Regina -v- Lynch [1999] NSWCCA 32

Friday, 12 March, 1999 REGINA -v- Murray LYNCH JUDGMENT

1 THE COURT: The appellant was tried before his Honour Judge Naughton, QC and a jury of twelve on an indictment which alleged four counts of sexual intercourse without consent in circumstances of aggravation, in contravention of S 61J of the Crimes Act, 1900.

2 Count 1 alleged an offence on or about 21 July, 1995; count 2 alleged an offence on or about 4 August, 1995; counts 3 and 4 alleged offences between 4 August, 1995 and 21 October, 1995.

3 The appellant pleaded not guilty to each count. He was found guilty on counts 1, 2 and 3. A verdict of not guilty was entered on the trial judge's direction with regard to count 4.

The Crown case: 4 The Crown alleged that each offence was against the same female complainant, who was born on 1 October, 1982, and was accordingly aged 12 years and 9 months on 21 July, 1995.

5 The appellant lived in a caravan at the back of a house, which was occupied by his parents, his sister and her small child. Behind that house was situated the house in which the complainant lived with her father and her siblings. The complainant's mother died on 1 July, 1995.

6 About three weeks after the death of her mother, the complainant visited the appellant's parents' home sometime in the afternoon of Friday, 21 July, 1995. The appellant's parents were present, as was his sister and the appellant.

7 The complainant was a regular caller at the home of the appellant's parents and routinely returned to her own home by climbing on top of a barbecue and jumping over the fence which separated the two properties. The barbecue was about ten metres from the appellant's caravan.

8 When the complainant was about to jump the fence on 21 July, 1995 she heard the appellant call out to her and tell her that he had her chocolate. This was a reference to a prior agreement between the appellant and the complainant when the complainant had lent him $2 and suggested they settle the loan by him giving her a chocolate bar.

9 The complainant entered the appellant's caravan and the appellant locked the door. He removed condoms from a drawer. The complainant said that she felt scared. She tried to open the door, but was unsuccessful. The appellant told her to get on the bed, and he pushed her onto it. The complainant said that she did not have the sense to scream. She was frightened of being hurt. The appellant pulled down her shorts to her ankles, placed her hands behind her head and pulled her T-shirt over her head so she could not see. The appellant placed a condom on his penis and spread the complainant's legs. She felt his penis in her vagina for about ten minutes. The appellant also licked her chest. During this time, the complainant tried to kick and punch the appellant. Afterwards he told her, "If you tell your dad I'll kill you and your dad". The complainant replied that she would "Get him back". The appellant told her to get out and told her how she could open the door. The complainant had a shower at her house and did not tell anybody what happened because she felt scared. These events were the subject of count 1 on the indictment.

10 In cross-examination, the complainant agreed that in her statement to police she had stated that the appellant had not used a condom and that she thought she was pregnant. In evidence, she claimed this to be an error and said that even though a condom had been used, she was still afraid of falling pregnant.

11 Some two weeks later, on a Friday night, the complainant was having dinner at the appellant's house with his mother. She agreed that the date was 4 August, 1995.

12 At about 6 pm or 7 pm, the complainant when about to jump the fence into her father's house, had been grabbed by the appellant, who twisted her arm behind her back. He walked her to his caravan. She struggled and started to cry, but she did not scream out even though she agreed in cross-examination that the appellant's parents and his sister would have heard her scream, and that her father would also have heard her scream.

13 The appellant locked the door of the caravan and pushed the complainant onto the bed. She tried to hit him, but "… it wouldn't work" (T.16.01). She said that she knew then that he was going to "do it again". She could not get up because when taking off his clothes, the appellant was "right at the foot of my knees when he was getting undressed". When ordered to pull her pants down she refused. The appellant pulled her pants down and placed the complainant's arms behind her back. He placed his penis in her vagina for about five to ten minutes.

14 On this occasion the complainant thought that the appellant had again said that he would kill her and her father. Her vagina was sore and painful and was "all red" after these events. The complainant went home, had a shower and went to bed. She did not tell anyone what had happened because she felt scared. These events were the subject of count 2 on the indictment.

15 The complainant gave evidence that she had not been in the appellant's caravan since 4 August, 1995, but had nevertheless visited the appellant's parents' home saying that she felt safe because she was not alone with the appellant, being in the presence of his family and siblings.

16 On Saturday, 9 September, 1995 a barbecue was held at the complainant's home from about 6 pm. The appellant was also present.

17 After about one hour, the complainant's father asked her to go to the shops for beer, milk and bread. The appellant was to go with her. The complainant told her father that she did not wish to go, but did not explain the reason for this. She said that she was still fearful of the threats made by the appellant. Nevertheless the complainant did walk with the appellant to the shops, which were a ten minute walk away.

