GAR v R (No 1) - [2010] NSWCCA 163

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: GAR v R (No 1) [2010] NSWCCA 163

HEARING DATE(S): 28/4/10, 29/4/10, 30/4/10

JUDGMENT DATE:
5 August 2010

JUDGMENT OF: Tobias JA; Johnson J; Rothman J

DECISION: 1. Grant leave to appeal.
2. The appellant’s appeal against his conviction is dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – conviction – evidence – fresh evidence – cogency – whether fresh evidence was credible, capable of belief or plausible – whether fresh evidence was so cogent that Court would be satisfied of appellant’s innocence or would entertain reasonable doubt as to guilt – whether fresh evidence likely to have caused jury to entertain reasonable doubt as to appellant’s guilt or given rise to significant possibility that jury would have acquitted

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Appeal and Review) Act 2001
Evidence Act 1995

CASES CITED: The Application of GAR, NSWSC, 12 February 2009
GAR v Regina [2003] NSWCCA 224
JJT v R [2006] NSWCCA 283; (2006) 67 NSWLR 152
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v Abou Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
Rasic v R [2009] NSWCCA 202

PARTIES: GAR
Regina

FILE NUMBER(S): CCA 2002/13729

COUNSEL: A: D Dalton SC; A Goodridge
R:D Arnott SC; N Noman

SOLICITORS: A: J N Legal
R: S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 02/21/1183

LOWER COURT JUDICIAL OFFICER: Naughton QC DCJ

LOWER COURT DATE OF DECISION: 31/10/2002

CCA 2002/13729

TOBIAS JA
JOHNSON J
ROTHMAN J
5 August 2010

GAR v R (No 1)

Judgment

1 THE COURT: The present appeal was heard concurrently by the Court between 28 and 30 April 2010 with two other appeals against conviction involving the same appellant. Judgment in the other appeals is being handed down at the same time as judgment is being given in the present appeal.

2 The present appeal arises out of the conviction of the appellant for the sexual assault of his ex-wife in 2002. The appellant’s ex-wife and their daughter gave oral evidence for the Crown at the sexual assault trial. The operation of s 578A Crimes Act 1900 involves prohibition on publication of anything identifying or likely to lead to the identification of the complainant in sexual assault proceedings. Accordingly, in accordance with usual practice, the appellant is referred to by the initials GAR and his ex-wife, the complainant, as ER and their daughter as E. It is also appropriate to refer to the appellant’s sister as JC and a friend of the appellant’s former wife as RM.

3 On 21 October 2002 the appellant was indicted before his Honour Judge Naughton QC at Penrith District Court. During the course of the trial the indictment was amended to charge the appellant as follows:

1. That on 13 January 2002 at Doonside, in the State of New South Wales, he did without consent, detain ER with the intention of obtaining an advantage, namely, to keep the said ER in his custody and under his control;

2. That on or about 14 January 2002 at Doonside, in the State of New South Wales, he did have sexual intercourse with ER without her consent and knowing that she was not consenting.

4 The appellant pleaded not guilty to each charge. The trial before his Honour and a jury commenced on 21 October 2002 and concluded on 1 November 2002 when the jury returned a verdict of not guilty on the first count and a verdict of guilty on the second count. On 10 December 2002 the appellant was sentenced to a term of imprisonment which expired on 4 April 2008.

5 The appellant appealed to this Court against his conviction on the second count. There were five grounds of appeal of which the first was that the verdict of the jury was unreasonable and could not be supported on the evidence. The other four grounds alleged various deficiencies with respect to the trial judge’s directions to the jury in his summing up.

6 On 19 August 2003 the appellant’s appeal was dismissed: GAR v Regina [2003] NSWCCA 224 (the first appeal). The reasons of the Court were delivered by Miles AJ, with whom Spigelman CJ and Bell J agreed.

7 At the trial it was not in contest that sexual intercourse had taken place between the appellant and ER, his former wife. What was at issue was whether that intercourse was consensual. The main witness was, therefore, the complainant, ER. There were relevantly two other Crown witnesses. The first was E, who was the daughter of the appellant and ER and who was born on 9 February 1989 and was, therefore only 13 years of age when she gave evidence. The second was Detective Senior Constable Peter Crampton who gave complaint evidence with respect to the taking of a statement from ER on the afternoon or evening of 14 January 2002.

8 The only other relevant evidence tendered by the Crown was a report of a Dr M Sterrett who examined ER at Westmead Hospital on 14 January and whose report, dated 12 February 2002, was admitted into evidence without objection. Dr Sterrett was not required to give oral evidence.

9 The effect of E’s evidence was that, in the limited respects to which we shall in due course refer, it corroborated that of her mother. In particular, E’s evidence was that in the early hours of the morning of 14 January 2002 she overheard statements made by her mother in effect pleading with the appellant not to rape her.

10 However, on 16 April 2005, during the course of a visit by E to the appellant at Long Bay Gaol in the company of a friend of the appellant, John Carroll, E admitted to her father and Carroll that she had not heard anything that night and that her mother had told her to say that she had because otherwise they (the police) “wouldn’t believe her by herself”. It was also ascertained that in 2002 (apparently after the appellant had been convicted but before he was sentenced), E had made a similar confession to the appellant’s sister, JC, and a former friend of ER, Ms Tammy Toobey.

11 Thereafter affidavits were relevantly obtained from the appellant, Mr Carroll, JC, as well as from Mr Dennis Stewart, the barrister who had appeared for the appellant at his trial. The latter can be put to one side.

12 The police interviewed each of these persons in June 2007 and a transcript of the ERISP of each of them was produced. In August 2007 the police also interviewed Ms Toobey (and a transcript of her ERISP was also generated with respect to that interview).

13 The essential substance of the material referred to (apart from that of the appellant’s counsel at trial) was that at various times, including (as we have noted) in 2002 after the appellant had been convicted but before his sentencing, E had admitted not only to the appellant in Mr Carroll’s presence but also to her aunt JC and to Ms Toobey, that she had not heard anything in the early hours of 14 January 2002 but had been told to lie by her mother, the complainant, at the appellant’s trial.

14 The material to which we have referred generated an application to the Supreme Court by the appellant for an order under Part 7 of the Crimes (Appeal and Review) Act 2001 (the Review Act) directing an inquiry into his conviction or, alternatively, that the matter be referred to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912.

15 The application came before Barr J pursuant to s 78(1) of that Act. By s 79(1) the court may, after considering the application, direct that an inquiry be conducted by a judicial officer into the relevant conviction or may refer “the whole case” to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. By s 79(2) such action may relevantly be taken only if it appears that there is a doubt or question as to the applicant’s guilt or as to any part of the evidence in the case.

16 As Barr J noted at [3] of his reasons of 12 February 2009, the test to be applied pursuant to s 79(2) was whether the material relied on caused unease or a sense of disquiet in allowing the conviction to stand.

17 After studying the material, his Honour considered that that test was satisfied as a consequence whereof he ordered that the whole case be referred to this Court to be dealt with as an appeal under the Criminal Appeal Act: The Application of GAR, NSWSC, 12 February 2009 (unreported).

18 As we are bound to consider the whole of the material before us and to come to an independent decision with respect to it, we would emphasise at the outset that we are not influenced by Barr J’s conclusion that the test justifying the order he made had been satisfied.

