Regina v KCW [1999] NSWCCA 112 | Case summary

Wednesday 12 May 1999 Regina v K C W 2 JAMES J: The appellant, who I will refer to as KCW, appealed against his conviction, after a trial in the District Court before his Honour Judge Kinchington and a jury, on two counts of indecently assaulting a female under the age of sixteen years. These two counts were the first two counts in an indictment containing four counts which was presented against the appellant at his trial. The jury found the appellant not guilty on the other two counts in the indictment, which contained a charge of rape (count 3) and a charge of indecent assault (count 4). The complainant on all four counts in the indictment was the same female, who I will refer to simply as "the complainant". The appellant is the complainant's uncle, being a brother of the complainant's mother. The offence charged in the first count was allegedly committed in 1963, on the complainant's fourth birthday. The offence charged in the second count was allegedly committed in about 1967, when the complainant was between seven and nine years old. The offence charged in the third count was allegedly committed in 1979, when the complainant was twenty years old. The offence charged in the fourth count was allegedly committed in 1994, when the complainant was thirty-five years old. 3 Judge Kinchington sentenced the appellant on the first count to a sentence of penal servitude for three years, consisting of a minimum term of eighteen months commencing from the date on which the appellant was sentenced, 1 June 1998, and an additional term of eighteen months. On the second count Judge Kinchington sentenced the appellant to a fixed term of penal servitude of fifteen months, to be served concurrently with part of the minimum term of the sentence on the first count. At the hearing of the appeal an application for leave to appeal against sentence was abandoned. 4 The evidence given by the complainant and by the other Crown witnesses about each of the alleged offences can be briefly summarised as follows. Because of the nature of the grounds of appeal relied on by the appellant, it is necessary to refer to the evidence about all of the alleged offences, including those charged in the third and fourth counts in the indictment on which the appellant was found not guilty. Count 1 5 The complainant gave evidence that on her fourth birthday in March 1963 the complainant, her mother and her grandmother visited Mrs N, a family friend. The appellant was also present at Mrs N's home. The complainant was wearing a black and white dress which she had received for her birthday and she had with her a Raggedy Anne doll which her grandmother had given her for her birthday. At one stage the complainant and the appellant were alone together in the lounge room of Mrs N's house. The appellant asked the complainant to sit on his lap. When she did so the appellant touched the complainant on the outside of her underwear on the vagina and then inserted his finger into her vagina. The complainant asked the appellant what he was doing and he told her that it was their little secret. The complainant's mother and grandmother walked into the lounge room. Nobody said anything but her grandmother grabbed her mother's arm and her grandmother and mother walked out of the room and closed the door. 6 The complainant's mother gave evidence that she had visited Mrs N on the complainant's fourth birthday. The complainant was wearing a black and white dress and had with her a Raggedy Anne doll. The complainant's mother walked into the lounge room of Mrs N's house and saw the complainant sitting on the appellant's knee. The complainant had tears in her eyes. The appellant "had his hand up the front of her dress and I just asked what was going on. Mum (the complainant's grandmother) grabbed me by the arm and she said 'come on' and I said 'what's going on' and she said 'don't worry about it just come on'". Count 2 7 The complainant gave evidence that the incident the subject of this count occurred when she was "probably seven, nine". The incident occurred when the complainant and her family were visiting her grandmother at the grandmother's home in a country town. On such visits to her grandmother's home the complainant and her younger sister would sleep on a mattress which was placed on the floor of the hallway in the house. During such visits the appellant would come to the hallway during the night and touch the complainant on the breast or the vagina. 8 The specific incident which was the subject of the second count occurred on a night when the complainant's father struck the appellant. That night the appellant came to the mattress in the hallway and touched the complainant's feet. He put his hand inside the complainant's vagina and the complainant kicked him away. 9 After the appellant had gone the complainant went to the room where her parents were sleeping and woke them up. She told her parents the appellant had been touching her. The complainant's father told her to tap on the wall, if it happened again. The complainant went back to the mattress. 10 Later that night the complainant felt the appellant at her feet and she tapped on the wall. The complainant's father got out of bed, turned on the light and said to the appellant "what the f- hell do you think you are doing?" The appellant said, "I'm just fixing their blankets". The complainant's father said "like hell you're fixing their blankets". The complainant's father grabbed the appellant, dragged him out towards the back of the house and hit him. The complainant's father announced "we're going home" and the complainant, her parents and her sister left the grandmother's house. 