REGINA v FLOOD

COUNSEL : M Ierace (Appellant) CK Maxwell QC (Respondent) SOLICITORS : T A Murphy (Appellant) C K Smith (Respondent) CATCHWORDS : CRIMINAL LAW; Evidence; Directions; Unreliable evidence Evidence Act 1995 s165(c); Use to which evidence may be put; Disregarding judge's opinion of facts unless it accords with that of juror; CRIMINAL LAW; Verdict unsafe and unsatisfactory ACTS CITED : Criminal Appeal Act 1912 (NSW) Evidence Act 1995 Connolly v "Sunday Times" Publishing Co Ltd (1908) 7 CLR 263 Greenly v Lawrence [1949] 1 All ER 241 Waterford v The Commonwealth (1986-87) 163 CLR 54 CASES CITED: Irving v Carbines [1982] VR 861 Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 Ramsay v Madgwicks [1989] VR 1 R v BD 94 ACrimR 131 Bruce v Cole (1998) 45 NSWLR 163 DECISION : Appeal dismissed

SPIGELMAN CJ BELL J SMART AJ

REGINA v Peter John FLOOD The Appellant was convicted of having had sexual intercourse with a woman without her consent knowing that there was no consent, in circumstances of aggravation. There were five grounds of appeal. Held: Appeal dismissed

1 It was open for the trial judge not to direct the jury on the use that it could make of evidence of complaint.

2 The summing-up was not defective by reason of the failure of the trial judge to expressly direct to the jury to disregard his opinions. The trial judge made it clear to the jury from the start of the trial that the jury were the sole judges of all questions of fact. 3 The trial judge did not need to direct the jury on the law of withdrawal of consent as on the evidence, there was no basis for the jury to consider that it was a reasonable possibility that the complainant consented and then withdrew her consent.

4 There was no error in failing to give a warning pursuant to s165(2) of the Evidence Act 1995 that the complainant's evidence may be unreliable. Per Spigelman CJ, Bell J concurring The trial judge was entitled to make the finding, expressly relying on his own observations of the complainant, that the complainant's evidence was not unreliable by reason of mental or physical disability. There was no "wrong decision on any question of law" within s6(1) of the Criminal Appeal Act 1912. The alleged error was one of fact: Waterford v The Commonwealth (1986-87) 163 CLR 54 referred to.

Alternatively, in a case where the reliability of a single witness is the kernel of the Crown's case, the trial judge's intention to direct the jury in his summing-up by detailed directions, rather than by incantation of a statutory formula, is capable of constituting "good reasons" for refraining from giving a warning in the precise terms of s165(2). Section 165(3) confers a discretionary power on the trial judge. The decision that there were "good reasons for not" giving a warning was open.

Per Smart AJ His Honour erred in failing to find that the complainant's evidence may be unreliable, However, no new trial should be granted on the basis of the trial judge's failure to give the warning, because of the judge's directions to the jury and the exposure of the complainant's memory problems and intellectual disabilities during the trial.

5 The verdict was not unsafe and unsatisfactory. An examination of the whole of the material before the Court reveals that the Crown case was a strong one and there was thus no miscarriage of justice.

Orders 1 Leave to raise grounds 2, 3 and 4, refused.

SPIGELMAN CJ BELL J SMART AJ

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Acting Justice Smart in draft. I agree with his Honour's orders and with his Honour's reasons for the second, third, fourth and fifth grounds of appeal. I wish to add some observations with respect to Ground 1. 2 This turns on the application of s165 of the Evidence Act 1995 (NSW) which relevantly provides: "165(1) This section applies to evidence of the kind that may be unreliable, including the following kinds of evidence: ……… (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; ……… (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. ………" 3 The scheme of s165(1) is to apply a test of possibility i.e. "may be unreliable" to evidence. For present purposes the relevant paragraph is (c) which plainly turns on an issue of possibility, namely that the evidence "may be affected by … ill health … injury", relevantly mental ill health or injury. 4 A fact finding exercise on the part of the trial judge was required as to whether or not the reliability of the complainant's evidence in the instant case "may be affected" by a mental condition. His Honour had to make this finding on the balance of probabilities in accordance with s142 of the Evidence Act, which relevantly provides: "142(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding: … any other question arising under this Act; have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include: (a) the importance of the evidence in the proceeding; and (b) the gravity of the matters alleged in relation to the question." 5 Even if the threshold is reached and the trial judge makes a finding that the reliability of the complainant's evidence "may be affected" by a mental condition, the judge is nevertheless empowered by s165(3) not to give the stipulated warning "if there are good reasons for not doing so". 6 Acting Justice Smart refers in his judgment to his Honour's comments with respect to the reliability of the complainant's evidence in the course of his Honour's remarks on sentence. Smart AJ indicates that he disagrees with the assessment therein contained. In my opinion, the relevant assessment is contained earlier in the proceedings when the matter was raised in the course of the summing-up to the jury. 7 On 4 September 1997, counsel for the appellant made submissions as to the appropriateness of a warning based on s165(1)(c) and referred particularly to what he submitted was the complainant's own indication that she had had problems with her memory. At this point the trial judge said: "Yes well I propose to tell the jury that the Crown relies essentially upon the complainant and unless they accept her as a reliable witness as to the essential features of her evidence then there should be an acquittal. I don't propose to go any further than that Mr Cruickshank."

