REGINA v. WALTON [1999] NSWCCA 452

1 GREG JAMES, J: This appeal is brought from the appellant's conviction in the District Court of New South Wales on one count of indecent assault of a girl under the age of 16 years. This offence is provided for under s.61M(1) of the Crimes Act 1900 and is punishable by a maximum penalty of seven years imprisonment. The appellant was in respect of that conviction placed on a recognizance for three years with a supervision component. 2 The appellant had gone to trial on two counts of indecent assault upon the same complainant. The jury acquitted him of one count. 3 The first count, that of which the appellant was convicted, related to an occasion on which the complainant asserted the appellant had fondled and kissed her breasts after having, with her consent, squeezed her pimples. 4 The second count related to an alleged touching of the complainant's vagina when she was sharing a bed with the appellant and his daughter whilst on holidays. 5 Three grounds of appeal are asserted:- "1. That his Honour erred in admitting evidence of complaint to Ms. Amanda Klein; and 2. That his Honour erred in his directions concerning the evidence of the appellant's daughter." 6 A further ground was added at the hearing by amendment:- "3. The address to the jury by the learned Crown Prosecutor gave rise to a miscarriage of justice." 7 On the first ground, the complainant, in chief, gave evidence of the events and also that "a long time after I found out what happened to Amanda" she told her "how he touched my boobs". She said that she had told Amanda Klein that he had touched her breasts but could not remember telling her about the incident in the bed although she referred to an incident she had mentioned to Ms. Klein about the appellant walking in on her and his daughter in the shower. At the close of evidence in chief, his Honour, at the Crown's invitation, gave a direction in general terms that the conversation was led to show consistency of the complainant's conduct with her evidence. 8 In cross-examination, it was put to her that the events central to her account of the matters giving rise to the charges had not occurred. She rejected that assertion as she did the assertion of various other events said to have occurred at or about the same times. She did accept that immediately following the relevant occasion she had the opportunity to speak to her grandmother and aunt and that the conversation with Ms. Klein was in September, hence about four to five months after the events. 9 Ms. Klein gave evidence that on 4 September she had been told by the complainant that whilst she was sharing the appellant's bed, he started feeling her breasts and between her legs. On another occasion she said the complainant referred to the appellant walking in on her in the shower. 10 No objection is noted as having been taken to the admissibility of the complaint evidence, nor any application by the Crown for leave to adduce it. 11 The trial pre-dated the decision of the High Court in Graham v. The Queen (1998) 157 ALR 404. 12 In the summing up, the jury were again directed in general terms that the complaint was admitted to assist them consider the consistency of the complainant's conduct and "to answer any argument that the absence of complaint would suggest that the offence did not take place". 13 That direction was given in the context of his Honour directing the jury as to the necessity to be satisfied of the events and the elements of the offences on the evidence of the complainant, notwithstanding the sworn denial of the appellant and the corroboration of his account by his daughter. His Honour said:- "Do you accept the complainant's evidence? Are you satisfied what she has told you occurred over the Easter period in 1996? Or do you reject what she says?" 14 He went on:- "Now in this case the (sic), you also heard evidence from Linda that in about September 1996 she spoke to her girlfriend or a school friend Amanda Klein. That evidence was led by the Crown as evidence of complaint. It was not led to support or corroborate what the complainant said but it was led to establish consistency of conduct on her part between what she complained of and her evidence before you. Evidence of complaint was admitted in those circumstances to assist you in deciding whether the complainant's conduct was consistent with she (sic) says happened over Easter 1996 and to answer any argument that the absence of complaint would suggest that the offence did not take place. Here the evidence is, from Amanda Klein, and the complainant, that the conversation which the Crown relies upon as evidence of complaint, took place, I think, on 4 September or early in September 1996, and does show such consistency of conduct, even though the complainant is not sure whether she mentioned the bed incident on which the Crown relies in this case. The Crown says that she certainly did mention the incident about the fondling of the breasts, and she cannot remember whether she mentioned to Amanda Klein the other, what happened in the bed. The Crown says that when you look at what she said to Amanda Klein and what you hears Amanda Klein say, while (there is) difference in some small detail (it) does constitute consistency of conduct, that (is) her version of