Regina -v- White [1999] NSWCCA 336

COUNSEL : P M Strickland - Appellant C K Maxwell QC - Crown SOLICITORS : T A Murphy - Appellant C K Smith - Crown CATCHWORDS : Conviction for sexual offences against 3 complainants (2 complainants under 16 yrs; 1 complainant just 16 years). Charges tried jointly - evidence admitted under S 98 of the Evidence Act 1995. The coincidence rule - permissible use of evidence of "related events" - use of stupefying drugs and other similar facts. No need for further direction as to impermissible use of evidence where S 97 considerations do not arise in the trial. Sentence - additional term of less than S 5(2) statutory ratio - within judge's discretion for 64 year old offender. Crimes Act, 1900 - S409B ACTS CITED : Evidence Act, 1995 - Ss 97, 98; Sentencing Act, 1989 - S 5(2); Criminal Appeal Act, 1912 - S 6. R -v- AH (1997) 42 NSWLR 702 @ 708 CASES CITED: B -v- The Queen (1992) 175 CLR 599 @ 610 Graham -v- The Queen (1998) 72 ALR 1491 R -v- GDR (1994) 35 NSWLR 376 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence granted and appeal dismissed.

Friday, 29 October, 1999 REGINA -v- Maxwell John WHITE

1 WOOD J: I agree with the orders proposed by Ireland J for the reasons given by his Honour.

IN THE COURT OF CRIMINAL APPEAL

Friday, 29 October, 1999 REGINA -v- Maxwell John WHITE

2 IRELAND J: The appellant, Maxwell John White, stood trial on 29 January, 1998 at the Broken Hill District Court, before his Honour Judge Gibson QC and a jury of twelve, facing charges regarding eight separate offences against three different complainants. The trial judge directed that the trials of the appellant in relation to the three complainants be joined together. No complaint is made about that ruling. 3 Counts 1 to 6 in the indictment relate to the complainant JKN and are the following:-

(1) On or about 21 November 1996 at Wagga Wagga did unlawfully administer a stupefying drug with intent to enable himself to commit an indictable offence, to wit sexual intercourse with JKN, a girl under the age of sixteen years, namely thirteen years.

In the alternative, that on the same date and at the same place did unlawfully administer a stupefying drug with intent to enable himself to commit an indictable offence, to wit assault, and at the time of such assault, to commit an act of indecency upon JKN.

Both of these offences are contrary to S 38 of the Crimes Act , 1900 and carry a maximum penalty of 25 years penal servitude.

(2) On or about 20 November, 1996 at Wagga Wagga did incite JKN to commit an act of indecency with the appellant, JKN being a person under the age of sixteen years, namely, thirteen years. This offence is in breach of S 61N(1) of the Crimes Act and carries a maximum penalty of 2 years imprisonment.

(3) On or about 21 November, 1996 at Wagga Wagga, did assault JKN and at the time of such assault, did commit an act of indecency upon her, being a person under sixteen years, namely, thirteen years. This offence is in contravention of S61N(1) of the Crimes Act and carries a maximum penalty of 7 years imprisonment. Counts 4, 5 and 6 charge that on 21, 22 and 23 November, 1996 at Wagga Wagga, did incite JKN to commit an act of indecency with the appellant, being a person under the age of sixteen years, namely thirteen years. Each of these three offences being in contravention of S 61N(1) of the Crimes Act 1900, such offences carrying a maximum penalty of 2 years imprisonment.

(7) Between 1 September, 1995 and 30 September, 1995 at Broken Hill did have sexual intercourse with YEJ, without her consent, knowing she was not consenting and in circumstances of aggravation in that YEJ was under the age of sixteen years, namely between thirteen and fourteen years. This offence is in contravention of S 61J(1) of the Crimes Act and carries a maximum penalty of 20 years penal servitude.

