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[2003] NSWCCA 224
respondent. Appeal against conviction dismissed. Leave to appeal against sentence refused.
The Court of Criminal Appeal concluded that the jury could consistently acquit G.A.R. of detaining ER while convicting him of having intercourse with her without consent. The judge was not required to give a special cross-count credibility direction or a Longman warning on the facts. Some directions treated a call to RM as a complaint even though the evidence did not establish what ER said, but that issue had not been raised at trial in a way that permitted the appellant to rely on it on appeal. The proposed missing-witness direction was not warranted. The conviction appeal failed, and the sentence appeal application was refused.
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In Regina v G.A.R. [2003] NSWCCA 224, the New South Wales Court of Criminal Appeal considered an appeal against conviction and an application for leave to appeal against sentence. Miles AJ delivered the substantive reasons. Spigelman CJ and Bell J each stated that they agreed with Miles AJ ([1]–[3]).
No linked legislation citations have been extracted yet.
G.A.R. had been married to ER for about twenty years. They were divorced a few days before the events, and ER lived with their twelve-year-old daughter at Doonside ([6]). The prosecution case was that G.A.R. came to the house on 13 January 2002 and, over the course of the day, restricted ER's movement and refused to leave. The second allegation was that, shortly after midnight, he forcibly had intercourse with ER without her consent ([7]–[12]).
G.A.R. admitted that intercourse occurred. His account was that ER had invited him to have consensual intercourse, which took place several times. He also denied restricting her movements ([15]–[16]). The evidence included ER's account, evidence from the daughter, accounts given to police, a medical report and photographs of injuries. DNA testing matched semen on a bedsheet to G.A.R. ([13]–[14]).
The jury found G.A.R. not guilty of the detention count and guilty of the sexual intercourse count ([4]). The sentencing judge imposed six years' imprisonment, with a non-parole period of four years and six months ([5]). On appeal, G.A.R. challenged the conviction on grounds including inconsistent verdicts, jury directions about the complainant's credibility and complaint evidence, the absence of a Longman warning, and the failure to give a missing-witness direction ([18]–[19]). The Court dismissed the conviction appeal and refused leave to appeal against sentence ([70], [74]).
The first argument was that acquitting on detention while convicting on sexual intercourse was inconsistent. The Court applied the principle that inconsistency must be established as a matter of logic and reasonableness ([21]). It found a rational explanation for the verdicts: jurors could accept that intercourse took place without consent but remain unsure whether ER had otherwise been detained without consent, or whether any detention had been for the charged purpose of keeping her in G.A.R.'s custody and control ([22]–[23]).
The evidence about detention was not clear. The Court noted that the prosecution had not specified when the alleged detention began and ended, and that ER was able to move around the house after the kitchen incident. It was also open to the jury to conclude she was free to leave, and the evidence about G.A.R. locking the door did not establish that it kept her inside ([23]). The acquittal therefore did not logically undermine the conviction on the different count.
The Court next addressed the requested direction about considering a doubt on one count when assessing the complainant's evidence on another. It explained that the direction discussed in Markuleski is not required merely because the complainant's evidence supports multiple counts. Whether such a direction is needed depends on the full circumstances, and its wording is not fixed ([24]–[26], [34]). Here, the judge directed the jury to consider each count separately and told them the verdicts could differ ([28]). The allegations were materially different. There was also evidence supporting the sexual assault allegation beyond ER's testimony: the daughter heard ER say “Please don't do this”; there was evidence of injury; and there was admissible complaint evidence ([35]). The Court concluded that a Markuleski direction was not required in this case.
The complaint-evidence ground produced a more qualified finding. The trial judge had treated several communications as complaint evidence. The Court explained that under the Evidence Act approach, an admitted representation may be evidence of the facts the maker intended to assert, as well as relevant to the maker's truthfulness or reliability ([45]–[46]). It follows that the representation's terms matter. ER's evidence that she called RM and “told him what happened” did not establish what she had said. The fact of a call alone was not relevant complaint evidence; the phrase “what happened” left the content unclear and risked inviting speculation ([47]–[48]).
By contrast, the daughter testified that she said “I know he raped you” and ER replied “Yes he did”. The Court held that this was admissible as a representation under s 66, notwithstanding that ER denied or did not remember making it ([49]–[50]). The evidence of what ER told the police officer and the doctor was also held to have been correctly admitted, and the related direction was adequate ([51]). The directions concerning RM were inaccurate, but no objection or request for a further direction had been made. The Court held that rule 4 of the Criminal Appeal Rules applied ([52]).
On the Longman ground, the Court distinguished the case from one involving a substantial delay that impaired the accused's ability to test the allegation. In Longman, the alleged events preceded the first complaint by twenty years ([54]). Here, the alleged intercourse occurred shortly after midnight, police received a call at about 11.30 am, and G.A.R. knew of the charge when arrested about four hours later ([59]). The Court considered that there was no forensic disadvantage caused by delay. It also referred to evidence capable of supporting ER's account, including the daughter's evidence, injuries and admissible complaint evidence ([61]). It therefore held that no Longman warning was required and that the warning about potential unreliability was adequate ([62]).
Finally, the Court considered the prosecution's failure to call RM and two other potential witnesses. In criminal trials, the limited Jones v Dunkel inference may be that an absent witness would not have assisted the prosecution. It is not an inference that the witness would positively have damaged the prosecution case ([64], [68]). The Court found no reasonable expectation that the other two people would be called, and the defence had not run a case that ER and her daughter concocted the allegation ([65]–[67]). Evidence that it had proved impossible to obtain statements from RM and another potential witness was unchallenged ([69]). The proposed direction was not required.
