Regina v Leslie Harold Lawson

Regina v Leslie Harold Lawson - [2000] NSWCCA 214 - NSWCCA 2000 case summary — Zoe

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Orders: 32 I propose that the appeal against conviction be dismissed. 33 DUNFORD J: In this case I have had the advantage of reading in draft form the judgment of Sperling J, where the facts and relevant extracts of the evidence are conveniently set out and also the draft judgment of Stein JA. For the reasons given by Sperling J I am satisfied that grounds of appeal 1, 2 and 3 fail and that the evidence of the complaint made by the complainant to Rhonda Fulton (who did not give evidence at the trial) and relayed by Rhonda Fulton to the complainant's mother (who did give evidence) was properly admissible as evidence of the truth of the complaint and that there was no error in his Honour not limiting the evidence to the credit of the complainant. I would add that, notwithstanding Sperling J's apparent reservations, I have no doubt that the evidence of the complainant was intended to, and did, convey to the jury that what she told Rhonda Fulton was in substance what she told the jury the appellant had done to her. 34 In relation to grounds 4 and 5 relating to the evidence of Dr Norrie, I am satisfied that that part of the evidence wherein the complainant said that it was the appellant who had done it, was admissible as evidence of the fact in accordance with R v Welsh (1996) 90 A Crim R 346 and in the overall context of the trial it was not a situation where the use of the evidence should have been limited pursuant to s 136 Evidence Act 1995. In particular, I do not consider it was unfairly prejudicial to the appellant because it was consistent with the complaint she had previously made to Rhonda Fulton and was in accordance with her evidence. I am not persuaded that this Court ought to reconsider its decision in Welsh. Not only do I find the reasoning in Welsh persuasive, notwithstanding the difficulties it can raise in some cases as alluded to by Sperling J, but it has been followed and approved in a number of subsequent cases, including Lee v R [1998] HCA 60; (1998) 157 ALR 394; [1998] 16 LegRep C1; (1998) 74 ALJR 1484; (1998) 102 A Crim R; (1998) 195 CLR 594, R v Singh-Bal (1997) 92 A Crim R 397 at 405 and 407, R v Hilder (1997) A Crim R 70 at 82, Eastman v R (1997) 76 FCR 9, 158 ALR 107 at 17-71. 35 As to ground 6 I agree with Stein JA that there was no error in his Honour's ruling restricting cross-examination under s 409B. 36 In relation to ground 7 (alleged incompetency of counsel) the relevant authorities have been referred to in the judgment of Stein JA, to which may be added R v Hunter and Sara [1999] NSWCCA 5, and R v Sandford (1994) 72 A Crim R 160; but what emerges from those cases is that not only must the incompetence of counsel be demonstrated, but also it must be shown that such incompetency has been of such a nature in the circumstances of the case to have led to a miscarriage of justice: R v Igniatic (1993) 68 A Crim R 333 at 338. The few cases where appeals have succeeded on this ground have been cases where substantial issues, such as character have not been raised, or fundamental applications such as applications for separate trials have not been made, and usually there has been evidence from counsel who appeared at the trial. I am not aware of, and my research does not disclose, any cases where an appeal has succeeded on this ground merely because counsel asked a number of questions which in the long run proved damaging to the appellant's case at the trial. 37 In the present case there is no evidence from counsel who appeared at the trial and we do not know what instructions he was given by his client; and it may be that in the light of his instructions that some or all of the lines of questioning which he pursued may have had a legitimate forensic purpose. The fact that he received answers which with the benefit of hindsight appear would have been better not asked, does not of itself demonstrate incompetence, and particularly does not demonstrate the degree of incompetence that will justify the upholding of an appeal against a conviction. Advocates are of varying standards, particularly in relation to cross-examination, and I believe this Court should be reluctant, with the benefit of hindsight, to judge the standard and competency of cross-examinations, particularly without evidence as to the instructions that the cross-examiner had from the client. 38 Moreover, even if it be accepted, which I do not, that there was gross incompetence on the part of defence counsel in the present case, I am not satisfied that it led to a miscarriage of justice. This was a single issue trial, namely whether it was the appellant who had anal intercourse with the complainant. It was a question of word against word. The complainant was cross-examined at length, as was the accused (although not at such length), and apparently the jury accepted the evidence of the complainant after being warned in the summing up that as the case depended on her evidence they needed to examine it with particular scrutiny and to be satisfied of its truth beyond reasonable doubt. Accordingly I am satisfied that ground 7, added by amendment at the hearing, also fails. 39 For these reasons, I agree with Stein JA that the appeal against conviction should be dismissed.

