Regina v Gillard [1999] NSWCCA 21 | Case summary

1 THE COURT: The appellants, who are husband and wife, appeal against their convictions and Ronald Douglas Gillard seeks leave to appeal against the alleged severity of the sentence imposed on him following a joint trial in the District Court, Sydney, which took place before a judge and jury between 28 April, 1997 and 6 May, 1997. 2 The appellants were found guilty on the following charges:- 3 Count 1: That Ronald Douglas Gillard between 1 March, 1989 and 1 June, 1990 at Sans Souci did have sexual intercourse with V, a child between the age of 10 years and 16 years, namely 13 or 14 years and then under the authority of the said Ronald Douglas Gillard. 4 Count 2: That Colleen Therese Gillard during the same period of time and at the same place, did have sexual intercourse with V, being then under the age of 16 years, namely 13 or 14 years and under the authority of the said Colleen Therese Gillard. 5 Count 3: That Ronald Douglas Gillard and Colleen Therese Gillard between the same dates and at the same place, did commit an act of indecency towards V, being then under the age of 16 years, namely 13 or 14 years and under the authority of the said Ronald Douglas Gillard and Colleen Therese Gillard. 6 Count 4: That Ronald Douglas Gillard between the same dates and at the same place did have sexual intercourse with V, a child between the age of 10 years and 16 years, namely 13 or 14 years and under the authority of the said Ronald Douglas Gillard. 7 Count 5: That Ronald Douglas Gillard between the same dates and at the same place did assault V and at the time of the said assaults, did commit an act of indecency upon the said V, being at the time of the said assault under the age of 16 years and under the authority of the said Ronald Douglas Gillard. 8 Count 6: That Ronald Douglas Gillard between the same dates and at the same place, did have sexual intercourse with D, a child between the age of 10 years and 16 years, namely 12 or 13 years and under the authority of the said Ronald Douglas Gillard. 9 Count 7: That Ronald Douglas Gillard and Colleen Therese Gillard between the same dates and at the same place did commit an act of indecency towards D, the said D being then under the age of 16 years, namely 12 or 13 years and under the authority of the said Ronald Douglas Gillard and Colleen Therese Gillard. 10 The Crown case which, by its verdict, the jury accepted with regard to each count may be summarised as follows:- Count 1: 11 The complainant V was born on 20 October, 1975. In January, 1989 she moved with her parents and sister D to Taren Point where they took up residence in a partly completed boat, which their parents were building. The accommodation in the boat was very cramped, there were no shower facilities and the family environment was poor. The male appellant worked in a scrap-yard adjacent to the boatyard where the boat was located. 12 The complainant V and her sister D used to collect cans and bring them to the metal scrap-yard where they were paid some money for them. 13 The complainant V was first introduced to the male appellant by her sister D, who had been to the appellants' house swimming and looking after their two children, aged 3 and 5 respectively. V said that her parents had also met the appellants. She was first invited to the appellants' house in the same suburb of Sans Souci around April of 1989. 14 On the first evening that V slept over at the appellants' house she was given wine with her evening meal and became light headed. She went to bed at about 10.30 pm. She heard footsteps in the corridor and the male appellant came into her room and got into bed with her. He moved his hand under her underwear, touched her breast area and her vaginal area and then put his fingers in her vagina. She said it hurt. She gave evidence that she moved and he then put his finger deeper into her vagina. The appellant left the bedroom and the next morning asked the complainant V if she had enjoyed it. 15 The complainant V said that she considered the appellants' home to be a better environment than living in the partly completed boat. She gave evidence that she liked to play with the appellants' children and to swim in the pool at their house. After the incident, which gave rise to Count 1, she continued to visit the appellants' home about once a month, often sleeping the night. Counts 2 and 3: 16 The complainant V gave evidence of being in the appellants' home around January, 1990. She consumed wine at dinner and was lying on the appellants' bed with their children. The female appellant put her children to bed in another room and following her return, the complainant gave evidence of having seen her place her husband's penis in her mouth and thereafter to engage in sexual intercourse in her presence. The complainant V gave evidence that she wanted to leave the room, but was told that she could stay if she wanted to sleep there. She remained in the double bed and gave evidence of later having experienced the female appellant being on top of her, kissing her on the breast area, moving down towards her vagina and ultimately kissing, licking and sucking her vagina. Count 4: 17 The complainant V gave evidence