Regina v RTB

Court of Criminal Appeal (NSW)|2002-04-05|Before: Spigelman CJ, Wood CJ, Kirby J

CITATION : Regina v RTB [2002] NSWCCA 104 FILE NUMBER(S) : CCA 60497/99; 60033/00 HEARING DATE(S) : 08/02/02 JUDGMENT DATE : 5 April 2002

PARTIES : Regina (Resp) RTB (Appel) JUDGMENT OF : Spigelman CJ; Wood CJ at CL; Kirby J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0120 97/61/0120 LOWER COURT JUDICIAL Knight DCJ OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60497/99 60033/00

SPIGELMAN CJ WOOD CJ at CL KIRBY J

Friday 5 April 2002 REGINA v RTB Judgment 1 THE COURT: The appellant ("RTB") was charged with a number of sexual offences under the Crimes Act, 1900. The charges alleged either sexual intercourse (s66A) or acts of indecency (s61O(2)) with a person under the age of ten years. They arose out of allegations made by two sisters. The complainants will each be given a pseudonym to preserve their anonymity. The older girl will be referred to as "Jennifer", and the younger as "Elizabeth". At the time of the alleged offences, Jennifer was eight years old and Elizabeth five years. The appellant was, at that time, sixteen years old. 2 An order was made that there should be separate trials in respect of each complainant. Those relating to the older girl, Jennifer, proceeded first before Knight DCJ and a jury. There were three counts. RTB was convicted on one count. 3 The second trial took place some months later. It was also conducted by Knight DCJ with another jury. There were two counts. RTB was convicted on both. 4 Appeals against conviction have been lodged in respect of both trials. We will describe the first trial, and deal with the grounds of appeal in respect of that trial. We will then deal with the second trial.

The first trial 5 Jennifer was one of a number of children from a family living in Dubbo. The appellant also lived in Dubbo. He was involved in a local sporting team. The coach of that team was Jennifer's father. Through that association the appellant became well known to the family. Indeed, the two families became friends. There was regular contact. From time to time, RTB was asked to baby sit Jennifer, her brothers and sisters, whilst the parents were shopping or otherwise occupied. In March 1997 Jennifer complained to her father that RTB had made her "suck his private". A confrontation took place between the two families. RTB denied the accusation. Jennifer was then taken to the police, where she made a statement. She was also examined by a local paediatrician on 8 April 1997. As a consequence, RTB was charged with three offences under s66A of the Crimes Act. The charges were (omitting formal parts) as follows: · That between 1 August 1996 and 25 December 1996 at Dubbo he did have sexual intercourse with (Jennifer) a person then under the age of 10 years.

· Further that between 1 December 1996 and 25 December 1996 at Dubbo he did have sexual intercourse with (Jennifer) a person then under the age of 10 years. · Further that between 1 January 1997 and 12 January at Dubbo he did have sexual intercourse with (Jennifer) a person then under the age of 10 years. 6 The Crown opened to the jury, identifying the particular acts of intercourse alleged. In respect of the first count, the Crown relied upon an act of anal intercourse. The second involved an allegation that, after the break up of school and before Christmas 1996, RTB inserted his finger into Jennifer's vagina. The third count involved an incident which allegedly took place shortly before Jennifer's ninth birthday on 12 January 1997. It was said that RTB asked Jennifer to "suck his private". This was the complaint which the father said had been related to him in March 1997. 7 The complainant gave evidence by video link. She said, relevant to the first count, that RTB had followed her into her parents' bedroom. He removed her clothing. He then "put his private in my bottom". She also said this: (T22) "Q. When he put his private in your bottom did you feel anything? A. No. Q. Did it cause you anything when that happened? A. No. Q. How long did that go on for? A. Long time." 8 Jennifer said that she rearranged her clothing and left the room. 9 The complainant next gave evidence concerning the incident shortly before her ninth birthday. Again, she was in her parents' bedroom when RTB entered. Again he removed her shorts. At the same time, according to her testimony, he loosened his trousers. She said that "he made me suck his private", saying, "suck my private until I come". 10 The complainant also said that whilst this was taking place her six year old sister entered the room. RTB immediately stopped and pushed her behind the door. Her sister then left the room. 11 No evidence was given by the complainant in support of the second count (which involved digital penetration of the vagina). His Honour ultimately directed a verdict on that count. 12 Dr Geraghty was called in the Crown case. Her evidence was first taken on the voir dire, where counsel for RTB made known his objections to certain statements in her report. His Honour made a number of rulings. Dr Geraghty then gave evidence before the jury. That evidence is the subject of specific grounds of appeal (Grounds 2 and 3), which are considered below. 13 The appellant also gave evidence. He denied each charge. He acknowledged that, from time to time, he babysat for the family. Often he would take his girlfriend to their home. The allegations were made in March 1997 after it had been announced that his family was moving to another town. Jennifer's parents were angry about his family's departure. They offered RTB a room in their house. The allegations had been fabricated by Jennifer, possibly at the suggestion of her parents. 14 The jury, as mentioned, returned a verdict of not guilty on the first count, but guilty on the third count.

