Erohin v Regina

[2006] NSWCCA 102

CITATION:	Erohin v Regina [2006] NSWCCA 102
HEARING DATE(S):	21/02/06
JUDGMENT DATE:	7 April 2006
JUDGMENT OF:	James J at 1; Simpson J at 107; Hall J at 108
DECISION:	Appeal against conviction dismissed. Leave to appeal against the sentences granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – CONVICTION APPEAL - sexual intercourse without consent in circumstances of aggravation - indecent assault – Longman direction – SENTENCE – whether the effective overall sentence misjudges the actual level of criminality involved
LEGISLATION CITED:	Crimes Act (NSW) Crimes Act 1958 (Vict) Criminal Appeal Rules Criminal Procedure Act
CASES CITED:	Crampton v The Queen (2001) 206 CLR 161 Crofts v The Queen (1996) 186 CLR 427 Doggett v The Queen (2001) 208 CLR 343 Dyers v The Queen (2002) 210 CLR 285 Kilby v The Queen (1973) 129 CLR 460 KRM v The Queen (2000) 206 CLR 221 Longman v The Queen (1989) 168 CLR 79 R v BWT (2002) 54 NSWLR 241 R v Folli [2001] NSWCCA 531 R v MDB [2005] NSWCCA 354 R v Murray (1987) 11 NSWLR 12
PARTIES:	Anatol Boris EROHIN v REGINA
FILE NUMBER(S):	CCA 2005/1942 CCAP
COUNSEL:	Ms V Lydiard - Crown T Game SC - Appellant
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) - Crown Kerrisons The Law Firm - Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3236
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ

2005/1942 CCAP

JAMES J
SIMPSON J
HALL J

Friday 7 April 2006

Anatol Boris EROHIN v REGINA

Judgment

1 JAMES J: Anatol Boris Erohin appealed against his conviction after a trial in the District Court before his Honour Judge Maguire and a jury on a charge that on 17 July 2002 he broke and entered a dwelling house in circumstances of aggravation and committed a serious indictable offence (which was count 1A in the indictment) and a charge that in October 2001 he committed an indecent assault (which was count 2 in the indictment). No verdict was taken at the trial on count 1B in the indictment, a charge of sexual intercourse without consent, which was an alternative charge to count 1A).

2 The serious indictable offence which was an element of the first charge was having sexual intercourse without consent. The circumstances of aggravation in the first charge were that the appellant at the time he broke and entered the dwelling house knew that there was a person inside the dwelling house. The victim of both of the alleged offences was an adult woman, who I will refer to as “the complainant”.

3 Breaking and entering a dwelling house in circumstances of aggravation and committing a serious indictable offence is an offence under s 112(2) of the Crimes Act, for which the maximum penalty is imprisonment for twenty years. Having sexual intercourse without consent is an offence under

s 61I of the Crimes Act, for which the maximum penalty is imprisonment for fourteen years. Indecent assault is an offence under s 61L of the Crimes Act, for which the maximum penalty is imprisonment for five years.

4 Judge Maguire sentenced the appellant for the offence charged in count 2 of the indictment to a term of imprisonment consisting of a non-parole period of eighteen months commencing 19 October 2004, the date on which the jury had returned their verdicts of guilty and from which the appellant had been in custody, and a balance of term of six months and for the offence charged in count 1A of the indictment to a term of imprisonment consisting of a non-parole period of six years commencing on 19 October 2005 (and hence partly cumulative on the sentence for the offence charged in count 2) with a balance of term of two years. In the event of his appeal against conviction being dismissed, the appellant seeks leave to appeal against the sentences imposed by Judge Maguire.

5 At the trial the only witness for the Crown, apart from a police officer who gave brief evidence, was the complainant. The appellant gave evidence in his own case and the appellant’s wife also gave evidence in the defence case.

The Crown Case at the Trial

The Complainant’s Evidence

6 The complainant lived in an outlying part of Sydney with her partner, who was a truck driver and often away from home, and her children.