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Preliminary ruling: relationship evidence and complaint evidence 45 After the jury was empanelled but before evidence was given, the trial judge gave two rulings. First, he ruled, over objection by the appellant, that evidence would be admitted of prior similar assaults, not as evidence that the appellant had a tendency to commit offences of the particular kind but as relationship evidence. Such evidence is relevant as tending to dispel the inherent unlikelihood of conduct such as is alleged in this case, by establishing sexual interest on the part of the accused (what used to be referred to - and is sometimes still referred to - as "guilty passion"). In a case such as this, evidence of prior sexual experience or activity is prima facie inadmissible by operation of s 105 of the Criminal Procedure Act 1986 (previously s 409B of the Crimes Act 1900), but relationship evidence is saved by the exception in subs (4). 46 The basis of the objection was apparently that the evidence should be excluded in the exercise of the court's discretion pursuant to s 135 or s 137 of the Evidence Act 1995. The detail of the proposed evidence would have been made known to the judge. There was a police statement by the complainant which is likely to have been placed before him. Precisely what the trial judge was told the proposed evidence would be, is not, however, apparent from the appeal papers. His Honour ruled that the evidence could be given. 47 The second ruling was that evidence by the complainant of complaint allegedly made by her to Ms Fulton on the day of the alleged offence would be admitted. It is apparent from his Honour's judgment on the application that the objection was based on the consideration that the evidence of complaint would be given by the complainant herself rather than by the person to whom the complaint was made. It was known that the Crown would not be calling Ms Fulton. His Honour recorded his understanding that Ms Fulton had declined to attend court to give evidence. Again, the appeal papers do not reveal what his Honour was told that the complainant would say in this regard. It may be assumed, however, that he had reason to expect that it would be evidence by the complainant of telling Ms Fulton what had allegedly occurred that day. His Honour ruled that the evidence could be given.

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Counsel was asking about other things that happened that day, where she went and what she did. He was particularly interested in a car trip later in the day when, according to evidence he would call, the complainant appeared to be in a carefree mood. What he got, however, was an unresponsive answer to his question. The response was ambiguous. Did the word "that" refer back to the previous question about anal intercourse, or did the witness break off the sentence after the word "that", in which case she did not say anything at this point in her evidence about what she had told Ms Fulton? The answer could have been taken by the jury to mean that the complainant had told Ms Fulton what the appellant had allegedly done that day. Depending on what the jury made of it, this unresponsive answer by the complainant was potentially very damaging to the appellant. There was no application to strike out the answer or for a direction to the jury to disregard it. 54 That is the first of a number of instances which have to be mentioned concerning the way the appellant's defence was conducted at the trial. Collectively, they are relied on as constituting incompetence on the part of counsel of such a degree as to give rise to a miscarriage of justice. 55 The appellant is represented by different counsel on the appeal. The court felt obliged to suggest an independent ground of appeal based on incompetence. I am sure I speak for other members of the court, as well as for myself, when I say that the court did so with considerable reluctance. When counsel representing the appellant on the appeal took up the court's suggestion and relied on the assertion of incompetence as an independent ground of appeal, he did so with equal reluctance. There are good reasons for such reluctance which go much deeper than mere considerations of delicacy. First, we were informed from the bar table that counsel received the brief only the day before the trial. Secondly, counsel who appeared at the trial has not been heard. In the nature of things, that cannot be done because counsel's interests in defending himself against criticism would conflict with the interests of his client in relying on alleged incompetence as a ground of appeal. In this situation, the court has no alternative but to evaluate what occurred on the face of the record without counsel having the opportunity to be heard against any finding critical of him. 56 In these circumstances, it is necessary to emphasise that any finding of incompetence on the part of counsel at the trial is made for the purpose only of this appeal and should not be taken as a finding or judgment against counsel personally. Indeed, it should be recognised that a different view altogether might be formed if counsel had the opportunity of making submissions and perhaps putting further evidence before the court. Counsel's professional standing is therefore unaffected by what is said in this judgment concerning the conduct of the appellant's defence at the trial. 