Criminal law and procedure - Whether verdicts unsafe and unsatisfactory - Whether verdicts of not guilty on two counts inconsistent with verdicts of guilty on remaining seven counts.

The Commonwealth v Cleary (1898) 172 Mass 175

Suresh v The Queen (1996) 16 WAR 23

Connell v The Queen (No 6) (1994) 12 WAR 133

Howe v The Queen (1981) 55 ALJR 5

The Queen v Hannig, unreported; Court of Appeal, SCt of Victoria; 25 June 1997

The Queen v Lillyman [1896] 2 QB 167

R v C (1991) 59 A Crim R 46

R v Freeman [1980] VicRp 1; [1980] VR 1

R v Podirsky (1989) 43 A Crim R 404

R v Young (1996) 90 A Crim R 80

Ugle v The Queen [1989] HCA 55; (1989) 167 CLR 647

The facts in this matter are set out in the reasons to be published by Pidgeon J.

Having regard to my conclusion on ground 6(a), I propose only to refer briefly to a number of the other grounds which in my opinion reveal errors on the part of the learned trial Judge.

Complaints made at the earliest reasonable opportunity, that is to say, recent complaints, may be admitted into evidence as an exception to the general rule prohibiting the admission of prior consistent statements. In the course of the present trial, no consideration appears to have been given to the admissibility of the complaints made by the complainant to Jodie Bramley and to Stacey Collins respectively. Nor was any attempt made to link either of the suggested complaints to particular offences. In addition, complaints subsequently made to the Crisis Care and to the police were treated by the learned trial Judge in his summing up as complaints which could be used to assess the credibility of the complainant when clearly they were not recent complaints.

It is for the trial Judge to determine whether a statement is capable of being a complaint, but it is for the jury, adequately instructed, to determine whether it was in fact a complaint - see R v Sakail [1993] 1 Qd R 312, at 321, and see also R v Manwaring [1983] 2 NSWLR 82, at 91.

On the complainant's evidence, her "complaint" to Ms Bramley was made almost immediately after the offence alleged in count 9, at a time when she was "angry and upset". However, on her evidence, it did not in my view constitute a complaint capable of being used to assess her credibility and consistency. All that was said by her was "you know", in answer to a question put to her by Ms Bramley as to "what was wrong".

Although Ms Bramley was rather vague as to when any complaint was made to her, on her evidence it does appear that it was made at or shortly after the time the complainant decided to cease seeing the appellant, which was said to have been after the appellant's birthday on 27 February 1994, and it was made in the context of a discussion of that decision. According to Ms Bramley, the complainant told her that the appellant had been "touching" her. She did not believe that this had been said on the day on which the touching had occurred. The reference to "touching", however, does not appear accurately to describe what the complainant said had most recently occurred at the appellant's house, although it does describe what the complainant said the appellant had done to her on previous occasions. It is therefore not apparent that what was said amounted to a complaint about the event which the complainant claimed had occurred at the appellant's house on his birthday. Ms Bramley added that, subsequently, she suggested to the complainant that she should telephone Crisis Care. She was not able to say how much later that suggestion was made. It would appear, however, that Crisis Care was not contacted until some time in the first few months of 1995, approximately a year after the offence alleged in count 9 was said to have been committed.

So far as the suggested complaint to Ms Stacey Collins is concerned, the complainant said that it was made prior to the time of the offence alleged in count 9. She said she told Ms Collins that the appellant had abused her and that he had interfered with her. Ms Collins' evidence was that she was around the age of 16 when she went to the appellant's house with the complainant. This would place the time in or about 1993. In answer to a question put to her by the prosecuting counsel she agreed that "[a]fterwards, at some stage", she spoke with the complainant about the appellant. She said that the complainant "explained to me what had actually happened". No further details were either sought from or given by her.

In R v Sailor [1994] 2 Qd R 342, McPherson JA gave consideration to the question of whether a complaint had been made at the earliest opportunity that was reasonable. At 344, he said:

" We were referred to no authority suggesting that what is reasonable ought to be judged in an abstract way divorced from the sensitivities of the particular complainant or from the circumstances in which she found herself placed at the time. Individuals respond to crisis or stress in different ways and for various reasons. It would be surprising if the question whether or not a complaint was made at the earliest reasonable opportunity fell to be determined according to some set pattern of behaviour predicated of a hypothetical model complainant. The explanations given by the complainant for what she did or failed to do were necessarily relevant in deciding what was a reasonable opportunity in this case."

The reason given by the complainant for not having told her mother what the appellant had been doing to her was that she was scared her mother would not believe her. This reason was not explored in the course of the trial. She also said that she was too scared to tell anyone because the appellant had said it was their little secret and she was scared not only that he would get into trouble, but that she would also. It must be appreciated, however, that during the whole of the period over which the offences were said to have occurred the appellant was no longer living in the same house as the complainant.

In his summing up to the jury, the learned trial Judge appears to have proceeded upon the basis that the complaints were recent complaints and that the jury were entitled to consider them for the purpose of evaluating the consistency of the complainant's conduct in relation to each of the counts in the indictment. While he did refer to the significance of the absence of complaint or delay in complaining, his observations were made in general terms and not directed to the facts of the case.

In my opinion, the evidence of the complaints, with the possible exception of that made to Ms Bramley, if her evidence of what was said was accepted by the jury, and on the basis that the jury had been carefully instructed as to how they could only use it in relation to count 9, should not have been admitted as evidence of recent complaints. Giving full weight to the sensitivities of the complainant and to the circumstances in which, on the evidence, the complainant found herself, the complaints were not made at the earliest reasonable opportunity in relation to the earlier counts and therefore were not capable of buttressing the complainant's credit in relation to her evidence regarding the offences alleged in those counts, the first of which had been said to have been committed some seven years earlier and the last in excess of two years earlier. By admitting the statements apparently as recent complaints in relation to all the counts in the indictment, upon the basis of his Honour's directions the jury could well have used them, unjustifiably, as establishing the complainant's credibility based upon the consistency of her conduct. I am quite unable to accept that a complaint made seven years after an alleged offence can be so used.

Ground 4 complains of the learned trial Judge having erroneously admitted evidence of uncharged acts which were said to demonstrate a "guilty passion" on the part of the appellant. The vagueness of that evidence was, in my opinion, such that any probative value which it may have had was outweighed by its prejudicial value and it should have been excluded - see The Queen v Swaffield (1998) HCA 001, 20 January 1998, per Brennan CJ at 21, and per Toohey, Gaudron and Gummow JJ at 32-34.

The complainant, at one stage of her evidence, did say that the respondent used to touch her breasts, but the subsequent description of "things of a sexual nature", which was used to describe what had occurred, was that of the prosecutor. The complainant said that "these things" had been done to her too many times for her to keep count. It is not known what "these things" were, or the extent to which they threw light upon the relationship between the complainant and the appellant. In my opinion, although the terms of his Honour's direction are not the subject of any ground of appeal, that direction fell short of the direction suggested as being appropriate by Callaway JA in R v Grech [1997] 2 VR 609, at 614, set out in the judgment of Pidgeon J. Furthermore, having regard to the nature of the evidence, the trial Judge's direction to the jury that, if they found "the evidence of those other incidents compelling", it was material they would take into account when considering the relationship between the complainant and the accused and in considering whether the Crown had made out its case with respect to any count in the indictment beyond reasonable doubt, was not appropriate. How they were to take it into account was not explained, except to the extent that they were told that because "incidents of the nature described" happened on other occasions it did not necessarily follow that the incidents giving rise to the charges in the indictment had taken place.

In relation to ground 5, concerning the adequacy of his Honour's directions to the jury in the light of Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, in my view, a stronger direction than that which was given was warranted in this case, having regard to the absence of recent complaint and the age of the complainant at the time when the earlier offences were alleged to have occurred. His Honour's reference to the need for scrutinising the complainant's testimony with great care was somewhat weakened by his then reverting to telling the jury that "to find the accused guilty you must be satisfied beyond reasonable doubt as to both the truth and accuracy of that testimony". This statement rather diminished the earlier emphasis on the process by which they should decide the case.

Ground 6(a) contends that the verdicts of guilty are unsafe and unsatisfactory in that they are inconsistent with the verdicts of not guilty returned upon counts 5 and 6. The test to be applied was set out, as Pidgeon J has indicated, in the recent decision of the High Court in Jones v The Queen (1998) 72 ALJR 78 and there is no need for me to repeat it.