7 The appellant and his wife built a house on a block of land behind the complainant’s home and thus the appellant and his wife became neighbours of the complainant and her partner.

8 The complainant, with the assistance of the appellant, obtained employment as a sales assistant for a business of which the appellant was the manager and a Mr Morrison was the owner. At first the complainant had only a part-time position but after about four weeks she obtained a full-time position.

9 Soon after the complainant began working for the business, the appellant asked the complainant whether she would “like to have a bit of fun”. The appellant said that neither of them would have to leave his or her partner and “no one needs to know”. The complainant replied that she was not interested in the proposal.

10 The appellant telephoned the complainant at her home and again proposed that the appellant and the complainant have some “fun”. The complainant would “see what it was like with a real man”. The appellant explained that he had had a vasectomy, so that there would be no problems.

11 In October 2001 the conduct which the subject of count 2 in the indictment occurred. As the complainant walked past the appellant at their place of work “he grabbed me on the backside”. The complainant “glared” at the appellant.

12 The complainant said in her evidence “I’d get up to walk out to meet customers and he just grabbed my backside”.

13 The complainant did not make any complaint about the appellant grabbing her in the buttocks, until some time after the offence the subject of count 1A was committed.

14 Each day when the complainant arrived at work, the appellant would say “Oh you look lovely today” and “then he would put his advances on me by touching”. On one occasion while the complainant was making coffee at work, the appellant came up behind the complainant, put his hands down the front of her top and felt her breasts.

15 In June 2002 the complainant injured her back, while she was lifting an object at work. The complainant stopped working, receiving workers’ compensation. She returned briefly to work but her back was still causing her pain and she again went off work on workers’ compensation.

16 The complainant received telephone calls from both the appellant and Mr Morrison, asking when she would be able to return to work. The appellant also asked the complainant about the complainant’s partner’s working hours. The complainant’s partner would usually leave home for work in the late afternoon and not return home until about 5 o’clock the following morning.

17 In the early afternoon of 17 July 2002 the complainant observed the appellant talking to the complainant’s partner over the fence which separated the two properties. The complainant’s partner left for work at his normal time in the late afternoon.

18 That night the complainant put her children to bed and prepared herself to go to bed, putting on pyjamas. She went to the laundry in the house and then into a room in the house which she described as an activities room. In the activities room she saw the appellant. The complainant demanded to know why the appellant was in the house. The appellant said “I want to see you” and that it was months since he had had sexual relations with his wife. The appellant asked for “a bit of fun” but the complainant told him to get out.

19 The appellant grabbed the complainant by the shoulders, spun her around and pulled down the complainant’s pyjama pants. “He was pushing his penis into me and I kept telling him to stop and screaming to get out and he kept pushing and pushing and it was hurting”. The appellant suddenly “let go” and “he ejaculated all over the floor and all over my left foot”.

20 The complainant observed that the appellant was not circumcised and “it look like he shaved his pubic hair”. In cross-examination it was put to the complainant, but she denied, that at a social function attended by the complainant and the appellant the subject of circumcising male children had arisen and the appellant had remarked that he had not been circumcised. The complainant accepted in cross-examination that she had only recently, for the first time, asserted that she had observed that the appellant shaved his pubic hair.

21 Just as the appellant let go of the complainant, the complainant saw her son, who was about eight years old, walk into the room. In his remarks on sentence Judge Maguire inferred that the child had heard his mother screaming. The complainant pulled up her pyjama pants. The appellant pulled up his shorts, ran out through a sliding door, opened the roller doors to the complainant’s garage and left the house.

22 The complainant gave evidence that, after she had put her son back to bed in her bed:

“Well I had a shower and I stayed in there for a long time and then I went and put on just a pair of trackie pants and another, like a football jersey because it was cold, that’s what I wore and I then went and got a tea towel and wiped up all the stuff that he spilt all over my floor and I went straight out into the Otto bin and put it in there”.