The judgment treats its task as applying and clarifying existing authorities, not announcing a wholesale change in the law. Its principal clarification concerns how juries and appellate courts should approach different verdicts on multiple counts involving one complainant.
For inconsistent verdicts, the Court relied on McKenzie v The Queen, stating that the relevant incompatibility must be established as a matter of logic and reasonableness ([21]). It rejected a mechanical approach under which an acquittal on one count necessarily damages the complainant's credibility on another. The reasoning in Markuleski, read with the High Court's explanation in MFA v The Queen, required attention to the surrounding circumstances, rather than an automatic inference from mixed verdicts ([30]–[35]).
For complaint evidence, the judgment describes a shift from the common law approach to the Evidence Act framework. It says that the common law's anomalous basis for admitting complaint evidence is not found in the Evidence Act 1995. Instead, a representation may be admissible under s 66 if it was made while fresh in the memory, and it may be evidence of the facts represented ([45]–[46]). The practical implication stated in this judgment is that courts and counsel need to identify what the complainant actually represented. A call or an unspecified account of “what happened” is not necessarily proof of a complaint about sexual assault ([47]–[48]).
The judgment also discusses, but does not resolve, whether a Longman warning is an emerging category under s 165 or arises independently of that section ([55]–[57]). It treats Longman as requiring a warning tailored to the circumstances, particularly where delay affects the accused's ability to investigate and test the allegation ([54]–[60]). It does not hold that every uncorroborated sexual offence allegation requires a Longman warning. The Court expressly notes that lack of corroboration alone does not make evidence a category that must be scrutinised with great caution ([61]).
For absent witnesses, the judgment applies the limited criminal-trial use of Jones v Dunkel described through Buckland and Dyers. It distinguishes the permissible inference that an absent witness would not have assisted the prosecution from an impermissible inference that the witness would have positively harmed the prosecution case ([64], [68]). The judgment does not purport to replace those authorities.
At [21], the Court says: “Inconsistency in the relevant sense must be established as a matter of logic and reasonableness.” In plain English, different verdicts are not legally contradictory just because they relate to the same complainant or events. There must be a real logical incompatibility between the findings.
At [23], the Court explains that the jury could accept non-consensual intercourse while remaining uncertain about the separate detention allegation. In plain English, the sexual assault verdict did not require the jury to accept every part of the prosecution case about what happened during the day.
At [26], the Court says that the need for a cross-count credibility direction “does not arise simply because the complainant's evidence is relied on to support more than one count.” The translation is that the direction is contextual, not automatic. The judge must consider what the counts share, how they differ, and what inferences the jury might reasonably draw.
At [47], the Court states that it was not enough for ER simply to say that she “rang” RM or “told him”. In plain English, evidence that a conversation happened does not, without evidence of its content, establish that the complainant made a complaint of the offence.
At [59], the Court emphasises the short interval between the event, the police call and G.A.R.'s awareness of the charge. Its reasoning is that the concern addressed by Longman, a delay that impairs meaningful investigation and testing of the allegation, was not present on these facts.
At [68], the Court describes the limit of a Jones v Dunkel direction in a criminal trial. In plain English, jurors may be told that an absent prosecution witness might not have helped the prosecution. They may not be invited to speculate that the witness would have supported the defence or undermined the prosecution.
The judgment is particularly relevant where a jury returns different verdicts on separate counts involving the same complainant. It directs attention to whether the counts are genuinely inconsistent, rather than assuming that an acquittal on one count necessarily undermines a conviction on another ([21]–[23], [34]–[35]). It is most useful where the counts concern distinct conduct or elements, and the evidence supporting them is not identical.
It is also relevant where a party seeks a direction that a credibility doubt on one count must affect assessment of the complainant's evidence on other counts. The judgment does not rule out such a direction. It says the question depends on the surrounding circumstances, and that the direction can be inappropriate where the jury can rationally distinguish between allegations ([26]–[35]).
For complaint evidence, the case matters where the proof of a complaint is vague or incomplete. The distinction is between evidence of the fact that a call or conversation occurred and evidence of the words or representation made during it ([47]–[52]). The judgment also illustrates that a complainant's statement reported by another witness can be admitted under s 66 even if the complainant denies or does not recall making it, as the Court held about the conversation with the daughter ([49]–[50]).
The Longman discussion is relevant where there is an argument that delay makes evidence difficult to test. The Court's analysis gives importance to the length and effect of the delay, including whether the accused lost a realistic opportunity to investigate the allegation ([54]–[62]). The judgment does not establish a general rule that all delayed complaints require a Longman warning, or that all cases without independent corroboration require one.
The missing-witness discussion applies where a party argues that the prosecution's failure to call a witness should attract a Jones v Dunkel direction. The judgment requires attention to whether the witness could reasonably have been expected to be called and confines the inference to the possibility that the witness would not have assisted the prosecution ([64]–[69]).
The supplied judgment contains no decisions from later courts applying, distinguishing or otherwise treating Regina v G.A.R. It is therefore not possible to state from this source whether later courts have followed or limited its reasoning.