events is, that time is consistent with the version of events that she described to you in the witness box. The accused, on the other hand, contends that that delay is, of itself, is inconsistent with what she now alleges took place and it particularly is inconsistent when you look at what she told Amanda Klein about the incidents, and when you compare what she told with her evidence given in these proceedings. Well those are matters for you to determine in your role as judges of the facts in this case. Why the complainant did not say anything before September might be another question that exercises your mind. Well no evidence was led which will help you come to an answer to that question. We did hear evidence about Linda's mother going to be taken to hospital but it seems to me to be too vague as to what. We know that her mother and father were separated from what her father told you in evidence. There may be of (sic) good reason Linda said nothing until September. The question for you to determine is whether, in this case, the complaint, the alleged complaint and the circumstance in which was it (sic) made is consistent with her evidence given in these proceedings. Even if it is not that does not resolve the real issue for your determination, and that is, whether you can accept Linda as a reliable witness in regard to the evidence that she has. (Given) The Crown contends that you can, the accused clearly joins issue with that contention and says you cannot." (Words in parentheses added) 15 At the conclusion of the summing up, the submission was put on behalf of the appellant that failure to complain at the earliest reasonable opportunity could operate to reduce credibility and that a direction to that effect should be given. It was opposed by the Crown Prosecutor and reference was made to s.405B of the Crimes Act and the recency of the complaint. He referred his Honour to Regina v. Crofts (1996) 186 CLR 427. He sought a direction that there may be good reasons for delay in or refraining from complaining. His Honour rejected the Crown submission because the Crown had not elicited any evidence which might provide any basis for the direction he sought. His Honour referred to the matter of complaint when the events were fresh in the memory but received no relevant assistance on that matter and subsequently re-directed the jury that delay in complaint is a matter that reflects on credibility. No specific direction dealt with absence of complaint. 16 Notwithstanding the lack of objection, there has been in this court since Graham a consistent line of authority that where, as here, before Graham was decided, the Crown has led complaint and it is not shown to be admissible under the principles in Graham nor has leave been sought under s.108(3) of the Evidence Act 1995, an appeal would generally be successful. In Regina v. Gillard[1999] NSWCCA 21; Regina v. Dwyer [1999] NSWCCA 47; Regina v. RNS [1999] NSWCCA 122; Regina v. Whitmore [1999] NSWCCA 247; Regina v. DWH [1999] NSWCCA 255 and the cases cited in them the issues are discussed. 17 It is submitted by the Crown that the evidence of complaint here was such as might only have had an effect on the jury on the count to which Ms. Klein's evidence was apparently relevant and of which the appellant was acquitted but that submission disregards the complaint evidence from the complainant and the specific directions on her evidence of complaint I have set out. Notwithstanding Ms. Klein did not support the complainant's evidence in this respect, it cannot be said that the jury must have disregarded it. 18 No express direction was given that the complaint was or was not evidence of the facts but it was clearly left to the jury, insofar as it was not inconsistent with the complainant's account in evidence, as bolstering the acceptability of her evidence of the commission of the offence. It is not clear to me an application for leave to lead it for that purpose would in all the circumstances necessarily have succeeded. The cross-examination did not expressly put the matters referred to in s.108(3). Indeed, the challenge merely took the form of suggesting the events had not occurred, foreshadowing to the witness in fairness, the appellant's denials. I refer to the question that raises in Whitmore (supra) at para.38. Here, I do not accept that the evidence would inevitably have been admitted nor do I consider that it can properly be said that it made no real difference in the result. 19 I would uphold this ground of appeal. 