23 At one point in her evidence the complainant said that she had first told someone about the sexual assault “a couple of weeks later” but this evidence was not further developed or investigated at the trial and the trial proceeded on the basis that the complainant had first complained about the sexual assault only in early September 2002.

24 In late July 2002 Mr Morrison and his wife telephoned the complainant, asking when the complainant would be able to return to work. In a telephone conversation Mr Morrison became angry with the complainant, saying he had been told by the appellant that the complainant was well enough to go to parties. The complainant blurted out “(the appellant) is only saying these things because I wouldn’t have sex with him”.

25 The complainant received from either Mr Morrison or Mrs Morrison a grievance form, which she was invited to fill in.

26 On 3 August 2002 the complainant sent the completed grievance form to Mr Morrison. The grievance form was not admitted into evidence at the trial but the complainant was cross-examined about it. The grievance form consisted of four pages. In the grievance form the complainant set out grievances she had against the appellant, including constant sexual harassment, grabbing the complainant on her bottom and making rude suggestions. However, the complainant said nothing in the grievance form about the sexual assault which she asserted in her evidence had occurred on 17 July 2002.

27 The complainant gave explanations for not immediately telling Mr and Mrs Morrison or anyone else about the sexual assault on 17 July. The complainant said that she had not referred to the sexual assault in the grievance form because she had felt “dirty and ashamed”. She had been “upset” and “in shock”. The appellant and his wife and Mr and Mrs Morrison were a “very, very tight knit foursome” and “no one would believe me”. The complainant said that she had not made any immediate complaint “because I was stupid and not thinking and protecting his wife Donna and we were friends”.

28 Evidence was given by the complainant that she had received numerous telephone calls from the appellant. Her evidence about the period in which she had received these calls varied.

Other Crown Evidence

29 The only other witness for the Crown was a police officer Detective Schofield. Detective Schofield gave evidence that he had first spoken to the complainant about the charges on 6 September 2002 and had taken a statement from her on 12 September 2002. On 18 October 2002 Detective Schofield arrested the appellant. After he had been arrested, the appellant said that on legal advice he declined to be interviewed by police.

30 After 12 September 2002 forensic procedures had been carried out to determine whether there was semen on the floor of the room where the complainant alleged she had been sexually assaulted but no semen was found.

31 The trial would seem to have been conducted on the basis that, even if the complainant’s evidence was true, it would be unlikely, after a number of weeks had elapsed, that semen would be detected.

32 Neither Mr or Mrs Morrison nor the complainant’s partner or the complainant’s son gave evidence. It would seem that a ruling was made that evidence by the son would be inadmissible. However, no explanation was given for not calling the other persons as witnesses.

The Defence Case

33 In his evidence the appellant said that he and his wife had moved into a house behind the complainant’s house in December 2000.

34 The appellant agreed that the two families had socialised and that he had assisted the complainant to obtain employment at his place of work.

35 The appellant denied that he had ever grabbed the complainant on the buttocks, that he had ever touched the complainant on the breasts, that he had ever proposed to the complainant that they should have sexual relations, that he had ever made any sexual suggestion to the complainant and that on 17 July 2002 he had entered the complainant’s house and had had sexual intercourse with her.

36 The appellant said that the only occasions on which he had gone to the complainant’s house late at night had been, once to borrow and return a ladder and once to enable an exchange student who was staying at the appellant’s house to use the complainant’s computer to access the internet.

37 The appellant had first become aware of the complaints by the complainant of sexual harassment, when Mr Morrison had telephoned the appellant in “early August” 2002. He had first become aware of the allegation of rape in “late or September (sic)”.

38 The appellant gave evidence that he is not circumcised and that he cut his pubic hair.

39 The appellant’s wife gave evidence supporting the appellant’s evidence about the two occasions on which the appellant had said that he had gone to the complainant’s house late at night. The appellant’s wife could not recall any other occasion on which the appellant had gone to the complainant’s house late at night.

Appeal against Conviction

40 There was only one ground of appeal against conviction namely:-

The trial judge gave inadequate directions and warnings in relation to the complainant’s evidence, absence of complaints and delay .