19 Before proceeding to the merits of this matter, a question arose at the commencement of the hearing of the present appeal as to whether the appellant required leave to appeal his conviction given that his grounds of appeal (set out below) do not involve “a question of law alone” within the meaning of s 5(1) of the Criminal Appeal Act; Rasic v R [2009] NSWCCA 202. The argument to the contrary, namely that leave is not required, is founded on the fact that the present matter has been referred to this Court under s 79(1) of the Review Act “to be dealt with as an appeal under the Criminal Appeal Act 1912”.

20 In our view the better construction is that leave is required. However, as we are of the opinion that the grounds of appeal are at least arguable so that there should be a grant of leave, it is unnecessary to express a final conclusion on that question.

THE APPELLANT’S GROUNDS OF APPEAL

21 On 1 May 2009 the following grounds of appeal were filed on behalf of the appellant:

“1. At the hearing of this appeal the Appellant will seek to rely upon fresh evidence to the effect:

(i) The complainant and key prosecution witness, [ER], gave false evidence implicating the Appellant in the subject offence;

(ii) The complainant and key prosecution witness, [ER], procured her daughter [E] to give fabricated evidence implicating the Appellant in the proceedings falsely corroborative of the complainant’s version of events.

2. The verdict of the jury should be set aside and an acquittal entered and/or in the alternative the matter referred for a new trial.”

22 At the hearing before this Court, Ground 1 was essentially reframed. It was not sought to establish Ground 1(i) and in respect of Ground 1(ii) it was asserted that the complainant’s daughter E had given false evidence implicating the appellant in the sexual assault of her mother “at the behest of” the complainant, her mother.

23 It is to be noted, however, that as a consequence of the evidence given before us by ER, it was not alleged that she actively procured E to lie for her. As will appear, the submission ultimately advanced in light of the evidence before this Court was somewhat more subtle than that.

THE APPLICABLE LEGAL PRINCIPLES

24 As with any appeal against conviction to this Court, the governing statutory provision is s 6(1) of the Criminal Appeal Act which is in the following terms:

“The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

25 As is apparent from a reading of s 6(1), it contains a number of distinct grounds upon which this Court may set aside the verdict of a jury. The first ground, namely, that the verdict was unreasonable or could not be supported having regard to the evidence, was advanced in the first appeal and rejected. On the present appeal, the appellant did not seek to re-agitate that ground; rather, he accepted that the ground upon which he relied was that a miscarriage of justice had resulted in light of the fresh evidence of E that she had lied in her evidence at the appellant’s trial implicating him in the rape of her mother.

26 It was common ground before this Court that the relevant principles established by the authorities in respect of an appeal founded on fresh evidence had been accurately summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] in, relevantly, the following terms (omitting citations):

“■ First, a distinction is made between ‘new evidence’ and ‘fresh evidence’. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.

■ Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial.

■ Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial.

■ Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.

■ Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new.

■ Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:

► Is the evidence fresh?

► If it is, is it ‘credible’ or at least capable of belief or ‘plausible’

► If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused”.

27 The appellant submitted that the fresh evidence was of such cogency that this Court would be satisfied of his innocence or, alternatively and at the very least, would entertain a reasonable doubt as to his guilt with the consequence that the jury’s verdict should be quashed and a new trial ordered. It was conceded, however, that in the circumstances as they emerged in the evidence before this Court, the first of these alternatives was not the appellant’s strongest position.

28 The appellant’s alternative submission that the verdict should be quashed and a new trial ordered was founded upon the following propositions: first, the evidence upon which reliance was placed was “fresh”; second, that that evidence was credible, cogent and plausible; third, that in the context of the evidence given at trial, the fresh evidence was likely to have caused the jury to entertain a reasonable doubt as to the appellant’s guilt; fourth and alternatively, there was a significant possibility that the jury, acting reasonably, may have acquitted the appellant on the basis of the evidence as a whole, including the fresh evidence.

THE CASES OF THE CROWN AND THE APPELLANT AT TRIAL

29 The appellant and the Crown were content to accept the summary of both the prosecution case and the defence case at trial as set out in the judgment of Miles JA in the first appeal at [6]-[17] in the following terms:

Prosecution case at trial

6 The complainant, ER, and the appellant had been married for some twenty years. They were divorced some few days before 13 January 2002 [their divorce became final on 9 January 2002]. The complainant with their daughter then aged twelve lived at a house at Doonside.

7 The appellant went to the house on the morning of Sunday 13 January 2002 without prior arrangement. The daughter was present when he arrived. The complainant in response to a telephone call arrived later. The appellant swore and shouted at her about various matters. He pinned her against the sink in the kitchen with his hands on either side of her body and she remained there for about an hour and a half during which time the appellant moved back and forth a foot and a half away. Thereafter she was able to move about the kitchen but she was not able to move from that area. After about two and a half hours she was able to move into the dining room. During the whole of the time until then the appellant continued to be abusive and to make threats directed at her and other persons, including a man whom it is convenient to call RM.

8 From about lunchtime to about 5 pm, during which the daughter was asleep on the lounge, the appellant was in turn calm and abusive. More than once the complainant asked him to leave but he refused. When the daughter woke, the complainant said that she wanted to go for a walk with the daughter. The appellant insisted that if they went he would go too. They did not go.

9 As the evening progressed there was further acrimony over the use of the telephone. Incoming calls were received and outgoing calls were made or attempted.

10 At about 11 pm the daughter went to bed, this time in her own room. In response to the complainant’s repeated request that he leave, the appellant refused, insisting that it was his home and that he could sleep where he liked.

11 At about midnight the complainant went to bed in her room, remaining fully dressed.

12 About fifteen minutes later, the appellant came into the room and approached her. She said 'Don’t do this to me G. Please don’t do this to me.' The appellant responded by threatening to silence her. He then threw her back onto the bed, removed her clothing and had forcible penile intercourse with her. He continued to threaten her and watch her when she went to the bathroom and put her clothes back on. He set the alarm clock and lay on the bed next to her. When the alarm clock sounded at 4 am, he left, threatening to return.

13 After showering and dressing the complainant went to the dining room where she sat for some time. She then telephoned RM. At about 6 am the daughter came into the dining room. They conversed and a telephone call was made to the police. At about 11.20 am two police officers attended the house. The complainant had a conversation with them. The contents of that conversation were given in evidence by one of the police officers. Later that afternoon the complainant attended the Westmead Hospital where Dr Sterrett took a history, examined the complainant and prepared a report.

14 The evidence in the Crown case was given by the complainant, the daughter and police officers who attended the scene and carried out investigation. The report of Dr Sterrett was admitted into evidence. Apart from the history given by the complainant, it reported scratches to the left side of the complainant’s face and fingernail marks on the left arm and bruising. Injuries of that nature were shown in photographs also admitted into evidence. Forensic evidence included DNA testing which established a match between semen found on the complainant’s bed sheet and a sample taken from the appellant.

Defence case at trial

15 The defence case was that the appellant went to the house in order to invite his daughter to go with him on an outing and that he became concerned about what she told him about herself and RM who was much older than she. Upon the complainant’s return to the house, he discussed with her his concerns. The discussion was sometimes heated particularly with reference to RM whom he suspected of abusing the daughter. However, he did nothing to restrict the complainant’s movements around the house or to stop her from leaving. During the afternoon they grew conciliatory and when the daughter went to bed the complainant invited him to have intercourse with her in her room. He accepted the invitation and consensual intercourse took place several times before he left in the morning when the alarm clock sounded.