20 Turning to the second and third grounds of appeal, according to the complainant's account of the two episodes which gave rise to the charges and of the shower incident, Jamie, the daughter of the appellant was present on each occasion. When she was in bed with the appellant, the daughter, she said, was in bed with them but on the other side of the appellant. The daughter was said by her to be in the shower with her when the appellant walked in and had the conversation to which she referred. The complainant asserted that in relation to the events referred to in the first count, she was present in the kitchen with the daughter when the appellant asked her if she had pimples on her back and sought that he look at them. She asserted that in the daughter's presence he lifted up her shirt over her head, undid her bra, squeezed the pimples on her back, asked if she had pimples on her breast, requested a look and started feeling her breasts. She described how he felt her breasts and kissed both of them, saying, "Don't worry I do this to Janie all the time". Janie was present at the time. She says that he then did the same to the daughter as he had done to her. 21 The appellant, in his record of interview, had denied squeezing the complainant's pimples, but in his evidence at trial admitted that he had squeezed the pimples whilst at Gosford. He contended that the complainant had undone her own bra, leaving her breasts in the cups of the bra while the appellant squeezed the pimples on her back. He had asked her whether she would like her front done. She said "yes", turned around and laid her bra across her legs while he did her upper chest area and her face. He said that at no time did he touch her breasts or kiss them. According to his account, Jane was present in the kitchen. He denied touching the breasts of either girl but admitted squeezing the pimples on both. He was strenuously cross-examined by the Crown Prosecutor and by leave after the completion of the cross-examination, when matters had been raised by the appellant's counsel objecting to further questioning by the trial judge, the Crown Prosecutor elicited the following evidence:- "Q. Mr. Walton, I suggest to you that you changed your story in relation to the squeezing of the pimples incident in the kitchen of your son's home because you learned that your daughter Jane made a statement to the detectives on the day that you were interviewed and she told them that you had squeezed pimples on the complainant? A. No sir that's not right. Q. You knew that your daughter Jane made a statement indicating that there had been an incident where you had squeezed pimples on [the complainant] and pimples on herself in the kitchen of your son's home at Gosford didn't you? A. Well actually to be quite truthful really I've never seen my daughter or my wife's statement. Q. You have discussed the matter with your daughter Jane haven't you? A. Only to tell her that when she got on the stand to tell the truth and that's all. Q. You discussed the trip with your daughter Jane after Detective Keen spoke with you didn't you? A. No. There was nothing to discuss. Q. Didn't discuss the incident in the shower with your daughter Jane? A. No. I haven't discussed the case with Jane or my wife and as I said I've never seen their statements. I've only ever told them to get up here and to do exactly what I'm doing and that's tell the truth. Q. You I suggest Mr. Walton have not told the truth? A. Well I'm sorry sir but I have told the truth." 22 At the commencement of the trial, the Crown Prosecutor raised with his Honour the anticipation that the appellant's daughter would be called in the Crown case and that "she would say that such an incident occurred although it wasn't entirely in a way in which the complainant says it occurred", with reference to the events concerned in the first count. 23 His Honour's attention was drawn to s.18 of the Evidence Act 1995 and a statement by the appellant's daughter was handed up. There was discussion as to whether the witness might be brought into court to identify the statement. The witness was called, confirmed that she had made a statement concerning the events that had occurred on the Central Coast at Easter of 1996 and that she was willing to give evidence although she was aware that she could object to doing so. The Crown posed no questions to her, although invited to cross-examine. His Honour delivered a short judgment in which he detailed what had occurred and his satisfaction that the provisions of s.18 had been complied with. He referred to the statement that she had given as possibly being of assistance both for the accused and to the Crown in that, whilst it might support the Crown case in some respects, it also supported the defence case in other respects. 24 There was no suggestion of her evidence being the subject of any application by the Crown on the basis that it might be unfavourable or inconsistent with the statement. Nor was there any indication by the Crown Prosecutor of any other basis on which the witness should have been treated differently to any other. When, however, the witness was called for the Crown, the prosecutor asked her, her name, address and occupation and nothing more. 25 The account she gave in cross-examination was materially inconsistent with the complainant's as to the sleeping arrangements underlying the events giving rise to the second count. The version she gave of the pimple squeezing incident at Gosford was directly confirmatory of the account given later in evidence by the appellant and contradictory of that given by the complainant. Similarly, her evidence confirmed the version of the shower incident her father later gave. 26 His Honour referred to the defence counsel's address, which emphasised to the jury that the defence case was supported by the evidence of the daughter. He summarised the submissions:- "… that even allowing for the fact that a daughter might tend to support her father in a situation such as this, there was no evidence that what she was doing but was to tell the truth, the whole truth and nothing but the truth, and that she was telling you of events that did occur and that you will be satisfied from her evidence that no such events as the complainant described did take place. … Of course the reverse would apply, while there is no evidence from the accused to prove anything if you are satisfied what he said, what he has told you and what his daughter Jane has told you then that would be the end of the matter because that would clearly indicate that you reject what the complainant says and your only result that would follow is that you must return a verdict of not guilty." 