Foggo v Regina

[2007] NSWCCA 364

New South Wales
Court of Criminal Appeal

CITATION:	FOGGO v REGINA [2007] NSWCCA 364
HEARING DATE(S):	10 September 2007
JUDGMENT DATE:	21 December 2007
JUDGMENT OF:	Mason P at 1; Adams J at 106; Smart AJ at 115
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – improper rejection of evidence – witnesses – cross-examination – where cross-examination of complainant’s actual response given to a question in an intercepted conversation disallowed – where complainant should have been cross-examined - CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – where cross-examination disallowed but should have been permitted – no substantial miscarriage of justice - CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – other irregularities – permitting improper cross examination – improper comment – where comment framed as an irrelevant question – where some questioning framed improperly – where some questioning relevant - CRIMINAL LAW – Appeal – miscarriage of justice – Circumstances not involving miscarriage or in which miscarriage not substantial – where taken as a whole questioning did not involved a substantial miscarriage of justice - CRIMINAL LAW – Appeal – particular grounds – unreasonable or insupportable verdict – where appeal dismissed
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Libke v The Queen [2007] HCA 30, 235 ALR 517
PARTIES:	Douglas FOGGO REGINA
FILE NUMBER(S):	CCA 2007/3153
COUNSEL:	Appellant: P M Strickland SC/ M Buscombe Respondent: M Barr
SOLICITORS:	Appellant: Chalmers Marx Lawyers Respondent: S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 05/11/1168
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	8 September 2006

CCA 2007/3153

MASON P
ADAMS J
SMART AJ

Friday 21 December 2007

Douglas FOGGO v Regina

Judgment

1 MASON P: The appellant challenges his conviction following a trial before Finnane DCJ and a jury in the District Court. He was found guilty on two of the three counts in the indictment, being charges of sexual intercourse without consent and indecent assault.

2 On 8 September 2006 a sentence was imposed, in respect of the first count, of 2 years imprisonment, made up of a non-parole period of 15 months and an additional term of 9 months. The sentence was suspended upon the offender entering into a bond under s12 of the Crimes (Sentencing Procedure) Act 1999 for a period of 2 years. A fine of $25,000 was also imposed. In relation to count 2, the learned judge deferred passing sentence upon the offender entering into a bond under s9 of the said Act.

3 The central issues in the trial were whether the complainant consented to the sexual acts and whether the Crown proved that the appellant knew of the absence of consent or was recklessly indifferent about that matter.

4 The complainant was a 17 year old worker at a factory controlled by the appellant. At the time of the alleged offences the appellant was aged 54.

5 The appellant asked the complainant and another employee (Mr Crane) to go out for Christmas drinks. The complainant asked his mother’s permission and told her that he had arranged to stay the night at Crane’s premises after drinks. The appellant picked up the complainant at his home. His mother’s evidence was that she told the appellant that her son “could have one drink”.

6 The appellant, the complainant and Crane went to the Jannali Inn. According to the complainant the appellant purchased him three Scotch & Cokes. They had a meal at the bistro and more alcohol was consumed at least by the appellant and Crane. Before the three men drove to Crane’s premises the appellant purchased a case of Woodstock Bourbon & Coke cans.

7 The complainant said that he was feeling very light-headed and dizzy. According to him, he needed the appellant’s assistance to walk from the car to Crane’s house down a bush track. More alcohol was consumed as was some marihuana although there was a conflict on the evidence as to whether the appellant smoked the “joint”. By this stage the complainant was “very smashed and drunk”.

8 The complainant asked where he was to sleep. He and the appellant walked over to adjacent premises that belonged to Crane’s friend.

9 While the details vary in some respects, it is common ground that the appellant began to massage the complainant as he lay on a mattress that he had placed on a table on the verandah.

10 The complainant first had his back and shoulders massaged as he lay on his front. He said that he felt uncomfortable with the situation (“some guy massaging me”) but that he did not object to the massage at that stage. According to his evidence, at some point the appellant started rubbing his “backside”. At that point the complainant “kept on saying no and started moving”. The movement he described was a wriggling motion. The complainant gave the following evidence in chief (Tr p105):

Q. What did he say, if anything, in response to your saying no?
A. He kept asking me if you would like me to stop.
Q. And what was your response?
A. I just kept saying, ‘No’.

