Foster v The King
[2023] NTCCA 5
•22 May 2023
CITATION:Foster v The King [2023] NTCCA 5
PARTIES:FOSTER, Zachary
v
THE KING
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 5 of 2022 (22113686)
DELIVERED: 22 May 2023
HEARING DATE: 21 September 2022
JUDGMENT OF: Grant CJ, Barr & Brownhill JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Unreasonable verdict
Whether verdicts unreasonable and not supported by evidence at trial due to inconsistencies and ambiguity in complainant’s evidence – The purported inconsistencies, discrepancies and other inadequacies identified by the appellant did not lead to a satisfaction that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Incompetence of counsel
Whether miscarriage of justice by counsel’s failure to adduce evidence about complainant’s Fetal Alcohol Spectrum Disorder and its effects – Not established that admissible evidence available – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Point not raised below
Whether trial judge erred in not giving unreliable evidence warning – No basis in evidence for warning – Direction not sought by defence counsel at trial – No error of law and no miscarriage of justice – Appeal dismissed.
CRIME – Appeals – Appeal against conviction – Miscarriage of justice
Whether trial judge erred in not giving Murray direction – Review of evidence by trial judge and direction given in summing up sufficient to alert jury that it had to be satisfied beyond reasonable doubt of the truth and accuracy of complainant’s evidence to return finding of guilt – No miscarriage of justice – Appeal dismissed.
Evidence (National Uniform Legislation) Act 2011 (NT), s 65
Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(5)
BD v The Queen [2017] NTCCA 2, Dhanhoa v The Queen (2003) 217 CLR 1, Ewen v R [2015] NSWCCA 117, FN v The Queen [2021] NTCCA 5, GAX v The Queen (2017) 344 ALR 489, Harkin v R (1989) 38 A Crim R 296, Kassab (a pseudonym) v R [2021] NSWCCA 46, Kelleher v The Queen (1974) 131 CLR 534, Libke v The Queen (2007) 230 CLR 559, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, Neto v R [2020] NSWCCA 128, Nudd v The Queen (2006) 80 ALJR 614, Pell v The Queen (2020) 268 CLR 123, R v Court [1989] AC 28, R v M, WJ [2004] SASC 345, R v RL [2009] VSCA 95, Robinson v The Queen (1999) 197 CLR 162, SKA v The Queen (2011) 243 CLR 400, Smail v R [2007] NSWCCA 328, The Queen v Soma (2003) 212 CLR 299, TKWJ v The Queen (2002) 212 CLR 124, Weragoda v The Queen [2021] SASCA 123, Williams v R [2021] NSWCCA 25, referred to.
REPRESENTATION:
Counsel:
Appellant:T Kassimatis KC
Respondent: V Engel with S Ledek
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 42
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINFoster v The King [2023] NTCCA 5
CA 5 of 2022 (22113686)
BETWEEN:
ZACHARY FOSTER
Appellant
AND:
THE KING
Respondent
CORAM: GRANT CJ, BARR & BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 22 May 2023)
THE COURT:
On 24 March 2022, the appellant was found guilty by a jury of indecently dealing with a child under the age of 16 years. The offence was alleged to have been committed at Tennant Creek on 11 June 2020. The appellant brings this appeal upon the certificate of the trial judge that it is a fit case for appeal, on the ground that the jury’s verdict is unreasonable and/or cannot be supported having regard to the evidence. A second ground of appeal asserting an erroneous interpretation of a witness’s evidence by the interpreter was abandoned prior to the hearing of the appeal.
The appellant also obtained leave at the hearing of the appeal to add the following additional grounds of appeal:
(a)A substantial miscarriage of justice occurred because, although available, evidence about the complainant’s Fetal Alcohol Spectrum Disorder and its effects was not adduced at trial, except in general terms from one witness.
(b)A substantial miscarriage of justice occurred because the trial judge did not warn the jury about the complainant’s potential unreliability and against too readily accepting her evidence.
(c)A substantial miscarriage of justice occurred because the trial judge failed to give a Murray direction[1] to the effect that:
(i)where the prosecution relies largely or exclusively on the reliability of a single witness to invite a guilty verdict it is important that they exercise caution; and
(ii)before arriving at a guilty verdict, they had to examine the complainant’s evidence very carefully in order to satisfy themselves that they could safely act upon it to the criminal standard.
Background
At the time of the alleged offending, the complainant was 11 years old and the appellant was 21 years old. They were known to each other through extended family ties. The appellant was the complainant’s ‘uncle’ in the Aboriginal way. The appellant and his girlfriend were living with the complainant’s grandmother at a house in Tennant Creek.
The prosecution case was that on 11 June 2020 the complainant was also staying at her grandmother’s house in Tennant Creek. In the evening on that day, the complainant fell asleep on a mattress in the lounge room. Later in the evening, the appellant arrived at the house and asked the complainant’s grandmother if he could sleep on a mattress in the lounge room. The grandmother said ‘no’, because the complainant was already sleeping there.
At some later time, the appellant walked into the lounge room and positioned himself next to the complainant. She was lying on her back under a blanket. He then put his hand in the vicinity of her vagina in a sweeping motion. The complainant woke up and was able to identify the appellant because a toilet light was on. The appellant then got up and walked to the bedroom in which he usually slept.
The complainant started crying. She spoke to her grandmother, who by that stage had also been asleep in the lounge room, and told her that the appellant was ‘getting funny for her’, that he tried to ‘get her naughty’ and that she got scared. The grandmother then spoke to the appellant and said, ‘You’re getting funny for my granddaughter. You’ve got to go’. The appellant then left and travelled to Adelaide. The complainant made a further complaint to another family member the next day. The family member drove the complainant to the police station where she spoke to police about the matter.
The appellant was subsequently arrested, charged and remanded in custody. The trial ran between 21 and 24 March 2022. In her opening to the jury,[2] the prosecutor explained the elements of the charge in simple terms: that on 11 June 2020 at Tennant Creek the appellant touched the complainant; that he meant to touch the complainant; that the touching was indecent; and that the complainant was under 16 years of age when she was touched. The defence position during the course of the trial, and in the closing address to the jury, was that the complainant was mistaken as to the accused’s intentions and what caused her to wake up on the night in question, and that it was reasonably possible that she was woken by the accused falling on her while he was playing with the family dog.
The jury returned a guilty verdict on the morning of 24 March 2022, at which time the trial judge proceeded to sentence the appellant. In doing so, the trial judge assessed the gravity of the offending ‘to be towards the very lower end of the scale of seriousness for offences of this nature’. The appellant was sentenced to imprisonment for six months, which was backdated to the time of his arrest. By that point in time the appellant had served six months and 14 days in custody, and was released forthwith.