41 It was submitted by counsel for the appellant, with justification, that the trial judge’s summing-up was “brief to the point of being terse”. The transcript of the principal part of the summing-up occupies just over twenty pages, of which almost half consists of directions and comments of a general nature.

42 The relevant part of the summing-up, for a consideration of the ground of appeal against conviction, was as follows:-

“The following direction relates particularly to the primary count, that is the first count and the alternative. There has been on any view of it a delay on the part of the complainant in making a complaint to any person to whom you might have expected her to complain – to her partner for instance. You have heard the evidence that it was not until 12 September, that is about seven or eight weeks after the events said to have taken place on 17 July that she went to the police at Camden in respect of the matters said to have taken place on 17 July that year and, indeed, at the same time in respect of the matters said to have taken place in the shop during the month of October in the year before.
The accused has argued that the delay by the complainant in making a complaint to a person to whom she might reasonably have been expected to complain such as her partner is inconsistent with the conduct of a truthful person who has indeed been sexually assaulted. The accused says that you should, therefore, regard the complainant’s evidence that he sexually assaulted her as false. This is necessarily a matter which you should consider but I must warn you that the delay in making a complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted hesitates in making a complaint.
It is important, however, that I give you certain warnings. It is most important that you appreciate fully the effects of delay on the ability of the accused to defend himself by testing prosecution evidence or adducing evidence in his own case to establish a reasonable doubt about his guilt. Counsel have referred to a number of considerations. I simply wish to suggest to you:
1. That if (the complainant) is telling you the truth about the event she says took place in her home there was present at first on the floor and then on the tea towel a considerable quantity of the accused man’s semen. If she had spoken sooner that would have been a powerful element in the Crown case. The other side of that coin is that the accused, by no fault of his, has been deprived of a most important opportunity in the task he has of defending himself. Please do not understand me to be suggesting he has to prove anything. By reason of this difficulty additional care or caution is required in the way you approach the prosecution evidence. If the complainant had spoken sooner the police would, on the one hand, have been able to collect physical evidence before she destroyed it. I refer of course to the semen said by the complainant to be on the floor and later on the tea towel.
On the other hand if a timely search for physical evidence proved fruitless then you might well take a different view of her evidence. I direct you that where there is a delay in making a complaint, the delay does not necessarily indicate that the allegation of the offence which was committed is false. Further, I direct you that there is no legal requirement that the evidence of a person making an allegation such as is made here needs to be corroborated by some other evidence. That is, there is no legal requirement that the evidence of the complainant needs to be backed up by some other evidence. However, you must always scrutinise evidence such as hers with great care.
Having carefully considered the matters to which I have referred you and the warning which I have given you, it is then a matter for you to determine what weight you should give to the complainant’s evidence in this case”.

43 No application was made by counsel for the appellant at the trial for any further or different directions on any of the matters dealt with in this part of the summing-up.

44 Under the one general ground of appeal five particular submissions were made by counsel for the appellant.

1. The directions about delay in making any complaint were limited by the trial judge to the first count, yet should also have been applied to the second count (the charge of indecent assault), where the delay between the alleged commission of the offence and the making of a complaint was much longer.

2. Evidence had been given by the complainant of conduct by the appellant other than the conduct the subject of each charge but no direction had been given to the jury to avoid tendency reasoning, particularly in considering the second count.

3. The directions about delay and complaint did not comply with Crofts v The Queen (1996) 186 CLR 427 (see R v BWT (2002) 54 NSWLR 241 at 250 (32) per Wood CJ at CL) and did not point out that when complaints had been made in the grievance form there had been no mention of the alleged sexual intercourse without consent.

4. The part of the directions which might be regarded as directions pursuant to Longman v The Queen (1989) 168 CLR 79 at 91 had, inappropriately, referred to the disadvantage which might have been suffered by the Crown through the complainant having, according to her evidence, wiped up the appellant’s semen with a tea towel and then having put the towel in the garbage bin.

