a) Appeal against conviction dismissed and conviction confirmed.
b) Grant leave to appeal against sentence.
c) Allow the appeal and quash the sentence.
d) In lieu thereof, sentence the appellant to imprisonment for a term of 6 years to date from 3 April 2003.
e) Fix a non-parole period of 4 ½ years.
f) Note the earliest date on which the appellant will be eligible for release on parole is 2 October 2007.
112 Since writing the above, I have had the opportunity of reading in draft form the judgment of Howie J. I respectfully agree with what he has written concerning the reasoning behind the Kilby direction in cases of child sexual assault, particularly where the alleged offender is a close family member. However, like him, I regard myself bound by authority in this regard and like him, I have found the relevant ground of appeal established. Our only point of difference in this regard is on the application of the proviso.
113 SIMPSON J: I have read in draft the judgments of Dunford J and Howie J. The sole point of difference - and it is of substance - between their Honours concerns the application of the proviso to s 6(1) of Criminal Appeal Act 1912 to the applicant's conviction on the fifth count, ground 1 of the appeal having been sustained.
114 In relation to all other matters it is sufficient to note my agreement with the judgment of Dunford J. I turn then to the application of the proviso.
115 Howie J would not apply the proviso, drawing a distinction between the direction given by the trial judge in relation to credibility (of the appellant) and reliability (of the complainant). I appreciate the distinction, but have come to the view that, in the circumstances of this case, too much is read into what was said. It is of some significance that, in the passage in Kilby v The Queen (1973) 129 CLR 460, from which the direction now in contention is drawn, Barwick CJ recognised that there may be "particular circumstances of the case" that would diminish or eliminate the requirement of the "general rule" that such a direction be given. To acknowledge (as I do) that, in this case, the direction ought to have been given is not inconsistent with applying the proviso where the direction was not given. The jury were not left uninstructed as to, or un-reminded of, the fact of lengthy delay in the making of complaints. They had heard the complainant cross-examined closely on her account of all events she alleged, resulting in only two convictions. They had heard the addresses of defence and Crown counsel, bringing home to them the issues of the complainant's reliability and credibility.
116 To hold that, in the absence of a direction formulated precisely in accordance with Kilby, a miscarriage of justice has occurred is, in my opinion, to underestimate the intelligence and common sense of the jury. Having regard to the evidence and the arguments they had heard, and the directions they had been given, the jury could safely be relied upon to appreciate that the failure earlier to complain was being put to them as a factor relevant to their assessment of whether or not to accept the evidence of the complainant. The very fact that they then returned differential verdicts, explained in the judgment of Dunford J, highlights the careful and close attention they gave to the task with which they were entrusted.
117 I agree with Dunford J that no miscarriage of justice has been demonstrated, that the proviso should be applied, and the appeal in relation to count 5 dismissed. I agree with the orders proposed by Dunford J.
118 HOWIE J: I have had the very real benefit of considering in draft the judgment of the presiding judge. It is unnecessary for me to repeat the facts, the grounds of appeal or the arguments relied upon by the applicant in support of the appeal. It is enough to indicate that I respectfully agree with all that Dunford J has written except as to the consequence of upholding Ground 1. Unfortunately, I cannot agree that the proviso should be applied and I would allow the appeal and quash the convictions.
119 In this case the trial judge had the considerable advantage of a defence counsel who undertook his duty to assist the court conscientiously and appropriately raised at the conclusion of the summing up a number of matters that in his submission called for revised or further directions to the jury. Unfortunately those requests were given what appears to me, with respect, to have been the most cursory consideration.
120 One of the requests made was that his Honour direct the jury in accordance with Kilby v The Queen (1973) 129 CLR 460 as to the adverse effect of delay in complaint on the credibility of the complainant. Notwithstanding that counsel referred to precisely what direction he sought and why, and even offered his Honour authority in support of the request, the trial judge expressed the view that he had adequately addressed the issue of the effect of delay on the fairness of the trial. With respect that was not the issue being raised by counsel.
121 I agree with Dunford J that the trial judge was in error in not giving the direction sought.
122 Although the Kilby direction was concerned with the inference that arose from the failure of a adult female to complain at the first reasonable opportunity, the direction has been applied to child complainants in Crofts v The Queen (1996) 186 CLR 427. With respect I share the misgivings expressed by Wood CJ at CL in R v Markuleski (2001) 52 NSWLR 82 at [244] as to the applicability of the Kilby direction to cases involved alleged sexual assault of young children, particularly by a parent.
123 I do not understand how any inference can legitimately be drawn about the veracity of a young child simply from the fact that the child does not complain about sexual misconduct at the first reasonable opportunity especially where that conduct is perpetrated by a close family member. Certainly courts should not be encouraging such a line of reasoning on the basis of some supposed collective experience or understanding of the behaviour of children in such a situation. Further, I believe that there is very good reason to doubt that the Kilby direction accords with a more modern, if not more enlightened, understanding of the impact of sexual assaults upon adult victims. In any event, there is in my view absolutely no justification for applying such a highly questionable view of the reasonable conduct of traumatised adult females to young children. However, like the Chief Judge, I must respect the line of authority that holds that such a direction should generally be given regardless of the age of the complainant or his or her relationship with the accused.
