BG v R - [2010] NSWCCA 301

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
BG v R [2010] NSWCCA 301

FILE NUMBER(S):
2008/14424

HEARING DATE(S):
01/12/2010

JUDGMENT DATE:
13 December 2010

PARTIES:
BG
Regina

JUDGMENT OF:
James J Hislop J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/1055

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
24/07/2009

COUNSEL:
C Davenport SC
S Dowling

SOLICITORS:
S O'Connor
S Kavanagh

CATCHWORDS:
Criminal Law - sexual offences - s 293 Criminal Procedure Act - evidence of sexual experience or sexual activity - s 293(4)(a) - evidence of sexual experience or sexual activity at or about the time of the commission of the offence - evidence of events forming part of a connected set of circumstances.

LEGISLATION CITED:
Crimes Act 1900 - ss 63, 71, 76, 79, 89, 91A, 409B
Listening Devices Act
Criminal Procedure Act 1986 - s 293
Criminal Appeal Act - s 6(1)

CATEGORY:
Principal judgment

CASES CITED:
R v Morgan (1993) 30 NSWLR 543
HG v the Queen (1999) 197 CLR 414
Rolfe v The Queen (2007) 173 A Crim R 168
The Queen v Nguyen (2010) HCA 38
Rowney v The Queen (2007) 168 A Crim R 579

TEXTS CITED:

DECISION:
Appeal against conviction is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/14424
JAMES J
HISLOP J
PRICE J
MONDAY 13 DECEMBER 2010