The Notice of Appeal 15 The Notice of Appeal in respect of the first trial identified a number of grounds. Only some of the grounds were pressed when the appeal was argued. The formulation of the grounds in the Notice of Appeal is discursive. Paraphrasing those grounds which were pressed, they were as follows: 2. That his Honour was in error in allowing Dr Geraghty to give the history provided by the complainant during the course of the medical examination. 3. That his Honour ought to have directed the jury as to the relevance of the history provided to the doctor. 4. That his Honour ought to have directed the jury as to the inference arising as a consequence of the failure of the Crown to call the six year old sister. 6. That his Honour was in error in suggesting a possible explanation for certain evidence given by the complainant in support of count 1. 7. That his Honour was in error in commenting upon the significance of the verdict which had been directed in respect of count 2. 8. That the verdicts were inconsistent. The jury ought to have had a reasonable doubt in respect of count 3. 16 Each ground will be dealt with in turn.

Grounds 2 and 3 17 Grounds 2 and 3 of Appeal from the first trial relate to the admission of the complainant's history as given to Dr Geraghty and his Honour's failure to direct the jury as to the use to which that history can be put. One issue that arose in this regard was whether or not this Court should reconsider its earlier decision in R v Welsh (1996) 98 A Crim R 364. The Court indicated that it would need to sit a bench of five if it decided to do so. The parties indicated that they would consent to a course in which the additional judges could sit, even though they had not heard the oral submissions presented to the Court when it sat in Dubbo. It has not proven to be necessary to take that course. 18 Dr Jennifer Geraghty was called to give evidence. Her attention was directed to the medical history given to her by a complainant (T76 lines 11-55): "Q And did that history include penile penetration of the anus? A It did. Q And oral genital contact? A Yes. Q Did she state that that occurred over a period of about six months and that the last incident was then about three months previously? A Yeah. Q As a result of having taken that history did you examine the anal and peri anal region of the patient? A I did. Q And what were your findings when you made that specific examination? A The examination findings of the anal and perineal area were normal. Q Having been given the history of penal penetration of the patient's anus are you able to express an opinion as to whether what you saw was consistent with the complaint of the child that she'd been anally penetrated by a penis? A The normal examination of the anus is consistent with the child's history that she had been penetrated in the anus. HIS HONOUR Q I'm sorry was it consistent or inconsistent? A It was consistent yeah. CROWN PROSECUTOR Q Is that so doctor that you would not necessarily have found injury on the child if her anus had been penetrated by the penis of a male person? A That's correct." 19 On a voir dire, counsel for the Respondent objected to the doctor giving evidence based on her statement relying on s137 of the Evidence Act. His Honour upheld the objection in some respects. The Crown did not adduce evidence of some matters contained in the doctor's statement as served. Counsel for the Appellant did object to the passage of the evidence indicating that incidents of sexual assault had occurred over a period of six months. His Honour allowed this evidence. 20 Counsel for the Appellant on the appeal noted that the evidence eventually led from the doctor referred to two incidents, one being penile penetration of the anus and the other being oral genital contact. He submitted that the actual opinion evidence adduced from the doctor related only to anal penetration. There was no opinion evidence about the other aspect of the history given by the complainant to the doctor. 21 The evidence of the doctor that the complainant had told her that an unspecified number of sexual assaults had occurred over a period of six months did broaden the range of relevant conduct beyond the offences with which the Appellant was charged. Count 1 was said to have occurred in December 1996 and Count 3 in January 1997. 22 In the summing-up his Honour expressly mentioned that the complainant had given the doctor a history of sexual assault which occurred over a period of about six months. He then summarised the effect of the doctor's evidence as follows (at 33): "… her examination was consistent with what [the complainant] said having occurred, but it was equally consistent with it not having occurred. In other words the doctor's evidence is neutral but it is important from this point of view because it shows that the evidence of [the complainant] could be accurate. In other words the doctor's evidence if you accept it does not in any way give the lie to what [the complainant] is saying. And you could imagine if the Crown did not call that evidence, then complaint would be able to be made well the doctor's evidence may have said that it could not have happened. So in fact the reason why the Crown called the evidence was to enable the doctor to say well look the assault could have taken place or it could not have taken place in the way that it was described." 23 In our opinion, part of the evidence complained of was not admissible because it was not relevant. The opinion evidence that was adduced was directed only to the issue of anal penetration. The only part of the medical history which was related to the opinion being expressed by the doctor was the assertion that there had been penile penetration of the anus. The evidence adduced went beyond that to encompass "oral genital contact". It concluded with an unfocused statement that "that [sic] occurred over a period of about six months" with "the last incident … about three months previously". This evidence was not the basis of the opinion. It was irrelevant for that purpose and should not have been admitted. 24 The doctor said that there was no physical indicator of such an occurrence. The import of her evidence was that there would not necessarily be any such indicator. No doubt evidence of this character will often be appropriate in order to ensure that a jury does not speculate about the absence of medical evidence. Where (as here) the evidence has limited materiality, consideration should be given to alternative ways in which the issue might be handled. In R v Dann (Court of Criminal Appeal, 19.5.2000) Heydon JA (with whom Spigelman CJ and James J agreed) offered the following suggestions in respect of medical evidence which was essentially "neutral": "16. A solution in particular cases might be for Crown and defence to agree that the evidence not be called and to agree to join in a request that the trial judge direct the jury that the jury should attribute no significance to the absence of the evidence because it is immaterial. 17. Another technique which might be employed where the Crown proposes to call inconclusive medical evidence is for the trial judge to secure from the defence an undertaking not to comment on the absence of the evidence if the Crown decides not to call the evidence or it is rejected. That admittedly would still leave open whatever risk of jury speculation there is." 24 Where the doctor is called, it is undesirable, however, for such evidence to be given in a form which appears to bolster the credit of the complainant, rather than in a form that the absence of a physical indicator is neutral. (In the present case, the doctor said her observations were "consistent" with the complainant's evidence and this became, in the trial judge's directions, an observation that the complainant's evidence "could be accurate") 25 Further, the Crown prosecutor's opening question to Dr Geraghty ("And did that history include penile penetration of the anus?") was leading. It obscured an important issue. The charge against the accused (Count 1) was that he had sexual intercourse. Penetration was required. The complainant had given evidence that "he put his private in my bottom". She added that she did not feel anything when he did so. The words of the complainant to Dr Geraghty were, therefore, important. The doctor should simply have been asked to state the relevant history, as given to her. Ground 2 is made out. 26 Moving to Ground 3, part of the history, as set out above, should not have been admitted. The issue is, therefore, what, if anything, should have been said to the jury in respect of that part of the history (relating to anal intercourse) which was relevant? There is an antecedent question, arising under s136 of the Evidence Act 1995. When admitting that evidence, should the Court, in its discretion, have limited the use to be made of the evidence because it was unfairly prejudicial to the accused? If its use was to be limited, then that limitation must obviously be explained to the jury. 27 Here the context was important. It was an alleged sexual assault upon the complainant, a young girl. There was delay in making the complaint. The Crown case depended upon the uncorroborated account of the complainant. Dr Geraghty was not a treating doctor. In such circumstances, the recital by the doctor of the history given by the complainant will often carry the risk of unfair prejudice, where the statements are admitted as evidence of the truth of the facts asserted. It may therefore be appropriate to limit the use of such evidence, so that it is received simply as the basis upon which the doctor expressed his or her opinion. In the context of this appeal, in view of the conclusion we have reached in respect of other grounds, it is unnecessary for us to comment further.