57 Dr C A Norrie of the Child Protection Unit at Westmead Hospital was interposed. She gave evidence of examining the complainant on 18 June 1997. The complainant gave a history of the alleged instance of anal intercourse by the appellant. Again, the terminology was different but the meaning was communicated clearly. The complainant also described the appellant's penis being rubbed across the vulva between the labia. There was a history of pain with urinating and with defecating after this episode, and of some bleeding. 58 According to the history taken by Dr Norrie, the complainant also said that abuse had occurred over a period commencing some time in 1994, more frequently between early 1996 and April 1997. The complainant said that, whenever the appellant saw her, he would tell her to go and lie on the bed and take her pants down, and he would then lie on her. 59 On 18 June 1997 and on further physical examination on 8 August 1997, Dr Norrie found scar tissue consistent with the complainant's description of what had allegedly occurred. In chief, Dr Norrie said the scar tissue was probably less than a year old when first seen by her, that is, in June 1997. 60 In cross-examining Dr Norrie, counsel pressed the witness to be more precise about the likely age of the scar. The cross-examination was seriously disadvantageous to the appellant. The likely age of the scar was whittled down, until the point was reached where the lesion might have been caused only as much as two months prior to April 1997. This related the scar more closely in point of time to the alleged final act of anal intercourse, relied on as constituting the offence charged. The cross-examination embarrassed the case which counsel intended, on instructions, to mount that the complainant had been molested by her natural father in and possibly from 1994. It served no apparent purpose in the interests of the appellant. 61 Dr Norrie was not asked directly whether the scar might possibly have been caused by a lesion in 1994. There was nothing to be lost by such a question in view of the answers given in cross-examination. The witness might have said, consistently with her other evidence, that this was most unlikely but possible. That would have left the door open for assault by the complainant's natural father being the explanation for the complainant implicating the appellant in her accusations. 62 The investigating police officer, Const Jones, was interposed. He gave evidence that the appellant was interviewed on 3 September 1997. The appellant had declined to answer questions, as was his right. He was arrested and charged.

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These questions would have given the jury to understand that there was no dispute about the history of abuse, only about where it had happened. Later, it was put to the complainant that the alleged prior acts had not occurred, but the jury must have been left wondering whether the prior acts were seriously in dispute. Meanwhile, the complainant had been given the opportunity of reinforcing the history of alleged abuse with details of where and when. 67 The complainant had gone to the house with the complainant knowing that she would be alone with him there. This was arguably inconsistent with the complainant's evidence of previous abuse when the appellant had the opportunity to take advantage of such a situation. The course taken by counsel in relation to this arguable inconsistency was to endeavour to extract from the complainant, by persistent cross- examination, a concession that she had no feelings of reluctance about going alone to the house with the appellant. This was hazardous in the extreme. It gave the complainant the opportunity of explaining how that came about and - more importantly - the opportunity of making her alleged feelings about the appellant known in a way that would not otherwise have been possible. Again, there were also questions asked at this stage in a form which suggested there was no challenge to the complainant's story of prior abuse. Other questions disputed the story but, again, the jury would have wondered where the appellant really stood on this issue. The passage from the transcript is as follows: "Q. How did you