The Appeal
60 A number of grounds of appeal were argued. Some were directed to the conduct of the trial and the adequacy of the trial judge's directions to the jury. However, it was also submitted that the verdicts are unsafe in the sense that they are unreasonable: see now Fleming -v- The Queen (1998) 158 ALR 379 at paras 7-1l. This ground is not made out.
61 The difficulties and inconsistencies in the prosecution evidence are apparent from our summary of it, and it is true that the appellant denied his guilt to the police and in sworn evidence. He called evidence in support of his denials, although that evidence was not entirely satisfactory. However, the complainant's credibility was vital to the jury's decision and, on that question, we must acknowledge the undoubted advantage the jury had of seeing and hearing her. Moreover, there was some corroboration of the complainant's evidence, particularly as to the third count.
62 Viewed as a whole, the evidence was such as to entitle a jury, acting reasonably, to return verdicts of guilty on each count. We are not persuaded, as to any of those counts, that there is a significant possibility that an innocent person has been convicted: M -v- The Queen (1994) 181 CLR 487.
63 A number of the other grounds of appeal, however, do raise matters of concern and their combined effect leads us to the conclusion that the trial miscarried. It is not necessary to deal with all of them to demonstrate that there must be a new trial.
Complaint (Grounds 1,2,& 3)
64 These grounds relate to the adequacy of his Honour's directions about the evidence of complaint. What his Honour said was this:-
"Evidence of the complaints was admitted to assist you in deciding whether the complainant's conduct in complaining was consistent with what she said had happened and to answer any argument that the absence of complaint would suggest that the alleged offences did not take place. The accused submits that the complainant did not complain until 21 October 1995 and that that delay is inconsistent with what the complainant alleges occurred between herself and the accused. He submits that if her allegations were true she would have complained earlier." (S/U pp4-5)
65 His Honour then gave a warning in terms of s405B of the Crimes Act, and continued:-
"There may, of course, be good reasons for delay in complaining or for not complaining at all. For example, fear of revenge by the accused, personal embarrassment, the perceived ordeal of police enquiry and court proceedings or fear of adverse reaction of the father. The question for you to consider is whether, in this case, the complaints and the circumstances in which they were made (whatever your finding about those complaints is a matter for you) are consistent with the complainant's allegations against the accused or whether they throw doubt upon those allegations." (S/U p5)
66 In so far as those directions dealt with delay in, or absence of, complaint and its bearing on the complainant's credibility, they might have been adequate if the evidence of complaint had been consistent. It was not. If the complainant were to be believed, she complained to Rachel Davies promptly after each of the three incidents. However, if Rachel Davies were to be accepted, the complainant first spoke to her in October 1995 and only described the incident the subject of the first count. The effect of the evidence of Mrs Mikolajczyk is that the complainant told her of the incident the subject of the third count, saying that it had occurred two weeks previously and adding that the appellant had raped her every two weeks, including one occasion in the caravan.
67 We put to one side the effect which this inconsistency of itself might have had upon the complainant's credibility. Counsel for the appellant also argued that the relevance of that inconsistency was not confined to the complainant's credibility, relying upon the judgment of Hunt CJ at CL in BD (1997) 94 A Crim R 131 at 142-3. We also put that argument aside, particularly in the light of the decision of the High Court in Graham -v- The Queen (1998) 72 ALJR 1491.
68 The fact remains that the jury's assessment of the significance of the evidence of complaint depended upon which version of it (if any) they accepted. On the complainant's own evidence, she made prompt complaint after each of the three incidents. On the evidence of Miss Davies, she made a delayed complaint about the first incident and no complaint at all about the other two. On the evidence of Mrs Mikolajczyk, she made a delayed complaint about the third incident and it is very doubtful whether what she then said could be characterised as a complaint about both or either of the other two.
