in September 1992 about any sexual assault upon her by the appellant was unsatisfactory in that it was confusing and conflicting. Her mother gave an account of what she was told by the complainant after she questioned her about the appearance of her genitals. That account did not mention when it was that any misconduct by the appellant had occurred or whether there was one or more acts of sexual misbehaviour.
36 However, there was evidence of the account given by the complainant's mother to Dr Amin when she examined the complainant. The clinical notes taken by the doctor record that she was told that a sexual approach had occurred by the appellant to the complainant in April of that year when the complainant's mother was in The Philippines. The complainant's mother, however, denied that she told Dr Amin that the incident complained of occurred in April of that year.
37 Records of an officer from the Department of Community Services of conversations in September 1992 with the complainant's mother and the complainant, which were tendered before the jury and to which more detailed reference is made below, indicate that sexual misconduct by the appellant occurred in April or May of 1992. Both the complainant and her mother denied that the officer had been told that the incident occurred in that period of time.
38 Records in evidence showed that the complainant's mother was absent from Australia between 1 February and 10 April 1992 and again between 28 July and 9 September 1992.
39 Although it is not clear that in September 1992 the complainant was asserting that the first and only time she had been sexually assaulted by the appellant was on an occasion in April 1992 when her mother was overseas, any version of the complaint made in 1992 sits uncomfortably with the evidence of the complainant at the trial that the accused first penetrated her with his penis in 1990 and that sexual misconduct of some form continued up to a date within days of the incident when her mother spoke to her while she was having a bath.
40 The next matter raised is what is asserted to be an inconsistency between what the complainant said in evidence about allegations of sexual conduct by the accused toward her shortly after the family had come to Australia to live and what she said about the same incidents in a statement to police in May 1998. This conduct was part of the evidence of uncharged acts relied upon to disclose the relationship between the complainant and the appellant. In evidence before the jury the complainant said that the appellant had inserted his finger into her vagina whereas in her statement to police she said that he rubbed his finger "around my vagina not in".
41 The complainant explained what she had meant in her evidence and in the statement about where the appellant had touched her. Although on the face of it there might be some inconsistency in what she has said about these assaults upon her, the matter was peripheral to the charges before the jury. The complainant was recounting incidents said to have occurred in 1989 when she was aged 7 years. It does not seem to me to have been a matter of such significance that it ought to have led to the jury doubting her reliability whether taken by itself or in conjunction with the other matters raised under this ground of appeal.
42 The third matter relates to a record of the content of a conversation which occurred between the complainant and an officer from the Department of Community Services in September 1992 after the complainant had been examined by Dr Amin. The officer was not called to give evidence but records apparently made by her were tendered by consent. The material tendered appears to be part of the official records maintained by the officer in her function to receive and investigate notifications of child sexual assault.
43 The complainant said that she saw the officer on one occasion and, although the officer asked her questions about her father, the complainant did not want to talk about what happened. She said she remembered telling the officer "like when dad touched me" but denied giving her any details of the assault.
44 The notes purport to set out the content of a conversation between the officer and the complainant on 26 September 1992. It is as follows:
I then spoke with [the complainant], [the complainant's mother] was present while the interview took place. After engaging with [the complainant] I asked her about the incident of abuse with her step-father.
[The complainant] then went on to tell me that the incident occurred while her mother was in the Philippines, this was back in April/May of this year. [The complainant] said that she often watched TV in her mum and dad's room on their bed, one day she came out of the shower, she said that she only had a towel on and was lying on the bed. Her father came into the bedroom and lay on the bed then [the complainant] said that he kissed her 'flower", [the complainant] refers to her vagina as her flower. She said that he then put his finger inside her "flower". [The complainant] said that he tried to put his "pilly willy" inside her, she was referring to his penis. But she said that it hurt and she got off the bed and ran away from him. [The complainant] said that he chased her around the house and said that he won't hurt her, he'll "only put the head in". [The complainant] was not sure if he penetrated her completely. [The complainant] said that "when he was finished, he held his 'pilly willy' with a hanky and cream came out of the end of it".