BG v R

Judgment

JAMES J: BG appealed against his conviction after a trial in the District Court before his Honour Judge Freeman and a jury on nine charges of sexual offences allegedly committed in 1970 or 1971 against the same victim, a girl born in January 1957 (who I will refer to as “the complainant”), in contravention of sections of the Crimes Act which were in force at the times of the alleged offences but have since been repealed or substantially amended.
The charges were:-
1. Carnal knowledge of a girl aged between 10 and 16 years (s 71 Crimes Act)
2. Assaulting and committing an act of indecency against a female under the age of 16 years (s 76 Crimes Act)
3 and 7. Detaining with intent to have carnal knowledge (s 89 Crimes Act)
4, 5 and 8. Rape (s 63 Crimes Act)
6. Procuring a female under the age of 21 years for another person to have carnal knowledge (s 91A Crimes Act)
9. Buggery (s 79 Crimes Act)
It was alleged that the offence charged in the first count was committed between 4 March 1970 and 26 November 1970 and that the offences charged in all the other counts were committed between 26 November 1970 and 1 April 1971.
A feature of the case is that, although the offences were allegedly committed in 1970 or 1971, the complainant did not make a statement to police about the alleged conduct of the appellant until more than 30 years later, in October 2005.
The Crown case at the trial
Although two other witnesses were also called in the Crown case, the Crown case depended entirely or virtually entirely on the evidence of the complainant. The complainant’s evidence-in-chief can be briefly summarised as follows.
The complainant was born in January 1957. She had a large number of brothers and sisters, one of whom was a brother “A” who had been born in July 1955.
At the age of 5 years the complainant was made a ward of the State, as happened to most of her brothers and sisters.
At the age of 12 the complainant resumed living with her mother in a Sydney suburb (“the first suburb”). The appellant was living at the same property as the de facto husband of the complainant’s mother.
On an occasion while the complainant was living at the address in the first suburb the appellant took exception to the clothes the complainant was wearing, which had been supplied to the complainant by the Child Welfare Department. He demanded that the complainant go into her room and change her clothes. The appellant followed the complainant into her room “and he took off his belt and he started belting me around my legs. He split open my knee and he just kept belting me”. The complainant was terrified. At the trial the complainant indicated a scar on her knee shown in a photograph taken in February 2009 as having resulted from this assault.
This assault was not the subject of any charge against the appellant but formed an important part of the Crown case against the appellant as establishing a reason for the complainant being afraid of the appellant.
The complainant did not remain living in the first suburb very long. When the complainant was 13 years old the group consisting of the complainant, her mother, the appellant and the complainant’s brother A moved to an address in another suburb (“the first address in the second suburb”).
Count 1
On an occasion at the first address in the second suburb the appellant called the complainant into the bedroom used by the appellant and the complainant’s mother. The complainant’s evidence continued:-
“Q. Yes, what happened?
A. Well I went to the doorway and my mother and BG were on the bed and A was on the bed.
Q. Did anyone say anything to you?
A. BG told me to get on the bed, get my clothes off and get on the bed.
Q. What did you do?
A. I got my clothes off and I got on the bed.
Q. Did you get on the bed?
A. Yes, I did.
Q. What happened when you got on the bed?
A. Well, BG – A was on the bed and he was face down on his tummy, and BG was on top of him.
Q. What did BG do to you?
A. BG, he got on, he got on top of me.
Q. Yes?
A. And he stuck his penis into my vagina.”
This evidence formed the basis of the first charge against the appellant.
Count 2
The group moved to a second address in the second suburb (“the second address in the second suburb”).
One evening the complainant was in the kitchen at the second address in the second suburb and the complainant’s mother and two of her siblings were in the lounge room. The complainant ‘s evidence continued:-
“Q. What happened?
A. BG came in, and he got me pinned up in the corner of the kitchen, the wall, and he put his right hand down into my pants. He lifted my dress up, and he stuck his fingers inside my vagina and he was kissing me, and he kept moving his fingers around inside my vagina. And I could feel that his penis was up against my tummy.”
The complainant said in evidence that she was too scared to cry out for help or subsequently to tell her mother about what had happened.
Counts 3 and 4
On an occasion at the second address in the second suburb when the complainant had returned home from school the appellant called out to the complainant to get into his room. In the bedroom the appellant and the complainant’s mother were on the bed. “They were drinking and they had no clothes on”. The appellant said to the complainant to “get the fucking hell around to my side of the bed”. The complainant complied, the appellant told the complainant to take off her clothes or he would rip them off. The complainant took off her clothes.
The complainant’s evidence continued:-
“A. I got my clothes off and I just stood there. And told me to get on the bed, had to crawl over him to get on to the bed. And I was on my back. And he got my hands and he tied them to the back of the bed. And he made me suck his penis. And while he – while he was doing that, my mother got something, and she spread my legs apart, and whatever it was, she stuck it inside my vagina. And after a while, she took it out, and BG got on me, and he stuck his penis in my vagina.”
The following question and answer occurred:-
“Q. Did your mother say anything to you at any stage?
A. She told me if I stopped – if I stopped fighting, I would learn to like it.”
Count 5
One afternoon the complainant and a girlfriend S hitchhiked into Liverpool and remained for some time at a community centre. They then attempted to hitchhike home. A police officer in a car picked up the two girls and drove them to their respective homes. At the complainant’s home the police officer spoke to the complainant’s mother and the appellant.
