Healey v R

No judgment structure available for this case.

NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:     Healey v Regina [2006] NSWCCA 235
FILE NUMBER(S):
2005/2031 CCAP
HEARING DATE(S): 27 February 2006; 1 May 2006
DECISION DATE:      04/08/2006
PARTIES:
Christopher Thomas Healey v Regina
JUDGMENT OF:        McClellan CJ at CL Rothman J Smart AJ
LOWER COURT JURISDICTION:    District Court
LOWER COURT FILE NUMBER(S):             04/11/0146
LOWER COURT JUDICIAL OFFICER:        Williams DCJ
COUNSEL:
(A)    Mr R Pontello and S J Buchen
(C)    Dr P Power SC
SOLICITORS:
(A) C Brennan
(C)   S Kavanagh
CATCHWORDS:
Summing Up without summarising evidence still requires judge to put the accused's case. Error in extending Longman direction to possible forensic disadvantage suffered by Crown. Failure to warn jury about the fragility of youthful recollection. Jury not told that before they could use uncharged sexual misconduct they must be satisfied it had occurred. Defects in Summing Up and risk of miscarriage prevented application of Rule 4. Combination of defects, case being one of word against word and the delay precluded application of proviso.
LEGISLATION CITED:
Criminal Procedure Act 1986
DECISION:
See para 151
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL

2005/2031 CCAP
McCLELLAN CJ at CL
ROTHMAN J SMART AJ

Friday,4 August, 2006
Christopher Thomas HEALEY v REGINA
Judgment
1.McCLELLAN CJ at CL: I agree with Smart AJ.
2.ROTHMAN J: I agree with Smart AJ
3.SMART AJ: Christopher Thomas Healey appeals against his conviction on three counts of homosexual intercourse with a male aged between the ages of 10 and 18 years. By direction of the trial judge he was acquitted of a fourth count to the same effect. He was sentenced on 15 April 2005 on each count to a non-parole period of 15 months to commence on 15 April 2005 and a total term of imprisonment of 2 years 6 months. He was on bail prior to his trial and has been on bail since his conviction on 9 December 2004 by order of the trial judge. There is no application for leave to appeal against sentence.

4.Initially the sole ground of appeal was that the verdicts are unreasonable and cannot be supported having regard to the evidence. At the hearing leave was sought and granted permitting the appellant to lodge further submissions. The appellant has now sought leave to lodge a further eight grounds of appeal. None of the points the subject of the further grounds was taken at the trial. The appellant complains that the judge failed to put his case to the jury and made a number of errors in his directions to the jury.
5.This was a short trial. It started on 6 December 2004, the evidence commencing about 12.34pm with the complainant and concluding about 11.20am on 8 December 2004. Addresses and the summing-up occupied the remainder of the day with the jury formally retiring early on 9 December 2004 and returning with their verdicts at 12.50pm that day. The jury requested and obtained a copy of the transcript of the evidence. The principal witnesses were the complainant and the appellant. Each of the offences alleged involved fellatio and each was alleged to have occurred between 1 January 1987 and 30 July 1987.
6.M, the male the subject of the alleged homosexual assaults was born on 9 May 1973 and was thus aged 13-14 years at the time of the alleged assaults. He suffered from behavioural problems and learning difficulties. In the period from January to July 1987 he attended the Serfontein Clinic, moving with his mother to Magnetic Island on 7 August 1987. M’s parents were not on good terms and life at home at Haberfield was turbulent.
7.The appellant had been employed since 1983 as a neuro-nurse technician at the Serfontein Clinic which dealt with behavioural problems of children and conducted remedial studies. His employment tasks involved doing a computerised testing procedure called neurometrics. The appellant described the procedure thus:
“The patient was brought into the neuro metrics lab and was seated in a chair. The procedure was explained to them. They had a strap put round underneath their arms. They had a cap … put on their head. They had two electrodes like ear clips one on each ear. The neuro metrics cap had quite a few holes in it, and inside those holes were electrodes and attached to those electrodes were wires that eventually connected up to more wires that eventually connected up to the computer. I had a syringe … that had electro conductive gel in it and I went through each conductive area, each hole, scratched a small scratch in the patient’s scalp and squirted some gel inside the electrode.”

and
“The caps had two straps on the ear section which came down and clipped into the body strap which was under their arms.”

