The course of the resumed trial
27 On the trial recommencing, the first witnesses called by the Crown Prosecutor were Miss Bancroft and Mrs. Smits as to the complaint evidence. Miss Bancroft gave evidence that in response to her question as to what was wrong, asked when she noticed the complainant was upset, the complainant replied, while crying, "You can't tell Mum, you can't tell Mum" and after a promise that her mother would not be told she said, of her grandfather, "He touched me in a way he's not supposed to". Thereafter Miss Bancroft spoke to the complainant's mother.
28 There was evidence from the mother that the following day, the complainant, while sobbing profusely, said to her mother, "Just kept saying, 'every time you left me, Mum, Pop touched me. He wouldn't leave … me alone'", and that the mother subsequent spoke to police officers.
29 The complainant gave evidence of the events and of the conversation with Miss Bancroft and that it had occurred a few years after the events. She said she had told Miss Bancroft, "that he molested me, that Brian Whitmore molested me".
30 In cross-examination, the complainant was challenged on her version of the events. Particularly it was put to her that the account she had given at the previous trial of the appellant keeping her hand on his penis with his hand was inconsistent with her subsequent testimony and inconsistent with the driving of the vehicle, it being a manual vehicle. It was suggested to her that she had altered her account in that respect after she realised the significance of the car having manual gears. Otherwise, her recollection and account of the various events was tested by questions on surrounding circumstances. It was put to her that when spoken to by the person from Department of Community Services, she did not say she had been touched by anyone and she agreed.
31 Towards the conclusion of the cross-examination, it was put to her in respect of each of the events alleged that they had not occurred. In each case, she replied to the effect that the event had occurred. The appellant's evidence merely denied the events she had alleged. Other than in the challenge to the evidence on the first count, no suggestion was put to her asserting expressly, fabrication, reconstruction or suggestion, nor were questions asked which would have allowed it to be put to the jury she had done any such thing consciously, as would have been necessary in accordance with the principles enunciated by Hunt, CJ. at CL. in Allied Pastoral Holdings v. Federal Commissioner of Taxation (1983) 1 NSWLR 1 at 16-26 to found a proper submission. Were any particular basis for an attack on the complainant's credibility to have been put to the jury, that basis should have been exposed to the witness in cross-examination so that she, if she could, might deal with it and so that any shortcoming might have been dealt with in re-examination.
32 In re-examination, the complainant said that her failure to complain was because she feared to complain because she might not be believed and might be the subject of sanctions for having complained. This was the reason she gave for not having told her mother or the appellant's daughter.
33 In the defence case the accused's daughter gave evidence. The manner of the attack in cross-examination by the Crown Prosecutor contrasts greatly with the limits observed by counsel for the defence when cross-examining the complainant. The Crown Prosecutor put to the witness that she had come to court "to give evidence to help her father out and to tell a few fibs along the way" for that purpose. She denied those allegations. It was put to her that her father had interfered with the complainant and her, as the complainant had alleged and she denied that. She asserted she had no recall of an occasion in which she and the complainant had been in the bathroom and her father had come in asking her to leave the complainant in the bathroom. It was suggested to her that she had been talking with her father with a view to assisting him by telling lies. She denied, in response to that question, that she was telling lies.
34 In cross-examination of the accused it was put to him that the events had happened but he denied them. It was not suggested to him that he had sought the assistance of his daughter to tell lies or that his daughter was telling lies.
35 The grounds of appeal are as follows:-
"1. Evidence of complaint was wrongly admitted.
2. The trial judge failed properly to direct the jury regarding the delay in complaint.
3. The trial judge failed properly to warn the jury regarding the evidence of the complainant.
4. The trial judge, in directing the jury to look at each count in the indictment separately, failed to also direct the jury that they were entitled to take into account any reasonable doubt in respect of one count when considering another count.
5. The convictions are inconsistent, unsafe and unsatisfactory, unreasonable and cannot be supported."
36 As to ground one, it is to be noted that the trial occurred in the same month as the High Court handed down the decision in Graham v. The Queen (1998) 157 ALR 404 but before that decision was handed down and that here, as there, the debate at trial on admissibility of the complaint evidence had taken place as though the Evidence Act provisions on the topic had not been in force.
37 Whether the complaints answered the common law requirements for admissibility or not, as was urged by defence counsel at trial, they clearly did not satisfy the requirement that they be made at a time when the occurrence of the facts asserted in them were fresh in the memory as that concept was explained by the High Court in Graham (supra at [3]-[4]). Here, there was objection, but it was not on the precise basis referred to in Graham. Nonetheless, there has been in this court a line of authority to which I will later refer that on appeal that decision will be applied in respect of such questions as here arise at least in cases decided prior to the handing down of that decision.