11 In the context, the complainant was saying in effect that he kept objecting. This was clarified explicitly later in the evidence (Tr p155). It also becomes clear very shortly after in the transcript where the following appears (Tr pp105-6):

Q. When you say he rubbed your buttocks was he rubbing them with the baby oil?
A. Yes.
Q. What happened after he rubbed your buttocks with baby oil underneath your boxers?
A. Then he turns me, he turned me over.
Q. Can you recall how he did so?
A. No.
Q. And were you then lying on your back?
A. Yes.
Q. And facing the ceiling?
A. Yes.
Q. What then happened?
A. And then he took off my boxer shorts and started rubbing my groin area.
Q. When he started to take off your boxer shorts, did you resist?
A. Yes.
Q. How?
A. I was just saying, “No, no”, and didn’t want, like, just moving up and down again, like side to side, wiggling.
Q. Is that the same wriggling motion you indicated before?
A. Yes.
Q. Why didn’t you just get up off the table?
A. Because I couldn’t.
Q. Why couldn’t you get off the table?
A. Because he was, like, sort of leaning over me.
Q. Exactly how do you say he was leaning over you?
A. He was standing at my head and leaning over my body.
Q. But why couldn’t you just push him away?
A. Because I was scared, he’s a big boy.
Q. Why were you scared of?
A. Him.
Q. What did you fear?
A. That he would probably bash me.

12 The appellant began to rub and masturbate the complainant’s penis with baby oil. This was the act of indecency relied upon to support the second count in the indictment. The complainant said that he kept saying “No” and also indicating his objection by moving his body.

13 The complainant’s penis became erect and the appellant sucked it for about a minute. This was the act relied upon to support the first count. According to the complainant the appellant desisted after a few minutes, apologised, stating “I’m sorry. It shouldn’t have happened” and walked into the house.

14 There were some inconsistencies in the complainant’s evidence as to the duration of fellatio. It was for the jury to decide their significance.

15 As will appear, the appellant accepted that these two sexual acts occurred. It was his case that they did so at the invitation of the complainant. At the very least, he believed the complainant was consenting.

16 The third count in the indictment was based on the complainant’s evidence that on the following day at work the appellant walked up to him and grabbed his bottom. This evidence was denied by the appellant and it was not supported by the evidence of Mr Crane who, according to the complainant, saw the incident. The appellant was acquitted on the third count.

17 The Crown case rested entirely on the evidence of the complainant. Nevertheless, it was supported by four broad categories of evidence.

18 First, there was evidence about the naivety of the complainant. He had left school in Year 9. In his own words, he was slow at “everything”. The jury would have had ample opportunity to observe this witness whose limited understanding of the meaning of some common words is apparent on the face of the transcript. The appellant himself recognised the complainant’s intellectual and social inhibitions in the secretly taped conversation referred to below.

19 Secondly, there was a relationship of dominance on the part of the appellant, one in which he at times exercised a quasi-parental role over the complainant. The complainant said that he was scared of the appellant.

20 The appellant was effectively the complainant’s employer. He had selected him to work at the factory. The complainant had made several mistakes at work, yet he retained his job.

21 There were acts of significant generosity and friendship from the appellant towards the complainant. (I am not inferring that they were less than genuine.) The appellant coached him in mathematics, taught him to drive a car, offered to pay for his TAFE course, took him to the snow for a short holiday, bought him meals and played squash with him on three or four occasions.

22 There was also relationship evidence capable of supporting the complainant’s evidence that he feared to disregard the appellant’s instructions in particular matters. He had been disciplined physically for infractions at work.

23 The complainant gave evidence that he had been working on the roof of the appellant’s factory. He had done something wrong and the appellant asked him to go to his office. The appellant pulled his pants down and slapped him on the bare buttocks with a piece of wood. This evidence about the complainant was strongly challenged and it was denied by the appellant. It had not been mentioned to anyone involved with the prosecution until the Friday before the trial commenced.

24 There was evidence of another occasion when the complainant was working at the factory on a weekend. The complainant said that the appellant had punched him in the jaw with a closed fist. It hurt enough for him to go to the dentist. This incident had been reported shortly after it occurred to the complainant’s parents and to the police. The police report is dated 9 May 2004.

25 The complainant’s father gave evidence that he spoke with the appellant about this incident. The appellant had said that something had happened but that the complainant had “deserved it” (Tr p283). The appellant denied this conversation as well as the specific incident.

26 Thirdly, the Crown case included evidence capable of showing that the sexual events on the night in question did not occur out of the blue.

27 The incident involving the spanking was capable of being viewed by the jury as having sexual overtones.

28 The complainant gave evidence that on the last occasion he played squash with the appellant, the appellant tried to get him to share a shower at the squash centre. The complainant did not do so because he felt “uncomfortable”. This evidence was contested both in cross-examination and in evidence called by the appellant from the owner of the squash court that the only male showers were contained within individual cubicles. This latter evidence would have cast doubt on one aspect of the complainant’s account of the particular incident.