His Honour went on to give his full reasons as follows: "Mr Cruickshank on behalf of the accused sought a direction by way of a warning under s165(1) of the Evidence Act . He submitted that the complainant's evidence may be unreliable in that her evidence might be affected by ill health with a physical or mental injury or the like. I decline to give such a warning. There is no medical evidence before me which would suggest that the complainant's account might be affected by ill health with a physical or mental injury or the like. The general practitioner who had treated her for many years gave evidence and there were no questions addressed to him to suggest that her account, by way of complaint to the police, doctors or indeed her account here was likely to be affected by the various disabilities to which she was subject. She gave evidence in this court over some hours and she did not demonstrate in her evidence and in the manner of her giving her evidence, anything which would lead me to believe that her reliability might be affected by the matters referred to in s165(1)(c). Accordingly I do not propose to give any warning to the jury that her evidence is of a kind that may be unreliable having regard to the section." 8 Acting Justice Smart has come to the conclusion that he would not allow the appeal in view of a number of considerations, including the contents of his Honour's summing-up, the opportunity the jury had to observe the complainant and the difficulties that appeared to attend some of her evidence. His Honour's approach may have justified, in an appropriate case, the application of the proviso to s6(1) of the Criminal Appeal Act 1912 (NSW). However, the Crown did not rely on the proviso in the present case and, accordingly, the Court did not receive submissions on the matter. 9 The issue on Ground 1 of the appeal turns on whether or not a warning had to be given under s165. The warning is mandatory under s165(2), if s165(1) applies. The mandatory nature of this warning is subject, however, to the power of the judge not to give the warning if "there are good reasons for not doing so", pursuant to subsection (3). 10 It is plain that his Honour had in mind the need to make the relevant finding of fact i.e. that the "reliability" of the complainant's evidence "may be affected by ill health (whether physical or mental), injury …". His Honour made the finding that the statutory test was not satisfied. In doing so, his Honour expressly relied on his own observations of the complainant. His Honour was entitled to do so. 11 Smart AJ would make a different finding. His Honour's analysis of the transcript leads him to conclude that the reliability of the evidence may have been affected. However, appeals to the Court of Criminal Appeal are not appeals by way of rehearing. 12 It is necessary to apply s6(1) of the Criminal Appeal Act 1912. For the reasons given by Smart AJ there was no miscarriage of justice. The only other applicable clause in s6(1) is a "wrong decision on any question of law". The alleged error is one of fact, not law, i.e. that his Honour ought to have found that the reliability "of the evidence," may "have been affected". However: "There is no error of law simply in making a wrong finding of fact."

( Waterford v The Commonwealth (1986-87) 163 CLR 54 at 77 per Brennan J). 13 Legal error may occur in the fact finding process. None is suggested here. Smart AJ would have come to a different decision on the facts. That is not sufficient to permit a court of error to intervene. 14 The trial judge had to be "satisfied" on the balance of probabilities under s142(1), taking into account the matters required to be taken into account under s142(2). No submission was made to the Court that his Honour committed any legal error in the fact finding process. Where a primary decision-maker must be "satisfied" of certain matters, the scope for appellate intervention is limited. (See Bruce v Cole (1998) 45 NSWLR 163 at 183-184, 187-189). None is suggested here. 15 There is an alternative basis for reaching the same conclusion. His Honour had also indicated, when the matter was first raised, that he proposed to direct the jury as to the necessity that they accept the complainant to be a reliable witness. By this reference I understand his Honour to be referring to his intention with respect to the whole of his summing-up, which was carried into effect in the manner set out in full in the judgment of Smart AJ. 16 His Honour does not refer expressly to his power under s165(3) to refrain from giving a warning where "there are good reasons for not doing so". However, his Honour's reference to his intention to direct the jury in his summing-up in a particular way is capable of satisfying this test. In a case such as the present, when the reliability of a single witness is the kernel of the Crown case, the issue of reliability is best handled in the circumstances by detailed directions rather than by the incantation of a statutory formula. This in my opinion is capable of constituting "good reasons" for not giving a warning in the precise terms of s165(2). 17 In other statutory contexts, formulae such as "good reasons" or "good cause", have been held to confer a discretion on the trial judge. (See eg Connolly v "Sunday Times" Publishing Co Ltd (1908) 7 CLR 263 at 270-271; Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 at 622-623; Greenly v Lawrence [1949] 1 All ER 241 at 242; Irving v Carbines [1982] VR 861 at 866; Ramsay v Madgwicks [989] VR 1 at 4). 18 The reference to the existence of "good reasons" for not giving a warning means "reasons" which appear to be "good" in the opinion of the trial judge. This is confirmed in the report of the Australian Law Reform Commission which led to the Evidence Act and which described s165 as a "guided discretionary approach" to the issue. (ALRC Report No 26, Evidence, 1985 par 1020). There are well known limits on appellate intervention with decisions of this character. 19 In my opinion it was open to the trial judge to find that there were "good reasons for not" giving the warning that evidence may be unreliable because, in all of the circumstances, including the evidence given as to the mental condition of the complainant and her own performance in the witness box, his Honour could best deal with the matter of her reliability in terms of detailed directions rather than in terms of a s165(2) warning. This was, in my opinion, a discretionary decision for the trial judge which it was open to the trial judge to make and this court should not intervene. 20 For these reasons I agree with the order proposed by Smart AJ.

21 BELL J: I agree with the orders proposed by Acting Justice Smart and with his Honour's reasons in respect of the second, third, fourth and fifth grounds of appeal. 22 I agree with the reasons of the Chief Justice as to the first ground of appeal.

