Crimes Act 1900, s 405B

M (1994) 181 CLR 487

Jones [1997] HCA 56; (1997) 149 ALR 598

SPERLING J: The appellant was charged with two counts of aggravated sexual intercourse without consent (counts 1 and 5), one count of aggravated indecent assault (count 2) and two counts of attempted aggravated sexual intercourse (counts 3 and 4).

The appellant pleaded not guilty to each count and, at a trial before Phelan DCJ and a jury in August 1995, was found guilty on each count. On 3 November 1995 the appellant was sentenced by Phelan DCJ, as to counts 1, 3, 4 and 5, to a minimum term of penal servitude for six years dating from 23 August 1995 and an additional term of two years; and, as to count 2, a fixed term of penal servitude for four years to be served concurrently.

On 28 August 1995, the appellant filed a notice of appeal against conviction. An amended notice was filed on 24 October 1997. The grounds of appeal, as amended, are as follows:

2. There has been a miscarriage of justice in that evidence has become available which was not presented at trial.

3. The trial judge's directions to the jury on complaint were inadequate.

The Crown case was that there were three separate episodes involving sexual assaults by the appellant on the complainant, she being the daughter of the appellant's then de facto wife. I will refer to her in this judgment as "the complainant" and to her mother as "the mother".

The complainant, who was born on 27 May 1983, was ten years of age at the time of the alleged offences and twelve years of age at the time of the trial.

The complainant said in her evidence that the first episode had occurred about three days before Christmas 1993. She said her mother had gone into hospital, that the appellant, during the afternoon, had sent the complainant's brothers outside, had taken her into her mother's room and, while she was lying on the bed, "John (the appellant) was rubbing up and down on me, and we were in Mum's room and when he was rubbing up and down on me his private part went into me just once". The complainant said that, after that, the appellant had her sit on his knee and attempted to put his penis in her vagina. When asked if there was penetration she replied, "Sort of but and it was hurting badly". The complainant's evidence was then that the appellant "opened my private part and started licking me." This alleged episode was the basis for counts 1 and 2.

The second episode was said by the complainant to have occurred shortly after Christmas in the same year. She said that she went with the appellant to get some chips for tea, that it was night time and dark, that the appellant took her to a reserve called Simmo's Beach, that he had her sit on his lap and "started trying to push his private part into mine." The complainant then said, "I think he tried to get me to suck his private part." She said that the appellant pushed her head down but she did not touch him with her mouth. She added that the appellant ejaculated and wiped himself on a towel. That alleged episode was the basis of counts 3 and 4.

As to the third episode, the complainant said that, some time after Christmas 1993, the appellant took her by car to play netball. While in the car with him in the carpark at Minto Station, "John was sticking his rude finger up my private part". That, she explained, was his middle finger. The alleged episode was the basis of count 5.

Ms E van der Meulen was the complainant's class teacher in July 1994. She gave evidence in the Crown case. That was some six or seven months after the alleged episodes of sexual assault. Ms van der Meulen noticed that the complainant had made a note in her diary which indicated her mother was not paying her much attention. The complainant appeared to be upset. When Ms van der Meulen spoke to the complainant about this, the complainant said the appellant "used to hurt her ... he hurt her arm, pulled her arm. Grabbed her, sometimes she had bruises on her bottom she said. And then she said he touched her." The complainant had then indicated her genital area to Ms van der Meulen.

The complainant was interviewed and examined by Dr B Giles on 5 August 1994. The doctor was unable to attend the trial due to illness and her statement was, by consent, read onto the record. It included the following passages:

"She had great difficulty in saying what he did and with anatomical dolls pointed to the vagina and to the fingers and penis of the male doll. She said it stopped after Christmas in year five......When alone with Dr Giles she stated with the anatomical dolls what happened. She stated he touched her pulled her knickers down. Sometimes he put his finger inside. He also put his penis inside sometimes. It hurt. She bled once. One assault happened when her mother was in hospital on Christmas day when the baby was born (on John's and Mother's bed). He also used to touch her privates when he came in and said goodnight."

