RRS v R

Court of Criminal Appeal (NSW)|2012-11-21|Before: Macfarlan JA, Hall J, Campbell J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Hall J. 2HALL J: The appellant, RRS, by Notice of Appeal dated 26 July 2012, appeals against his convictions in respect of offences against two complainants (referred to in this judgment as 'A' and 'B'). 3The appellant was charged with three counts of aggravated sexual assault on his son 'A', a person then under the age of 10 years (Counts 1, 2 and 4) and in the alternative to Count 2, aggravated indecent assault (Count 3). The appellant was found not guilty of Counts 1 and 2 and guilty to Counts 3 and 4. 4The appellant was also charged with two counts of aggravated indecent assault on his son, 'B', a person under the age of 10 years, and was found guilty of both counts. 5Between February 2005 and April 2008, the appellant had full-time custody of the two complainants following a relationship breakdown and the making of orders under the Family Law Act 1975. 6The complainants' mother, referred to in this judgment as Ms X, had lived with the appellant for a number of years. In the early part of 2005, her relationship with him commenced to break down. She was also experiencing a lot of personal difficulties at that time. 7On 12 October 2005, the Family Court of Australia set out custody and access arrangements in relation to the complainants. After the orders were made, Ms X saw the complainants two or three times a year. 8A first trial in relation to the alleged offences commenced on 15 February 2010, but was aborted later that week. A second trial commenced on 22 February 2010 but was also aborted on 26 February 2010. A third trial commenced on 15 June 2010. Verdicts were delivered on 23 June 2010. 9As indicated above, the jury returned verdicts of guilty in respect of four of the six counts on the Indictment, and not guilty verdicts in respect of the remaining two counts. 10The Notice of Appeal pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 originally pleaded two grounds. At the commencement of the hearing of the appeal, Ms Loukas SC for the appellant, stated that Ground 1 (as it was then framed) was no longer relied upon, but leave was sought to amend the Notice of Appeal to add a new ground, which became Ground 1 in the Amended Notice of Appeal. The Crown did not oppose the amendment. Accordingly, leave was granted to file the Amended Notice of Appeal which contained two grounds including the "new" Ground 1. The Amended Notice was filed in this Court on 21 November 2012. 11They are in the following terms: GROUNDS OF APPEAL (1) There has been an error of law in that his Honour failed to give the jury a direction in accordance with R v Mayberry [2000] NSWCCA 531. (2) There has been an error of law in that there were no good reasons for his Honour failing to give the jury a warning pursuant to s 165 with regard to hearsay evidence.

FACTS 12The offences with which the appellant was charged were alleged to have taken place in the home of the appellant. The offences in respect of which he was convicted were alleged to have taken place between 31 December 2006 and 4 April 2008. 13The younger of the two complainants, 'B', first complained to his mother during an access visit on 6 April 2008. Ms X then spoke to the other son, 'A', following which she contacted police to make a statement. Senior Constable Daniel Hickson thereafter attended upon Ms X on the same day and recorded certain details of the conversation that he had had with her in his notebook. I will return to discuss the significance of the account given to Senior Constable Hickson below. He did not speak to the complainants on that day. 14The complainants were interviewed by police on 14 May 2008. Following the interviews, Ms X had a conversation with 'A' who disclosed further details involving the appellant. Ms X subsequently contacted police, which led to 'A' being re-interviewed. 15Police conducted two further interviews with 'A' on 22 May 2008 and 4 July 2008. 16'A' was aged 9 years at the time of the police interviews. At the time of the police interview with 'B' on 14 May 2008 he was then aged 8 years. 17It is noted that the defence case was, in essence, that the allegations made against the appellant were false. In support of the defence case it was contended that 'A' and 'B' were telling lies. Their alleged motivation for making the allegations was said to be a desire to move back with their mother. It was also part of the defence case that the complainants' mother Ms X hated the appellant and it was suggested that she had coached the complainants to make the false allegations so that she could obtain custody of them.