18 On the way back, the appellant and the complainant walked through Mary McKillop School, which was a short cut to the complainant's house. The appellant was carrying the beer which he put down at one point. The complainant then started running away from him, but he caught up to her. He took her underneath one of the classroom buildings. The complainant recalled seeing a brown drum. The appellant told her to take off her clothes, but she refused. She was wearing shorts and a T-shirt and the appellant took them off. He also removed his clothes. The complainant saw him place a condom on his penis, which he placed in her vagina for about five to ten minutes. During this time, the complainant was endeavouring to get him off her. Afterwards the appellant left the condom there. This was the subject of count 3 on the indictment.

19 The complainant's evidence was that she could not recall an incident involving her anus, which was the subject of count 4 on the indictment. She could not remember if she had changed position, but agreed that in her police statement she had said that the appellant had told her to roll over onto her stomach and that he had then placed his penis into her anus.

20 At one point in her cross-examination, she said that he had done this, but at a later stage gave evidence to the contrary. She also gave evidence that she had not told the police the appellant had placed his penis in her anus, only that he had placed his penis in her vagina. This evidence resulted in a verdict by direction in relation to count 4.

21 The evidence of the complainant was that there were two gardeners at the school grounds on Saturday, 9 September, 1995 when the school ground incident occurred. She said that they were one or two blocks away from herself and the appellant. She had not called out to them and in cross-examination said that when she had initially run away from the appellant, after he had placed the beer down, she ran in a direction which was away from the gardeners. Following the events in the school ground, she ran home and did not tell anyone what had happened because of the threats the appellant had made.

22 The complainant gave evidence that the appellant had once told her that he loved her. She had responded by telling him that he was an idiot. In cross-examination, the complainant said that the appellant told her that he loved her on 21 July, 1995 and that on 4 August, 1995 the appellant had told her that he wanted to be her boyfriend.

23 The complainant gave evidence of having told a school friend, Rachel Davies, that she had been raped. She alleged that on the Monday following each of the events of 21 July, 4 August and 9 September, 1995 she had complained to Davies at school about being raped. Although Rachel Davies kept suggesting that the complainant speak with Rachel Davies' mother, Mrs Margaret Mikolajczyk, the complainant felt scared and refused. She did, however, eventually speak to Rachel Davies' mother, who then informed the complainant's father.

24 The complainant gave evidence of having told Rachel Davies' mother that she had been raped by "a guy named Murray", who was a friend of her father and a neighbour. She also said that it had occurred on three occasions. Mrs Mikolajczyk did not ask when those occasions were, and the complainant said that she had not said when the events had taken place.

25 After being contacted by Mrs Mikolajczyk, the complainant's father had driven the complainant to the appellant's parents' home where, together with the appellant's sister, the complainant's father confronted him about the matter. Afterwards the complainant was driven to the police station.

26 It was the evidence of the complainant's father that several weeks after the death of his wife he had had a barbecue at his house which began some time between 5.30 and 6 pm in the afternoon. He recalled asking the complainant to go to the shops and that the complainant had gone with the appellant, who also wanted to buy something. The complainant had not wanted to go.

27 The complainant's father gave evidence that it was dark when the complainant and the appellant returned from the shopping trip to the house. He had noticed the back of the complainant's white jumper was covered in dirt. He asked the complainant what had happened, and she replied that she had fallen over. He said that the complainant had then cleaned herself up and continued to mingle at the barbecue.

28 The complainant's father gave evidence that having been contacted by Mrs Mikolajczyk, he had gone to the school where he saw a condom. He gave evidence that the appellant had disclosed to him the appellant's infatuation for the complainant. In his evidence, the complainant's father said that he believed he had told the police of the appellant saying to him that he had this infatuation, but conceded that this did not appear in his police statement.

29 The complainant's father gave evidence of having bought the caravan in question from the appellant's family and explained that it could be difficult to unlock the door once it was locked.

30 Margaret Mikolajczyk gave evidence that on 21 October, 1995 she spoke with the complainant following a conversation she had had with her daughter Rachel Davies. The complainant told her that she had been raped. Mrs Mikolajczyk asked her if she was joking and the complainant said "no". She asked the complainant whom it was had raped her, and received the answer "A guy named Murray who was a friend of her father's and a neighbour". The complainant was asked if she had told anyone and the complainant said "No". The complainant informed Mrs Mikolajczyk that she knew where the appellant had thrown the condom and gave evidence of the complainant having "just said it happened every two weeks or it was about twice it happened".

31 In cross-examination, Mrs Mikolajczyk agreed that in her police statement she had said that when she asked the complainant when it had happened, she received the response "two weeks ago". She also agreed that when she asked the complainant if that was the first time, the complainant had replied "No, he raped me every two weeks, once in the caravan".