Appeals based on inconsistency of verdicts commonly fail by reason of the fact that there is to be found in the evidence some particular feature which explains why the jury could have distinguished between the evidence on the various counts in the indictment and convicted the accused on some counts, while acquitting him on others. There is a relevant feature in this case, but it is that, in relation to the counts on which the appellant was found not guilty, there was present in the house a third person, the appellant's then wife, who gave evidence which contradicted that of the complainant.

In relation to the counts on which the appellant was acquitted on his trial, the complainant was very precise in her evidence. The infant Roslyn was sleeping in a cot in her bedroom. She described the appellant's coming in and waking her up and whispering her name, and she gave detailed evidence as to the complainant's other actions and as to the surrounding circumstances. The evidence of the complainant was that these offences occurred before the appellant's son Timothy was born, at a time when Roslyn and the complainant were sleeping in the middle room in the appellant's house. The evidence of the appellant's then wife was that, before her son Timothy was born, Roslyn had always slept in the main bedroom, and, furthermore, that there had never been any occasion when she had been awakened by Roslyn's crying when she found that the appellant was not in his bed. It is therefore clear that the complainant's evidence was not accepted where another witness was available to give evidence throwing significant light on the surrounding circumstances. As Gaudron, McHugh and Gummow JJ said in Jones v The Queen, at 87:

"Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof."

In this case, as in Jones v The Queen, implicit in the appellant's acquittal on counts 5 and 6 was a non-acceptance of the complainant's account of the events which were said to give rise to these counts, and her overall credibility was diminished. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning these counts. There was nothing to give any cause for supposing that her evidence was more reliable in relation to the other counts than it was in relation to these counts.

In the circumstances, in my view, the appeal should be allowed and the convictions quashed. I would not order a retrial. In view of my conclusion as to the verdicts being unsafe and unsatisfactory, it would not be appropriate to do so. But, in any event, the appellant has undergone three trials, the first of which was aborted, and in the second of which the jury were unable to reach a verdict. He has served a significant period of time in custody in relation to the convictions the subject of this appeal. I would therefore direct a judgment and verdict of acquittal to be entered on each of the counts on which the appellant was convicted, that is to say, counts 1, 2, 3, 4, 7, 8 and 9.

The appellant stood trial in the District Court on an indictment alleging nine counts of sexual offences involving his daughter. The first count was alleged to have occurred in 1987 when the daughter was 10 years old and the final count on 27 February 1994 when she was 16 years old. Some counts alleged sexual penetration, others indecent assault and one count alleged an attempted penetration. The applicant was convicted of seven of the counts, but was acquitted of counts of sexual penetration and of indecent assault each of which were alleged to have occurred at the same time on a date between 8 April 1990 and 7 April 1991. One of the grounds of appeal to consider was whether the convictions were unsafe by reason of the acquittal on these two counts.

The complainant was born on 8 April 1977. Her mother married the appellant when the complainant was ten months old and the appellant adopted the complainant as his child. The complainant always referred to him as her father. There were two children of the marriage whom the complainant regarded as her two younger sisters. One was two years younger than the complainant and the other approximately five years younger. When the complainant was in kindergarten, her mother and the appellant separated. The complainant lived with her mother but over weekends and on some other occasions she and her sisters would visit the appellant. Her mother would drive them to the appellant's home on Saturday mornings. They would stay the night and they would be dropped back by the appellant on Sunday evenings. The appellant's parents lived near the appellant and they took an interest in the children. They arranged for them to attend Sunday school on the Sunday mornings and would then have the appellant and the children for lunch.

The complainant said the first specific incident she could recall occurred when she was 10 years old and was in year 5 at school. Later in her evidence she referred to improper conduct commencing when she was five years old but it would appear from her evidence that she could not recall specific instances. She said, when describing the incidents which occurred when she was 10 years old, that she was with her grandmother and grandfather and her two sisters. She and her sisters had had lunch with the grandparents. They then returned to the appellant's house and watched television. While they were doing this the appellant came in and the two sisters, at the appellant's request, went back to the grandparents' house. She said the appellant then gave her a pair of bikini pants and asked her to try them on. She said she went into the toilet removed her underwear, which she left in the toilet and put on the bikini pants under her dress. She said when she came back to the lounge room the appellant had undressed himself and was wearing only his jocks and he was touching his genital area. She said that he asked her to show him the bikini pants which she had put on. She did not show him so he lifted her dress and had a look. She said he told her to lie down and she did as she was asked. She was lying on her back. She said that he pulled her dress up to around her throat. She said that he then touched her breasts and she said that her breasts had started to develop, but she did not commence to wear a brassiere until the following year. She said that he took his jocks off and placed one leg either side of her body and placed his penis between her breasts. He told her to squeeze her breasts together, which she did. She said he then moved up and down between her breasts as if he was having sex and ejaculated onto her chest and cleaned her chest. She then saw, through the lounge room, that her grandfather was coming to the house. She said the appellant told her to pretend that she was in the toilet. She went back to the toilet and changed back to her ordinary underwear, leaving the bikini pants in the toilet. She said that she went to the back door and said goodbye to her grandfather and the appellant and she then went to her grandparents' place to get her sisters. When she passed the appellant he gave her two $5 notes folded into one. She said that she did not tell anyone because she was too scared and he always told her that it was their "little secret". The facts I have outlined constituted the first two counts on the indictment. They were counts of indecent assault alleged to have occurred between 1 January 1987 and 31 December 1987.

The complainant said that the next incident, which she could remember specifically, occurred when she was 12 years old. She said that it was during the time she was attending high school. She said she thought it occurred in March 1993 when her grandmother and grandfather were away in Geraldton. She said it occurred at the grandparents' house in the afternoon over a weekend, but she cannot recall whether it was Saturday or Sunday. She was staying at the appellant's house. The appellant had the keys to the grandparents' house which he was looking after. The grandparents would leave treats in the refrigerator for the children. The complainant obtained the keys from the appellant and went to the grandparents' house with her sisters to obtain the treats which were chocolate ice creams. While they were eating them the appellant came over and told the sisters to go and play at the house of a friend and the sisters did this. The appellant then told the complainant to go into the grandparents' bedroom. She did this. She said that the appellant asked her to sit on the bed, which she did. The appellant then asked her to lie down and she obeyed. He told her to pull her pants down, which she did. She said that he took his pants down too. She said that he lent over her and tried to put his penis in her vagina. When he started to do this he asked her if she would have sex with him and she replied "No". She said that he asked her why she would have sex with other boys and not with him and she responded that because he was her dad. She said that he tried to push his penis in but it hurt too much and she told him to stop. She said it was erect. She said that he stopped and then he touched her breasts. She was wearing a brassiere and a T-shirt. He pulled the T-shirt up, undid the brassiere and touched her on the breasts with his hands. She said that after this occurred she went to the toilet. She urinated and as there was stinging, she wiped herself with the toilet paper and saw there was blood on the toilet paper. She then dressed and went to the house where her sisters were. She did not say anything to anyone about what had occurred. She said she was too scared and was frightened she would get into trouble. She said at that stage she was aware of the nature of the act he was performing. These facts constituted counts 3 and 4 which were alleged to have occurred between 1 and 31 March 1990 and were a count of indecent assault and a count of an attempt to sexually penetrate the complainant.

The complainant said the next occasion when there was conduct of this nature was when she was 13 years old. She then described the two counts on which the appellant was acquitted. The appellant had by this time remarried and the complainant was at the wedding. A child was born of this marriage, which the appellant called her stepbrother. The appellant's new wife, prior to this child being born, agreed to look after another baby, Roslyn, who was the appellant's niece. The complainant's evidence was that the acts occurred before her stepbrother was born but after Roslyn came to live with the appellant and his wife. She said she visited the appellant's house but her sisters were not with her. She slept in a room and Roslyn, who was then a baby, slept in a cot in this room. She said that she was asleep in this room when the appellant came in whispering her name and woke her up. She said that he sat on the edge of the bed and took his penis out of his pyjama pants. There was no light in the room, but there was some street light from outside. She said he put her hand on his penis and used his hand to move her hand up and down. She said the penis was only semi erect. She said that he pulled her trousers down, placed his fingers inside her vagina and moved them up and down. She said the incident came to an end when the baby started crying. She said the appellant left the room and she pretended to be asleep. She said that her step mother came into the room and attended to the baby. The stepmother picked the baby up and took her out. The offences charged as a result of this evidence were an act of sexual penetration and an act of indecent assault alleged to have occurred between 8 April 1990 and 7 April 1991. The appellant's new wife gave evidence that Roslyn did not at that time sleep in the room where the complainant slept, but slept in the bedroom of the wife and the appellant. The wife said that Roslyn did not sleep in the other bedroom until after their child was born. She said that there never was a time when she woke up by reason of Roslyn crying and her finding her husband not in the bedroom.