11 The complainant's sister gave evidence that when she was a child her family used to visit her grandmother and that she and the complainant used to sleep on a mattress in the hallway of the grandmother's house. On such visits the appellant very frequently came to the mattress during the night and she was awoken by the complainant kicking or moving and telling the appellant to leave her alone or go away. 12 The complainant's sister said that one night (the complainant) "told me to knock on the wall and mum sang out and said 'what is it?'" and (the complainant) said "it's (the family nickname for the appellant) and they jumped out of bed and there was a bit of commotion…." 13 The complainant's sister did not see any physical contact between her father and the appellant but she said that her father became very angry and said to the members of the family "get your stuff and let's get in the car" and she remembered going home late at night. 14 The complainant's mother gave evidence that the family used to visit her mother's place and that on these visits the complainant and her sister would sleep on a mattress in the hallway of her mother's house. She and her husband (the complainant's father) slept in a bedroom in her mother's house. 15 On one occasion while the family were at the complainant's grandmother's house, the complainant's mother heard a knock on the wall. She went out and saw the appellant bending down over the mattress on which the two girls were lying. She asked the appellant what he was doing. The appellant replied, "I'm seeing if they are covered over with the blankets". The complainant's mother said, "like hell you are". The complainant's mother then went back to bed. 16 About midnight on the same night the complainant's mother heard knocking on the wall again. Her husband got out of bed, went into the hallway and asked what the appellant was doing. The appellant gave a reply to the effect that he was just fixing blankets on the girls. Her husband said "like f- hell you are" and "the next minute I heard a thump and I got up and (the appellant) was on the floor". Her husband said "we're going home" and the family packed and left the grandmother's home that night. There were no further visits to the grandmother's home for a while. 17 The complainant's father gave evidence that one night on a family visit to the grandmother's home he heard rapping on the wall and heard his wife speak to the appellant. Later the same night he heard rapping again. He "flew out of bed". He saw the appellant at the foot of the bed where the two girls were sleeping. "I said to him (the appellant) 'what the f-hell are you doing?' and I don't know whether I pushed him or hit him". The complainant's father told his wife and children to pack up and they went home that night. Count 3 18 The complainant gave evidence that the incident on which this count was based occurred shortly before the birth of her son in August 1979. The complainant was about eight and a half months pregnant. She had gone to her grandmother's house and had fallen asleep on the lounge in the lounge room. She woke up to find the appellant lying on top of her, with his penis inside her vagina. The complainant struggled with the appellant and eventually managed to push him off her. 19 The complainant's grandmother came into the room. The complainant told her grandmother that the appellant had been having sex with her. The grandmother (the appellant's mother) told the appellant to go to his room. Soon afterwards, the complainant's husband arrived at the grandmother's home, after completing a work shift, and the complainant told him what had happened. 20 No evidence was given at the trial corroborating the complainant's evidence that this offence had been committed. The complainant's grandmother had died before the trial was held (and it would seem before the complainant made any complaint to any person in authority). A police officer gave evidence that in 1996 he had spoken to the complainant's former husband (who had been her husband in 1979) and had been told by him that he had been through a difficult divorce with the complainant and that he was not prepared to make a statement or to attend court in connection with the enquiries the police officer was making into the offences allegedly committed by the appellant against the complainant. The complainant's former husband did not give evidence at the trial. Count 4 21 The complainant gave evidence that in 1994, when she was thirty-five years old, she was guest at a wedding of a relative. The appellant was also at the wedding. At one stage at the reception "I noticed two persons at the wedding that I didn't know, so I went up to them and I introduced myself and before I had a chance… for them to tell me who they were (the appellant) walked up behind me and put his arm over my shoulder and he squeezed my breast… it was just a second, I pushed his arm away and I walked away from him". 22 No evidence was given at the trial corroborating the complainant's evidence that this offence had been committed. The two persons to whom the complainant had been speaking were not called as witnesses and were not identified. 23 When he was spoken to by the police about the complainant's allegations, the appellant, as he was entitled to do, exercised his right of silence. 