27 His Honour had already referred to the evidence from Detective Senior Constable Keen that the appellant had consented to the police interviewing and speaking to his daughter and that they had done so. His Honour had summarised the evidence of Jane Walton and in his summing up dealt with the Crown submissions concerning it as follows:- "The Crown then called Jane Walton. The Crown did not ask Jane Walton any questions at all, and the Crown has, in effect, asked you to disregard the evidence of Jane Walton because of her, she is the daughter of the accused. The Crown (sic) that she was called in on the aspect of fairness in that the Crown had a statement from her, that she purported to be an eye witness of an event that occurred in the kitchen of her brother Darryl on the Central Coast but that it did not add anything to the evidence the Crown relies upon in these proceedings and he produced that so that the defence could cross-examine her." 28 At no stage did the statement itself go into evidence. The oblique reference to the contents as not adding anything to the Crown's case was not a sufficient or permissible explanation of the Crown's conduct. 29 Prior to the summing up, and following addresses, defence counsel complained that the address of the learned Crown Prosecutor had become over-emotional and that he had said to the jury that he hadn't questioned the daughter "because he knew she wasn't telling the truth". This was denied by the Crown Prosecutor. The transcript records "discussion ensued". 30 In its submissions here, the Crown has conceded that the Crown Prosecutor impugned the credit of the witness in circumstances where he had not put the matter about which criticism was to be made to the witness. That submission understates what the Crown Prosecutor put to the jury. 31 We have been provided with a transcript of the Crown Prosecutor's address. He said:- "The Crown didn't question Jane Walton, bluntly, members of the jury because the Crown says Jane Walton hasn't told you the truth. She's no part of the crime case. She's given a version of the events you'd deduce and accept from the evidence of her mother which put the accused in a position where he had to resile from what he previously said and then say 'Oh yes well look something did happen in the kitchen. There was a squeezing of the pimple incident'." 32 He had referred to the complainant as a "kid who was surrounded by the Waltons". He said:- "That's what the Crown submits to you members of the jury will find to be the facts. Jane Walton's got a somewhat different version of the events, namely, 'mine were done first. I exposed myself by taking my shirt and I took my bra off'. Where was the need to take her bra off if this was an act of picking pimples. It's a version of the event given to support a cock-and-bull story made up by a father you might think members of the jury." 33 He went on:- "What's the accused say about that version? The accused says he's never discussed the evidence that his daughter's given and he's never discussed the evidence that his wife has given with them. Looked at alone at first blush you might've thought that was possible but having heard from his wife you'll reject that won't you. His wife says she was present when the accused was discussing the evidence with Jane, that the shower incident was mentioned and so on. Both of them can't be right can they members of the jury. Either the accused is right about that or his wife's right about it. Piece it all together members of the jury, you'll have no hesitation in coming to the conclusion that the accused is lying when he says he didn't discuss statements. But wasn't it word perfect? Jane says and the accused says that the accused approached the bathroom door and said something. Jane is able to hear, have herself heard from the inside and says 'Open the door'. Consistent with all his inventions it's always someone else wants him to do it. He's never asked himself to touch pimples. They've always asked him. He's never opened the bathroom door unless he was invited in, so the accused can't make him heard from outside but he's a big man with a big voice if he wanted to use but it was Jane who called out and made herself plain to him 'Come in'. Having been invited in, because he's not a sexual assaulter, he's an invitee, he comes in, there's the discussion about pies and he goes so he says. Have a look at the picture that would be before you members of the jury, that's to say the diagram that the accused drew. In the way in which he's got the relationship to the swinging door entry of that bathroom and the shower curtain it was unnecessary for him to look around the door at all. If hearing was a problem over the flowing water he merely had to open the door a foot or so and look to the private end of the bathroom and say 'What do you want for tea?'