5 The direction to scrutinise the complainant’s evidence with great care was insufficient. Reference was made to BWT at 263 (75) per
Sully J.

45 In oral submissions counsel for the appellant submitted that the trial judge had not given a Murray direction (R v Murray (1987) 11 NSWLR 12), had given a “reverse” Longman direction and had not given a proper Crofts direction.

46 Before addressing counsel for the appellant’s particular submissions, I consider that it is appropriate to make the following observations.

47 It must be accepted that, as counsel for the appellant submitted, the summing-up was very brief and was by no means a model summing-up. However, a summing up can be a sufficient summing-up even though it falls short of being a model summing-up.

48 As I have already indicated, no application was made by counsel appearing for the appellant at the trial for any further direction or any different direction from those given by the trial judge (except in two respects, both of which are irrelevant for present purposes). Accordingly, leave under r 4 of the Criminal Appeal Rules is required for the appellant to be allowed to rely on any part of the only ground of appeal.

49 The fourth and fifth particular submissions made by counsel for the appellant in his written submissions refer to Longman v The Queen, the fourth submission explicitly and the fifth submission by referring to the judgment of Sully J in BWT at 273 (95), where Sully J was considering the requirements for sufficient Longman directions.

50 Longman v The Queen was a case in which there had been a delay of more than twenty years between the times of the alleged offences and the time of the first complaint by the victim to police. At p 91 Brennan J, Dawson J and Toohey J said (omitting citation of authority):-

“But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”

51 In the later High Court cases of Crampton v The Queen (2001) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343 in both of which it was held by the High Court that a Longman direction should have been given, the delay between the time of the alleged offences and the time of the complaint being made was, in Crampton, nineteen years and, in Doggett, between twelve and nineteen years.

52 At the hearing of this appeal counsel for the appellant made a concession in the course of the oral argument that the present case was not a case of extraordinary delay and that it had not been necessary for the trial judge to give directions complying with all the requirements of Longman directions.

53 In my opinion, this concession by counsel for the appellant was properly made.

54 Although the “criterion for the provision of a warning as stated in Longman is not mathematically precise” (Doggett per Kirby J at 377 (127); BWT per Sully J at 274 (95)), the present case was not a case of extraordinary, or even lengthy, delay.

55 In the later High Court case of Dyers v The Queen (2002) 210 CLR 285, where there had been a delay of five years between the time of the alleged commission of the offence and the time of the first complaint, a majority of the High Court (Kirby J at 306-307 (54-58), McHugh J at 304 (47), agreeing with Kirby J and Callinan J at 329-330 (127-131) held that, at least in the particular circumstances of that case, it had not been necessary for the trial judge to give Longman directions. The other members of the Court (Gaudron and Hayne JJ) found it unnecessary to consider whether Longman directions should have been given (at 297 (21)).

56 In R v MDB [2005] NSWCCA 354, where the delay between the time of the commission of the alleged offence and the time of the complaint was about six months, Simpson J, with the approval of the other members of the Court, observed that the delay in that case was “nothing like the magnitude of that under consideration in Longman, Crampton, and Doggett” and that the instant case was not “a Longman case (at 41)”.

57 In the present case the delay between the time of the alleged commission of the principal offence (the offence charged in count 1) and the first definite complaint was only about seven weeks. Furthermore, the occasion on which that offence had allegedly been committed was clearly identified and the complainant claimed to have a good recollection of it. The only respect in which the appellant might have been disadvantaged which was specifically referred to at the trial, was that the appellant might have lost the opportunity of obtaining forensic evidence disproving that there was any semen of the appellant on the floor of the activities room. However, that opportunity had been lost, not by the lapse of any lengthy period of time, but by the complainant’s actions, on her account, of having, almost immediately after the offence was committed, wiped up the semen with a tea towel and then having thrown the tea towel into a garbage bin.

58 In the present case even the delay between the time of the alleged commission of the indecent assault offence and the first complaint of that offence was only about ten months.