of having been in the appellants' bedroom with their children when they came and carried the children out and put them to bed. One or other of the appellants had told her she could stay in the bedroom. The complainant V said that she had fallen asleep and when she awakened she found that the female appellant was on her left side and the male appellant on her right side in the double bed. The male appellant started to touch the complainant V on her vagina. She moved and he desisted. He then touched her again and started to put his finger inside her vagina. She moved once more and he then stopped, but then put his finger deeper into her vagina. She was eventually able to get away and return to her own room. Count 5: 18 The complainant V gave evidence that after April, 1989 when she was bathing with the appellants' children, the male appellant came in and got into the bath with her, washed her back, then her breast area, then rubbed and washed her vagina. Count 6: 19 The complainant D was born on 26 December, 1976. She gave evidence of collecting cans with her sister V, and taking them to the scrap-metal yard where the male appellant worked. She gave evidence of the violent relationship between her parents and of the relief she felt when going to the appellants' home. 20 She gave evidence that at about Easter time in the evening of a particular day, the male appellant had asked her if she wanted a massage to which she replied "Yes". He told her that it would be more comfortable in his bed. Both appellants and the complainant D went into the bedroom and got into bed. The male appellant massaged the complainant D's back and she fell asleep. 21 When she awoke she found her underpants were down and he was rubbing his fingers on and inside her vagina. The complainant D said that when he put his fingers in her vagina, it hurt her, he had scratched her and she was scared and nervous. D gave evidence that the female appellant at this time was also in the bed next to her and was watching television. The complainant D said that she tossed and turned to show that she was waking up and that the male appellant quickly pulled her pants on and put the blanket over her. Count 7: 22 The complainant D gave evidence that at about the end of 1989 when she was staying at the appellants' home for a few days, she was in bed in the appellants' bedroom with their children when the young children fell asleep. They were taken to their bedroom by their mother and put to bed. 23 The appellants and the complainant D were then watching a movie whilst in the appellants' double bed. She was asked by the male appellant if she had ever seen anyone having sex to which she responded "No". He said "Do you want us to show you?" to which she replied "No", to which he had responded "Well we'll show you anyway". The appellants engaged in sexual intercourse in the bed beside the complainant D and the male appellant said to the complainant D "Look do you want to join us?" to which she responded that she wasn't interested at all. She said she was, scared, nervous and didn't know what to do. 24 The complainants' mother gave evidence of having been in the appellants' home on one occasion when she saw the male appellant go into the bathroom where the complainants were having a bath. She asked him what he was doing there and received the reply "I always wash the backs of the girls". 25 The complainants' father gave evidence that the complainants had gone to the home of the appellants with his consent, it being the Crown case that the complainants were under the authority of the appellants. 26 In separate records of interview conducted by investigating police, the appellants denied they had sexually assaulted the complainants. The appellants' case: 27 Both appellants gave evidence and were cross-examined. They denied the allegations that they had sexually assaulted the complainants or engaged in acts of indecency towards them. 28 Evidence was given on behalf of the female appellant that she was a person of good character. This witness had known her for some six years and had never observed any activity of a sexual nature towards children. The female appellant carried out day care for children in addition to her own two children. 29 It was the appellants' case that both complainants had concocted stories against the appellants. 30 It was contended that the delay between the period when the offences were allegedly committed and when the investigating police first spoke to the appellants, i.e. some six years later, was so great as to gravely prejudice them. 31 It is convenient to deal first with the following grounds of appeal: R -v- Ronald Douglas Gillard: 32 Ground 1 - His Honour erred in failing to adequately direct the jury about the significance of delay in complaint. 33 Ground 5 - His Honour erred in law in admitting into evidence the complaints on each case. R -v- Colleen Therese Gillard: 34 Ground 4 - His Honour erred in law in failing to direct and/or directing the jury as to complaint in particular as to consistency and delay and lack of complaint in some instances. 