29 Fourthly, there was evidence of complaint referable to the offences established against the appellant, as well as evidence of significant apologies on the appellant’s part that fit uneasily with his case that there had been sex involving “consenting adults”.

30 The complainant told his mother on the day after the incident that the appellant had “sucked [his] cock”. The mother gave evidence that the complainant told her he had been sexually assaulted by the appellant; that he had had too much to drink because the appellant was buying him drinks; and that the sexual assault occurred in the course of a massage that the appellant offered to give him after he complained about having a sore shoulder.

31 The complainant’s father was also told about the incident in general terms.

32 The appellant was summoned to the parents’ home and spoken to by the complainant’s father. The father said that the appellant apologised and offered him the opportunity to hit him, so that he would feel better (Tr p113. See also Tr p285). The appellant told the father that his conduct had been out of character and that he was going to get counselling.

33 This evidence was substantially corroborated by the appellant himself. He gave evidence that he had apologised to the father “about what happened last night, it was out of character”. The father suggested that the appellant should seek counselling and was told that the appellant wanted first the opportunity to explain matters to his wife. The complainant was unwilling to speak to the appellant on this occasion. When the complainant’s father told the appellant that his son was “too distressed… too upset” to speak to him, the appellant told the father “I know how you must feel, go ahead and take your best shot, hit me”. He also offered to pay for counselling for the complainant.

34 The complainant said the he could hear the conversation and that the appellant had told his dad that he was really sorry and that it shouldn’t have happened.

35 The complainant went to the police about two months later. It was then that arrangements were made for him to speak to the appellant on 4 April 2005 when wired up with a listening device (see below).

36 The appellant’s case at trial was that sexual activity similar to that described by the complainant referable to counts one and two had occurred, but it was consensual and the appellant believed that the complainant consented.

37 The appellant arranged to go out for drinks with the complainant and Mr Crane. He collected the complainant from his parents’ home. He agreed that the complainant’s mother had told him that the complainant was not 18 and that he was to make sure that he did not drink too much.

38 The appellant said that he bought the complainant two Scotch & Cokes at the Jannali Hotel. He also confirmed that he had bought a carton of Woodstock Bourbon and Coke cans to take back to Crane’s premises. He denied that he had assisted the complainant to walk down to Crane’s premises and he disputed the evidence about marihuana.

39 He said that the complainant tripped and fell over as the two of them walked to the other premises where the complainant was going to sleep. When they arrived the complainant said he had hurt his back. This was the context in which the massage took place. According to the appellant, the complainant took his own shirt off. The complainant asked the appellant to crack his back, which he proceeded to do. The complainant’s back was still sore and the appellant asked the complainant if he would like him to massage his back. The complainant agreed.

40 The appellant got out the mattress and asked the complainant to get up on the table. By that time, the complainant had removed his pants but he still had his boxer shorts on. The appellant brought out towels and baby oil and he began to massage the complainant’s back.

41 The appellant gave evidence that the complainant indicated that he was enjoying the massage and that he asked the appellant to massage his front. The complainant then rolled over. By this point in time, the complainant had, according to the appellant, removed his boxer shorts, although his groin area was initially covered by a towel. As the appellant massaged the complainant’s lower stomach area he noticed that the complainant had an erection. The complainant picked up the appellant’s hand and put it on his penis. He took his hand back, but continued to massage the complainant’s thigh area. When he massaged the thigh area he asked the complainant if he wanted him to stop but the complainant said “No”. He also asked him the same question when he had hold of the complainant’s penis and he received the same answer.

42 The appellant said that the complainant then asked him to suck his penis, using a well-known slang expression. He sucked very briefly. The complainant at that time put his hand on the back of the appellant’s head. The appellant then stopped and told the complainant that things had gone far enough and that he should go and masturbate. A similar version had been put to the complainant in cross-examination and denied by him.

43 It can thus be seen that the two cases were diametrically opposed as regards consent. According to the Crown case, the appellant initiated the events and persisted despite the complainant’s protestations indicated by repeated “Nos” and squirming or wriggling. On the appellant’s case, the complainant had initiated the encounter by complaining of a sore back, consenting to the massage and taking off his boxer shorts; and he had actively encouraged the appellant to continue by the words he used, by picking up the appellant’s hand and placing it upon his penis, and by holding the appellant’s head during fellatio.

44 It was common ground that both actors were affected by alcohol although the degree of complainant’s affectation was in dispute.

45 There were initially four grounds of appeal. Ground 1, contending that the judge erred in admitting as relationship evidence the evidence of acts of violence against the complainant by the appellant, was not pressed. The remaining grounds were that the judge erred in restricting the cross-examination of the complainant concerning the listening device conversation (Ground 2); error in permitting improper cross-examination of the appellant (Ground 3); and that the verdict was unreasonable or could not be supported having regard to the evidence (Ground 4).