After the police officer had left, the appellant told the complainant to go to her room. In the complainant’s room the appellant assaulted the complainant with his belt.
The complainant’s evidence continued:-
“A. Started calling me names. He said if I wanted to act like a whore, he would treat me like one. And he ripped my clothes, and he pushed me to the floor, and he got on me, and he put his penis in my vagina. He just pushing at me harder and harder, and I was screaming. And he wouldn’t stop.”
The appellant left the room and the complainant crawled under her bed. A little later the appellant returned to the complainant’s room, he grabbed the complainant and started pulling the complainant out from under her bed and the complainant heard her arm “snap”.
The complainant’s mother and the appellant took the complainant to a hospital for treatment for her arm. The appellant told the complainant to keep her mouth shut while she was at the hospital. The appellant told the medical staff at the hospital that the complainant had fallen off a horse and that was how her arm had been broken.
Count 6
A frequent visitor to the second address in the second suburb was a man named BH. The complainant gave the following evidence:-
“A. Well, my mother and BG had run out of cigarettes and beer. And I remember BG saying to BH that if he gave him money he could have me for the night. And BH gave him money and BG left to go and buy cigarettes…….
A. BH took me into my bedroom and put his arm around me and he started kissing me and he undressed me and he laid me on my bed and he knelt down. He was still kissing me on my lips. And then he started moving down my body and to my tummy. Then he got down further and he pushed my legs apart, and he started licking me. And he put his tongue in my vagina and was moving it in and out. Then he got up and he got on top of me and he put his penis in my vagina.”
Counts 7, 8 and 9
All of these charges were based on events happening on the same occasion.
The appellant called the complainant into his bedroom. The appellant and the complainant’s mother were lying on the bed in the bedroom. They had no clothes on and were smoking and drinking.
The appellant told the complainant to get undressed. The complainant “stopped fighting ……. Well, I just, I just knew I was going to get beaten and it was going to happen anyway and I just, I just gave up.”
The complainant’s evidence continued:-
“A. I got on the bed and I was on my back and BG got my hands again and he tied them to the back of the bed, my wrists, and he started masturbating.”
The complainant’s mother spread the complainant’s legs apart and started rubbing the complainant on her clitoris.
The complainant’s evidence continued:-
“A. Then BG got down and he got on me and he stuck his penis in my vagina. And after a while he got off me and he untied my hands. He told me to get on my stomach and I rolled over and he stuck his penis in my anus and I screamed. It hurt. My mother was laughing when he did that. And then he stopped.”
The complainant’s mother put a cigarette she has been smoking on the complainant’s knee, burning it. In her evidence at the trial the complainant indicated a mark on a photograph of her knee taken in February 2009 as being a mark left by the burning cigarette.
After she had gone to the police in 2005 the complainant told police that she believed that the appellant was living in South Australia. After the appellant had been located in South Australia the complainant, at the suggestion of the police, telephoned a telephone number in South Australia and after a number of unsuccessful attempts spoke to the appellant. She put to the appellant her allegations of sexual misconduct but he denied the allegations.
The complainant said she had not come forward to the police before October 2005 “because I didn’t have the courage to come forward sooner”.
Cross-examination of the complainant
In cross-examination the complainant confirmed that she had not told anyone in authority about her allegations until October 2005. This was after she had been receiving psychiatric counselling for “quite a few years”.
The following questions and answers occurred in the cross-examination of the complainant:-
“Q. Did you speak to a police officer in 1997?
A. Yes, I did.
Q. Did you make formal statements to a police officer in 1997 about things that you said had occurred a long time ago?
A. Yes I did.
Q. You did not say one thing to the police in 1997 about BG doing anything to you back in 1970 or 71, did you?
A. No.
Q. Did you trust the police officer you spoke to in 1997?
A. No.
Q. You didn’t trust the police officer that you spoke to?
A. No.
Q. In 1997? You made two formal statements --
A. One.
Q. --to the police officer in 1997, didn’t you?
A. Yes.
Q. The same police officer? I am sorry, we may have been – you can’t remember if it was one or two statements that you made?
A. One. I made one. I made one statement.
Q. Are you sure?
A. Yes.
Q. Not two?
A. I am sure it was one.”
The complainant confirmed that the conduct on the part of the appellant which was the subject of the first charge had occurred in the presence of the complainant’s brother A.
The complainant agreed that in the statement she had made to police in October 2005 she had said that the incident on which counts 3 and 4 were based had occurred “in winter”. It was put to the complainant, and it was later established by the evidence of another witness, that the complainant had lived at the second address in the second suburb only between November 1970 and 1 April 1971. This was the period within which it was alleged by the Crown at the trial that all of the offences after the first had been committed.
The complainant agreed that from time to time representatives of the Child Welfare Department had come to the house and spoken to her and that the complainant had not made any complaints to them. The complainant said in evidence “I was too scared to”.
The complainant had never spoken to any of her school teachers about the appellant’s conduct.
In the statement made to police in October 2005 the complainant had mentioned being aware of the Royal Commission into Paedophilia.