24 The appellant gave evidence at the trial. In his evidence he denied that he had committed any of the alleged offences and denied ever having sexually interfered with the complainant. As regards the alleged offence charged in the second count of the indictment, he said that the complainant and her sister did not sleep in the hallway, when the complainant's family visited the complainant's grandmother. The appellant said that the hallway of the house was not long enough or wide enough for a mattress to have fitted into it. 25 The appellant's de facto wife gave evidence that she had attended the wedding in 1994 and the reception after the wedding. She said that she kept close to the appellant "so I could see what he was up to or where he was". She did not at any time see the appellant put his hand over the shoulder of a woman and touch her on the breast. 26 Having regard to some of the grounds of appeal relied on by the appellant, it is necessary to refer specifically to some further parts of the evidence. 27 The concluding part of the cross-examination of the complainant was as follows:- "Q. Because in early 1995 you became aware that (the appellant) was being forced to retire through ill health from the council? A. I did not know that. Q. And you were aware that he was going to receive his superannuation in the order of $100,000? A. I did not know that. Q. And I put it to you it's for that reason - A. It is not. Q. --that you're seeking compensation that you make these allegations? A. It is not". 28 The complainant was not asked in cross-examination whether she and the other members of her family had put their heads together to fabricate false evidence against the appellant. 29 The complainant's sister was not asked in cross-examination whether she was lying or whether she and the other members of her family had got their heads together and fabricated false evidence against the appellant. 30 The complainant's father was asked in cross-examination whether, when he had first been asked to recall the events the subject of the second count about a couple of years before the trial was held, he had had a discussion about those events with his wife or the complainant and he denied that he had discussed them with his wife or the complainant. The subject of any communications between himself and his wife or the complainant was not taken any further in cross-examination of the complainant's father. 31 It was put to the complainant's mother in cross-examination that in 1994 or 1995, through other members of her family, she had become aware that the appellant was going to retire early. The complainant's mother said that she had had no contact with the appellant and "I did not know nothing about him". This line of cross-examination was not pursued further and the complainant's mother was not asked whether she and other members of her family had put their heads together to fabricate false evidence against the appellant. 32 When the appellant gave evidence, the cross-examination by the Crown Prosecutor commenced as follows (trial transcript p214):- "Q. Your version is, is it,… that all these allegations of sexual misconduct by you towards (the complainant) are a complete fabrication by her? A. That is right". 33 Later in the cross-examination of the appellant the following questions and answers occurred (trial transcript 217):- Q. So is it the situation that I think it was, do you remember (the appellant's mother) the other day saying that her mother made dolls for she and her sisters? A. Her mother did. Q. Yes your mother did? A. I remember that. Q. You do remember now your mother making - A. No I don't, I didn't say she made the dolls then, I said I remember (the complainant) saying that she did. Q. She's making that up too is she? A. Well, as far as I know, she is Q. And she's also making it up about having that black and white dress is she? A. Well I never seen it, never seen a black and white dress on her or any of the family in that time. Q. Be very careful about this… are you saying that you don't remember a black and white dress or are you saying that (the complainant) never had a black and white dress? A. Well I just said that she didn't have one that I knew of. 34 A little later in the cross-examination of the appellant the following questions and answers occurred (trial transcript 219):- "Q. And (the complainant) was crying wasn't she? A. No I don't know, she wasn't even there as far as I know. Q. It's your version is it or your version … that not only is (the complainant) making it up about what happened at Mrs N's but her mother is also making it up about what she saw? A. I'd say she would be". 35 Further on in the cross-examination the following questions and answers occurred about the offence charged in the second count (trial transcript p224):- "Crown Prosecutor: Q. You're quite sure she (the complainant's grandmother) didn't sleep in that room off her room? A. I'm sure of it. Q. There was a bed in that room though, wasn't there? A. No. Q. You're quite certain about that? A. Yes. Q. So (the complainant's) making that up too is she? A. Yes. Q. And (complainant's mother) is making that up too, is she? A. Yes. Q. And (the complainant's sister) is making it up too, is she? A. Yes. Q. They're all making it up? A. Of course they are, because you couldn't get a bed in there with all the stuff that was in there". 36 At a later stage in the cross-examination the following questions and answers occurred in relation to the second count (trial transcript p226-227):- "Q. And there was an occasion when there was a physical altercation between you and (the complainant's father) wasn't there? A. No. Q. So (the complainant's father) is making that up, is he? A. Yeah well me and (the complainant's father) always got on well together and I don't know why anything was said about him". 