Ground 2: Error in restricting cross-examination of the complainant

46 On 4 May 2005 the complainant met the appellant wearing a listening device that had been fitted by the police pursuant to a warrant. A conversation ensued that was recorded, unbeknown to the appellant.

47 Recordings of the listening device were before the jury as Exx C3 and C4. Several days were wasted due to technical difficulties. Eventually an agreed CD was tendered and the jury listened to it with the assistance of earphones. Both the Crown and the appellant put before the jury transcripts of the listening device recording, respectively Exx C4 and A2. The jury were told that the transcripts were to assist them and that they were to make up their own mind about what was said.

48 The Court has listened to key parts of the CD tape.

49 The conversation encompasses the events of the night in question. The appellant expressed concern for the complainant and reiterated offers to pay for counselling for the complainant who was having difficulty coping with the aftermath.

50 The tape contains no clear admissions by the appellant on the critical issue whether the sexual encounter was consensual. There are expressions of regret and solicitude that are equivocal on that issue.

51 There is however one passage which, according to the appellant, contains an admission on the complainant’s part to the effect that the sexual conduct was consensual. The critical portion (Track 24) is set out below, with the Crown’s suggested version crossed out and appellant’s suggested version indicated in bold.

[COMPLAINANT] I just wanted to tell you that I want to do counselling or speak to someone about what happened I gotta get it out of me I told my mum and I told my dad and that’s it, and that’s it, I wanna talk to some one about it, someone like if it did speak to a counsellor they’d probably go to the police or something, don’t want that.

FOGGO: Police can’t do anything anyhow.
[COMPLAINANT]: Pardon No.
FOGGO: Police can’t do anything any how, consenting adults.
[COMPLAINANT]: did Yeah.
FOGGO: To be honest with you I’m not being smart when I say that but what, I’m quite happy to speak to some people and see if they will give you some one but I think you just got to think of your age.
FOGGO: I won’t say maybe you’ve got a bad conscience I don’t know, maybe you think that it’s a guilt thing here to you being involved.
[COMPLAINANT]: I’m not.
FOGGO: You know.
[COMPLAINANT]: There’s no guilt I just want it off my chest.
FOGGO: Well mate it is off your chest, you speaking about it gets it off your chest.
[COMPLAINANT]: But I don’t want to speak to the wrong person.
FOGGO: But at the end of the day, the end of the day no matter everybody has to move on you know.
[COMPLAINANT]: I’m trying to move on.

52 Having listened to the CD in chambers, it is my view that the complainant’s response to the statement that “police can’t do anything any how, consenting adults” was almost certainly “Yeah”. However, the tone of the answer gives no real clue whether the complainant was assenting to all or part of the appellant’s statement or, alternatively, just indicating that he wanted the topic to continue being talked about.

53 Before cross-examination of the complainant commenced there was discussion in the absence of the jury about what the complainant had said in response to the appellant’s remark that “police can’t do anything anyhow, consenting adults”.

54 The Crown prosecutor indicated that he would be objecting to cross-examination on what the complainant actually said “unless the ground work is laid to the effect that he can in fact independently remember what he said because he can’t give expert evidence of what’s on a tape” (Tr p160). The trial judge indicated that he thought that the tape was the best evidence of what was said, although he would not exclude evidence from the accused as to what he meant by what he said and from the complainant as to what he meant by what he said. Counsel for the accused pressed for the right to question the complainant whether, having heard the tape, it had refreshed his memory of the conversation so that he could be asked why he answered in a particular way. The judge indicated that the witness could certainly be asked why (Tr p161).

55 Counsel for the accused pressed for the right to question the witness as to his recollection of what he had actually said given that the tape was not terribly clear. It was submitted that since the witness was being asked to interpret his own voice, he was in a better position than a stranger. Everyone agreed to think further about the point overnight.

56 Cross-examination of the complainant commenced the next day.

57 The cross-examination of the complainant revealed the sharp division at the trial on the issue of consent. It was put to the complainant that the only time that he had said “no” was when the appellant had said to him “do you want me to stop”. The complainant said that he said “no” because that was what he had been saying before in a context where he was clearly objecting (Tr pp201-2). The jury would have been in no doubt that the defence case included consent. Equally, they would have been in no doubt that the complainant was maintaining the position that the appellant had initiated the sexual encounter and that the complainant did not consent to it.