16 Evidence to the above effect was given by the appellant.

17 In cross-examination the daughter conceded that she had given a deliberately false account to the police of her movements on the preceding night of 12 to 13 January 2002. It was suggested that she had lied in order to protect her mother and to preserve her own freedom, in particular her relationship with RM. She also conceded that she had lied on a previous occasion when she made a false accusation against RM.”

THE COMPLAINANT’S (ER’S) EVIDENCE AT TRIAL RELEVANT TO THE ISSUES ON THE APPEAL

30 In her evidence-in-chief, ER stated that around midnight she went to bed fully clothed. Some 15 minutes later the appellant entered her bedroom. He had removed his pants but otherwise was still in his underpants and a sloppy joe. ER immediately jumped out of bed and stood against the bedroom wall whereupon the appellant moved quickly towards her. The following exchange then took place: (WB 207-208)

Don’t do this, don’t do this to me, [GAR], please don’t do this to me

Please, please don’t hurt me, please don’t hurt me, please don’t do this to me, please don’t [GAR]

31 According to ER, the appellant initially had one hand over her face. He then removed her clothes with his free hand. She struggled but was threatened by the appellant that if she screamed he would snap her neck and bury her. She was terrified. She tried to keep her legs together but the appellant then removed his hand from her face and used both hands to force or prise her legs apart at the knees: her exact evidence was “I was trying to keep my legs together and he was just prising them by the knees, opening my legs”. She resisted, saying “[GAR] please don’t do this to me”. Her last words before intercourse took place were “Please don’t hurt me”. (WB 209-210).

32 According to ER, intercourse lasted only four or five minutes. He then said to her: “This is how – this is square up time, this is how I’ve treated sluts all my life.” (WB 210). ER then indicated that she wished to go to the bathroom, which ultimately she was permitted to do. She was then pushed by the appellant back into the bedroom and lay on the bed but did not sleep. The appellant also lay on the bed and set the alarm for 4am.

33 After the rape the appellant did not say anything further to ER until after the alarm went off. ER pretended to be asleep. The appellant got up and ER heard him in the bathroom and kitchen. At some point he came up the hallway, stood at the bedroom door and said “I’m off now, consider this a square up slut, I’ll be back”. (WB 213)

34 After the appellant left the house, ER went to the bathroom, vomited and had a lengthy shower. She then dressed and went down and sat in the dining room. It was then approximately 5.30am. ER said that she first spoke to the police on the phone at about 6am, although it was her daughter, E, who first phoned the police (WB 214). E had entered the dining room prior to that. The police attended the house sometime later that morning and ER accompanied them back to Blacktown Police Station where she made a statement. She was then taken to Westmead Hospital and examined by a doctor.

35 ER was asked what injuries she had sustained and replied (WB 215)

“where he had initially grabbed me on the arms I had fingernail marks and bruises on my upper arms. On both the insides of my knees – of my legs above my knees I had imprints of thumbs, and I had scratches where he’d dug his fingernails into the, on my face when he had his hand over my face.”

36 We interpose here a reference to the report of Dr Sterrett. He stated that ER arrived at the Sexual Assault Unit of Westmead Hospital on 14 January 2002 (WB 127)

“giving a history of verbal, physical and sexual abuse by her ex-husband. This included threats against her life, holding her down with physical force (hand on face and throat), and vaginal rape and with penile penetration and, she believed, ejaculation.”

“Tenderness of neck muscles, contusions (bruises) to inner aspects of knees, abrasions to both elbows.”

37 Annexed to Dr Sterrett’s report (WB 130-131) are diagrams where he indicated the location of two abrasions, one to each elbow posteromedially and each about 1cm long and 3cm wide and contusions to the inner aspect of the legs at the position of ER’s knees. Accordingly, it is clear that the physical evidence of the injuries to ER as described by Dr Sterrett is entirely consistent with the injuries ER said she sustained during the struggle with the appellant. For completeness we should add that the appellant’s submission was that those injuries were also consistent with the consensual sex that he had with ER and which the appellant described in his evidence in some detail and to which we shall further refer below.

38 It was further submitted by the appellant that those injuries were consistent with ER’s liking for “rough sex” as asserted by Ms Toobey in her ERISP of 23 August 2007 to which we shall also return. At trial (WB 648) in cross-examination, the appellant said that ER told him “she needed to be fucked hard”, although this differed from his evidence-in-chief (WB 519). In his evidence-in-chief before this Court he agreed that ER liked rough sex (at T18). However, it is noteworthy that ER was not cross-examined at trial to suggest that she had such a liking, nor was it suggested to her when she was cross-examined on behalf of the appellant in the appeal.

39 ER was cross-examined at length with respect to her evidence regarding the first count. It is apparent from a reading of that evidence that she was exhibiting extreme anger as to what had occurred on the day in question. There is no doubt that many of ER’s answers were non-responsive to the questions that were asked of her: rather, she sought to repeat her evidence as to the appellant’s conduct during the course of that day. However, ER’s evidence with respect to the elements of the first count was such that it was clearly open to the jury to have a reasonable doubt as to whether one or more of them had been made out. Our reading of ER’s cross-examination with respect to her evidence on that count leads us to the same conclusions reached by Miles AJ on the first appeal at [23] of his Honour’s judgment.

40 ER was also cross-examined at considerable length in relation to her evidence with respect to the second count. A reading of her cross-examination reveals that her responses to questions were consistent with the evidence she had given in chief with respect to the charge, the subject of that count. Thus, when asked what had happened when the appellant entered her bedroom, she responded (WB 313-314):

“A. I went to bed at midnight, I was fully clothed and I was lying on my side of – as you come into the room on the right hand side of the bed and I was facing – I sleep on my left hand side and I was facing the door. I had been in bed about 15 minutes and a silhouette came to the door and it was him. He had no – he had removed his trousers, he had his top on and he had underpants on and as soon as I saw him at the door I jumped up between the bed and the wardrobe about that far and I said ‘No [GAR], no, please’ and he ran for me. He grabbed me, he said ‘You are my wife you will – I can do anything I like with you. Shut up or – you make a sound and I’ll snap your neck’. “

41 Further in cross-examination, when asked “what time do you say that you got up?” ER gave the unresponsive, but consistent, answer:

“He left, he left shortly after the alarm went, he came to my bedroom door and said ‘Consider this a square-up slut --‘. “

“-- then I still lay on that bed and I lay there for some time. I don’t know what time I awoke, I had a shower, I was sick, I vomited, I had an upset stomach and I sat out in the kitchen at the end of the table and just cry and cry.”

cried and cried and cried

WB 353

42 ER was then asked the circumstances in which the police came to be called. The following exchange took place with respect to this aspect: (WB 356)

43 ER was then asked whether during the night E had come to her bedroom whilst she and GAR were in bed together, a proposition which ER vehemently denied, saying that her daughter came nowhere near her bedroom that night. It was put to ER that her daughter was concerned and perhaps annoyed about the fact that she had slept with GAR that night – a proposition which she also denied.

44 When asked whether it was she or E who had first said anything about what had occurred that night, ER responded “I did not tell my daughter”. The exchange continued in the following terms (WB 357-358):

45 The cross-examiner then repeated the suggestion that, in the morning, E had challenged her mother over the fact that she had spent the night with her ex-husband and that she was going to ring ER’s then boyfriend, George, and tell him – a proposition that ER denied. The following exchange then occurred: (WB 360)

46 The appellant’s trial counsel then concluded his cross-examination by putting to ER, over some five pages of transcript, assertions that reflected the evidence that the appellant was later to give as to the occurrence of consensual sex. ER emphatically denied each assertion.