Ground 4 - Failure to call sister 28 The complainant's account suggested that her six year old sister came into the room during the incident. The sister, however, was not called in the Crown case. The appellant asserted that his Honour was in error in not directing the jury as to the significance of the Crown having failed to call the sister, or explain her absence. 29 The submission is, of course, based upon the rule in Jones v Dunkel (1959) 101 CLR 298. In Ghazal v GIO (1992) 29 NSWLR 336, Kirby P made the following comment upon that rule: (at 343) "The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. … The rule has no application if the failure to call the witness is satisfactorily explained or readily understood." (emphasis in original) 30 Here, the Crown, presumably took the view that the absence of the six year old child could be readily understood (even in the context of a prosecution based upon the evidence of a nine year old complainant). Counsel then appearing for the appellant arguably took the same view. He did not seek the direction which the appellant now suggests his Honour was obliged to give. The Crown, in its submissions, suggests, in these circumstances, Rule 4 of the Criminal Appeal Rules should apply. 31 His Honour was not obliged to give the direction suggested. Had his Honour been asked to give such a direction, he may or may not have done so. There having been no application to the trial Judge, it is appropriate to apply Rule 4 and refuse leave to appeal upon this ground.

Grounds 6 and 7 - Contents of the Summing-Up 32 Grounds 6 and 7 each refer to aspects of the summing-up that are of significance for the assessment by the jury of the credibility of the complainant. It is convenient to consider these two grounds together for reasons which will presently appear. 33 Ground 6 is concerned with the comments by the trial judge in the course of his summing-up to the jury with respect to the verdict by direction on what had been Count 2 in the original indictment. His Honour told the jury that he had concluded that, as a matter of law, the evidence given with respect to Count 2 could not establish the essential ingredients of the offence. He reminded the jury that the Crown Prosecutor had opened the second count as being a case of insertion of a finger into the vagina of the complainant. His Honour told the jury that there had been no evidence of any such incident (transcript at 105-106). 34 In the course of his summing-up, his Honour set out the Crown case and then turned to the case for the Appellant. He noted that counsel for the then accused had focused in his submissions on a number of alleged inconsistencies in the Appellant's evidence. The first of these related to the verdict by direction. His Honour told the jury (at 41-42): "The first one was that when this trial started out there was a second count in the indictment which you remember the Crown opened to you as finger in the vagina and as Mr Segal said quite correctly, people do not get these allegations out of the air, the Crown when he opened to you was obviously doing so off information that had been supplied to him and therefore you are entitled to infer that at some time there had been an allegation of a finger in the vagina by [the complainant] and when she gives evidence she does not mention it. So he says that that is the first inconsistency. Of course that may be explicable on the basis that she simply when she was giving her evidence forgot. There is a series of events you can forget things, on the other hand even if she did you may well think that it would cause you to have some worries about her evidence." 35 Before counsel addressed the jury, counsel for the Appellant indicated to his Honour his intention to refer to this as an example of inconsistency. The Crown Prosecutor, in the end, did not object to this submission being made. There was no indication that his Honour intended to incorporate in his summing-up any hypothesis explaining the failure to give this evidence. 36 After his Honour gave the above direction, counsel for the Appellant drew his Honour's attention to the emphasis his Honour had given to the explanation favourable to the Crown case, i.e. that the complainant had forgotten to give the evidence. He referred to his Honour's direction that the absence of the evidence would cause the jury "to have some worries about her evidence". Counsel asked his Honour to redirect the jury to the effect that "Maybe the evidence wasn't given because it didn't happen not because she forgot but because it didn't happen". 37 His Honour did redirect the jury at the end of his summing-up in the following terms: "I have told you that in relation to the second count which the Crown opened to you which was finger in the vagina and of which there has been a verdict by direction you are entitled to draw the inference that [the complainant] at some stage had complained about a finger in the vagina and yet when she gave her evidence she made no mention of it. There are two ways I think that you can look at that. First of all you could say the evidence was not given in court because it did not happen, it was not true or alternatively you can say well perhaps the evidence was not given simply because she made a mistake in her evidence and forgot to tell her. Now they are the different ways of looking at it and they are matters for you to consider but I point out to you that you can look at it in those two different ways." 38 Ground 6 is concerned with another matter which Counsel for the Appellant at trial put to the jury as an indication of inconsistency which it ought take into account when assessing the credibility of the complainant. This related to Count 1 of the indictment upon which the jury brought back a verdict of not guilty. 39 In the course of her evidence in chief the complainant said that on a particular occasion the Respondent "put his private in my bottom" (T21 lines 34 and 57). The following evidence was being given at T22 lines 29-55: "Q When he put his private in your bottom did you feel anything? A No. Q Did it cause you anything when that happened? A No. Q How long did that go on for? A Long time. Q Did you say anything to [ the accused ] when that was happening? A No. Q Did he say anything to you? A No. Q Did he stop doing that? A Yes. … Q When he stopped doing what he was doing to you … what happened next? A Nothing happened." 