Within the judgment itself, the Court explains the authorities it applies or discusses. It describes Markuleski as rejecting a proposition that mixed verdicts in a word-against-word case can be sustained only if there is a relevant difference in the quality of the complainant's evidence ([30]–[32]). It then refers to MFA v The Queen for the clarification that acquittals on some counts do not necessarily mean the complainant is a person of damaged credibility ([33]–[35]). It also cites Longman and later authorities, including Crampton, Doggett and Dyers, in discussing warnings about potentially unreliable evidence ([53]–[62]). These are the Court's accounts of the authorities available to it in 2003, not evidence of how later courts have treated this judgment.
The judgment expressly leaves open whether the Longman warning should be understood as an emerging category under s 165 of the Evidence Act or as arising independently of that section. Miles AJ said that question did not need to be resolved to decide the appeal ([55]–[57]). The decision therefore does not settle the doctrinal source of the warning.
The judgment also does not formulate a comprehensive test for when a Markuleski-type direction is required. It states that the answer depends on all relevant or surrounding circumstances and rejects any fixed wording ([26], [34]). The decision provides an example of circumstances where no direction was required, but leaves future cases to assess the connection between counts, the evidence and the risk of a jury misunderstanding the relationship between findings.
On complaint evidence, the decision identifies the need to prove the terms of a representation and notes the possible operation of ss 135 and 137 where the asserted content is vague ([47]). It does not comprehensively address how those discretionary provisions should be applied across different forms of incomplete or ambiguous complaint evidence.
Finally, the judgment's missing-witness discussion is tied to the trial record: the defence had not run a concoction case, the cross-examination did not create a reasonable expectation that RM would be called, and evidence described the effort to obtain statements as impossible ([67]–[69]). It does not decide how a Jones v Dunkel direction should operate on materially different facts, such as where a witness is central to a live defence issue and the prosecution has not explained the failure to call them.
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CITATION : Regina v G.A.R. [2003] NSWCCA 224 HEARING DATE(S) : 9/7/03 JUDGMENT DATE : 19 August 2003
JUDGMENT OF : Spigelman CJ at 1; Bell J at 2; Miles AJ at 3 DECISION : Appeal against conviction dismissed; Leave to appeal against sentence refused
CATCHWORDS : Evidence of complaint in sexual cases - inconsistent verdicts LEGISLATION CITED : Criminal Appeal Act 1912 Bromley v The Queen (1986) 161 CLR 319 Buckland v R [1977] 2 NSWLR 452 Carr v The Queen (1988) 165 CLR 314 Crampton v the Queen (2000) 206 CLR 161 Doggett v the Queen 2001) 208 CLR 343 Dyers v The Queen (2002) 192 ALR 191 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Jones v The Queen (1997) 191 CLR 439 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53 McKenzie v The Queen (1996) 190 CLR 348 R v BWT [2002] NSW CCA 60 R V GS [2003] NSW CCA 73 R v Markuleski (2001) NSWCCA 290, 2001 52 NSWLR62 PARTIES : Regina G.A.R. (Appellant) FILE NUMBER(S) : CCA 60125/03 COUNSEL : DML Woodburne (Crown) C Papanyanni (Appellant) SOLICITORS : SE O'Connor Jeffreys & Associates (Appellant)
LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1183 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :
SPIGELMAN CJ BELL J MILES AJ
Tuesday, 19 August 2003 G.A.R. v THE QUEEN Judgment 1 SPIGELMAN CJ: I agree with Miles AJ. 2 BELL J: I agree with Miles AJ. 3 MILES AJ: This is an appeal against conviction and an application for leave to appeal against sentence. The appellant was charged on indictment as follows: That he on 13 January 2002 at Doonside did without consent detain ER with the intention of obtaining an advantage, namely to keep the said ER in his custody and under his control.
Further that he on or about 14 January 2002 at Doonside did have sexual intercourse with ER without her consent and knowing that she was not consenting. 4 The trial commenced on 21 October 2002. The jury on 1 November 2002 returned a verdict of not guilty on the first count and a verdict of guilty on the second count. 5 On 10 December 2002 the appellant was sentenced by his Honour Judge Naughton QC to imprisonment for a term of six years commencing on 5 April 2002 and expiring on 4 April 2008 with a non parole period of four years and six months to expire on 4 October 2006.