23 SMART AJ: Peter John Flood appeals against his conviction of, on 28 November 1996 at West Gosford, in circumstances of aggravation, having had sexual intercourse with Sandra Peterson without her consent and knowing that she was not consenting. The jury was unable to agree on a charge alleging a similar offence on 16 October 1996. The Director of Public Prosecutions has "no billed" that charge. The appellant has stated that he does not wish to proceed with his application for leave to appeal against the severity of his sentence comprising a minimum term of four years nine months and additional term of one year seven months. 24 The conviction is challenged on the basis that the Judge refused to direct the jury that the evidence of the complainant may be unreliable, failed to direct the jury as to how it was to use evidence of the complainant, failed to direct the jury that it should disregard the Judge's opinion unless it accorded with their own, and failed to direct the jury as to the law on withdrawal of consent. It was also claimed that the verdict was unsafe or unsatisfactory. 25 In 1996 the complainant, aged thirty-nine, lived on her own in a house at West Gosford. She needed support. Following a car accident in July 1973 in which she suffered brain damage, she was left with a serious physical disability. She had a permanent weakness and stiffness of her upper and lower left limbs. She walked with a limp and she sometimes needed a stick or a person's arm to guide her. She was numb in the genital area as a result of a fractured pelvis. 26 On 16 October 1996 she was seated on a public bench outside a photographer's shop at West Gosford, looking at photographs which she had just collected. The appellant approached her and engaged her in conversation. He told her his name was Michael and that he lived at Chatswood. These particulars were false. They talked. He said that he was relieving at Noni's Restaurant and went into Noni's for a very short period. He came back to her and asked if she wanted a cup of coffee. She said that she could not afford it and invited him back to her residence which was nearby for a coffee. He accompanied her there. What happened thereafter is a matter of much dispute. She said that he raped her. He said that intercourse occurred with her consent. After he left, she telephoned the police and went to Gosford Police Station that afternoon where she made a complaint. 27 The complainant stayed at her mother's house for about one week. She said that when she came home she saw that the dining table was set for two and that there was a circle of lollies on the table. She also saw that the backyard had been tidied and re-arranged. Neil, the person who used to board with her came to see her that afternoon. She said that the appellant also came to her house that day. He did not stay long. He left when asked after Neil arrived. She used to leave her back door unlocked. She said that the appellant telephoned her two or three times between then and 28 November 1996. He said that he went to the complainant's house around six times following 16 October 1996 and on four of these occasions she was at home. He said that on one occasion the complainant's mother arrived to pick her up and that he remained at the premises until she returned. He telephoned her prior to coming on that occasion, she having given him her telephone number within twenty minutes of them meeting on 16 October 1996. 28 The complainant stated that on 28 November 1996 she was waiting for Lotus Carnell to arrive as previously arranged. About 12:30 pm she heard a knock at the door. She opened the door and saw the appellant there with a lolly tin and a card. The appellant asked to come in and she said, "No, you can't come in". He held the card up so she opened up the screen door to take it. The appellant pushed his way in. He said, "Come on, relax with me". She said, "No, I'm staying here". He put the tin and card on the dining room table and went into the kitchen. She stayed at the front door. 29 She said that the appellant motioned to her and said, "Come on, let's go to the bedroom". She said, "No, I'm staying here". He took her glasses off and pulled her down onto the floor against her will. The appellant said, "Have sex with me". The complainant replied, "You are an animal" and his face went redder and redder. He pulled off her jeans. She put her legs up to prevent him having sex and scratched him on the cheek. He was on top of her and proceeded to have sex with her. His bottom was going up and down. After he had finished, he got a towel and told her to wipe herself down with it. She said, "No, I'm staying here". She did not see the appellant again after that and concluded that he must have left the house. She remained on the floor for a period and then she sat in the lounge room. She heard a knock at the door. Lotus Carnell had arrived and she entered the complainant's home. The complainant told her that she (the complainant) had been raped. Some photographs were taken showing the area of the alleged offence, a small towel and her clothes on the floor. 30 The appellant said that on 28 November 1996 he went to the home of the complainant and that she welcomed him. They made love in a narrow hallway just around the corner from the front door. He said that it took place on the floor "because they were both aroused and because of the easiness in itself". He did not want to damage the ornate quilt on the bed. It was just the way it turned out during the foreplay. They thought that the various desired positions would be easier in the hallway. He said that they were both amorous towards each other. 31 He agreed that in his record of interview he said that she was not totally willing. When asked to explain, he said she was willing and that he did not use excessive force. He had earlier said in his record of interview that when he arrived she was a little dismayed. She did not seem totally happy. He said that they were kissing in the doorway but she was undecided. In the end, however, she consented. He asserted that they kissed and caressed and that she went with it and was willing. In his evidence, he said that at the door she seemed perturbed. 32 He agreed that he left quickly after intercourse took place and asserted that this was because of job interviews which he had to attend. He agreed that he walked out and left her half naked lying in the hallway. He said that her clothes were close by. He agreed that the complainant had called him an animal but he claimed that it was said jokingly. 33 The appellant agreed that he had told the complainant that his name was Michael. He asserted that this was done to protect a job which he wished to procure and to make it harder for her to contact or visit him at Noni's. He said that he initially lied to the police when he told them that he did not know the complainant because he was nervous. The Crown contended that the evidence of the appellant including his demeanour would enable the jury to more readily accept the complainant. The point has much substance. It was a matter for the jury to consider and decide.

34 Ms Lotus Ruth Carnell said that on 28 November 1996 she went to the complainant's home to take her to Gosford Police Station to make a statement about the incident of 16 October 1996. She arrived about 1:00 pm. The complainant said that she had been raped that morning and that the man (the appellant) was there about 12:25 pm. He had pushed her down in the hall. Ms Carnell found that the kitchen phone was unplugged so she plugged it in. Eventually, she spoke with Senior Constable Georgina Pluss. Ms Carnell said that when she first saw the complainant her eyes were really wide open, her face was in shock and she looked shocked. Her hair was "really messy" and her clothes were a bit dishevelled. 35 Senior Constable Pluss went to the complainant's house about 2:20 pm. She noticed that the complainant had difficulty talking. She spoke slowly and softly, "He has come back again and raped me". Asked who it was, she said "Michael, the same man as before". Further questioned, she said, "I heard a knock at the door and I was expecting it to be Lotus but when I opened the door, Michael was standing at the door holding a card. I opened the door and he forced the door open". He pushed me down into the hallway and pulled my jeans down and had sex with me. On the floor in the middle of the hallway was an item of clothing and a towel. 36 Dr Caroline Goddard examined the complainant about 3:40 pm on 28 November 1996. She had a very small bruise on her left inner elbow which she said occurred when she was pushed to the ground. On the anterior of her abdomen she had a seven centimetre red scratch mark. She had an area of erythema (redness of the skin), ten centimetres by ten centimetres, over her sacral area consistent with being pressed on the carpet. 37 There was no issue at the trial that the appellant had had sexual intercourse with the complainant on 16 October 1996 and 28 November 1996. Nor was there any issue that the first incident took place in the main bedroom and the second incident in the narrow hallway just around the corner from the front door. The Crown case was stronger in relation to the second count. The issues at the trial were did the complainant consent and did the appellant know that she was not consenting. The course taken by counsel for the appellant at the trial was to challenge the evidence of the appellant on a number of matters of detail and the accuracy of her recollection generally. At the time, the greater attention seems to have been paid to the issue whether she consented.