40 During the course of her cross-examination the complainant's attention was directed to the interview she had given to the police and the following evidence was given at T46 lines 8-25: "Q … do you remember being asked how many times has [the accused ] put his private in your bottom? A Yes. Q And do you remember answering 'Lots of times'? A Yes. Q Now earlier today the other gentlemen or perhaps I should say the gentlemen who was asking you questions A Yes. Q asked you a question concerning the word 'heaps of times' and you said that heaps of times referred to the incidents that you've given evidence of in this court case? A Yes. Q And you say that's the truth do you? A Yes." 41 The reference to the terminology "heaps of times" is a reference to the following passage in the course of the complainant's examination in chief T32 lines 15-25: "Q When you gave your evidence yesterday you said that [the accused] had done things to you heaps of times. A Yes. Q When you say 'heaps of times' do you mean the three times that you've told us about … A Yes. Q Or do you mean other times as well as those times? A The three times that I told you." 42 We can see no reference of the character which the Crown Prosecutor was asserted to have been made on the previous day. Presumably a transcript was not available. The words "heaps of times" were used in answer to a quite different question at T15 lines 1-4: "Q When you were eight did he visit your house a few times or many times are you able to say how often he called at your home. A Heaps of times." 43 Nevertheless, it appears in error, the Crown Prosecutor returned the next day to the turn of phrase which was subsequently picked up and used in the cross-examination of the complainant by counsel for the Appellant. 44 After counsel addressed, the Crown Prosecutor made the following submission to the trial judge: "Your Honour Mr Segal addressed the area of evidence he pointed up to the jury that the complainant child said that the accused had penetrated her anally lots of times and pointed out there was an inconsistency on the statement against what she gave in evidence. I suppose it's capable of the construction that penetration of her in a given incident, the incident which she gave evidence of was repeated penetration and in the excerpt of the statement Mr Segal relied upon it is not necessarily inconsistent with the version that she's given on her oath." (T161 line 55-T162 line 6) 45 His Honour pointed out that no such suggestion was put to the witness that her evidence may have referred to repeated penetration on the one occasion. His Honour said: "Well no the question is ambiguous, I must admit it hadn't, until Mr Crown mentioned it to me now I hadn't even contemplated the possibility that that's what she was talking about, then when I read I think it is possible." (T162 lines 30-34) 46 His Honour indicated that even though the matter had not been put to her, it was a possible interpretation and he indicated that he intended to tell the jury that "it's simply a possibility". 47 In the course of the summing-up his Honour referred to the third of four inconsistencies on which Counsel for the Respondent had relied in the following terms (T42-43): "The third inconsistency that he points to is that [the complainant] was taken to the police on 13 March 1997 when she told Detective Edmondson that [the accused] had put his penis in her bottom lots of times. Now you remember that he put that to her when he was cross-examining and she said she did say that. And yet in her evidence she said that there were only three occasions when he sexually interfered with her at all and only one occasion when he put his penis in her bottom. And again Mr Segal says to you well look that is inconsistency, that would cause you to be concerned about her evidence." 48 Subsequently, when his Honour interrupted his summing-up, the Crown Prosecutor drew his Honour's attention to the fact that he had not directed the jury on this matter as he had intended. His Honour said that he had forgotten to do so. Counsel for the Appellant objected to any such direction on the additional basis that if it were made at the conclusion of the summing-up it could be given undue weight. 49 When the jury returned his Honour indicated to them that he would add some matters to his summing-up. He said that the jury "should not give these matters any more importance than anything else that I have said", noting the tendency that when things are mentioned out of context that they may be given greater importance than otherwise might be the case. He nevertheless proceeded to direct the jury in the following terms at T55: "… I think you took to the evidence of [the complainant] when she was cross-examined she agreed that she had told the police that [the Accused] - or she was asked the question 'How many times did [the Accused] put his private in your bottom?' and she said 'Lot's of times' and she agreed that that what she had said to the police. And I point out to you that it is possible to explain that in the sense of the penis going in and out on the one occasion, in other words the question and answer are ambiguous. Of course it could mean that it is just totally inconsistent when she says that he put his private in her bottom lots of times and in court she has only said it occurred once and sexual impropriety only occurred three times. But it is possible to explain that in a way on the basis of saying well 'How many times has [the Accused] put his private in your bottom?' Answer 'Lot's of times' meaning on the one occasion it went in and out lots of times." 50 This was the second last matter in his Honour's summing-up. The last was the passage already extracted above, concerning the verdict by a direction. Accordingly, the last two matters left to the jury were matters which tended to denigrate the Appellant's submissions concerning the credibility of the complainant. 