Prosecution case at trial 6 The complainant, ER, and the appellant had been married for some twenty years. They were divorced some few days before 13 January 2002. The complainant with their daughter then aged twelve lived at a house at Doonside. 7 The appellant went to the house on the morning of Sunday 13 January 2002 without prior arrangement. The daughter was present when he arrived. The complainant in response to a telephone call arrived later. The appellant swore and shouted at her about various matters. He pinned her against the sink in the kitchen with his hands on either side of her body and she remained there for about an hour and a half during which time the appellant moved back and forth a foot and a half away. Thereafter she was able to move about the kitchen but she was not able to move from that area. After about two and a half hours she was able to move into the dining room. During the whole of the time until then the appellant continued to be abusive and to make threats directed at her and other persons, including a man whom it is convenient to call RM. 8 From about lunchtime to about 5 pm, during which the daughter was asleep on the lounge, the appellant was in turn calm and abusive. More than once the complainant asked him to leave but he refused. When the daughter woke, the complainant said that she wanted to go for a walk with the daughter. The appellant insisted that if they went he would go too. They did not go. 9 As the evening progressed there was further acrimony over the use of the telephone. Incoming calls were received and outgoing calls were made or attempted. 10 At about 11 pm the daughter went to bed, this time in her own room. In response to the complainant's repeated request that he leave, the appellant refused, insisting that it was his home and that he could sleep where he liked. 11 At about midnight the complainant went to bed in her room, remaining fully dressed. 12 About fifteen minutes later, the appellant came into the room and approached her. She said "Don't do this to me G. Please don't do this to me." The appellant responded by threatening to silence her. He then threw her back onto the bed, removed her clothing and had forcible penile intercourse with her. He continued to threaten her and watch her when she went to the bathroom and put her clothes back on. He set the alarm clock and lay on the bed next to her. When the alarm clock sounded at 4 am, he left, threatening to return. 13 After showering and dressing the complainant went to the dining room where she sat for some time. She then telephoned RM. At about 6 am the daughter came into the dining room. They conversed and a telephone call was made to the police. At about 11.20 am two police officers attended the house. The complainant had a conversation with them. The contents of that conversation were given in evidence by one of the police officers. Later that afternoon the complainant attended the Westmead Hospital where Dr Sterrett took a history, examined the complainant and prepared a report. 14 The evidence in the Crown case was given by the complainant, the daughter and police officers who attended the scene and carried out investigation. The report of Dr Sterrett was admitted into evidence. Apart from the history given by the complainant, it reported scratches to the left side of the complainant's face and fingernail marks on the left arm and bruising. Injuries of that nature were shown in photographs also admitted into evidence. Forensic evidence included DNA testing which established a match between semen found on the complainant's bed sheet and a sample taken from the appellant.
Defence case at trial 15 The defence case was that the appellant went to the house in order to invite his daughter to go with him on an outing and that he became concerned about what she told him about herself and RM who was much older than she. Upon the complainant's return to the house, he discussed with her his concerns. The discussion was sometimes heated particularly with reference to RM whom he suspected of abusing the daughter. However, he did nothing to restrict the complainant's movements around the house or to stop her from leaving. During the afternoon they grew conciliatory and when the daughter went to bed the complainant invited him to have intercourse with her in her room. He accepted the invitation and consensual intercourse took place several times before he left in the morning when the alarm clock sounded. 16 Evidence to the above effect was given by the appellant. 17 In cross-examination the daughter conceded that she had given a deliberately false account to the police of her movements on the preceding night of 12 to 13 January 2002. It was suggested that she had lied in order to protect her mother and to preserve her own freedom, in particular her relationship with RM. She also conceded that she had lied on a previous occasion when she made a false accusation against RM.
Grounds of appeal 18 The grounds in the notice of appeal against conviction were 1. The verdict of the jury on count 2 was unreasonable and cannot be supported on the evidence.
Inconsistent verdicts (ground 1) 20 Although expressed in the general terms of s 6(1) of the Criminal Appeal Act 1912 this ground was argued primarily on the basis that the verdicts of the jury were inconsistent. 21 However there was no inconsistency in the verdicts. Inconsistency in the relevant sense must be established as a matter of logic and reasonableness: McKenzie v The Queen (1996) 190 CLR 348 at 366. 22 The verdict of the jury on the first count is explicable logically on the basis that whilst they were satisfied that the appellant had intercourse with the complainant against her will, they were not satisfied beyond reasonable doubt that she was otherwise detained without her consent, or that any detention was for the purpose of an advantage, namely to keep her in his custody and under his control. 23 The prosecution case was not curtailed by particulars about when the alleged detention began and finished. The trial judge gave no directions in that regard and was not asked to do so. Leaving aside the period of forcible sexual intercourse, the evidence about how and where the complainant was detained was not clear. On the evidence any unlawful detention could not have commenced before the time when the complainant alleged that the appellant held her against the kitchen sink. After that the complainant was free to move about the house. It was open to the jury to conclude that she was free to leave the house. There was no evidence that when the appellant locked the door in the early evening it had the effect of keeping the complainant within the house, in contrast to keeping other persons out. The complainant's evidence that on several occasions she asked or told the appellant to leave did not extend to her asking him to let her leave. Her evidence that when she said that she and the daughter wanted to go for a walk at about 8:00pm the appellant said that he would come too is consistent with her having a choice between leaving on his conditions or not leaving at all. The jury may well have regarded all that evidence as not consistent with detention without her consent. They may have thought that it remained doubtful whether the incident in the kitchen amounted to an unlawful detention. Far from indicating inconsistency the verdict of not guilty on the first count may show that the jury gave effect to the proper directions that they should consider each count separately: McKenzie v The Queen (1996) 190 CLR 348 at 367.