In the alternative, that between the same dates and at the same place did have sexual intercourse with YEJ, a child then between the ages of ten and sixteen years, namely between thirteen and fourteen years. This offence is in contravention of S 66C of the Crimes Act and carries a maximum penalty of 8 years penal servitude.

(8) On or about 12 December, 1996 at Menindee did assault TMW and that at the time of such assault, did commit an act of indecency on TMW. This offence is in contravention of S 61L of the Crimes Act and carries a maximum penalty of 5 years imprisonment. 4 The appellant pleaded not guilty to each count and was tried before Judge Gibson QC and a jury of twelve. 5 On 13 March, 1998 the jury returned verdicts of guilty to counts 1, 2, 5, 6, 7 and 8 and verdicts of not guilty to counts 3 and 4. 6 On 12 May, 1998 the appellant was sentenced as follows:- 7 Count 1 - a fixed term of 4 years penal servitude to commence on 18 April, 1997 and to expire on 17 April, 2001. 8 Count 8 - a fixed term of 1 years imprisonment to commence on 18 April, 2001 and to expire on 17 April, 2002. 9 Count 7 - a minimum term of 5 years penal servitude to commence on 18 April, 2002 and to expire on 17 April, 2007 with an additional term of 2 years to commence on 18 April, 2007 and to expire on 17 April, 2009. 10 Counts 2, 5 and 6 - a fixed term of 14 months imprisonment to commence on 18 April, 1997 and expire on 17 June, 1998. 11 The accumulation of the sentences imposed aggregates to a minimum term of 10 years with an additional term of 2 years. 12 Judge Gibson found special circumstances to arise from the cumulative sentences and for no other reason. He expressed the view that whilst the additional term is less than the one-third "usually applied", it was nevertheless sufficient, due to the appellant's age and the fact that in Judge Gibson's view there was little chance of his rehabilitation. 13 Although the Notice of Appeal and the Grounds of Appeal, filed on behalf of the appellant, do not seek leave to appeal against the sentence imposed, counsel for the appellant in his written submissions addressed short argument to the departure from the statutory ratio provided by S 5(2) of the Sentencing Act, 1989 and no objection was taken by the Crown to the point being argued. 14 The facts relating to the offences against JKN occurred over a period of four days from 20 to 23 November, 1996. 15 The facts relating to count 7 occurred between 1 and 30 September, 1995 at Broken Hill and concern the complainant YEJ. 16 The eighth count relates to an offence against the complainant TMW and occurred on or about 12 December, 1996 at Menindee. 17 The complainant JKN gave evidence that during 1996 she had been disappearing from school and running away from home, during which time she stayed with friends. On one such occasion when staying with friends, she met the appellant. She next met the appellant on 4 November, 1996 outside the Broken Hill Local Court where she was required to attend to give undertakings in Care proceedings with her parents. On that occasion, the appellant had asked the complainant how old she was, and she told him that she was thirteen. He wrote his address on a small piece of paper and told her to contact him if she had any troubles or needed money. 18 Some time later, when JKN was once again staying at a friend's house, she wrote the appellant a letter asking him to send her some money. The appellant visited JKN at her friend's house on that occasion with his son, Maxie. JKN travelled with the appellant in his car to Menindee and during the trip the appellant suggested that she change her name. When they arrived at the appellant's property at Menindee, JKN was introduced to people there as "Ellie". 19 Next day the appellant, JKN and his son Maxie returned to Broken Hill in the appellant's motor car. On the way the complainant saw her mother, Mrs N, parked on the side of the road. Mrs N pulled their car over and demanded that the appellant let JKN out of the car. The appellant said that he was just giving the complainant a lift back to Broken Hill and told her mother to follow the car back to her house. During the drive, the appellant told JKN to make a run for it when they pulled up at her parents' house, telling her that he would pick her up around the corner. These events transpired. 20 Later that day, JKN, the appellant and his son, together with the son's girlfriend, drove to Wagga Wagga. 21 During the course of the journey, the appellant told JKN that there were only two double beds in the unit at the Juvenile Justice Centre, where they intended to stay, and that she would have to share one of those beds with him. JKN signed in using the name "Ellie Pittaway". Later that evening JKN made up a bed on the floor using doonas and pillows. The appellant said to her "Why don't you get in here with me?", indicating his bed, to which JKN responded "I will be more comfortable down here". This is the conduct complained of in relation to count 2. 22 The next day, the appellant obtained some tablets and some powder. JKN saw the tablets and powder, wrapped in tissue and foil, respectively in the appellant's possession. JKN had a conversation with the appellant's son, Maxie, speculating about what kind of drug the appellant had obtained. The appellant gave JKN a tablet and later offered her a drink. Before taking either of them, JKN asked the appellant what they would do to her and he replied "Nothing" and that the drink was an "upper". The drink tasted like gassy coke and JKN drank half of it. This is the conduct complained of in relation to count 1. 23 The next thing JKN recalled was waking up in her bed on the floor without any clothes on late the next morning. Her clothes were folded at the end of her bed. JKN saw the appellant wink at her and then nod at the clothes at the end of her bed. She put her clothes on whilst under the covers and then went to the bathroom. There JKN discovered that she had a little cut and a blister on the outside of her vagina. When she came out of the bathroom she asked the appellant "What happened last night?" to which he replied "You took your clothes off and then you wouldn't let me do anything". JKN gave evidence that she felt sick, miserable, dirty and as though she had smoked a lot of drugs. 