feel about Leslie on this day when he's driving you to your house? A. That he's a disgusting .. (not transcribable). Q. Could you say that again, I didn't hear you. A. He's disgusting. Q. I know you were only eight at the time but you knew that the house you were going to was empty? A. Yeah. Q. And I've said all along that Leslie was out on the front porch having a smoke? A. Yeah, he was and then he came back in the house or he went in the house. Q. I'm saying he never went in the house that day, he was on the front porch. His foot didn't even make it -- A. He went in the house. Q. Weren't you scared to go into the house with him alone knowing what he'd done to you? A. Yes. Q. Did you try and hesitate, did you do something, did -- A. I said 'No, I don't want to'. Q. When did you say that? A. When he said 'Go in Mum's room' I said 'No, I don't want to'. Q. Those words, when were they said? A. Well when you (as said) said " (naming the complainant) go in your Mum's room', I said 'No, I don't want to'. Q. But I'm talking about when either you were driving in the car with him or when you were about to walk into the house with him, didn't you say you were scared, you didn't want to go in? Did you say or do something to suggest you didn't want to be there with him? A. I even told Rhonda that I don't want to go with him, I'd like someone to go with me. Q. When did you say that? A. When I was at Rhonda's house. Q. Was that when Leslie was there or not? A. Cause I knew he was coming to pick me up. Q. I'm suggesting to you that you went to get into Leslie's car and there was no problems, do you agree with that? A. Yes, because I had to go get my stuff and whether (?) I liked it or not. Q. Were you scared of this man? A. Yes. Q. And he disgusted you? A. What? Q. He disgusted you, didn't he? A. Hmn. Q. I'm saying from Rhonda's house alone you weren't scared of him and you didn't tell Rhonda 'Look I don't want to go with him'? A. Yes, I did and you see Rhonda said that 'You have to go because you need to get your stuff'. Q. Did you tell the policeman or policewoman? A. What do you mean? Q. 'Look I told Rhonda I didn't want to go either'? A. No, cause she never asked about it. Q. But what I'm saying is you weren't scared of him, that's why you went in the car with him? A. I was scared of him. He's done it for, like that was the last night (?) he's done it, he's done it almost for - almost half a year. Q. See I'm also saying you weren't scared of him because you knew the house was empty cause you'd stayed there the night before and you walked straight into the house you say with him? A. You're getting me very muddled up. Q. When you went to the house to get the clothes, you were with this man who you were scared of, Leslie? A. Hmn. Q. And he disgusted you? A. Hmn. Q. But you still walked straight into the house, you didn't -- A. Well I really never had much of a choice, what would you want me to do? Run away cause I never had much of a choice did I? I just had to go or - go and there wasn't really much of choice unless she was going to go with him and I don't reckon she would really like that, she's got three kids - actually four kids, a baby and three big children. I don't reckon she would really want to go. Q. Had Rhonda been to your house before this from time to time? A. Yes. Q. I know you said she's got some children but did you say to Rhonda 'Look I'd like you to come with me'? A. Well I asked Rhonda 'Can one of the other kids go with me?' Q. What happened there? A. She said 'No, it's okay. He won't do anything'. Q. Did you push that any further? A. No. Q. Did you say -- A. No, why would I? Q. Did it scare you when you went into that house - when you were in your room, did you feel scared? A. Yes but like I said, what would you want me to do, jump out of the window and die? Q. And when you left the house, how did you feel? A. Well very disgusted that he even done it for starters. Q. You've said that he -- A. If he wants a girlfriend try and get the 'Hot Line' there. Q. I didn't hear that, I'm sorry. (No verbal reply) HIS HONOUR: Q. What did you say (complainant)? A. Don't worry. 68 This was very damaging evidence for the appellant. It provided an explanation, which the jury was entitled to accept, for how the complainant came to be going to the house with the appellant despite alleged earlier abuse. It took the steam out of that point. More importantly, if the jury thought the complainant's feelings concerning the appellant appeared to be genuine, the cross-examination produced very strong evidence in support of her story of abuse by the appellant. 69 The cross-examination continued to reinforce the complainant's account of events. For example: "Q. Were you feeling painful when you got back in the car with -- A. Only except my bottom. Q. It was feeling painful was it? A. Yes."