47 The appellant’s counsel’s cross-examination of ER extended over some 118 pages of transcript. Not all of this involved evidence as there were a number of interruptions when argument took place generally in the absence of the jury. However, a reading of the transcript indicates that by far the majority of the cross-examination was directed at ER’s evidence with respect to the first count. Apart from the five pages of transcript directed at putting to ER the appellant’s version of what had occurred on the night in question referred to in the preceding paragraph, the balance of the cross-examination of ER with respect to the second count occupied nearly 17 pages of transcript (excluding interruptions) out of a total of 118 pages.

48 It is fair to say that a reading of that cross-examination indicates the following: first, ER was more responsive to the questions asked of her than she had been with respect to her answers to questions concerning the first count; second, her answers to the questions asked of her with respect to the second count were entirely consistent with the evidence that she had given in chief with respect to that count; third, not only were her responses in cross-examination consistent with the evidence that she had given in chief, but also the evidence that she gave with respect to the second count both in chief and in cross-examination contained no discrepancies or inadequacies as to the details of what she had said had occurred. In our view there could be no doubt that it was open to the jury to conclude that her evidence on the second count had significant probative force.

E’S EVIDENCE AT TRIAL RELEVANT TO THE ISSUES ON THE APPEAL

49 At the time of the alleged offences, E was a few weeks short of her thirteenth birthday. By the time of the trial she was 13 years and 8 months. In chief she gave evidence relevant to the first count that corroborated her mother’s evidence in a number of respects that are no longer relevant.

50 With respect to the second count, the following exchange took place between E and the Crown Prosecutor (WB 419):

A. I heard my mother saying ‘Please don’t [GAR], please don’t’.

A. No, but I heard him say something at 4 o’clock in the morning.

A. Yes.

A. I heard my father say something about ‘I don’t care what you call it but I call it revenge’.

51 E was then asked whether she then went back to sleep and she agreed that she did. She then said that she woke at about 4am and heard her father say “Well I’m fucking going” and heard the front door slam. When she got up she found her mother “in the dining room crying on the chair”. She then gave the following evidence (WB 420):

52 E had given a statement to the police on 14 January 2002. In cross-examination it was put to her that in that statement she had stated that she went to sleep about 9pm and woke at 2am exactly. The following exchange then took place (WB 464):

53 A little later on in her cross-examination E said that she awoke at about 4am and heard her father say “Well I’m effing going”. The following exchange then occurred (WB 471):

I don’t care what you call it, but I call it a square up’ or something or revenge or something

54 It was put to E that she went down the hallway to see how her mother was, which she denied. She said that she was concerned about her mother being raped but had done nothing about it as it was the norm as GAR and her mother always used to fight and argue and she had gotten used to it.

55 The appellant’s counsel then cross-examined E with respect to what had occurred after she woke up that morning. The following exchange then occurred (WB 473-474):

*

56 Two observations may be made with respect to the evidence recorded in the preceding paragraph. The first is that it is to a degree consistent with ER’s evidence which we have extracted at [42] and [44] above. However, ER was adamant that she did not tell her daughter that she had been raped. Second, although E said to her mother “I know what happened to you. I know dad raped you”, she did not give evidence that she had told her mother that she had heard her say “Please don’t [GAR], please don’t”. Furthermore, the appellant’s trial counsel did not suggest to her that she had not heard her mother saying those words: on the contrary, E repeated that she had heard her mother say those words in the exchange referred to at [52] above.

THE FRESH EVIDENCE RELEVANT TO THE ISSUES ON THE APPEAL

The evidence of the appellant

57 The appellant first tendered an affidavit sworn by him on 13 October 2006. Relevantly, he deposed that on 16 April 2005 E had visited him in Long Bay Gaol in Mr Carroll’s company. At the outset of the visit the appellant put it squarely to E that she had fabricated her evidence against him regarding the sexual assault of her mother. He said to her

“E in front of John, tell the truth about what you heard the night you said you heard me sexually assault your mother”.

“I didn’t hear anything, mum got me to say that I did because she said they wouldn’t believe her by herself”.

“I saw you come up to ER’s bedroom door in the early hours that morning and we were just sleeping”.

“Yes, I saw you”.

58 The latter statement by E is contrary to the evidence that she gave at trial where, in cross-examination, she denied that during the night she had gotten up, looked into her mother’s bedroom and seen her parents in bed together. She maintained that denial in her evidence before this Court (at T75-76).

59 Mr Carroll swore an affidavit on 22 October 2006 which relevantly corroborated that of the appellant.

The evidence of the appellant’s sister

60 The appellant’s sister, JC, swore an affidavit on 12 April 2007. She deposed that in October 2002, E came to stay with her due to difficulties she was experiencing with her mother. At one point JC told E to telephone her mother, which she did. Paragraph 4 of that affidavit is relevantly in the following terms:

“During the conversation [E] started arguing with her mother. [E] said words to the effect, ‘Mum, you made me lie about dad’. [ER] said words, ‘You had to or no one would believe me, there wouldn’t be a case’. [E] said words to the effect, ‘Mum you made me tell lies’.”

61 JC was interviewed by the police on 13 June 2007. In her ERISP she said that she had taped the conversation between E and her mother but had lost the tape. She repeated that E had said “Mum why did you make me lie” and that ER’s response was “because if I didn’t, no-one would believe me”. JC agreed that she had not spoken to her former sister-in-law about whether ER had lied in her testimony at trial.

62 We interpose at this point that in her evidence in the appeal (at T144) ER was asked about the telephone conversation with her daughter deposed to by JC above. The following exchange took place:

63 Given the evidence of E to which we refer below that her mother did not make her lie, ER’s assertion to that effect in the passage from her evidence extracted above was clearly true. To the extent that that evidence is in conflict with that of JC referred to at [60] and [61] above, we would find that that of JC was not believable.

64 Finally, with respect to JC’s evidence, we record that the Crown wished to cross-examine JC but medical evidence was tendered by the appellant establishing that JC had long-standing depression with a history of alcohol abuse which had caused liver disease. In April 2009 JC was admitted to a psychiatric hospital after threatening suicide. Although she was currently off alcohol, her medical practitioner considered that the stress of having to attend court would likely cause significant deterioration in her mental health and/or cause her to commence drinking again. Accordingly, she was not called.

The evidence of Ms Toobey

65 Ms Tammy Toobey was also interviewed by the police on 23 August 2007. She had been contacted by Mr Ross Hill, the appellant’s then solicitor, and requested to attend for an interview. When asked whether ER had ever confided in her in relation to any criminal activity that the appellant may have been involved in, she answered in the negative. The following questions and answers are of significance:

and she liked what could be described as rough sex

66 The following questions and answers then occurred:

67 The interviewer returned to the question of whether ER had told Ms Toobey that she had lied or proposed to lie in court in the following exchange:

…

68 It is apparent from the foregoing questions and answers that on two occasions Ms Toobey denied that ER had told her that she proposed to lie in court in respect of the appellant and that on one occasion she said that she had lied in court. As Ms Toobey’s answers indicated that the relationship between she and ER broke up before the trial, the answer to Q123 does not, in our view, carry any weight. On two occasions when asked directly whether ER had told her that she proposed to lie at the trial, Ms Toobey answered in the negative.