24 That day the four of them moved from the Juvenile Justice Centre units to a caravan park in Wagga Wagga. The appellant's son Maxie and his girlfriend, Shannon, slept in the one double bed, whilst JKN slept on the bunk above the appellant. JKN gave evidence that that night she got up to go to the toilet block and when she returned the appellant said "Just get into bed with me, get in". JKN said "No" at which point the appellant got angry and said "Well if you're not going to do anything, well you can go back to Broken Hill". This is the conduct complained of in relation to count 5. 25 JKN gave evidence that they then packed up and began the drive back to Broken Hill. On the way the appellant said to JKN "You'll get everything you want if you'd just sleep with me". JKN said, "What would you want with a thirteen year old?" to which the appellant said "If you would, I'd turn around and go back to Wagga now". He offered to pay an acquaintance money for rent and also to give $50 to JKN to spend on clothes and personal requisites and said that he would buy her a whole new wardrobe. JKN refused. This is the conduct complained of in relation to count 6. 26 The appellant stopped at Buronga Roadhouse and tried to find a bus for JKN to catch back to Broken Hill. He introduced her to a truck driver, with whom she stayed in his truck that night. The next morning JKN tried to call her mother, but received no answer and so called a neighbour. Later Mrs N telephoned JKN at the roadhouse and told her that she was coming to pick her up. JKN was picked up by her parents and driven to Menindee and then to Broken Hill, where she was taken to the Broken Hill Hospital. She gave evidence that shortly thereafter she was admitted to Adelaide Hospital and diagnosed with bi-polar effective disorder (manic depressive illness). 27 JKN also recounted an incident at the unit at the Juvenile Justice Centre at Wagga Wagga when the appellant had been upset with her, but then came over to her, hugged her and said "I'm sorry, I didn't mean to upset you". While hugging her, the appellant touched her breast. This is the conduct relied upon as giving rise to the third count in the indictment. 28 The appellant was found not guilty of the charges laid under the third and fourth counts. 29 After JKN's parents collected her at the Buronga Roadhouse, whilst travelling in the car, she told her parents that she had been in Wagga and that the appellant wanted to do "dirty things to me" and that she didn't know, or couldn't remember, if he had had sex with her or not. 30 YEJ is the complainant regarding count 7. It is the Crown case that after Easter in 1995, she went to live at a house at 417 Lane Street, Broken Hill with the appellant and his children Ella, Michael and Maxie. This was at the invitation of her friend Ella White, the appellant's daughter. 31 YEJ lived at this address for a couple of months, during which time the appellant used to provide her with marijuana, which she smoked daily, and on three occasions with tablets, which she thought were Rohypnol. She also took what she thought to be steroids occasionally. On two occasions, she was given tea to drink by the appellant. The first occasion was at the appellant's house at Silverton, after she had been living with him for a couple of weeks. YEJ said that the tea tasted "funny" and that she had gone to sleep and didn't wake up until the next day. 32 The second occasion, on which the appellant gave tea to YEJ, occurred in Lane Street on the night of 15 September, 1996, which was YEJ's fourteenth birthday. The appellant offered her a cup of tea, which she accepted and drank. She said that it tasted "funny, like a Panadol taste", but that it tasted different from the first cup of tea that the appellant had given her. It made her feel dizzy and drowsy and tired, so she lay down on the bed in Michael's room and fell asleep. She was wearing tracksuit pants and a t-shirt. When she woke up she felt dizzy and "funny" and saw the appellant sitting on the edge of the bed. He asked her whether she wanted to go to Adelaide, but YEJ said that she wanted to go back to her nan's in Wilcannia. The appellant then got on the bed and held YEJ down by the shoulders. He told her that if she had sex with him he would give her a bus ticket to Adelaide so that she could live with his son Maxie. The appellant moved one of his hands from her shoulders and took his shorts and t-shirt off. YEJ tried to push him off her and said loudly "Get the fuck off me, you old bastard". The appellant then put his legs in the middle of YEJ's legs and pushed down her tracksuit pants and underwear to her knees. The appellant then put his penis in her vagina and began to move up and down on YEJ for about half an hour. The appellant then moved off YEJ and went out of the room. YEJ was crying. She got up after the appellant left and had a shower. When she was in the shower, YEJ noticed "white stuff" coming out of her. YEJ then went back to bed and cried herself to sleep. 33 The next morning when YEJ awoke, the appellant and his children were in the house, but she did not see them. YEJ walked to her Uncle Cecil's house and told him that she wanted to leave the appellant's house because something bad had happened to her, which was "similar to the past". (T.225.42) 34 YEJ also gave evidence that on that morning, she had told her Uncle Cecil's de facto wife, Robyn Puckeridge, that the appellant had raped her. 35 YEJ gave evidence that she had asked her Uncle to go and get her bags from the appellant's house and bring them to her Uncle's house. She did not go back to live in the Lane Street house. 36 She was asked the following questions and gave the following replies:- "Q. Did you ever go to the police and tell them what Max - did you go at that time to the police and tell them what Max White had done? A. No. Q. Why didn't you do that? A. Because I was frightened and didn't want to go through it again. Q. Have you been the victim of a sexual assault when you were a young child? A. Yes. Q. How old were you? A. Six. Q. And did you have to give evidence in court when you were six? A. Yes." 37 YEJ gave evidence that about a year after she was sexually assaulted by the appellant, she received a message to ring Ann Marie Kelly, a woman who had been her foster mother at an earlier stage in her life, and with whom she had a close relationship. 38 She gave evidence that Ann Marie Kelly had said that there had been "a bit of a thing with old Maxie and some other girl and she just asked me if he's done anything like that before to me". She was asked the question:- "Q. And what did you say? A. And I turned around and I told her "yes he has"".

