REGINA v. WHITMORE [1999] NSWCCA 247

PARTIES : REGINA v. WHITMORE, Brian John JUDGMENT OF : Newman J at 1; Sperling J at 2; Greg James J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0552 LOWER COURT JUDICIAL OFFICER : McGuire DCJ.

COUNSEL : Crown: P.G. Berman App: S.J. Odgers SOLICITORS : Crown: S.E. O'Connor App: T.A. Murphy CATCHWORDS : Complaint of sexual offence - prior consistent statement - leave for admission on credibility only - suggestion of fabrication not made by mere denial - such suggestion should be expressly put - criteria for leave - criteria for exercise of discretion - criteria for waiver of the necessity for leave. ACTS CITED : Crimes Act 1900 Evidence Act 1995 Lillyman (1896) 2 QB 167; Allied Pastoral Holdings v. Federal Commissioner of Taxation (1983) 1 NSWLR 1; Graham (1998) 157 ALR 404 Cassar & Ors (No. 12) [1999] NSWCCA 352; BD (1997) 94 A. Crim. R. 131; DJT [1999] NSWCCA 22; JGW [1999] NSWCCA 116; RPS (CCA, unreported 18 August 1997); Curwood (1944) 69 CLR 561; CASES CITED: Heydon (1966) 1 NSWLR 708; Domini (1972) 178 CLR 144; Nominal Defendant v. Clements (1960) 104 CLR 476; Gillard [1999] NSWCCA 21; Dwyer [1999] NSWCCA 47; RNS [1999] NSWCCA 122; Ayoub [1999] NSWCCA 221; Jones (1997) 191 CLR 439; Fleming [1998] HCA 68 James [1999] NSWCCA 191 DECISION : Appeal upheld

No. 60676 of 1998 CORAM: NEWMAN, J. SPERLING, J. GREG JAMES, J.

JUDGMENT 1 NEWMAN, J: I have read the judgment of Greg James, J. and I agree with the reasons he gives and the orders he proposes.

No. 60676 of 1998 CORAM: NEWMAN, J. SPERLING, J. GREG JAMES, J.

JUDGMENT 2 SPERLING, J: I agree with the orders proposed by Greg James, J. and with his reasons.

No. 60676 of 1998 CORAM: NEWMAN, J. SPERLING, J. GREG JAMES, J.

The appeal 3 The appellant was tried before his Honour Judge McGuire and a jury in the District Court at Newcastle, on 8 September 1998. He was convicted on two charges, the first of having, between 1 December 1992 and 31 December 1992, indecently assaulted a child under the age of 10 years, contrary to s.61M(2) of the Crimes Act 1900. The maximum penalty in respect of such conviction is imprisonment for 10 years. The second conviction was in respect of a charge of having had sexual intercourse with the same child between 1 December 1992 and 31 December 1992, a charge of an offence under s.66A of the Crimes Act, punishable by a maximum penalty of penal servitude for 20 years. 4 He appeals against those convictions and seeks leave to appeal against sentence. 5 At the trial, the appellant was acquitted of a further charge of indecent assault of the same child during the same period. 6 The offences were alleged to have been committed on the granddaughter of the appellant and who was, at the time of the events alleged, eight years of age. 7 On the first count, the appellant was sentenced to a fixed term of two years imprisonment to commence on 11 September 1998 and on the second to penal servitude for a minimum term of four years and an additional term of two years, that minimum term also commencing on 11 September 1998.

The nature of the case 8 Although there was some evidence of opportunity and evidence suggesting an affectionate predisposition for the complainant by the appellant, the Crown case as to the events alleged was entirely dependent on the evidence of the complainant. 9 The appellant had denied his guilt to the police and pleaded not guilty, thus putting in issue the elements of the offences charged. It was for the Crown to prove those elements by evidence. The complainant was uncorroborated and her evidence contradicted by the evidence of the appellant and his daughter. The credibility of the complainant and the acceptance of her evidence of the events giving rise to the charges was crucial. The course of the trial reflected the importance of the complaint evidence which was strongly relied on, at least, to bolster credibility and, insofar as it was being used for the truth of its content, to confirm the facts as given in evidence at the trial.

The bases of the charges 10 At about Christmas 1992, the complainant, her brothers and sister and mother spent Christmas at the appellant's home where the appellant resided with his wife and three young children. In respect of count one the complainant's evidence was that during that holiday the appellant drove her to a shopping centre in his utility and during the drive placed her right hand on his penis holding it with his hand and forcing her to squeeze it. 11 In respect of count two, the charge of which the appellant was acquitted, there was evidence from the complainant that she and the complainant's then nine year old daughter were in the appellant's bedroom during that holiday. They were lying on the bed on their backs with their feet hanging over the end of the bed. The appellant, standing facing the two girls, put his finger in between the complainant's legs and had the palm of his hand on top of her crotch with his fingers moving and touching her crotch on the outside of her clothes. At the same time, the complainant said, he had his other hand on his daughter's crotch. He was touching the girls for a few minutes. The girls left the room together. 12 On count three it was the evidence of the complainant that when, she was having a bath with the appellant's daughter and they had both stepped out of the bath putting towels around themselves, the appellant came into the bathroom and directed his daughter to leave the room. When she left, the appellant closed the door, took the towel off the complainant, got down on his knees in front of her and performed cunnilingus on her, saying to her, "Does it feel good?". She heard the daughter call out to her and the appellant then left the room. In addition, evidence of complaint was admitted.