59 I will now proceed to consider the particular submissions made by counsel for the appellant in support of the general ground of appeal.

60 1. The delay between the alleged commission of the offence and the first making of a complaint was longer in the case of the offence of indecent assault than it was in the case of the principal offence. There was a delay of about ten months from October 2001 to early August 2002, when the complainant complained to Mr Morrison that the appellant had grabbed her on the buttocks and Mr Morrison soon afterwards spoke to the appellant. There was a further delay to September 2002, before the complainant spoke to police.

61 Although the directions given by the trial judge could have been better expressed, I do not consider that the trial judge should be regarded as having limited his directions about the complainant’s delay in complaining to the first count in the indictment.

62 The trial judge began his directions by saying that they related “particularly” to the “primary” count, that is the first count in the indictment, which on any view was by far the more serious of the two offences charged. The use by his Honour of the word “particularly” would have indicated to the jury that, although the directions about to be given would apply “particularly” to the first count, they also had application to the other count in the indictment.

63 Furthermore, in the first paragraph of the directions the trial judge expressly referred to “the matter said to have taken place in the shop during the month of October in the year before”, which would have been understood by the jury as a reference to the alleged grabbing by the appellant of the complainant’s buttocks at their place of work in October 2001, which was the subject of the second count.

64 As I have already indicated, no application was made by counsel at the trial for any further directions.

65 I would reject this submission by counsel for the appellant.

66 2. I have already earlier in this judgment referred to the evidence given by the complainant of other sexual conduct on the part of the appellant directed to the complainant.

67 The submission that the trial judge should have given a direction to the jury to avoid tendency reasoning based on this evidence of other sexual conduct was not pressed by counsel for the appellant in his oral submissions. Counsel said that, subject to one qualification, he “backed away” from this submission. Consequently, subject to the one qualification to which I will come shortly, it is unnecessary to deal with this submission. I will, however, make some brief comments.

68 I note that no application for such a direction was made by counsel for the appellant at the trial. Even apart from r 4 of the Criminal Appeal Rules, it is of some significance that it did not occur to counsel for the appellant at the trial that such a direction was necessary. The judgments of the majority of the members of the High Court in KRM v The Queen (2000) 206 CLR 221 support the proposition that there is no absolute rule that a trial judge should always warn a jury against propensity reasoning, in a case where propensity reasoning would not be permissible. In the present case the evidence of other sexual conduct was brief, in some cases the conduct of which evidence was given was merely verbal and in some cases no details of the conduct was given and there was no risk that the other conduct would be confused with, or substituted for, the conduct charged in the two counts in the indictment.

69 The one aspect of this submission which was pressed by counsel for the appellant was that the trial judge should have directed the jury that evidence about the offence charged in the first count, which was the later offence, could not be taken into account in determining whether the appellant was guilty of the offence charged in the second count, which was the earlier offence. However, I am not persuaded that in the circumstances of the present case the omission to give such a direction gave rise to a miscarriage of justice.

70 3. In the summing-up the trial judge told the jury:-

“…I must warn you that the delay in making a complaint does not necessarily indicate that the evidence of the complainant is false. It may indicate fabrication on the part of the complainant but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted hesitates in making a complaint”.

71 A little later in the summing-up the trial judge said:-

“I direct you that where there is a delay in making a complaint, the delay does not necessarily indicate that the allegation of the offence which was committed is false.”

72 These directions were given pursuant to s 294 of the Criminal Procedure Act, which provides (so far as is relevant) that if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked tending to suggest that there was a delay in the alleged victim making a complaint, the trial judge must warn the jury that delay in making a complaint does not necessarily indicate that the allegation that the offence was committed is false and that there may be good reasons why a victim of a sexual assault may hesitate in making a complaint.

73 Section 294 of the Criminal Procedure Act is similar to s 61 of the Crimes Act 1958 (Vict), which was considered by the High Court in Crofts v The Queen.

