REGINA v R N S

COUNSEL : Appellant: R. Burgess Respondent: L.M.B. Lamprati SOLICITORS : Appellant: T.A. Murphy Respondent: R. Gray CATCHWORDS : CRIMINAL LAW; Sexual assault; Appeal against conviction; Admissibility of evidence of complaint (Evidence Act 1995 (NSW) s.108(3)); Delay in making complaint; Summing-Up - Adequacy (Crimes Act 1900 (NSW) s.405AA); Indictment - time essential Crimes Act 1900 ACTS CITED : Evidence Act 1995 Criminal Appeal Act 1912 Crimes Act 1900 Graham v The Queen (1998) 72 ALJR 1491 Regina v PAH (unreported CCA 18/12/98) Regina v Gillard (unreported CCA 5/3/99) Regina v Harvey (unreported CCA 9/4/98) Regina v Davies (1985) 3 NSWLR 276 Crofts v The Queen (1996) 186 CLR 427 Longman v The Queen (1989) 168 CLR 79 Regina v Lynch (unreported CCA 12/3/99) Regina v DJK (1997) 96 A Crim R 443 Regina v Johnston (unreported CCA 31/7/98) Palmer v The Queen (1998) 193 CLR 1 Regina v Condon (1995) 83 A Crim R 335 CASES CITED: Regina v Zorad (1990) 19 NSWLR 91 Regina v Beserick (1993) 30 NSWLR 510 Regina v Wickham (unreported CCA 17/12/91) Regina v Fraser (unreported CCA 10/8/98) Regina v Harvey (unreported CCA 11/12/96) Regina v AH (1997) 42 NSWLR 702 Regina v Greenham (unreported CCA 8/3/99) M v The Queen (1994) 181 CLR 487 Regina v Dossi (1918) 13 Cr App R 158 Regina v Macdonald (1995) 84 A Crim R 508 Regina v Pfitzner (1976) 15 SASR 171 The King v Dean (1932) NZLR 753 Regina v VHP (unreported CCA 7/7/97) DECISION : See para. 84

1 SPIGELMAN CJ: I agree with Bell J. **********

CRIMINAL APPEAL 60456/98 SPIGELMAN CJ JAMES J BELL J Monday, 7 June 1999 REGINA v R N S JUDGMENT 2 JAMES J: I also agree with Bell J. **********

IN THE COURT OF CRIMINAL APPEAL 60456/98 SPIGELMAN CJ JAMES J BELL J Monday, 7 June 1999

3 The appellant, RNS, appeals against his conviction on an indictment containing four counts alleging sexual assaults upon his stepdaughter, ZG. The trial proceeded over five days in the District Court at Muswellbrook and on 26th June 1998 the jury returned a verdict of guilty on each count. 4 The first count alleged the commission of an indecent assault upon the complainant, she being under the age of 16 years and under the appellant's authority, contrary to s.61M(1) Crimes Act 1900. This offence was said to have occurred between 1st January 1992 and 31st July 1992 at Muswellbrook. 5 The second count alleged the commission of an offence between 29th June 1992 and 25th December 1992, namely that the appellant had sexual intercourse with the complainant without her consent, knowing that she was not consenting, she being under the age of 16 years. This offence was brought pursuant to s.61J(1) Crimes Act 1900. 6 The third count alleged the commission of an offence between 1st January 1993 and 24th December 1993, namely that the appellant had sexual intercourse with the complainant without her consent, knowing that she was not consenting, she being under the age of 16 years. This, too, was brought pursuant to s.61J(1) Crimes Act 1900. 7 The fourth count alleged the commission of an indecent assault upon the complainant, she being under the age of 16 years and under the appellant's authority. This offence was said to have occurred between 1st January 1993 and 24th December 1993 and was preferred under s.61M(1) Crimes Act 1900.

The Crown Case 8 The offences were all said to have occurred when the complainant was aged 14 or 15 years. The complainant was the daughter of the appellant's wife by a previous union. It was the complainant's account that during the school summer holidays 1991/1992 she came to live with her mother and the appellant outside of Muswellbrook. During the course of those school holidays the family moved into premises in Muswellbrook ('the Muswellbrook home') and she commenced Year 9 at the Muswellbrook High School.

Count 1 - The House-Warming Incident 9 The complainant gave evidence of an occasion when a house-warming party was held in the Muswellbrook home. That night she went to sleep in her bedroom between 9pm and 10pm. She awoke to find the appellant touching her on the vagina inside her underwear. She told him to get out or she would call her mother. The appellant left and the complainant closed the bedroom door. The complainant remembered that the appellant had a bottle of Strongbow Cider in his hand. She said that he was not drunk but tipsy and that he was unsteady on his feet.

Count 2 - The McDonalds Incident 10 It was the complainant's 15th birthday on 29th June 1992. On an occasion after that birthday but prior to Christmas 1992, whilst she was living at the Muswellbrook home, she went with the appellant in her mother's car, a yellow Ford Meteor, to McDonalds to pick up some dinner. On the way the appellant stopped the vehicle and pushed her seat back. He lent over the complainant and placed his fingers in her vagina. She complained that it was hurting her. The appellant said that he wanted to have sex with her but that he would get into trouble with her mother. He told the complainant to lie back and relax and that she "was a lot tighter than my mother". The appellant broke off the assault when he saw the lights of a car coming up the road. They drove to the McDonalds outlet, collected some takeaway food, and returned to the family home.