37 Near the beginning of the summing-up the trial judge said:- "The accused says and denies that any of those incidents took place and as both counsel have said to you claims that the complainant and the other prosecution witnesses must have got their heads together and they have fabricated the evidence against the accused". 38 Throughout the summing-up the trial judge repeatedly told the jury (leaving aside the question of which party bore the onus) that they had to decide whether the complainant and the other Crown witnesses "had got their heads together". 39 The particular reason why the Crown witnesses might have got their heads together which had been suggested in cross-examination of the complainant (and to a very limited extent in cross-examination of the complainant's mother), that they knew the appellant was going to retire early and would receive a superannuation payment, which would provide a fund for satisfying a claim for compensation, was apparently not pressed and the submission made by counsel for the appellant in his final address, as summarised by the trial judge in his summing-up, was that the prosecution witnesses had put their heads together "for some reason", the reason not being identified. 40 I turn now to the grounds of appeal against conviction. 41 The first two grounds of appeal, as filed, were:- 42 1. The trial judge erred in his directions, or failed to direct the jury adequately , in relation to corroboration. 43 2. The trial judge erred in his directions to the jury, insofar as they concerned the onus of proof as it related to the witnesses "putting their heads together" and "motive to lie". 44 These two grounds of appeal were dealt with together in the written submissions filed on behalf of the appellant and I will deal with them together. 45 Under these grounds of appeal counsel for the appellant made the following specific submissions:- 46 (i) The trial judge erred in not directing the jury that they could not have regard to the evidence of the other witnesses corroborating the complainant's evidence, if they thought that what was said by the corroborating witnesses in their evidence was possibly a result of them putting their heads together with the complainant. 47 (ii) The trial judge in his summing-up had improperly reversed the onus of proof, casting the onus of proof on the appellant to prove that the Crown witnesses had put their heads together. 48 (iii) The trial judge had erred in not giving the directions suggested by Hunt CJ at CL in R v Uhrig (Court of Criminal Appeal unreported 24 October 1996). 49 It was conceded in relation to each of these submissions that no objection had been taken at the trial by counsel then appearing for the appellant and that leave was required under r4 of the Criminal Appeal Rules. 50 As to (i):- 51 As I have already stated, the evidence of the complainant about the offence charged in the first count was corroborated to some extent by evidence from the complainant's mother and the evidence of the complainant about the offence charged in the second count was corroborated to some extent by evidence from the complainant's sister, the complainant's mother and the complainant's father. The evidence of the complainant about the offences charged in the third and fourth counts was uncorroborated. 52 It is apparent from the trial judge's summing-up that counsel for the appellant at the trial submitted to the jury in his closing address that on counts one and two the complainant and the other members of her family had put their heads together and fabricated their evidence and that the evidence of other members of the complainant's family apparently corroborating her evidence was to be explained on this basis. As I have already noted, none of the Crown witnesses had been expressly asked in cross-examination whether they and the other Crown witnesses had put their heads together to give false evidence against the appellant. Nevertheless, the issue was treated as being before the jury. 53 I do not consider that the trial judge was required to direct the jury that they could not have regard to the evidence of the other witnesses corroborating the complainant's evidence, if they thought that what was said by the corroborating witnesses in their evidence was possibly the result of them putting their heads together with the complainant; that is that the jury could not have regard to the evidence of the other witnesses, unless the Crown eliminated any reasonable possibility that their evidence was the result of the complainant and those other witnesses conspiring to give false evidence against the appellant. 54 There was in fact no direct evidence that the complainant and members of her family had put their heads together to give false evidence. The allegation that they had, or might have done, depended on the drawing of inferences from such matters as the long delay in the complainant coming forward, the family relationship between the Crown witnesses and some similarities in their evidence. There was no evidence that any of the Crown witnesses knew of the appellant's impending retirement and likely superannuation payment. 55 On counts one and two the Crown relied on two bodies of evidence (a) the evidence of the complainant (b) the evidence of the other Crown witnesses. The Crown was entitled to succeed, if the jury was satisfied beyond reasonable doubt, on the whole of the evidence, that the elements of a particular offence had been proved. I do not see why the jury should have been disbarred from having regard to any of the evidence apparently corroborating the evidence of the complainant, unless they were first satisfied beyond reasonable doubt that that evidence was not the result of the complainant and the corroborating witnesses having put their heads together. 