45 The complainant denied that she gave this version of events to the officer. She denied that she had ever used the terms contained in the report to refer to her vagina or the appellant's penis. She also denied telling the officer that an incident occurred in April or May of that year.
46 The complainant's mother maintained that she had given all information to the officer about the incident and that there was only brief general conversation between the officer and her daughter. She denied giving the officer the account set out above.
47 There was also in evidence a record made by the same officer of what she had been told on 14 September 1992 by the complainant's mother about the complainant's disclosure to her of sexual misconduct by the appellant. This material again appears to be part of the official record made of a notification of child sexual assault received by the officer from the complainant's mother. The account is as follows:
Mother stated that [the complainant] disclosed that her step-father had sexually abused her earlier this year. Disclosure was promoted by the Hinch programme. Specifically [the complainant] said that on more than one occasion her step-father had put his penis in her vagina and ejaculated into a hankie after penetration. When child complained that it hurt her he replied that "he was only putting the head in". Child told mother that he had "kissed her vagina and put his finger inside her". He had also fondled her breasts.
Mother said that the incident occurred in April or May of this year.
48 Both the complainant and her mother denied that the complaint of sexual misconduct arose after watching a current affairs television programme. The complainant's mother denied that she had told the officer that the complaint arose in this way or that she had told the officer that the appellant had fondled the complainant's breasts. The complainant's mother denied that she had told the officer that the incident occurred in April or May of that year. It should be noted that the officer also recorded that in a conversation with the complainant's mother on 26 September 1992 the mother had confirmed that the disclosure by the complainant followed the screening of a Hinch programme on television.
49 A major difficulty with this area of the evidence is that the Crown did not call the officer at the trial and there is no suggestion in the trial transcript that the absence of the witness was explained in any way. On its face there is reliable evidence of statements made by the complainant and her mother in September 1992 which are inconsistent with accounts given by them at the trial. The material contained in the reports raises questions about the reliability of the complainant and the mother both generally and in respect of any complaint made in 1992 about sexual misconduct by the appellant.
50 The next issue raised in respect of this ground of appeal is the evidence concerning the medical examination of the complainant by Dr Amin on 12 September 1992. It will be recalled that the doctor examined the complainant's genitalia but found no evidence of bruising and that the hymen was intact. It is submitted on behalf of the appellant that this evidence was inconsistent with the complainant's account of repeated acts of digital or penile penetration over a period of 3 years immediately before the examination.
51 As would be expected, Dr Amin had no detailed recollection of the examination of the complainant and relied upon her clinical notes. She had taken a history indicating sexual conduct in April 1992 but that there was no penetration. The doctor indicated that her usual practice in conducting such an examination was to separate the labia and look at the hymen. Usually the patient would lie down with her knees drawn up, bent and separated. She said that she had experience in conducting gynaecological examinations. She had made a note that the vagina appeared normal.
52 The Crown called Dr Marks a medical practitioner with a post-graduate degree in paediatrics and who was employed in the Child Protection Unit at the Children's Hospital at Westmead. She had not spoken to Dr Amin but had examined her notes and the various statements made by the complainant to police. Her evidence was to the effect that it was necessary that a medical practitioner should be specially trained in examining the genitalia of young children in order to conduct a reliable examination of the vaginal area and the hymen of a nine year old child.
53 Dr Marks also gave evidence that she had experienced cases where there had been a mistaken interpretation made of the state of a child's hymen and explained how that might occur. She also gave evidence of studies where, although there were admissions made by an offender of penetration of a child's vagina, a medical examination of the child revealed no abnormality. She explained that these findings may be a result of healing of the hymen. It was her opinion that the findings reported by Dr Amin were not necessarily inconsistent with the history given by the complainant of repeated penetration of her hymen.