Count 3 - The Loungeroom Incident 11 The complainant said that on an occasion when she was at home watching a video the appellant grabbed her and started to wrestle with her. They ended up on the floor. He removed her jeans and underpants and flipped her onto her back. He put his tongue in her vagina and sucked her. He held her hands tightly behind her back with one of his hands whilst he touched her on the vagina with the other. As this was happening the complainant told the appellant to get off her. The telephone rang and the appellant got up to answer it. This assault left red marks and bruising around the complainant's wrists.

Count 4 - The School Uniform Incident 12 About two days after the loungeroom incident the complainant said that the appellant had walked into her bedroom. He pushed her onto the bed and unzipped her school uniform and pulled her bra down uncovering her breast. He bit her breast around the nipple area. The complainant said that he was hurting her and the appellant bit her harder. The appellant then got up and left the room. The complainant saw that there were teeth marks and bruises around her nipple. The complainant said that when she came out of her bedroom she saw the appellant in the loungeroom and told him that she was going to tell her mother what he had done to her. He offered to pay her $50 not to tell.

Complaint 13 The complainant said that she did not complain to her mother about the first incident (the house-warming incident) because the mother had only recently married the appellant. It appears that sometime prior to the second incident (the McDonalds incident) she did complain to her mother that the appellant kept trying to "grope" her. The mother took no action arising out of this revelation and the complainant believed the mother's attitude was that it was up to her, the complainant, to tell him to stop. By the time the McDonalds incident occurred she had abandoned hope of getting support from her mother and she made no complaint about the matter. 14 A short time after the loungeroom incident took place the complainant saw her sister, SS. She did not complain about the sexual assault nor show SS (or anyone) the red marks and bruising around her wrists. 15 The complainant said that she did not tell her mother about the school uniform incident because it happened on a day when the mother had a bad day at work. The bite mark on her breast took about two weeks to disappear. She did not show her mother that mark because her mother was upset about the separation from the appellant. 16 Around Christmas 1993 the complainant's mother asked the complainant to leave the house. She did so and did not resume living with her mother or the appellant again. In 1994 she told a school friend, LN, that the appellant had molested her when she was living with her mother. LN gave evidence and confirmed that the complainant had told her in 1994 that she had been sexually abused by the appellant.

The Mother's evidence 17 The complainant's mother was called in the Crown case. It was her account that the first time the complainant had said anything to her suggestive of sexual molestation by the appellant was around Christmas 1996. The complainant's sister, SS, was present during this conversation. The mother said that the complainant told her that she had not complained to her about the molestation when it started because she knew that she, the mother, was sick and thought it might kill her. 18 The complainant agreed that she had spoken with her mother and SS around Christmas 1996 complaining that the appellant had touched her. She told her mother that she had not told her "everything that he had done" because her mother was ill. The complainant denied that the first time she made any complaint to her mother as to the appellant's sexual molestation was about Christmas 1996. 19 The complainant's mother also gave evidence concerning the timing of various critical events. She said that the complainant had come to stay with the appellant and herself outside Muswellbrook in the April school holidays of 1992. The complainant started school at the Muswellbrook High School on 27th April 1992. There was some other evidence in the Crown case tending to confirm the accuracy of that date. The mother said that the family moved into the Muswellbrook home on 25th May 1992. She confirmed that they had held a house-warming party there. She placed the date of that party as mid-July 1992. The appellant had been drinking Strongbow Cider at that party. She did not observe the appellant to be intoxicated. 20 The mother agreed that in 1992 she was the owner of a yellow Ford Meteor. On the 14th July 1992 there had been an argument involving the appellant, the complainant and herself. The police attended the home that evening and subsequently the mother obtained an order from the Family Court of Australia restraining the appellant from entering the Muswellbrook home. The mother said she and the appellant remained separated from 14th July 1992 until they were reconciled around Christmas 1993. During the period of the separation she would not have allowed the appellant to drive her car. In June 1993 she developed rheumatoid arthritis. Prior to that she had been in good health. There was an occasion in August 1993 when the appellant visited the Muswellbrook home to inquire about her health. 21 The complainant first made an official complaint concerning these matters in September 1997. At the time police were conducting a publicity campaign about sexual assault and encouraged by that campaign she made contact with the police and arranged to attend and provide a statement.

The Appellant's Case 22 The appellant was interviewed by police concerning these allegations in October 1997. He agreed to participate in a video taped interview. He denied the commission of the offences. 23 In his evidence the appellant said that he had moved out of the Muswellbrook home on 14th July 1992. He had not resumed living with his wife until Christmas 1993. He had only visited the home on one occasion during that period. This was in August 1993 after he had heard for the first time that his wife was sick. He produced documents which established that he had leased two sets of residential premises in the period August 1992 to December 1993. 24 The complainant's sister, SS, gave evidence in the defence case. It was her account that she had been staying at the Muswellbrook home for at least four weeks after June 1993. She had seen the appellant at those premises on only one occasion. On this occasion he had called to the home to inquire about his wife's health. He did not enter the premises.