35 Ground 7 - His Honour erred in law in admitting into evidence the evidence of complaints on each case. 36 The evidence of complaint by V was comprised of a conversation with her mother about the end of 1990 when she and her sister D, together with their mother, were living at Caringbah. They had moved to this location following the separation of their parents and this conversation took place some six months after the parents had separated. She told her mother that the male appellant "had touched her". 37 D said that in 1992 when on holiday in France she recounted to V what had happened to her in the appellants' house and had later also told her mother. She said that V had been supportive of her when she recounted her experiences and "just agreed sort of thing" with what she was saying about digital penetration by the male appellant and sexual intercourse by the appellants in front of her, but she could not recall V saying that similar things had happened to her. 38 V gave evidence that in 1992 during the holiday in France, at the time when she had the conversation with D, she had said that the male appellant "had touched her". 39 The complainants' mother, gave evidence of having been told by V and D of digital penetration by the male appellant and of sexual intercourse by the appellants occurring in their presence. 40 There was no evidence of complaint in relation to the second count. 41 Mr Papayanni, counsel for the female appellant, whose submissions on these grounds were adopted by Ms Burgess, counsel for the male appellant, submitted that the evidence of complaint was inconsistent and more particularly was admitted contrary to the provisions of the Evidence Act 1995 (the Act). 42 Section 66 of the Act relevantly provides:- "(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if (1) the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation" 43 The representations in the nature of complaints, having been made firstly at the end of 1990, some twelve months after the alleged events, and in 1992, it is submitted that the requirement that the asserted fact be fresh in the memory of the maker of either of the complaints has not been met. 44 Reliance is placed on the decision of the High Court in Graham -v- The Queen (1998) 72 ALJR 1491. In that case the complainant, who was the appellant's daughter, complained to her friend of sexual offences against her which had occurred at least six years previously. 45 The view expressed in this Court (from which court the appeal was brought) of the notion of "freshness" was in the context of s 66 not being "… anchored to nor determined by simple notions of the lapse of time" but is concerned with "the quality of the memory", did not find favour. 46 In the judgment of Callinan J, with whom Gleeson CJ agreed at paragraph 34, his Honour said:- "… Whilst it cannot be doubted that the quality of vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the "quality" of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessary be rare and requiring of some special circumstance or feature." 47 In a joint judgment of Gaudron, Gummow and Hayne JJ at para 4 appears the following:- "The word "fresh", in its context in s 66, means "recent" or "immediate". It may also carry with it a connotation that describes the quality of the memory (as being "not deteriorated or changed by lapse of time") but the core of the meaning intended, is to describe the temporal relationship between "the occurrence of the asserted fact" and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years. There are several reasons for adopting this construction. First the section applies only where the person who made the representation has been, or is to be, called to give evidence. To permit leading of evidence of out of court statements made by that person based upon some assessment of the vividness or quality of the recollection (as opposed to its being made very soon after the events) would be to distract attention from the quality of the evidence that the witness gives in court. Secondly, whatever a person may believe, and no matter how earnestly that person may try to be accurate, experience demonstrates that the memory of events does change as time passes. Thirdly, the exception created by s 66 should be limited in its application to those cases where the tender of the earlier statement is likely to add to the useful material before the court." 48 In our opinion the evidence of these "complaints", such as they were, were not admissible under s 66 as an exception to the hearsay rule because they did not have the necessary element of "freshness" in the sense of being "recent" or "intermediate" as is necessary in the light of the majority judgment in Graham. The lapse of time to the first "complaint" by V was to be measured at least in months, and the later "complaints" in France, in terms of years. None of the evidence of complaint was to be measured in terms of hours or days. It follows that the evidence being hearsay was not admissible: s 59(1) and did not come within any of the exceptions to that rule, in particular it did not come within the exception provided by s 66(2). 49 Alternatively, it was submitted on behalf of the Crown that the evidence of complaint was admissible under Part 3.7 of the Act as credibility evidence. 