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The trial, continued 73 The complainant's mother was the next witness. She said that she first met the appellant in 1994. That coincided with the year when abuse by the appellant began, according to the history given by the complainant to Dr Norrie. She said that the appellant had lived in her house from January 1997 to 22 April 1997 when she asked him to leave. She confirmed that she was in hospital at the time of the alleged assault. She said that she spoke to Ms Fulton on the telephone from the hospital on 21 April 1997. She was not asked in chief about any conversation with Ms Fulton concerning anything said to Ms Fulton by the complainant. However, in cross-examination, the following evidence was obtained from her: "Q. Now when you returned from the hospital, when was that? A. It was about a - I stayed in hospital for seven days so it would've been about the 25th, 26th that I came out. Q. Of April? A. Hmn. Q. Was it only then that you became aware of what had been alleged or -- A. No. Q. --had you became aware whilst you were in hospital? A. Rhonda had told me on the Monday. Q. I don't have a calendar, do you remember, you -- A. The 21st. Q. The 21st Rhonda told you? A. Yeah. Q. Did she come in and visit you personally and tell you? A. No - well I rang her to see whether (the complainant) had got off to Stewart House okay and she said - well she explained over the phone that (the complainant) had told her and I rang Stewart House just to let them know what I'd been told and to ask them if they could check on (the complainant) and just to see how she was. Q. What did Rhonda on the phone say to you? A. She said that (the complainant) had come in on the Saturday from being taken back to my place and she just broke down and she said that Les had touched her and it hurt and - she just broke down. Q. I just have to put a time frame on this, you say she said that conversation was on a Saturday, is that right? Not a school day? A. No, it was on a Saturday. Q. Did she say that this allegation took place on a school day, that is did Rhonda say that or not? A. No, she said that it happened on the Saturday when Les took her home to get clothes. Q. Did she also indicate that Les had called at her house to pick (the complainant) up? A. Yep. Q. To go to the house? A. And she was upset by that because it was supposed to be his sister doing it. She didn't want to let (the complainant) go because she didn't really know who Leslie was. Rhonda, so she said 'I didn't want to let her go in the first place but he said - explained to her that Kerry had told him to come over and take (the complainant) back home and take her over to my grandma's'. Q. But the reality is that (the complainant) went on her own with Les, is that right? A. She didn't have much choice, yeah. Q. And then of course it unfolded by what Rhonda told you that your daughter had allegedly been, shall we say, molested? A. Yep, hmn." 74 The effect of this cross-examination was to bring out evidence corroborating the complainant's evidence of complaint to Ms Fulton, and in graphic terms. The complainant's evidence in chief had included little, if anything, that could be relied on by the Crown as evidence of early complaint. There was only the complainant's own evidence of telling Ms Fulton about "all the mean things" the appellant had allegedly done. That was scant evidence of a complaint about anal intercourse having occurred that very day. As I have pointed out, this was improved in the course of cross-examination of the complainant to the point where there was evidence which the jury could construe to mean that the complaint had been about anal intercourse by the appellant having occurred that day. Now, in the course of cross-examining the mother, further evidence was adduced that, on the day of the alleged assault, the complainant was upset and told Ms Fulton of a sexual assault by the appellant having occurred that day. This was even more important evidence against the appellant because it came from a witness other than the complainant herself. 75 I have referred to the mother's evidence concerning Ms Fulton's absence from court. 76 I now need to mention, in relation to her evidence, yet another instance of evidence being led from a witness in cross examination by the appellant's counsel to the appellant's disadvantage: "Q. Did it concern you then, you said that you felt he was genuine and you had trust in Leslie, how did you feel then being armed with this information, if from no one else from Rhonda and others as time passes, about Leslie? A. What, after the fact, after the matter come out? Q. Yes. A. I wanted to kill him. Q. I'm sorry? A. I wanted to kill him. Q. And of course you had extreme disgust, would that be fair to say? A. Oh to the max, to the max, it's just, you've got no idea"