Ground 1 - His Honour erred in failing to consider whether leave should be granted under s.108(3) of the Evidence Act before admitting evidence of complaint 25 It appears that the evidence of complaint was led in this case without any reference to its admissibility pursuant to the Evidence Act 1995. The trial proceeded a matter of months before the High Court's decision in Graham v The Queen (1998) 72 ALJR 1491 was handed down. 26 No objection was taken on the appellant's behalf to the admission of the evidence of complaint. That may have been a tactical decision having regard to the inconsistency between the complainant and her mother on this issue. Be this as it may, the appellant now contends that the evidence was inadmissible. 27 It is difficult to see how either the complaint to the mother made around Christmas 1996 or to LN in 1994 would have met the test of freshness for the purpose of s.66(2) of the Act; Graham. 28 The other basis on which evidence of complaint might have been admitted is pursuant to Part 3.7 of the Evidence Act as an exception to the credibility rule. Section 108(3)(b) permits evidence of a prior consistent statement of a witness to be led if it is or will be suggested (expressly or by implication) that the evidence of the witness has been fabricated (whether deliberately or otherwise) provided the leave of the Court is obtained. No leave was sought or obtained in the instant case. It cannot be said that leave would inevitably have been granted; Graham per Callinan J at p.1496 para 33. 29 The appellant may not rely on this ground without the leave of this court; r.4. Leave will only be granted if the Court is satisfied that the wrongful admission of evidence or erroneous direction has led to a miscarriage of justice. In particular, an appeal will not be allowed on the ground of the wrongful admission of evidence which was not the subject of objection at trial if it appears that the failure to object may have been a deliberate one taken with a view to tactical advantage; Regina v PAH (unreported, NSWCCA, 18th December 1998). As noted above, the failure to object in this case may have been a tactical decision. Nonetheless, the observations of this Court in Regina v Gillard (unreported, NSWCCA, 5th March 1999) are apt in the circumstances of the present appeal: "However, there is, we believe, a more fundamental problem in this case in that the whole trial appears to have been conducted as if the Evidence Act 1995 had never been enacted. At no stage, either in relation to the admissibility of the evidence of complaint or on any other issue, was any reference made to the Act. The Act commenced on 1st September 1995, the trial was from 28th April to 6th May 1997 and the judgment in Graham was delivered on 30th September 1998. We do not suggest that in any case where an objection to admissibility based on a provision of the Act could have been but was not taken, leave will be granted under rule 4, nor that such will generally be the result; but in the present case where we are satisfied that the Act was completely ignored and where the High Court has, since the trial, thrown light on the relevant statutory provisions, we consider that leave to argue the point should be granted." 30 The lack of consideration of the basis upon which the evidence of complaint was admitted is relevant to the second ground of appeal and it is convenient to deal with the two grounds together.

Ground 2 - His Honour erred in failing to adequately direct the jury about the significance of delay in complaint 31 The trial Judge commenced his directions concerning the evidence of complaint by explaining something of the history of the admission of this type of evidence in sexual cases. He explained that in the past it had been expected that a woman would complain promptly if sexually assaulted. Evidence of that complaint might support her credibility as a witness. It would go against the complainant's credibility if she did not complain. His Honour said that evidence of complaint had always been admissible in what he described as very limited circumstances; it had to be made as soon as reasonably possible and it had to be volunteered. He went on to observe: "Everything has changed and now a complaint, whenever it is made, is admissible. Even if it is made years later it is admissible in evidence. That is the law, there is nothing - that is the law. And furthermore, it does not have to originate from the complainant. It can arise in a conversation in which someone may have said to her, 'Have you ever been sexually assaulted?' and she might say, 'Yes I was, three years ago by Mr X' and that would be admissible." 32 It is not clear whether this observation was directed to the introduction of s.405B into the Crimes Act 1900 in 1981 (which did not affect the admissibility of complaint evidence but made provision for a direction in cases where evidence of delay in making complaint was an issue) or to the effects of the Evidence Act 1995 or to some perceived change in the common law. It was not an accurate statement of the law as to the admissibility of complaint in sexual cases. It tends to highlight the circumstance that no attention was given to the basis upon which the evidence of complaint had been admitted in this trial. 33 His Honour went on to give a direction of the sort required by s.405B of the Crimes Act, namely, that delay in making a complaint does not necessarily mean that the allegation made is a false one and, further, that there may be good reasons why a person hesitates in making a complaint or refrains from so doing. 34 That, in summary form, was the extent of his Honour's directions relating to the topic of complaint prior to the request for re-directions made at the conclusion of the summing up. At that stage the Crown Prosecutor drew his Honour's attention to the decision of this court in Regina v Harvey (unreported, NSWCCA, 9th April 1998) and invited his Honour to give a further direction as to the disadvantage under which an accused may labour where there has been a delay in bringing a complaint to attention (SU.24-25). 35 Counsel appearing for the appellant did not seek any re-direction in relation to the topic of complaint. His Honour brought the jury back into court and gave them a further direction in these terms (SU.26): "But where the complaint, as in this case, is not brought to the attention of the accused until some years after the events have occurred, you must keep it in mind that he may have lost some defence advantage that he may have had if the matter had been brought quickly to his attention. For example, if there was in fact a provable alibi at the time, fresh in the memory of the accused, he may have been able to bring that forward in his defence which may have become vague and lost with the passage of time. But that is only an example. You can understand that the longer the time elapses before a person is told of an allegation, then the more disadvantageous it is to that person. I think you would understand that, but I do ask you to please keep it in mind." 36 After giving the above further direction, his Honour asked counsel for the appellant, "Does that cover the matter?" to which counsel replied, "Yes" (SU.26). 37 Although this ground of appeal is directed to the adequacy of the directions as to the significance of delay in complaint, in her written submissions Ms Burgess developed a number of challenges to the adequacy of the directions concerning complaint generally:

(1) failure to warn the jury that the delay in making a complaint was relevant to the credibility of the complainant and was a factor to be considered when evaluating her evidence and assessing consistency of conduct,

(2) failure to draw the jury's attention to inconsistencies in the evidence of complaint,