Complaint 13 A few years after the holiday, she complained about these incidents to Wendy Ann Bancroft, known to her as Aunty Wendy. The evidence of Miss Bancroft established that complaint would have occurred at about Christmas 1995. Subsequently, there was complaint to Mrs. Smits, the complainant's mother and then to the police.

The defence case 14 When spoken to by police, the appellant denied the commission of the offences. 15 In his own case the appellant gave evidence denying the offences, referring to his utility having had a manual gear box and to other circumstances to support his denial. In addition, he called his daughter to give evidence, she having come to Australia from New Zealand where she had resided with her mother after the appellant's marriage had broken down in January 1993. She denied the happening of the events referred to in count two and could not recall any circumstances consistent with the events alleged in count three.

Objections and the previous trial 16 The appellant's trial had originally commenced on 7 September 1998 but the trial judge found it necessary to discharge the jury. The evidence of the complainant and, in part, the evidence of her mother, particularly as to complaint, had been taken. Objection was taken and a preliminary ruling was sought from the trial judge as to the admissibility of the complaint evidence on the basis of Queen v. Lillyman (1896) 2 QB 167 as not having been made at the first reasonable opportunity, it having been made at least three years after the relevant events. During the intervening period the complainant had been interviewed by an officer from the Department of Community Services in consequence of the appellant having been charged with unrelated indecent assaults on other children and had denied any improper touching of her by him. 17 The following statement by the appellant's counsel as to the difficulty in placing that last matter in evidence at the trial appears in the argument:- "In my submission, that's no evidence that I can call in front of the jury. It is evidence that can be ventilated on voir dire and your Honour can then decide in those circumstances under ss.135 and 136 whether:- 1. It fulfils the traditional terms of complaint; and 2. if it does, whether, having regard to all those circumstances, whether your Honour would rule to admit the evidence. So that is the purpose of the voir dire on complaint." 18 In further discussion during the argument, his Honour expressed the view that the first available opportunity rule "seems to have gone out about 20 years ago. … Well certainly about 16 years ago when I started.". 19 Objection was taken to all evidence of the making of complaint and to the complaints themselves, whether that evidence was given by the complainant, Mrs. Smits, or Miss Bancroft. 20 Although the submission was couched in terms specifically referring to ss.135 and 136 of the Evidence Act, and made no express reference to ss.60, 66 or 108 of that Act, it plainly was a submission that the complaint evidence was inadmissible as not being "recent" and not useful in the circumstances to assist credibility. The submission invoked, if necessary, the exercise of discretion. Alternatively, it was submitted that the real purpose of the Crown's reliance on complaint in the instant case was to bolster credibility and that his Honour would not allow the evidence to be used for the truth of its contents. It was submitted that if it was ruled admissible, its use should be limited so as not to include its use as evidence for that purpose. 21 His Honour indicated that he would not be likely to give a direction that the evidence of complaint was evidence of the truth of the facts asserted. However, when it came to the summing up in due course, his Honour gave no direction that the complaint could not be used for the truth of its contents or that its use was limited. Certain of the directions given, in particular those on the bases on which it might have been reasonable to delay complaint, were capable of indicating to the jury that the complaints might have at least supported the complainant's credibility notwithstanding delay. 22 There was also objection to evidence of the distress of the complainant accompanying the making of complaints both to Miss Bancroft and Mrs. Smits. It was submitted that the evidence of distress was tendered to add credence to the complaint as evidence of the truth of its contents and to make it more credible. The submission also relied upon his Honour having previously ruled that the defence was prohibited from asking questions concerning the complainant's emotional stability. Alternatively it was submitted that if evidence of complaint and distress were to be ruled admissible, there should be an appropriate warning to balance the direction that there may be good reason why the complaint had not been made earlier. 23 His Honour, without giving reasons, ruled that he would admit the evidence of complaint and distress and that a direction would be given in relation to the specific prior opportunity to complain to which I have referred. Thereafter, another jury was empanelled and the trial recommenced. It proceeded in accordance with the trial judge's rulings. 24 There was no reference by his Honour to ss.66 and 108 of the Evidence Act and, particularly, no reference to the "freshness" of the complaint or to the requirement that the Crown obtain leave to lead the complaint as credibility evidence under s.108(3); nor was there reference to the criteria to be considered under s.192 for the grant of leave; nor as to whether the requirements for waiver of the necessity for leave imposed by s.190 had been made out. 25 When the trial recommenced and after evidence of the making of the complaints had been given by the recipients, the Crown Prosecutor elicited evidence from the complainant in chief that she had not said anything to her mother "about these things that had happened to you" and had not spoken about "these things" until speaking to Miss Bancroft a few years later because she was scared if disbelieved. At that point, the following appears:- "CROWN PROSECUTOR: Your Honour, at this stage I think I should be seeking your Honour's leave to lead this evidence from the complainant. What I'd be proposing to do is lead evidence of a conversation. I think I'm required to do that. HIS HONOUR: Conversation with who? CROWN PROSECUTOR: Aunty Wendy, the complaint, your Honour. HIS HONOUR: Yes." 26 Although this exchange is cryptic, it appears that the Crown Prosecutor was seeking leave not in respect of evidence of the making of the complaint, but as to eliciting the precise terms of it. The earlier discussion would suggest that question of leave in principle had been already covered by his Honour's ruling. I am unable to detect otherwise any application for leave or consideration of the question of grant of leave. It is inescapable that leave was neither considered nor granted. But the Crown argues here that the conditions for the grant of leave were made out and that leave would, if dealt with in accordance with principle, inevitably be granted.

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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