Failure to give a specific direction as in Markuleski (ground 2) 24 In R v Markuleski (2001) NSWCCA 290, 2001 52 NSWLR62 Spigelman CJ. "It will often be appropriate to direct jurors that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant's evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness and reliability of the complainant's evidence generally." 25 These words follow the observation that it was not necessary to specify any precise words for the purposes of such a direction and that they will depend on the circumstances of the case. 26 The need to give such a direction does not arise simply because the complainant's evidence is relied on to support more than one count. Further, if such a direction is required, there is no specific formula as to its content. 27 It was submitted that in the present case what made such a direction necessary was the repeated reference in the summing-up to the evidence of the complainant being "crucial" and "critical" on the issue of lack of consent on both counts, with the result that the jury would have understood the direction as given to mean that if they accepted the complainant they should convict on both counts. Of course if they had been given a direction in terms of the latter it would have been objectionable, but they were not. The reference to the "truthfulness" of the complainant's evidence in relation to each count being "critical" was given as part of a "warning" as to the lack or limit of evidence to support the complainant's allegations 28 An examination of the summing-up as a whole reveals that the jury were given an appropriate direction in relation to the separate counts. His. Honour instructed the jury that they "must consider each of the two counts separately and give a separate verdict in relation to each of them", that the two counts "have been joined and heard together as a matter of common sense" and that the verdict on one count may be different from the verdict on the other count. 29 Far from being required in all cases, the direction required in Markuleski may be quite inappropriate where it is open to the jury to convict on one count and to acquit on another, as was the case in the present matter. Further, a Markuleski direction, given when it is not required, may give the jury the mistaken impression that the jury, having come to a view on one count, may not take their view on that count into consideration for the purpose of considering their findings on another count, having regard to whatever evidence may be common to the several counts. In any event no request was made for such a direction by defence counsel and at this stage rule 4 of the Criminal Appeal Rules would preclude the appellant from relying on it. 30 Markuleski was a case of six counts alleging sexual assaults on a young girl. The jury brought in verdicts of guilty on five counts and a verdict of not guilty on the remaining count. As in the present appeal, the verdicts of guilty were challenged as unreasonable and unsupportable within the terms of section 6 of the Criminal Appeal Act on the basis that they were inconsistent with the verdict of not guilty. It was in that context that the further issue was raised in the appeal of a direction to the jury that a reasonable doubt as to the complainant's evidence on any one count ought to be taken into consideration in assessing the complainant's evidence generally. 31 In Markuleski there was another issue, which for reasons given later in this judgment may be excluded from present consideration, namely, the lengthy delay from the time of the alleged offences to the time of complaint and to the time of trial. 32 In Markuleski the Court, comprised of five judges, reviewed a number of prior authorities in the Court which followed the High Court decision in Jones v The Queen (1997) 191 CLR 439. It was considered that some of those authorities appeared to establish the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the court can detect "a relevant difference in the quality of the complainant's evidence". (Markuleski [65]). The majority opinion in Markuleski rejected that proposition. In doing so, Spigelman CJ said at [65]: Whether or not the failure of a jury to accept the complainant's evidence in one respect ought to have led the jury to have a reasonable doubt with respect to other matters must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant's evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, that conclusion does not, in my opinion, follow in every such case unless the Court is positively satisfied that there is some relevant difference in the quality of the complainant's evidence." 33 In MFA v The Queen [2002] HCA 53 Gleeson CJ, Hayne and Callinan JJ said at [35] "It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous." 34 Hence the whole of the relevant or surrounding circumstances needs to be considered in order to determine whether a direction to the jury ought to have been given to the effect that a reasonable doubt as to the complainant's credibility on one count ought be considered in assessing the complainant's credibility generally or in relation to the other count. 35 The surrounding circumstances in the present case did not give rise to the need for such a direction. There was no issue about whether there had been sexual intercourse between the accused and the complainant. The accused himself conceded in evidence that intercourse took place (indeed he contended that it took place several times, albeit with the consent of the complainant). There was supporting evidence from the daughter that she heard her mother ask or tell the accused "please don't do this". There was evidence of injury. If it be necessary to add it, there was also the evidence of complaint to the police about the sexual assault about which more will be said later in this judgment. Lastly, as has already been said, there was no inconsistency in the verdicts, having regard to the different nature of the two disparate offences charged.
Misdirection on complaint (ground 3) 36 The issue of complaint was dealt with at the trial in the following way. 37 At the end of the evidence, the trial judge consulted counsel about the directions he intended to put. His Honour indicated that he proposed amongst other things to issue various warnings to the jury. With regard to evidence of complaint he said: "…A direction on complaint evidence, let it be on the basis of a complaint without delay so it would be a s 66 situation where the content of the complaints could be used as some evidence of the truth of what was asserted. That relates to absence of consent, there being no issue about sexual intercourse having taken place." 38 Counsel had nothing to put on that aspect of what his Honour proposed to direct. 39 In the course of the summing-up the trial judge on various occasions referred to specific parts of the evidence which he summarised and described as "complaint evidence". That evidence was as follows.
• The evidence of the complainant in chief that after the appellant left the house she showered and dressed, sat in the dining room and "rang my friend RM very early in the morning, possibly at about 5.00AM", and in cross-examination "I called my friend RM and told him what had happened."
• The evidence of the daughter that after she woke and saw her mother in the dining room, she said "Mum I'm calling the police." The complainant replied "No, don't." The daughter responded "I know he raped you." The complainant replied "Yes he did." The daughter then rang the police.
• Evidence about which his Honour said there was no dispute, namely that the police "received a complaint from the complainant that morning she had been raped by the accused."
• Evidence of Constable White who accompanied Constable Wharfe to the house about 11.30 am and heard the complainant say to Constable Wharfe "He wouldn't let us leave the house, and I couldn't call anyone, when I went to bed, he came in and raped me."