Unreasonable verdict
The principles governing appeals on this ground of appeal were recently reviewed by this Court in Lynch v The Queen[3] and FN v The Queen[4], and we largely repeat those reviews for ease of reference. In M v The Queen, the High Court stated:[5]
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe” or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.
…
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the 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. 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 test in M v The Queen has been affirmed in subsequent decisions of the High Court.[6] An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdict reached by the jury.[7]
In considering convictions for sexual offences, where it may be assumed that the jury assessed the complainant’s evidence as credible and reliable, there may be countervailing evidence which nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to guilt. The High Court has explained the process in the following terms:[8]
The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
In terms of resolving any doubt held by an appellate court, the majority in M v The Queen said:[9]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
In Libke v The Queen, Hayne J expressed the process of reasoning as follows (footnotes omitted):[10]
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.
This formulation does not impose a stricter test than was laid down in M v The Queen. In Pell v The Queen, the High Court confirmed that the statement from Libke extracted above was consistent with what was said by the majority in M v The Queen.[11]
The matters which an appeal court may take into account in determining whether it was open on the evidence to be satisfied of guilt beyond reasonable doubt cannot be exhaustively catalogued. Matters which might give rise to a reasonable doubt will include whether there are material inconsistencies between the initial complaint and the evidence given at trial; whether a complainant’s testimony should be considered unreliable due to intoxication or some impairment of memory or suggestibility; and whether there are internal inconsistencies in the complainant’s evidence, or inconsistencies with other evidence, which necessarily give rise to a reasonable doubt.
The appellant submits that having regard to the complainant’s evidence the jury must necessarily have held a reasonable doubt about:[12]
(a)where the appellant touched the complainant;
(b)the circumstances in which she was touched; and
(c)whether, if she was touched, it was ‘indecent’.
On 12 June 2020, which was the day after the alleged offending, the complainant spoke with a police officer and the conversation was recorded on police body worn camera. That conversation was referred to during the hearing of this appeal as ‘the disclosure interview’.[13] The transcript of the disclosure interview contains the following exchanges (with the police officer identified as ‘P’ and the complainant identified as ‘C’):
P: … So, where were you last night then?
C: At Blackmore
P: At Blackmore?
C: Yeah.
P: And what happened?
C: And he try to, he trying to touch me in the rude part.
P: He tried to what, sorry?
C: Touch me through the rude part.
P: Touch you through the rude part?
C: Yeah.
P: Can you point to where, what you call the rude part?
C: This part.
P: This part, what do you call that?
C: What?
P: What, what’s the words for just your rude part? Who, who was it that tried to touch you through the rude part?
C: Zac Foster.
….
P: Were you wearing clothes not wearing clothes?
C: I wearing clothes.
P: You had clothes on? What clothes did you have on at the time?
C: Umm …
P: Was it like a dress or a long pants, or …?
C: Long pants.
P: Long pants. And underwear underneath as well, or not?
C: Yeah.
….
P: Did you have a blanket or anything over you?
C: Yeah, yeah and he threw the blanket away.
P: He threw the blanket away?
C: Yeah, from me.
The complainant’s recorded statement was taken approximately two months later, on 27 August 2020 (‘child forensic interview’). When asked to tell the interviewing detective what happened, the complainant said, ‘He tried to touch my rude part’. She identified the rude part by pointing to her genital area. She explained that the Aboriginal word for that was her ‘jinty’. The transcript of the child forensic interview indicates that, when asked what she meant by her ‘rude part’, the complainant said ‘Here’ while pointing at her lap. She was asked to stand up and point where she meant, and then pointed to her genital area. The transcript itself contains the descriptors ‘(points at lap)’ and ‘(pointing to genital area)’. The complainant said that the appellant had touched her skin once, and that it was a quick touch. A little later in the interview she apparently confirmed that the complainant had touched her rude part with his hand, and that he touched her skin rather than her shorts. The complainant also said that she was wearing ‘little short’ at the time – which was clarified by the interviewing police officer as shorts which were green in colour – and a shirt which was black.[14]
It may be noted in that latter respect that the complainant had told the interviewing police officer during the course of the disclosure interview that she was wearing long pants at the time. However, that was in response to a leading question which suggested she was wearing either a dress or long pants. The apparent agreement that she had been wearing long pants would appear to have been a product of gratuitous concurrence having regard to the fact that the question offered only the alternatives of a dress or long pants. It is also significant in that respect that the body worn video which was received into evidence as the video numbered 3 as part of exhibit P6 records police speaking with the complainant outside her house on 12 June 2020 immediately following the disclosure interview. At that time the complainant told police that she had been wearing green shorts, and that she had not been wearing long pants.
The complainant was cross-examined during the pre-recording of her evidence on 3 March 2022, which was approximately 18 months after the conduct of the child forensic interview. During the course of that cross-examination, defence counsel put it to her that she was ‘wearing some long pants or some shorts underneath. Is that right?’ The complainant responded, ‘Yeah.’ It was then put to her that the accused didn’t touch her rude part ‘because you were underneath the blanket. That’s right?’ The complainant replied, ‘Yeah, only went halfway.’ It was then put to her that the accused had not touched her at all and that she was telling a ‘lie story’. The complainant responded to the effect that the accused had touched her, and that he was the one who ‘was lying’.
Later in the cross examination, defence counsel said, ‘Zachary didn’t touch your rude part that night, did he?’ The complainant responded, ‘He nearly touched it.’ The complainant was asked about the matter in re-examination, and she said, ‘No, he nearly touched it, but he couldn’t.’ She was asked, ‘It was on the skin?’ She replied, ‘Yeah’. She was then asked, ‘Which part of your skin? What piece of skin?’ She replied, ‘The side.’ And then, ‘To my rude part. Little bit long way.’ She then indicated the distance by holding her hands apart. Although the complainant’s hands moved during the course of the demonstration, the estimate by the examining prosecutor recorded in the transcript was that the distance was in the order of 30 centimetres. While making that demonstration the complainant said that the accused ‘nearly touched it’. She was then asked whether she was saying the accused didn’t touch her, and she responded to the effect that he tried to. On a reading of that passage of the re-examination as a whole, it would appear that the complainant was there saying that the accused had not touched her rude part, but that he had made contact with her skin some distance from her vagina while trying to do so.
During the course of her closing address, the prosecutor submitted that viewed properly, there were no material discrepancies in the complainant’s evidence. She had at all times been saying that the accused had tried to touch her on her rude part, but he had instead touched her skin near her rude part on the ‘side’. Conversely, the defence submitted that the complainant had given a number of completely different versions at different times since the event.