The next acts which the complainant said that she could recall were two acts which were alleged to have taken place at the appellant's home when the complainant was there on a weekend visit and when she was 13 or 14 years old. It occurred in the winter time. She thought her stepbrother had been born. She did not recall if her sisters were present. She wanted to go out with a friend of hers, Jodie Bramley, and it was necessary for her to ask the appellant for permission. She went to the back of a shed where he was attending to some vintage cars, which were his hobby. She said that she asked for permission and that he replied: "Let's have a bit of fun". She said that she did not reply and he led her to the back of the shed. There was some carpet from one of the cars on the floor. She was asked to lie on it and she did so because she was told to. She said that he lifted her top and touched her breasts. He then put her hand on his penis and moved her hand up and down. She said she stopped moving her hand after he removed his hand. She said her trousers were pulled down and he inserted his fingers into her vagina. She said it stopped when her stepmother called from the back of the house. She went back to Jodie's house. She said she did not say anything to her friend because the appellant told her not to. She said she was scared and she did not know what to do. The counts arising from this evidence were a count of indecent assault and a count of sexual penetration with the fingers. These were alleged to have occurred between 8 April and 31 December 1991. She said that her regular visits to the appellant stopped when she was aged 15 or 16 and when she was in her eleventh year at high school. She said there was a lot more study for her to do. Her sisters continued to visit the accused.

However, she did visit him on his birthday, which was 27 February 1994. She was then 16 years old and had left school. She had left home and at this time was staying with Jodie Bramley at the house of Jodie's parents. She went to the appellant's place in the afternoon to wish him a happy birthday. He had by that time separated from his new wife. When she arrived he was working on a vintage car. She said that she sat down and he started to make a cup of tea. He told her that her legs were nice and solid and she said that she told him to "shut up". He asked to see her breasts and she said "No". He then lifted up her top to see her breasts but she had a brassiere on and he would not have seen the breasts because she pushed her clothes down straight away. The act complained of was the pulling up of her top. When he did that he said that her breasts were nice. As she was leaving he called out asking if she wanted any money. She said "Yes" and he said he would "have a bit of fun", but she told him to "forget about it" and he called out to her "come back any time". She went back to Jodie's parents' house. She spoke to Jodie and what she said will be referred to in greater detail later. She said that she did not visit the appellant again, because she did not want it to happen anymore. The act referred to based the ninth and last count in the indictment. It alleged an indecent assault on 27 February 1994.

She was asked (AB 87) if these were the only occasions when the accused did things of a sexual nature. She said they were not and when asked when they started, she said: "Too many times for me to even keep count". She was asked over what period, and replied: "Well it started not long after he and my Mum separated, so I'd have been over five right up until 16". She said that at first she felt confused and did not understand what was happening and by the time she realised it was wrong, she did not know how to stop it.

The appellant's evidence was that there were no acts of impropriety at any time whatever. He gave a description of the visit on his birthday on 27 February 1994. He said that on that occasion that nothing of the type of conduct mentioned by the complainant took place. He said, in referring to the first allegation in the indictment, that she did not have any breasts developing at the age of 10. The mother and the appellant were divorced and there was a long period, in fact a period of years, when they were not speaking. The daughters arranged for them to speak to each other and they discussed the daughters' welfare. A person who was a regular cleaner at the appellant's house who knew the complainant, gave evidence on behalf of the appellant. She said the complainant did not start to develop breasts until she was about 11 or 12. The evidence of the complainant's mother, on the other hand, supported the fact that the complainant developed very early and breasts were developing at the time stated. I have referred to his former second wife's evidence that the baby did not sleep in same bedroom as the complainant when the acts referred to in the fifth and sixth count were alleged to have taken place.

The appellant first stood trial on 10 July 1996 before Murray J. It was necessary to discharge the jury on the first day. The trial resumed before the same judge on 22 July 1996. The jury acquitted the appellant of one of the counts then before them but were unable to agree on the other counts. The count on which they acquitted was a count of indecent dealing alleged to have occurred between 8 April and 31 December 1991. There was no or little evidence led in respect of this count and the trial Judge indicated to the jury there ought to be an acquittal. The appellant was retried on the remaining counts before his Honour Judge Wisbey on 4 August 1997 this being the trial the subject of this appeal. His Honour proceeded on the basis that he would adopt the rulings of Murray J unless he was requested to make a fresh ruling.

Before dealing with the ground relating to evidence of complaint I shall set out the evidence adduced in this area. The evidence showed that the first time the complainant mentioned the matter to any outside person was after she left home and when she was about 16 years old. This was after the offences alleged in 1991 but prior to the date of the final count. She mentioned it to a person whom she described as her best friend and whom I shall refer to as Stacey. Stacey was a little younger and the complainant had known her since each was 11 or 12 years old. She said that before she spoke to Stacey she had not told her mother about any of these things because she felt that her mother would not believe her.

The complainant gave evidence of a further complaint which she said she made to Jodie Bramley on the day of the last alleged offence. After the complainant left on the occasion of the appellant's birthday, she went back to Jodie's place. She said she was angry and upset and her evidence was (AB 88):

"What happened when you got there?---I was angry and upset and she asked me what was wrong and I just said to her, 'You know' and she said, 'Yeah, I do.' "

I shall now set out Jodie's evidence of her recollection of the complaint made to her (AB 180):

"Were you aware that Lauren and her sisters were going to see their father on weekends?---Yes.

Did you become aware at some stage that Lauren stopped seeing her father?---Yes.

Where were you when she spoke about it?---I'm not sure.

Do you recall how old you were when you spoke about it with Lauren?---Maybe 16 or 17.

Can you recall what Lauren said about stopping seeing her father - not seeing her father?---That Tom had been touching her.

And how would you describe her condition, that is, her state, at the time that she spoke about this with you?---She seemed to be more angry than - yeah, angry.

Right, and did Lauren do anything after you had that conversation with her, that you were present at?---I don't think that day but after that I suggested she ring Crisis Care.

In cross-examination she said she did not remember when the Crisis Centre was rung. The crown case was that Jodie's evidence could be seen as referring to the complaint the complainant said was made on 27 February 1994. Jodie was giving evidence three years later. The complainant did contact the Crisis Centre and this brought the matter to the attention of her mother and of the authorities. The evidence did not show when this occurred but counsel and the trial judge addressed the jury on the basis that it was in the earlier part of 1995.

The first three grounds relate to the evidence of complaint. The first ground alleges that the trial Judge erred by permitting the Crown to adduce evidence of complaint in circumstances where the complaint was not made at the first reasonable opportunity and where it was equivocal. In argument, three areas of complaint were referred to. One of these areas was an alleged complaint made to the mother. This can be easily disposed of as I consider evidence relating to the mother was not led as complaint evidence and was not seen at the trial either by counsel or the trial Judge as evidence of complaint. The evidence of the mother was to establish the fact that no complaint had been made and this was an important aspect of the defence case. The complainant said that before she spoke to Stacey she had not told her mother about any of these things because she felt that her mother would not believe her. She said that after the Crisis Centre was contacted, her mother was told about the matter. She did not purport to use the words spoken to her mother. The purport of the evidence was that until that point she had not told her mother anything about what happened. The mother's evidence was that she knew nothing of the matter until she received a call from the Department of Community Welfare to call on them. She did not give evidence of what was said to her or who said it.

The trial Judge, when addressing the jury, said that it would appear that the report to the Crisis Centre and to the police was early in 1995. It is always at a trial in respect of any offence relevant to lead evidence as to the time when a matter is first reported to the police. The evidence to which I am now referring was no more than that the matter came to the notice of the authorities and the mother early in 1995. This is admissible. The trial Judge when dealing with complaint evidence made reference to what was said to Jodie and Stacey as distinct from what was said to the mother.