Physical examination was not indicative either way.

Constable Pryde was called in the Crown case. He became involved in the investigation in August 1994. However, the police did not interview the appellant until 2 March 1995. The appellant consented to be interviewed by the police. He denied the allegations. He said he had no recollection of ever being alone in the house with the children without their mother. He said the fish shop was "a fair way" from Simmo's Beach, and that the car park at Minto was "in full public view".

The complainant's natural father gave evidence in the Crown case. It is unnecessary for the purposes of this judgment to review his evidence. It has no bearing on the outcome of the appeal in the way I propose the appeal should be resolved.

The appellant gave sworn evidence along the same lines as his record of interview. In amplification of his contention that he had never been alone at the house with the children, or with the complainant in particular, the appellant said that, on one occasion when the complainant's mother went to hospital, he had left work, picked the complainant's mother up and taken her to the hospital, as distinct from being at home with the children. On another occasion, he said, he had gone straight from work to the hospital, as distinct from going home, while the children were being looked after by a neighbour, to whom I shall refer as C H. The appellant said he had never been to Simmo's Beach alone with the complainant and thought it was closed at night. By way of a possible further explanation for the complainant's conduct, he said that the complainant had told him that she had viewed an x rated video at a friend's house. Immediately prior to the allegations being made against him by the complainant, he had a serious argument with the mother, which the complainant would have overheard. The appellant said that, when he heard of the allegations, he had himself telephoned Campbelltown police and had spoken to a person in the Sexual Assault Unit, but they professed to have no knowledge of the matter. This was not challenged.

The mother gave evidence in the defence case. The neighbour, CH, was also called. Their evidence was tendered with a view to showing there was no occasion during the mother's admissions to hospital when the appellant was at home with the complainant. I will not review their evidence in detail. It is sufficient to say that it was, on analysis, insufficient to close off that possibility. (The "fresh" evidence under Ground 2 was directed to this lacuna in the defence case.)

I refer to two elements of the mother's evidence. In 1993, the mother was pregnant with the appellant's child. She gave the following evidence of her hospital admissions. She was admitted to hospital for a couple of hours in November 1993, following the death of her father. She was readmitted on or about 9 December 1993 for false labour, again for only a couple of hours. She was readmitted the following morning for the day. On 13 December 1993 she was admitted for the birth of the child. The child was delivered that day. She was in hospital on that occasion for three or four days.

The mother was not challenged in cross-examination in relation to her evidence concerning these admissions. It may be assumed that such evidence was readily verifiable or otherwise. The trial was, accordingly, conducted on the basis that the mother's evidence of these matters was common ground. To proceed otherwise in this appeal would be unfair and contrary to principle**:** Browne v Dunn (1894) 6 R 67.

The second aspect of the mother's evidence which I mention was her statement that the complainant had "the tendency to fantasise about things, make up stories". There was an illustration of this which need not be recounted. The mother was not challenged in cross-examination concerning that evidence either.

Ground 1: The verdicts are unsafe and unsatisfactory

The leading case is M (1994) 181 CLR 487, where the majority said in relation to this ground of appeal (at 494):

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

I would restate this passage in point form, as explained in Jones [1997] HCA 56; (1997) 149 ALR 598, as follows:

(1) The ultimate question is whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(2) A doubt experienced by the appellate court will, generally speaking, be a doubt which a jury ought also to have experienced.

(3) Doubt by the appellate court is, however, displaced where a jury's advantage in seeing and hearing the evidence explains how the jury could reasonably have been satisfied of the appellant's guilt, thus resolving the doubt experienced by the appellate court.