On numerous occasions during the cross-examination of the complainant counsel for the appellant got the complainant to confirm that she had not made any complaint to police about any of the appellant’s conduct until October 2005 and, in particular, had not made any complaint to police about the appellant’s conduct when she had spoken to police about other matters in 1997.
Re-examination
In re-examination the following questions and answers occurred:-
“Q. You have been asked questions a number of times about not telling the police about what you say BG did to you?
A. Yes.
Q. Was there some reason as to why in 1997 that you did not tell the police about what BG did to you?
A. I was just terrified of him and I just, I just wasn’t ready to do it.”
Other Crown witnesses
Evidence was also given in the Crown case by the police officer in charge of the investigation Detective Senior Constable Harvey and by the complainant’s brother A.
Detective Harvey said that she had established that the complainant’s mother had died in 1985.
Over a period of a number of months Detective Harvey made attempts to contact the appellant. Detective Harvey eventually succeeded in tracing the appellant in South Australia. A warrant under the Listening Devices Act was obtained to listen to and record telephone conversations between the complainant and the appellant.
Eventually there was a telephone conversation between the complainant and the appellant, which was recorded. In this conversation the appellant agreed that he had lived with the complainant’s mother and that he knew who the complainant was. The complainant put her allegations of misconduct to the appellant but the appellant denied each of the allegations.
Subsequently Detective Harvey interviewed the appellant in Adelaide. Detective Harvey put the complainant’s allegations to the appellant but the appellant denied each of the allegations.
Detective Harvey attempted to find records which might be relevant to the complainant’s allegations including medical and hospital records, Department of Housing records, Department of Community Services records and school records but after such a long period hardly any records were still available. Detective Harvey did obtain records which showed that the complainant had lived with her mother at the first address in the second suburb from 4 March 1970 to 26 November 1970 and had lived with her mother at the second address in the second suburb from 26 November 1970 to 1 April 1971 and that the complainant’s brother A had lived at the first address, until he left to live with an aunt in September 1970.
Detective Harvey attempted to contact BH. She spoke to a person named BH but that person denied ever knowing the appellant or the complainant. Attempts to locate the complainant’s girlfriend S were unsuccessful.
The complainant’s brother A gave evidence in the Crown case. A confirmed that he had been made a ward of the State at an early age and had been in various foster homes. In 1968 he had been discharged into the custody of his mother and he had lived with his mother and the appellant at various addresses, including the first address in the second suburb. The complainant had joined A at that address.
A was asked whether he had seen anything happen to the complainant on an occasion in which he had been with his mother and the appellant in their bedroom. A replied “many things happened in that house but I can’t remember”.
The defence case
The appellant did not give evidence or adduce any evidence.
Grounds of appeal
The grounds of appeal against conviction were:-
1. Failure to cross-examine the complainant about the content of statements made in July 1997 resulted in an unfair trial.
2. The verdicts of guilty were unreasonable and against the weight of the evidence.
I will deal with these grounds of appeal in turn.
1. Failure to cross-examine the complainant about the content of statements made in July 1997 resulted in an unfair trial.
I have already set out a part of the cross-examination of the complainant in which counsel for the appellant at the trial got the complainant to agree that in 1997 she had made statements to a police officer about things which she said had occurred a long time previously but had not said anything about the appellant doing anything to her in 1970 or 1971. However, counsel for the appellant at the trial did not pursue this aspect of his cross-examination any further and did not ask the complainant about the contents of the statements she had made in 1997.
Copies of the statements made by the complainant in 1997 were annexed to counsel for the appellant’s written submissions.
From parts of the two statements it can be gleaned that the complainant in early 1962 was placed in a foster home with CB, his wife and their children in a suburb M. After about 4 years the complainant’s foster family and the complainant moved to a house in suburb G. When the complainant was about 12 years old, that is in about 1969, she was taken from this foster home and placed in a children’s home.
When the complainant was 14 1/2 years old, that is in about mid 1971 (and after the offences had allegedly been committed by the appellant) the complainant was again placed in the foster home of CB and she remained there until she was about 20.
In the statement a copy of which was annexure A to counsel for the appellant’s written submissions the complainant made allegations about the conduct of her foster father.
At the house in suburb M the bathroom had a frosted glass external window. The complainant would be told to take a bath by her foster mother. The complainant’s statement continued:-
“On week days when I was told to have a bath, this usually coincided with my foster father arriving home. On almost every occasion when I had a bath on the weekdays, I would see a person standing at the window of the bathroom, on the outside. The person would have their head up to the glass looking in. The person standing outside the window appeared to be my foster father. I have no doubt that it was my foster father. The person usually stood there for a couple of minutes, no longer than five minutes, and then the person would go. It was always the situation that 20 or 30 seconds after the person moved from the window my foster father would walk into the house. Regardless of whether he walked in through the front or rear door of the house, there was no reason for him to walk past the bathroom window.”