32 Rachel Davies gave evidence of the complainant having stayed over at her house in October, 1995 and of having told her that she had been raped by the appellant in the caravan at the back of the appellant's parents' house. The complainant had said that the appellant had called her over and asked her if she wanted chocolate. When she went into the caravan, he slammed the door and pushed her onto the bed. The complainant told Davies that the appellant then told her to take off her clothes, that she had refused, and that he had then raped her. Davies said in her evidence that she was told by the complainant that she had screamed for help. Davies said that the complainant had not mentioned any other incident. In particular, she denied having been told by the complainant at school in July, August and September that she had been raped.

33 Dr Patricia Brennan gave evidence of performing a genital examination of the complainant on 21 October, 1995. Her findings were that there was a split in the mucosa, a swollen circular hymen with sticky grey fluid, and a small split in the hymeneal rim. This, she said, was consistent with the complainant's vagina having been penetrated by a penis on 21 July, 1995, 4 August, 1995 and 9 September, 1995. Dr Brennan could not say when the hymen had split. She could not recall the claimant having requested a pregnancy test.

34 Mr Paul Kitley, who was on 21 October, 1995 a sergeant of police, gave evidence of having attended a Catholic school with the complainant's father and located a used condom underneath a demountable building. He arranged for photographs to be taken, some of which depicted a brown drum. He could not remember if the drum was underneath the building where the condom was located. He agreed that the space underneath the building was confined and that it would be impossible for a person to stand up. He also agreed that it would be impossible for an adult male to kneel without striking his head on the flooring timbers.

35 Sergeant Michael Priest gave evidence of having spoken to the complainant and the appellant on 1 November, 1995 and of the appellant having said to him "I've got nothing to hide".

36 The appellant agreed to an ERISP. He denied the allegations made by the complainant and told police that the complainant had been in his caravan on two occasions to watch "Police Academy" and "The Lion King". The first movie had been watched on 29 July, 1995 and the second in late September. He purchased the video "The Lion King" on 28 September, 1995. The appellant told police that he kept condoms in the top dresser drawer of his caravan and said also that the caravan does not lock.

37 Mr Robert John Goetz, a forensic biologist, gave evidence that in December, 1995 he received a condom and blood samples taken from the complainant and the appellant.

38 The tests conducted detected semen on the condom. He was unable to specify when the sperm was deposited into the condom, however, his evidence was that complete degradation of the sperm had not taken place and that the life of a sperm is longer in a condom than in a vagina.

39 The findings of Mr Goetz were that the appellant could not be excluded as a source of the DNA in the condom. Approximately one person in every 1.4 million people have the combination of DNA which was detected. Taking into account the margin of error, that is to say a confidence interval of 95% accuracy, the chances that the DNA tested from the inside of the condom was that of the accused was between 880,00:1 and 2.3 million:1. (T.116.05)

40 The DNA taken from the outside of the condom contained a mixture which could have been DNA from the accused plus some other DNA. The complainant could not be excluded as a source of the other DNA. (T.116.50) One in 160,000 people in the general population could have contributed the DNA on the outside of the condom. (T.116.57)

41 Although Mr Goetz was able to say that the DNA on the outside of the condom was a mixture, that is to say derived from more than one person, it was not possible to tell whether it was derived from two people, or more than two people. (T.122.20)

42 Of the combinations of DNA on the outside of the condom, one matched the complainant, but the others did not.

43 The appellant gave evidence in which he confirmed that his answers given during the ERISP were true.

44 The appellant said that in June, 1995 he had known the complainant and her family for eight years. He denied ever having sexual intercourse with her and said that she was seeking attention as a result of the death of her mother.

45 Following receipt of various documents from the Crown in relation to the charges, he endeavoured to make enquiries as to his movements on the relevant date. The evidence was in the nature of alibi evidence. He said that he had gone shopping with his mother between 5 pm and 6 pm on 21 July, 1995; had returned home some time prior to 7 pm and spent the evening in the company of his parents watching television. The appellant's step-father had died on 26 January, 1996. He gave evidence that on 29 July, 1995 he was watching television in the caravan at about 8.30 pm, when the complainant entered the caravan and they watched a film called "Police Academy". He denied that sexual intercourse had occurred on that occasion.

46 The appellant denied having the complainant in his caravan on 4 August and said that on that date he had withdrawn money from his bank and visited friends at Bankstown. He knew the names of those friends, but no longer knew where they were to be found.

47 The appellant's evidence was that on that day he watched the movie "Batman Forever" at 4 pm at the Hoyts Cinema and later ate a meal at McDonalds before watching the film "Casper" at about 6 pm or 6.30 pm. He agreed that the Daily Telegraph advertisement for Bankstown Hoyts Cinema on 4 August indicated that "Casper" was only playing at 10.30 am. The appellant returned home at 10.30 pm and told his mother he had seen a couple of movies.