On a fair reading of the various accounts given by the complainant over that period, it was open to the jury to accept the Crown submission and to find that the complainant’s account had been consistent for the material and vital purposes, if not in every respect. The existence of inconsistencies in a complainant’s evidence in cases such as this does not necessarily render a verdict unsafe and unsatisfactory. As the New South Wales Court of Criminal Appeal observed in Kassab (a pseudonym) v R:[15]
The nub of the applicant’s contention that the verdicts are unreasonable is that there are simply too many discrepancies in their evidence. I have considered this submission and the significance of the discrepancies relied upon by the applicant. In doing so I have had regard to the observations of Leeming JA in Cabot (a pseudonym) v R [2018] NSWCCA 265 (at [59]-[60]) and I adopt them as apposite in the present case:
In almost every case which depends on testimonial evidence, witnesses will give inconsistent evidence. That is especially so in any case where the witness originally makes a complaint and later is asked to give evidence about it and is cross-examined about it. Material inconsistencies can of course detract from the probative value of a witness’s testimony. However, the mere fact of inconsistent evidence does not of itself entail that a verdict cannot be sustained. Indeed, if the witness is capable of a mechanically perfect reproduction of evidence originally given in an interview or a statement months or years before, the appropriate inference may be that the witness has learned his or her lines but has little actual recollection of what occurred.
Thus, it has commonly been stated that there is no necessary unreasonableness for the jury to accept some inconsistencies in the complainant’s evidence. As McHugh J observed in M v The Queen at 534, ‘[i]t is the everyday experience of the courts that honest witnesses are frequently in error about the details of events’. Recently, in Palmer v R [2018] NSWCCA 205, Basten JA said (with the agreement of McCallum and Bellew JJ) at [51]:
At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another.
Juries play a vital role in all criminal trials but particularly so in sexual assault trials which rely so heavily on whether the complainant is to be believed. As McCallum J (as her Honour then was) observed in Hawi v R [2014] NSWCCA 83 at [480]:
The advantage enjoyed by the jury is not confined to the benefit each individual juror has of seeing and hearing the witnesses. The strength of 12 jurors as a tribunal of fact derives also from their diversity and their opportunity to deliberate as a group in private throughout the trial, evaluating the evidence as it is given, with all of its visual cues. The appearance on paper of weakness in the evidence does not of itself establish the unreasonable discharge of that function.
On our own assessment of the evidence, it is sufficiently clear that the complainant was at all times saying that the accused had attempted to touch her vagina, but that he had only touched the skin adjacent to that region. During the course of cross-examination, she firmly rejected the proposition that the accused had not touched her. As already described, the cross-examination of the complainant took place some 21 months after she had initially told the police what had happened to her, and 18 months after the child forensic interview. The jury had opportunity to carefully observe the complainant when she was giving her evidence, including those passages containing the inconsistencies asserted by defence counsel at trial and counsel for the appellant on appeal. The fact that there may be contradictions or inconsistencies by a child in cross-examination is not of itself necessarily an indication that the child is not a credible witness, and does not necessarily dictate that the jury must have held a reasonable doubt.
To the extent that some of the complainant’s responses might, when taken in isolation, suggest that the appellant did in fact touch her vagina, or that the appellant did not in fact touch her at all, it is necessary to consider her evidence as a whole and the questions to which the complainant was responding. As the courts have noted, child witnesses may sometimes find cross-examination perplexing when pressed with contradictory propositions without any indication that earlier answers had been rejected by the cross-examiner.[16] The inconsistencies identified by counsel for the appellant do not go to the essential features of the complainant’s account of the offences;[17] and ‘were explicable in a manner that did not provide a basis for them to reflect on [the complainant’s] credit’.[18] In assessing the complainant’s credit, the jury were also entitled to take into account the fact that the complainant made immediate and consistent complaints in the aftermath of the incident. It is also the case that the disclosure interview and the child forensic interview had an immediacy relative to the event in question which the complainant’s pre-recorded evidence did not. It was also open to the jury to find the suggestion that the appellant had fallen on the complainant while playing with the family dog to be implausible.
That leaves the appellant’s contention that the jury could not have been satisfied of the complainant’s account that the dealing was ‘indecent’. The trial judge directed the jury that in order for the dealing to be ‘indecent’ it was incumbent on the prosecution to prove that the act of touching was ‘unbecoming, unseemly, offending against recognised standards of propriety or good taste’, and also that ‘the conduct must have a sexual connotation’.
The Court of Criminal Appeal considered the meaning of indecency in the context of a charge of indecently dealing with a child under the age of 16 years in BD v The Queen.[19] The Court concluded that the element of indecency required an element of sexual connotation or impropriety, rather than conduct simply unbecoming or offensive to common propriety. In order to satisfy the element of indecency it is necessary for the Crown to prove either that it was committed in circumstances of indecency by reason of the offender’s motive or purpose, or that the dealing was inherently indecent in the sense of being plainly and obviously indecent. A sexual connotation ‘may derive directly from the areas of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault.’[20] It is enough to found a sexual connotation if the assault is directed to the genitalia of the victim. Alternatively, a sexual connotation will arise if the accused had a sexual motive or purpose. Those two different modes of proof were described by Nettle JA in R v RL:[21]
There is also some authority for the proposition that, even where an assault is not such as unequivocally to offer a sexual connotation, it may still constitute an indecent assault if accompanied by an intention on the part of the assailant thereby to obtain sexual gratification.
By way of hypothetical example, an assault involving the removal of clothing may be characterised as patently indecent even where there was no contact with those areas of the body which might inherently give rise to a sexual connotation.[22] In the present case, there was evidence upon which the jury might be satisfied that the appellant removed the blanket which was covering the complainant and attempted to touch her vagina, and in doing so made contact with the skin near her vagina. If the jury accepted that the appellant was trying to touch the complainant’s genitals, it was open to them to be satisfied that the touching was ‘indecent’ in the relevant and necessary sense.
This ground of appeal is not made out.
Evidence of Fetal Alcohol Spectrum Disorder
The second ground of appeal is that evidence about the complainant’s Fetal Alcohol Spectrum Disorder and its effects was not adduced at trial, except from one witness in general terms.