51 The proceedings in this criminal trial were of a character which occurs frequently. By reason of the circumstances in which the alleged offences were said to have occurred, and by reason of the delay in the complaint, there was no independent evidence verifying or corroborating the complainant's version. Cases of this character have long posed special problems for the administration of criminal justice. There is a conflict between the public interest that perpetrators of such criminal offences are brought to justice notwithstanding the difficulties of proof, on the one hand, and the public interest that alleged offenders receive a fair trial, on the other hand. 52 Common law judges, with periodic statutory intervention, have long grappled with various issues arising in such a context, including the need for corroboration, the inferences available from a failure to complain, the effects of delay and the implications of a mixture of acquittals and convictions. All of these issues arise by reason of the ineluctable core of a fact finding task in cases of this character: Does the complainant's evidence satisfy the jury that the offences charged were committed beyond reasonable doubt? Frequently, as in this case, the alleged perpetrator gives evidence. Such are often referred to as "word against word" cases. That description, of itself, fails to reflect the proposition that a criminal accused does not have to prove anything. The issue is whether or not the complainant is to be believed to the criminal standard. 53 The jury which is required to determine this matter is entitled to draw on the full range of logic, instinct and experience that is pertinent for the assessment of the credibility of a particular witness. In particular, the jury, performing its constitutional functions as the trier of fact, is entitled to base its final judgment in this respect on impression. The ultimate judgment may not be possible to explain or justify in terms of the kind of logical argument in which lawyers indulge. 54 Jurors are not required to think like lawyers when they determine issues of credibility. It is regrettable that many directions which the courts have determined must be given to juries, as well as many issues to which juries are required by statute to attend, notably by the Evidence Act, are framed in terms that could only be devised by lawyers and which, in our opinion, are liable to distort a lay fact-finding process. Nevertheless, it remains desirable, particularly in a context where criminal proceedings turn entirely on the credibility of a single witness, that a trial judge does not constrain or direct the jury's thought processes, unless manifestly required to do so. In particular, a trial judge should refrain from giving the jury directions which suggests that they should think like lawyers. 55 In the present case, both of the issues that have arisen were of a character that could have been put by the Crown as a suggestion to the jury. In neither case was there any necessity for the trial judge to say anything to the jury. There was no suggestion of any unfairness to the Crown in the way the case was conducted. Nor was there any other reason for the trial judge to put an argument not advanced by counsel. (see e.g. R v Heuston (1995) 81 A Crim R 387 at 393). 56 With respect to the count that was withdrawn from the jury, counsel for the Appellant had indicated prior to making submissions that he proposed to refer to this as an example of inconsistency. It was a matter for the Crown whether it wished to direct the jury's attention to the possibility that the complainant had simply forgotten to give that evidence. There was no occasion which called for his Honour to direct the jury in that way. 57 The result was that one of the matters going to the issue of credibility was subject to the particular force of a direction from the judge in a manner unfavourable to the Appellant. 58 With respect to the explanation of the phrase "lots of times", this was plainly raised in cross-examination by counsel for the accused. No re-examination occurred to explain the sense in which the words were used. If the Crown wished to advance to the jury the possibility that "lots of times" may have been a reference to multiple acts of penetration on the one occasion - assuming that was open in the absence of re-examination - this was a matter that the Crown could have advanced by way of submissions. Nothing in the conduct of the case for the accused called for any balancing direction on the part of the trial judge in this regard. 59 In each of the two respects of which complaint is now made, the intervention of the trial judge urged upon the jury a particular mode of thought. His Honour suggested that there could have been an explanation for the deficiency in the complainant's evidence, of a character which was not of itself based on any evidence but which, to a legal mind, would appear to be in each case a logical possibility. Juries are not required to think like that. 60 The fact that each of these 'possibilities' was put to the jury by the trial judge, rather than by the Crown, may have directed that the jury's collective mind in assessing credibility in a particular way. Specifically, the thrust of the trial judge's directions, on each of the two occasions, was that, notwithstanding the appearance of inconsistency in each of the two respects, there was a possible explanation. Such matters of speculation, whilst perhaps appropriate for counsel, should not receive the added weight of the intervention of the judicial officer. In each respect the jury could have understood the trial judge to be suggesting that, because there may have been an explanation as a matter of logic, they should not take these matters into account in determining the credibility of the complainant. 61 In the event, in our opinion, the directions to the jury were, in a critical respect, lacking in the appropriate balance. In our opinion Grounds 6 and 7 should be upheld.