69 Immediately before giving these directions, his Honour referred to the evidence of complaint given by the complainant herself. He then continued:-
"You will recall that Rachel said that the complainant complained once to her and that that was on Saturday 21 October. You will recall also that Rachel's mother, Mrs Mikolajczyk, said that the complainant complained once to her and that that was on Saturday 21 October 1995." (S/U p4)
70 That was all his Honour said about the evidence of those two witnesses at that point (although he did summarise their evidence later in the summing up). His Honour did not then refer to the inconsistency between the evidence of the complainant and of the other two witnesses about the terms of the complaint itself. In our view, that was essential to ensure that the jury understood the significance of his directions about delay in, or absence of, complaint. In the unusual circumstances of this case, particularly careful directions were called for and we do not consider those which were given to be adequate.
Corroboration (Ground 4)
71 His Honour gave the jury directions about corroboration, and these were the subject of several complaints in the appeal. Only one of them concerns us. It is necessary to set out his Honour's final direction to the jury, after an application for redirections by the Crown prosecutor, about the evidence capable of amounting to corroboration:-
"The three matters relied upon by the Crown as corroboration are first, the evidence of Mr Richardson as to his conversation with the accused on 21 October 1995 in which the accused indicated, according to his evidence, that he was infatuated with Julie Richardson. So that was the evidence of Mr Richardson that the accused had said to him on 21 October 1995 that he, the accused, was infatuated with Mr Richardson's daughter, the complainant.
The second matter that is relied upon by the Crown as corroboration is Mr Richardson's evidence that Julie returned to the barbecue with dirt on the back of her clothing. The third matter is the evidence of Mr Goetz in relation to his comparison of the DNA extracted from the condom with that of the accused and the complainant." (S/U p37)
72 His Honour failed to explain to the jury that the evidence of the complainant's father about dirt on the back of her clothing and the DNA evidence were capable of corroborating only the third count. We have no doubt that the jury would have understood that evidence to be related directly to the third count. Whether they would have understood that they could not use it in corroboration of the complainant's evidence of the other counts is quite another matter.
73 Early in the summing up, his Honour directed the jury that they must consider each count separately in these terms:-
"Each of the three charges must be considered separately by you and a separate verdict given in respect of each charge. You do not have to come to the same verdict in respect of each charge unless you find each one of them to have been proved beyond reasonable doubt." (S/U p3)
74 That direction is correct as far as it went. However, it fell well short of conveying to the jury that the fact that the complainant's evidence about one of the counts was corroborated could not be used in support of her evidence about the other counts. That is a legal principle, the logic of which might not be immediately apparent to those who are not legally trained. Indeed, it is in this very type of case that there is a particular danger of the jury assessing the complainant's evidence globally, without a critical examination of each of her allegations. Again, in the circumstances of this case, careful directions were called for and the directions given do not meet the standard required.
The evidence of Dr Brennan (Ground 8)
75 This ground arises from what is said to be impermissible questioning of Dr Brennan by the trial judge. To understand its significance it is necessary to examine briefly the course of events in the trial. The complainant was the first witness. We have summarised her evidence about the allegation of anal intercourse, the subject of the fourth count, and it is apparent that by the end of her evidence a directed verdict on that count was inevitable. At the close of the Crown case the Crown prosecutor did not oppose that direction.
76 That being so, it was probably unnecessary for counsel for the appellant at the trial to elicit from Dr Brennan, in cross-examination, that the history she obtained from the complainant did not include an allegation of anal intercourse. Nevertheless, it is understandable that he did so. In the course of that cross-examination, in an unresponsive answer, the doctor said this:-
"I don't think a child always tells what has happened to them, particularly anal assault in our experience or other sorts of sexual things a child doesn't always tell the doctor at the time all that happened." (T.131-2)
77 It may well have been this answer which led to the line of questioning by the trial judge which is the subject of this ground of appeal. Without objection from counsel for the appellant at the trial, his Honour elicited from Dr Brennan her interest in the psychological condition of children whom she examined after alleged sexual abuse. In that context, she agreed that she had experience of children "denying aspects of what occurred" and giving "conflicting versions of what happened". She spoke of children taking time, perhaps over several consultations, to reveal all that had happened to them, "so that they can progressively disclose and they can progressively contradict themselves". (T.135-6)
78 There then followed this exchange:-
"Q. If a child for example, said that she'd been anally interfered with, there had been anal sexual intercourse and then denied that and then came back to it and accepted it and then denied it several occasions, would that be the sort of thing you regularly experience?