(3) failure to refer to the circumstance that the complaint made both to LN and to the mother was of a general nature and did not relate to the specific matters charged,

(4) the direction concerning the disadvantage to an accused caused by delay in making a complaint was inadequate. In particular, his Honour did not refer to the evidence in the case and attempt to relate the effect of delay to the evidence highlighting specific difficulties faced by the appellant because of it. 38 There was some uncertainty about the extent of delay between the happening of the incidents the subject of the counts in the indictment and the complainant's first complaint about any alleged sexual interference by the appellant. On her account she had, in general terms, complained to her mother at a time reasonably proximate to the incident the subject of the second count (the McDonalds incident). By the time that incident took place she had given up hope that her mother might intervene on her behalf and accordingly she did not complain in terms about it. This account was not supported by the evidence of the mother who said the first complaint had been made to her around Christmas 1996. There was evidence of complaint to LN in 1994. The first time the matter was brought to the notice of the police was in September 1997 and the first knowledge that the appellant had of these allegations was in October 1997 when he was interviewed by police about them. 39 In these circumstances the question of delay in the making of complaint and the significance of that fact to the issues raised in the trial needed to be the subject of careful direction by the trial Judge. The directions given, prior to the request for re-directions, went exclusively to the s.405B considerations. 40 It was clear that the complainant had moved out of the family home around Christmas 1993. At that time she was aged 16 years. Thereafter she appears to have lived independently while maintaining some level of contact with her mother and the appellant. 41 In the light of the lengthy delay in bringing this matter to official attention (and having regard to the complainant's age and her independent living arrangements in the period 1994 to 1997) it was appropriate for the trial Judge to direct the jury that the delay in making a complaint may be taken into account in assessing the complainant's credit; Regina v Davies (1985) 3 NSWLR 276. It was necessary to give such a direction to restore the balance of fairness; Crofts v The Queen (1996) 186 CLR 427 at 449-451; Longman v The Queen (1989) 168 CLR 79 at 91. 42 The failure to determine the basis on which the evidence of complaint was admitted was reflected in the directions the trial Judge gave on this topic. He did not identify what use the jury might make of the evidence. If leave is given to adduce evidence of complaint pursuant to s.108(3) (and this appears to be the only basis on which the evidence of the mother and LN of complaint might have been received) in the ordinary course consideration might have been given to whether its use might be limited; s.136. 43 The trial Judge did not review any of the evidence during the course of the summing up. The assessment to be made of the complainant's credibility in the context of the complaint evidence might turn on whether the jury accepted her account, namely, that she had complained to her mother that the appellant used to "grope" her and thereafter become disheartened by the mother's lack of support and not pressed further complaints. Alternatively, an acceptance of the mother's account might have been thought to raise a live issue as to the complainant's credibility. In this case it was important for the trial Judge to remind the jury of the evidence which had been led from each of the witnesses on this topic and to link that evidence to the directions concerning complaint; Regina v Lynch (unreported, NSWCCA, 12th March 1999). 44 The matter was complicated by the circumstance that evidence was led, over objection, concerning an incident in which the appellant told police he had "half accidentally half purposely" squeezed the complainant on the breast. She had chided him and he felt guilty and gave her $10. He said this occurred in the course of a wrestling match. This evidence is discussed in more detail below in the context of ground 4(b). 45 It is not suggested that any complaint, prior to the complainant's contact with the police in September 1997, was detailed as to the conduct the subject of the charges. Evidence that the complainant had told her mother that the appellant kept trying to "grope" her was not evidence of a complaint as to the assaults with which he was charged. The complaint to LN was that the appellant had sexually abused the complainant when she was living at home with her mother. Again, this was not a complaint clearly referable to any of the particular counts in the indictment. In the context of a trial in which there was evidence of other sexual conduct, not charged, it was necessary for the trial Judge to direct the jury that the evidence of complaint both to the mother and LN was not evidence of complaint as to the assaults charged. 46 I turn now to the adequacy of the further direction given by the trial Judge in response to the Crown Prosecutor's request that a Harvey direction be given. This court has considered the question of the nature of directions to be given where there has been significant delay in reporting alleged sexual offences on a number of occasions recently; Regina v DJK (1997) 96 A Crim R 443; Harvey; Gillard. In Regina v Johnston (unreported, NSWCCA, 31st July 1998) the Chief Justice drew together the authorities and set out seven propositions to be derived from them: "(1) Whenever it appears to a trial Judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial he or she should make such comments and give such warnings as will ensure that the trial is fair. (2) A comment of warning is required if it appears to the trial Judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt. (3) The need for, and content of, any comment will depend on the circumstances of the case. (4) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (5) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties. (6) Where the summing up identifies difficulties pursuant to (5), the trial Judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate. (7) In some cases a warning which uses terminology such as 'dangerous' or 'unsafe' to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (5)." 47 I consider that this case called for a comment or warning in accordance with the second proposition enunciated above. A jury might not appreciate from its own experience the effects of delay on the ability of the appellant to defend himself. The trial Judge did, in response to the Crown Prosecutor's invitation, give a warning. However, it was confined to general terms. It spoke of the possibility of the appellant having lost what was described as a "defence advantage" such as a "provable alibi". This did not provide much in the way of practical assistance to the jury in the light of the issues raised by the trial. 48 All the offences were said to have occurred at a time when the complainant and the appellant were living in the Muswellbrook home. It was the appellant's account that he had not lived with the complainant and her mother in those premises in the period between 14th July 1992 and Christmas 1993. Doubt would be cast on the complainant's account, at least as to counts 3 and 4, if the jury considered it reasonably possible that throughout the period particularised in respect of those counts the appellant had been living in rented accommodation elsewhere. 49 When first spoken to by police the appellant recalled that he had separated from his wife for a time. He put it as an interval longer than six weeks, perhaps four months. He said that during the period of his separation from his wife he had visited her regularly. Later in the interview he qualified this assertion by saying that the contact with his wife had been occasional. In his evidence at trial it was his account that there had only been one occasion, in August 1993, when he had visited the Muswellbrook home. He led evidence from the complainant's sister, SS, which supported that account to some degree. Not surprisingly, in cross examination he was challenged as to the suggested inconsistency between answers given in the recorded interview and his evidence at trial. 50 After the lapse of five years there was room for debate about where the appellant had been living and the frequency of his visits to the family home. Had the matter been investigated shortly after the happening of the events one would have expected there to be little scope for controversy in this regard. If it be the fact that the appellant was living elsewhere throughout the relevant period it can hardly be doubted that he suffered some disadvantage in first seeking to prove that fact years after the event. The issue was a real one. The appellant tendered documents to support his assertion that he had leased residential premises in the Muswellbrook area in the period between August 1992 and December 1993. 51 This was a case which called for directions (in accordance with proposition (5) above) in which the issue of delay and the disadvantage to the appellant potentially occasioned thereby were linked to the evidence. A direction as to the care with which the jury should scrutinise the prosecution case such as that contemplated by proposition (6) was also appropriate. 52 The complainant's account was uncorroborated. The evidence of complaint may have assumed considerable significance in the mind of the jury. There is an issue as to whether, having regard to the provisions of the Evidence Act, the evidence was admissible. It having been admitted the directions given by the trial Judge as to the use the jury might make of it were plainly inadequate in a number of respects. I would propose that leave be given under r.4 in respect of both grounds 1 & 2. I consider they have been made good. A number of other grounds were advanced and it is appropriate to deal with them before determining what should be the order of the Court.