It is necessary to put the appellant’s contention in this respect into context. During the course of the trial the complainant’s aunt gave evidence of the complaint which the complainant had made to her on the morning after the incident. During the course of cross-examination, the aunt gave evidence that the complainant did not concentrate very well and got into a lot of trouble; that she was born with a brain injury in the nature of Fetal Alcohol Spectrum Disorder; and that she had an Attention Deficit Hyperactivity Disorder.[23]
At the conclusion of the aunt’s evidence, the prosecutor made a pre-emptive submission to the effect that it would be inappropriate for defence counsel to make submissions to the jury to the effect that the complainant’s Fetal Alcohol Spectrum Disorder bore upon her reliability as a witness in the absence of expert evidence concerning that matter. Defence counsel indicated in response that the defence might be relying on a medical report for that purpose.[24]
Following the close of the Crown case, defence counsel sought to tender a report by a paediatric registrar which stated that the complainant suffered some neural developmental deficits including, so far as is relevant for these purposes, ‘difficulty remembering matters learned’, ‘a marked inefficiency in memory’ and a ‘very reduced sense of cause and effect’.[25] The tender of the document was pressed pursuant to the exception to the hearsay rule provided for business records.[26] The Crown objected to the tender on the basis that the author of the document had not made any specific assessment of the extent to which the complainant’s deficits bore on the reliability of her account in the subject case, and without the author being made available for cross-examination.[27] The trial judge ruled that because the document expressed expert opinion it could not be received into evidence unless the defence produced the author of that opinion for cross-examination. Defence counsel advised that he was not in a position to do so and the matter was not pursued.[28]
The appellant accepts that ruling was correct. However, the appellant’s contention now is that defence counsel erred in not calling, or not being in a position to call, evidence in relation to the effect of the complainant’s deficits on her reliability as a witness and her ability to interpret correctly the nature of the appellant’s interaction with her on the night in question. The inquiry required under this ground of appeal is an objective one.[29] The relevant question is whether the act or omission resulted in a miscarriage of justice, not whether the act or omission itself was the result of significant fault, flagrant incompetence or egregious error.[30] The inquiry is also not an examination of what counsel did not know or did not think about; but of what did or did not happen during the course of the proceedings and whether a miscarriage of justice was thereby occasioned.[31] Where the assertion is that the incompetence of counsel has caused a criminal trial to miscarry, the appellant carries a heavy burden of establishing that matter.[32] It is necessary to show that there was a fundamental failure in the trial process leading to an unjust conviction.
The appellant says that the fundamental failure in this case was that the jury was denied the benefit of relevant evidence which was crucial to its assessment of the complainant’s reliability. The complainant’s reliability was the sole and fundamental matter at issue in the trial. The failure to consider the complainant’s deficits, taken together with the asserted contradictions and inconsistencies in her account and the ambiguity in her allegation, resulted in a miscarriage of justice. The appellant also says that defence counsel’s failure to seek a direction from the trial judge to the jury about the complainant’s unreliability was the product of the same error, and contributed to the miscarriage.[33]
As the respondent submits, the difficulty with that contention is that it is not plain that there was admissible evidence available to the effect that the complainant’s Fetal Alcohol Spectrum Disorder impaired her memory and/or her relevant ability to read social cues, and therefore bore upon her reliability as a witness in some material sense. Although evidence of that nature would be prima facie admissible, the report by the paediatric registrar which defence counsel had sought to tender at trial was authored on 6 December 2017, which was two years and six months before the event in question. There was no detail of the author’s qualifications and experience with neurodevelopmental conditions of this nature beyond his designation as ‘Paediatric Registrar’. A reading of the report suggests that the author had not himself assessed and diagnosed the Fetal Alcohol Spectrum Disorder. The common experience in this jurisdiction is that the assessment of Fetal Alcohol Spectrum Disorder is a complex and multidisciplinary undertaking which requires the administration of a battery of different tests, the conduct of a range of examinations and the confirmation of social history involving prenatal exposure to alcohol. Under the broad umbrella of that diagnosis, the number of sentinel features involved and the domains subject to deficit will vary from patient to patient. The report does not disclose with clarity by whom that assessment was undertaken.
The report does make reference to an assessment and diagnosis undertaken by a consultant clinical psychologist and an occupational therapist. It states that ‘[f]rom their assessments and interactions, a DSM-5 diagnosis of reactive attachment disorder has been made.’ There is no detail concerning the nature of the tests administered and the assessments undertaken. The report then records that these assessments also showed the deficits adverted to by defence counsel when seeking to tender the document, including ‘inability to centre attention on an activity for a long time, difficulty remembering material learned and very reduced sense of cause and effect.’ There is also a non-specific reference to deficits in ‘social skills and communication and marked inefficiency in memory.’ The author of the report then states that the complainant ‘therefore meets the diagnostic criteria for fetal alcohol spectrum disorder, even though she has no sentinel facial features.’ That would also seem on its face to be an adoption and repetition of the diagnosis made by the psychologist and occupational therapist. The only material conclusions drawn and opinions expressed on the basis of the registrar’s own assessment of the complainant were that the complainant was uncommunicative throughout the consultation and that she was ‘at significant risk from a safety point of view.’
None of the opinions expressed or adopted in that report were directed specifically to any bearing the complainant’s conditions and deficits might have on her reliability as a witness or her ability to remember and recount a traumatic event either the day after its occurrence (which was when the disclosure interview took place), two months after its occurrence (which was when the child forensic interview was conducted), or 21 months after its occurrence (which was when the complainant’s evidence was pre-recorded). An ‘inefficiency in memory’ and a deficit in ‘social skills’ may take many forms, not all of which are relevant to assessing the reliability of the complainant’s account.
There were also a number of other medical reports and documents in defence counsel’s possession at the time of the trial. The first document in time is a referral by a general practitioner to the paediatric clinic dated 7 November 2017. That referral provides a brief social history for the complainant which focuses on her violent behaviours towards her grandmother, her poor educational performance and the possibility of an alcohol-related neurodevelopmental disorder. That document predates the paediatric registrar’s report, and was presumably a precursor to the diagnosis of Fetal Alcohol Spectrum Disorder.
The third document in time is a letter from a paediatric consultant dated 13 February 2018 which postdates the paediatric registrar’s report. It describes a medication plan for the complainant for her ADHD symptoms, but states that her behaviour remains much the same.
The fourth document in time is a report from a child psychiatrist dated 14 February 2019. The report describes the complainant’s social history, previous diagnoses and behaviours. The psychiatrist’s impression was that the complainant had severe attention problems and behavioural difficulties which were impacting on her ability to learn and manage in class. It recommended the reinstitution of Ritalin with a schedule of dosages and times.
The fifth document in time is a report from the same child psychiatrist dated 2 December 2020, which postdates the incident in question by approximately six months. It states that there had been a drop in the efficacy of the Ritalin medication regime since the middle of the year which manifested in restlessness, distraction and teasing of other children. Despite that, the complainant was able to maintain key friendships and demonstrated kindness and empathy. The complainant’s grandmother reported that the complainant was otherwise behaving and sleeping well. The report recommended an increase in the Ritalin dosage and a review in two or three months’ time.
The sixth document in time is a report from the same child psychiatrist dated 24 May 2021. The psychiatrist reported that the complainant was now living with her aunt following the incident involving the appellant. There were some reports that the complainant had been staying out late at night and engaging in threatening behaviour. There was also some concern about possible drug use. Her school attendance remained good and she was otherwise physically well. The psychiatrist’s impression was that the complainant had severely dysregulated behaviour and emotional outbursts due to her conditions and developmental trauma. The agreed plan included a review of the complainant’s living arrangements, a case transfer to the Alice Springs team and the deferral of any change to the current medication regime.