56 Counsel for the appellant pressed in aid the decision of the High Court in Hoch v The Queen (1988) 165 CLR 292. However, Hoch was a decision on the admissibility of "similar fact" evidence in a case involving allegations of sexual offences against several complainants and, in my opinion, can properly be distinguished from the present case. 57 The Court was also referred by counsel to the unreported decision of this Court in R v MJB (7 March 1996), in which Gleeson CJ (with whom the other members of the Court concurred) said at pp8-9 about the decision of the House of Lords in R v H (1995) 2 WLR 754, "if an argument develops at a trial about whether two complainants corroborate each other, the jury should be directed not to treat the evidence of one as corroborating the evidence of the other, unless satisfied that it is not tainted by collusion". However, in this remark Gleeson CJ, like the High Court in Hoch, was addressing the situation of two different complainants. 58 I would reject the first submission. 59 As to (ii):- 60 In support of this submission counsel for the appellant pointed to a passage near the beginning of the summing-up, which I have already quoted, in which the trial judge said that the appellant claimed that the complainant and the other Crown witnesses had got their heads together and fabricated the evidence against the appellant. Elsewhere in the summing-up the trial judge referred to the issue of the Crown witnesses "getting their heads together". Counsel for the appellant also pointed to parts of the summing-up, in which the trial judge was summarising arguments which had been put by counsel for the appellant at the trial. In these parts of the summing-up the trial judge used expressions such as "the accused says" they've got their heads together and "the accused says you will be satisfied" that they got their heads together. 61 It was contended by counsel for the appellant that nowhere in the summing-up had the trial judge expressly told the jury that the onus was on the Crown to prove beyond reasonable doubt that the complainant and the other Crown witnesses had not got their heads together and fabricated false evidence against the appellant. 62 I do not consider that this submission by counsel for the appellant should be upheld. Even if the parts of the summing-up to which we were taken, considered in isolation, might have lent some support to counsel's submission that the trial judge improperly reversed the onus of proof, the summing-up must be read as a whole and when this is done I am satisfied that the jury was properly and fully instructed on the onus and standard of proof. Immediately after the passage near the beginning of the summing-up which has been quoted, the trial judge said:- "As I said to you at the outset (apparently in introductory remarks the trial judge made at the beginning of the trial) the onus is on the Crown to establish the guilt of the accused". 63 The trial judge gave the jury extensive and correct directions on the onus and standard of proof in a discrete part of the summing-up (pp10-11) and throughout the summing-up repeatedly referred to the onus being on the Crown to establish the guilt of the accused beyond reasonable doubt. The trial judge told the jury several times that there was no onus on an accused person to prove anything. In the summing-up the contention that the complainant and members of her family had put their heads together to fabricate false evidence was presented as an obstacle to the Crown establishing the guilt of the accused beyond reasonable doubt. 64 I also consider that weight can properly be given to the fact that counsel for the appellant at the trial, having listened to the summing-up, did not ask for any further direction. 65 I would reject this submission. 66 As to (iii):- 67 It was contended that the trial judge erred in not giving the further directions suggested by Hunt CJ at CL in R v Uhrig. 68 In R v Uhrig Hunt CJ at CL said at p17 that, if in a trial it has been asserted by the defence that a Crown witness has lied and a specific motive has been assigned, "in many such cases where the evidence of the Crown witness is vital to the Crown case, it would be appropriate for the trial judge to direct the jury that, even if they reject the motive to lie put forward by the accused, it does not mean that the witness is necessarily telling the truth and to emphasise that the Crown must still satisfy them that the witness is telling the truth". 69 It is to be noted that Hunt CJ at CL expressly refrained from purporting to lay down a universal rule that such a direction should be given. 70 It is true that in the present case a specific motive to lie had been put forward in cross-examination of the complainant. However, the complainant denied that she was aware that the appellant was going to retire early and would receive a superannuation payment and there was no evidence that she was aware of those matters. 71 It was suggested to the complainant's mother in cross-examination that she was aware of the appellant's impending retirement but the complainant's mother denied any knowledge of that matter. 72 Subsequently, the alleged specific motive for the complainant (and other Crown witnesses) to lie appears to have been abandoned by counsel for the appellant at the trial. As I have already noted, the trial judge in his summing-up put to the jury defence counsel's submission that the Crown witnesses had put their head together "for some reason", no specific reason being identified. 