She had then gone to Broken Hill Police with Ann Marie Kelly and made a statement about what had occurred. 39 The eighth count in the indictment relates to the complainant, TMW. The Crown case on this count is that TMW was born on 23 November, 1980 and met the appellant late in 1996 through her parents. During October 1986 she and her three siblings went to Menindee and stayed at the appellant's property. On an occasion, about 13 December, 1996, that is to say some three weeks after she had turned sixteen, TMW gave evidence that she had a headache and asked the appellant for something for it. She said that he gave her a "mustardy-coloured little tablet" which he said was "Herron, or something like that". 40 TMW had then gone to sleep in Michael's room. Michael being the youngest son of the appellant. 41 When TMW went to sleep she was wearing a pair of boxer shorts, knickers and a white t-shirt. During the night she awoke and could feel someone lying next to her and that she had no knickers or boxer shorts on. When the complainant woke up, she recognised the voice of the appellant, who was in bed with her saying "Don't tell Michael, please don't tell Michael". She was asked:- "Q. Did he touch you? A. Yes. Q. Where did he touch you? A. He tried to pull me over so I could lay on my back. Q. Did you say anything? A. No. Q. Did you do anything? A. I was just crying. Q. How long did he stay there? A. Not long, he got straight up and walked out." 42 TMW said that she then got up, turned the light on, found her boxer shorts, put them back on and went back to bed. She had spent most of the next day in Michael's bedroom. Later in the day, she went out and had something to eat and then went back to bed and the following morning, after having a shower, she left the house and went home. Grounds of Appeal

