This evidence, accordingly, was inconclusive as to whether the factory was open or closed in the "gap".
30 In examination in chief, the accused said that, during the time of the Sydney Olympic Games, the business did not really trade and that there were times other than the Christmas holidays when the business closed during slack times. The appellant said that the records were destroyed because when he became sick and the business was not trading, the rent was unpaid, the stock was sold off and, when the landlord re-entered the premises, all the records of the business were destroyed by her. He said this occurred towards the end of 2001. The appellant did not say, however, that those records would have been able to establish whether or not the factory was open during the "gap" period.
31 Defence counsel sought a direction concerning the delay in complaint that brought to the jury's attention the difficulty facing the appellant because his records had been destroyed. The learned trial judge pointed out, quite rightly to my mind, that this was not really a result of the delay in complaint but arose from the inevitable delay in bringing the matter on for trial as a consequence of which, through no fault of any person, the records were not available and a difficulty thus created for the accused in relation to the so-called gap. Defence counsel said that he was "happy" with a direction in these terms. His Honour's directions included the following -
"Delay clearly impacts upon recollections. That is particularly so when there has been a significant delay between the time when the events are alleged to have taken place and the date when the child is called upon to recall them. So in this case, around twelve to sixteen months.
Another effect of evidence not being fresh is that the accused has lost the opportunity to investigate the circumstances of the allegations contemporaneously. What I mean by that is that if the complainant or if a complainant complains today about being sexually assaulted today then an accused is at that point in time able to have literally a perfect recollection as to what he was doing, with whom he was and he therefore is better able to properly address or investigate the allegations. So in this situation he has lost that opportunity of contemporaneous examination of the allegations.
Small matters of detail that might have influenced you could well be lost by reason of the delay. In a sense, when the accused's response is a general denial, that is, it simply did not happen, which is the situation here, then that poses additional problems. From his perspective, it may have been an ordinary day. What we do during our days as ordinary parts of our lives is something that, except for some exceptional individuals, we do not commit to our long-term memory. You can consider precisely what you were doing last night at 7 o'clock, you would probably have a fair chance of recalling that. Considering what you were doing at 7 pm years later is a much different proposition. Even if you now cast your mind back and try and consider what you were doing every day through August [it now being almost the end of September], I doubt any of you could actually do that.
The fine detail, as I said, may well be important and if it is lost then that is a significant disadvantage. I draw all these matters to your attention so you can give them due consideration when scrutinising the evidence of the complainant. Nothing I have said means that you cannot find, after considering the warnings that I have given, that the complainant's evidence was both truthful and unreliable [sic, typographical error, I think, for reliable ]. You can accept it beyond reasonable doubt if that is what you wish to do providing, you have done what I suggested and that is you examine it closely."
32 Ellis DCJ dealt with the missing business records in the course of summarising the appellant's case as put by his counsel, telling the jury -
Where the evidence In a case rests, as it does here, on the evidence of one witness alone and there has been a delay in bringing the matter forward to the attention of the authorities as is the case here, the law requires that I give you another series of directions in relation to the evidence in this case. The relevant delay I have told you about. I tell you this, that before you can convict the accused on the evidence of one witness you must carefully scrutinise and evaluate that evidence in the light of the criticisms made of it by counsel for the accused in regard to the separate charges. It is only after such careful scrutiny and evaluation and if you are satisfied that the evidence is truthful, reliable and accurate, that you can use the evidence as the basis of a conviction on each of the charges alleged in the indictment. You will of course bear in mind the whole of Mr Pullinger's address to you on behalf of the accused, that he does indicate, for instance, that there are a number of factors that you should take into account and that the delay certainly impacted on them. The business records were lost. You will hear that the people who moved in destroyed the business records so that they were no longer available to the accused to go back and try and work out what he was doing and what the business was doing and when. You heard that he was also struck by ill-health. Obviously had there been an immediate complaint, then some of these factors would not have been as significant. In his ability you may notice to complete the calendar that they prepared, he and his wife, as to activities, partly because they were unable to recall events so long ago and you have the general impact of delay in the ability of a witness to recall events."
33 The appellant complains in this Court that the learned trial judge erred in failing to specifically mention the inability of the appellant to address the gap in the Scantest records by reference to his business records which had since been destroyed, in the context of his Honour's warning about the consequences of delay in complaint, although his Honour reminded the jury of the matter elsewhere (as set out above), in context of counsel's address. It is fair to say, I think, that this matter was not the subject of precise analysis in the course of the trial. The destruction of the business records would not have been significant, it is clear, had it not been for the Crown prosecutor raising in cross-examination with the appellant the possibility that the Scantest records were mistaken because the factory was, during the gap, in fact open rather than closed as the Scantest records indicated.