Ground 1 - There has been an error of law in that his Honour failed to give the jury a direction in accordance with R v Mayberry [2000] NSWCCA 531 18In support of Ground 1 brief written submissions dated 20 November 2012 on behalf of the appellant were relied upon. They extracted, at [2], paragraphs [37]-[40] from the judgment of Beazley JA (as her Honour then was) in R v Mayberry [2000] NSWCCA 531. The argument in support of Ground 1, though not developed in the written submissions was addressed in oral submissions for the appellant. In the written submissions it was simply stated: "Applying the relevant law as stated in Mayberry to the Appellant's case it is clear that his Honour was obliged to give such a direction, in particular in relation to count 4 and did not." 19It was acknowledged in paragraph 4 of the written submissions that counsel who appeared for the appellant at the trial did not suggest such a direction. Accordingly, Rule 4 of the Criminal Appeal Rules applies. In this respect, it was submitted for the appellant that, there being no Mayberry direction, there had been a miscarriage of justice in that the appellant may have lost the chance of acquittal which was fairly open to him. 20In oral submissions for the appellant, the decisions in R v Mitchell (NSWCCA, 60321/94, 5 April 1995, unreported) and R v Mayberry were referred to. On the central question as to collaboration or collusion, it was submitted for the appellant that "... there is a suggestion of collaboration, and when you go to the summing up in this matter, in particular at page 30 of the summing-up, it is quite clear that collaboration is an issue": (T 21 November 2012 at p 12.40-45). 21The submission for the appellant in support of the contention that the trial judge was obliged to give such a direction, including, in particular in relation to Count 4, was wholly based upon the Mayberry principle. 22In the course of her oral submission, Senior Counsel for the appellant, submitted: "... if this evidence comes in the jury is left in the situation of, what do we actually do with the other brother's evidence? We have a direction about context evidence, but what do you do about the evidence on the other count involving the other brother? The jury are left in the dark about that and it's not enough to say, we submit, well the judge has said, deal with each count separately. That's not enough in a case of this nature, because the jury is left with two brothers, and the normal lay person's idea of that is, well, they are both there for each other. If they accepted what [B] says, then it's more likely the jury might think in lay person's terms that what [A] says is correct. But if you can't follow that process, then the evidence is not cross-admissible": (T 21 November 2012 at 13-14). 23Ms Loukas submitted that there was no basis for distinguishing Mitchell and Mayberry as relevant authority: in this respect it was observed: "... so that basis of distinguishing Mayberry and Mitchell in Collins is simply not available here, because this does raise collaboration and concoction, and that is squarely raised at page 30": (Appellant's Submissions at T 21 November 2012 at 12.45-50). 24In R v Collins [2001] NSWCCA 386, this Court (Mason P, Sully J and Newman AJ) considered an appeal in which one ground contended that the trial judge erred in not directing the jury that the evidence of the complainants, referred to as AB and NB, could not be used as proof of the guilt of the appellant in offences involving the complainant KM. 25In that case, the appellant had been charged with 13 counts. These included 2 counts of aggravated indecent assault, 2 counts of aggravated sexual intercourse without consent, 1 count of employing a person under 18 years for pornographic purposes, 6 counts of aggravated sexual intercourse with a person aged between 10 and 16 years, and 2 counts of supplying a prohibited drug. 26The appellant pleaded guilty to the drug supply charges and after a trial he was found guilty on the 11 remaining charges. 27In this summing up, the trial judge directed the jury that they were required to decide each charge on its own merits but did not expressly direct the jury that they could not use the evidence of NB to support the evidence of KM, nor was he asked to give such a direction. It was submitted that the failure to do so constituted a miscarriage. 28In Collins it was noted that the appellant placed reliance upon statements in Mitchell and Mayberry. The Court of Criminal Appeal in Collins analysed the circumstances in each of those cases. Reference was made to the observations of Gleeson CJ in Mitchell, inter alia, to the effect that the trial judge in that case was obligated to warn the jury in clear terms against using the evidence of one complainant towards proof of the guilt of the appellant of offences involving the other complainant. 29Mason P in Collins, stated: "104 In my view it is not appropriate to take the first paragraph of the passage just quoted out of context and to elevate it into a principle of law that would require the giving of the direction for which the appellant now contends. The vice of the summing up in Mitchell was that the absence of the warning of the kind suggested by Gleeson CJ meant that the jury might well have understood that the evidence of one complainant was admissible towards proof of Mitchell's guilt generally. The failure to give appropriate warnings was coupled with exhortations by the trial judge to consider the totality of the evidence in the case when coming to their decision. 105 The same cannot be said of the summing up in the present case. There was much more than exhortations to consider the charges separately, although those exhortations appear to have been more strident than those in Mitchell. In the present case Judge Ducker was at considerable pains to emphasise that the counts involving the complainant KM depended upon the jury accepting KM's evidence of them. There was no invitation to use evidence in one count as evidence of the other nor to use the background or contextual evidence in any inappropriate way. On the contrary there were clear directions as to the limited use that could be made of the latter type of evidence. 