The next area of complaint evidence to which I shall refer is the complaint the complainant said she made to Jodie. It was recent in the sense that the complainant said that it was made on the same day as the last offence, namely 27 February 1994, and was made as soon as she returned to her residence after the last offence was alleged to have occurred. It is to be recalled that she said that she was angry and upset and when Jodie asked what was wrong she just said, "You know" and Jodie replied "Yes, yeah, I do". It is claimed in the ground that these words were equivocal. It was submitted in argument that this was no complaint at all and that there was no reference to any alleged interference and no reference to any conduct of the appellant. It was further submitted that the comment came in response to a question. Dealing with this latter submission, a complaint would not be admissible if it was elicited by questions of a "leading and inducing or intimidating character" (R v Osborne [1905] 1 KB 551 at 561). The information was not elicited in that manner. A complaint in response to a question as to why a person is angry and upset is clearly admissible.

The earlier submission is that the words are equivocal. The context of the answer would be governed by the fact that the complainant was angry and upset. I consider the words "you, know" would have a clear meaning when spoken by a daughter coming back from a visit to her father in this condition. There is evidence to indicate that Jodie saw it this way. If there had been any challenge as to whether the words were capable of conveying the meaning that there had been improper conduct, then it would be for the Judge to determine whether it is capable of being a complaint and it is for the jury to determine the meaning to be attributed to the words. There was no challenge made at the trial to the fact that the words were not capable of amounting to a complaint. I consider that this was understandable as the words, in my view, could not be read any other way.

I shall now refer to the evidence relating to Stacey. The evidence indicated that what was said to Stacey was said a short time before the act referred to in the last count in the indictment and was made when the complainant was 16 years old. The evidence was (AB 88):

"Do you recall what you told Stacey --- I told her that Tom abused me and that he interfered with me.

Anything else, or is that as much as you can remember? --- That's as much as I can remember."

Stacey, who was a few months younger than the complainant said in evidence that she and the complainant had been best friends since they were 11, going on 12 years old. She would sometimes visit the appellant's place with the complainant and would sometimes stay there with the complainant. After the complainant left home she lived for a period with Stacey. She indicated that one day when they were walking across the park to which the complainant referred, the complainant told her what had actually happened. She did not, in her evidence, indicate the words used.

The evidence was in a similar form to that led at the earlier trial. The appellant was represented by the same senior counsel at each trial. At the first trial Stacey's evidence in this area was objected to as the deposition showed that Stacey would be giving evidence as to what was actually said. Murray J ruled that the fact that the complaint was made to Stacey could be led, but not details of the complaint. Murray J's reasons for admitting the evidence in that form were twofold. Firstly, he was influenced, to a degree, by the fact that the complainant's evidence as to what she said to Stacey was already before the jury without objection. The second reason of his Honour was that it would be necessary to lead the fact of the complaint in order that he could properly instruct the jury under the terms of s36BD of the Evidence Act. This was referred to in Miller v R (1995) 13 WAR 504 at 511 where I said that the question may well be resolved on the basis that the effect of s 36BD is to make relevant and admissible the time when the first complaint is made in any circumstances as it would be difficult to give the specified direction if this were not known. This had been alluded to by the Chief Justice, as trial Judge, in that case. Section 36BD assumes that evidence of absence or delay in complaining is admissible for the limited purpose of the trial Judge making the direction required by the section. In the present case the defence, very properly, put emphasis on the late complaint. This required a direction under the section. For that reason I would see Stacey's evidence as being admissible as it was no more than evidence of the fact that that was the time a complaint was first made. It contained no detail.

The complainant in her evidence did give detail of the complaint. It was submitted on behalf of the respondent that this evidence could be regarded as a fresh complaint as it was a complaint about the totality of the complainant's bad sexual experience at the hands of the accused person within the meaning of that expression when used by Anderson J in Suresh v R at p33. It was submitted that there would be good reasons for the complaint not being made at an earlier stage as this was the first time the complainant had left home. It is implicit in the ruling of Murray J that he would not admit the evidence on this basis and there was no request to Judge Wisbey to so admit it. The trial Judge had no opportunity to give a ruling as to whether the evidence could be seen as a recent complaint of the totality of conduct and in these circumstances it would not be open now to submit that it was admissible. In the absence of a new ruling the evidence of the complainant should have been limited to the fact that the first time she spoke to anybody about the matter was when she spoke to Stacey and to the time when this occurred.

I would, however, see no miscarriage of justice as the further evidence of the complainant contained very little detail and was in reality no more than that was the first time she spoke about the matter. I would also see it of significance, on the facts of this case, that no objection was made to the evidence by counsel. The evidence supported the thrust of part of counsel's defence that the complainant made no complaint whatever to her mother, and although she had known Stacey as a best friend for a long time, and they had been living at each other's places, no mention was made to Stacey until this very late stage. The next matter of significance to show no miscarriage of justice was that the instructions given to the jury by the trial Judge were substantially in the form discussed with counsel for the defence prior to the commencement of the summing up. The thrust of the discussion was that there was no independent evidence corroborating the complainant's allegations and that his Honour should give an appropriate direction by reason of that. This will be considered further when considering a subsequent ground of appeal. Counsel, when discussing the caution on corroboration, made comment on the direction which should be given in respect of complaint evidence. Counsel said (AB 311):

"Whether your Honour goes so far as to caution the jury to a vital extent or simply bring to their notice is a matter for your Honour. I certainly would ask your Honour that it should be brought to their notice the care they must take in the examination of the evidence because of those factors and the fact that - factors as to time and the factors as to the delay in complaint. That's about all, your Honour. I am sure your Honour will direct them that complaint, whether it be recent or otherwise, is certainly not evidence of the fact."

I have underlined the words "recent or otherwise" as it is apparent that the main concern of counsel was the need to have a direction that the complaint evidence was not evidence of the fact. There was no concern that there was some evidence of detail of the late complaint. There was every indication that this fitted in with the thrust of the defence in this area. The direction his Honour gave was (AB 325):

"If I can refer to some specific issues in the evidence that is necessary for you to address, and the first matter about which I wish to speak is the issue of complaints made by the complainant to several persons.

In matters of this nature the jury is entitled to consider how soon after an alleged event occurred, complaint was first made. That is a relevant fact to take into account when dealing with matters of this nature. Evidence of complaint can be admitted in cases of a sexual nature, but it is important that you bear in mind that the only purpose of such evidence is that in such cases it goes to evaluate consistency of conduct.

In evaluating the evidence of the complainant and in determining whether to believe her, you're entitled to take into account whether she made a complaint and, if so, when and the nature and circumstances of the complaint. Failure to complain or a delay in complaining may cast doubt upon the reliability of the evidence of the complainant. Recent complaint may assist in establishing the complainant's credit. The evidence from Jodie Lee Bramley and Stacey Ann Collins was partly led for that purpose.

You will recall that Ms Bramley said that after the complainant stopped seeing her father there was a discussion between Ms Bramley and the complainant when the complainant said that her father had been touching her. Ms Bramley said that she suggested to the complainant that she ring Crisis Care. It's important that you also have regard to the fact that Ms Bramley said that the complainant had earlier denied that the accused person had sex with her. The witness, Ms Collins, said the complainant, 'Explained what had actually happened' that was as far as she took what was told to her, 'Explained what had actually happened on Sunday as they walked across Greenfields Circle.'

She was not specific as to when that event actually occurred, but the evidence might suggest that it was in or about 1993, although as I say she was uncertain as to dates, as you will no doubt recall. The formal complaint to Crisis Care and the police would seem to have been in or about 1995, early 1995, through to about, I think, April 1995 when the police involvement commenced. That evidence, the evidence of the complaints, would in other circumstances be regarded as what we call in the law, hearsay evidence. That is it's evidence of what someone has said to the another person outside the court.

The evidence of complaint is not led as the proof of the truth of the events which are alleged to have happened, but simply as to when, how and where the complainant first complained about the events the subject of the charges against the accused. The fact that a complaint was made is not confirmatory that what the complainant says in fact happened. A prompt complaint does not go as far as proving the truth of the complaint because, of course, a person can make up a story and go and complaint about it very promptly. As I have said to you the fact of complaint is admissible in law to show a consistency of conduct, that is to assess the credibility of the complainant.