34 The effect of the discussion between Mr Pullinger and Ellis DCJ about the appropriate direction as to the issue of delay and the destruction of the business records is not entirely clear. His Honour ruled, as it seems to me, that what was referred to as the Longman warning should not contain a reference to the missing records, as the fact that they were destroyed was not really due to the delay in the complaint. His Honour agreed, nevertheless, that the jury should be directed as to the problems caused to the defence by the loss of those records. To this, Mr Pullinger said, "I think your Honour is right".
Fresh evidence
35 The appellant has sought leave to adduce evidence of the Scantest telephone records (as distinct from the security alarm activation records) to demonstrate that no call at any relevant time was made to the appellant in response to an alarm being activated at the factory for the entire period, including what I have called the gap period from 12 February to 22 February 2000.
36 The proposed new evidence is contained in an affidavit of Stephen Hynes, the director of Scantest Pty Limited, who had given evidence during the trial to which I have already referred. So far as is presently material, that affidavit states -
"5 I have seen and am familiar with the document entitled Customer Activity Report…which was produced by Scantest back in June 2001. The gap that exists between 12 February and 22 February 2000 could be a result of the alarm panel being unable to communicate with Scantest. This could be for a variety of reasons including but not limited to the alarm system being unplugged from the phone line or a Telstra problem. I believe that Mr Paul Pisaini [the technician employed by the security firm who installed the alarm system] would have been contacted by [the appellant] in the event that there was a problem requiring servicing.
6 On 2 February 2005, I gave authority for the Legal Aid Commission to access a copy of Scantest's telephone records from Telstra Pty Limited for the period November 1999 to April 2000…I note that on the dates referred to in Customer Activity Report where alarms are activated, namely 5 and 25 February 2000, the number reflected in the Telstra records as being called mere minutes later is 0412390500."
37 I note that there is no suggestion that there was a call to or a repair by Mr Pisaini and there are other reasons internal to the records that justify the inference that the possible explanation proffered by the Mr Hynes is unlikely. Before moving to the significance of the telephone records, I should point out that, at all events, Mr Hynes' suggested explanations for the gap provide no answer to the argument that, as at the close of the Crown case, the records had been tendered as complete and accurate. The possibility that they might not have been complete for the reasons given by Mr Hynes in his affidavit was not suggested at trial and should not be considered here. The fresh evidence relied on concerns the telephone records.
38 The appellant has also filed an affidavit. In substance the appellant's affidavit specifies his home telephone number, his mobile number and that of his wife. These numbers are not 0412390500. The appellant said that such a number did not belong to him and never has. He infers that the number was that of Beyond Technology Patrol, a mobile patrol company, which would attend the premises if informed by Scantest that an alarm was triggered. The telephone records attached to Mr Hynes' affidavit show that the appellant's mobile telephone was called on 5 February and 25 February 2000 close to the times when alarms sounded on those dates, on 5 February these occurred at 11.14 pm and 11.51 pm and on 25 February at 9.10 pm. These records show that Scantest did not telephone the appellant as alleged by the complainant.
39 The Crown submits that the evidence of the records was available to the appellant, actually or constructively at his trial. In one sense, of course, this was true. However, the Crown case on the period when the alleged offences occurred rested entirely on the evidence of the complainant. The Scantest records, if accepted, showed that the offences that allegedly occurred at the factory could not have occurred in the "gap". The evidence concerning the telephone calls made to the appellant's home during that period was, if relevant, unnecessary. It was the change of the Crown case from an allegation that the factory offences occurred before the "gap" to the allegation that they must have occurred during the "gap" that made the telephone records for that period important. It is not necessary for the defence to anticipate every possible variation in the Crown case. Although the dates in the indictment were very wide and covered the gap, there can be little doubt that the real case that the appellant was called on to answer was that which alleged the relevant period was as asserted by the complainant in his interviews and on cross-examination. In respect of the "gap", the appellant had a powerful answer, namely that the records showed no alarm and, by implication, no call about the alarm.
40 If it be important, I would conclude that the evidence of the telephone calls is indeed fresh evidence, in the sense that it was not evidence that the defence in the exercise of due diligence should have had available to it at the trial. Mr Pullinger has sworn an affidavit that was read without objection in this Court dealing with this evidence. He deposed, in substance, that he understood the factory offences were alleged to have occurred in the school holiday period 1999-2000, an understanding that was confirmed by the evidence of the complainant and during the evidence of Mr Hynes. He said that, as he recalled it, it was not until the cross-examination of the appellant that it was suggested that the offences occurred on a day in February 2000. He said that, with the benefit of hindsight, it may have been appropriate to apply for an adjournment to enable enquiries to be made for telephone and alarm records for 12 February 2000.
41 I would add the observation that the Crown was aware at all times that there was little or no evidence that supported that of the complainant. It is somewhat surprising that the Crown had not obtained the telephone records for the purpose of tendering them. Of course, it would have had the duty to do so whether they supported the Crown case or not. It is difficult to be sympathetic with a contention in this Court that the relevance of the records was so obvious that the defence should have procured them, when the Crown - having the burden of proof - had not bothered to do so.