30Mason P examined the observations made by Beazley JA in Mayberry and quoted the observations made at [38] in her Honour's judgment. Mason P then observed: "108 Nevertheless, it is significant in my view that Beazley JA proceeded to examine the summing up as a whole to determine whether the appellant in Mayberry might have been deprived of a fair trial. She looked at passages emphasising the importance of considering each charge separately. As in Mitchell, there were aspects of the summing up which effectively encouraged the jury to consider the totality of the evidence in the case when coming to their decision. At one stage the charges were referred to as a 'job lot'. Furthermore, when the trial judge in Mayberry dealt with the essential elements of the offences he dealt globally with the counts spanning the two complainants. The charges were lumped into categories where the common elements were emphasised in circumstances that essentially merged the separate cases relating to the two complainants ..." 31Finally, Mason P set out observations of Beazley JA in Mayberry at [54] of her Honour's judgment and then at [110] in Collins stated: "110 Once again the present case can be distinguished on a number of grounds. There was never a serious suggestion of collaboration between the complainants. And, unlike Mayberry there was no tendency to 'roll up' the charges touching the two complainants." 32The Crown in its response submissions, submitted that the decisions in Mitchell and Mayberry are not authority for the proposition that there is an invariable requirement in cases involving multiple complainants to warn the jury against using the evidence of one complainant towards proof of guilt of an offender for offences involving another complainant: R v Collins [2001] NSWCCA 386 at [113]; R v Dennis (2010) 202 A Crim R 453; [2010] SASC 69 at [40]. I interpolate that South Australia has not adopted the uniform evidence legislation and continues to apply the common law of evidence including the rules relating to the admissibility of similar fact evidence. Vanstone J's analysis needs to be read with this consideration in mind. 33The Crown's detailed submissions (Crown Response to Additional Ground dated 26 November 2012) closely analysed the decisions in Mitchell and Mayberry. In paragraph 4 of the Crown's Response Submissions it was observed: "4 In the present case, there was never any serious or specific allegation of concoction or collusion, as between the complainants, made during the trial. Specific allegations of coaching and concoction were only made against the mother of the complainants. In fact when the issue of concoction between the complainants was raised by the Crown (during examination in chief) there was an objection by counsel for the appellant ..." 34The Crown's written submissions, "Crown's Response to Additional Ground" attached a document, Annexure 1, entitled - "Summary of Extracts of Evidence where Issue of Concoction or Collusion was Raised" which related to transcripts of the evidence of each of the complainants given at trial on 24 and 25 February 2010 and of 'B' on 17 June 2010. 35It is to be remembered in this case that the two complainants were quite young at the time of the police interviews. 'A' was aged 9 years at the time of the interviews in which he participated and 'B' was aged 8 years at the time of the police interview with him on 14 May 2008. In contrast in Mayberry, apart from count 10 in that case, the complainant NRD was 7-8 years of age at the time of the offence and the complainant JMD was 11-12 years of age. 36In the present proceedings at trial the defence case pursued the issue as to the possible influence of the complainant's mother on the two complainants, and that any such influence could have affected their evidence. The Crown noted that there was never any application to recall either or both of the complainants so that any allegations of concoction or collusion between them could be specifically put: Crown Response Submissions at [5]. An application was made for the complainants to be called for cross-examination, but not on the question of them colluding with one another to fabricate evidence. 37The Crown further observed that defence counsel at trial was not precluded from putting any such allegations at trial although she was clearly aware of the possibility of concoction. Reference in this regard was made to the transcript of 7 June 2010 at 10.25. However, defence counsel at trial did not, as I have noted, pursue the question of collusion between the complainants as a specific basis for seeking to recall either of them. 38The basis of the application that was made to recall both complainants was set out in a document entitled "Defence Application pursuant to Criminal Procedure Act - 306J". The application was supported by the affidavit of Anthony Parsons dated 15 June 2010. The Crown observed that, by way of background, the issue arose during the cross-examination of 'B' and it concerned the issue of the conversation which 'B' said he had had with his mother on 6 April 2008 (T 25 February 2010 at pp 108-112). Copies of that transcript form Annexure A2 to the Crown's Response Submissions. 39The Crown also noted in its Response Submissions at [6] that on 16 June 2010 counsel for the appellant at trial prepared a further document headed "Proposed Scope of further cross-examination of [B] pursuant to Ruling on ss 306J(1) Application": (T 16 June 2010 at p1.24-4.25). That document, as the Crown observed, did not seek to raise collusion or concoction as between the complainants as an area for cross-examination (a copy of the document was annexed to the Crown submissions at Annexure 6). 