58 It was put to the complainant that his answer “No” to the question “Do you want me to stop” was an indication of consent. The complainant strongly denied this proposition. It was, in my view, well open to the jury to understand the complainant’s case to be one in which he had always indicated his absence of consent. The case remained one in which the jury had to decide whether they were satisfied beyond reasonable doubt of the complainant’s version. The complainant said that he told the appellant to stop by saying “No” (Tr p207).

59 After the defence case had effectively been put to the complainant there was discussion, in the absence of the jury, concerning the right to cross-examine the complainant about the answer variously transcribed as “did” (by the Crown) and “yeah” (by the defence) responding to the appellant’s statement that “police can’t do anything any how, consenting adults”.

60 Counsel for the accused said that he wanted to ask the complainant what he had said at this point in the intercepted conversation, to raise the possibility that what he had said “yeah”, and ask why the complainant did not dispute the appellant’s assertion (Tr pp238-40).

61 The trial judge reiterated his view that the witness could be asked what he meant by whatever expression he used. But counsel would not be permitted to ask what he actually said. During submissions the judge said (Tr p240):

So I couldn’t propose to let you ask: What did he say? What did you say there? What he said there is what he said there. He can’t now by later evidence try and change what he said there, which is what he might seek to do. He is not, it seems to me, a very intelligent young man, unfortunately for him, and he might well attempt to change what he said. He might agree with you and he might disagree you, and whatever he said might not be the truth, because what he said there he said there. It’s up to the jury to determine what it is. It sounds to me like ‘did’. Now I don’t know what ‘did’ means.

62 The judge confirmed that he would not permit the complainant to be questioned about what he had said although he would be allowed to be asked what he meant by his response.

63 At one stage there was the following exchange (Tr p240):

BUSCOMBE: I want to ask why he didn’t dispute.
HIS HONOUR: Alright, why he didn’t say that.
BUSCOMBE: Given that he was told not to tell any lies by the police.

64 It remains slightly unclear, but I do not read the judge’s remarks during submissions as rejecting a line of cross-examination that would have put to the complainant that he did not dispute the appellant’s assertion about “consenting adults” and would have pressed the complainant to explain why he had not disputed it. I think that the ruling and its limited ambit can be discerned from the following exchange, albeit that matters were left slightly up in the air (Tr p241):

HIS HONOUR: I would have thought that when someone goes into trap someone using a listening device, it’s more important that they listen rather than engage in defensive conduct. It’s a question of what Mr Foggo said really. However, he can be asked why he didn’t. If he can give an answer to that question well and good. What other questions that you want to ask him on these listening device tapes? We might as well sort it all out.
BUSCOMBE: That was really it, your Honour.
HIS HONOUR: Look I think we will have the morning tea adjournment and we will come back at midday and then we can go back to this question at that time. I will see where we’re getting with views and the like during morning tea.
SHORT ADJOURNMENT.

65 There the matter was left as far as the judge was concerned.

66 The cross-examination resumed. Track 24 of Ex C3 was played to the jury. There was then the following cross-examination (Tr pp242-3):

Q. Mr [X], did you hear in the conversation Mr Foggo say to you “police can’t do anything anyhow to [sic] consenting adults?
A: Yes.
Q. And you heard him say that to you on the day, is that right, when you were there with him?
A. Yes.
Q. Why didn’t you say something to the effect of ‘no’, that’s not right, I wasn’t consenting?
A. Because I didn’t know what consent meant.
Q. When you gave evidence to the jury last week did you know what the word consent meant?
A. Yes.
Q. When did you first come to know of the meaning of the word “consent”?
A. Somebody told me that before all this court stuff happened that I consented to it and then I asked someone ‘what does consent mean’ and they said ‘it means when you’re actually saying yes to it’.

67 There was no further cross-examination about the tape or the issue of consent.

68 It may well have been the fact that the complainant had no recollection and/or that he may have got confused or worse if pressed to answer either as to his recollection or his understanding about the answer variously recorded as “did” and “yeah” in the respective transcripts. Nevertheless, I accept the appellant’s submission that the judge ought not to have prevented the complainant from being cross-examined about his actual response to what the appellant said in the intercepted conversation.

69 I do not, however, think that the ruling caused any substantial miscarriage or injustice. The jury were given the opportunity to hear the tape. And the cross-examiner was expressly permitted to explore why it was that the complainant did not dispute the appellant’s implied assertion that there had been assent to the sexual activity by “consenting adults”.

70 The appellant was free to give his version of the critical part of the tape. He gave evidence about the taped conversation but was not asked anything that might have clarified the uncertainty arising from the competing transcripts.

71 I would reject this ground of appeal.

Ground 3: Error in permitting the Crown, over objection, to cross-examine the appellant improperly

72 The appellant submits that the trial miscarried in consequence of improper lines of cross-examination permitted by the trial judge.