124 In Crofts there were two errors identified in relation to the directions given by the trial judge with respect to the delay in complaint: firstly, the judge erred in directing the jury that it could not infer from the failure to complain that the offences "did not happen or that she was not bothered by them or that she consented"; secondly, as a result of that error and in the absence of a Kilby direction, there was a lack of balance in warning the jury that delay in complaint did not necessarily mean that the allegations were false.
125 However, it has been held that, where, as here, a warning is given under what is now s 294 of the Criminal Procedure Act (formerly s 107 of the Act and previously s 405B of the Crimes Act), a direction which tells the jury that it is entitled to take into account delay in complaint in assessing the complainant's credibility should be given by way of balance; Markuleski at [175].
126 It seems to me to be somewhat ironic that a Kilby direction is required in order to redress the balance of a warning given in accordance with a statutory requirement such as is now found in s 294 of the Criminal Procedure Act. The provision was no doubt enacted to moderate, or give balance to, the effect of the Kilby direction in favour of the Crown. See R v Davies (1985) 3 NSWLR 276 at 278A. Now the Kilby direction is seen as necessary to moderate, or give balance, to the effect of the warning.
127 Be that as it may, it is established as a general rule that both a Kilby direction and the statutory warning should be given in a case where there is a significant delay in complaint. The request by defence counsel in the present case for a Kilby direction was completely justified and it is unfortunate that the Crown did not support it. However, the failure to give such a direction is not fatal to a conviction where it did not result in an unfair trial; Markuleski at [178]. Generally speaking, the conviction will be sustained where the issue of the credibility of the complainant's account has been adequately placed before the jury such that it must have been obvious that the delay in complaint was a relevant matter to that issue notwithstanding the failure to give the direction.
128 It should be noted that the statutory warning itself suggests that the failure to complain can, and generally will, adversely affect the complainant's credibility. The jury are to be given a warning that "the absence of complaint or delay in complaint does not necessarily indicate that the allegation that the offence committed is false". In other words the warning is premised upon the fact that absence of complaint, or delay in complaint, does suggest that the complaint is untrue and hence the warning is necessary to caution the jury against coming to such a conclusion as a matter of course and without considering possible explanations for the delay. The problem in Crofts was that the trial judge in effect directed the jury that they could not infer anything about the credibility of the complaint from the fact of delay in complaint.
129 As the Chief Justice pointed out in Markuleski at [177], "[i]t may be reasonably obvious to most persons that delay in coming forward in the making of a complaint is required to be taken into account in assessing credibility". Yet his Honour concluded that, in a case where there was long delay before complaint, a Kilby direction should be given. But at the end of the day, the issue on appeal is whether the jury was sufficiently assisted in relation to the issue of the complainant's credibility with respect to the specific allegations giving rise to the charges before the jury.
130 In Markuleski the Chief Justice and Wood CJ at CL were of the view that the trial miscarried because of the combined impact of the failure to give a Kilby direction taken in conjunction with an erroneous direction as to the jury's approach to the issue of credibility in a case of multiple counts arising from the evidence of a single complainant. Grove J found there was no error or defect in the summing up. Simpson J was of the view that the summing up failed to adequately warn the jury of the consequences of long delay upon the defence in accordance with Crampton v The Queen (2000) 75 ALJR 133. The remaining member of the bench, Carruthers AJ agreed with the judgment of the Chief Justice.
131 It should be noted also that in both Davies and Markuleski counsel did not seek a Kilby direction at the conclusion of the summing up. Rule 4 was applied in Davies but not in Markuleski.
132 In the present case the relevant passage is set out in the judgment of Dunford J at [36]. I will not repeat it. It did not in fact replicate the statutory warning. His Honour gave examples of why a complainant may not complain about sexual matters within a family. Two of those examples had no evidentiary basis: shame and worry about the effects on the family. The complainant never expressed those as reason for her failure to complain. Trial judges should not volunteer explanations, particularly where the complainant has actually given reasons for not complaining: R v Williams (1999) 104 A Crim R 260 per Wood CJ at CL at [26]. This criticism is not a ground of appeal but it is one of the relevant matters in considering whether the directions on the failure to complain rendered the trial unfair.
133 Of more substance, in my view, is that at the end of his directions on the effect of the failure to complain, His Honour said to the jury, "So absence of complaint at the time does not mean that the allegation is false". That is not the same thing as telling the jury that "delay in complaining does not necessarily indicate that the allegation that the offence was committed is false". As I have already noted, the statutory warning assumes that delay in complaint may indicate that the allegation is false. On one view at least, the direction given by the trial judge suggests that absence of complaint does not indicate that the allegation is false. In context, the jury might well have understood that, because there may be reasons for the delay in complaint, examples of which were given, it could not be inferred from the delay that the allegation was untrue.
134 From my reading of the summing up, its tenor is not that the jury had to consider whether the complainant might have been untruthful, the real issue before the jury, but rather whether she might have been unreliable. Directly after the passage in relation to the impact of delay in complaint to which I have referred above, his Honour gave a Longman warning. That passage is set out in the judgment of Dunford J at [52]. That warning was concerned with the unreliability of the evidence of the complainant because "it may have been accidentally distorted by the passage of time or by the effects of trauma or on the other hand it may still support the fact that the incidents happened".
135 The only reference that I can find in the summing up to credibility, as distinct from reliability, is the following passage during his Honour's directions as to separate verdicts (my emphasis):