His Honour erred in failing to direct the jury, or giving inadequate and misleading directions to the jury, about the impermissible use of the coincidence evidence tendered by the Crown. 43 The trial judge ruled that the evidence admissible against the appellant in count 1 was also admissible against him in counts 7 and 8 and vice versa. 44 The evidence was held to be admissible under S 98 of the Evidence Act, which relevantly provides under the heading "The coincidence Rule":- "98 (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar. (3) …". 45 In his summing up (p. 15), his Honour said:- "Ordinarily it is not permissible to lead evidence of alleged misconduct by an accused on more than one occasion against one complainant, or to join alleged offences against more than one complainant in the one indictment. This is because, as I said, that people might think that evidence that proves that a person has committed one crime could suggest that he has committed the other, and that is not necessarily so. In the present case, as I said before, evidence has been admitted alleging that the accused engaged in acts that involved his sexual activity with three complainants and the law does make provision for the admissibility of such evidence under certain circumstances. The evidence has been admitted of the offences alleged to have been committed in the first count concerning complainant, (JKN), and the seventh count, (YEJ), and the eighth count concerning, (TMW), and it is not admissible in counts 2, 3, 5 and 6. The evidence that has been admitted in relation to counts 7 and 8 is evidence that goes to the conduct of the accused towards the three complainants and the fact that there is, in that conduct, alleged to be such a similarity of facts and circumstances that, if accepted by you beyond reasonable doubt, the Crown says could lead you to only one conclusion, that is that the accused must have committed the offence against each of them alleged in those counts. The similarities relied on by the Crown I will deal with shortly, but that is the basis of the admissibility." 46 His Honour then reviewed in his summing up the elements of the various charges and some of the evidence relating to them. He then, in the context of the jury wanting "… something to look at to determine whether there is anything that might back up or confirm …" the account given by JKN, proceeded to outline the coincidence evidence which his Honour described as "… ten similarities that occur in these cases". They were identified as the following:-

(1) The ages of the girls, the first two being thirteen at the time of the offences, and the third one having just turned sixteen.

(3) He was a man of some sixty four years of age (I take this similarity to relate to the large disparity in age between the appellant and each of the complainants).

(4) All of the complainants resided with the appellant, either at Menindee or Broken Hill, away from their usual residences.

(5) All the complainants were having trouble with their parents, in that they all had some sort of problem in relation to their home situation.

(6) All of the complainants were provided with drinks at some stage by the accused, which tasted "funny".

(7) After they were given the drinks, all of the complainants went to sleep and in the case of two of them, awoke to find that their clothing had been taken off and in the third case, that of YEJ, to find the appellant in bed with her taking her clothes off.

(8) After the appellant gave the complainants the drinks, some sexual incident occurred.