Ground 3 - His Honour erred (a) in admitting questions and answers 203, 207, 208, 209 and 210 of the appellant's ERISP into evidence; (b) in failing to give the jury any direction about that evidence 53 In the course of his interview with police the appellant was asked: "Q. Mr Stewart, can you give me any reason why (ZG) would make these complaints about you? A. Why? Because she knows I don't like her. She knows, she knows I haven't got any time for her whatsoever. I have always called her a smartarse, bitch, because that's the way she comes across to the average person and I classified myself as an average person. I am sure if you scouted around you could find a few other people who'd agree with you." (Q & A 203) 54 It appears that there were a number of objections taken to material in the ERISP. The terms of the objections are not recorded. The trial Judge's reasons for the rulings he made with respect to these objections were delivered on 23rd June 1998. From a reading of those reasons it is clear that question 203 and its answer were the subject of objection as was question and answer 208. It is not clear that questions and answers 207, 209 and 210 were the subject of objection. However, those questions and answers all flow from question 203. In the proceedings before us objection was taken to the admission of the whole of this material. 55 The question as to whether the appellant knew of any motive for the complainant to lie together with his musings as to why she might make the allegations against him that she did was not relevant to any issue in the trial; Palmer v The Queen (1998) 193 CLR 1; (1998) 72 ALJR 254 per Brennan CJ, Gaudron & Gummow JJ para 8 p.258. The answers to questions 207-210 were likewise not relevant. 56 His Honour in deciding to admit questions and answers 203 and 208 observed that he could see nothing wrong with giving a suspect the opportunity to say during the investigation what might have motivated a complainant to make false allegations. There is nothing wrong with the question being asked by the investigating police, however, this does not provide a basis for its admission at the trial. I consider that his Honour erred in the exercise of his discretion in allowing this material into evidence.

Ground 4 - His Honour erred in (a) failing to sum up the evidence at all; (b) failing to relate the evidence to the counts in the indictment; (c) failing to put the defence case 57 The trial Judge took the course of not summarising any of the evidence in the course of his charge to the jury. Nor did he summarise the submissions made on behalf of the Crown or the appellant or relate the directions of law which he gave to the issues raised by the evidence. 58 The trial was a short one. Evidence was taken over three days. At the conclusion of the evidence his Honour invited the jury to give careful attention to the addresses of counsel. He had earlier signalled his intention to both counsel not to summarise the evidence. This course was consented to by both counsel. Provision is made in s.405AA Crimes Act for a trial Judge to dispense with a summary of the evidence. That provision does not permit the trial Judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It does not relieve the trial Judge of the obligation to sum up the respective cases made by the Crown and the accused; Regina v Condon (1995) 83 A Crim R 335 at 347; Regina v Zorad (1990) 19 NSWLR 91. 59 This ground has been touched on in dealing with ground 2 as to the adequacy of the directions relating to complaint. It also needs to be considered in association with the issue raised by Ground 4(b). It is convenient to turn to that now.