Direction evidence may be unreliable: 38 Appeal ground 1: "The … judge erred in declining to direct the jury in accordance with s.165(1)(c) of the Evidence Act 1995." 39 The appellant sought a direction that the evidence of the complainant may be unreliable because of her ill health (whether physical or mental), injury or the like. The Judge rejected that application upon the basis that there was no medical evidence which would suggest that the complainant's account might be affected by ill health with a physical or mental injury or the like. Further, she gave evidence over some hours and she did not demonstrate in her evidence and in the manner of her giving her evidence anything which would lead the Judge to believe that her reliability might be affected by the matters referred to in s.165(1)(c) - (SU7). 40 In his remarks on sentence the Judge said (at 1-2): "As a result of a traffic accident in 1973 she sustained a fractured skull involving brain damage and thereafter had residual symptoms by way of left upper and lower limb weakness. She was left with a significant cognitive impairment. This involved some difficulties with her memory and intellectual function and she has been subject to auditory hallucinations and symptoms of schizophrenia. She has undergone psychiatric treatment from time to time. Her physical disabilities have resulted in weakness on her left side akin to the effects of a severe stroke. She demonstrated real difficulty walking from the rear of the court and entering the witness box." 41 The Judge continued (at 3-4): "The victim described her experiences in a straightforward and intelligible fashion despite some difficulties with her speech and the fact that she got tired from time to time. Whatever her mental disability may have been, she did not exhibit any inability in this court to give a coherent account which was consistent with her complaints to everybody to whom she had spoken with regard to the assaults upon her. She had made complaint at the earliest possible opportunity and had repeated her accounts without any significant variation. What she told the police, the social workers and the doctors was entirely consistent with her evidence before this court." 42 The Judge explained that he declined to give a direction under s.165(1)(c): "as there was no manifestation whatsoever in her evidence or in the manner of her account that her description of events may have been unreliable by reason of mental or physical disability."

