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."