A complaint is not, however, and this is very important that you have regard to this, a complaint is not corroboration or confirmation of the truth of what a person says. A complaint is material as to when it happened that you use to assess the credibility of the complainant. It is important that I tell you that the absence of complaint or delay in complaining does not necessarily indicate that the allegation of the offence that was committed is false. You will appreciate of course there may be many good reasons why the victim of an offence such as that alleged, may hesitate in making or refraining from making a complaint about the offence.

Fear, embarrassment or the particular relationship between a complaint and accused might, in a particular case, explain absence of a complaint or delay in making a complaint. You will recall the complainant's evidence as to the reasons why she did not make a complaint. Those reasons including, on her assertion, confusion, fear and the relationship between the two of them, that is was, 'It is our little secret.' She also indicated, in respect to her mother, the fear of disbelief."

His Honour said, correctly, that the evidence of recent complaint may assist in establishing the complainant's credit but his Honour then included in that classification the evidence of Stacey. This was an error but I would not see it of any consequence as the whole of the direction made it clear that it is recent complaint as distinct from delayed complaint which can be used for the purpose of consistency. This was made clear by a later reference by his Honour to the defence case. His Honour, when outlining the defence case, referred to the fact that the defence very properly asked the jury to take into account the late complaint as indicating the unlikelihood of the earlier offences having been committed. The jury would be perfectly capable of determining on the facts of this case as to what was recent complaint and what was a late complaint in the way commented on by the defence.

I referred earlier to the ruling of Murray J in the earlier trial. Murray J made this ruling before the reasons of this Court were delivered in Suresh v R (1996) 16 WAR 23. I would add my support to the reasons of Rowland J in that particular case that time has been reached for a re-examination of the rules relating to the admission of complaint evidence. He considered that the case he was considring was not the case to pursue the matter. Murray J made further reference to this in MH v R, unreported; CCA SCt of WA; Library No 970203; 7 May 1997. I would support the proposition for a review but this, again, would not be the case to do it. There is much to indicate that this aspect of the law developed during the nineteenth century is not appropriate to what is now known in respect of offences of this type. The cases would indicate its rationale and historical development is hard to explain (see for example Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460). The legislature by enacting s36BD has assumed that evidence will be given of when the complaint is first made. It can be argued that modern experience would support the proposition that the jury should be told of when the first complaint is made and that that should be a factor for them to weigh up in assessing the complainant's evidence, having regard to what they are instructed by reason of s36BD.

The next two grounds to which I shall refer relate to the trial Judge's actual directions in the area of complaint. The first is ground 2 which claims that his Honour erred by failing to direct the jury that the evidence of complaint was only capable of being used to buttress the credit of the complainant with respect to the final count of the indictment, namely the incident which occurred on 27 February 1994. This ground must relate to the evidence of Jodie. The direction which should be given is to be found in Kilby v R. Barwick CJ referred to a number of sources as to the purpose of the evidence and these included the 36th Edition of Archbold's Criminal Pleading Evidence and Practice, p392 para 1077, and a proposition set out in Halsbury 1952, 3rd Ed, Vol 10, 468 para 859. The passage referred to in the 1966 Edition of Archbold is contained in para 8-103 of the 1997 Edition. The evidence is admissible not as being evidence of the facts complained of but as evidence of the consistency of the conduct of the complainant with the story told by her in the witness box. This, in ordinary circumstances, is the appropriate direction for the trial Judge to give to the jury. It contains no reference to the term "buttressing". It is, in the main, a direction as to what the evidence cannot be used for. If the situation be that there is properly joined in an indictment a series of alleged acts over a long period of time and a complaint is promptly made in respect of the last act, then evidence of that complaint is properly before the jury, not as proof of the facts stated, but as evidence of the consistency of conduct of the complainant. In my view, as a general rule, there is no requirement for the Judge to say that it can only relate to consistency of conduct in respect of the last alleged act and cannot be used in judging evidence as to earlier acts. I can find no authority suggesting that such a direction should be given and in my experience, such direction is not given. The proposition that such a direction should be given as a matter of course would, in my view, be inconsistent with subpara (b) of s36BD of the Evidence Act. At the very least such direction would cause confusion. There are three requirements in a case of this nature. Firstly, as mentioned, there must be the direction that the evidence is not evidence of the facts complained of but is evidence of the consistency of conduct of the complainant. Secondly, on the facts of this case, there must be the direction required to be given under s36BD that there can be good reasons for not making a complaint and thirdly, in cases of this nature there must be the direction required to be given by Crofts v R [1996] HCA 22; (1996) 186 CLR 427, that the absence of complaint in the earlier instances is a factor to take into account in evaluating the complainant's evidence, having regard to the warning required to be given under s36BD.

If these directions are given then a jury would keep in balance each of the requirements. It would, in normal circumstances, be obvious to a jury, having heard these three directions, that a prompt complaint in respect of an alleged final act would not be evidence of consistency with an act alleged to have occurred a number of years before. It would be clear to a jury that there was no complaint in respect of the earlier acts. The directions show that, when considering the complainant's evidence, this is a factor to take into account after considering the warning required by s36BD. There may be factors before the jury to explain why the complaint is late, such as a greater understanding by the complainant when approaching adulthood. In my view a positive direction that the complaint made in respect of an alleged final act cannot be taken into account when judging the earlier acts have a tendency to put the matter out of balance.

These observations are based on what can be seen as normal directions in cases of this nature. The facts of a specific case may well require a different direction, particularly that the acts complained of are of a different type to the alleged earlier acts. I do not consider this was such a case. Consideration was given prior to his Honour's charge to the jury as to what should be said in this area and there was no suggestion that there should be a direction of the type referred to in ground 2.

The second ground relating to his Honour's directions to the jury is ground 3, which claims that his Honour, having directed the jury in accordance with s36BD, erred by failing to adequately direct the jury of the adverse inferences that could be drawn from the absence of complaint. It is important that the trial Judge follow what was said in Crofts v R. His Honour was conscious of this decision and he himself raised it in his discussions with counsel prior to his addressing the jury. As was said by the majority judgment at 451, the intention of the legislature was not to "sterilise" the complainants from critical comment where the particular facts of the case and the justice of the circumstances, suggested that the Judge should put such comments before the jury for their consideration. I consider the passage I have set out of his Honour's direction in the present case made it clear to the jury that one of the factors to consider in evaluating the complainant's evidence, having regard to the warning given pursuant to s36BD, was that there was no complaint made until the late stage referred to. His Honour made it even clearer when outlining the defence case when he said (AB 335):

"In terms of looking at the credibility of the complainant you are asked, and properly asked, to take into account matters such as the late complaint, the suggested unlikelihood that the activities alleged to have occurred would take place in the garage or the sitting room with the likelihood of other persons appearing on the scene, and thus finding out what was taking place."

I consider this complied with what was said in Crofts v R.

Ground 4 claims that his Honour erred by admitting evidence of uncharged acts which were said to demonstrate a "guilty passion" on the part of the applicant. I have already set out portion of this evidence and I shall now refer to it in greater detail. The complainant at the commencement of her evidence was asked if the appellant started to do things that upset her. She replied in the affirmative and was then asked what sort of things he did and she replied "he used to touch my breasts - do you want all of them?". She was then asked if there were specific incidents that she could remember and she then dealt with the specific incidents contained in the indictment. After dealing with the separate incidents she was asked (AB 87):

"You have described five separate occasions on which something of a sexual nature occurred, including the last occasion when you were 16. Were they the only occasions when the accused did things of a sexual nature to you? --- No.

Are you able to say on how many occasions he did things of a sexual nature to you? --- Too many times for me to even keep count.

Over what period did these things happen? --- Well, it started not long after he and my mum separated, so I would have been over 5 right up until 16."

Some further detail was obtained in cross-examination. The use which the jury could make of this evidence was referred to by his Honour in the following way (AB 330):

"There was evidence by the complainant of similar acts of impropriety by the accused towards her on other occasions. These occasions and the circumstances were not particularised and it was clear from cross-examination that the complainant could only give very general evidence. It is important that you bear in mind that if any of these other occasions occurred, if you find they occurred, they are not the subject of any charge against the accused. Those facts are by way of evidence of background according to the complainant of her relationship with the accused. If you found that such incidents happened, then it does not follow the accused is guilty of the offences with which he is charged.