(4) A doubt by the appellate court is not so displaced when the evidence lacks credibility for reasons which are not capable of being explained away by reference to the manner in which the evidence was given; such as where, on the record, the evidence contains discrepancies or displays inadequacies or is tainted or otherwise lacks probative force in such a way that, even making full allowance for the advantages enjoyed by the jury, the doubt persists.

In my opinion, the appeal should be allowed on this ground. My reasons are as follows.

The complainant's evidence in relation to the first episode was very unsatisfactory in a number of respects.

First, at the start of her evidence, the complainant was quite uncertain as to whether her mother was in hospital at all in December 1993 other than the admission to have the new baby at about Christmas time:

"Q. She (the new baby) must have been born then before August 1994, is that correct?

Q. So when your mother was living with you and before she had the baby Connie, did she go into hospital at all?

Q. Was that just before the baby was born or a long time before the baby was born?

Q. When she went into hospital, do you recall if that was - she went in once or more than once before Connie was born?

Q. What about the period around Christmas of 1993, ..... did your mother go into hospital at all during that period?

Q. Was your mother at home throughout that period of December 1993?

The complainant then gave evidence of the first alleged episode. She said it had occurred about three days before Christmas. She was asked where her mother was at that time.

"Q...Was your mother having the baby Connie then or was it before she had Connie?

Q. Was it a short time before or a long time before?

A. It was three days before Christmas but (sic) she went into hospital."

This was inconsistent with the complainant's prior evidence that she did not remember whether her mother was in hospital in December other than to have the baby.

Further, there can have been no occasion as late as about three days before Christmas when the mother was in hospital prior to the confinement. The baby was born on 13 December 1993. The prior December admission was a week or so before the birth of the child. So that admissiont was at least two weeks before Christmas and inconsistent with the complainant's confident assertion - made more than once - that the episode had occurred about three days before Christmas.

The complainant's description in her evidence of what had occurred at the time of the three alleged episodes was detailed and uninhibited. This was in marked contrast with the extreme hesitancy with which she spoke of the alleged events to her teacher and to Dr Giles. Speaking generally, such hesitancy could be due to genuine reticence, and reticence would be understandable, but there was no reticence in the way the complainant gave her evidence in court. (For example, in relation to the third episode, she referred to the appellant's "rude" finger. This, she explained, when asked, was his middle finger. The complainant obviously thought that "rude finger" was common parlance and would be understood. She had no reticence in using the expression.) The marked contrast between the confident way the complainant gave her evidence and her earlier extreme hesitancy suggests a serious possibility of fabrication or confabulation.

Then there is the inconsistency between the history given to Dr Giles and the account of the three episodes given by the complainant in her sworn evidence. The difference was marked.

(a) Insertion of the penis was said to Dr Giles to have occurred "sometimes", that is, more than once. The account in court was of only once such occasion.

(b) There was no evidence in court of bleeding as recounted to Dr Giles.

(c) There was no mention in evidence of the appellant touching the complainant inappropriately when he came to say goodnight.

(d) There was mention to Dr Giles of only one episode identified by date or time. That was alleged to have been on Christmas day when, according to the complainant, her mother was in hospital. The complainant's evidence in court was, however, of three episodes, none of which was now said to have been on Christmas day or could have been, because the mother was not in hospital on Christmas day or within a week of Christmas day.

(e) In relation to the one particular episode, as recounted to Dr Giles, there was no statement with particularity as to what was allegedly done on that occasion. This contrasted with the complainant's evidence in court of three distinct episodes, with detailed particularity of what allegedly occurred on each occasion.

Then there is the matter of complaint to the school teacher Ms van der Meulin. The first mention of the alleged offences made by the complainant to anyone was to her teacher some six to seven months after the alleged events. But this was not simply a matter of delay in complaint. The complaint to the teacher was of touching. Again, there is the absence of the account of three distinct and fully detailed episodes which constituted the case advanced against the appellant in court a year later. In substance, there was absence of complaint prior to the trial, not merely delay in complaint for six or seven months after the alleged events.