74 In Crofts v The Queen the High Court held that in a case where there has been a delay in the alleged victim of a sexual offence making a complaint, then, not only should a direction in accordance with a statutory provision such as s 61 of the Crimes Act 1958 (Vict) be given but also, as a general rule, a direction should be given in accordance with the direction set out by Barwick CJ in Kilby v The Queen (1973) 129 CLR 460 at 465 “that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they (the jury) should take into account that she had made no complaint at the earliest reasonable opportunity”.

75 In the present case the trial judge in his summing-up said:-

“The accused has argued that the delay by the complainant in making a complaint to a person to whom she might reasonably have been expected to complain such as her partner is inconsistent with the conduct of a truthful person who has indeed been sexually assaulted. The accused says that you should, therefore, regard the complainant’s evidence that he sexually assaulted her as false.”

76 In the part of the summing-up I have just quoted the trial judge was merely repeating arguments which had been put on behalf of the appellant and did not give the jury any directions. However, the trial judge proceeded to say “this is necessarily a matter which you should consider”.

77 Although what the trial judge said fell short of being a model direction, I consider that the combination of the repetition of the argument which had been put on behalf of the appellant and the statement by the trial judge that the argument had to be considered by the jury amounted to a sufficient compliance with Crofts, particularly in the absence of any application for any further direction.

78 It might have been preferable for the trial judge to have reminded the jury in the summing-up that, when various grievances were disclosed by the complainant in the grievance form of 3 August 2002, no complaint was made about the alleged offence of sexual intercourse without consent on 17 July 2002. However, as might have been expected, counsel for the appellant at the trial had emphatically made the point to the jury in his closing address, saying about the grievance form (among other things):- “Not one word of the intercourse or the rape that occurred on 17 (July)”. I do not consider that there is any risk that the jury would have overlooked the point in their deliberations.

79 I do not consider that the trial judge was obliged in the summing-up to refer to the various explanations given by the complainant for the delay in making a complaint and references by the trial judge in the summing-up to these explanations might not have assisted the appellant.

80 I would reject this submission made by counsel for the appellant.

81 4. In support of his submission that the trial judge should not in the summing-up have referred to the disadvantage which might have been suffered by the Crown, as distinct from the appellant, through the complainant, according to her evidence, having wiped up the appellant’s semen with the tea towel and having thrown the tea towel into the Otto bin, counsel for the appellant cited R v Folli [2001] NSWCCA 531.

82 In Folli the offences charged had allegedly been committed at various times between 1980 and 1983 and no complaint had been made until 1997 or 1998.

83 In the trial judge’s summing-up in Folli the trial judge referred to, and made comments about, the delay which had occurred between the times of the alleged offences and the making of a complaint. In his comments the trial judge said that the delay had made investigation of the alleged offences difficult, both for the Crown and the accused, and had made it difficult for witnesses on both sides to recall circumstances and details of events.

84 It was held by the Court of Criminal Appeal that Longman directions should have been given and that what the trial judge had said in his summing-up did not amount to proper Longman directions. Mason P, who delivered the leading judgment in the Court of Criminal Appeal, added at par 22 of his judgment:-

“There is a further difficulty with that passage (in the summing-up) in that it suggests that the Crown case was also entitled to be viewed sympathetically having regard to the problems of delay. The purpose and form of a Longman warning are directed at protecting the accused from being convicted otherwise than in circumstances of heightened jury scrutiny and caution”.

85 Earlier in this judgment I noted that in his oral submissions counsel for the appellant conceded that the present case was not a case of extraordinary or lengthy delay and that it had not been necessary for the trial judge to give directions in accordance with Longman and I also recorded my opinion that these concessions had properly been made.

86 In cases where Longman directions are required, then in giving those directions a trial judge should not refer to any disadvantage which the Crown might have suffered through the delay in any complaint being made, because the purpose of giving Longman directions is to protect the accused and referring to disadvantages which the Crown might have suffered through the delay is likely to detract from the efficacy of the directions in protecting the accused.