Acquittal or New Trial 62 With respect to the count on which he was acquitted the Appellant was sentenced to imprisonment for two years commencing on 20 May 1999 and expiring on 19 May 2002. The non-parole period of 18 months expired on 19 November 2000. The Appellant was released to parole and has been at liberty since that time. 63 If the Court were to order a new trial it would be limited to one of only three counts on which he originally stood trial. In any new trial the Appellant would be denied the forensic advantage that he acquired by being able to show elements of inconsistency in the complainant's evidence. 64 First, he would not by able to highlight the failure of the complainant to give evidence, with respect to Count 2 which led to the verdict by direction. Furthermore, as a practical matter, no cross-examination would be directed to the inconsistency between the police statement with respect to Count 1, on which he was acquitted, and the evidence adduced at the first trial. 65 Accordingly in any new trial the Appellant would be denied the ability to challenge the complainant's credibility in two respects on which he was able to rely in the first trial. 66 Finally, the Court must consider the probable transformation in the evidence of the complainant in any new trial. The events alleged in Count 3 were said to have occurred in January 1997 at a time when the complainant was not quite nine years old. She has subsequently been involved in a number of occasions in which she recited the events that allegedly occurred at that time. This included conversations with her parents, with the police and the giving of evidence in court. She would be called back to give evidence, if there were a new trial, as a fifteen or sixteen year old. The nature of the evidence she would give would, in our opinion, not have the same quality as at the previous trial, which occurred almost three years ago. 67 There is a very real risk that she would be unable to distinguish between her memory of the actual events and her memory of the subsequent occasions on which she recounted the events. She may well give her evidence with a greater degree of assuredness based on her increased age and a recollection of her earlier evidence and statements. It is quite likely that cross-examination would not be able to successfully challenge her evidence on any such basis. 68 By s6(2) of the Criminal Appeal Act 1912 this Court shall, if it allows an appeal, quash the conviction and direct a judgment and verdict of acquittal to be entered but must do so "subject to the special provisions of this Act". One of the special provisions is s8 which allows the Court to order a new trial if the Court considers that any miscarriage of justice that occurred "can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make". We are not of that view. We do not believe that the miscarriage of justice can be more adequately remedied by a new trial. In our opinion we should direct a verdict of acquittal.