73 An issue emerged during the trial as to whether the complainant’s personal appearance had changed over time. There was material indicating that the complainant appeared gaunt and unwell by the time of the trial. Some questions were put to the appellant in cross-examination suggesting that the complainant had been “a lot better looking” when he was first interviewed and chosen for employment. The appellant denied the suggestion (Tr p476).

74 Later, the prosecutor indicated (in the absence of the jury) his intention to suggest to the accused that there was a considerable difference between the appearance of the complainant when he was videotaped during a police interview and his present appearance; and secondly, that his appearance on the videotape much more closely resembled his appearance in December 2004 (when the offences allegedly occurred) than his current appearance did (Tr p536)). This line of questioning was objected to, but ruled admissible.

75 His Honour seems to have been uncertain about the ultimate relevance of the line or lines of evidence that could flow from the question objected to. That said, the ruling appears to have gone no further than allowing the initial question to be put.

76 The appellant was then shown a video of the complainant which he was asked to assume was taken on about 1 April 2005 when the complainant first attended the police about the matter. The video was played without sound. The appellant was asked whether he agreed that the complainant’s appearance in that video was very different from the appearance that he observed (of the complainant) at the view during the previous week of the trial. [The complainant had given evidence through CCTV. I infer that the view was the only occasion during the trial when the appellant saw the complainant in person.] The appellant agreed that the complainant’s appearance was very different, but he would not agree that on the video the complainant looked “much more like he did when he was working [for the appellant] than he did last week” (Tr p542).

77 Eventually, the purport of the cross-examination emerged when the prosecutor suggested to the appellant that “he was a very good looking young man when he worked for you?”.

78 This question was not objected to. The appellant answered it by stating:

I never thought of him in that regard.

79 The cross-examiner then proceeded to detailed questioning that suggested the appellant had initiated the sexual encounter. The appellant agreed that he had offered to give the complainant a massage, that he had obtained baby oil, and that he used a towel because “it’s a common practice that I do when I give someone a massage” (Tr p545).

80 As indicated, the complainant had given evidence that the appellant had removed the complainant’s trousers and boxer shorts.

81 There was this exchange in the cross-examination (Tr p548):

Q. It was you that removed his trousers while he was on the bench?
A. No.
Q. You left his boxer shorts on?
A. No. His boxer shorts were on. He removed his jeans and shoes prior to the massage starting.
Q. At your request.
A. No.
Q. What just did it himself off the top --
A. Just did it himself. I asked him to remove his shirt when I checked his back as a result of the slip or the fall, and he left his T-shirt off.
Q. Are you seriously telling the jury that this boy removed his shirt, at your request, and then without your requesting it dropped his daks in your presence?
A. Yes, climbed on the massage bed.
Q. I suggest to you your answer is incredible.
BUSCOMBE: Objection, relevance.
HIS HONOUR: I will allow the question.
Q. Do you agree or your [sic] disagree?
A. I disagree.
Q. You were only going to be massaging his back, is that right?
A. That’s correct.
Q. When he dropped his trousers, why didn’t you tell him to put them back on?
A. I just didn’t – that didn’t occur to me. He climbed on the bed for a massage and he had his boxers on. He took his shoes and jeans off. I really didn’t put my mind to it, to be quite honest with you.
CROWN PROSECUTOR: Q. So, if a 16 year old – or 17 year – this boy was 17 at the time, wasn’t he? If a 17 year old male dropped his trousers in front of you, in an isolated spot where there were no witnesses, you would be alarmed, would you not?
A. I wasn’t alarmed, no.
Q. You weren’t alarmed, sir, because it was you who removed those trousers?
A. That’s not correct.

82 The appellant submits that the question that was objected to should not have been asked, let alone permitted. It was in the nature of a submission by the cross-examiner to the effect that an earlier answer was incredible and it called for the appellant to comment upon his own testimony. It was a question destined to damn the appellant in the eyes of the jury. The appellant submitted that his Honour compounded the error by asking inappropriate follow-up questions. I would accept these submissions. The question suggesting that the appellant’s answer was “incredible” when he said that the boy had dropped his trousers without request was an improper comment under the guise of an irrelevant question. The question ought to have been rejected. And the earlier question commencing “Are you seriously telling the jury…” ought not to have been framed this way either.

83 But it did not follow that there was any miscarriage of justice, let alone substantial miscarriage, in consequence of this isolated overstepping of the mark.

84 The matters raised on appeal need to be viewed in context. They were part of a forceful, yet generally proper, confrontation of the appellant with the substance of the Crown case, a case that differed very substantially from that advanced by the appellant.