40It was further noted in the Crown submissions: "8 No application for separate trials was ever made. This was a case where the appellant relied heavily upon the lack of common features and inconsistencies in the evidence as between the two complainants". 41It is clear from the transcript that the way in which the defence case was conducted was not to suggest that the two young complainants, as it were, "put their heads together" to concoct evidence. The main approach to their evidence was to highlight to the jury the absence of common aspects and inconsistencies in their accounts. 42On the question raised in the appellant's submissions as to "cross-admissibility" the Crown referred in oral submissions to the issue of the admissibility of evidence with respect to particular counts. In respect of Counts 5-6, which involved 'B', there was no evidence from 'A' that was admissible on those counts. The reverse applied with respect to Counts 3 and 4 involving 'A'. There was no admissible evidence for 'B' to establish those counts. 43In her written submissions in reply, Senior Counsel for the appellant referred to six passages from defence counsel's address to the jury, which Senior Counsel submitted, taken together adverted to the possibility of concoction either at the instigation of the boys' mother or as between themselves. She submitted "[t]he possibility of concoction as between the complainants, is averted to on the basis of broad outline and not as a carefully planned concoction" (sic). Senior Counsel relied in particular on the following excerpt: "I am certainly arguing that, on the defence case, that both [A] and [B] are lying, they have to be .... But I am not suggesting to you, that given their ages, if you think about it, that they've sat down together carefully planning precisely what details they're going to give, exactly what story they're going to tell; I am not suggesting that at all." (T 22 June 2010 at p 13, [35]-[45].)

Decision 44On examination of the transcript, I do not consider that there was any affirmative submission made alleging collaboration or collusion between the complainants. Counsel for the appellant in fact disavowed any such proposition. It is also worth bearing in mind in Collins Mason P was fully cognisant that in summing up, the trial judge had reminded the jury "of the defence suggestions that the three girls had put their heads together": Collins at [48]. Of itself, in his Honour's view, this was insufficient to mandate a direction in accordance with Mitchell and Mayberry. 45The fact that there was no serious suggestion of collaboration or collusion between the two complainants is, as it was observed in Collins, a significant matter. 46Furthermore, there is no suggestion that the summing up in this case "rolled up" the charges concerning the two complainants. 47I accept the following submission in the Crown's Response: "10 The present case is much closer to Collins than to Mitchell or Mayberry. In the present case there was never any suggestion made at trial that the evidence from one complainant could be used or was capable of being used towards proof of the allegations of the other complainant. Nor was such a direction ... requested. There were no issues of "cross-admissibility" raised at trial. The evidence of each complainant was either inconsistent with or provided little support for the evidence of ... either. Unlike the situation in Mitchell and Mayberry in the present case, his Honour said nothing in the summing up that may have encouraged the jury to use the evidence in one count as evidence for the other, nor to use the background or contextual evidence in any inappropriate way. The charges concerning the respective complainants were not 'rolled up'." 48In his summing up, the trial judge gave the jury a direction in the following terms: "... this being so, unless you are satisfied beyond reasonable doubt that [A] and [B] are honest and accurate witnesses in the accounts they have given you cannot find the accused guilty. Before you can convict the accused you should examine the evidence of each complainant, depending upon which count you are considering, very carefully, in order to satisfy yourself that you can safely act upon the evidence to the highest standard required in a criminal trial. That caution is not based upon any personal view that I have of either of the boys or their evidence. I told you at the outset of this summing-up that I would not express my personal opinions on the evidence but in any criminal trial where the Crown case relies solely or substantially upon the evidence of a single witness a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown namely, proof beyond reasonable doubt. I'm not suggesting to you that you are not entitled to convict the accused upon the evidence of [A] or [B], depending upon which case you are considering. Clearly you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt." (Summing Up 22 June 2010, at p 14-15). 49The Crown correctly observed that it is significant that counsel for the appellant at trial did not seek a direction in the terms now being sought. 50I accept as the Crown submitted, that the trial judge emphasised to the jury that caution had to be exercised by them and that they were required to carefully consider the reliability of each of the complainants, separately in respect of each relevant count. 51I have concluded that no error has been established by the trial judge in not giving a direction in terms specified in Mitchell and Mayberry. That is, the trial judge did not, in my opinion, err in not giving a specific direction that in respect of each count evidence given by 'A' could not be used in respect of the offences alleged against 'B' and vice versa. 52Having regard to the way in which the case was conducted, and the issues upon which the defence case was based, there was no requirement for a direction as alleged. Accordingly Ground 1 should, in my opinion, be dismissed.