A. Particularly anal. Particularly anal intercourse."
79 Asked why this was so, the doctor said that anal intercourse is "more repulsive to children" than vaginal intercourse. She added, "…they're offended at the notion of that having happened to them and so I find that much more likely they won't be clear about anal intercourse… ". (T.136)
80 As we have said, the complainant's evidence was such that the fourth count had to be taken from the jury as they could not lawfully have convicted the appellant of it: R -v- R (1989) 18 NSWLR 74, Doney -v- The Queen (1990) 171 CLR 207. Evidence, however compelling or authoritative, that children in her position might be unwilling to speak of anal intercourse could not have changed the situation. Nothing Dr Brennan could have said, based upon her experience of examining children believed to have been sexually abused, could have contributed to the resolution of the matter.
81 We cannot accept the submission of the Crown prosecutor in this Court that his Honour's questioning of the doctor was appropriate, with a view to resolving any doubt he might have had about whether the fourth count should be left to the jury. Accordingly, the evidence was irrelevant.
82 That is not the only reason why it was inadmissible. Whether Dr Brennan had the necessary expertise to express the views she did is debatable: cf F (1995) 83 A Crim R 502. However that may be, her evidence was of opinions about the behaviour of children generally and was not related specifically to the complainant: F at 507-9.
83 It is no answer to this ground to say that there could have been no miscarriage of justice because the jury were directed to acquit the appellant of the fourth count. Given the irrelevant evidence of Dr Brennan about this matter, they may well have done so in the belief that the complainant could have given evidence of anal intercourse but could not bring herself to articulate it. They may have taken the view, unfairly prejudicial to the appellant, that his acquittal of that count was an undeserved windfall.
84 However, the matter does not end there. In the course of dealing with corroboration in the summing up, the trial judge said:-
"Remember in respect of the evidence of the complainant that it is common for children to have difficulty when being interviewed about sexual abuse to be consistent and accurate. They may have been traumatised by the alleged events and frightened and psychologically under considerable pressure. Compare the evidence of Dr Brennan as to that." (S/U pp7-8)
85 Those observations about children who have undergone sexual abuse may be matters of common experience: F (supra)at 507, but they were not the proper subject of the evidence of Dr Brennan.
Rule 4
86 It may be that each of these matters, standing alone, would not lead to the conclusion that the trial miscarried. However, the combination of them does and their cumulative effect is such that leave should be granted to argue them, notwithstanding that they were not raised at the trial.
87 We received an affidavit by counsel for the appellant at the trial. As to his Honour's questioning of Dr Brennan, counsel acknowledged that "with the benefit of hindsight… some objection should have been taken…". That is so, although it is understandable that he might have been reticent about objecting to questions asked by the trial judge. As to the fact that certain evidence was corroborative only of the third count, counsel frankly conceded that he did not apply his mind to whether that evidence "was generally available as corroboration in relation to all counts or was relevant to any particular count". As to the directions on complaint, we are unmoved by counsel's assertion that he did not consider it necessary to seek further directions. He did add that he "felt at the time that the trial judge could have expressed the significance of any delayed complaint as it was relevant to the complainant's credibility somewhat better…". He is right.
88 Trials of this kind are difficult and sensitive, and there is often a high risk of a miscarriage of justice. R -v- Johnston (CCA unreported, 1 July 1998) is one of a number of recent cases in which appeals have been allowed despite the failure of counsel at trial to raise the matter argued in the appeal. In our view, this is such a case.
89 The appeal should be allowed, the convictions quashed and a new trial ordered.