73 Accordingly, although at an earlier stage in the trial a specific motive to lie had been suggested, by the time the trial judge was summing-up the specific motive to lie which had been suggested had been abandoned and no specific motive to lie was being put forward on behalf of the appellant. Hence, the present case was not a case of the type of the type being considered by Hunt CJ at CL in Uhrig, where there is a live issue before the jury whether a specific motive for a Crown witness to lie which has been put forward by the accused should be accepted or rejected. 74 Although no specific motive to lie was any longer being put forward by the appellant, the trial judge in his summing-up repeatedly stressed the criminal onus and standard of proof and the need for the Crown to satisfy the jury that the complainant was telling the truth in her evidence. The trial judge gave the jury warnings about the danger of convicting the appellant on the uncorroborated evidence of the complainant and on the dangers of convicting the appellant where the passage of time meant that the complainant's evidence could not be adequately tested. There was, in my opinion, no risk of the jury concluding, from the abandonment of the specific motive to lie which had been suggested earlier in the trial, that the complainant must necessarily be telling the truth. 75 It is, in my opinion, significant that no further direction was asked for. 76 I would reject this submission. 77 A further submission was made that the trial judge erred in not directing the jury to the effect that, even if they were satisfied that the Crown witnesses were not lying, they still had to be satisfied that the Crown witnesses' evidence should be accepted as being accurate. It is convenient to deal with this submission later when I am dealing with what became the fourth ground of appeal. 78 The third ground of appeal was that the verdicts were unreasonable or could not be supported having regard to the evidence. However, before considering this ground of appeal, it is convenient to deal with a further ground of appeal which the appellant was granted leave to rely on at the hearing and which became the fourth ground of appeal. This ground of appeal was:- 79 The trial miscarried by reason of the impermissible cross-examination of the appellant by the Crown Prosecutor. 80 The parts of the cross-examination of the appellant by the Crown Prosecutor which were relied on in support of this ground, were the parts at pp214, 217, 219, 224 and 226-7 of the trial transcript, which I have already quoted. 81 At p214 of the transcript the Crown Prosecutor asked the appellant whether "your version" was that the complainant's allegations had been fabricated by her and the Crown Prosecutor then went on to ask the appellant why he maintained that the complainant had a particular motive for fabricating her allegations. 82 At p217 of the transcript the appellant was asked whether the complainant was "making up" certain allegations, that is lying in parts of her evidence. 83 AT p219 of the transcript the appellant was asked whether "your version" on count one was that the complainant was "making it up", that is lying, and that the complainant's mother was "making it up", that is lying. 84 At p224 of the transcript the appellant was asked in relation to the second count, whether each of the complainant, the complainant's mother and the complainant's sister was "making it up", that is lying, in saying that there was a bed in a room off the grandmother's usual bedroom. 85 At p226-7 of the transcript the appellant was asked in relation to the second count, whether the complainant's father was "making it up", that is lying, in saying that he had had "a physical altercation" with the appellant. 86 It was submitted by counsel for the appellant that all of this cross-examination was impermissible on the grounds that a cross-examiner should not ask any witness, and particularly not an accused at a criminal trial, whether another witness, such as a Crown witness at the accused's trial, was lying in giving evidence which is disputed by the witness being cross-examined. 87 The principle relied on by counsel for the appellant is well established. See for example R v Rich (Court of Criminal Appeal unreported 17 June 1998 at pp4-9 per Hidden J; R v Gilbert (Court of Criminal Appeal unreported 10 December 1998 at pp6-11 per Grove J; R v Dennis (Court of Criminal Appeal unreported 25 February 1999 at pars9-22 per McInerney J). It is impermissible to ask one witness to attempt to enter into the mind of another witness and to express an opinion on whether evidence the latter witness has given which the former witness disputes, is the result of lying by the latter witness, rather than being the result of some other cause, for example mistake, suggestion by other persons or faulty recollection. 88 It is true that in the present case the Crown Prosecutor by the first question he asked in cross-examination of the appellant secured a concession by the appellant that "his version" was that all the allegations by the complainant were a complete fabrication by her and the trial judge subsequently summed-up on the basis that the only real question the jury had to decide (disregarding the question of onus) was whether the Crown witnesses had got their heads together and fabricated false evidence against the appellant. However, this question asked by the Crown Prosecutor was itself improper, as requiring the appellant to say whether another witness, the complainant, was lying and as requiring the appellant to say whether his version (and implicitly his only version) was that the complainant was lying (and that the other Crown witnesses were also lying). 