48 The appellant claimed that he was able to be precise about his movements on 21 July and 4 August, 1995 because on those dates he had been in receipt of unemployment benefits and his bank statement indicated that he had made withdrawals of $300 on each of those dates. The statement did not indicate the time at which the withdrawals were made.

49 The appellant recalled an occasion when he walked with the complainant to the local shops to buy beer. The complainant had bought bread and milk. He could not recall the date, but knew that it was day time and that it had happened only once.

50 The appellant's Visa card statement indicated purchases at the Dynamic Liquor Store on 11 October and 17 October, 1995, but he agreed in cross-examination that on 9 September of that year, he did not have a Visa card and any purchase he would have made would have been for cash. He denied sexually assaulting the complainant underneath a school building and after receiving the Crown brief on 11 December, 1995 he took photographs of the demountable buildings of the school and gave evidence that he could not stand or kneel upright underneath the building.

51 The appellant gave evidence of having had a conversation with the complainant in which she informed him that she was dumping her boyfriend and had said "You could be my boyfriend". His response was to say to her "You are under aged, and if you turn to an age and I'm still single we'll see what happens". He said the complainant gave him a "quick peck" on the lips, but he did not read anything into it.

52 The appellant agreed in cross-examination that during the ERISP, when the police put to him that he had told the complainant "I like you and I want to be your boyfriend" he had replied "That was on 29 July". His explanation in evidence was that he misinterpreted what the police were saying and did not realise that the police were actually putting to him that he was the one who had used those words.

53 The appellant gave evidence that on an occasion after 7 October, 1995, when he was at the complainant's house playing pool, his mother called out to him around 4 o'clock to come and cook dinner. He and his mother then saw his caravan door swing open. The complainant was inside and said she had cleaned the caravan. This was denied by the complainant in her evidence. The appellant was confronted by the complainant and her father, in the presence of his sister, on 21 October, 1995 in relation to the accusations of the complainant. He told the complainant's father "It's not my fault, your daughter has an infatuation with me". He said that his sister may not have been present when this conversation took place. The appellant gave evidence of having had a single incident of sexual intercourse with a woman named Bianca about one month after 14 August, 1995. He had used a condom and afterwards placed it in his garbage bin (which he did not have a habit of cleaning out). He said that he noticed the garbage bin had been cleaned out on 8 October, 1995. He said this was the only time he had had sexual intercourse in the caravan. He had accompanied Bianca to her home in Mount Pleasant by taxi and had never seen her again. He had not sought confirmation of his evidence in relation to Bianca because he had not known the date of the complainant's third allegation until two days before he gave evidence. However, in cross examination he agreed that when the complainant's father spoke to him on 21 October, 1995 he had been informed about the existence of a condom.

54 The appellant's mother, Aniela Lynch, gave evidence of having gone shopping with the appellant on 21 July, 1995, some time after 5 pm. She said they had remained at the shopping centre until about 7 pm and had dropped the appellant off a block away from her house so he could visit a friend. She agreed that in her police statement she had not mentioned dropping the appellant off to visit a friend. Mrs Lynch gave evidence that the appellant that evening had gone out with his brother and had not returned until about 12.30 am.

55 Mrs Lynch said that the appellant returned home on 4 August, 1995 at about 10.30 pm, having visited friends and having been to the movies at Bankstown. He recounted to her having watched the movie "Batman", but she could not recall if he also said that he had watched "Casper".

56 Mrs Lynch recalled the complainant having stayed over at her house on 29 July, 1995 and recalled that she was not in the house for about an hour. She and the appellant came into the house later and the appellant explained that they had been watching a movie. The complainant did not appear to be upset or frightened. Mrs Lynch also recalled that on 8 October, 1995 the appellant was playing pool with the complainant's father. She had called him home to cook dinner. She gave evidence that the complainant had appeared from the appellant's caravan and said that she had cleaned it up.

57 Mrs Lynch gave evidence of the appellant having spoken to her on 22 October, 1995 and told her of the complainant having spoken of dropping her boyfriend and asking him to be her boyfriend and of his response to the effect that if she was available in a few years when she was older, they would see what happened.

58 Mrs Lynch gave evidence of certain diary entries, which she had made concerning the various dates in question, some of which were confirmatory of matters told to her by her son the appellant. She said that she had made entries in her diary whenever she recalled various occasions after the relevant dates. She had not received this diary until July, 1995. Not all the matters of which she gave evidence were supported by diary entries.

59 The appellant's sister, Trisha Lynch, gave evidence of being present when the complainant's father spoke to the appellant in relation to the complainant's allegations. She recalled the appellant telling the father that the complainant had an infatuation with him, but was unable to recall if the appellant said that he was infatuated with the complainant.

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.

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