Ground 4(b) - His Honour erred in failing to direct the jury about the use they might make of the sexual conduct alleged by the complainant other than that charged 60 Objection was taken to a number of questions and answers in the ERISP in which the appellant admitted that he had on an occasion grabbed the complainant on the breast. The material the subject of objection was contained in questions and answers 92, 148-150, 167, 190, 211-224. His Honour dealt briefly with this matter in the course of his reasons delivered on 23rd June 1998. In the body of his reasons he referred only to question and answer 167. It appears clear, and the Crown accepts, that his Honour's reasons for admitting the whole of this material the subject of objection are as stated in relation to question and answer 167. As to this matter his Honour said this: "Question 167 and the answer to it may well be seen, indeed if I were a juror, I would may probably myself see it as corroborative of some of the testimony of the complainant in relation to money. … 167 and its answer are capable of being probative and corroborating. Some of the remarks of the complainant relating to money and the touching on the body in a more general way, not necessarily and indeed not relatable in fact to any specific complaint." 61 The account given by the appellant in the course of the questions and answers objected to on this topic was that he had been wrestling with the complainant on an occasion when he had grabbed her on the breast. This was done "half purposely and half not purposely" (answer 90). He said he had ended up giving the complainant $10 because the complainant said, "that will cost you $10" and he felt guilty about it (answer 190). 62 The complainant denied the happening of the incident described by the appellant in these answers in the recorded interview. 63 It was the complainant's account that following the school uniform incident she had seen the appellant in the loungeroom of the premises and told him that she was going to tell her mother what he had done to her. He offered her $50 not to tell and she swore at him. She did not take the money. 64 The trial Judge appears to have considered that the appellant's admission to grabbing the complainant in the region of her breast on an occasion while wrestling might amount to corroboration in respect of one or more of the charges with which he was indicted. From his reasons it appears that the payment of the sum of $10 was significant in arriving at that view. From this it might be thought his Honour had in mind that the incident may provide some corroboration in relation to the fourth count. No ground has been taken that his Honour erred in admitting this material. 65 In the course of the summing up his Honour gave no direction as to the use the jury might make of the evidence of sexual acts other than those charged. The complainant had also given evidence (without objection) that the appellant had "groped" her by grabbing her breasts and touching her on the vagina. He had also offered her money for sexual favours. It is not clear as to the basis on which either the appellant's admissions as to touching the complainant on the breast or the complainant's account of being "groped" was admitted. Again, no reference appears to have been made by the parties to the Evidence Act. Evidence of sexual contacts, not the subject of counts in the indictment, is sometimes led to show the nature of the relationship between the complainant and the accused and to place the incidents charged in a true context; Regina v Beserick (1993) 30 NSWLR 510; Regina v Wickham (unreported, NSWCCA, 17 December 1991); Regina v Fraser (unreported, NSWCCA, 10 August 1998). Evidence admitted for this purpose does not have to meet the requirements of Part 3.6 of the Act (tendency and coincidence); R v Harvey (unreported, NSWCCA, 11 December 1996) at 5-6. Alternatively, or additionally, the evidence might have been admitted to show the appellant's sexual passion for the complainant. Evidence admitted for this purpose is tendency evidence; Regina v AH (1997) 42 NSWLR 702 per Ireland J at 708-9. 66 Tendency evidence adduced by the prosecution may not be used against an accused unless its probative value substantially outweighs any prejudicial effect it may have on him or her; s.101(2) Evidence Act. 67 As noted, no ground is taken in this Court that his Honour erred in admitting this evidence. It is evidence of a highly prejudicial nature and its probative value might be thought to have been relatively slight. Once admitted it was necessary for the trial Judge to give directions as to the use that the jury might make of it. This, in turn, called for a consideration of the basis of its admission by reference to the Evidence Act. If the whole of it, or any portion of it, were led as evidence of relationship alone it would be necessary to direct the jury that it was not available to be used by them as tendency evidence in the sense that because the appellant had a sexual passion for the complainant he committed the offences charged; s.95. See also AH at 708-9. 68 Where evidence of other sexual acts is led, either to show the nature of the relationship or as tendency evidence, this court has emphasised that the observations of Hunt CJ at CL in Beserick at 516 remain apposite; Regina v Greenham (unreported, NSWCCA, 8th March 1999); Fraser. In Beserick, Hunt CJ at CL said: "An explanation should invariably be given to the jury as soon as the first of that evidence is given and, if necessary, again in the summing up as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged." 69 It was necessary for the trial Judge to direct the jury that the evidence of the appellant's admission to grabbing the complainant's breast on an occasion, together with the complainant's evidence of him groping her and touching both her breasts and her vagina, might not be used by them as a substitute for proof beyond reasonable doubt as to the elements of the offence charged against him. No application for such directions was made by counsel for the appellant at the trial. However, it is a matter of such fundamental importance that leave under r.4 should be granted.

Ground 5 - The verdicts are unreasonable and cannot be supported by the evidence 70 Ms Burgess submitted that there were a number of unsatisfactory features to the Crown case and that on a review of the whole of the evidence, notwithstanding the advantage that the jury had in seeing and hearing the witnesses, this Court would conclude that acting reasonably the jury ought to have had a reasonable doubt; M v The Queen (1994) 181 CLR 487. Ms Burgess advanced the following criticisms of the Crown case:

(1) The complainant's evidence was uncorroborated save to the extent the evidence of the appellant's admission as to squeezing the complainant's breast half purposely and giving her $10 was capable of providing corroboration.

(2) Her evidence concerning the dates on which the incidents had occurred was demonstrably wrong.

(3) Although she alleged she had suffered physical injuries on two occasions she had not shown these to anyone nor sought attention for them. In particular, though she saw her sister, SS, shortly after the loungeroom incident she was unable to offer any explanation for the failure to show her the injuries or tell her what had happened, save to say that she was upset.

(4) The inconsistencies in relation to evidence of complaint noted earlier. In this regard emphasis is placed on the complainant's account that she had not told her mother what was happening at the time, nor all the details of it, because her mother was ill. At least two of the assaults had occurred well before the mother first became ill in June 1993.