50 Section 102 provides that evidence relevant only to a witness' credibility is not admissible, but the following sections in that Part provide a number of exceptions. Section 108(1) provides that the credibility rule does not apply to evidence adduced in re-examination of a witness and no leave is required; but in the present case the evidence was adduced in examination in chief. 51 Furthermore s 108(3)(b) makes admissible evidence of a prior consistent statement of a witness if it is or will be suggested (expressly or by implication) that the evidence of the witness has been fabricated (deliberately or otherwise) provided the leave of the court is obtained. In the present case the whole basis of the defence, that the events alleged had not occurred, constituted a suggestion that the evidence of the complainants was fabricated; and so it would have been open to the Crown to seek leave to adduce evidence of the "complaints" as evidence relevant to the complainants' credibility, but such leave was never sought nor given, and in its absence the evidence was not admissible. 52 A similar situation (i.e. no application for leave under s 108(3)) arose in Graham where the High Court held that it was by no means inevitable that leave to adduce such evidence would have been given, that would have been a matter for the trial judge when leave was sought taking into account a number of factors referred to in that case. Similar considerations apply here. 53 However, no objection was taken at the trial to the admissibility of the "complaint" evidence, and accordingly the appellants may not rely upon this ground without the leave of this Court: Rule 4. 54 The effect and application of that rule has been discussed in a number of cases including recently in R -v- PAH (CCA - 18 December 1998). Generally speaking this Court will only grant leave under Rule 4 if it is satisfied that the wrongful admission of evidence or erroneous direction, in either case not objected to at the trial, has led to a miscarriage of justice; and in particular an appeal will not be allowed on the ground of wrongful admission of evidence which was not objected to at trial if it appears that the failure to object may have been deliberate and intended to obtain a tactical advantage. 55 In the present case there are features which may have led counsel not to object to the evidence of complaint so as to show up discrepancies between the evidence led at trial and the contents of the so called complaints. When V spoke to her mother late in 1990, she told her that the male appellant had "touched her", but apparently made no mention of digital penetration (counts 1 and 4) nor of both appellants having sexual intercourse in her presence (count 3) nor of any cunnilingus by the female appellant (count 2). The conversation between the two complainants in France two years later made no reference to the cunnilingus alleged in count 2. It would have been open to counsel to draw attention to the differences between what was said on those occasions and in evidence at the trial, as apparently counsel did to some extent (see summary of his arguments to the Jury in the Summing Up at pp 30, 31, 32, 34), and they also relied on the lateness of the complaints. 56 However there is, we believe, a more fundamental problem in this case in that the whole trial appears to have been conducted as if the Evidence Act 1995 had never been enacted. At no stage, either in relation to the admissibility of the evidence of complaint or on any other issue, was any reference made to the Act. The Act commenced on 1 September 1995, the trial was from 28 April to 6 May 1997 and the judgment in Graham was delivered on 30 September 1998. 57 We do not suggest that in any case where an objection to admissibility based on a provision of the Act could have been but was not taken, leave will be granted under Rule 4, nor that such will generally be the result; but in the present case where we are satisfied that the Act was completely ignored and where the High Court has, since the trial, thrown light on the relevant statutory provisions, we consider that leave to argue the point should be granted; and for the reasons given are of the opinion that the evidence of complaint in this case was wrongly admitted, and the convictions should be set aside. 58 We turn now to consider the other grounds of appeal relating to the evidence of complaint, namely that the directions in relation thereto were inadequate. 59 His Honour referred to the delay in making the complaint, and pointed out (as required by Crimes Act 1900, s 405B(2)) that absence of or delay in complaint does not necessarily indicate that the allegation of the offences is false and that there may be good reason why the victim of a sexual assault may hesitate in or refrain from making a complaint; but he did not balance the direction by pointing out that in evaluating the evidence of the complainants and in determining whether to believe them the Jury could take into account their failure to complain at the earliest reasonable opportunity as reducing their credibility: R -v- Harvey (CCA - 9 April 1998) see also Longman -v- The Queen (1989) 168 CLR 79 at 91, Crofts -v- The Queen (1996) 186 CLR 427. Moreover his Honour failed to warn the jury that the allegations