69 The interviewer also asked Ms Toobey whether E had ever told her that she had lied about her father. The following questions and answers are recorded:

…

70 The interviewer then turned to a conversation between Ms Toobey and E. The relevant questions and answers are as follows:

71 During the course of the hearing of the appeal a question arose as to the admissibility of Ms Toobey’s ERISP. Affidavits were filed on behalf of the appellant regarding the attempts that had been made to serve Ms Toobey with an Order to Attend. When the current matter was before this Court last November, and was adjourned due to the unavailability of some witnesses, the Court was informed that the parties’ understanding was that Ms Toobey, or Mrs Edmundsen according to her married name, had moved to Western Australia. The affidavit evidence of attempts to serve Ms Toobey with an Order to Attend and which involved searches of the Electoral Roll and the White Pages, did not make clear whether that search was confined to New South Wales or was Australia-wide.

72 In a written submission received after the conclusion of the appeal hearing, the Court was informed that the process server’s enquiries of Ms Toobey under both her maiden and married names extended to the whole of Australia, including Western Australia, but without success. Accordingly, Ms Toobey has disappeared into the ether. However, it was submitted that her ERISP was admissible (and would be admissible at any new trial) pursuant to s 65 of the Evidence Act 1995. For present purposes, without deciding, we are prepared to assume that that submission is correct. The same comment applies to the affidavit and the ERISP of JC.

73 The Crown submitted that the evidence of JC and Ms Toobey did not qualify as “fresh”. However, in view of the evidence of E referred to below, it is unnecessary to determine that issue.

The evidence of E

74 Finally, the police interviewed E on 21 June 2007. She was asked whether she lied in court about her father, which she denied in the following questions and answers:

75 She was then asked whether in 2002 she went to stay with her aunt at Port Macquarie and the following questions and answers are recorded:

…

76 The interviewer then turned to E’s visit to her father in gaol in 2005. The following questions and answers are recorded:

…

77 The interviewer then asked E about the period between 2002 and 2005. In answer to the question of whether anyone had brought the matter up during that period, she responded:

“--- my dad constantly, constantly, every time he speaks to me which is to this day, constantly asks, he asks me what, what I said and what had happened, which is understandable. He’s doing a very long time in gaol and it’s, it’s a horrible position which I’m in. I love my dad and I love my mum ---

Q60. Sure.

*

Q63. OK. Did you, have you ever told your mother that you’ve said these things to your father?
A. I haven’t told her but I’m sure that she’s ---

Q64. Right.
A. --- it’s, it’s either my father has informed her or ---

78 The Crown called E. She was referred to the transcript of her interview of 21 June 2007. She was then asked by the Crown whether she recalled the allegations of rape made by her mother about her father. She responded in the affirmative. After agreeing that her father had stayed over that night, E was asked the following question: (at T43)

79 When asked whether she had given a statement to the police about the matter, she said that she had but that she could only recall bits and pieces of it as at the time she was only 12 years old. She was then referred to the transcript of her interview and asked: (at T44)

80 After being informed as to the provisions of s 128 of the Evidence Act she took independent advice from her solicitor and ultimately indicated that she would answer questions if she obtained a certificate under s 128(5). She was again asked:

81 However, E then said that she had not properly read her record of interview and she was then asked to read it and to indicate which answers she now said were incorrect. She did this and indicated that her answer to Q7 “Did you tell lies about your father in court?” and to which she had answered “No”, was untrue and that the answer should have been “Yes”. She was then referred to Q8 which was:

“Question 8 is fine. My mother never asked me to lie to the police. And question 9, my mother never asked me to lie in court. But I was incredibly influenced by whatever my mother had told me had happened on that occasion.”

82 At T55, E said, amongst other things:

“I was extremely sure my mother told me what happened that morning. I went into utter shock and fear, and instantly went to my mother’s side, and was petrified, as any 13 year old would be.”

T67

83 E was then referred to her answers to Q33 and Q34 in which she agreed that she had told her father during her visit to him in April 2005 in gaol that her mother had got her to lie about him in court. She said (at T55-56):

“I was extremely influenced by my mother. It’s not that my mother made me lie, but.

Q. The question you were asked in question 34 is why you told your father that your mother got you to tell lies about him in court?
A. Because I left like I was told to lie about my father in court.

Q. In what way did you feel that?
A. My mother constantly telling me what had happened, and what he had done to her, the police coming around and questioning and speaking to my mum. I felt like I was so peer pressured into believing what my mother had told me was – had gone on.

84 The Crown then referred E to evidence that she had given at the appellant’s trial and which related to what had eventuated on the day of 13 January including that her father was calling her mother a slut. E was asked whether her answers given at the trial were true, to which she responded that they were to the best of her knowledge. She then said that her mother and father had been constantly arguing and fighting most of her life and that the day in question was “such a horrible day”.

85 E was then taken to the evidence which we have recorded at [50] above, and in particular to the answers that we have emphasised in that exchange. She agreed that those answers were incorrect and that she had not heard her father say any of the things that she had attributed to him.

86 She was then taken to her evidence at trial as to what had happened when she awoke early on the morning of 14 January. She gave the following evidence (at T60):

“A. Yes, I do remember going into the dining room and seeing my mother on the chair, but I don’t remember saying ‘Mum, I’m calling the police’. I remember saying ‘mum’. I remember my mum talking to me and explaining to me what had happened, and I said ‘Call the police, call the police’. I do remember getting extremely upset and telling my mum to call the police.

Q. And did she say to you that – give any of the answers to which you referred at the question just below line 45? [Recorded at [51] above]
A. … No, she didn’t say that.

A member of the Court…

87 There is an apparent inconsistency between that evidence of E and that of her mother at trial in two respects. The first is that in her evidence on the appeal E said that when her mother saw her that she “instantly started crying” whereas according to ER she was already crying when her daughter entered the dining room. The second is that ER said that it was her daughter who said “I am calling the police”. E said in the evidence extracted above that she could not remember saying that. Nevertheless, she did accept that she said to her mother “Call the police, call the police” and she does not deny that it was she who ultimately did so.

88 Further, in her evidence-in-chief at trial (at WB 420) E, when asked where her mother was at the time she, E, had got up to see if her mother was in the house, said she found her in the dining room “crying on the chair”. Of course, ER had denied that she told her daughter that she had been raped. Thus at T61, the following exchange took place between E and a member of the Court:

89 Although in her evidence recorded at [86] above E said that she did not remember saying “Mum, I’m calling the police”, she was asked by a member of the Court at T61-62:

90 When it was put to E that she had made up what appears in her evidence which we have recorded at [55] commencing at the asterisked question, she responded (at T62):

“I wouldn’t say that I made it up, … I just believed what my mother was telling me, and wanted my mother to take actions – action about what had happened.”

91 E was then referred to Ms Toobey’s evidence. The following exchange then occurred (at T64, 65-66):

…

92 After again acknowledging (at T66) that the evidence about what she had heard during the night at 2am and 4am was not true, she agreed that she had told JC that she had lied in court. In cross-examination on behalf of the appellant, E was asked with respect to the phone call between herself and her mother whilst she was staying with JC in 2002 (at T67-68):

A member of the Court …

DALTON

93 After agreeing that she had told her father at the gaol visit that her mother had got her to lie, E was asked (at T69):

…

*

94 It is apparent from the above exchanges that E was prepared to agree to anything put to her by her father’s senior counsel. That raises the issue as to the weight that should be attributed to her answers.

95 As will be appreciated from the extract of E’s evidence as recorded above, E was asserting in fact that her mother was aware that E had made a statement to the police indicating what she had heard her mother say to her father at 2am on the morning of 14 January and what her father said to her mother the same morning which was untrue; second, again to her mother’s knowledge, that E had given evidence in accordance with that statement which was untrue; third, that E “felt that [her mother] had made [her] tell lies” – a course she had adopted – being statements made by her mother and her father, which E knew were not true because she had not heard them.