(5) The mother did not support the complainant in relation to a number of important aspects of her account. On the mother's version the appellant was not tipsy on the night of the house-warming party. He did not have access to the Ford Meteor in the period between 12th July 1992 and Christmas 1993. The complainant said a lock was placed on her bedroom door when she was in Year 10 yet the mother stated it had been placed there prior to July 1992 and was damaged by the appellant during the argument on the occasion when the police visited the premises.

(6) It was the complainant's account that the appellant and her mother had been separated for a period of six weeks and that the appellant had continued to visit the house during that period. The complainant was not able to recall the precise dates of incidents but on her version they extended over a period of time and the appellant, her mother and she were all living at the Muswellbrook home over that period of time save for a period of six weeks when the appellant moved out of the premises. This was in stark contrast to the evidence of the appellant, supported by the mother and, to a lesser degree by SS, that the appellant had not lived in the premises between 12th July 1992 and Christmas 1993 and that he had only visited the home on one occasion in that period.

(7) The appellant had mounted a positive case as to his lengthy separation from his wife in the relevant period. In particular he produced documentary evidence to establish that he had a lease on premises in Bridge Street, Muswellbrook from 27th August 1992 to 28th January 1993 and a lease on other premises from 4th April to December 1993.

(8) The mother's evidence that she became sick with rheumatoid arthritis in June 1993 was supported by evidence from her daughter, SS. SS had stayed at the Muswellbrook home for about four weeks some time shortly after June 1993. In that period she had only seen the appellant visit the home on one occasion. This was consistent with his account. Significantly, given the evidence of the separation taking place on 12th July 1992, supported as it was by evidence that police had attended following a domestic dispute and that the mother had thereafter obtained a restraining order against her husband, SS's evidence tended to show that eleven or twelve months later, on her observation, the two continued to be living separately.

(9) The complainant denied that the appellant had engaged in wrestling with herself and other members of the family in a game known as "The Best of Three". SS gave evidence that the appellant did play this wrestling game with her, both her sisters and her brother. The mother gave evidence supporting this contention.

(10) If the evidence of each of the witnesses, except the complainant, were accepted, it would appear that the only opportunity for the offences to have occurred was a date between the house-warming party, placed by the mother as at the end of the first week of July, and 12th July 1992. This would accord with the complainant's initial account in evidence-in-chief that all incidents occurred in 1992 when she was in Year 9 prior to the separation of her mother and the appellant. She said it was after the fourth incident that her mother and the appellant had separated for six weeks.

(11) The complainant said one reason she did not tell her mother about the fourth (school uniform) incident or show her the bite marks on her breast was because her mother was upset over the separation from the appellant. There was evidence to place the separation as taking place on 12th July 1992. The complainant, while unable to put a date to it, agreed that this was the occasion when police were called to the premises following which the appellant moved out of home. The complainant, when further questioned by the Crown Prosecutor as to the timing of the incidents the subject of counts 3 and 4, stated that they had occurred when she was in Year 10 at school, that being in 1993. This could not sit with her account that the separation occurred after the school uniform incident, it being the separation which followed the police being called to the premises. The evidence in that regard was of only one occasion when the police attended in answer to a domestic dispute. On the complainant's account there had only been one separation between her mother and the appellant during the time when she lived with them. 71 I do not consider the circumstances that the complainant's account was uncorroborated, that she failed to complain of the subject incidents promptly or to show the bruises or other marks on her body, or that there was evidence capable of contradicting her, are such individually or in combination as to lead to a conclusion that the verdict of the jury was unreasonable or cannot be supported by the evidence. The jury had the advantage of seeing the witnesses. Notwithstanding the case made by the appellant to suggest that he was not residing at (or regularly visiting) the Muswellbrook home after 14th July 1992, I consider that it would be open to a jury (properly instructed as to the impact of delay on the appellant's ability to meet the case brought against him) to reject the appellant's evidence as to lack of opportunity and to accept the complainant's evidence as proving the offences beyond reasonable doubt. 72 In addition to the matters set out above which were relied on in attacking the verdicts on all counts, Ms Burgess addressed submissions limited to counts 3 and 4 arising out of the time limited by the indictment. In her evidence-in-chief the complainant first described the timing of count 3 (the loungeroom incident) in the following series of questions and answers (T21): "Q. And this is 1992, so you're still in year 9 is that right?

Q. At the time of the McDonalds incident. Now after that incident did these sorts of things continue?

A. Because I sometimes ended up on the ground when I was trying to get away from him.

Q. Any particular places on the ground that you can remember being during these wrestles?

A. I can remember clearly once being in the loungeroom.

A. He grabbed me off the lounge when I was watching a video.

Q. Well you told us the McDonalds incident was after you turned 15?

Q. And before Christmas 1992, remember telling us that? A moment ago you said you were still in Year 9?

Q. Are you able, when you talk about this incident in the loungeroom, are you able to say whether it was at a time when you were at school or on vacation?

Q. Are you able to say what year school you were in?

A. Think I was in Year 9 still." 73 A little further on in the course of her examination-in-chief the Crown Prosecutor sought to identify the timing of the last two incidents with greater particularity (T30): "Q. Now this incident when you were bitten on the breast, the school uniform incident if I could call it that, you said it was a couple of days after the incident on the loungeroom floor, is that right?

Q. Are you able now to put a time or a month or part of a year?

A. Can't at the moment." 74 The Crown Prosecutor returned to the issue of the timing of the last two incidents again (T31): "Q. Well now again if I can ask you to think back, you told us about the McDonalds incident occurring before Christmas 1992 right, and then we have incidents in the loungeroom on the floor and the school uniform incident?