Extreme caution must, of course, be exercised in using absence of complaint or delay in complaining as reflecting on the credit of a complainant, particularly where the complainant is a child: Crimes Act 1900, s 405B. I exercise that caution, but the delay in complaint of any kind for six or seven months and the substantive absence of complaint before trial are nonetheless matters to be put into the balance against the complainant's reliability as a witness.

Then, in relation to the second episode, the following evidence was led from the complainant:

"Q. I want to take you now to a time just after Christmas, that is a few days after this happened do you know where Simmo's beach is?

Q. Did you go to Simmo's Beach with John some time after this incident in the room?

A. Yes, we went to go and get some chips for tea and he took me to Simmo's Beach parking lot at night time.

Q. And are you able to estimate how long after Christmas Day it was, was it a day or two days, a week?

So it was allegedly summertime and it was dark. In cross-examination, the complainant was insistent about that, but she also said that the second episode occurred at five o'clock or five thirty in the afternoon. This was inconsistent.

In relation to the third episode, there was an inherent unlikelihood that the appellant would have done what was alleged in such a public place as a railway station carpark and in broad daylight. The complainant said that there were only a few other cars there, but the mother said in her evidence that it was always a busy place on a Saturday.

The appellant attempted to make contact with the police as soon as the allegations were made against him but without success. This was not challenged. He consented to be interviewed when, many months later, the police got around to that. Constable Pryde gave evidence of the interview. The appellant answered the allegations in a direct and forthright manner. He denied the allegations emphatically. There was no inconsistency between what he said in the interview and his evidence in court.

The appellant advanced two possible explanations which might have contributed to a false complaint having been made against him by the complainant. These were, as I have mentioned, that the complainant had told him she had seen an x-rated video at the home of a friend, which could, it was implicitly suggested, have provided the complainant with the materials for a false complaint. Secondly, there was the appellant's unchallenged evidence of a loud and serious argument which he had had with the mother immediately prior to the allegations being made, an argument which the appellant said the complainant would have overheard. That, it was suggested, might have contributed to retaliatory action on the part of the complainant. In this connection, I mention the mother's evidence that the complainant was prone to make up stories.

In isolation, any one of these considerations might not amount to much. However, when they are taken in combination, I am not satisfied beyond reasonable doubt that the complainant's account of events, on which the Crown case depends, is true to fact. That is a doubt which I must find that a jury ought also to have experienced unless the doubt is displaced by the jury's advantage in seeing and hearing the evidence. In the present case, the complainant's evidence lacks credibility for reasons which are objective, namely, because of the inconsistencies and discrepancies to which I have referred, when they are considered in combination..

For these reasons the reasons, the appeal should be allowed on the first ground. It is unnecessary in these circumstances to consider the second and third grounds. I propose the following orders:

3. Direct the entry of judgment of acquittal on all counts.

This Court was informed from the bar table that the delay in bringing the appeal on for hearing was due to a difficulty in securing the evidence to support the second ground of appeal (fresh evidence), and because of doubts concerning the third ground of appeal (directions relating to s 405B) until the recent decision of the High Court in Jones [1997] HCA 56; (1997) 149 ALR 598.

I would observe, for my own part, that, as the evidence came out on the hearing of the appeal, the appellant had a very strong case under Ground 2. The appellant also had, in my opinion, a very strong case under Ground 3.

In the result, the appellant is, in my opinion, entitled to succeed on the first ground of appeal, rendering it unnecessary for the appellant to rely on the two grounds of appeal which account for the delay. That does not mean that the judgment of those advising the appellant was wrong. Success on the first ground of appeal could not have been regarded as certain. In those circumstances, I would not be critical of the appellant's legal advisers in deciding not to bring the appeal on for trial until they could rely on the second or third grounds of appeal with reasonable confidence, should that have been necessary.

WOOD CJ at CL: I agree with the reasons and orders proposed by Sperling J.