96 Thus, although E accepted that her mother had not asked her to provide false evidence to support her own, nevertheless E knew that she had not heard anything that night and she knew that she was providing false evidence as to what she said she had heard.

97 The cross-examiner then continued with the following line of questioning (at T70):

98 E was then asked by a member of the Court (at T70-71):

A member of the Court …

99 Senior counsel for the appellant then asked her (at T71):

100 There is thus a tension, if not a conflict, between E’s evidence that she had not in fact told her mother what she had said in her statement and in her evidence at trial as to what she had heard; and E’s evidence before this Court that her mother knew that she had given false evidence in respect of what she had told the police that she had heard.

101 Senior counsel for the appellant sought to clarify the position in the following exchange (at T72-73):

Did she ask you whether you heard those things

Yes

And what did you say to her

No

…

102 The effect of the above evidence and, in particular, that which we have emphasised, if accepted, is that although E heard nothing in the early hours of the morning of 14 January, nevertheless later that morning her mother told her what she and the appellant had said at that time and that ER asked her daughter whether she had heard those things to which E had replied “No”. Subsequently E made a statement falsely saying that she had heard the things that her mother and father had said in the early hours of the morning, that she had discussed the contents of that statement with her mother and that her mother was aware that E was going to give evidence with respect to what she had heard in the early hours of that morning when she had not but that ER never prevented her from doing so.

103 Even if for present purposes one accepts that ER told her daughter what she had said to her father immediately before he raped her, and even if E told her mother that she had not heard what her mother and her father had said during the early hours of the morning, nevertheless the only foundation referred to in the exchanges which we have recorded above for the assertion by E that her mother was aware that she had made a false statement to the police and given false evidence at the trial, was that E had discussed the contents of her statement with her mother after it had been made. In this respect E did not suggest that her mother obtained a copy of E’s statement – there is no evidence that she did. The only evidentiary basis for ER’s knowledge of the falsity of E’s statement to the police was her daughter’s assertion that she had discussed the contents of that statement with her mother.

104 Furthermore, the only evidentiary basis to date for E’s evidence that her mother was aware that she had given false evidence at trial was the assumption that whatever evidence she gave, it must have accorded with the contents of her statement to the police which her mother allegedly knew to be false.

105 Immediately following the exchange set out at [101] above, E was asked by a member of the Court (at T73) whether her mother was present in court when she gave her evidence, to which she responded

“I think, yes. Yes, I’m pretty sure she was. Pretty sure she was with me the whole time, at the police station, everywhere, during the whole thing.”

106 We would not attribute any weight to that evidence first, because there was never any suggestion at trial and, as will appear, ER denied that she was present when E gave her statement to the police and this would accord with police practice; second, E gave evidence by video-link and could not have known whether her mother was in court when her evidence was given; and third, we would regard as truthful ER’s denial that she was in court when E gave her evidence in this manner although she acknowledged that she was at the courthouse sitting outside the courtroom at the time.

107 The following exchange then took place between E and a member of the Court (at T74):

108 The appellant’s counsel’s last question to the witness was (at T74):

109 In response to further questions from the Court, E agreed that she was now saying that she told her mother that she did not hear any conversation between her father and her mother in the early hours of the morning of 14 January and that after her mother had told her what had gone on, she said she remembered

“… my mother asking me did I hear her, did I hear her that night because my room wasn’t very far away, and I said no I didn’t hear.

110 In re-examination the Crown put to E (at T75) that she never told her mother that she had not heard any noises in the night, to which she responded “That’s untrue”. She further denied that she went into her mother’s room in the early hours of the morning, which puts a lie to what she had told her father when she saw him at Long Bay Gaol on 16 April 2005.

The evidence of ER

111 On 21 June 2007 the police interviewed ER. In her ERISP she denied telling lies about the appellant in Court. When referred to the time in 2002 that E stayed with JC at her home in Port Macquarie, ER said that her daughter was in a lot of trouble at the time but that she did not stay long with her aunt as both JC and her daughter had attacked E, who was then sent home to her mother by bus. However, within a few days of arriving at her aunt’s, E telephoned her mother – the following questions and answers are recorded:

…

146 On the other hand, the Crown submitted that there was considerable support for ER’s evidence. Reference was made to her injuries and to the fact that the medical evidence was consistent with the manner in which she said that she had sustained them as well as to the complaints that she had made both to the police and Dr Sterrett.

147 His Honour directed the jury in relation to the complaint evidence and the appellant’s assertion that he had misdirected the jury with respect to that evidence, was rejected by this Court in the first appeal.

148 In this respect the trial judge had identified five areas of evidence which, he informed the jury, constituted what he described as “complaint evidence”. This Court determined in the first appeal that four of those complaints were properly admitted as such. That evidence was summarised by Miles AJ in the first appeal at [39] in the following terms:

“● The evidence of the daughter that after she woke and saw her mother in the dining room, she said ‘Mum I’m calling the police’. The complainant replied ‘No, don’t’. The daughter responded ‘I know he raped you’. The complainant replied ‘Yes he did’. The daughter then rang the police.

● Evidence about which his Honour said there was no dispute, namely that the police ‘received a complaint from the complainant that morning she had been raped by the accused’.

● Evidence of Constable White who accompanied Constable Wharfe to the house about 11.30am and heard the complainant say to Constable Wharfe ‘He wouldn’t let us leave the house, and I couldn’t call anyone, when I went to bed, he came in and raped me’.

Evidence Act

149 As Miles AJ (at [46] of his judgment in the first appeal) observed,

“[E]vidence of a complaint by a person that he or she was sexually assaulted, made while fresh in the memory, may be approached by the jury as evidence of both the fact of the sexual assault and of the truthfulness or reliability of the complainant as a witness.”

150 It was therefore submitted that even if the jury were to discount E’s evidence as to what she heard her father and mother saying in the early hours of the morning of 14 January, nevertheless there was more than sufficient in the complaint evidence to which reference has been made, as well as the medical evidence as to ER’s injuries which, although not conclusive, were consistent with her evidence as to the circumstances of the rape, to justify support for the jury’s verdict.

The appeal should be dismissed

151 In our view the Crown’s submissions should be accepted for the following reasons:

(a) There can be little doubt, and the contrary was only faintly asserted, that the fresh evidence was not so cogent as to demonstrate to this Court’s satisfaction that the appellant was innocent of the offence charged in the second count; nor, having considered all the evidence, both at trial and before this Court, do we entertain a reasonable doubt as to his guilt with respect to that offence.

(b) Even though the evidence does not have the necessary degree of cogency as to justify the quashing of the jury’s verdict and the entry of a not guilty verdict, nevertheless, where it is sought to have the verdict quashed and a new trial ordered, the fresh evidence justifying such a course must be “ credible ” or at least capable of belief or “ plausible ”.

some hope

(ii) we would not regard the appellant’s sister’s evidence as carrying any weight given their relationship and the fact that her evidence was not able to be tested. The same observation applies to the contents of the police interview with Ms Toobey where she asserted that E had told her that she had lied at the trial;

(iii) as to the retraction by E of her answer to Q7 in her ERISP when, without warning, she said that that answer to Q7 was untrue, applying, as it did, to the answers in her evidence-in-chief at trial which we have emphasised at [50] above, we would not regard that retraction as plausible or capable of belief given our conclusion, referred to at [94] above, that it was clear from the evidence that she gave before this Court when cross-examined on behalf of the appellant, that she was prepared to agree to anything that was put to her by her father’s counsel and which reflected in the appellant’s favour;

(iv) in any event, there were a number of inconsistencies or unsatisfactory aspects in her evidence given before this Court first, with respect to whether or not she had told her mother on the morning of 14 January that she had not heard anything in the early hours of that morning; and, second, with respect to her evidence that her mother was aware that the contents of her statement to the police, as well as the evidence that she proposed to give at trial, was false to her mother’s knowledge.