89 Up until the cross-examination of the appellant the trial had not been so confined. Although it had been put fairly clearly to the complainant that she was lying, it had not been put to any other Crown witness that he or she was lying, nor had it been put to any Crown witness that he or she had been a party to a putting together of heads to fabricate false evidence. The appellant in his own evidence in chief had not asserted that the Crown witnesses were lying or that the Crown witnesses had put their heads together. 90 The question asked by the Crown Prosecutor improperly confined the issues at the trial about the complainant's credibility and the trial was conducted from then on, as if the only issue the jury had to determine concerning the complainant's credibility was whether she in combination with the other Crown witnesses had fabricated her evidence. This situation was compounded by the jury not being given a direction of the kind adverted to earlier in this judgment, that even if the jury were satisfied that the Crown witnesses were not lying they would still have to be satisfied that the Crown witnesses should be accepted as being accurate witnesses. 91 There could be other explanations of the complainant's evidence, other than that she was deliberately lying. Evidence given by an adult of what had happened many years before on occasions in her early childhood, and particularly on an occasion as early as her fourth birthday, could be untrue, for reasons other than that in giving her evidence at a trial many years later she was deliberately lying. For example, a recollection believed by her to be genuine could have been induced in her mind by things told to her over the years by members of her family. 92 No objection was made at the trial to any of the Crown Prosecutor's questions but in my opinion the cross-examination by the Crown Prosecutor gave rise to a risk of a miscarriage of justice and this ground of appeal should be upheld. 93 I will now return to the third ground of appeal. 94 The third ground of appeal was:- The verdicts were unreasonable or cannot be supported, having regard to the evidence. 95 It was conceded in the appellant's written submissions that, at least at first sight, an obvious distinction between counts one and two, on which the jury returned verdicts of guilty, and counts three and four on which the jury returned verdicts of not guilty, was that on counts one and two the evidence of the complainant was corroborated by other evidence. However it was submitted that:- 96 (i) If the jury acquitted the appellant on counts three and four, on which the Crown case depended on the uncorroborated evidence of the complainant, the jury must have had at least a doubt about the credibility of the complainant's evidence on those counts and this doubt should have affected their view of the credibility of the complainant's evidence on counts one and two. It was submitted that the non-acceptance of the complainant's evidence on count three was particularly significant, because, given the nature of her allegations, the complainant could not possibly have been merely mistaken in making the allegations that she did. The non-acceptance of the complainant's evidence on count four was also significant, because the incident had allegedly occurred in public and the appellant's denial of any such incident having happened was supported by the evidence of his de facto wife. 97 (ii) The apparently corroborating evidence on counts one and two might be explicable on the basis that the complainant and the other Crown witnesses had put their heads together. It was contended that this submission was supported by the degree of similarity in the evidence of the Crown witnesses. 98 (iii) The offences charged in counts one and two were very old, the offence charged in count one having been allegedly committed on the complainant's fourth birthday, thirty-five years before the trial. 99 The principles to be applied in determining a ground of appeal against a conviction of this kind are set out in the judgments of the High Court in M v The Queen (1994) 181 CLR 487 at 493-4 and Jones v The Queen (1997) 191 CLR 439 and need not be repeated here. 100 I have made my own independent examination of the nature and quality of the evidence and I have concluded, as regards count two, that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 101 In my opinion, it is an important distinction between count two on the one hand and counts three and four on the other hand, that on count two the complainant's evidence was supported by the corroborating evidence of the complainant's sister, the complainant's mother and the complainant's father. This distinction was emphasised by a number of things the trial judge said in his summing-up. The trial judge directed the jury that while they could act on the complainant's evidence alone, it would be dangerous to act on the evidence of the complainant alone in a case such as the present. 