I disagree with this assessment. It was not open on the evidence. There were indications in her evidence of memory loss and cognitive impairments which may have affected the reliability of her evidence. 43 The Judged relied upon there being no suggestion from the complainant's general practitioner, Dr Fogarty, nor any questions put or any enquiries directed which would touch upon the question that her recollection might be unreliable or suspect by reason of mental or physical disability. The Judge noted that no questions were put to her which would suggest that her account was tainted by reason of some mental or physical impairment, albeit that it was suggested that her memory was suspect and her story was untrue on the issue of consent. 44 Dr Fogarty had been treating the complainant since 1981 and had seen her frequently. He detailed her injuries and disabilities. Because of her slightly slurred speech she had a communication disability. The doctor explained that she had a generalised intellectual deficit. She would have "some difficulties in many areas of her intellectual function, she would have some difficulties perhaps with her memory". In his dealings with her she did not have any sudden changes. Dr Fogarty declined to give any psychiatric assessment as that was outside his area of expertise. A psychiatrist to whom he referred the complainant thought that she was merely suffering from stress related problems. Dr Fogarty thought that in her normal functioning, the complainant would not ordinarily become confused. 45 Dr Fogarty did not have a record of the complainant being an in-patient of Mandala Clinic but he had a record of her seeing the area mental health team and a psychiatrist at Mandala on an out-patient basis in 1996. Dr Fogarty thought that she was capable of taking care of herself in the community with support. He did not think that she would be capable of managing her finances and more complicated domestic needs. The doctor thought that the head injury would not have affected her sexual desire. The doctor disagreed that the complainant could become easily confused. 46 The doctor explained that when he referred to the complainant having a profound psychiatric disability, he meant that she has, since 1985, required intermittent treatment from the Mental Health Services and has intermittent psychiatric symptoms of hallucinations. 47 The complainant said that as a result of her injuries from the accident, her memory was delayed; she did not remember everything eventually but remembered "spits and spats type of thing". A study of her evidence reveals that giving evidence was an ordeal for her. She became tired on occasions and lost the ability to respond accurately. She variously said that she was "mixed up", "useless" and "getting scared". At times during her evidence she confused the two incidents of 16 October 1996 and 28 November 1996 but that was readily resolved. There was the occasional odd and puzzling answer. As to the incident on 16 October 1996 her answers about the removal or non-removal of her clothes and his clothes were not entirely consistent. It seems that she did not accurately remember the correct position. 48 She could not remember whether the appellant telephoned her before he came to her house on 28 November 1996. She was adamant that she did not invite him over or let him in. She had a poor recollection as to his visits to her home between 16 October 1996 and 28 November 1996. She recalled the visits of the appellant to her home when she was specifically reminded of the occasions when Neil Treasure came to the house and the appellant was there, and when she went out with her mother and he remained at the house. She found some general questions difficult to handle. On one occasion the Judge told counsel that the complainant was not fully understanding him. She found it difficult to switch from topic to topic during cross-examination. Some of the questions addressed to her in examination in chief and cross-examination were hard to follow. She was taxed on a lot of matters of minor detail. The cross-examination as to where she put her glasses and what she had done with them was a notable example. This had the effect of exhausting a witness who had limited stamina and comprehension skills. All this would have been very obvious to the jury. The questions asked by the jury indicated their close attention to the evidence and their participation in the trial. 49 The Crown submitted that the question of whether the reliability of her evidence may be affected by ill health was very much a matter for assessment by the Judge with the assistance of medical evidence. The demeanour and manner in which the complainant gave evidence assumes significance in such an assessment if, as here, the Judge placed great weight upon it. This Court should not lightly interfere with that decision. This Court does not lightly interfere with the decisions of trial judges.. However, the role of the trial judge is to decide whether on the materials there arises from the evidence a basis on which it could reasonably be said that the evidence may be unreliable. He does not otherwise assess the evidence. The jury decides the questions of fact. 50 The Crown contended that the Judge's refusal to give a warning under s.165(1)(c) was correct. It submitted that the inconsistencies referred by the appellant should be viewed simply as the kind of thing which often occurs and is to be expected. Indeed, it was unusual not to get inconsistencies in this kind of case. They do not take a case within s.165. However, this was more than a case of inconsistencies. It was a case of impairment of the memory and cognitive faculties. Some of the inconsistencies were said to illustrate the underlying condition. It is of some importance to distinguish between possible unreliability in a general sense and possible unreliability on the consent issues. 51 The issue before this Court, having regard to the way the case was fought, is whether the evidence of the complainant as to the absence or refusal of her consent and the facts relevant to and bearing upon that, and the matters going to prove that he knew that she was not consenting, may be unreliable. 52 It is not for the trial Judge to decide whether her evidence as to the consent issues was unreliable. The phrase used in s.165(a) is "may be unreliable". That test involves a low threshold as a precursor to giving the required warning. More is required than some general argument that the evidence may be unreliable. Some reasonable basis must appear from the evidence to support the conclusion that the evidence may be unreliable. Such a basis may emerge from the evidence of the complainant or some other lay witness. It may emerge from medical evidence, which, while not necessary, will often be given. 53 If a reasonable basis appears that the evidence may be unreliable, the judge tells the jury that the evidence may be unreliable, the reasons why and warns the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The judge will tell the jury that it is for them to consider the evidence and assess its reliability after taking into account the matters mentioned, for example, the memory and cognitive impairments of the particular complainant or other witness. These are matters for them to decide. The unreliability must relate to the issues in the trial or facts relevant to the issues. It will usually not be sufficient if there may be unreliability in relation to minor or peripheral matters. 54 The Judge differentiated between the two alleged offences in summing up. As to the first count, the complainant had invited the appellant to her home after a chance and relatively brief meeting. They ended up in her bedroom. What happened after the incident had the capacity to bear upon whether she had consented. After the incident, he cleaned up her back yard and visited her on at least two occasions. He insisted that she was present on four of the visits which he made. There were also a few telephone calls. The implication was that good relations existed between the appellant and the complainant. Her memory appeared to be defective as to the state of dress and undress in the bedroom and as to the visits which he made. Her comprehension also may have been limited and deficient. Given her evidence and the doctor's evidence, there was a reasonable basis for saying that her evidence as to the first incident and the period between visits may be unreliable. She asserted that she did not consent but her recollection of the surrounding circumstances was questionable; she was unsure of the details. It would be open to a jury to entertain a reasonable doubt as to her evidence that she did not consent on 16 October 1996. As it was, the jury were unable to agree on the issue litigated, namely consent. 55 As to the later alleged offence of 28 November 1996, the complainant was unable to remember if the appellant had telephoned her before coming to her house on that day. He asserted that she had invited him and welcomed him. She denied this. Even if she did tell him that he could come around, that is very different from consenting to intercourse. She asserted that she did not consent to him having intercourse. 56 The appellant relied on this passage in her evidence (at T47-48 on 2 September 1997): "Q: Did you want Michael to have sex with you on 28 November? A: No. Crown Prosecutor: Would your Honour just pardon me a moment? Witness: Wait. Yes I think I, no I didn't want to have sex with me, but it was usually the case. Crown Prosecutor: I'm sorry? A: [not transcribable] … for the case, cause, he had sexually assaulted me first. Q: Miss Peterson, I'm afraid I didn't understand what you just said? A: Yeah, you want to, I'm afraid I'm tired and then I don't seem to be giving out much correct information." 57 On 2 September 1997 the complainant gave evidence from about 10:13 am to about 11:10 am. The hearing was adjourned for twenty minutes because she stated it was too much for her and she needed a break. The hearing resumed at about 11:31 am and she continued to be questioned for about another thirty minutes during which time she stated, when being asked on which occasion or occasions the telephone was dead, that, "I've got it mixed up, I'm useless your Honour". At the end of the thirty minutes, the Judge was a little worried about how the complainant was coping. He sent the jury out for a short period so he could speak with counsel and see if he could shorten the proceedings. Counsel for the appellant assisted the Judge by defining the issues. This enabled the Judge to tell the jury that there was no dispute that there was sexual intercourse on 28 November 1996 and that there was a sexual episode on the first occasion but, that there may be a dispute as to the extent or degree of the sexual episode. Within a few minutes of resuming, the passage quoted occurred. The Judge adjourned the hearing and took the luncheon adjournment early, probably about 12:15 to 12:30 pm. He said that he would resume about 1:15 pm. 58 The transcript records that the complainant returned to the witness box about 2:23 pm. This probably should read "1:23 pm". She stated unequivocally that on 28 November 1996 she did not want "Michael" to assault her sexually. Her cross-examination then commenced and continued but she was soon in obvious difficulty. After about thirty minutes, in response to a query from the Judge, she told the Judge she was getting a bit mixed up and scared. A short adjournment was taken to enable her to recover. The hearing resumed about 2:15 pm and cross-examination continued until about 2:55 pm. 59 The jury must have been acutely aware of the limitations of the complainant. She could only cope with short periods of questioning and she had difficulties with the details. She became tired and confused readily. She was adamant, however, in cross-examination that she had not consented to sexual intercourse. 60 Dr Goddard has recorded in her statement (which was admitted) that the complainant stated that the appellant had pushed her on to her back in the hallway and proceeded to masturbate whilst lying on her. She felt that he tried to penetrate her vagina but she was not sure whether he did or not. He held her arms above her head and pressed on her abdomen. The complainant in cross-examination said that she did not recall saying to the doctor that the man (the appellant) masturbated while lying on top of her. She said that nobody masturbated while lying on her on 28 November 1996. Dr Goddard did not give oral evidence. Perhaps there was a little preliminary activity prior to the appellant having intercourse. He said that on the first occasion he wound up masturbating against her (R01 - Q&A52). 61 I have reviewed the evidence and the course of the trial at some length because an examination of the transcript reveals a picture which differs from that which the Judge described. I disagree with the Judge with diffidence as he had the advantage of seeing and hearing the witnesses. A jury may have regarded the question of a telephone call by the appellant on the morning of 28 November 1996 and her response and the terms of the complaint to Dr Goddard and her evidence in chief as earlier set out as having some weight. She was not functioning adequately. They may also have attached some weight to the relationship which existed between 16 October and 28 November 1996. 62 As to the 28 November 1996 incident, I have, on balance, come to the conclusion that there was a reasonable or sufficient basis for the Judge to direct the jury that her evidence may be unreliable. I have kept at the forefront of my mind that the issue was as to her consent and whether he knew that she was not consenting. I have not overlooked that most of the circumstances were not in issue, namely, intercourse on the floor of the hallway, his speedy departure, and her condition when Ms Carnell called less than thirty minutes later. Notwithstanding these matters and having regard to the matters referred to in the previous paragraph, a warning under s.165 should have been given. 63 The appellant submitted that the failure to give the warning was significant when the Judge made no reference to the inconsistencies or memory deficiencies in his summing up, other than to invite the jury to disregard conflict in what the Judge regarded as side issues. The appellant contended that the Judge effectively diminished the importance of the matters which reflected upon her reliability. The appellant contended that the Judge painted a picture of the complainant's evidence unblemished by contradictions. 64 The appellant also submitted that there was little corroboration of the allegations of lack of consent to the sexual intercourse and that the Judge's invitation to work from her credibility in determining the verdicts underscored the need for a warning. I do not agree that there was little corroboration. As to the second incident, there was a small bruise and a seven centimetre scratch, the condition in which Ms Carnell found her less than thirty minutes after the incident ("really wide open eyes and shocked") and the lies which he told. The circumstances of the intercourse in the hall and his speedy departure did not point towards consent. 65 I do not agree that the Judge told the jury to work from the complainant's credibility. Rather, he stressed that the critical matter was the reliability of her evidence on the important aspects of the case. If they did not accept her, the jury must acquit the appellant. 66 It is necessary to consider further what the Judge told the jury because he gave them certain warnings and, at one point, came close to giving a warning under s.165. 67 The Judge told the jury (at SU2) that while it was a matter for them, he suggested that they consider the evidence of all witnesses in the light of his caution that if they were describing traumatic events, it was to be expected that there would be inconsistencies and inaccuracies and to ask the question whether the witness appeared to be essentially reliable about the important matters. The Judge told the jury (at SU5) not to be diverted by peripheral matters and to look at the matters that had to be proved beyond reasonable doubt. That statement was warranted given some of the matters which had been raised. The Judge enumerated the elements of the charge and stated that it was those elements which had to be proved beyond reasonable doubt. 68 After reviewing the Crown case favourably, the Judge said (at SU17): "… the Crown case stands or falls on the reliability of Sandra Peterson. If you accept her as an essentially reliable witness as to the important facets of her evidence then you will convict. If you do not, then you will acquit. You have heard that she suffered brain damage and that since 1985 there have been intermittent symptoms by way of auditory and visual hallucinations. She admits to some memory problems … . She had also a very significant cognitive impairment." 69 After referring to Dr Fogarty's evidence, the Judge said (at SU18-19): "You must carefully scrutinise Sandra Peterson's account, bearing in mind her medical condition and pose the question, 'Do I believe her?'. There is no medical evidence whatsoever before you to suggest that her complaints to the witnesses, to the sexual assault counsellor, to the doctors at Gosford Hospital and to the police were in any way related to any intellectual disability which may affect her from time to time. No questions were addressed to her to suggest that she was under some mental handicap when made immediate complaints after the incidents which concern you. She was not challenged in the witness box on the basis that her evidence was tainted by some intellectual problem."