• A certificate admitted under s 177 of the Evidence Act signed by Dr Sterrett recording that the complainant arrived at the Westmead Hospital on 14 January 2000, giving a history of abuse by her ex-husband including "threats against her life, holding her down with physical force (hand on face and throat) and vaginal rape with penile penetration and, she believed, ejaculation." 40 His Honour directed the jury that the complaint evidence was hearsay, explained the nature of hearsay and continued as follows:
(Page 37) "Because the complaint evidence is hearsay you must necessarily approach that evidence by the complainant, alleging that she had been raped, with some caution. However, bearing in mind that warning, if you accept that the complaints were made to the police and Dr Sterrett and RM, you will remember Constable White was not cross-examined about the alleged complaint to Constable Wharfe, well, if you are satisfied that the complaints to any of those persons were made by the complainant then you can take that into consideration as some evidence of the fact that the penile vaginal sexual intercourse which occurred between the accused and the complainant was without consent. In other words you can take it, the complaint evidence, into account as some evidence of the truth of what was complained about. … The fact that that or any of the other alleged complaints of rape were made may also assist you in determining the weight, or value, to be given to the complainant's evidence here in court as to sexual intercourse being without her consent. …The Crown says it shows consistency, consistency of conduct in that she complained, to some person or persons within a reasonable time to whom she might reasonably have been expected to complain if she had been raped. … On the other hand the accused says that it is significant that she did not complain to any female friend." 41 His Honour went on to direct the jury that, if they were satisfied that any such complaint was made, then not only could they take it into account as some evidence of the truth of what was complained about, but it might also assist them in determining the weight to be given to the complainant's evidence in court as to the sexual intercourse being without her consent. 42 His Honour then explained that the prosecution relied on the complaint evidence to show "consistency of conduct on the part of the complainant in that she complained within a reasonable time to somebody else to whom she might reasonably have been expected to complain if she had been raped." 43 Counsel for the appellant submitted in the appeal that some of the evidence described by his Honour was not evidence of complaint at all and, further, that his Honour did not give the jury a proper warning about how they should approach the various items of evidence as so described. 44 The history and rationale for the reception of complaint evidence at common law was discussed by Gaudron J in M v The Queen (1994) 181 CLR 487 at 513. After quoting Hawkins' Pleas of the Crown 1716 -1721 (1973) BL 1 Ch 41 s 7 s3 where it was said "[I]t is a strong but not a conclusive presumption against a woman that she made no complaint in a reasonable time after the fact."
Her Honour went on to discuss statutory provisions which limit the use to which absence of complaint evidence may be put. Her Honour continued "The requirement of s 405B(2) of the Crimes Act that where the question is raised a direction is to be given to the jury to the effect that the absence of complaint does not necessarily indicate that the allegation is false and that there may be good reason why no complaint was made, and the continuing practice notwithstanding s 405B(2) for a trial judge, at least as a general rule, to direct the jury that absence of complaint or delay in complaining may be taken into account in evaluating the evidence of the complainant: R v Davies (1985) 3 NSWLR 276 at 278, see R v Preval (1984) 3 NSWLR 647, R v Murray (1987) 11 NSWLR 12." 45 The anomalous basis of the admissibility of complaint evidence in sexual offence cases at common law is not to be found in the Evidence Act 1995. Yet what might have passed for evidence of complaint at common law may be admissible under the Evidence Act by way of a representation being an exception to the hearsay rule under s 66. The statement must be "fresh in the memory" (at common law the complaint had to be at the earliest reasonable opportunity) and the statement may be proved by the evidence of the person making it as well as by any person who witnessed the representation being made. Thus under the Evidence Act all or any of several statements which amount to complaint may be admissible (at common law there could be evidence of one complaint only). The potential admissibility of evidence of complaint leaves open the operation of s 405B(2) of the Crimes Act as discussed by Gaudron J in M v The Queen. 46 The effect of Part 3.2 of the Evidence Act is that evidence of a representation, if admitted, may be regarded as evidence of any facts that the maker intended to assert by the representation of the facts represented. Those facts must be relevant, otherwise there is no basis for admissibility at all. Further, once admitted, the statement may be treated as evidence going to the truthfulness or reliability of the witness who made the statement, as well as evidence of the facts represented. Hence evidence of a complaint by a person that he or she was sexually assaulted, made while fresh in the memory, may be approached by the jury as evidence of both the fact of the sexual assault and of the truthfulness or reliability of the complainant as a witness. 47 Once it is recognised that evidence of complaint is no longer admitted in effect to bolster or strengthen the credit of the complainant, but as evidence of the facts intended to be represented, it follows that there must be evidence of the terms of the representation. It further follows that it was not enough in the present case for the complainant simply to say in evidence that she "rang" RM, or that she "told him". The fact of the telephone call in itself was irrelevant. Arguably it might have been relevant for her to say in evidence that she "told him what happened", but the probative value of her telling RM "what happened" was well outweighed by the likelihood of unfair prejudice, the jury being invited in effect to speculate upon what it was that she said to RM. Hence evidence that she told him "what happened", if it had been objected to, was likely to have been rejected on discretionary grounds under s 135 or 137 of the Evidence Act. 48 Since the evidence went no higher than establishing that the complainant told RM "what happened", the jury should not have been left in the situation where they had been instructed that the complainant had made a complaint to RM. 49 In this connection it was also submitted that the evidence surrounding the conversation between the complainant and the daughter, followed by the telephone call to the police, was left to the jury as if it were complaint evidence. The complainant had said in the trial that she did not tell her daughter about what the appellant had done to her. In contrast, the daughter gave evidence in the trial that the she told the complainant "I know he raped you" and the complainant replied "Yes he did." 50 The evidence of the daughter was correctly admitted as an exception to the hearsay rule being evidence of a representation by the complainant under s 66. The fact that the complainant denied or did not remember it did not render evidence of her representation inadmissible nor provide a compelling reason for rejecting it on discretionary grounds. 51 The evidence of the conversation with Constable Wharfe and of the history given to Dr Sterrett was correctly admitted and the direction given in relation to that evidence was adequate. 52 The directions on the evidence which was said to amount to complaint were inaccurate as far as statements by the complainant to RM were concerned. However that evidence was not objected to. Some of the content of the statement by the complainant to RM was put before the jury by way of cross-examination, presumably in order to show inconsistency on the part of the complainant. No direction was sought at the end of the summing-up. Again rule 4 applies.