(9) The appellant had available to him, over the period of time when these incidents occurred, prescription drugs that, either alone or in combination, could bring about the effects which were complained of by the complainants, that is, sleepiness; falling asleep; and feelings of unreality at a particular time.

(10) The appellant bought gifts of clothing, or offered to buy gifts for each of the complainants. 47 The appellant submits, and rightly so, that the coincidence evidence adduced in the case was potent. Hence, so the submission runs, it was critical that his Honour clearly direct the jury, not only how that evidence might be used, but also to warn the jury against the impermissible uses of that evidence. 48 In particular, counsel for the appellant submits, that the trial judge should have told the jury that they could not use the evidence to show that the appellant had the character, reputation or tendency to commit the particular crimes in question. 49 The further submission is made that his Honour's directions at Pp 15 and 16 (referred to above) may have led the jury to believe that because this was not an "ordinary" case, the jury could engage in propensity reasoning. 50 I am unable to accept this submission. His Honour made abundantly clear the reason why "ordinarily" it is not permissible to lead evidence of alleged misconduct in multiple situations and the risks associated with doing so. He then appropriately explained why, in the present case, the coincidence evidence was admissible. 51 The trial proceeded on the basis of the ruling that the evidence of the related events was admissible under S 98. The complaint made, as I understand appeal ground 1, is that the jury was not directed that the evidence could not be used to establish the matters with which S 97 is concerned, i.e. character, reputation or conduct of a person or a tendency that a person has or had. 52 Sections 97 and 98 are cast in similar terms and subject to reasonable notice being given by the party adducing the evidence, the gravamen of both Sections turns upon whether the court thinks that the evidence would, by itself or in conjunction with other evidence, have significant probative value so as to overcome the bar arising under each section. 53 Had the Crown chosen to comply with the notice provisions, and sought to have the evidence admitted under section 97, as well as S 98, in my view, it would have been successful. This was not the course followed. Nevertheless, there was no complaint made by counsel for the appellant at trial as to the way in which the matter was left to the jury, and apart from the passing use of the words "tendency evidence" by the trial judge on the day prior to commencing his summing up, the aspects of evidence to which S 97 is directed, being character, reputation, conduct (apart from the conduct of the appellant in the offences charged) or tendency, did not feature in the trial or in the summing up. 54 The extent to which matters, which have not played any part in a trial, should be brought to the attention of the jury for the purposes of telling them to exclude such matters from their minds, must be approached with caution. The risk of confusion is obvious. 55 In R -v- AH (1997) 42 NSWLR 702 at 708, to which we have been referred, the need to direct the jury as to the limited use they could make of evidence suggesting guilty passion in circumstances where S 97 and S 101 of the Evidence Act have not been complied with, and where the evidence is introduced to place events in their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily falls to be evaluated, was made clear; see also B -v- The Queen (1992) 175 CLR 599 at 610 (see also at 602-603). 56 But that is not this case. In the present case compliance with S 98 and S 101 is not in issue and R -v- AH is distinguishable accordingly. 57 In the present case, the purpose for which the evidence of the three complainants, each as relating to the offences against the other two, was led, clearly to establish that it was not mere coincidence, but followed a pattern which was of such similarity as to lend credence to the evidence of each of them. 58 The directions given by the trial judge were adequate to make plain the purpose for which the coincidence evidence was led, including its permissible use to rebut innocent association. In the circumstances of the trial, it was not necessary for further directions to be given as to impermissible use of the evidence. The appellant did not suffer prejudice in the way in which the coincidence evidence was left to the jury. Ground 1 is not made out.