Order: First Trial 69 The order of the Court will be:

That the conviction of the appellant in respect of Count 3 should be quashed, and the sentence set aside.

A verdict of acquittal in respect of Count 3 should be entered.

The Crown case in the second trial 70 There were two charges against RTB at the second trial, each expressed in the same terms, namely (omitting formal parts): For that between 17 January 1997 and 8 March 1997 at Dubbo he did commit an act of indecency with (Elizabeth), she being a person under the age of 10. 71 The complainant (Elizabeth) was born on 17 January 1992. At the time of each incident she was five years old. At the time of the trial she was seven. 72 Elizabeth gave evidence by video link. She said that RTB was minding her brothers and sisters whilst her parents were out. Both she and RTB were in her parents' bedroom. She left the bedroom to return cigarettes belonging to her mother obtained from the kitchen. She returned to the bedroom and, soon after, RTB pulled down his shorts. He exposed his penis. Elizabeth then said this: "He made me lick his private part." She said she did so, keeping her mouth closed, except for her tongue. 73 Shortly after, on the same day, there was a further incident giving rise to the second charge. It was described by Elizabeth in these words: "He made me play with his rude part with my right hand." 74 According to her evidence, RTB told her not to tell her mother or father. However, upon their return to the house, she said that she immediately did so. Her father gave evidence that, a day or two after RTB had minded the children, Elizabeth said that she had a secret. She then told him that RTB "made me lick his private". 75 Evidence was given by one of Elizabeth's older sisters. She was born in 1989. She was therefore three years older than Elizabeth. She gave evidence of an occasion when she saw RTB and Elizabeth together in her parents' bedroom. She said that she was able to see into the room because the door was open. In this respect her testimony differed from Elizabeth who said that it was closed. The older sister said that RTB was wearing jeans and they were down around his ankles. She described him as kneeling beside the bed with her sister on the bed. She said that she heard RTB say: "(Elizabeth) touch and play with my private." She said that she stood at the door for some minutes before returning to her brothers and sisters.

Prior consistent statement. 76 When Elizabeth was cross examined it was repeatedly suggested that she was making her evidence up. She was asked a number of times whether someone had told her to make it up. The cross examination, for instance, included the following: " Q. Has somebody told you to say these things about (RTB)? A. No. … Q. Has your Dad said to say things about (RTB)? A. No." 77 The Crown, in these circumstances, made an application under s108(3)(b) of the Evidence Act 1995 to call evidence in respect of a prior consistent statement of the complainant. Section 108(3)(b) is in these terms: "s108(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) … (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement." 78 The issue of whether leave should be given was debated with counsel. His Honour then gave leave. At the same time his Honour said that he would limit the use to which the evidence could be put under s136 of the Act. A police constable who took a statement from the complainant then read to the jury paras 12 to 84 of that statement. Immediately following that evidence his Honour gave the following direction to the jury: (T52) "The evidence that has just been given about the statement that (Elizabeth) made to the police officer, is admitted for a particular purpose and the purpose for which it is admitted is this. It is admitted in relation to the credit, that is whether you believe (Elizabeth). It's not admitted as proof of the truth of what she actually said in the statement. If you think about it for a moment, what a person complains about doesn't get better because they complain to 10 people." 79 His Honour added: (S/U 52-53) "But you'll recall that it was suggested to (Elizabeth) in cross examination that she had made all this up, and because that was suggested it is then open to the Crown to educe evidence of this statement that she'd made allegedly a few days after the events occurred. In order for you to assess whether she's telling the truth or not and that is the reason why that evidence was admitted and that is the way that you should take it into account."

The Notice of Appeal 80 Again the Notice of Appeal was discursive. The complaints made by the appellant, in substance, were as follows: · First, that leave under s108(3) of the Evidence Act should not have been given to call evidence of the prior consistent statement. · Secondly, that in giving leave, his Honour did not give consideration to s192(2) of the Act, and the issues which that section raises, whereas he was obliged to do so. · Thirdly, that even if it were appropriate to give leave, the evidence should not have been adduced in the form in which it was given. 81 Each of these issues will be dealt with in turn.