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What purpose this cross-examination was intended to serve is not apparent. The evidence was highly prejudicial to the appellant. 77 The appellant gave evidence. He denied the offence and all sexual contact with the complainant as alleged. He had come to know the complainant's mother when she was living with his cousin. When that relationship ended, the cousin was causing difficulties. The appellant moved into the house at the request of the complainant's mother to be on hand to witness any further disturbances. The appellant described a happy relationship with the complainant. He said he took her on outings with his own nephews and nieces. According to the appellant, he moved out of the house at the end of March, that is, some weeks before the complainant's mother went to hospital. That was contrary to the mother's evidence that he did not go until 22 April. 78 The appellant said that, while he was living at the house, a man called Benny slept there with the complainant's mother. 79 The appellant's account of events on the day of the alleged offence was that his sister, Ms Herd, asked him to pick up the complainant from Ms Fulton's house and take her home to collect some clothes. He said he did as he was asked, waiting outside the house on the verandah while the complainant got together what she needed. He said he did not enter the house. The appellant said he then took the complainant to his sister's house. His sister left with the complainant. 80 A Mr J Werner gave evidence corroborating the appellant's evidence that the appellant had left the complainant's mother's house in March 1997 rather than on 22 April 1997 (as the complainant's mother had said). He also corroborated the appellant's evidence that the complainant's mother had a boyfriend who slept at the house at the relevant time. 81 Ms Herd gave evidence. She also said that the appellant had left the complainant's mother's house in March 1997. She also confirmed that it was she who asked the appellant to pick up the complainant from Ms Fulton's place and take her home to collect some clothes. She said the appellant returned with the complainant, and that she (Ms Herd) then drove the complainant to her grandmother's place. (The complainant went on to Ms Fulton's place later that day.) Ms Herd said that the complainant appeared to be happy on the trip to her grandmother's place and was singing along with the music in the car. 82 At the conclusion of the evidence, the Crown prosecutor submitted that the trial judge would give directions in relation to the evidence of complaint. The following note appears in the transcript: "(The) Crown Prosecutor …. submitted that in relation to the complaint itself and the direction that his Honour give as to the use of the jury may make of the complaint, whether it goes in for the purpose under s 66 as going in for the truth or whether it is to be limited. Discussion ensued."

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The trial judge said nothing about how the jury could use the history obtained by Dr Norrie. 85 In the absence of any such direction in relation to the evidence of complaint to Ms Fulton or in relation to the history given to Dr Norrie, it was to be assumed that the jury would take both of pieces of evidence to be evidence like any other evidence, that is, as evidence of the fact. 86 So far as the evidence of complaint to Ms Fulton is concerned, there was no request for any further direction at the end of the summing-up, either by the Crown prosecutor or by counsel for the appellant. 87 So far as the history given by the complainant to Dr Norrie is concerned, the Crown prosecutor sought a direction at the conclusion of the summing-up. He submitted that the jury should be directed that the history to Dr Norrie could be used as evidence of the truth of what was said by the complainant, pursuant to s 66 of the Evidence Act. Counsel for the appellant did not oppose such a direction being given. He said he left the decision to his Honour. The trial judge then proceeded to supplement his summing-up, directing the jury that they were entitled to treat the history given to Dr Norrie as evidence of the "truth of the matters complained of". The grounds of appeal 88 The appellant appealed against the conviction on the following grounds. "1. His Honour erred in not giving the jury any directions or any adequate directions on the use to be made of complaint evidence to Rhonda Fulton. 2. His Honour erred in not limiting the complaint evidence to Rhonda Fulton to credit only under section 136 of the Evidence Act 1995 . 3. His Honour erred in admitting evidence of complaint to Rhonda Fulton. 4. His Honour erred in directing the jury that the complaint evidence of Dr Norrie could be used as evidence of the facts stated in the complaint. 5. His Honour erred in not limiting the complaint evidence of Dr Norrie to evidence of history to base an opinion. 6. His Honour erred in his rulings restricting cross-examination under section 409B."