Ground 2 - There has been an error of law in that there were no good reasons for his Honour failing to give the jury a warning pursuant to ss 165 with regard to hearsay evidence 53In the course of her evidence, Ms X gave evidence of complaint by both complainants, 'A' and 'B' in evidence in chief (T 17 June 2010 at p 17 at 15, p 20 at 37 and in cross-examination, (p 23-28).) 54The evidence of complaint was admissible pursuant to s 66 of the Evidence Act 1995. The effect of s 66 is that first-hand hearsay is not excluded by the hearsay rule in criminal proceedings where the person who made the representation is available to give evidence. Accordingly the evidence is admissible to prove the truth of the facts alleged in the complaint provided that the evidence meets the test of relevance and subject to any judicial discretion for excluding it. The evidence is also admissible to support the credibility of the complainant or complainants. 55The credibility of the complainants, and their mother, Ms X, was very much in issue in the trial. The alleged events constituting the offences charged were disputed with the appellant contending that they did not occur. What the complainants are alleged to have said to their mother, and what became in the trial, complaint evidence, and what they had said to police in police interviews, and what their mother had said to police, were all very much disputed. 56Accordingly, the jury were required to assess the reliability of each complainant, and Ms X, in these various aspects. 57The issue of a direction under s 165 of the Evidence Act was raised on two specific occasions during the defence case. On 21 June 2010, the fifth day of the trial, counsel appearing for the appellant stated that an application would be made for a s 165 direction: "MOEN: I'll be making an application for a 165 direction on the grounds of the hearsay, that first complaint, 6 April 2008. HIS HONOUR: But that's true of all complaint evidence? MOEN: It is your Honour yes, but I will be arguing that in my submission. It falls into a category where section 165 -- HIS HONOUR: What above and beyond the normal complaint direction? MOEN: Yes your Honour I'll be asking for that. HIS HONOUR: Alright, what's the formal warning you want? 58Counsel appearing for the appellant stated that the draft direction that would be sought was not immediately available and the matter was left to be raised at a later time. The trial advocate stated at T 33: "TRIAL ADVOCATE: I don't think your Honour needs to go beyond what's in the normal direction." 59Later in the day the question was again raised (T 44): "HIS HONOUR: The uncharged acts what's the warning you want me to give above and beyond what's already in the complaint direction? MOEN: Your Honour, I'd be asking your Honour to indicate this to the jury that because the complaint evidence is hearsay, that may cause it to be unreliable. In this particular case, three particular features may cause it to be unreliable, that is, the delay between 6 April 2008 and 11 June 2008. HIS HONOUR: What's that delay? MOEN: That's the delay between [Ms X] hearing the hearsay on her account and when she has cause to actually herself make an accurate record when she provides her statement. HIS HONOUR: Yes. MOEN: That may run the risk of a distortion of honest memory because of the passage of time. HIS HONOUR: Yes. MOEN: The second general problem is that the version that [Ms X] has told the jury about is not, I use the word 'corroborated' and it may not be the correct one but nor corroborated by evidence by [A or B]. It's not necessarily contradicted but this isn't a case where they have acknowledged that they said - or [A] - [B] has acknowledged that yes, he did indicate each of those details to her and did the demonstration. In addition, with [A] his evidence was in fact that he denied anything happened, and beyond that doesn't tell anything about whether he said yes or why he said yes or what he meant. So that there isn't corroboration of the hearsay as told to [Ms X]. HIS HONOUR: Do you understand that -- MOEN: --and the third that the reason [Ms X] says she was told is not fully corroborated by a contemporaneous record from the police officer. It is corroborated to some extent I concede but it's not - and he has explained the reason for that but -- HIS HONOUR: Yes I am not with you in relation to that but what do you say about 1 and 2 Crown? TRIAL ADVOCATE: Well your Honour the version, in the Crown's submission, is corroborated by what [B] says in the sense that he was asked questions about what he said he saw-- HIS HONOUR: What he says he said to his mother is different? TRIAL ADVOCATE: It is alleged that he said that he saw the accused shanking [A] and that's the nature of his evidence in the trial. HIS HONOUR: Yes. TRIAL ADVOCATE: So it's not-- HIS HONOUR: I don't propose to give