The seventh document in time is a letter from the same child psychiatrist to the Alice Springs Child & Youth Team for the purpose of arranging the recommended transfer. That letter provides a summary of the complainant’s medical history and states that it has affected her ability to function effectively in social relationships and academic learning. The letter then provides a catalogue of the social, professional and financial supports which the complainant requires for her social and emotional development.
The eighth document in time is a report dated 21 October 2021 prepared by the same child psychiatrist and a specialist mental health clinician. The purpose of the report is expressed to be for the information of agencies involved in delivering child protection services to the complainant. The report states that although the complainant had responded well to treatment and support in the past, in recent months there had been frequent reports of her absconding from home, engaging in aggressive behaviours and exposing herself to risk. Those behaviours were said to be more likely and marked when the complainant did not have access to the prescribed medication for her ADHD condition. The principal focus of the report is to advocate for appropriate health care and support for the complainant’s grandmother, financial and housing assistance for the complainant’s carers, identification of the roles of the various agencies involved in the care of the complainant, and a review of the complainant’s National Disability Insurance Scheme care plan. That report both postdates the incident and complaints by approximately 16 months and does not inform the question of the complainant’s reliability as a witness or her ability to appreciate whether she had been treated indecently.
The final document in time is a report from a paediatric consultant dated 7 December 2021. It stated that the main active issues in the complainant’s life at that stage were social concerns involving her living and care arrangements and her behavioural issues. The principal plan described in the report was the administration of blood tests to determine any undiagnosed physiological conditions.
There is nothing in those documents directed specifically to the question whether the complainant’s conditions and deficits were such as to impair her ability to know or determine whether she had been touched in an indecent fashion, or otherwise to bear on the reliability of her accounts. It is also the case that the complainant was subject to a medication regime from in or about February 2019 which was relatively successful in addressing the symptoms of her ADHD condition, at least until the second half of 2020. While it is true that defence counsel might have sought to commission a report which specifically addressed those particular issues, that was not done. Whether such a report would have concluded that the complainant was a potentially unreliable witness in this context is an exercise in speculation. It was also open to the appellant at the appeal stage to obtain an expert report concerning the bearing of the complainant’s deficits on her reliability as a witness, but that was also not done.
It is not enough that defence counsel at trial erroneously considered that the paediatric registrar’s opinion was admissible without the author being available for cross-examination. It is necessary for the appellant to show that there was admissible evidence available to the effect the complainant’s Fetal Alcohol Spectrum Disorder bore upon her reliability as a witness in some material sense before it could be concluded that a miscarriage of justice occurred by reason of the failure to adduce that evidence. No such evidence existed. This ground is not made out.
Direction concerning unreliability
The third ground of appeal, which is related to the second ground, is that the trial judge did not warn the jury about the complainant’s potential unreliability and against too readily accepting her evidence. Section 65 of the Evidence (National Uniform Legislation) Act 2011 (NT) relevantly provides:
Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
…
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving the warning or information.
(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3).
The reference to ss 165A(2) and (3) draws attention to the provisions of the Evidence (National Uniform Legislation) Act which abolish the requirement that evidence be corroborated and preclude a trial judge from giving a jury general warnings concerning the evidence of child witnesses.[34] In addition to those provisions, the Sexual Offences (Evidence and Procedure) Act 1983 (NT) provides that on the trial of a person for a sexual offence the trial judge shall not warn the jury that it is unsafe to convict on the uncorroborated evidence of a complainant because the law regards complainants as an unreliable class of witness.[35]
This ground can be dealt with in relatively short order. For the reasons given in the context of the second ground of appeal, there was no expert opinion before the court which suggested that the complainant’s conditions were such as to adversely affect the reliability of her evidence. So far as the aunt’s reference to those conditions during the course of her evidence is concerned, she was unable to be specific and unable to say more than that the complainant did not concentrate very well and got into a lot of trouble. That formed an inadequate basis on which to provide an unreliable evidence warning, as did the bare and unqualified disclosure that the complainant suffered from Fetal Alcohol Spectrum Disorder and Attention Deficit Hyperactivity Disorder. The jury was apprised of those matters and had opportunity to make an assessment of the complainant’s presentation over the course of the disclosure interview, the child forensic interview and the pre-recorded evidence. In particular, the members of the jury were able to observe the complainant give evidence and her responses to questions in cross-examination which were directed to the potential unreliability of that evidence.
The trial judge did give an unreliable evidence warning in relation to the grandmother’s evidence based upon evidence concerning the consequences of her early stage dementia. It is apparent from that determination that the trial judge did not consider the complainant’s presentation or any other evidence to require a similar warning concerning the complainant’s evidence. That was a determination which fell squarely within the discretion of the trial judge, and there is nothing to suggest that discretion miscarried.[36] That is sufficient to dispose of this ground of appeal, but two further matters warrant mention in this context.
First, r 86.08 of the Supreme Court Rules 1987 (NT) was in force at the time of both the trial and the hearing of this appeal, but has since been repealed. It provided in essence that no direction or omission to direct shall, without leave of the Court of Criminal Appeal, be allowed as a ground of appeal unless objection was taken at the trial to the direction or the omission to direct by the party appealing. As already noted, defence counsel at trial did not seek an unreliable evidence warning in relation to the complainant. The purpose of the rule is to ensure that an appellant is held to forensic decisions made during the course of the trial unless there is a possibility of real injustice. Even in the absence of such a rule, the parties will generally be bound by the conduct of their counsel and the exercise of counsel’s wide discretion in the conduct of the trial.[37]
Second, a trial judge cannot make an error of law in relation to the admissibility of evidence if he or she has not been asked for a ruling.[38] The better view is that the same approach is properly adopted in relation to assertions that the trial judge failed to provide a necessary direction to the jury in circumstances where a request for the relevant direction was not made at trial.[39] In the absence of an error of law, an erroneous direction or the failure to provide a required direction will only constitute a ground of appeal if it resulted in a miscarriage of justice.[40] For the reasons already described, there was no occasion to give the direction in the circumstances of this case, much less a miscarriage of justice as a consequence of failing to do so.
This ground is not made out.
Failure to give a Murray direction
The fourth and final ground of appeal is that the trial judge failed to give a Murray direction to the jury to the effect that because the prosecution case was based on the evidence of a single witness it was necessary to exercise caution and examine the complainant’s evidence very carefully in order to satisfy themselves that they could safely act upon it to the criminal standard.
Although the respondent says that a Murray direction was unnecessary in the circumstances, and that the failure to provide such a direction did not result in a miscarriage of justice, its threshold position is that a Murray direction would have been incompatible with s 4(5) of the Sexual Offences (Evidence and Procedure) Act. The respondent’s submission in that respect draws attention to operation of the analogous provision in s 294AA of the Criminal Procedure Act 1986 (NSW), which provides:
Warning to be given by Judge in relation to complainants’ evidence
(1) A judge in any proceedings to which this Division applies [certain sexual offences] must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.