And (at SU19): "Certainly she became tired after a lengthy stint of questioning. You observed that yourselves. You saw her in the witness box. You saw her there for some hours. You saw her subjected to skilful cross-examination and it is for you to say whether you believe that she gave you an essentially accurate description as to the important facets of her evidence." 70 The Judge directed the jury both to scrutinise the complainant's evidence carefully and to consider whether her complaints to the people nominated were influenced or brought about by her intellectual disabilities. If the complaints when made were correct, that would not help the appellant. She was not cross-examined to the effect that her evidence was tainted by some intellectual problem. However, in view of the difficulties with the complainant's evidence, it was not necessary to further challenge it. 71 The Judge said (at SU20): "The Crown case essentially depends upon the evidence of the complainant. As I say, it is therefore vital that you carefully scrutinise her version of events to determine whether she gave you a reliable account. Remember her demeanour. If after considering all of the evidence, including hers, you consider that the Crown's case is proved … your duty is to return guilty verdicts. If you are not satisfied then you will acquit. If you are not satisfied that she had given you a reliable version of events, that's the end of the matter, acquit." 72 I would not grant a new trial because of the Judge's refusal to give a warning under s.165 of the Evidence Act for these reasons:

(a) the Judge stressed to the jury that they must carefully scrutinise the complainant's evidence bearing in mind her medical condition;

(b) the Judge stressed that the crown case stood or fell on the reliability of the complainant and that to convict they must accept her as an essentially reliable witness as to the important facets of her evidence;

(c) the memory problems and the intellectual disabilities were clearly exposed in the evidence and the summing up;

(d) having regard to the course of her evidence and her obvious difficulties and limitations, the jury must have been aware of her memory problems and intellectual limitations. They were in a very good position to assess them and must have taken them into account. They were told to do so;

(e) the jury were required to embark upon assessing and deciding the reliability of the complainant having regard to her medical condition, the effects of which they had witnessed. The effect of a warning under s.165(1)(c) of the Evidence Act is to alert the jury to the possibility that evidence may be unreliable and to embark upon an assessment of its reliability;

(f) the only issue was as to consent. The reliability point is, in essence, directed to that and it relates only to the 28 November 1996 offence. That was not a complex matter; and

(g) the jury differentiated between the two counts. In the assessment of her reliability, they were not all satisfied as to her reliability on the first count. This follows from the directions which were given to the jury.