85 There were several pages of cross-examination that followed in which the appellant was confronted with the Crown case. The questions put the detail of the complainant’s evidence while indicating, in the clearest of terms, that the Crown case was that the appellant had deliberately initiated the entire encounter.

86 It was not suggested, at trial or in the appeal, that the cross-examination was irrelevant or improper, save with respect to the matter referred to above and further matters to which I shall draw attention.

87 As to the remaining questions objected to, the earliest relates to the (unsuccessful) attempt to get the appellant to agree that the complainant’s appearance in 2004 was one that he found attractive and was different to the way the complainant presented at the time of the trial. The appellant submits that the question was irrelevant and damaging. If in some way it went to a matter of credit, it did not satisfy the requirements of s104(2) of the Evidence Act1995 and it should not have been permitted.

88 In my view, the issue was clearly relevant and, as indicated, there was a significant body of even more specific questions (to which no objection was taken) suggesting that the appellant initiated the encounter for his own sexual gratification.

89 Later (at Tr p550) it was put to the appellant that when he started to massage the complainant’s buttocks, he heard him whimper the word “No”. The appellant denied that he ever massaged the complainant’s buttocks. A few questions later he also denied the suggestion that he heard the boy whimper “No”.

90 Some time later (at Tr p557), time when it was being suggested that the appellant had pulled the towel down to the boy’s knees, it was put to the appellant:

He whimpered again, ‘No’.

91 Counsel for the appellant at trial objected to this question, stating in the presence of the jury that the appellant had not conceded that the boy had whimpered at any time. Judge Finnane allowed the question. After it had been repeated, the appellant answered:

No, he didn’t whimper and he didn’t say no, in fact, he was quite enjoying the attention.

92 In this Court the appellant submits, correctly, that the complainant had not given evidence of “whimpering” nor had the appellant accepted this proposition on the two or three occasions when the matter had been put in terms to him. The Crown accepts that the question should not have been asked in its terms. Nevertheless, it is difficult at this remove to capture the volume and tone of the complainant’s evidence about what he said and did when (on his case) he was resisting the unexpected advances of a man whom he feared.

93 The question “he whimpered again, ‘No’” (emphasis added) ought not to have been allowed. Nevertheless, the jury would have heard the basis given for the objection. And the appellant was able to address the matter squarely in his response. There was evidence that the complainant was saying “No” on a number of occasions and that he was unable to speak and was showing his distress by wiggling around on the bench.

94 More to the point the questions objected to did not, to the extent that they were improper, caused the trial to miscarry. The appellant was given the opportunity to deny the assertion that the complainant had whimpered, and he did so.

95 I would reject this ground of appeal.

96 I have concluded that there were questions that ought not to have been put by the cross-examiner. But the issue for this Court is whether the trial miscarried due to unfairness. The principles have recently been considered by the High Court (see Libke v The Queen [2007] HCA 30, 235 ALR 517 esp at [2], [37], [73], [81]-[82], [134]).

97 Here there were isolated breaches. But on the whole the appellant was able to present his case. The prosecutor did not repeatedly align his opinion with the prosecution case (cf Libke at [82]). And the appellant was permitted fairly to present his case through his own testimony.

Ground 4: Verdicts that were unreasonable or unable to be supported having regard to the evidence

98 The appellant submitted that upon a review of the whole of the evidence it was not open to the jury to be satisfied of guilt beyond reasonable doubt on the two counts for which the appellant was found guilty. He asks the Court to consider this ground in conjunction with the matters raised in the other two grounds.

99 Particular attention was drawn to inconsistencies in the evidence of the central witness, the complainant.

100 The jury were directed not to convict unless satisfied beyond reasonable doubt that the complainant was a truthful and reliable witness (SU 20, 35-37).

101 The appellant’s challenge pointed to the complainant’s evidence about the shower incident that was contradicted (in part) by that of the operator of the squash centre who supported the appellant’s evidence about the layout of the showers. I consider this to be a matter that may have caused the jury to ponder about the accuracy of the complainant’s testimony, but it did not require its wholesale rejection. The nub of his evidence was that the complainant was sitting on a bench opposite where the appellant was showering. He did not claim to have seen him from the side, where partitions in the showers would have blocked his view.

102 The appellant also relies upon the evidence given by the complainant to the committing magistrate that the only time he said “No” to the appellant during the massage incident was in answer to the appellant’s question “Do you want me to stop?” This part of the appellant’s case strikes me as an attempt to build bricks out of straw by taking an answer out of context and twisting its meaning. The complainant’s case from start to finish was that he objected to the sexual encounter initiated by the appellant. The complainant’s credibility was challenged, but I do not read the evidence about what was said at committal as indicating that he ever conceded that he consented to what happened.