(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.
The operation of that provision was considered by the New South Wales Court of Criminal Appeal in Ewen v R.[41] Justice Simpson (Davies J and Basten JA agreeing) stated:
A “Murray direction”, based only on the absence of corroboration, is, in my opinion, tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant.
The injunction contained in s 294AA is directed to what is, in substance, the content of the Carr direction. If the direction given suggests that merely - I emphasise merely - because a complainant’s evidence is uncorroborated, it would be, on that account, dangerous to convict, it transgresses s 294AA(2). The critical aspect of s 294AA is the substance of the direction that is prohibited. It cannot be avoided by switching from one linguistic formula (“dangerous to convict”) to another (“scrutinise the evidence with great care”). However formulated, the substance of the direction is the same - that, merely because the evidence is uncorroborated, it would be unsafe for the jury to act upon it.
In this respect, in Longman, Deane J said:
“I am prepared to assume, in the absence of argument to the contrary, that a warning to the jury of the need, in the particular circumstances of the case, to scrutinize the evidence of the complainant with great care and to exercise considerable caution before convicting the applicant upon the basis of it alone would have been a warning of the kind referred to in s 36BE(1)(a) even though it did not involve the use of the word ‘danger’.”
None of this has the effect that an appropriate direction, as envisaged in Longman, cannot be given in prosecutions for sexual offences. The emphasis in Longman, and in Robinson and Tully, was that directions appropriate to the circumstances of the individual case are to be given, and were available to be given under s 405C and its equivalent in other jurisdictions. If the evidence in any case is such as to call for a warning, or a specific direction, as to weaknesses or deficiencies in the evidence, particularly if they are weaknesses or deficiencies that are apparent to the judge but might not be so apparent to the jury, then the judge is entitled, and may be obliged, to draw that to the jury’s attention. Delay in bringing proceedings is one such circumstance that calls for a direction. Such a direction does not transgress s 294AA; it discharges the judge’s duty to direct the jury in accordance with the circumstances of the case, and not according to suppositions about the reliability of any class of witnesses.
....
But, as has frequently been observed, sexual offences typically are committed in private, when only the perpetrator and the victim are present. In that case, a direction concerning the absence of corroboration has little to do except suggest unreliability on the part of the complainant.[42]
That raises the question whether s 4(5)(a) of the Sexual Offences (Evidence and Procedure) Act imposes a similar prohibition. The historical background to the enactment of the provision was that sexual assault complainants (and children and accomplices in all kinds of cases) were considered by the common law, as classes of witness, to be inherently unreliable. Their unreliability was considered a matter capable of affecting the evaluation of the evidence and about which judges had special knowledge or experience beyond the jury’s appreciation.
In Kelleher v The Queen,[43] Mason J referred to the emphasis given by the common law to the desirability of corroborative evidence in cases, inter alia, of sexual assault, and cited a decision of Salmon LJ to the effect that ‘human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute’. Mason J described it as a ‘customary rule’ for the jury to be warned in relation to the evidence of victims of sexual offences, the raison d’être for such warning being to ensure that ‘the jury is alive to the danger of convicting on the uncorroborated evidence of a class of witnesses whose testimony may, for reasons already indicated, be untruthful’. In the same case, Barwick CJ observed that the jury should be directed ‘that they may act on the word of the woman alone but should exercise considerable caution before doing so, because of the ease with which the charge is made and the difficulty which may attend its rebuttal’.[44]
In past times, appeals were very often successful if a trial judge had not cautioned the jury about the absence of corroboration in relation to the evidence given by complainants in cases of alleged sexual offending.
When the Sexual Offences (Evidence and Procedure) Act was first enacted, it did not contain s 4(5) or any similar provision. However, s 4 of the Principal Act was amended by Act 23 of 1994 to add a new subs (5)(a) in the following terms:
(5) On the trial of a person for a sexual offence or an assault with intent to commit such an offence –
(a) the Judge shall not warn, or suggest in any way to, the jury that the law regards complainants as an unreliable class of witness; and …
The second reading speech for the Amendment Bill contained the following references to the proposed new s 4(5)(a):
Clause 5 … amends the principal act in relation to the need to corroborate the evidence of a complainant in a sexual assault …
Present law is that a complainant in a sexual case belongs to a class of witnesses (which includes children) that the law classifies as unreliable. The Evidence Amendment Bill, which I introduced in November, abolishes this presumption in respect of children. Proposal 71 in the Sexual Abuse Discussion Paper recommended that the presumption be abolished in respect of complainants in sexual cases. This approach was enacted in section 61 of the Victorian Crimes Act in 1991. It still enables the judge to warn in a specific case that a particular complainant may be an unreliable witness. Proposal 71 in the Sexual Abuse Discussion Paper recommended a reform along the lines enacted by Victoria. …
It is tolerably clear that the enactment of the new provision, and specifically the interdict ‘not to warn or suggest in any way to the jury that the law regards complainants as an unreliable class of witnesses’, was a statutory repeal of the ‘customary rule’ identified by Mason J in Kelleher v The Queen (and in subsequent authorities).
Section 4(5)(a) of the Sexual Offences (Evidence and Procedure) Act was further amended by Statute Law Revision Act 14 of 1995 by deleting the words ‘that the law’ and inserting the words ‘that it is unsafe to convict on the uncorroborated evidence of a complainant because the law’. Following the 1995 amendment, s 4(5)(a) of the Sexual Offences (Evidence and Procedure) Act read as follows:
(5) On the trial of a person for a sexual offence or an assault with intent to commit such an offence –
(a) the Judge shall not warn, or suggest in any way to, the jury that it is unsafe to convict on the uncorroborated evidence of a complainant because the law regards complainants as an unreliable class of witness; and …
The second reading speech for the Statute Law Revision Bill relevantly provided:
Further, the Statute Law Revision Bill amends the Sexual Offences (Evidence and Procedure) Act. The purpose of the amendment to section 4(5) of that Act is to express in a better way an existing section, not to change the law. The common law of evidence requires the judge to warn the jury of the danger of convicting an accused on the uncorroborated evidence of ‘unreliable witnesses’. At common law, the class of unreliable witnesses included children, complainants of sexual offences and accomplices. The Sexual Offences (Evidence and Procedure) Act removed the complainant of a sexual assault from the class of unreliable witnesses. The drafting of section 4(5) was based on section 61 of the Crimes Act of Victoria and was basically identical to it.