(d) Thus in the exchange referred to at [107] above, E agreed that her mother had told her that she had said to her father “ Don’t, don’t ” and “ Please don’t, please don’t ” or words to that effect. When cross-examined as to what she had said to her daughter at about 6am on the morning of 14 January, ER said that she could not recall: see at [116] above. Yet, notwithstanding the exchange referred to at [107], it was not suggested to E by the appellant that when she saw her mother in the dining room that morning that the latter had told her that at the time her father left the house at about 4am, he had said to ER words to the effect “ I don’t care what you call it but I call it revenge ” (which was her evidence in chief recorded at [50]) or that her father’s parting comment was “ I don’t care what you call it, but I call it a square up ” or something or revenge, being the evidence E gave in cross-examination and recorded at [53] above.

(e) Nor was it suggested to E that her mother had told her that when her father left the house, he had said “ Well I’m fucking going ”. Yet that was her evidence at trial which included her saying that she heard the front door slam: see at [51] above. Why, one asks rhetorically, did she give that evidence if it be the fact that she had not heard anything at the time in question and her mother had not told her what her father had said when he was leaving the house?

(f) In our view the foregoing observations are of some significance for although it is plausible that ER had told her daughter when she was found crying in the dining room early on the morning of 14 January that she had said “ Don’t, [GAR], don’t ” or words to that effect, it is highly unlikely, and therefore incapable of belief, that ER had also told her daughter that on departing the house, her father had said the words which E had attributed to him and which are consistent with ER’s evidence at trial which we have recorded at [32] and [41] above. If that be so, then it casts significant doubt upon E’s denial that she had not heard anything in the early hours of the morning of 14 January and had informed her mother accordingly.

(g) Then there are the various versions given by E to which we have referred at [122] above. They speak for themselves. We repeat the conclusion to which we came at [123] above.

(h) Furthermore, in the light of E’s evidence before this Court, the appellant no longer submits that ER told or procured her daughter to lie either to the police or in her evidence at trial. Rather, a more subtle submission was advanced, namely, that in some unidentified manner, ER had somehow subtly manipulated her daughter to give false evidence or had otherwise, either consciously or unconsciously, placed some pressure upon her to do so. Reliance was placed upon E’s evidence which we have recorded at [83] above in which she said that she “ felt like I was so peer pressured into believing what my mother had told me was – had gone on ”. That evidence falls far short of any legitimate submission that could be put to a jury that ER had consciously manipulated or placed pressure upon her daughter to give false evidence at her father’s trial.

152 It should not be overlooked that in his evidence-in-chief at trial, the appellant gave the following evidence (WB 523):

153 When E was cross-examined at trial, this conversation between she and her father was not put to her. And yet the appellant gave evidence of that conversation in chief, the inference being that his legal representatives were aware that he was going to give that evidence.

154 However, it was suggested to E in cross-examination that a week or two after the events in question she had gone and stayed with Ms Toobey. She was asked whether she recalled having a conversation with Ms Toobey about what had happened on 13 and 14 January, to which she responded in the negative. The following exchange then occurred: (WB 474)

155 It was then suggested that E had spoken to her father on the telephone shortly after the events in question about the fact that she had “got into a bit of trouble”. E agreed that she had got into trouble but denied that she ever spoke to her father about it. When it was suggested to her that she did speak to her father on the telephone “about that subject”, she answered “No”. Counsel then indicated to the trial judge that he wished to put to E the content of the telephone conversation between her and her father, but his Honour rejected the question upon the basis that she had denied that there had been a phone call. Counsel did not elaborate, understandably as the jury was present, upon the nature of the conversation he wished to put to the witness.

156 However, as we have noted, there is nothing in E’s evidence “about that subject” referred to in the preceding paragraph that would suggest that it was intended to suggest to E that she had told her father that which he had attributed to her in the appellant’s evidence referred to at [152] above, namely, that she had informed him that she did not believe that he had raped her mother and that the latter had made it up. These matters further undermine the appellant’s case on the appeal.

157 Although, as we have indicated, the appellant abandoned any submission that ER had requested, told or procured her daughter to lie in the evidence she gave at trial implicating her father, nevertheless it was submitted that E’s evidence was sufficiently plausible to entitle a jury to find or, at least, infer that ER had permitted her daughter to give or at least acquiesced in her giving sworn evidence knowing that it was untrue.

158 For the reasons we have given, we do not consider that E’s evidence is sufficiently credible to justify the jury drawing any such inference let alone making a finding to that effect. We would therefore reject the appellant’s submissions based on this aspect of the evidence before this Court. That lack of credibility or plausibility in E’s evidence is founded, as we have already remarked, upon what we regard as her obvious and natural desire, particularly when either speaking to her father or giving evidence in his presence, to please him so that his conviction, if it stands, could not be attributed to anything said by his daughter but would be entirely based on the evidence of his ex-wife. In this manner, E achieves a balance between her parents insofar as she understandably desires to retain the affection of each of them.

159 One final matter needs to be considered. During the course of argument counsel’s attention was drawn by the Court to its decision in JJT v R [2006] NSWCCA 283; (2006) 67 NSWLR 152, a case in which the facts are not entirely dissimilar to those of the present. In that case the appellant was convicted on a number of counts alleging indecent assault of his niece. His daughter was present when the acts, upon which two of those counts were based, were allegedly committed and who was aged 12 years at the time. She gave evidence at trial and in particular respects her evidence supported the complainant in relation to those counts. However, the daughter had since stated that the evidence she gave at trial was false. It was because of this change in her evidence that a petition was lodged that led to the appeal then before the Court.

160 As in the present case, an earlier appeal (before the daughter recanted on her evidence) was dismissed by this Court. It was submitted on the second appeal that there had been a miscarriage of justice having regard to the evidence which was now available: in particular, although not exclusively, the fresh evidence of the daughter.

161 Like E, the daughter in JJT was 12 at the time of the alleged offences and aged 13 when she gave evidence at the trial. One difference between that case and the present was that unlike the appellant in the present case, in JJT the accused did not give evidence at trial but did so at the hearing of the appeal. He denied the alleged assaults.

162 McClellan CJ at CL, with whom James J agreed and with whom Simpson J generally agreed, referred to the principles relating to the application of s 6(1) of the Criminal Appeal Act authoritatively considered by the High Court in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. The faithful application of those principles, his Honour said, required this Court to determine whether, having regard to the evidence received at the trial, together with the evidence admitted in the appeal, the verdict of the jury could not be supported.

163 Although in that case the accused had not given evidence at his trial, his Honour did not give any credence to the evidence given by him on the appeal, describing it as a “ritualistic denial of the allegations”. However, of more significance was the irreconcilable conflict between the evidence given by the accused’s daughter at trial and her evidence on the appeal. His Honour concluded (at [62]) that in the circumstances the appeal had to be determined on the basis that the daughter could not give evidence that supported either the Crown case or that of the accused. The consequence was that the appeal had to be determined having regard to the evidence at the trial but without the daughter’s evidence.