Leave under s108(3) 82 Under s108(3) there are a number of preconditions which must be met before the issue of leave arises. First, it must be suggested (either expressly or by implication) that the evidence is fabricated, reconstructed, or is the result of suggestion. 83 Secondly, the evidence in respect of which leave is sought, must be characterised as a "prior consistent statement". Issues may arise as to whether the prior statement travels beyond matters in respect of which there have been suggestions of fabrication, reconstruction or suggestion. 84 Here, there can be no doubt that both preconditions were met (as counsel for the appellant acknowledged). His Honour provided a judgment, when giving leave, which included the following: "There can be no doubt that it was suggested both expressly and by implication that the evidence given by (Elizabeth) was fabricated and reconstructed and was the result of suggestions. Mr Cooley as I understand the situation did not contend otherwise and certainly any reading of the transcript would indicate that he had in fact suggested that to (Elizabeth)." 85 The appellant suggested that the statement should not have been admitted because it was not spontaneous. It was made approximately one week after the alleged incident. However, the section does not require that the statement should be spontaneous; simply that it be prior and consistent. 86 The real complaint of the appellant was that his Honour did not, in terms, advert to s192(2) of the Evidence Act when considering whether leave should be given under s108(3). Section 192(2) is in these terms: "s192(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 87 That section has been the subject of comment by the High Court in Stanoevski v R 177 ALR 285 where Gaudron, Kirby and Callinan JJ said this: (at 294) "In addition to matters which may be relevant in a particular case, in all cases the court must take into account the matters prescribed by s192(2). It is clear here that the trial judge (probably because his attention does not seem to have been drawn to it) did not take into account all of those matters, some of which would inevitably have been relevant to the way in which his discretion ought to be exercised had he adverted to them." 88 The Court is not saying, of course, that it is necessary to refer to the section number. What is required, before leave is given, is that the issues relevant to the exercise of discretion, including those identified by s192(2), are considered. The terms of the judgment may make it obvious that such matters have been taken into account. Even where the judgment is silent, it may be apparent that a particular matter was taken into account, either because of the argument which preceded judgment, or because the matter is so obvious as to not require statement. 89 Where there is a failure to have regard to matters relevant to the giving of leave, including matters identified by s192, "a wrong decision" on a "question of law" will have been made (s6 Criminal Appeal Act 1912). The conviction, in those circumstances, cannot stand, unless the prosecution can establish that the conviction has not resulted in a miscarriage of justice (Stanoevski v R (supra) McHugh J at para 55; Hayne J at para 67; R v Esho [2001] NSWCCA 415 at paras 91-109). 90 Here, the admissibility of the complainant's statement to the police was debated at some length. His Honour provided a judgment which canvassed the issues. Each of the matters identified by s192(2) was, in our view, considered. First, although there is no express reference to the question of time (cf s192(2)(a)), his Honour was provided with a copy of the proposed evidence. The statement was short. It dealt with the same issues raised by the complainant's evidence. It did not give rise to collateral issues. It was obvious that time was not a material consideration. 91 Secondly, his Honour expressly referred to the issue of fairness. He recognised that an attack had been made upon the credibility of the complainant. The nature of the attack gave the prosecution the right to seek leave under s108(3)(b) to enhance her credibility. His Honour also considered the issue from the viewpoint of the accused. He referred to Papakosmas v The Queen (1999) 196 CLR 297 where Gleeson CJ and Hayne J dealt with the need, in some cases involving complaint evidence, to limit the use that can be made of that evidence. As mentioned, before admitting the evidence, his Honour determined that it was appropriate, under s136 of the Act, to direct the jury that the statement could only be used in assessing the credibility of Elizabeth (cf s192(2)(e)). 92 Thirdly, his Honour's judgment, when admitting the evidence, did not expressly deal with the importance of the evidence (cf s192(2)(c)). However, it is plain from the argument which preceded the judgment that the statement was regarded as important in assessing the credit of the complainant, it having been put to her that her evidence was fabricated or the result of suggestion. 93 Finally, in terms of the issues raised by s192(2)(d), his Honour was obviously aware of the nature of the proceedings, and that he was dealing with an issue of complaint in a sexual case. He said this: "It seems to me in this case it would be proper to give leave to the Crown to adduce the evidence of the prior statement, that is the prior consistent statement made to the police by (Elizabeth), for the purpose of re-establishing or buttressing the credit of (Elizabeth)." 94 His Honour added: "… it does seem to me having regard to the proximity between the alleged events and the date of the statement and the contents of the statement and the close similarity between those contents and the evidence that (Elizabeth) gave in Court that this is a proper case where leave should be given to adduce evidence of the prior consistent statement. And I grant such leave." 95 There was, in our view, no error in giving the prosecutor leave under s108(3). Accordingly, the issue of whether the prosecution can establish that there was no miscarriage of justice does not arise. 96 Was the form in which the evidence was given unacceptable? Again, the issue was discussed with counsel then appearing for the appellant. His Honour indicated, appropriately, that he believed it unfair to allow the Crown simply to tender the written statement. He thought the jury may attach too much weight to a written document. Rather, the evidence should be given by the police officer reading those parts of the statements which were relevant. In this context counsel for the appellant indicated his preference. He said this: (T49) "COOLEY: Your Honour perhaps if I can state at the outset what I would prefer to done is to just for the statement to be read it is in question and answer form and it is important to understand the context of the answers by looking at the questions that are posed in that statement. My recollection and I'm just going through it again now is that there's nothing in that statement your Honour that is extraneous to these proceedings if I can put it that way." 97 The statement was then examined by the Crown prosecutor and counsel for the appellant. Counsel for the appellant then said this: (T49) "COOLEY: Your Honour I have no objection if it's read from question 12 through to 84." 98 The evidence was then given by the police officer reading out paragraphs 12 to 84. We see no unfairness in that course. We do not believe it is open, on appeal, for the appellant to now complain that some other course should have been followed (Rule 4, Criminal Appeal Rules).

Order: Second Trial 99 The order in respect to the second trial is that the appeal should be dismissed.

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