any additional direction. MOEN: Your Honour, I haven't completed my submissions on - HIS HONOUR: Go on-- MOEN: Firstly to respond to my friend, I think my friend has misunderstood. It is not that it is not corroborated, it's the hearsay. We don't have evidence here from [B] saying, not only do I remember talking to my mother, but I agree I told her these things that she says I told her and I did the demonstration that says. We don't have the evidence in this case. HIS HONOUR: Yes. MOEN: Which makes it a little more unusual than some. I'm asking your Honour to consider telling the jury that it is the experience of the courts that sometimes honest witnesses can be mistaken, and that they should scrutinise the hearsay component with care for those three general reasons. That completes my application your Honour. HIS HONOUR: I will think about it. Yes let's have the jury back thanks. ...." (T 44-45) 60The three matters raised in support of the application for a s 165 direction were: (i) The delay between Ms X hearing the hearsay complaints and providing or making her statement to police. This was said to involve a risk of a "distortion of honest memory" by reason of the passage of time. (ii) That the version that Ms X gave in evidence was not "corroborated" by evidence from 'A' or 'B' (though it was acknowledged that the evidence was not necessarily contradicted). (iii) That the version Ms X says she was told by 'B' was not "fully" corroborated by a contemporaneous record from the police officer (this being a reference to the absence of a record by Senior Constable Hickson of the fact that Ms X said that 'B' demonstrated what was referred in the trial to as "shanking"). 61The issue of delay referred to in (i) (a period of approximately two months) was said to carry a "risk" of distortion of honest memory by reason of the passage of time. This was not a matter referred to in s 165(1)(a) to (g). The delay was not a particularly substantial one. It would not, in the circumstances of the case, in itself, render Ms X's account as being "unreliable" to such an extent as to attract the need for a warning under s 165. The possible significance of delay was a matter to be tested in the evidence but not as a basis for s 165 to operate. 62The matters referred to in (ii) and (iii) were, in effect, relied upon to support the proposition that the absence of what was referred to as corroboration of the complaint to Ms X in some way rendered the evidence of Ms X, as to complaint, unreliable. 63The evidence given by Ms X as to what she was originally told by the complainants was given on 17 June 2010 at T 17.19. Her evidence related to the verbal account given to her by 'B' and the subsequent conversation she said she had with 'A', 'A' being, according to her, reluctant on that occasion to reveal or say anything to her about what had occurred. 64Apart from the verbal accounts provided by 'B' to Ms X constituting the "complaint" evidence, Ms X's evidence was that on 6 April 2008 'B' gave a demonstration as to alleged assaults he said he saw upon 'A'. 65On 6 April 2008, Senior Constable Hickson interviewed Ms X. Ms X had said in evidence that she was not sure if she had told Senior Constable Hickson about the physical demonstration which 'B' had given. She had seen and signed the police notebook, but was not sure if that particular piece of information was contained in it. She said that Senior Constable Hickson did not write down everything that she said. She said he only wrote brief notes. She said that she was not thinking in terms of him making a written record of what she had told him and she did not know what was important for the court to know: (T 17 June 2010, pp 24-25). 66Senior Constable Hickson said that it was possible that there were things that Ms X had told him that he did not write down. However, if she had told him that 'B' had made a physical demonstration of the kind described by Ms X in evidence, then he would have recorded it. He was confident that it was not said to him in that conversation: (T 21 June 2010 at p 6.25-35) 67For various reasons, he did not attempt to take a formal statement at that time and did not then go into specifics. 68'B's' account in his police interview was that he had told his mother that they were doing "sexual stuff". He went on to explain the game of dares he said he played with the appellant. He said that he could not remember what he had told his mother about 'A'. In evidence he agreed that he had told his mother that he had seen the appellant "shanking" 'A'. 'B' was not cross-examined about whether he ever physically demonstrated to his mother what he meant by "shanking". 69'A''s evidence, as given in the police interview, described activities he attributed to the appellant "playing dares with us ..." and describing particular activities. 