Q. And now that you think about it, can you put a year to those?

Q. Well you said they were only two days apart, so I take it they were both -

A. Yes." 75 In cross-examination the complainant adhered to the account that the loungeroom and school uniform incidents occurred when she was in Year 10 in 1993. 76 It is unclear how the complainant was able to place the happening of counts 3 and 4 in 1993. She did not refer to any event in 1993 which prompted her recall. As appears from the extracts of the evidence set out above, she initially placed these two assaults in 1992 while she was in Year 9 at school. The only event to which the complainant made reference which permitted an attempt to date these two incidents (other than the generalised assertion that they occurred when she was in Year 10 at school) was the evidence that after the school uniform incident her mother and the appellant separated. It will be recalled that the complainant's evidence was that the school uniform incident took place two days after the loungeroom incident. Her evidence-in-chief, after describing the school uniform incident, was in these terms (T28): "Q. Did you show your Mum what he'd done to you?

Q. Now the next morning did you say anything to her?

Q. How long did it take for the marks on your breast to go away?

A. Because her and Ray separated and she was upset."

77 It was the complainant's evidence that she had lived with her mother and the appellant from prior to the move into the Muswellbrook home in early 1992 up until Christmas 1993. In this time she described only one occasion when her mother and stepfather separated. She said the appellant was absent from the family home for a period of six weeks following that separation although he visited the home on occasions during that time. The mother and the appellant both gave evidence of a separation which commenced on 14th July 1992. That was the occasion when the police were called following a domestic argument and the mother subsequently obtained a court order restraining the appellant from returning to the home. That order was in evidence. It provided support for the assertion that the separation occurred on 14th July 1992. The complainant's evidence was consistent with the separation occurring on or about that date in July 1992. She agreed it followed an incident when police were called to the home. 78 Counts 3 and 4 were amended during the course of the trial to enlarge the period of time in which the Crown contended that the offences had occurred. At all times the Crown alleged that the earliest date upon which these assaults occurred was1st January 1993. As amended the indictment pleaded the commission of these two offences between that date and 31st December 1993. There was cogent evidence to place the date of separation as 14th July 1992. 79 The general rule is that a date specified in an indictment is not a material element to be proved; Regina v Dossi (1918) 13 Cr App R 158 at 159-60. Forensic issues at the trial such as alibi or lack of opportunity may operate to make time vital; R v Macdonald (1995) 84 A Crim R 508; R v Pfitzner (1976) 15 SASR 171; The King v Dean [1932] NZLR 753. The facts in Macdonald bear some similarity to the instant matter. In that case the appellant's stepdaughter alleged that she had been interfered with on occasions which were particularised in the indictment as occurring in late 1991. The appellant called evidence to suggest that he was not residing in the family home during that period. The trial judge directed the jury that the dates in the indictment were not essential. The South Australian Court of Criminal Appeal, applying Pfitzner, upheld an appeal against conviction. The Court found that the appellant had established what was tantamount to an alibi with respect to the first two counts in the indictment and for the trial judge to instruct the jury that time did not matter was to deny him the existence of a defence. Both Pfitzner and Macdonald were referred to with approval by this Court in Regina v VHP (unreported, NSWCCA, 7th July 1997). 80 In this case the trial judge directed the jury with respect to count 4 that it was necessary for the Crown to prove that the assault occurred within the dates limited by the indictment (SU p.18). He did not give a similar direction with respect to count 3. It is not clear whether his Honour intended to draw a distinction between the two counts in terms of the materiality of time. It is difficult to see a distinction in this respect and the failure to give such a direction may well have been an oversight. 81 In the way this trial was conducted the appellant understood that the case made against him was that the assaults charged in counts 3 and 4 occurred sometime during 1993. He led evidence tending to show that he had not lived in the Muswellbrook home from 14th July 1992 until the end of 1993. This amounted to a defence that throughout the period particularised by the Crown there had not been the opportunity for the offences to have occurred. In these circumstances I consider the trial judge was right to direct the jury, as he did with respect to count 4, that the Crown were bound to prove the assault occurred within the dates specified in the indictment. 82 A review of the evidence persuades me that the jury ought to have entertained a doubt that the Crown had proved the happening of the assaults charged in counts 3 and 4 on a date after 14th July 1992. In this sense I am of the view that the convictions with respect to these two counts are unreasonable and cannot be supported by the evidence. 83 This conclusion makes it unnecessary to deal with a further issue relating to counts 3 and 4 raised by Ms Burgess in the course of oral argument. Both counts pleaded, as a matter of aggravation, that the complainant was under the age of 16 years at the date of the assault. The complainant turned 16 years on 29th June 1993. The complainant's evidence did not confine the happening of those incidents to a date prior to her birthday. 84 In the light of the combined effect of the errors identified in grounds 1-4(b), I am of the view that the trial miscarried and, accordingly, I would propose that the appeal be allowed and that the appellants' convictions be quashed. In respect of counts 3 and 4 I propose that verdicts of acquittal be entered. I do not consider that the verdicts returned with respect to counts 1 and 2 were unreasonable or unsupported by the evidence. They are allegations of serious criminal conduct. This is particularly so with respect to count 2. In the event that the appellant were convicted of the latter offence it is to be expected that any sentence of imprisonment would likely exceed the length of time he has already spent in custody by a significant amount. I consider that the appropriate exercise of the discretion vested in this Court under s.8(1) of the Criminal Appeal Act 1912 would be to order a new trial on counts 1 and 2.

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