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(8) All such evidence is subject to exclusion pursuant to s 135 or s 137 or limitation in its use pursuant to s 136, in the discretion of the court. (9) A court is not bound in the exercise of its discretion to limit the use of evidence of complaint to the question of the credibility of the complainant. Ground 1: His Honour erred in not giving the jury any directions or any adequate directions on the use to be made of complaint evidence to Rhonda Fulton. Ground 2: His Honour erred in not limiting the complaint evidence to Rhonda Fulton to credit only under section 136 of the Evidence Act 1995. Ground 3: His Honour erred in admitting evidence of complaint to Rhonda Fulton. 90 As I have mentioned, before evidence was given in the trial, counsel for the appellant sought a ruling that the evidence of complaint to Ms Fulton should be disallowed. The trial judge ruled that the evidence would be allowed. As I indicated earlier, there is no reason to hold that the ruling was erroneous on whatever was before his Honour at that time. The way the submission was put in the oral argument on appeal is that his Honour should have disallowed the evidence given in cross-examination in view of the way it was led. I have recounted how that happened. 91 The submission is that the evidence was led on the erroneous assumption that the complainant had said, in her evidence on the previous day, that she had told Ms Fulton of anal intercourse by the appellant, whereas she had not. The gist of the submission was that the appellant's counsel had inadvertently misled the complainant concerning what she said on the previous day. It was argued that the trial judge ought to have disallowed the evidence, in the exercise of his discretion, because the evidence was unfairly prejudicial and had virtually no probative value (being evidence put into the mouth of a nine year old witness on a false premise). 92 As will appear from my earlier review of the relevant part of the cross-examination, I do not agree that this is what happened. Rather, a potentially damaging, unresponsive answer was given by the complainant in cross-examination, and that is all. No application having been made to have the answer struck out or for a direction to the jury to disregard it on the spot, there was no error on the part of the trial judge in not intruding to disallow the evidence. The significant feature of what occurred in relation to this evidence was the failure by the appellant's counsel to deal appropriately with the situation that arose, by asking for the evidence to be struck out or for the jury to be instructed to disregard it. 93 It was also argued that the evidence as given in cross-examination was not admissible. How the jury construed the answer was a matter for them. Construed as evidence of a complaint of anal intercourse made to someone on the same day, the evidence was squarely within the ambit of s 66, and accordingly stood as evidence of the fact subject only to the discretion of the court to exclude it or limit its use pursuant to sections 135 to 137 of the Evidence Act. 94 If the trial judge's discretion had been invoked, he would not have been bound to disallow the evidence. In any event, the trial judge was not bound, in the circumstances of this case, to exercise his discretion without it being invoked. If that is wrong, the point not having been taken at the trial, Rule 4 applies. I would not give leave to argue the point under Rule 4. 95 Ground 3 therefore fails.

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96 The same considerations apply to Ground 2. It also fails. 97 As to Ground 1, unless the use of the evidence was limited to credit (which it was not) there was nothing the trial judge needed to say to the jury concerning the use to be made of the evidence. Ground 1 fails. Ground 4: His Honour erred in directing the jury that the complaint evidence of Dr Norrie could be used as evidence of the facts stated in the complaint. Ground 5: His Honour erred in not limiting the complaint evidence of Dr Norrie to evidence of history to base an opinion. 98 His Honour accepted the Crown's submission made at the end of the summing up that the history given to Dr Norrie was admissible as evidence of the fact pursuant to s 66. He supplemented his summing-up accordingly. That was an error. The alleged event relied on as constituting the offence was not "fresh in the memory" of the complainant two months afterwards, as the phrase has been construed in Graham (above). 99 It is also to be borne in mind that the history given to Dr Norrie included molestation by the appellant of the same kind dating back to 1994. That was even more plainly inadmissible as evidence of the fact pursuant to s 66. 100 I would not regard the history to Dr Norrie as having been admissible in any other way. There are only two other routes by which the hearsay rule could arguably have been avoided. The first is the combined effect of s 108 and s 60. The difficulty about that approach is that leave was not granted under s 108, and leave was by no means mandated as an exercise of discretion in this case. So that route is not available: Graham (above). 101 The other possible route is by application of the decision of this court in Welsh (1996) 90 A Crim R 364. It was held, in that case, that a history given to a medical practitioner is admissible to establish the assumptions upon which the expert's opinion is based, and that s 60 then operates to make the history so communicated an exception to the hearsay rule and hence evidence of the fact. 102 Section 60 provides as follows: "60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation." Section 55 provides as follows: "55.(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence."