70In the submissions made during the trial in support of the s 165 application, set out in para [59] above, the Trial Advocate argued that the account given by Ms X by way of complaint evidence was corroborated by what 'B' said in his answers to questions as to what he said he saw the appellant doing to 'A'. 71On the following day, 22 June 2010, counsel for the appellant provided a draft "s 165 direction". The draft warning sought a direction: "even honest witnesses can be mistaken and human memory can be distorted". The draft notice dealt with two areas: (i) The delay (discussed above) (ii) The fact that "the detail of the conversation Ms X says she had with [A] and [B] is not specifically acknowledged by [A] and [B] as accurate". 72The trial judge indicated in further discussion about the matter that he would deal with it in the course of his directions but would not make a s 165 warning (T 22 June 2010 at p 6.6). 73In the course of the summing up on 22 June 2010, the trial judge summarised the evidence as to the evidence given by the complainants, 'A' and 'B', following which he told the jury: "It is for you to decide whether these complaints were made. But if you are satisfied that they were then the question you should ask yourself is did the complainant, whether it be [A] or [B], act in the way that you would expect him to act if he had been sexually or indecently assaulted as he says he was? Is what he did the sort of conduct you would expect of a person in his position at the time? ..." (p 10) 74In the course of the summing up the trial judge referred to the Crown case which, inter alia, was that the complainants had given accounts to their mother in a way and in circumstances that were consistent with "... an honest rendition given by both of the boys to their mother of this having occurred ...". A comment was made in the Crown submission to the effect that what 'B' had told his mother came by way of a spontaneous remark by him. 75The trial judge observed that the Crown did not resile from the fact that there was a "fraught background" involving clear hostility from Ms X towards the accused and that there had been Family Law proceedings and orders made for the custody of the children to be given to their father. His Honour then stated: "... the Crown says true enough it is within that background but nonetheless you would accept [Ms X's] evidence of the complaints that she says were made to her by each of the boys, albeit in [A's] case progressively." (Summing Up at p 19) 76The trial judge reminded the jury of the Crown's submissions including the submission that "you would accept the evidence of Ms X as to the nature of the complaint and the statements of complaint made by each of the boys to her": (Summing Up at p 20). 77The trial judge summed up the arguments put on behalf of the appellant including the proposition that "the boys are lying": (Summing Up at p 21). In the end the jury was reminded that it was not for the accused to prove that the boys were lying but for the Crown to prove its case beyond reasonable doubt. 78The trial judge also stated in the course of his summing up: "Similarly in relation to [Ms X's] evidence, you will recall what she said to you. [Ms X] was adamant about the accuracy of her recollection of the events of 6 April where she says she was told certain things, even though she made no notes about what she had been told at the time and it was two months ... after the events that she reduced it to a statement. She was adamant that in fact she had made no mistakes at all and that she had accurately recorded in that statement what she had been told and what she saw on 6 April." (Summing Up at p 28) 79The summing up also referred to the evidence given by Ms X including the fact that 'B' had given a physical demonstration of what he said he saw. Reference was also made to the evidence of Senior Constable Hickson to which I have referred earlier. 80The trial judge then referred in some detail to the submissions made on behalf of the appellant in which the accuracy of the account as to what the complainants had said to Ms X was challenged. It was submitted that there were irreconcilable differences in the evidence which pointed "... to the unreliability of the evidence of Ms X": (Summing Up at p 29). 81Finally, the trial judge summarised the submission for the appellant to the effect that the complainants had: "... decided to make up a story about their father and the reason why you would have your doubts in relation to these cases, brought by the Crown, is that there is evidence that would suggest that that is the case? In other words it was concocted in broad outline": (Summing Up at p 30). 82The trial judge instructed the jury that it was a matter for the jury to determine whether they were satisfied that the complaint (being a reference to 'B''s account to Ms X) was made in accordance with Ms X's evidence.