The effect of the 1994 amendment was to abolish the doctrine of corroboration, although the section does not expressly say this. However, as a matter of law, it is clear from section 4(5) and supporting Victorian case law that corroboration is no longer required. This was made clear by the Victorian Supreme Court in the 1988 case of Williams. Put simply, the removal of complainants from the class of unreliable witnesses means that there is no need to corroborate the complainant’s evidence. It is proposed to amend s 4(5) to read: ‘The judge shall not warn or suggest in any way to the jury that it is unsafe to convict on the uncorroborated evidence of the complainant because the law regards complainants as an unreliable class of witness’. This amendment will make section 4(5) identical to section 9C of the Evidence Act which removed children from the class of unreliable witnesses and expressly abolished the doctrine of corroboration for children. Section 9C is based on the equivalent Western Australian provision and is considered to be a clearer draft. I commend the bill to honourable members.
[underline emphasis added]
Given the legislative history, and the unambiguous drafting of s 4(5) of the Sexual Offences (Evidence and Procedure) Act, the Northern Territory provision may properly be seen as materially different from the New South Wales provision in s 294AA of the Criminal Procedure Act 1986. The Northern Territory provision prevents a judge directing or suggesting to the jury that it would be unsafe to convict on the uncorroborated evidence of the complainant because the law regards complainants as an unreliable class of witnesses. The New South Wales provision also prevents a judge warning or suggesting to a jury that ‘complainants as a class are unreliable witnesses’. However, the addition of s 294AA(2) is significant. It provides that subsection (1) also prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant. Under the New South Wales provision, not only is a judge prohibited from warning or suggesting to the jury the complainants as a class are unreliable witnesses, but also from warning the jury in a particular case that it may be dangerous to convict on the uncorroborated evidence of the complainant.
The significant distinguishing feature of the Northern Territory provision is that, unlike s 294AA(2), it does not prevent a judge warning the jury of the danger of convicting on the uncorroborated evidence of a complainant. Rather, that which a Northern Territory judge must not do – in a single witness complainant case where there is no corroboration – is to give a direction which combines a warning as to ‘unsafe to convict’ with the proposition that the law regards complainants as an unreliable class of witness. The word ‘because’ in s 4(5) of the Sexual Offences (Evidence and Procedure) Act is crucial to that operation.
In any event, the Murray direction, as usually given, does not use the words ‘unsafe to convict’, but simply encourages the jury to exercise caution where the prosecution seeks to establish guilt based largely or exclusively on a single witness. Under the statutory regime in the Northern Territory, a Murray direction may lawfully be given in the trial of a person for a sexual offence in the same way as it could be given in a serious harm or common assault case. The essential purpose was to remove the stigma of unreliability from complainants as a class of witness in sexual assault matters. That result is consistent with s 4(6) of the Sexual Offences (Evidence and Procedure) Act, to the effect that nothing in subsection (5) prevents a judge from making any comment on evidence given in the trial that it is appropriate to make in the interests of justice. That suggests that the interdict in s 4(5)(a) is to be read so as to ensure that the interests of justice are not compromised.
That being so, the question on appeal becomes whether a Murray direction was necessary in the circumstances, and, if so, whether the failure to provide such a direction resulted in a miscarriage of justice. As the South Australian Court of Appeal observed in Weragoda v The Queen, there is no rule of law or practice which requires that a Murray direction be given in every case where proof of an offence relies on the uncorroborated evidence of a witness.[45] That will depend upon the circumstances of the particular case and the manner in which the trial was conducted. A Murray direction will only be necessary where those circumstances require it in order to avoid a miscarriage of justice. By way of example, in Robinson v The Queen, the High Court found that an important inconsistency in the complainant’s evidence, inconsistency in the complainant’s subsequent conduct and evidence indicating suggestibility ‘created a perceptible risk of a miscarriage of justice which required a warning of a kind which brought home to the jury the need to scrutinise with great care the evidence of the complainant before arriving at a conclusion of guilt’.[46]
The appellant’s principal contention in this respect is that the complainant’s developmental deficits were such as to require a Murray direction in order to avoid a miscarriage of justice. For the reasons already discussed above in the context of the second ground of appeal, the difficulty with this submission is that there was no evidence led at trial to the effect that the complainant’s deficits bore upon the reliability of her evidence. In those circumstances, the question is whether the submissions and directions made during the course of the trial were sufficient to ensure that the jury understood the nature of the Crown’s burden and the significance attending their assessment of the complainant’s reliability. In SKA v Regina, Beazley JA (with whom Adams and Hislop JJ agreed on this point) stated:[47]
Whether or not a Murray direction should be given is a matter for the discretion of the trial judge. There is no prescription as to the words to be used: Kaifoto aka Teaupa v R [2006] NSWCCA 186 at [72]. In this case, the trial judge used standard and acceptable terminology in his reference to the need to scrutinise M's evidence ...
….
…. The focus of the trial was on the credibility and reliability of M's evidence and both the prosecutor and the appellant's counsel addressed the jury in respect of her credit. In particular, the appellant made lengthy submissions as to M's unreliability and the credibility of her account.
In the present case, the primary focus of the closing addresses by both the Crown and the defence was the reliability of the complainant’s various accounts. The thrust of defence counsel’s closing address was that although the complainant was not being purposefully untruthful, she was mistaken and her evidence was therefore unreliable. The following matters were relevantly addressed during the course of the trial judge’s summing up. The trial judge gave the standard direction in relation to the onus of proof being firmly on the Crown, and the requirement on the Crown to prove each element of the charge beyond reasonable doubt.[48] The trial judge gave the standard explanation concerning the evaluation of the reliability of evidence. That included the necessity to assess both the honesty and the accuracy of the evidence given by a witness.[49] The trial judge gave the standard direction in relation to complaint evidence, including that the complaint evidence did not constitute independent evidence and that the complainant was the only person able to give direct evidence about the incident the subject of the charge.[50] The trial judge conducted an extensive review of the complainant’s evidence,[51] and then gave the following direction:[52]
Mr Rumbewas for the defence submitted that you cannot be satisfied that the evidence of [the complainant] is reliable. And he relied essentially on what he contended were a number of completely different versions given by her at different times in the approximately two years since the events, so those three occasions that we have just gone through.
Ms Duckett for the Crown submitted that viewed properly, there were not any discrepancies, and that what [the complainant] has been saying all along is that the accused tried to touch her on her rude part, he did not touch her rude part, he touched her skin near her rude part on the side; so that those supposed discrepancies, she said, if you look at them properly, all boil down to her telling that one story consistently throughout.
Mr Rumbewas in his submissions emphasised that he was not suggesting that [the complainant] was lying, simply that she was mistaken, and he put forward a scenario in which [the complainant] and [her grandmother] were woken up by Zachary Foster falling on [the complainant] when he was playing with Buster the dog, and [the complainant] mistaking his intentions.
That is really it, the Crown case and the defence case. But you have to keep in mind the onus of proof. So if you think it is reasonably possible that [the complainant] was mistaken, then you should find Mr Foster not guilty. Just to explain that: you have to be satisfied beyond a reasonable doubt of the truth and reliability, the truth and accuracy if you like, of [the complainant’s] evidence before you can find [the appellant] guilty.