. But he's got this almost precisely the same story as Jane has. The modest Jane who strips the clothes from the top part of her body including her brassiere and has no difficulty in exposing all to her father while the pimples are being picked, is somewhat modest when she's in the shower and she takes great care only to pop her head out from the shower and speaks with her father. They'd had a chat about it and got it, got their heads together have they not members of the jury. It was unnecessary when you look at the diagram, the accused to put his head around the corner of the door at all, if hearing was the problem. The Crown submits to you members of the jury that the accused is lying and he's supported in that lie by his daughter who is helping him out." 34 Further he says:- "Well why did he change his story? On the one hand he says confusion, that he was confused, that he hadn't been into a police station. The Crown submits to you though members of the jury it's for this reason the evidence of Mrs. Walton is that her daughter Jane made a statement to the police in which she said that there was an incident in the kitchen in which the pimples on herself and the pimples of [the complainant] were squeezed. Faced with that half truth by his daughter the accused really had to change his story didn't he?" 35 He continued further:- "It's a story that the accused in his desperation has invented, supported by his daughter Jane who is in, you might think, an extremely embarrassing situation. I mean if Jane had told the truth that her father in demonstrating to the young - bear in mind [the complainant] is below the age of 16 years, Jane is above the age of 16 years, that's the significance in the charges before you might think. You might think Jane's sorely embarrassed by what her father did to her that day and to cover her embarrassment she's told a story which supports the story that her father invents." 36 The assertion that the appellant and his daughter had agreed to present joint lies in evidence was apparently based on his denials of discussing the events with his daughter and evidence obtained from the appellant's wife that she had discussed Jane's statement with her husband and had overheard the two referring to certain of the incidents. The content of what was said was not sought by the Prosecutor in his cross-examination. 37 The address powerfully built on the assertion that the jury could find support for the complainant's account in the asserted lies of the appellant and sought to nullify the daughter's account. It followed that the attack on the credibility of the daughter was essential to the line of advocacy employed. That attack was not merely casual but integral to the way in which the Crown submitted its case to the jury. 38 In the absence of an opportunity being afforded to rebut the attack, this address was completely indefensible. See the discussion of the necessity for fairness to witnesses by Hunt, J. in Allied Pastoral Holdings Pty. Limited v. Commissioner of Taxation (1983) 1 NSWLR 1. Regard should also be had to the New South Wales Barristers' Rules:- "35. A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister's advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:- (a) are reasonably justified by the material already available to the barrister; (b) are appropriate for the robust advancement of the client's case on its merits." 39 Rule 41:- "A barrister must not allege criminality, fraud or other serious misconduct against any person in the course of the barrister's address on the evidence unless the barrister believes on reasonable grounds that the evidence in the case provides a proper basis for the allegation." 40 The Director of Public Prosecutions New South Wales Prosecution Policy and Guidelines (Rev. March 1998) which apply specifically to prosecutors incorporate the following Bar Rules:- "63. A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case. 64. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused." 41 The Rules and Guidelines inform the more general ambit of the prosecutor's duty of fairness I referred to in my judgment in Kneebone [1999] NSWCCA 279 to which I shall refer later. 42 It is submitted by the Crown, that it must have been clear that the Crown contended that the version given in evidence by the daughter was incorrect. But the address went well beyond this. The Crown Prosecutor asserted the witness was party to an agreement to give false evidence and on that submission was based an argument that because of that, guilt could be inferred, yet the prosecutor stood back from allowing the correctness of the contention to be subjected to the acid test of putting it to the witness. Here, on appeal, it was not sought to defend that address. 43 A number of complaints were made in the submissions on these grounds of appeal. Specifically, it is raised that his Honour erred in his directions concerning the witness. In essence, it is put that his Honour's directions allowed the evidence of the witness to be left before the jury without the Crown's submission that it should be disregarded or discounted being the subject of an appropriate direction. It is submitted that notwithstanding there was no application for re-direction, the error was fundamental and that insofar as leave is required, it should be granted. 