You must not proceed on the basis that because someone has done something else at another time, then he must have done whatever he has been charged with. However, if you found the evidence of those other incidents compelling, it is material you would take into account when considering the relationship between the complainant and the accused and considering whether the crown had made out the case in respect of any count in the indictment beyond reasonable doubt. I repeat that simply because it is alleged that incidents of the nature described happened on other occasions it does not necessarily follow that the incidents giving rise to the charges in the indictment occurred. One event does not flow from the other."

Evidence as to relationship was clearly relevant in a case of this nature. The authorities in this area are set out by Nicholson J in S v The Queen (1991) 5 WAR 391 at 408. A recent statement of the law is contained in the remarks of Deane J in B v R [1992] HCA 68; (1992) 63 A Crim R 225 at 233 where his Honour said:

"The evidence that the applicant had committed acts of sexual indecency upon his infant daughter in the past was, in my view, admissible against him on his trial for similar acts of sexual indecency which he had allegedly committed upon the same daughter while she was still under 16 years. Once that evidence was adduced, the jury was entitled to use it against, as well as for, the applicant. It was, on any approach, the key to an assessment of the relationship between the applicant and the daughter and, as such, constituted part of the essential background against which both the daughter's and the applicant's evidence of the alleged offences necessarily fell to be evaluated."

The submissions in argument went further and claimed that there was a misdirection in as much as it is claimed that his Honour should have directed the jury that they could not use the evidence to show that there was propensity on the part of the appellant. I consider his Honour achieved what was required to be achieved when he told the jury:

"If you found that such incidents happened then it does not follow that the accused is guilty of the offence with which he is charged. You must not proceed on the basis that because someone has done something else at another time, then he must have done whatever he has been charged with."

There was the repetition by his Honour when he said that because it is alleged that incidents of the nature described happened on other occasions, it does not necessarily follow that the incidents giving rise to the charges in the indictment occurred. He said that one event does not flow from the other.

A guide as to an appropiate direction which should be given in these circumstances was set out by Callaway JA in R v Grech [1997] 2 VR 609. His Honour there said at 614:

(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it -

(i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and

(ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

I consider the effect of his Honour's direction was that the jury were instructed that because they must not reason that because the appellant engaged in sexual conduct on the other occasions he was the kind of person who was likely to have done so on the occasion charged. I would see the direction contained in para (b) 1 above as desirable by reason of caution. However I consider in this case it was clear from the whole of the summing up that the jury could only convict if they were satisfied of the complainant's evidence relating to the offences actually charged. I would add that the uncharged acts in the present case played a far less significant part than they did in Grech.

Counsel for the appellant referred us to the very recent case of BRS v The Queen [1997] HCA 47; (1997) 71 ALJR 1512. Particular portions to which our attention was directed were comments by Gaudron J at pp1525 and 1526 and McHugh J at 1527. In that case there was evidence adduced of an act with a different person and it was adduced for the purposes of rebutting evidence of good character. The trial Judge gave no direction at all as to the use the jury should make of that evidence. I consider that what was said in that case is not of assistance in determining the appropriate direction to be given when the evidence is led for the purpose of establishing a relationship.

It was submitted that it was a misdirection to say that if the jury found evidence of the other incidents compelling, it is material they could take into account when considering the relationship between the complainant and the accused and considering whether the Crown had made out the case in respect of any count of the indictment beyond reasonable doubt. It is submitted that in the portion I have underlined his Honour was inviting the jury to take into account uncharged acts directly in assessing guilt of that which was charged. In my view in the context of the whole direction, his Honour was doing no more than explaining the limited purpose of which the evidence could be used. It is of significance that there followed the repetition which I have earlier set out of the purpose for which the evidence could not be used.

Ground 5 claims that his Honour erred by failing to give the jury adequate "Longman" directions and in particular he failed to warn of the risk in acting upon the complainant's evidence alone. The direction his Honour in fact gave was (AB 327):

"In considering her testimony you will have to take into account that she has given evidence of events that are said to have occurred a considerable time ago, or many of which have occurred a considerable time ago and that 10 years has elapsed since the first of the alleged offences to which she makes reference. The passage of years brings into play several factors that will require your special attention, such as the reliability of the complainant's recollection and the difficulty faced by the accused testing the complainant's allegations a considerable time after the alleged events.

These factors should play a part in your evaluation of the complainant's testimony which you must scrutinise with great care, and to find the accused guilty you must be satisfied beyond reasonable doubt as to both the truth and accuracy of that testimony.

I repeat that in giving you this direction I am not suggesting to you that you either accept or reject the evidence of the complainant. That is, of course, solely your province. My purpose is simply to draw to your attention matters that are extremely relevant to your evaluation of the complainant's evidence, which you must take into account. If, having evaluated her evidence, having regard to the matters to which I have made reference, you are satisfied as to its truth and accuracy you can, of course, make findings of fact based upon it."

It can be seen that the warning did not go as far as the warning set out in Longman v R in as much as his Honour did not say it would be dangerous to convict in these circumstances. I have referred earlier to the discussion with counsel prior to his Honour addressing the jury. Murray J, at the earlier trial, gave a warning of a similar nature and refused a request to go to the extent of saying it would be dangerous to convict as he considered on the facts of this particular case, such direction ought not to be given by reason of s50 of the Evidence Act

This section provides that the Judge shall not give a corroboration warning to the jury unless the Judge is satisfied that such a warning is justified in the circumstances. It was held in Longman v R [1989] HCA 60; (1989) 168 CLR 79 that the section required a warning to be given where the Judge was satisfied that in the circumstances of the case the warning was justified. The Court at p91 set out the type of warning which was considered necessary in the circumstances of that particular case. This was a warning that as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. This Court in Malone v R, unreported; SCt of WA; Library No 8180; 6 April 1990 stated that where there has been some delay, but not to the extent of Longman, it was open to give the warning in different terms. In that case the appellant was tried in 1989 for an offence of rape alleged to have occurred in 1982. There was evidence of other sexual misconduct until 1984 when the matter was reported in 1988. There was corroboration of the evidence of the act of rape.

It was held in Longman that if a Judge refused to give the warning referred to, the conviction was liable to be quashed as unsafe and unsatisfactory if it were held that the refusal to warn left a perceptible risk of miscarriage of justice. There is a requirement under the section for the Judge to be satisfied that the warning was justified in the circumstances. The particular circumstances in the present case were that the first offence was some nine years prior to the first trial, the penultimate two offences some five years and the final offence, two years, but with a prompt complaint made after the final offence. It would not be to the point to say that the appellant would have a greater chance of acquittal had the warning in the form now suggested been given. This would apply in every case as the effect of such warning would have an impact on the evaluation of the complainant's evidence. The section recognises that this would be unfair to a complainant if the circumstances did not justify it. His Honour did point out to the jury as a matter requiring their special attention the difficulty faced by the accused person in testing the complainant's allegations a considerable time after the alleged event. He referred to the care necessary for the jury to take. His Honour did not consider the circumstances justified his going to the extent of saying that it would be dangerous to convict on the complainant's evidence. If his Honour was correct in this assessment then he was forbidden by the section from going to this extent. I consider there was material where His Honour could properly reach this view. I come to that view having regard to the fact that there was a complaint on her reaching adulthood and when an event occurred after she left home. The delays were not of the proportion referred to in Longman. The present case was a case of alleged continuous misconduct brought to the notice of the authorities a little over a year after the last act. The directions the trial Judge in fact gave, including the direction relating to the difficulty faced by the appellant in testing the complainant's allegations a considerable time after the alleged event, precluded any risk of a miscarriage of justice.

The test to be applied has been formulated very recently by the High Court in Jones v The Queen [1997] 72 ALJR 78 Gaudron, McHugh and Gummow JJ, when dealing with a question of inconsistency of verdicts, said that, having regard to the statements in M v R [1994] HCA 63; (1994) 181 CLR 487 at 523, there can be no doubt that "a miscarriage of justice" also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just. Their Honours, in outlining the test for determining whether a verdict is unsafe or unsatisfactory said (at 85):

In M, Mason CJ, Deane, Dawson and Toohey JJ said (at493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:

'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'

The majority judges explained the application of the test as follows:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' "

In that case the appellant was a gymnastic instructor and was charged with three counts of sexual intercourse with a child under his authority. The first and second offences were alleged to have occurred five years prior to the trial and the third offence four years prior to trial. There were convictions on the first and third counts but an acquittal on the second count. The majority held on the facts of that case that the acquittal on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the acquittal was a rejection of the complainant's account of the events which were said to give rise to that count. The majority referred to the fact that the jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. The majority considered it was difficult to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There was nothing in the complainant's evidence or in the surrounding circumstances which would give any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count. The Court referred to two factors present in that case making it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care. These were her delay in making the complaint and the lack of corroborative evidence, in particular, the absence of any medical evidence. It was said in the reasons of the majority that given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion for it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. The majority said that nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. Their Honours said that when the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in making the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory. The majority concluded that the proper application of the test formulated by the majority in "M" required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory.