If you turn that up the other way around, the other way of expressing that: am I satisfied beyond reasonable doubt of its truth and accuracy; if you turn that up the other way and you ask: is it reasonably possible that she was mistaken, that is another way of asking the same question. So if it is reasonably possible that she was mistaken, then you cannot be satisfied beyond reasonable doubt that she is not mistaken, if you like.
The evidence in the trial was taken over the course of two days, and the trial judge commenced the summing up on the morning of the third day of the trial. There was no question of identification arising. The complainant’s evidence was challenged only on the basis that she was mistaken in relation to the nature of the appellant’s conduct. The review of the evidence conducted by the trial judge, together with the direction extracted immediately above, were sufficient to alert the jury to the fact that the Crown case was reliant on the acceptance of the complainant’s evidence, and that the jury had to be satisfied beyond reasonable doubt of the truth and accuracy of that evidence in order to return a finding of guilt.[53]
As the New South Wales Court of Criminal Appeal observed in Williams v R, all that is necessary is for the tribunal of fact to be directed to the need to achieve satisfaction beyond reasonable doubt that the complainant was an honest and reliable witness whose evidence was accurate in the vital respects.[54] It is unnecessary in order to achieve that purpose to use the ‘incantation’ that the complainant’s evidence must be ‘scrutinised with great care’ or some similar formulation. Similarly, in Smail v R, Howie J (with whom Mason P and James J agreed) stated:[55]
The failure of a judge to give such a direction does not result in a fundamental defect in the trial that goes to the root of the proceedings as the appellant contends. The direction merely emphasises what should be clear from the application of the onus and standard of proof: if the Crown case relies upon a single witness then the jury must be satisfied that the witness is reliable beyond reasonable doubt.
The jury in this case was adequately directed as to the requisite state of satisfaction, and this ground is not made out.
Disposition
The appeal is dismissed.
[1]See Weragoda v The Queen [2021] SASCA 123.
[2] Appeal Book (AB) 33-35.
[3] Lynch v The Queen [2020] NTCCA 6.
[4] FN v The Queen [2021] NTCCA 5.
[5] M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.
[6] SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14]; GAX v The Queen [2017] HCA 25; 344 ALR 489 at [25]; Pell v The Queen [2020] HCA 12; 268 CLR 123.
[7] SKA v The Queen (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ.
[8] Pell v The Queen (2020) 268 CLR 123 at [39].
[9] M v The Queen (1994) 181 CLR 487 at 494.
[10] Libke v The Queen [2007] HCA 30; 230 CLR 559 at 596-597 [113].
[11]Pell v The Queen (2020) 268 CLR 123 at [44]-[45]; see also Tyrell v The Queen [2019] VSCA 52 at [70].
[12] Appellant's Submissions, para [4.6].
[13] The audio-visual recording is MFI P2, which forms part of P6. A transcript is at AB 170-176. The recording itself is not reproduced as part of the appeal materials.
[14]AB 186.
[15]Kassab (a pseudonym) v R [2021] NSWCCA 46 at [260]-[261] per N Adams J (Johnson and Ierace JJ agreeing).
[16]See, for example, Abbott (a pseudonym) v R [2017] NSWCCA 149 at [78].
[17]See Lynch v The Queen [2020] NTCCA 6 at [38], citing BCM v The Queen [2013] HCA 48; 303 ALR 387.
[18]See Lynch v The Queen [2020] NTCCA 6 at [38], citing R v M, WJ [2004] SASC 345.
[19]BD v The Queen [2017] NTCCA 2.
[20]Harkin v R (1989) 38 A Crim R 296 at 301.
[21]R v RL [2009] VSCA 95 at [9], citing Harkin v R (1989) 38 A Crim R 296 at 301; R v George [1956] Crim LR 52 at 53; R v Coombes [1961] Crim LR 54 at 55; cf R v Culgan (1898) 19 LR(NSW) 166 at 167; R v Court [1989] AC 28 at 33 and 42.
[22]R v Court [1989] AC 28 at 42–43.
[23]AB 53.
[24]AB 64-65.
[25]AB 104.
[26]Evidence (National Uniform Legislation) Act 2011 (NT), s 69.
[27]AB 105-106.
[28]AB 107.
[29] An exception to this general principle may be found in the decision of the High Court in Craig v The Queen (2018) 264 CLR 202. That exception applies where the question is whether incorrect advice from counsel was material to a forensic choice which was reserved to the accused to make personally, such as the choice whether or not to give evidence. In those circumstances, the inquiry looks to the subjective effect of the incorrect advice on the accused's decision.
[30] See, for example, TKWJ v The Queen (2002) 212 CLR 124 at [29], [31].
[31] Nudd v The Queen (2006) 80 ALJR 614 at [27].
[32] See, for example, TKWJ v The Queen (2002) 212 CLR 124 at [74].
[33] This particular assertion is also discussed further below in the context of the third ground of appeal, which is that the trial judge erred in not providing a direction to that effect.
[34] Evidence (National Uniform Legislation) Act 2011 (NT), ss 164, 165A(1).
[35] Sexual Offences (Evidence and Procedure) Act 1983 (NT), s 4(5)(a). This provision is discussed further in the context of the fourth round of appeal concerning the failure to give a Murray direction.
[36] See, for example, Neto v R [2020] NSWCCA 128 at [56].
[37] See, for example, Nudd v The Queen (2006) 80 ALJR 614 at [9].
[38]The Queen v Soma (2003) 212 CLR 299 at [42].
[39]Dhanhoa v The Queen (2003) 217 CLR 1, [49]; cf Gassy v The Queen (2008) 236 CLR 293 at [55]-[56].
[40]Nudd v The Queen (2006) 80 ALJR 614 at [24].
[41] Ewen v R [2015] NSWCCA 117.
[42] Ewen v R [2015] NSWCCA 117 at [140]-[145].
[43] Kelleher v The Queen (1974) 131 CLR 534 at 559.
[44] Kelleher v The Queen (1974) 131 CLR 534 at 542.
[45] Weragoda v The Queen [2021] SASCA 123 at [21].
[46] Robinson v The Queen (1999) 197 CLR 162 at 171.
[47] SKA v Regina [2012] NSWCCA 205 at [255]-[257].
[48]AB 143-144.
[49]AB 144-145.
[50]AB 146.
[51]AB 149-154.
[52]AB 154.
[53] The nature of that requirement was not elevated by the fact that the appellant did not give evidence during the course of the trial and therefore 'could not call in aid of his defence a Liberato direction': cf Appellant's Submissions, para [3.6].
[54] Williams v R [2021] NSWCCA 25 at [143]-[144].
[55] Smail v R [2007] NSWCCA 328 at [71].
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