Failure to give a Longman warning (ground 4) 53 A failure to give a warning to the jury in accordance with what was said by the High Court in Longman v The Queen (1989) 168 CLR 79 has become a common ground in appeals against conviction. There is a wide range of opinion about exactly what is meant by a Longman direction and when such a direction is required. 54 Longman was a case in which there was a delay of twenty years from the alleged offence to the first complaint on the part of the alleged victim, who was the stepdaughter of the accused. The circumstances alleged were that the girl, who was six years old on the first occasion and ten years old on the second occasion, was awoken from her sleep by the accused touching her genitalia. All Justices of the High Court were of the view that the failure to give an appropriate warning had led to a miscarriage of justice. There was a difference in the formulation by the justices of the warning that should have been given. In the majority judgment of Brennan J, Dawson J and Toohey J it was stated at 91: "The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying head to heed to the warning, were satisfied of its truth and accuracy." 55 So stated, it is apparent that the warning that should have been given was one which related specifically to the circumstances of the particular case, and in particular the long delay of twenty years. Subsequent cases both in the High Court and this Court have confirmed that a warning of this nature or along the lines of that given is required in cases concerned with long delay between alleged sexual offences and either the time of the accused becoming aware of the allegation or the time of the trial or both. However, it is possible to glean from Longman itself and from the subsequent authorities a principle that the necessary warning to be given in cases of long delay in sexual offence allegations is but an example of the necessity to give an appropriate warning in any case where such a warning is appropriate. So broadly stated the principle appears to be an open-ended extension of the provisions of s 165 of the Evidence Act which require a warning in relation to evidence "of a kind that may be unreliable". Examples of the kinds of evidence to which the section applies are given set out in subsection 1 paragraphs (a) to (g). They do not include the evidence of a complainant in a sexual offence matter nor evidence of something that happened a long time before complaint is made the evidence is given. 56 The use of the non-exhaustive list of examples in paragraphs (a) to (g) led the Australian Law Reform Commission to comment (ALRC 26 Vol 1 para 1017): "The categories are broadly described … The disadvantage with this approach is that some category may emerge in the future which should be treated in the same way." 57 Whether the Longman warning is part of an emerging category not mentioned in s 165 or whether it arises independently is a matter that does not need resolution, but it may be observed that what is regarded as a Longman warning appears to be more stringent than that required by s 165. See for example: Crampton v the Queen (2000) 206 CLR 161, Doggett v the Queen 2001) 208 CLR 343, Dyers v The Queen (2002) ALR 181, R v BWT [2002] NSW CCA 60, R V GS [2003] NSW CCA 73. 58 In the present case it is clear that neither counsel and his Honour considered that a Longman direction was required. His Honour convened an "issues directions" hearing in order to discuss the various warnings to be put and counsel did not demur to what his Honour proposed, which included "a warning that there is no evidence independent of the complainant herself, that's really no corroboration, we now call support rather [than] corroboration." The warning that was subsequently given was that referred to in para 26 above. 59 The formulation of the warning by his Honour was not intended to be in accordance with the judgments in Longman. The fact of the matter was that no Longman direction or anything like it was required at all. The great delay which is a feature of Longman and decisions which follow it was conspicuously absent from the present case. The incident constituting the forcible sexual intercourse occurred shortly after midnight on the day in question. The police received the telephone call at 11.30 am. The appellant knew what he was charged with when arrested about four hours later. Allowing for all the frailties of human memory and the lapse of time from the event until the trial, it is impossible to see how the appellant may have been deprived of any forensic ability to investigate and test the complainant's allegations. 60 However the further submission put by Mr Papayanni on behalf of the appellant was that the true basis upon which a Longman direction is required is not the lapse of time but the wider principle namely the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. According to the judgment of Brennan J, Dawson J and Toohey J, apart from the rule now abolished that a warning was necessary with regard to complaints in sexual offence cases, the general law requires such warning of the danger of convicting on potentially unreliable evidence and, in the joint judgment of their Honours, Bromley v The Queen (1986) 161 CLR 319 at 323-325 and Carr v The Queen (1988) 165 CLR 314 at 330 were given as authority or examples of the general principle. It may be noted that Deane J in Longman did not cite either of the two earlier cases and limited the occasions for and the contents of the warning. Deane J did not see the need to use the word "danger" and thought it was enough that the jury be told to scrutinise the evidence with great care, and exercise considerable caution before convicting on it alone. McHugh J said at 106 that if the evidence of the complainant is potentially unreliable for some reason other than the making of an uncorroborated complaint "as in any case where the prosecution depends solely upon the evidence of one witness, the trial judge will be entitled to point out that the evidence of the complainant requires special scrutiny and in some cases may require a stronger warning", citing Carr at page 318. 61 As has been observed, the fact that the evidence challenged is uncorroborated cannot in itself mean that it is in a category where, unless corroborated, it must be scrutinised with great caution or that it is dangerous to convict on such evidence unless corroborated. In any event, although his Honour told the jury that the evidence on the second count was uncorroborated, there was material that was capable of supporting the evidence of the complainant. There was in the daughter's evidence that she had heard her mother say to the appellant "Please don't do this". There was the evidence of injury. There was the evidence of complaint admitted as an exception to the hearsay rule, and discussed above. The fact that the daughter conceded that she had lied to the police about her activities on the preceding night and about RM did not require the sort of warning given in Longman. Adequate direction was given about how the jury should take into account admitted lies out of court on the part of the daughter. 62 The direction given to the jury relating to any potential unreliability of the complainant's evidence was adequate.