In the present case there were factors present that may have caused the jury to have a reasonable doubt in respect of counts five and six. They were summarised by his Honour when putting the defence case to the jury. His Honour said: (AB335)

"Reference was also made to the events that occurred in the - alleged to have occurred - middle bedroom when Roslyn was supposed to be sleeping in a cot in that bedroom, and to the evidence which suggested that until the end of that period the subject particularised in the indictment, the child Roslyn, on some of the evidence was in the bedroom with her parents. It was only after the birth of the boy that in fact she shifted into the middle bedroom."

His Honour made a further reference at p336 of the appeal book:

"In respect to counts 5 and 6 the events in the middle bedroom of the accused's house, the defence of course points to the fact that having regard to the time-frame given by the complainant that you should say 'Well, the evidence indicates the child, Roslyn, would not have been sleeping in the room during that time-frame' and that should cause you to have real misgivings as to the account that is given. The defence also points to the fact that the evidence of Crispina was that when she got out of bed to attend to the child on the occasions she did, the accused was always in the main bed."

The submission on behalf of the appellant is that this would indicate that when the evidence of the complainant is set against other reliable evidence "it failed to carry sufficient conviction to reach the criminal standard of proof".

I would see a number of distinctions in the facts of the present case. There was in this case, in effect, an allegation of continuous misconduct from an early period in the life of the complainant by a father as distinct from an allegation of misconduct over a much shorter period by an outside person. This amongst other things, makes it much easier in the present case to explain the delay in complaining. The offences in the present case occurred when the complainant would not have an understanding as to their nature and would have had some faith in the integrity of her father as to make her hesitant to report him. It could be expected that the report would become more likely as the complainant got older. She gave an explanation as to why she did not complain to her mother. There was evidence of a prompt complaint on the day of the final act.

I do not consider on the facts of this case that it would be a proper judgment for this Court to make that the acquittal damaged the credibility of the complainant in respect of her evidence of the acts of impropriety. The complainant was having difficulty in putting them into a time frame and the acquittal is consistent with a doubt of them occurring in the circumstances outlined by her when describing the fifth and sixth counts. She could have been mistaken on the fact that her stepbrother had not been born. This would give rise to a reasonable doubt as to whether the conduct occurred in the circumstances outlined by her.

The final ground alleges that the learned trial Judge erred in failing to give the jury any directions as to the lawful use that could be made of the evidence of her younger sister that the applicant asked the sister to try on a pair of bikini pants. It was part of the circumstances of the first two counts that the complainant herself was asked to try on bikini bottoms. The younger sister gave evidence that at one stage she was asked to go to the shed and to try on some bikini bather bottoms. They were of a different colour to those referred to by the complainant. She thought that this was after he re-married. One of the reasons the evidence was led was because the appellant denied that he ever had a pair of bikini pants in his possession. His Honour gave no specific direction relating to this particular piece of evidence. The ground of appeal claims not that the evidence was inadmissible, but that a direction was required. I have referred to the general direction relating to matters not charged. In my view the evidence was so inconsequential that no direction was required.

I have had the advantage of reading, in draft, the reasons for decision of each of Pidgeon and Kennedy JJ. I will consequently not repeat the facts giving rise to this appeal except insofar as is necessary to explain the conclusions at which I have arrived.

It is convenient to deal with grounds 1 and 2 of the grounds of appeal together.

The appellant contends, in ground 1, that the learned trial Judge erred by permitting the Crown to adduce evidence of complaints made by the complainant in circumstances in which the complaint was not made at the first reasonable opportunity or in which it was equivocal. He contends, in ground 2, that, having incorrectly admitted the evidence of complaint, the learned trial Judge erred by failing to direct the jury that the evidence was only capable of being used to buttress the credit of the complainant with respect to count 9 on the indictment.

The submissions made on behalf of the appellant in support of the first ground were directed at the evidence of each complaint made by the complainant, being complaints to her friends Jodie Bramley and Stacey Collins, to a social worker at "Crisis Care", to her mother and, inferentially, to the police.

Little turns upon the evidence of complaints to the social worker, the complainant's mother and the police. The complainant was asked, during her evidence in chief, whether she told her mother about "any of these things" which had happened to her before telling Stacey Collins and she responded by saying that she had not because she was scared that her mother would not believe her. She was asked whether, after speaking to Stacey Collins, she spoke to anyone in authority about what had happened to her. She then mentioned that she had spoken to the social worker and that she and the social worker had "told" her mother (although her mother said in evidence that she was first notified of the complainant's allegations by a welfare officer employed by the Department of Community Development). No details of what was said were led in evidence. Also, while it was obvious that the police were thereafter contacted, no evidence was led in that regard.

However, the evidence of complaint to each of Jodie Bramley and Stacey Collins, and the manner in which that evidence was dealt with by the learned trial Judge, is considerably more significant.

Evidence of complaint to Jodie Bramley was given by the complainant and by Jodie Bramley.

The complainant said that her complaint to Jodie Bramley was made on 27 February 1994, the day of the appellant's birthday and the day upon which, she said, the events the subject of count 9 on the indictment occurred, those events having been recounted by Pidgeon J in the course of his Honour's reasons for decision. It is important to bear in mind, in this respect, that counts 1 and 2 were alleged to have occurred during 1987, counts 3 and 4 during March 1990, counts 5 and 6 (upon which the appellant was acquitted) between April 1990 and April 1991 and counts 7 and 8 between April 1991 and December 1991.

The complainant's evidence was that, after the events the subject of count 9 had occurred, she went to Jodie Bramley's home where she was herself then staying. She said that she was angry and upset and that Jodie Bramley asked her what was wrong. She answered by saying, "You know", to which Jodie Bramley responded, "Yeah, I do".

Jodie Bramley's evidence was somewhat different. She said that she had become aware that the complainant had stopped seeing the appellant. She could not recall when that was but said that she was "maybe 16 or 17" when she spoke about it to the complainant. She was 22 years old in August 1997 when she gave evidence at the trial. That being so she recalled that this conversation occurred in about 1991 or 1992. She said that, on the occasion in question, the complainant told her that the appellant had been touching her.

As to the complaint to Stacey Collins (who, the complainant said, was her best friend), the complainant said that, while walking through a park after the two girls had visited the appellant, she told Stacey Collins that the appellant had abused and interfered with her. She said that she was then 16 but that the conversation occurred prior to the events the subject of count 9. This put the conversation some time between 8 April 1993 (the complainant having been born on 8 April 1977) and 27 February 1994 (the date of the events the subject of count 9).

Stacey Collins herself said in evidence that, when she was about 16 (she turned 16 on 14 September 1993), she and the complainant visited the appellant's home. Thereafter, while walking across a park, the complainant "explained" to her "what had actually happened". This was in response to a question whether she had, at some stage, spoken to the complainant about the appellant.

In the course of his charge to the jury the learned trial Judge said, as regards each of these complaints, the following:

"In matters of this nature the jury is entitled to consider how soon after an alleged event occurred, complaint was first made. That is a relevant fact to take into account when dealing with matters of this nature. Evidence of complaint can be admitted in cases of a sexual nature, but it is important that you bear in mind that the only purpose of such evidence is that in such cases it goes to evaluate consistency of conduct.

In evaluating the evidence of the complainant and in determining whether to believe her, you're entitled to take into account whether she made a complaint and, if so, when and the nature and circumstances of the complaint. Failure to complain or a delay in complaining may cast doubt upon the reliability of the evidence of the complainant. Recent complaint may assist in establishing the complainant's credit. The evidence from Jodie Lee Bramley and Stacey Ann Collins was partly led for that purpose.