Evidence of complaint: 73 Appeal ground 2: "The … judge failed to direct the jury as to how it was to use evidence of complaint." 74 The appellant complains that the Judge did not give the jury any direction on how to use the evidence of complaint. He invited the jury to use the evidence of complaint as evidence that she had not consented and that the appellant was aware that she had not consented, that is, as evidence going to the truth of the allegations. 75 The Crown responded that while the Judge did not explicitly tell the jury as to how they should use the evidence of complaint, his references to her contemporaneous complaints were in the context of her credibility and the likelihood of her behaving as she did if she had had consensual intercourse. The Crown contended that these parts of the summing up were all about consistency of conduct based on the rationale that a woman who has been sexually assaulted (as opposed to a woman who has engaged in completely mutual lovemaking) will be likely to make a complaint about it. It was not used for a hearsay purpose and that no doubt explains why defence counsel did not seek a hearsay warning under s.165(1)(a) of the Evidence Act). 76 The Judge dealt with the question of complaint in relation to both counts. As to the first count, the Judge dealt with her complaints as being consistent with the conduct to be expect of lady who had been raped and inconsistent with the conduct of a lady who had been engaged in enjoyable lovemaking. 77 As to the second count, the Judge told the jury that they may consider once again that her conduct after the alleged rape was entirely consistent with rape and inconsistent with consensual sexual intercourse. However, the Judge did say, "In considering the question as to whether there was consent and as to whether the accused was aware of lack of consent, you were further asked to look at her subsequent conduct" (SU12-13). That introductory sentence, which is capable of going to more than consistency, was immediately followed by passages in which the emphasis was upon her conduct being consistent with her allegation of rape. 78 There was no discussion at the trial about the use which could be made of the complaints made by the complainant. The Judge was not asked to limit their use under s.136 of the Evidence Act to evidence going to the credit of the complainant as a witness. He was not asked to direct that they could not be used as evidence of the truth of what was said. Nor was the Judge requested to give a warning under s.165(1)(a) that what she said to others was hearsay. 79 The appellant would not have wished the Judge to tell the jury that they could use what she had said in her complaints as evidence of the truth of the facts so stated. With the very prompt complaints and the condition in which she was found the jury was likely to regard what she said as reliable. Little, if anything, was likely to be achieved by asking for a warning in the circumstances. There was a real risk that having the Judge expand on the matter and give a warning would only emphasise the value of the complaint, particularly as to the November 1996 count. 80 The view was well open, and probably the preferable view, that the accused was better off with the matter as left by the Judge with the emphasis upon consistency. The appellant had the benefit of directions that the jury were to scrutinise her evidence carefully in determining the critical issue of its reliability. It was astute not to seek any further direction in the circumstances. This is a different case from R v BD (1997) 94 ACrimR 131. As that case stated, everything depends upon the particular facts. 81 This ground fails.

Favourable summing up for Crown and disregarding Judge's opinion: 82 Appeal ground 3: "The summing up of the evidence … heavily favoured the prosecution and the jury was not directed to disregard the … judge's opinion unless it accorded with their own." 83 The appellant submitted that the summing up strongly conveyed a pro-prosecution view. I agree that the summing up was favourable to the prosecution but the Judge put the defence case fully. His summary of it extended over some four pages of the summing up. 84 The appellant accepted that the Judge was entitled to express his view as to the evidence but contended that he should have directed them to disregard his opinions on the evidence unless they coincided with their own. 85 Some of the Judge's phrases had an edge. At SU 13, after pointing out that, on the day of the first incident, she had detailed to a number of strangers a most humiliating experience, he said, "and on the Crown case, would seem indeed curious behaviour if she had first had that enjoyable and considerate lovemaking, as the accused described". The comment does have a bite but it is not unjustified having regard to what the accused said in his record of interview. A little later the Judge said, "You might wonder why should appear distressed and agitated if she had just undergone such a marvellous episode of lovemaking". In his record of interview the appellant, when referring to the first incident, described in considerable detail many pleasurable aspects of his session of extended lovemaking. The jury, of course, did not agree on the first count. 86 This passage (SU22) probably had the greatest sting: "You may well wonder what there was about this man, who on his account had apparently provoked such feelings in the complainant that within a short time of meeting her, she was prepared to engage in a wide range of sexual activities over a lengthy period. What it was about him that caused her on the second occasion to almost immediately commence foreplay with him and then sink to the floor in the narrow hallway and engage in sexual intercourse. You saw her. Does she strike you as the type who is likely to gratefully sink to the floor in a narrow hallway to receive the sexual attentions of the accused." 87 It was unusual that on the first occasion matters progressed so quickly and the lovemaking went so far. As to the second incident, it was common ground that the appellant arrived about 12:25 to 12:30 pm and left prior to 1:00 pm when Ms Carnell arrived. In his record of interview the appellant referred to the initial reluctance of the complainant. On his version, that must have been overcome quickly. He was anxious to and did achieve penile penetration. According to him, they both became aroused but somehow the mood was not quite right and he left. The word "gratefully" would have been better left out. According to him she became a passionate participant. On his version of what occurred, it was a remarkable twenty to twenty-five minutes. It is not easy to envisage the complainant with her disabilities wanting intercourse to take place on the hallway floor. 88 In his oral submissions counsel for the appellant developed the argument that the Judge had come out strongly in favour of the Crown and that he had inappropriately advocated the cause of the Crown. It was contended that insufficient weight was given to the lack of substantial corroboration. The Crown case could fairly be put very strongly. There were circumstances in combination in relation to the second count which pointed strongly towards rape and left little, if any, room for any other conclusion. The record of interview and the evidence of the appellant contained denials but overall they did not help him. The assertions of the appellant in his record of interview as to his considerate lovemaking hardly accorded with his conduct. To put it mildly, his evidence was unconvincing. 89 The important matters had to be kept in focus. The lesser details and discrepancies and inconsistencies as to these could not be allowed to obscure the true picture. The Judge put the defence case fully and also indicated areas where there was a dispute as he went through the materials. Given the evidence, the Judge just kept within permissible bounds. The experienced counsel who appeared for the appellant at his trial and conducted his case skilfully took no objection to the overall tenor of the summing up. Nor did he ask the Judge to withdraw the whole or any part of it. There were no additional directions sought bearing upon the present complaints. 90 The Judge made it clear to the jury from the start of the trial that they were the judges of all matters of fact and that they had the sole role to determine questions of fact (T2, 1 September 1997). He reminded them that neither the advocates nor he decided the case, "you twelve do". 91 At the start of his summing up, the Judge reminded the jury of what he had said in his opening remarks. He said: "… you twelve are the sole judges with regard to all matters of fact. It does not matter what the advocates might think or appear to think. It does not matter what I might think. It is what you think that counts. Only you twelve have taken a solemn oath to determine this matter. They have not, nor have I. We do not have that responsibility. You do."