were first drawn to the attention of the police in 1995-6, which was when the appellants were first notified of them. That was some five to six years after the offences were alleged to have been committed and such delay may have made it more difficult for the appellants to prepare their defences, a matter which was aggravated by the demolition of the house thus making it more difficult to establish whether a person in the bath would have been visible from the kitchen, a reference to the mother's evidence relating to count 5. These matters should all have been brought to the jury's attention, not merely by way of summarising counsel's arguments but as part of the directions of law on how the jury should deal with the evidence of delay in complaints: Longman, supra, R -v- BL Johnston (CCA - unreported - 31 July 1998), R -v- K (CCA - unreported - 8 October 1997). 60 Each of the appellants also appeal on the ground that the verdicts against them are unsafe and unsatisfactory (Ronald Douglas Gillard ground 4, Colleen Therese Gillard ground 2), and our attention has been drawn to what it is claimed were a number of discrepancies in the evidence of V compared with her statements to police and a couple of other features including what was said to be the similarities between the evidence of V relating to the third count and that of D in relation to the seventh count, and it was suggested this indicated that the two complainants may have jointly concocted the allegations. In our view the discrepancies referred to related to peripheral matters and were essentially matters of credibility for the Jury. The case involved a credit clash between the Crown witnesses on the one hand and the appellants on the other. There were no contradictions or inconsistencies relating to the essential ingredients of any of the charges and bearing in mind the advantages enjoyed by the Jury in seeing the witnesses and the principles laid down in M -v- The Queen 181 CLR 487 we are satisfied that it was open to the Jury to be satisfied beyond reasonable doubt of the guilt of each of the accused. It follows that it is not appropriate to direct verdicts of acquittal and the consequence will be orders for a new trial. It will be up to the Director of Public Prosecutions to determine whether, in the light of the health of the male appellant and the sentence imposed on the female appellant it is appropriate to proceed further. 61 It therefore becomes unnecessary to consider the other grounds of appeal, but as the issue will arise if there is a new trial, and we have reached a firm conclusion in relation to it, we are satisfied we should deal with the question of whether consensual sexual intercourse between husband and wife in the circumstances alleged by the Crown in counts 3 and 7 constituted "acts of indecency" towards the young person contrary to s 61E(2A) Crimes Act 1900, see now s 61N. 62 Obviously consensual sexual intercourse between husband and wife is not of itself in any way indecent and so, because it is not indecent, if it takes place in the presence of a young person, the intercourse of itself is not an act of indecency in the presence of the young person. 63 But what was alleged here was not merely consensual intercourse between husband and wife, it was allegedly accompanied by an invitation to, and encouragement of, the young person to watch and in respect of count 7, to join in. The intercourse, although not an indecent act in itself, became indecent when carried out in front of the young person, with the invitation and encouragement to watch which were both directed to or in the direction of the young person. 64 We were referred to Saraswati -v- The Queen (1991) 172 CLR 1, but that was a case alleging acts of indecency "with" a young person, contrary to the then s 61E(2) of the Crimes Act 1900, and was concerned with the question whether acts which constituted indecent assaults (contrary to s 61E(1)) and/or carnal knowledge (contrary to the then s 71) could be charged as "acts of indecency with" the complainant so as to avoid the requirements of the then s 78 that in the relevant circumstances prosecutions under s 61E(1) or s 71 had to be commenced within twelve months. The case throws no light on what constitutes an "act of indecency towards" a complainant. 65 In R -v- Francis (1988) 88 Cr App R 127 it was held that a man who masturbated in the presence of children, knowing they were watching and deriving added stimulation from the fact that they were watching could be said to be committing an act of gross indecency towards them, contrary to s 1(1) of the Indecency With Children Act 1990 (UK). In our view similar considerations apply when a couple (even a married couple) engage in sexual intercourse not only in the presence of a young person but when they also invite and encourage the young person to watch. 66 In view of our conclusion in respect of his conviction appeal it is inappropriate to deal with an application for leave to appeal against his sentence by the male appellant. 67 The order of the Court in each appeal will therefore be: Appeal allowed; Conviction and sentence quashed; New trial ordered.

Regina v Gillard

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