A miscarriage of justice was caused by the admission of evidence of YEJ that she had been the victim of a sexual assault when she was six years old. 59 The evidence in question is the following. The complainant YEJ was asked in chief the question (T.226.17):- "Q. Did you ever go to the police and tell them what Max - did you go at that time to the police and tell them what Max White had done? A. No. Q. Why didn't you do that? A. Because I was frightened, and didn't want to go through it again. Q. Have you been the victim of a sexual assault when you were a young child? A. Yes. Q. How old were you? A. Six. Q. And did you have to give evidence in court when you were six? A. Yes." 60 The submission is made, on behalf of the appellant, that the evidence was inadmissible under S 409B of the Crimes Act in that it did not fall within any of the exceptions to the section. The significance of the evidence, it is submitted, is that it explained why the complainant delayed in making a complaint about the conduct of the appellant. 61 No objection was taken to this evidence being led at the trial. 62 Counsel for the appellant contends that the evidence does not fall within any of the exceptions to S 409B of the Crimes Act and could only be admitted by leave of the court, the question of leave being determined in the absence of the jury (S 409B(6)) and the nature and scope of such evidence, as is found to be admissible, recorded in writing together with reasons. (S409B(7)) 63 Counsel for the appellant submits that rule 4 does not apply, for the reason, as I understand the argument, that compliance with the section is mandatory and such evidence cannot be admitted by consent. There seems to me to be force in that argument. 64 The issue, as identified by counsel, is whether or not the admission of this evidence caused a miscarriage of justice. The concession is made that the evidence relates only to count 7 in the indictment. It is nevertheless submitted by counsel that the evidence was an important piece of testimony in that it bolstered the credibility of the complainant, YEJ. 65 The general purpose of S 409B is to protect a complainant from embarrassment, hurt and humiliation. The exceptions prescribed in subsection (3) operate to benefit accused persons in defined circumstances. 66 In contrast the evidence in question benefited the complainant in that it explained her delay in going to the police. Hence it was evidence which did not fall within any of the exceptions. 67 The evidence in question fell within very narrow compass. That it would have been the subject of a grant of leave and confined in the way contemplated by subsection (7) of S 409B (had such leave been sought), may be readily inferred from what was said by the trial judge in summing up (s/u 13.9) as follows:- "Whilst you can take into account, on the question of lack of credibility, the delay in making the complaint it does not necessarily mean that the complainant is lying. There may be good reasons why a woman or a girl would hesitate or delay in making a complaint, and indeed, YEJ told you that she had been through the court process when she had been raped when only a young child and she did not want to go through the same thing again. You may well understand that attitude, but it is a matter entirely for you." 68 In my view, no substantial miscarriage of justice has actually occurred as a result the failure to obtain leave to lead the evidence in question and this ground should accordingly be dismissed, pursuant to the proviso to S 6 of the Criminal Appeal Act, 1912.

His Honour erred in admitting the complaint evidence of Ms Kelly. 69 The appellant submits that the complaint to Ms Kelly was made on 3 December, 1996, i.e. fifteen months after the alleged offence and that evidence in relation to it was inadmissible under S 66 of the Evidence Act, being not made at a time when the occurrence of the asserted fact was fresh in the memory of the complainant - Graham -v- The Queen (1998) 72 ALR 1491, and further that no leave was given for admission of the evidence under S 108. 70 This ground may be shortly dealt with. In an affidavit affirmed on 4 June, 1999 (after the hearing of this appeal on 26 May, 1999), Ms Anna Russell, trial counsel for the appellant, testified, inter alia:- "4. There were discussions between myself and the Crown Prosecutor prior to the evidence being given in the Crown case of the conversation between (YEJ) and Ann Marie Kelly. 5. No application was made to have the evidence excluded because it was tactically advantageous for the appellant to have this evidence before the jury. 6. My decision was based on a number of factors, some of which I now recall as: (a) The joining of the three complainants together made the Crown case exceptionally strong. (b) The "major defences" which the appellant wished to be put forward in respect of (YEJ) were inadmissible pursuant to s.409B of the Crimes Act 1900. One example is set out at pages 213 to 217 of the transcript. (c) The "defence" on behalf of the appellant had to take into account the Crown case in respect of all three complainants. (d) The "Hoch" inquiry had disclosed that there was no "contamination" as between the complainants. (e) I had had the opportunity when cross examining both (YEJ) and Ann Marie Kelly during the "Hock" inquiry, of ascertaining additional information about the circumstances leading to the subject conversation, and of assessing their demeanour, credibility and their likely impact on the jury. (f) (YEJ) was going to be cross examined before the jury about her statements to police, and the timing of those statements. (g) In the absence of the conversation between (YEJ) and Ann Marie Kelly (and in the light of and in the context of the other evidence in the trial) the jury would be left to speculate as to how it was that (YEJ) came to speak to the Police after such a long period of time. In the absence of any reference to this conversation it would have appeared that she went to the Police of her own accord. This was not the case. (h) The admission of this conversation disclosed that she had only made a statement to Police many months after the incident and only after being told certain information about (JKN) by Ann Marie Kelly." 71 The tactical advantage perceived by counsel for the appellant at the trial makes it plain that had the Crown not led the evidence in question from Ann Marie Kelly, defence counsel would have. 72 This ground of appeal fails.