164 The learned Chief Judge considered that the evidence given by the daughter at trial was not convincing. He therefore concluded (at [68]) that the jury could only have placed minimal, if any, weight on her evidence. It had little, if any, evidentiary weight in the Crown case.

165 His Honour ultimately held (at [78]) that a consideration of the evidence before the jury and the additional evidence admitted in the appeal did not lead to the conclusion that there was a significant possibility that an innocent person had been convicted. He therefore proposed that the appeal be dismissed.

166 Simpson J, with whose reasons James J agreed, approached the matter a little differently. In particular, her Honour drew attention (at [103]) to the fact that when dissected, s 6(1) could be seen to provide a number of distinct grounds on which this Court might set aside a jury verdict. The first of these is that the verdict was unreasonable or could not be supported “having regard to the evidence”. This, her Honour said, related to the evidence that was before the jury. The second ground is an erroneous decision of any question of law. The third ground is miscarriage of justice which may be established by, amongst other things, fresh evidence which may relate to events prior to, at or postdating trial.

167 In JJT, her Honour considered that only the third ground was relevant to the appeal. In the circumstances of that case, she agreed with the Chief Judge that it was unlikely that the jury would have placed weight upon the daughter’s evidence and the fact that they convicted the accused on only some of the charges suggested that they regarded other evidence as having significantly more weight. In any event, she said (at [107]) that:

“the task of this Court is not … to review the jury verdict. It is not to the point that the jury might have regarded [the daughter’s] evidence as significant. The task of this Court is to determine whether, in the light of the evidence as it must now be regarded, a miscarriage of justice has been shown to have occurred. The question now is whether, excluding the evidence of [the daughter], the remaining evidence establishes guilt.”

168 At [108] her Honour remarked that it was not possible for this Court to assess the credibility of the complainant’s evidence in the trial, at least by reference to conventional considerations of her demeanour at that time. It was equally difficult, some years later, to assess her credibility by evaluating her demeanour when giving evidence in the appeal. However, it was possible to make an objective assessment of one significant aspect of her evidence being the complaint made by her the day after the alleged events the subject of the relevant two counts and which was confirmed in its entirety by a police officer.

169 Similarly, ER’s evidence was confirmed by that of Detective Senior Constable Crampton, who gave evidence with respect to the complaint made by her to the police at about midday on 14 January in the presence of Constable Wharfe at Blacktown Police Station when her statement was taken. Constable Crampton confirmed that ER’s statement was taken in her daughter’s absence. There was no dispute that the complainant alleged to Constable Wharfe at about 11.20 am on the morning of 14 January 2002 that she had been raped in the early hours of that morning. When Constable Wharfe asked the complainant what had happened, she said that the appellant had raped her and when he finished had said to her “That’s payback”.

170 Returning to the judgment of Simpson J in JJT, what to her Honour was highly persuasive about the complaint was not merely the fact that the complaint had been made but also the circumstances in which it was made and its content. It was, her Honour noted, an apparently spontaneous response to a question incidentally asked which prompted the disclosure which might not otherwise have been made. Those circumstances, therefore, invested the evidence of complaint with considerable weight sufficient to persuade her Honour that no miscarriage of justice had occurred.

171 Obviously, the facts of the present case reveal a number of differences to those in JJT but there are some similarities. First, as in JJT, it is necessary to assess the whole of the evidence upon the basis that E had not given the evidence which she now says was false. This assumes that her recantation of her evidence at trial is, in the circumstances, believable – which we doubt. The second is the complaint evidence of ER not only to the police and Dr Sterrett, but also to E, at least on E’s account of what occurred, namely, that she found her mother crying in the dining room early on the morning of 14 January. But even if the complainant’s evidence was accepted that she did not tell her daughter she had been raped, avoiding the use of that word given her daughter’s age, it was nevertheless apparent to E that her mother was very distraught (which in ER’s evidence in the appeal she said she was (at T110) to an extent sufficient to cause her to call the police.

172 As was put to the appellant’s senior counsel during the course of argument, not only was there evidence of complaint from the mother to her daughter, but there was also E’s observation that her mother was distressed and upset, which was physical evidence of the type which, when taken with the words of complaint, led E to call the police without delay. Although it was submitted that ER’s distress could well have been “play acting”, there is nothing in the evidence, whether at trial or otherwise, to support such a suggestion.

173 As we have noted at [26] above, the relevant test, assuming the fresh evidence is credible, capable of belief or plausible, is that that evidence would, in the context of the evidence given at the trial, have been likely to have caused the jury to entertain a reasonable doubt about the appellant’s guilt or, alternatively, have given rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant.

174 In our view neither test has been satisfied in the present case. As we have already observed, at [47] and [48] above, an examination of ER’s evidence at trial leaves us in no doubt that it was open to the jury to conclude that her evidence on the second count had significant probative value and was entirely credible. That view is confirmed by the manner in which she gave her evidence before us.

175 When that is combined with the physical distress observed by her daughter early on the morning of 14 January together with the complaint and medical evidence, we are left in no doubt that the fresh evidence upon which reliance is now placed is not likely to have caused the jury to have entertained a reasonable doubt about the appellant’s guilt. Equally, we do not accept that there is a significant possibility that the jury, acting reasonably in the light of the totality of the evidence to which we have referred, would have acquitted the appellant.

Conclusion

176 For the foregoing reasons in our opinion the appeal fails. The orders of the Court are, therefore, the following:

(a) Grant leave to appeal.

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Citations

GAR v R (No 1) [2010] NSWCCA 163

Most Recent Citation

GAR v R (No 2) [2010] NSWCCA 164

Cases Citing This Decision

14

GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179

GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314

GAR v Attorney General of New South Wales and Supreme Court of New South Wales [2017] NSWCA 47

Cases Cited

6

Statutory Material Cited

4

R v GAR [2003] NSWCCA 224

Rasic v R [2009] NSWCCA 202

R v Abou-Chabake [2004] NSWCCA 356

CITATION:	GAR v R (No 1) [2010] NSWCCA 163
HEARING DATE(S):	28/4/10, 29/4/10, 30/4/10
JUDGMENT DATE:	5 August 2010
JUDGMENT OF:	Tobias JA; Johnson J; Rothman J
DECISION:	1. Grant leave to appeal. 2. The appellant’s appeal against his conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal – conviction – evidence – fresh evidence – cogency – whether fresh evidence was credible, capable of belief or plausible – whether fresh evidence was so cogent that Court would be satisfied of appellant’s innocence or would entertain reasonable doubt as to guilt – whether fresh evidence likely to have caused jury to entertain reasonable doubt as to appellant’s guilt or given rise to significant possibility that jury would have acquitted
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 Evidence Act 1995
CASES CITED:	The Application of GAR, NSWSC, 12 February 2009 GAR v Regina [2003] NSWCCA 224 JJT v R [2006] NSWCCA 283; (2006) 67 NSWLR 152 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 R v Abou Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 Rasic v R [2009] NSWCCA 202
PARTIES:	GAR Regina
FILE NUMBER(S):	CCA 2002/13729
COUNSEL:	A: D Dalton SC; A Goodridge R:D Arnott SC; N Noman
SOLICITORS:	A: J N Legal R: S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 02/21/1183
LOWER COURT JUDICIAL OFFICER:	Naughton QC DCJ
LOWER COURT DATE OF DECISION:	31/10/2002