44 It seems clear enough, however, that the way in which the Crown sought to deal with the evidence in addresses had been the subject of sufficient complaint. In any event, I consider that this address and the course of conduct regarding this witness was so unfair and the directions so inadequate to deal with that unfairness that, in my view, the trial was fundamentally flawed. The Crown's submissions that his Honour adequately directed the jury on the witness' evidence must be rejected. 45 The trial judge did not even direct the jury that the Crown's submission that her evidence should be disregarded because she was the daughter of the accused was a submission to which they should not accede. 46 In Regina v. Kneebone [1999] NSWCCA 279, I made examination of the duties of a Crown Prosecutor and in particular, in the context of failing to call or lead evidence which did not accord with the "game plan" of the Crown Prosecutor although it came from an eye witness whom proper enquiry had not shown to be unreliable. In that case, the court had the benefit of the submissions on behalf of the Crown by the Crown Advocate and those submissions conceded the necessity that there be a proper basis for a determination by a Crown Prosecutor of unreliability such as not to call the witness. In that decision, I specifically made reference to the responsibility of the Crown Prosecutor to ensure that the Crown case is properly presented and presented with fairness to the accused and the court. I noted that the Prosecutor does not perform that duty by seeking to avoid having placed before the court evidence which he or she is not entitled to regard as unreliable and yet which ill accords with a theory of the accused's guilt. Similarly, it does not accord with that responsibility of the Crown Prosecutor to attack a witness in addresses after simply tendering the witness for cross-examination without affording an opportunity to the witness to deal with the matter of the attack. 47 In Kneebone (supra), Smart, AJ. had referred to the passage in The Queen v. Apostilides (1983-84) 154 CLR 563 at 576 in which the practice of calling a witness to permit cross-examination by the accused is referred to. In that passage it is suggested that the practice might be resorted to where a Prosecutor does not wish to lead evidence from a person named on the indictment who is able to give material evidence. 48 There is nothing in Kneebone (supra) or in the cases cited in the various judgments of Smart, AJ. and myself to justify what was done here to attack the witness without a proper basis. Neither that passage in Apostilides (supra) nor what was said by Smart, AJ. is to be understood as affording any imprimatur for a Crown Prosecutor to disregard evidence not, on proper enquiry, unreliable or to take a course designed to avoid putting an appropriate challenge to adverse evidence when it is elicited. Resort to that practice is not supported by the views of the majority comprising the Chief Justice and myself in Kneebone (supra). 49 The propositions enunciated by Smart, AJ. in that case should not be understood otherwise than in the context of the general obligation imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he or she performs. 50 I am of the view that there was a serious irregularity in the conduct of the trial and that his Honour's directions were entirely inadequate to deal with it. His Honour did not administer the appropriate antidote. 51 I would uphold the remaining grounds of appeal also. 52 The appropriate order to be made in these proceedings should be considered from the starting point that the course adopted by the Crown both in relation to the tendering of the evidence of complaint and in relation to the evidence of the daughter has given rise to serious defects in the trial. 53 The jury has acquitted on one count and found guilt on the other in circumstances which I find very difficult satisfactorily to explain. The acquittal certainly does indicate a degree of lack of satisfaction with the evidence of the complainant even where evidence of her complaint from an independent source has been admitted. The complainant's evidence itself was the subject of some degree of intrinsic unlikelihood and some inconsistencies. Having regard to the decision in The Queen v. James [1999] NSWCCA 191 and the principles in Jones v. The Queen (1997) 149 ALR 598, the verdict on this count may well have been unable to be supported but considering all the circumstances to which I have referred and in the light of the principles in King v. The Queen (1986) 161 CLR 423 and in Parker v. The Queen [1997] HCA 13; (1997) 186 CLR 494, particularly because the Crown Prosecutor's conduct at trial lay at the foot of the miscarriage established by the second and third grounds of appeal, I am of the view that no new trial should be ordered. 54 I would propose that the appeal be upheld; the conviction and sentence quashed and a verdict and judgment of acquittal entered. 55 BEAZLEY, JA: I agree 56 NEWMAN, J: I agree.

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