[69]

103 The history obtained by an expert is evidence of a special kind. It is admitted to enable the court to know the assumptions on which the expert's opinion is based. The source of the assumptions might be a party to the litigation, the solicitor for a party, a family member, another expert, a witness, or anyone at all who tells the expert what happened. The source of the assumptions is immaterial. The communication is, in itself, immaterial. All that matters is that, one way or another, the court learns the assumptions on which the expert's opinion is based so that it may be decided whether the opinion is a relevant opinion. If the assumptions prove to accord materially with the facts of the case as found, the opinion will be a relevant opinion and may be acted upon for what the tribunal of fact thinks it is worth. If the assumptions do not accord materially with the facts as found, the opinion will be irrelevant and must be ignored. 104 I am not concerned here with ways in which a history given to an expert may be admissible for reasons other than to inform the court of the assumptions on which an expert's opinion is based. These include an admission against interest made by a party or a prior consistent or inconsistent representation made by a witness within the rules relating to the admissibility of such representations. I am speaking of history communicated to an expert when evidence of the communication is led purely as a convenient means of informing the court of the assumptions on which an expert's opinion is based. 105 Evidence of the representation by which the history is communicated to the expert in such a case is not a representation that is "relevant for a purpose other than proof of the fact intended to be asserted" within the meaning of s 60. The fact of the representation is not relevant at all. The point may be tested this way. Assume an expert witness is asked what assumptions were made and specifies them. The witness is then asked how he or she came by the assumptions with a view to adducing evidence of the communication by which the assumptions to be made were conveyed to the expert. The question would have to be rejected, if objected to, because the evidence would not be relevant. 106 I am aware that the Law Reform Commission intended s 60 to have the effect of making medical histories evidence of the fact, but I do not ascribe such an intention to the parliament. The result is so patently contrary to sound fact finding that it cannot have been intended as a matter of legislative policy. Under Welsh, unsworn, untested histories go into evidence in criminal trials as evidence of the fact, to support cases of diminished responsibility and defences of mental illness. It does not matter who gives the history to the medical practitioner. It is admissible. The same goes for personal injury cases. A carefully presented history will substitute for sworn, tested evidence. It can be communicated to an expert witness directly by the plaintiff or in a carefully prepared letter by the solicitor. The plaintiff does not have to give evidence of the accident or its effects. It can all be done by history. The limited discretionary powers in sections 135 to 137 are not a complete answer. The results of the decision in Welsh cannot have been intended. 107 In my respectful opinion, Welsh was incorrectly decided and clearly so. A passage in Lee [1998] HCA 60, (1998) 195 CLR 594, at [39] and [40] could be read as supporting the decision in Welsh (although Welsh was not cited) but the passage is obiter dicta. There is no decision binding on this Court which requires us to continue to follow Welsh. I would not do so. 108 I would like to see a practice in jury trials - civil and criminal - whereby history is established in relation to expert opinion evidence by asking, as a leading question, whether the witness has made certain specified assumptions for the purpose of forming an opinion (or asking the witness to make the assumptions on the spot, if the opinion evidence is being led cold). The witness would then be asked what opinion the witness has formed (or forms on the spot), based on those assumptions, in relation to the issue in question (specifying the issue). The witness would only be asked when, how and by whom the history was communicated to the witness if the communication was relevant and admissible as such. Then the evidence of the communication would be led with the same care as evidence of any other relevant communication is led, rather than the witness simply reading from a report in whatever form the communication may be recorded there, as is mostly done now. In either case, the trial judge would then tell the jury what status the evidence had as proof of facts in issue. In the first case, the status would be nil and the jury would be told why the evidence was led and that there was, therefore, no need, in that case, to be concerned about where the assumptions put to the witness had come from. In the second case, the jury would be told precisely what issue the evidence goes to and how it might bear on that issue. All that could be achieved without ever saying to a jury that the history on which the opinion is based is or is not "evidence of the fact", a formulation understood by lawyers but which must send juries reeling. 109 Rule 4 applies. The error was, however, fundamental. Leave to rely on this ground of appeal should be given. 110 For these reasons, Ground 4 should be upheld. 111 Ground 5 need not be considered. Ground 6: His Honour erred in his rulings restricting cross-examination under section 409B."

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Cases Cited (18)