You will recall that Ms Bramley said that after the complainant stopped seeing her father there was a discussion between Ms Bramley and the complainant when the complainant said that her father had been touching her. Ms Bramley said that she suggested to the complainant that she ring Crisis Care. It's important that you also have regard to the fact that Ms Bramley said that the complainant had earlier denied that the accused person had sex with her. The witness, Ms Collins, said the complainant, 'Explained what had actually happened' that was as far as she took what was told to her, 'Explained what had actually happened on Sunday as they walked across Greenfields Circle.'

She was not specific as to when that event actually occurred, but the evidence might suggest that it was in or about 1993, although as I say she was uncertain as to dates, as you will no doubt recall. The formal complaint to Crisis Care and the police would seem to have been in or about 1995, early 1995, through to about, I think, April 1995 when the police involvement commenced. That evidence, the evidence of the complaints, would in other circumstances be regarded as what we call in the law, hearsay evidence. That is it's evidence of what someone has said to the other person outside the court.

The evidence of complaint is not led as the proof of the truth of the events which are alleged to have happened, but simply as to when, how and where the complainant first complained about the events the subject of the charges against the accused. The fact that a complaint was made is not confirmatory that what the complainant says in fact happened. A prompt complaint does not go as far as proving the truth of the complaint because, of course, a person can make up a story and go and complain about it very promptly. As I have said to you the fact of complaint is admissible in law to show a consistency of conduct, that is to assess the credibility of the complainant.

A complaint is not, however, and this is very important that you have regard to this, a complaint is not corroboration or confirmation of the truth of what a person says. A complaint is material as to when it happened that you use to assess the credibility of the complainant. It is important that I tell you that the absence of complaint or delay in complaining does not necessarily indicate that the allegation of the offence that was committed is false. You will appreciate of course there may be many good reasons why the victim of an offence such as that alleged, may hesitate in making or refraining from making a complaint about the offence.

Fear, embarrassment or the particular relationship between a complainant and accused might, in a particular case, explain absence of complaint or delay in making in a complaint. You will recall the complainant's evidence as to the reasons why she did not make a complaint. Those reasons including, on her assertion, confusion, fear and the relationship between the two of them, that is was, 'It is our little secret.' She also indicated, in respect to her mother, the fear of disbelief."

The admissibility of evidence of complaint in sexual cases is a limited exception to the rule against the use of prior consistent statements, subject to a number of conditions.

The exception, not least of all because of its limitation to sexual cases, is curious. In The Commonwealth v Cleary (1898) 172 Mass 175, cited in R v Osborne [1905] 1 KB 551 at 560, Holmes J, in giving the judgment of the Supreme Judicial Court of Massachusetts, described a similar rule as "a perverted survival of the ancient requirement that she should make hue and cry as a preliminary to bringing her appeal". That ancient requirement now, of course, no longer exists. Moreover, legislation in this State (as in others) is directed at ensuring that the absence of complaint, or delay in complaining, is not misused in cases of sexual assault. Section 36BD of the Evidence Act 1906 provides that:

"36BD Where on the trial of a person for a sexual offence or an offence under Chapter XXII of The Criminal Code evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -

(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and

(b) inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence."

A prime example of the kind of case in which there will ordinarily be good reasons why a victim of an offence such as that alleged may delay in complaining or refrain from complaining is one, as was said to be the case here, in which the victim is a child who is assaulted by a person having her or his trust or confidence. (Cf M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 515, per Gaudron J).

In this case the evidence of complaint was, in each instance, led by the Crown. Evidence of that kind is admitted only as evidence of consistency in the account given by the person claiming to have been sexually assaulted and therefore as a matter going to that person's credit (see Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 466). Consequently, it must be assumed that that was the Crown's objective in leading it. In any event, the learned trial Judge invited the jury to make use of it for that purpose. As will be apparent from what I have said he told the jury that recent complaint might "assist in establishing the complainant's credit" and that the evidence from Jodie Bramley and Stacey Collins "was partly led for that purpose". While he also dealt with absence of complaint or delay in complaining it seems to me that the jury would have been left with the impression that the trial Judge considered that it was open to them to regard the evidence of the two girls as amounting to recent complaint and, as such, available for use in establishing the complainant's credit in respect of the whole of her evidence.

It seems to me, with respect, that the evidence to which the learned trial Judge referred and, indeed, that of the complainant in respect of the complaints to Jodie Bramley and Stacey Collins, was not admissible for that purpose.

The evidence of the complainant as regards her complaint to Jodie Bramley was not, in my opinion, admissible upon any basis. The words "You know", said by the complainant to have been spoken in response to the question asked by Jodie Bramley, are, in my opinion, too equivocal even to be capable of amounting to a complaint for this purpose. They could, in the absence of evidence of other explanation, have referred to almost any conduct on the part of the appellant which might have upset the complainant. It being for the trial Judge to decide whether or not a statement is capable of amounting to a complaint (see R v Sakail [1993] 1 Qd R 312 at 321) that evidence should, on that ground alone, have been excluded.

Moreover, even if the complainant's evidence in this respect was capable of amounting to a complaint it could only amount to a recent complaint in respect of the events the subject of count 9. There was, as I have said, a substantial delay between the time of the words spoken to Jodie Bramley and the events the subject of counts 1 to 8. While the reasons for any delay might, in the circumstances recounted by the complainant, be particularly easy to understand that cannot have the consequence that the complaint should be taken to have been made at the earliest reasonable opportunity in respect of the events the subject of those counts. The delay having been one of years, it simply cannot be said that complaint was made at the earliest reasonable opportunity, however understandable that delay might have been. (Cf Suresh v The Queen (1996) 16 WAR 23 and Miller v The Queen (1995) 13 WAR 504).

So far as Jodie Bramley's evidence of the complaint made to her is concerned, it seems very likely that the complaint of which she spoke preceded the events the subject of count 9. If she was, as she said, 16 or 17 when the complaint was made to her, this would have put the timing of that complaint around 1991 or 1992. However it seems, from her evidence, that she believed that, at the time of the complaint, the complainant had stopped seeing the appellant, the complaint, on her evidence, having been made in the context of a discussion with respect to that fact. The evidence of the appellant suggests that she only stopped seeing the appellant after the events of 27 February 1994. Moreover, those events, as recounted by the complainant, did not (unlike earlier events recounted by her) encompass any touching of the complainant but rather the making of improper suggestions and the lifting up, by the appellant, of the top worn by the complainant. The uncertainty of the timing and content of the complaint, as recounted by Ms Bramley, makes it difficult to regard it as "recent" when viewed in the context of any of the counts the subject of the indictment.

So far as the alleged complaint to Stacey Collins is concerned, the earliest date upon which that complaint might have been made was, as I have said, 8 April 1993, at least 15 months after the latest date of the events alleged to constitute counts 1 to 8 (there being no doubt that the complaint to which she referred preceded the date alleged in count 9).

That being so, it was simply not open to categorise this complaint as having been made at the earliest reasonable opportunity after any of the events the subject of those counts.

It follows, from the aforegoing, that the learned trial Judge erred in leaving it open to the members of the jury to use the evidence of these complaints in assessing the general credibility of the complainant as being "admissible in law to show a consistency of conduct" on her part.

Because this Court cannot know what process of reasoning was adopted by the jury in the light of the learned trial Judge's direction (which, it must be assumed, would have been followed by the jury) and consequently what use might have been made of this evidence pursuant to the mistaken direction it seems to me that this is not a case in which the proviso to s689 of the Criminal Code can be applied. That being so, I would uphold the appeal and quash the appellant's conviction on these grounds alone.

However, it seems to me, for the reasons set out in the judgment of Kennedy J, that ground 6(a), too, has been made out. It is, for the reasons expressed by his Honour, difficult to conclude otherwise than that the jury was not satisfied, to the required standard, of the truth of the complainant's evidence with respect to the events the subject of counts 5 and 6 and difficult, also, to see upon what basis her evidence might have been considered by the jury to be more reliable in respect of the other counts. I would, consequently, uphold the appeal upon this ground also.

While it is consequently unnecessary for me to consider the remaining grounds of appeal I should say that I agree also with what has been said by Kennedy J in respect of grounds 4 and 5.

It follows, in my opinion, that the appeal should be allowed and the convictions quashed. For the reasons enunciated by Kennedy J a retrial would be inappropriate. That being so I, too, would direct a judgment and verdict of acquittal to be entered on each of the counts on which the appellant was convicted.