102 As regards count three, the trial judge told the jury that the evidence of the complainant was not corroborated, that the complainant's grandmother had died before the trial and that the complainant's former husband had been unwilling to give evidence. As to the complainant's former husband, the trial judge gave a Jones v Dunkel direction against the Crown, telling the jury that they would be entitled to draw an inference that his evidence would not have assisted the Crown case. While summarising arguments by the Crown about the third count, the trial judge interrupted his summary to comment as follows:- "Of course we have not heard from the grandmother or the ex-husband. If this matter had been brought to the notice of the authorities earlier, maybe a jury such as yourselves could have heard from the grandmother about this incident. Does that put the accused at a disadvantage? She might have given evidence similar to that of the accused saying nothing like that happened. Well, that would be very pertinent evidence because you cannot speculate as what she says but it brings up the disadvantage that an accused person has in cases like this, where allegations are made of events that are of many, many years ago". 103 Earlier in the summing-up the trial judge had given the jury a warning that if because of delay the complainant's evidence could not be adequately tested, it would be dangerous to convict on the complainant's evidence alone. 104 As regards the fourth count, the trial judge stressed in the summing-up that the evidence of the complainant was uncorroborated. The two persons to whom the complainant said she was speaking at the reception were never identified and did not give evidence. The evidence of the appellant's de facto wife, though by no means conclusive (she was not with the appellant at all times during the reception) could have left the jury with a doubt about the appellant's guilt. On the complainant's own evidence, the offence was committed in a matter of a second and there might have been the possibility of the complainant being mistaken. 105 I consider that it was open to the jury to be satisfied that the evidence of the Crown witnesses on count two was not the result of them putting their heads together. There was no direct evidence that the witnesses had put their heads together. There were in fact differences between the accounts of the various witnesses, such as to suggest that they had not fabricated a common story. The evidence of the complainant's sister, as would reasonably be expected, was much less detailed than the evidence of the other witnesses and she did not claim to have seen her father hit the appellant. According to the complainant's evidence, she tapped on the wall only on one occasion, she herself having gone into her parents' bedroom after she was molested the first time. According to the evidence of the complainant's parents, the complainant tapped on the wall on two separate occasions, the complainant's mother going out to the hallway after hearing the first tapping. There were other differences between the evidence of the various Crown witnesses. 106 Particularly having regard to the directions given by the trial judge and the comments made by the trial judge in the summing-up, I consider that it was open to the jury to have a doubt on counts three and four and yet to be satisfied beyond reasonable doubt on the complainant's evidence and the other Crown witnesses' evidence that the appellant was guilty of the offence charged in the second count. 107 I do, however, experience a doubt, and consider that the jury ought to have entertained a doubt, about the verdict of guilty on count one. On count one the complainant's evidence was supported only by the evidence of her mother and the appellant could not have been convicted solely on the complainant's mother's evidence. At the trial the complainant was giving evidence of what had allegedly occurred thirty-five years before, on her fourth birthday. In my opinion, the verdict of guilty on count one should be set aside and quashed absolutely. 108 It was submitted, alternatively to ground three, that the verdicts of guilty were "unsafe" so as to give rise to a miscarriage of justice, because the trial judge did not direct the jury about the consequences to the complainant's credibility on counts one and two, which would flow from an acquittal on counts three and four. No such direction was asked for at the trial and in my opinion no such direction was required. The trial judge did put to the jury arguments by counsel that if they did not accept the complainant's evidence on counts where hers was the only evidence, that would cast doubt on the complainant's evidence in regard to the other incidents charged. Accordingly, this matter was brought to the jury's attention. 109 I have upheld the fourth ground of appeal and I have held that the verdict of guilty on count one was unreasonable and cannot be supported by the evidence. The question arises whether the Court should quash the verdict of guilty on count two and direct a judgment and verdict of acquittal to be entered or whether the Court should order a new trial of the second count in the indictment. See R v Giam (unreported Court of Criminal Appeal 10 March 1999). 110 At the trial the appellant was acquitted on count three, which was the most serious charge. The appellant was effectively sentenced for the two offences of which he was found guilty to a sentence containing a minimum term of eighteen months, approximately twelve months of which he has now served. The offence the subject of the second count was allegedly committed more than thirty years ago. In the circumstances, I consider that on count two, as well as count one, the Court should quash the verdict of guilty and direct a judgment and verdict of acquittal to be entered.

Regina v KCW

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