Decision 83In determining whether there is a basis for the contention that there was a failure to give a warning under s 165, it is necessary to have regard to the circumstances in which a warning under that provision may be required. In R v Baartman [2000] NSWCCA 298, Kirby J (with whom Spigelman CJ and Smart AJ agreed) stated that s 165(1) is not an "exclusive code" and that the opening words of the section made it clear that the circumstances in which evidence may be unreliable extend beyond the classes of evidence identified in subparagraphs (a) to (g) of that section. His Honour then in determining whether error had occurred in that case in the trial judge declining to give a warning, stated: "62 In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s 165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence or because there is the danger that the jury may overestimate the probative value of certain evidence." 84The evidence of complaint, not being specifically dealt with by the provisions of s 165(1) requires identification of specific matters which would indicate that a warning under s 165 was required. 85In Baartman, two matters were identified. Firstly, that a witness' evidence was said to be unreliable, such that there was a need for a specific warning (in that case the witness had acknowledged a fear that he may be charged with having concealed a serious offence and that he provided information in the context of that fear). Secondly, that there was a delay in that witness coming forward. The conversations that he recounted took place on 23 February 1993. He came forward in June 1993. 86In relation to these two matters, it was observed: "67 However, I believe both matters would have been obvious to a jury. His Honour, as you would expect, provided general guidance to the jury as to the way in which it should assess the evidence given by witnesses. His directions included the following ..." 87As indicated in Baartman, the question as to whether a s 165 direction should be given where evidence does not fall within s 165(1)(a) to (g) raises questions of judgment and that on such questions reasonable minds may differ. Kirby J observed at [69]: "... an appellate court should only intervene where a warning was plainly necessary. It will be necessary where the danger of acting upon the evidence is real and substantial, and unlikely to have been fully perceived by the jury in the absence of a warning." 88It is clear, as earlier indicated, that the issue of the reliability of the complainants and of Ms X, was directly in issue, the defence case being that the complaints were a concoction. In those circumstances the jury could not have been under any misunderstanding as to the fact that the reliability of both the complainants and Ms X was at the centre of the concoction allegation upon which the defence was founded. 89I do not consider that either separately or in combination, the three bases upon which a s 165 warning was sought, required a direction to be given. I am of the view that the trial judge had a strong foundation for refusing to issue such a direction and was correct in refusing it. The submissions made on behalf of the appellant contended that cross-examination and submissions of defence counsel could not be equated with the "judicial imprimatur" provided by a warning in a summing up. It was submitted that in the circumstances of the trial "... the complaint evidence became rather confusing especially when one tried to contrast it with the allegations made by the complainants in their evidence in chief as constituted by the various interviews". 90However, any confusion that may have existed in the complaint evidence was a matter that would be expected to be taken up in cross-examination with a view to exposing any unreliability in the evidence given by the complainants and/or Ms X. 91The matters raised in submissions for the appellant, do not constitute grounds for a warning to be given expressed as based on the accumulated experience of the courts in dealing with certain types of evidence. The defence case was based upon a direct challenge to the reliability, in particular, the credibility of Ms X and the accounts given by the complainants, and the defence case identified specific matters (eg, the alleged animosity of Ms X towards the appellant) said to demonstrate the claimed unreliability of Ms X and the complainants. The directions of the trial judge left the jury with no doubt as to the credibility issues that required their careful consideration. Those issues involved disputed issues of fact. These were conventional matters for the tribunal of fact (the jury) to resolve. 92I am of the opinion that Ground 2 should be dismissed. 93The appeal, in my opinion, should be dismissed. The order I propose accordingly is that the appeal be dismissed. 94CAMPBELL J: I agree with Hall J.

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