87 However, in cases where Longman directions are not required, such reasoning is not applicable.

88 I accept that a trial judge should be cautious in suggesting to a jury that, if events had happened differently, the Crown might have had more evidence than the evidence it in fact presented at the trial and that a trial judge should direct the jury’s attention to the evidence which has been presented at the trial and not encourage the jury to speculate about what other evidence might have been available, if events had happened differently.

89 However, I do not consider that there is any prohibition on a judge making a comment to a jury, in a case where Longman directions are not required, that, if some event or events had happened differently, evidence might have been available, which, if it had taken one form, might have favoured the Crown but which, if it had taken another form, might have favoured the accused.

90 In the present case, I consider it would have been quite apparent to the jury, even without their having been told by the trial judge, that, if an immediate investigation had been carried out, it would have revealed material evidence, either the presence of semen on the floor or on the tea towel, which would have strongly supported the complainant’s evidence, or an absence of semen, which would have seriously weakened the complainant’s evidence.

91 I would reject this submission by counsel for the appellant.

92 5. In support of this submission counsel for the appellant referred to BWT at 263 (75) per Sully J. However, in this part of his judgment in BWT Sully J was discussing Longman directions and what his Honour said is not applicable to a case where Longman directions are not required.

93 The present case was a case where there was only one witness (the complainant) asserting the commission of the crimes charged and the trial judge was required to give a direction that “the evidence of that witness must be scrutinised with great care” R v Murray (1987) 11 NSWLR 12 at 19 per Lee J.

94 In the summing-up the trial judge after directing, correctly, that there was no legal requirement that the evidence of the complainant needed to be corroborated or backed up by some other evidence, a direction which would have conveyed to the jury that the complainant’s evidence was not corroborated or backed up by other evidence, directed the jury that “you must always scrutinise evidence such as hers with great care”.

95 This was a sufficient Murray direction and I would reject this submission made by counsel for the appellant.

96 In my opinion the appeal against conviction should be dismissed.

Appeal against Sentence

97 The appellant’s written submissions and oral submissions on the application for leave to appeal against sentence were quite brief.

98 It was submitted that the offence of indecent assault did not warrant a penalty of two years imprisonment and that the effective overall sentence “misjudges by a substantial margin the actual level of criminality involved”.

99 It was pointed out by counsel for the appellant that the sentencing judge by partially accumulating the sentences had arrived at a total effective sentence in which the total non-parole periods exceeded three quarters of the total sentences.

100 No submission was made that the sentencing judge had made any specific error of fact or law in sentencing the appellant.

101 I do not consider that either of the sentences could be held to be manifestly excessive, although the sentence for the indecent assault could be regarded as severe.

102 The maximum sentence for the principal offence is imprisonment for twenty years. In his remarks on sentence the sentencing judge said with respect to the principal offence:-

“The crime committed in the complainant’s house is appalling. He broke into her home knowing that she was the only adult present and he did so for the purpose of his own sexual gratification. She had never given him any encouragement. Nonetheless he was of the view that her consent, or otherwise, was immaterial. He used considerable force to subdue his victim and desisted only when the child arrived on the scene in answer – as I infer - to his mother’s screams. Such behaviour is seriously criminal and the community expects that it will be punished accordingly.
I perceive the need to deter this man and to deter others. I am of the view that he planned this offence. His earlier offence upon her and his previously uttered sexual proposition suggest just that. To reach her home from his involved his walking some hundreds of metres”.

103 All of these findings were open to his Honour and indicate a high level of criminality in the commission of the offence.

104 The appellant not having pleaded guilty or having demonstrated any contrition was not entitled to any discount in sentencing on these grounds. The appellant had a previous criminal history which militated against leniency being extended to him.

105 It is true that the sentencing judge by partially accumulating the sentences arrived at a total effective sentence in which the total non-parole periods somewhat exceeded three quarters of the total sentences but I would not intervene on this ground.

106 I would grant leave to appeal against the sentences but would dismiss the appeal against the sentences.

107 SIMPSON J: I agree with James J.

108 HALL J: I agree with James J.

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