54 One of the difficulties with this area of the evidence was that, because Dr Amin was called by the Crown and as the defence did not wish to undermine her evidence, her expertise and the reliability of her examination were never called into question except indirectly by the evidence of Dr Marks. Yet Dr Marks had never spoken to Dr Amin about her examination of the complainant or the course she normally followed when examining the genitalia of a young child. Nor was it ever suggested to Dr Amin during her evidence that she was inexperienced in examining the sexual organs of young children or that she may have been mistaken in what she thought was the complainant's hymen, or that there may have been damage which she did not observe or note.
55 At the very least it seems to me to have been unfair to Dr Amin that the jury might have been left to consider her evidence on the basis that it may have been unreliable when this was never suggested to Dr Amin and she was never given the opportunity to answer the attack upon her evidence, which at least must have been implied by the Crown calling Dr Marks. There were no directions in the summing up as to how the jury should approach this evidence except by the judge summarising the submissions made by both counsel.
56 Perhaps the answer to what I consider to be the unsatisfactory nature of this part of the evidence was for the Crown to have sought leave to treat Dr Amin as an unfavourable witness and tested her evidence under s 38 of the Evidence Act. In R v Milat (SC(NSW) Hunt CJ at CL, unreported, 23 April 1996) it was held that the section could be applied where a witness was called by the Crown to permit cross-examination by the defence. Here the Crown was calling the evidence under its duty to put all relevant material before the jury. I note that the operation of the section is under consideration by the High Court which granted special leave to appeal from the decision of this Court in R v Adam (1999) 47 NSWLR 267.
57 By itself the evidence of Dr Amin was not decisive. It was open to the jury to consider the evidence of the findings of Dr Amin in light of the evidence of Dr Marks and conclude that the results of Dr Amin's examination of the complainant were not so inconsistent with the complainant's version that the complainant could not be telling the truth. But in light of the complainant's evidence of repeated acts of penetration over a number of years leading up to the medical examination in September 1992, the evidence of Dr Amin hardly inspires confidence in the reliability of the complainant's evidence.
58 The next issue was that the complainant had been shown to be untruthful because she admitted to having forged the signature of her mother and her father on notes excusing her attendance at school in 1998. In my opinion this material has such little probative value that, if objection had been taken by the Crown, it should have been rejected by the application of the credibility rule under s 102 of the Evidence Act. It does not have any bearing upon my consideration of whether it was open to the jury to convict the appellant.
59 The final matter raised in support of the ground was that the appellant could rely upon good character. While it is relevant it is, of course, not determinative of the outcome of this ground of appeal.
60 After anxious consideration, I am of the view that this ground has been made out. I am particularly concerned about the reliability of both the complainant and her mother in light of the records of the officer of the Department of Community Services. In the absence of the witness being called, there is no reason why the material should not be accepted as an honest and accurate account of what the officer was told by the complainant and her mother. If that is so, I can find no rational explanation to account for the inconsistency in the version of the complainant recorded by the officer and that given before the jury. None could be offered by senior counsel for the Crown on the hearing of the appeal. The summary of the submissions of the Crown at the trial contained in the judge's summing up makes no reference to this material and it appears that the Crown simply ignored it.
61 While the evidence of the complainant's mother might on its face have supported the evidence of the complainant in respect to statements attributed by her to the accused, her credibility was significantly undermined during the trial. Her account of contact with the officer from the Department of Community Services was inconsistent with the records of the Department. Her version of what she was told by the complainant was also inconsistent with the clinical notes of Dr Amin. The complainant's mother was also unconvincing, to say the least, in her account of how the accused came to travel with her in an adjoining seat on the flight to The Philippines after he absconded on bail.
62 I believe there is merit in the submission made on behalf of the appellant that, when the late change in the date of the second count, the evidence of Dr Amin and the records of the Department of Community Service are considered in combination, a real doubt arises as to the reliability of the complainant and her mother. Notwithstanding the advantage of the jury in seeing these witnesses give evidence before them, I am satisfied that the jury ought to have had a reasonable doubt about the Crown's case and should have acquitted the appellant on each count in the indictment.
63 In my opinion the first ground succeeds. The convictions should be quashed and verdict of acquittal entered on each count in the indictment.