At the house in suburb G the complainant on several occasions when she woke up in the morning saw her foster father standing in the doorway of the bedroom, naked.
At the house in suburb G the complainant would also be told by her foster mother to have a bath about the time of her foster father’s arrival home from work. The complainant’s statement continued:-
“I would see a person, my foster father, standing against the window with his head against the window. I say that it was my foster father because of his build and his large nose. On some occasions he would cup his hands or use his hands to shade his eyes, and place them against the glass. He would walk away and then he would walk into the house. The bathroom window was on the driveway, and this is where my foster father usually walked along to go into the back door of the house.”
When the complainant was taking a bath, the door to the bathroom would sometimes open slightly. On one occasion the complainant looked through the gap left by the partly open door and saw her foster father looking into the bathroom with one eye.
On occasions the complainant saw her foster father sitting in a chair with the zipper of his shorts partly undone and the tip of his penis protruding.
After the complainant returned to the foster home in 1971 the complainant on a couple of occasions saw her foster father sitting in a chair with his penis exposed. The partial opening of the bathroom door and her foster father looking into the bathroom continued, until the complainant adopted the practice of having a shower in the morning after the foster father had left for work.
In the statement a copy of which was annexure B to counsel for the appellant’s written submissions the complainant made allegations about the conduct of a man GT, while the complainant was living in the foster home in the suburb M.
GT was a friend of her foster parents. He used to take the complainant on picnics. On these occasions GT would take down the complainant’s pants and insert his fingers into the complainant’s vagina. On some occasions GT would lower his pants and force the complainant to take his penis in her mouth. On other occasions GT would place the complainant’s hand on his penis and cause the complainant to masturbate him.
On one occasion, after attending a family wedding in a country town, the complainant travelled back to Sydney with GT and his wife, because the complainant’s foster parents had decided to remain in the country town for an extra day.
GT, his wife and the complainant went to GT’s home. After GT’s wife had gone to bed, GT engaged in various behaviour, including rubbing the complainant near her vagina, inserting a finger into the complainant’s vagina, forcing the complainant’s mouth on to his penis and finally forcing his penis into the complainant’s vagina and ejaculating.
Consideration of the ground of appeal
Apart from any statutory prohibition, evidence of the contents of these two statements could have been put to the complainant in cross-examination. Evidence that she had made statements to police in these terms in 1997 but had not made any statements to police about the alleged misconduct of the appellant until 2005 would clearly have been relevant as being capable of affecting the complainant’s credibility.
However, it can be inferred that counsel for the appellant at the trial refrained from attempting to cross-examine the complainant about the contents of the two statements because of an opinion he had formed that any such cross-examination would be prohibited by s 293 of the Criminal Procedure Act. In an affidavit made for the purposes of the appeal counsel for the appellant at the trial confirmed that he had not cross-examined the complainant on the contents of the two statements because of the opinion he had formed that any such cross-examination would be in breach of s 293 of the Criminal Procedure Act.
Section 293 of the Criminal Procedure Act provides in part as follows:-
293 Admissibility of evidence relating to sexual experience
(1) This section applies to proceedings in respect of a prescribed sexual offence.
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies:
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity,
is inadmissible.
…
(5) A witness must not be asked:
(a) to give evidence that is inadmissible under subsection (2) or (3), or
(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
Sub-section (4) of s 293 sets out a number of exceptions to sub-section (3). The only exception sought to be relied on by counsel for the appellant on this appeal was that contained in paragraph (a) of sub-section (4) which provides:-
“(4) sub-section (3) does not apply:
(a) if the evidence:
(i) is of the complainant’s sexual experience or lack of sexual experience or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence and
(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed………
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.”
Counsel for the appellant submitted that trial counsel had not been prohibited by s 293 from cross-examining the complainant on the contents of the two statements and that the failure to cross-examine on the two statements had caused the appellant’s trial to be unfair.
Counsel for the appellant conceded that evidence of the matters in annexure B to the appellant’s written submissions would have disclosed sexual experience or sexual activity on the part of the complainant and would have fallen within the prima facie prohibition in sub-section (3) of s 293. However, counsel submitted that evidence of the matters in annexure A would not have disclosed sexual experience or sexual activity on the part of the complainant and hence would not have fallen within the prima facie prohibition in sub-section (3)`.
As to evidence of the matters in annexure B and evidence of the matters in annexure A if counsel’s first submission about annexure A was rejected, it was submitted that both sets of evidence would have fallen within paragraph (a) of sub-section (4) of section 293 and hence would have been excluded from the prima facie prohibition in sub-section (3). It was submitted that these matters had occurred “just before” or “just after” the alleged offences by the appellant were committed and as part of “the same continuum” as the alleged offences of the appellant and therefore evidence of these matters was evidence of the complainant’s sexual experience or sexual activity “at or about the time” of the appellant’s alleged offences (sub paragraph (i) of paragraph (a) of sub section (4) ) and evidence of events that formed part of a connected set of circumstances in which the appellant’s offences were committed (sub paragraph (ii) of paragraph (a) of sub section (4) ).