Failure to give a direction regarding to witnesses not called. (Ground 3) 63 It was submitted at the hearing of the appeal that the trial judge had failed to give a direction along the lines of that given in Jones v Dunkel (1959) 101 CLR 298 regarding witnesses who had not been called by the prosecution. This was not a specific ground in the notice of appeal but it is accepted that it is bound up with ground 3 as it was set out in the notice of appeal. 64 Jones v Dunkel was of course a civil case where it is immaterial whether the failure is that of the plaintiff or of the defendant. In criminal trials a direction along the lines of that given in Jones v Dunkel may be given in respect of the unexplained failure of the prosecution to call witnesses that might reasonably be expected to be called in the prosecution case: Buckland v R [1977] 2 NSWLR 452. Having regard to the presumption of innocence, it is not a direction that can be put at the instance of the prosecution in order to suggest some weakness or deficiency in the defence case: Dyers v The Queen (2002) 192 ALR 191. 65 The failure was said to arise from the absence of evidence from the man RM, and two other possible witnesses, LL and GR to whom the complainant said she spoke by telephone during the course of the day and evening. As far as the two latter are concerned it may be said immediately and safely that no reasonable expectation arose that the prosecution would call either of them. All that was known was via the evidence of the complainant that LL had telephoned her after 5 pm and asked whether the complainant wanted her to call the police and that at about 10 or 11 pm the complainant had asked GR to meet her in a park. 66 With regard to RM however the case for the appellant was put thus. The complainant might not have told RM that she had been sexually assaulted. At the most she may have complained only of the appellant's conduct in the afternoon, that is, made allegations of unlawful detention which the jury found unproved. Further, if she had not complained of the sexual assault, that would have supported the appellant's case that the complainant and the daughter had concocted an allegation that the sexual assault took place. If RM had been called, his evidence might have supported a case of concoction. 67 A major difficulty with the submission at this stage is that it was never part of the appellant's case at trial that the complainant and the daughter had concocted a story of sexual assault. Cross examination of neither witness never sought to establish such a case. Rather it seems that defence counsel sought in cross-examination of the complainant to elicit some of the contents of the conversation with RM in order to establish inconsistencies between the evidence of the two witnesses and within the evidence of the complainant, but nothing emerged from the cross-examination which was capable of giving rise to a reasonable expectation that RM would be called. 68 The limits of a Jones v Dunkel direction in a criminal trial are that from the unexplained failure by the prosecution to call the witness, the jury, may (not must) infer that, if called, the witness would not have assisted the prosecution case. The jury is not to be told that they may infer that the witness might have positively harmed the prosecution case. By no means could they have been told that the man RM might have thrown doubt on the prosecution case by raising a suggestion of concoction between the complainant and her daughter. 69 In any event it was open to the jury to conclude, if they had been invited to consider the matter, that the absence of RM from the trial was sufficiently explained. Detective Senior Constable Crampton gave evidence, far from comprehensive but unchallenged, that it had proved "impossible" to obtain statements from RM and LL. No evidence was given or sought about what efforts had been made to obtain the statements, or the whereabouts or availability of the potential witnesses. However to consider at this stage that a Jones v Dunkel type direction was necessary is quite unreal.
Conclusion 70 For the foregoing reasons the appeal against conviction should be dismissed.
Leave to appeal against sentence. 71 The sentence of six years imprisonment with a non-parole period of four and a half years to date from 5 April 2002 was well within the discretion of the sentencing judge. 72 It is no doubt a matter for concern that the applicant is aged fifty years and that during the last eighteen years has been in the community for a total period of less than two years. It is true that his long list of convictions does not include a conviction for violent sexual assault and that a precipitating factor in the events leading to the offence was his concern for the daughter. 73 However it is not possible to regard the fact that the victim had been married to him for about twenty years up until a few days before the offence as any sort of mitigating factor. The injuries and bruises that were evident to Dr Sterrett were not serious, but they were sufficient to be observable by the doctor and to show up in photographs, and they indicate a measure of violence. The callousness and the arrogance with which the offence was committed indicate the appellant's refusal to accept the right of the victim to her own dignity. A heavy sentence was inevitable. There are no special circumstances justifying a reduction of the proportion of the non-parole period to the head sentence. 74 Leave to appeal against sentence should be refused.
Last Modified: 08/28/2003 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.
Regina
G.A.R.
[2002] HCA 53
(1986) 161 CLR 319
(1988) 165 CLR 314
(2000) 206 CLR 161
(2002) 192 ALR 191
(1959) 101 CLR 298
(1997) 191 CLR 439
(1989) 168 CLR 79
(1994) 181 CLR 487
(1996) 190 CLR 348
(1985) 3 NSWLR 276
(1984) 3 NSWLR 647
(1987) 11 NSWLR 12
Appeal against conviction dismissed. Leave to appeal against sentence refused.