Appeal against sentence: 73 The appellant, in effect, seeks leave to appeal against the sentence imposed. Although not mentioning S 5(2) of the Sentencing Act, 1989, his Honour said:- "I am aware that the additional term is less than the one-third usually applied but nevertheless consider it sufficient in this case because of his age and the fact that, in my view, there is little chance of his rehabilitation." 74 It is submitted, on behalf of the appellant, that there was no valid reason to impose an additional term that is one-sixth of the total sentence because of the applicant's relatively elderly age, there being no reason, so the argument runs, that a 73 year old man, who has spent 10 years in custody, has any lesser need of supervision on parole than a younger man, who has been released after a similar period of incarceration. 75 In R -v- GDR (1994) 35 NSWLR 376 a court of five judges, comprising the Court of Criminal Appeal presided over by Gleeson CJ, considered the principles governing the setting of minimum and additional terms, pursuant to S 5 of the Sentencing Act, 1989. At p 382, in its joint judgment, the Court said:- "The discretion of a sentencing judge who would otherwise be minded to set an additional term exceeding one-third of the minimum term is constrained by S 5(2). There is nothing in S 5 which constrains the discretion of a sentencing judge in relation to setting an additional term less than one-third of the minimum term." 76 The facts with which the court was concerned in GDR were in many respects similar to those involved in the present case. They relate to terms of imprisonment imposed for multiple offences of a sexual nature involving a child. In respect of one count, the applicant was sentenced to penal servitude for 10 years, comprised of a minimum term of 8 years and an additional term of 2 years. The argument before the court was directed towards the relationship between the minimum and additional terms. 77 The court held, dismissing the appeal, that it was open to the sentencing judge to take the view that, because of the seriousness of the case, no less a minimum term than 8 years was appropriate and, also that, whilst a significant period of parole or potential parole was called for, 2 years was long enough for that. 78 In the present case the learned sentencing judge was clearly mindful of the statutory ratio established by S 5(2), but exercised his discretion to impose a lesser additional term than one-quarter of the total sentence. For my part, I am satisfied no sentencing error has been demonstrated in the exercise of the sentencing judge's discretion. 79 One matter remains for consideration. When the appeal was heard in this court, counsel for the parties did not have available to them certain documents tendered in the sentence proceedings, these documents have now been provided to counsel and to this court. Following perusal of the material, counsel for the appellant informed the court that no further written submissions would be made, pursuant to leave granted by this court to make any additional submissions counsel deemed appropriate. My perusal of the material tendered on sentence, does not warrant change in the above reasons for judgment. 80 I would propose the following orders:-

(2) Leave to appeal against sentence granted and the appeal dismissed.

WOOD CJ at CL IRELAND J KIRBY J Friday, 29 October, 1999

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