Counsel for the appellant referred to R v Morgan (1993) 30 NSWLR 543.
In my opinion, evidence of the matters in annexure A (as well as evidence of the matters in annexure B) would have disclosed sexual experience on the part of the complainant and hence would have fallen within the prima facie prohibition in sub section (3).
Both the word “experience” and the word “activity” are used in section 293 and the word “experience” should be given an interpretation such that it is not limited to actual activity on the part of the complainant.
The experience of the complainant of being watched by her foster father through a window or a partly open door while she was naked in a bathroom, and of observing her foster father with his penis exposed was in my opinion, experience of the complainant of a sexual nature, particularly as it is implicit in the complainant’s statement that she herself perceived her foster father’s voyeurism and exposing of himself as being sexual in nature.
Counsel for the appellant’s own argument, that it would have been significant for the contents of the statement to have been elicited before the jury, assumes that the contents of the statement disclosed sexual misconduct by a person other than the appellant, which the complainant had complained of to police in 1997, eight years before she complained of the appellant’s alleged sexual misconduct.
I am further of the opinion that neither of the conditions in sub paragraphs (i) and (ii) for the operation of paragraph (a) of sub section (4) was satisfied.
None of the matters described in annexures A or B could be said to be “at or about the time” of the offences allegedly committed by the appellant. The matters described in annexure A occurred between 1962 and 1966 or between 1966 and 1969 (after which the complainant spent some time in a children’s home, before going to the appellant’s home) or after mid 1971. The matters described in annexure B occurred between 1962 and 1966. It is not possible, in my opinion, to regard matters occurring at any time within a period of a number of years as having occurred “at or about the time” of the alleged offences.
Nor could the matters be said to have formed part of a connected set of circumstances in which the alleged offences by the appellant were committed. The only real connection was the involvement of the complainant in all of the matters and in the appellant’s alleged offences.
It is instructive to compare the present case with Morgan, the case to which we were referred by counsel for the appellant.
In Morgan evidence of sexual activity on the part of the complainant was held to fall within s 409B of the Crimes Act, which was a predecessor in substantially similar terms to s 293 of the Criminal Procedure Act. The sexual activity in question was that the complainant on the same evening as the alleged offence of non-consensual sexual intercourse with the appellant had occurred and within an hour or two after it occurred, the complainant had consensual sexual intercourse with her boyfriend.
Mahoney JA who delivered the leading judgment in the Court of Criminal Appeal held (at 550B-C) that it would have been open to the jury to conclude that for the complainant to have had sexual intercourse with her boyfriend an hour or two after forced intercourse with the appellant would be contrary to human experience and improbable, that is to say the evidence in question was relevant, not merely to the credibility of the complainant, but to issues in the trial, as rendering the occurrence of the alleged offence less likely. This factor assisted the conclusion that the event (the complainant’s consensual intercourse with her boyfriend) formed part of a connected set of circumstances in which the alleged sexual offence was committed.
In the present appeal it was not submitted that evidence of the matters in the two statements by the complainant would have had any relevance otherwise than as affecting the complainant’s credit.
In view of my conclusion that evidence of the matters in annexures A and B would not fall within paragraph (a) of sub-section (4) of s 293, it is unnecessary to consider whether the tail piece to sub-section (4) would have been satisfied.
In my opinion, counsel for the appellant at the trial was correct in forming the opinion that evidence of the contents of the two statements by the complainant would have been inadmissible by reason of s 293 of the Criminal Procedure Act. It is clearly established that a correct application of s 293 of the Criminal Procedure Act to exclude evidence cannot of itself result in a trial that is unfair HG v The Queen (1999) 197 CLR 414; Rolfe v The Queen (2007) 173 A Crim R 168 at 185(5) per Giles JA.
I would reject the first ground of appeal.
2. The verdicts of guilty were unreasonable and against the weight of the evidence
This ground of appeal was based on that part of s 6(1) of the Criminal Appeal Act which provides that an appeal against conviction should be allowed if the Court of Criminal Appeal if of the opinion that a verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
The principles to be applied by the Court of Criminal Appeal in determining such a ground of appeal were recently restated by the High Court in The Queen v Nguyen (2010) HCA 38 at [33]. The High Court said at 33:-
The task of an appellate court in considering whether a verdict of guilty returned by a jury "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence" was described by this Court in M (M v The Queen (1994) 181 CLR 487 at 493-495). As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being "unsafe or unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". The question for the appellate court is one of fact.
"[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
As the plurality in M went on to point out:

"But 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 authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:

"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 doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

In the present appeal it was submitted on behalf of the appellant that the Crown case depended entirely or virtually entirely on the evidence of the complainant and that the evidence of the complainant contained discrepancies and inadequacies so as to lack credibility and consequently it had not been open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged.
Particular submissions made by counsel for the appellant included that the complainant’s evidence was uncorroborated and no records were available which might have supported her evidence; that on the complainant’s evidence her brother A was present when the offence charged in count 1 was committed, yet A had no recollection of it; that the complainant had made no complaint to representatives of the Child Welfare Authority who visited her home; that in 1997 she had made the two statements to police about things which had happened a long time previously but had made no complaint of sexual misconduct by the appellant; and that in the statement she had made in October 2005 the complainant had said that the offences charged in counts 3 and 4 were committed in winter at the second address in the second suburb, whereas it was established that she had lived at that address only from November 1970 to 1 April 1971.
Having made my own independent examination of the evidence and having considered the submissions of the parties, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged.
It is often the case that evidence of a sexual complainant is uncorroborated and absence of corroboration cannot of itself render a verdict of guilty unreasonable.
As was said by the Chief Judge in Rowney v The Queen (2007) 168 A Crim R 579 at 590 (51):-
“It will often be the case that when allegations are made of sexual activity with a young person occurring many years ago the recollection of detail will be imprecise”.
The absence of complaints by the complainant, at least while she was a child, is explicable on the basis of her fear of the appellant.
A’s evidence, when asked about the offence charged in count 1 was not a simple assertion of an inability to recollect but included the assertion that “many things happened in that house”, an assertion which, for no doubt good reason, neither counsel asked further questions about.
This was pre-eminently a case in which this court is required to pay full regard to the jury’s advantage of having seen and heard the complainant give her evidence. All of the matters by reason of which it is now submitted that the verdicts of the jury were unreasonable were elicited in evidence and squarely put before the jury in the addresses and in the summing up.
I would reject the second ground of appeal.
Having rejected both grounds of appeal against conviction I would dismiss the appeal. There was no application for leave to appeal against the sentences imposed by the trial judge.
HISLOP J: I agree with James J.
PRICE J: I agree with James J.
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LAST UPDATED:
13 December 2010