103 I have considered these and the other matters relied upon, including the discrepancies as to the duration of the fellatio. They do not, in my view, require this Court to reject the jury’s verdict. I have indicated that it rested upon a substantial body of evidence, not all of it resting solely on the shoulders of the complainant.

104 This ground of appeal fails.

105 I would dismiss the appeal.

106 ADAMS J:

Introduction

107 I have read the judgment of the President in draft. I gratefully adopt his Honour’s account of the trial and the issues raised for determination by the jury. I also respectfully agree with his Honour’s conclusions that third and fourth grounds of appeal should be dismissed. I regret, however, that I am unable to agree that the second ground should be dismissed. On the contrary, I think it has been made good and that the appellant’s convictions should be quashed and new trial ordered. I wish briefly to explain why I have come to this conclusion.

108 As is clear from the President’s analysis of the tape recording of the conversation between the complainant and the appellant, the issue being explored in the cross-examination of the complainant was at the centre of the case, namely, whether he had consented to the sexual conduct. I agree with the President that the answer he had made to the appellant’s comment, “Police can’t do anything anyhow – consenting adults” was “Yeah”. In the context, this was – as the President points out – ambiguous. Of crucial importance to my mind is that it was capable of being considered as an assent to the assertion that they had acted as consenting adults. The context was a conversation in which the complainant regretted what had happened but did not blame the appellant for overcoming any reluctance on his part. The meaning that was appropriately attributed to the answer to the “consenting adults” comment was undoubtedly one that it was appropriate for counsel for the appellant to explore. It is true that the cross-examination might have got nowhere, but it might have been fruitful from the appellant’s point of view. He should have been permitted to test the evidence of the complainant by reference to what he had said or might have said in the taped conversation.

109 As the President has found, the learned trial judge erred in refusing to permit counsel for the appellant to cross-examine on the words he used in the conversation. The consequence was that counsel was prevented from cross-examining on any concession – which he might well have obtained – that the word was “Yeah”. A denial that that was the word might well not have been accepted by the jury, with adverse consequences for the complainant’s credibility. The way in which the cross-examination might have proceeded is unpredictable. Even if the complainant made no concession on the issue of consent, much would depend on the way his evidence was given.

110 It has become fashionable in recent years to downplay the significance of demeanour as an element of testing the credibility of witnesses. This is often done by citing psychological testing in which a person is asked to say which of a number of statements is truthful or not by looking at a subject, or variations of this test. Whatever might be the validity of these tests for other purposes, they bear no relationship at all to watching and hearing a witness being examined and cross-examined in a trial. I do not have any doubt that demeanour is part of the panoply of experience used by juries, and rightly used, to evaluate the credibility of witnesses. Of course, it is necessary to be cautious and careful about using demeanour and it should be used only as part of the whole process of evaluating a witness’ evidence, but it can be an important part. This Court cannot, of course, evaluate the complainant’s demeanour – or, for that matter – that of the appellant. However, I do not think that there is any adequate basis for dismissing the reasonable possibility that his demeanour (quite apart from his answers as such) might have been adversely judged if the prohibited cross-examination had been permitted to proceed.

111 In this context, the complainant’s clear evidence that he “kept saying ‘no’” in answer to the appellant’s repeatedly “asking me if you would like me to stop” was capable of considerable significance although, of course, it might be explained away. I would add the comment that, if the appellant was conscious of acting against the clearly expressed non-consent of the complainant, the question was a very strange one and continuing to ask it was very strange.

112 The Crown case depended almost entirely on the credibility and reliability of the complainant’s evidence. There were a number of significant respects in which his various accounts were contradictory and inconsistent with proved facts. I am not at all confident that even a marginal advantage from the prohibited cross-examination would not, with the other material, have led the jury to have a reasonable doubt about the appellant’s guilt. It must be remembered that cross-examination can have quite unpredictable results. It is for the Crown to establish that, in this case, the error must have only innocuous results, that is that the prohibited cross-examination would not have led to a different outcome. In my respectful view, that obstacle – very difficult to overcome in the nature of the case – has not been overcome.

113 Cross-examination is often the only mode available to an accused person to test the evidence called against him or her. That the evidence should be tested is not only in the accused’s interest, it is manifestly in the public interest. It is not only paramount to ensuring that, so far as is possible, a jury will determine the matter on the truth, it is a fundamental element of a fair trial. The prevention in this case of proper cross-examination that was based on reasonable grounds and went to the central issue in the case – whether the complainant consented to the impugned sexual conduct – was, in my respectful view, a serious miscarriage of justice and denied the appellant a fair trial.

114 Accordingly, I would allow the appeal, quash the convictions, and order a new trial.

115 SMART AJ: I agree with Mason P.

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