The Judge urged the jurors to do what jurors all over the State do, that is, grasp the nettle and make a responsible decision. 92 From these directions the jurors would have understood that they and they alone had to decide the matter, that the Judge's views did not matter and that it was what they thought that counted. These directions were sufficient, plain and acceptable. It was not necessary for the Judge to use the formula propounded by the appellant. That was implicit in what the Judge said. 93 Before the jury returned, the Judge told the jury that they were under no pressure to reach a quick verdict, that the matter was important and deserved their full consideration. 94 This ground fails.

Withdrawal of consent: 95 Appeal ground 4: "The judge erred in declining to direct the jury as to the law of withdrawal of consent." 96 After the jury retired to consider their verdict, they asked this question: "If she Sandra withdrew consent but he was not aware she has withdrawn consent, how does that affect points 2 and 3?"

Point 2 referred to the intercourse being without her consent and point 3 to his knowledge that she was not consenting.

The jury also sought the testimony of Peter John Flood and Constable Taylor, the arresting detective . That was supplied. 97 The Judge told the jury that he did not quite understand what the question meant and that he did not know whether it applied to the first or the second count or both. He added: "Furthermore, I do not know upon what evidence this question is based because there is no evidence that she was consenting and then withdrew her consent." 98 The juror who had framed the question explained what he meant: "What I am trying to work out with points 2 and 3 … is that if she'd indicated in some way to the accused that she gave her consent, and then he continued on because he thought he had consent but somehow she, the complainant, changed her mind, withdrew consent, but didn't make it known to him in her body language or some other manner and he continued on, doesn't that make it difficult for us to decide on issues 2 and 3 in both cases?" 99 The Judge replied that if that was the situation it would make it difficult to decide but they had to consider the evidence. They did not have to accept it. He continued: "And there is no evidence as I understand it to the effect that she gave consent and then withdrew it. If the position was that she did give consent and then withdrew it, and he did not know that she had withdrawn her consent, then he would be entitled to be acquitted. But I have discussed this matter with both Crown and Mr Cruickshank and they both agree that there is no evidence upon which … to base that question. … you don't have to accept her claim that she did not consent. You can reject it if you wish. But … there is nothing in the evidence that any of us can detect which would justify a finding that she extended consent and then withdrew it." 100 The Judge suggested to the jury that they examine the evidence further and that, if they wished, they could renew the question either in the form asked or some other form or raise any other question. 101 It was submitted that the jury were entitled to entertain a scenario which did not accord with either account but which rang true to them. The appellant contended that with the intellectual disability of the complainant and the irrational nature of much of her evidence it was inappropriate for the Judge to tell the jury there was no basis for considering the issue raised by one of them. The appellant's position on the second count was that although she was initially hesitant or reticent or undecided about intercourse, she came around and they both became aroused and in the throes of passion. She said that she never consented. 102 An examination of the evidence leads to the conclusion that there was no basis for the jury to consider that it was a reasonable possibility that she consented and then withdrew her consent. Two further comments should be made. The Judge invited the jury to return if, after examining the evidence, they wished to pursue the matter. He also told them that they should acquit if she had consented, withdrawn her consent and the appellant was not aware of her withdrawal. 103 This ground fails.

Unsafe and unsatisfactory verdict: 104 Appeal ground 5: "The verdict is unsafe and unsatisfactory." 105 The appellant relied on what he claimed were the inherent inconsistencies in the evidence of the complainant and the minimal corroboration of lack of consent. The current judicial terminology requires this ground to be reframed. A miscarriage of justice is alleged. 106 The complainant's evidence on the consent issues is not unreliable. It, when coupled with the surrounding circumstances, is powerful in relation to the second count. He arrived at her home about 12:25 to 12:30 pm. She did not want him to enter her home. He came bearing a card and gifts. He pushed his way in. On his account she was not totally willing and was undecided but he won her around with caressing and other lovemaking foreplay. They became so aroused, on his version, that penile vaginal intercourse took place on the floor of the hallway. He described them as being in the throes of passion. It is not easy to contemplate this physically disabled lady who was numb around the vaginal area because of her pelvic injuries being in the state described by the appellant. The appellant claimed that the mood was not quite right. After he ejaculated, he got up, cleaned himself up and gave her a towel with which to wipe herself. He left her lying half naked on the floor claiming he had to attend some job interviews. 107 The whole episode lasted about twenty to twenty-five minutes or perhaps less. At 1:00 pm Ms Carnell arrived and found the complainant with really wide open eyes and shocked. She made immediate complaint of being raped. She had very minor injuries. She was no match for him with her disabilities and had to avoid further injury. He claimed to be considerate and loving but on any view it was a flying visit terminating shortly after his ejaculation. 108 An examination of the whole of the materials reveals that the Crown case on the second count was a strong one. There was no miscarriage of justice. This challenge should be rejected. 109 Appeal grounds 2, 3 and 4 require leave. They were not taken at the trial. Leave to raise them should be refused on the basis that each of the grounds fails as a matter of substance. Further, if these grounds had been taken at the trial, corrective action could have been considered and taken. 110 I propose that the appeal against conviction on the 28 November 1996 count be dismissed and that leave to appeal against the severity of the sentence be refused. * * * * * * * * * *

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.