38 The complaint evidence was inadmissible as an exception to the hearsay rule. Leave was not sought to have it admitted, nor was the question of leave to have it admitted on credibility considered. Notwithstanding the Crown submissions, such leave was not inevitably to be granted. There were real issues as to whether reconstruction, fabrication and suggestion were being suggested, that is, as to whether the condition precedent to the grant of leave existed and whether on the issue of whether leave should be granted, matters relevant to the grant of leave existed. As to these latter, the matters referred to in s.192 and those matters raised at trial by counsel for the appellant and here by the Crown, would need to be evaluated in the context of the policy of the Act setting its face against evidence relevant on credibility alone unless made relevant by some course, consciously chosen by the accused. Some guidance as to the application of appropriate principles is given in Graham (supra [6]-[10], [33]); Regina v. Cassar & Ors (No. 12) [1999] NSWSC 352; Regina v. BD (1997) 94 A. Crim R. 131, Regina v. DJT [1999] NSWCCA 22, Regina v. JGW [1999] NSWCCA 116; Regina v. RPS (CCA, unreported 13 August 1997, per Hunt, CJ. at CL. at 10). To what has already been said on the topic, for myself I add that I do not find the argument attractive that unless there is agreement with what is asserted or silence there is an attack on credibility. To hold that every express denial of the events the subject of the charge would provide a basis for the admission of credibility evidence would in my view extend the ambit of the section beyond its true construction.
39 In my view the denial of the events alleged without more does not necessarily suggest, expressly or implicitly, positively, reconstruction, fabrication or suggestion. Even if it did, on the issue of whether leave would be granted, the restraint from attacking credibility by going no further would be a most material matter mitigating against the grant of leave.
40 At common law, a strenuous denial of a fact alleged by the prosecution was not necessarily to cast imputations upon the character of the witness who asserted such a proposition so as to raise the accused's character or permit cross-examination by the prosecution: see Dixon, CJ. in Dawson v. The Queen (1962) 106 CLR 1 at 10 and Curwood v. The King (1944) 69 CLR 561; and the discussion in the judgments of Herron, CJ. and O'Brien, J. in Regina v. Heydon (1966) 1 NSWLR 708. When such an imputation was raised, the exercise of discretion still needed to be considered (Regina v. Domini (1972) 178 CLR 144). Those principles and those applicable to the admission of evidence rebutting recent invention: (see Nominal Defendant v. Clements (1960) 104 CLR 476) offer valuable guidance to the context in which the question of permitting the adducing of evidence relevant only on credibility, a matter generally prohibited by the policy of the Act might be resolved in an instant case.
41 However, I need go no further than to hold, that in accord with that line of authority to which I have already referred, consequent upon the decision of the High Court in Graham (supra), in which similar issues have been examined, exemplified by the decisions of this court in Regina v. Gillard [1999] NSWCCA 21; Regina v. Dwyer [1999] NSWCCA 47; Regina v. RNS [1999] NSWCCA 122, I would allow the appeal on this ground.
42 Although the conclusion to which I have come means that it is not necessary to determine the other grounds, other than ground five, as to ground four I note that in a case dependent upon the credit of a complaint there is a real necessity for an adequate direction that the complainant's evidence be accepted by the jury as a basis on which they are satisfied of the elements of each offence beyond reasonable doubt, having regard to any dangers or matters affecting generally or particularly the complainant's credibility. See Dunford, J. in Dwyer (supra at paras.18-20) and my assenting remarks in Regina v. Ayoub [1999] NSWCCA 221 and that there be directions of sufficient strength on such matters as reliability.
43 As to ground five, I do not consider that, even having regard to the problems involving the complaint evidence, the form of directions and the acquittal on count two, that the conviction should be overturned. It was argued that the convictions were inconsistent with acquittal: (Regina v. Jones (1997) 191 CLR 439). True it was that the complainant's evidence was challenged, not only by that of the appellant but also by the evidence of the appellant's daughter on count three also and that there were some bases upon which the evidence of the complainant on count one might validly be criticised, but in my view the evidence of the complainant was not such that her credibility should be considered so tainted that there should be acquittals entered. I do not consider the verdicts were unsupported by the evidence or that the evidence was insufficient: (Fleming v. The Queen [1998] HCA 68). Nor do I consider that the convictions were unreasonable applying the tests in Regina v. James [1999] NSWCCA 191 nor that the discretion not to order a new trial would be appropriately exercised.
44 I propose that the appeal be upheld and that a new trial be ordered. There is no need to deal with the application for leave to appeal.
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