The appellant said that electrodes were never placed upon the chest or back and that the testing procedure required the removal of a jacket or perhaps a thick jumper, but nothing else.
8.The Crown contended that the appellant sexually assaulted M on three occasions in that room by performing fellatio upon him. M did not tell anyone until he broke down while watching a television programme about child sexual abuse and told his partner. Two years later he made a statement to the police, leading to the appellant's trial in 2004.
9.M gave evidence that he first attended the clinic with his mother in January 1987. Thereafter he attended weekly or fortnightly. On the first visit the appellant introduced himself and he and his mother went into the lab and there was just “general sort of chit chat.” As requested, he stripped off his top garment and described what followed thus: “I was hooked up to like round electrical devices all attached to my chest and I think to my back and to my head.” M was hooked up but no electrodes were probably attached to his chest or back. When the testing procedures were finished he was asked to take a seat in the waiting room and then assigned to a class for remedial studies in another room and they lasted about 30 to 40 minutes. He then had a further test with the appellant. He described the lab as a long rectangular room with no windows, with machines, one being very large and taking up the whole wall. He thought that there was a desk and a chair. The clinic was located on the tenth or eleventh floor of 170 Phillip Street, Sydney. After the further test M and his mother returned home.
First Count

10.M said that a week later he attended at the clinic alone. The appellant took him into the lab for tests and asked him to strip down to his underwear. M said he did so and that the appellant hooked him up and performed tests. M said, “While he was sort of testing me he was asking family questions about myself, my life, my school, asking have I had sex before, have I got a boyfriend, a girlfriend … do I go out, do I surf … making me feel he was not far off my own age …”. M answered these questions. M said the appellant asked, “Have you ever had your penis sucked and that he (M) replied “No”. The appellant continued, “Surely you have … you are quite an attractive young man with beautiful features” and "you are very tanned and brown."
11.M asserted that during the questions the appellant asked if he had smoked marijuana and that he (M) replied that he had done so on a few occasions.
12.M said that the appellant was touching him on the shoulders and hair, caressing him and that the appellant got down on his knees and sucked his (M’s) penis. M said that he was standing up, that the oral sex went for roughly five or ten minutes, that he put his pants back on and that the appellant remarked, “It’s not so bad, see, you’ve probably had it done before but you are not telling me.” According to M, after they finished they walked out of the lab together and there was neither a receptionist nor anyone else in the reception room area. The appellant gave him a film capsule full of cannabis and about $60-$80. M went home.
13.M said that he did not tell anyone what the appellant had done to him. He was in enough trouble himself. His parents were going through a very bad separation and he did not want to bring any more pressure into his home.
14.A third visit took place about a week or fortnight later. The appellant hooked him up and tested him. While the appellant engaged in general chit chat questions he did not ask M to take off his pants and there was no sexual activity at the clinic. The appellant offered N a lift home which he accepted. M said that he and the appellant went to a fairly large not very well lit car park which he thought seemed to be underneath the building in which the Serfontein Clinic was located. M said that they went there by lift. The appellant's car was a 1986 or 1987 dark Volvo, possibly green. The appellant first drove M to the appellant's flat on a headland between Bondi and Clovelly. They went into his flat, had a drink and a smoke of cannabis. The appellant wanted to take a photograph of M, but M would not allow this. M asked to go home as it was getting late (8.30pm to 9.00pm) and the appellant drove him home. There was no sexual activity between them that evening. However, the alleged trip to the appellant's home was an unusual turn of events.
15.M said that on his fourth visit, about one or two weeks later, he again went into the lab, the appellant put M at his ease. As he was hooked up to the machine M was wearing only his underpants. The appellant made his usual remarks to M about being "a gorgeous boy", and "you must have so many girlfriends" and "the best tan I've ever seen." The appellant got down on his knees and sucked his penis, sliding M's underpants off. On M leaving the appellant gave him about $50 and some cannabis. M did not tell anybody what had happened.
16.M said that on his fifth visit, possibly a week later, there was no sexual activity at the clinic. As he was leaving the appellant offered him a lift home and M accepted. They went to the appellant's car down through [an undercover car park or basement] which "appeared to be" the same car park as before. They sat in the car talking for about five or ten minutes and the appellant "actually performed oral sex on me in the car." M said that he was given some money and cannabis by the appellant who drove M to the appellant's home where they smoked cannabis and had a drink. The appellant showed a homosexual movie during which he evinced enthusiasm. M declined to participate in any sexual activity and none occurred. He did not tell anyone what had taken place as he had no one to confide in or talk to at the time and he did not want to be in more trouble. This act was not charged.
17.M said that on his next visit to the clinic (his sixth), and after his remedial lesson, he again went into the testing room and was made to strip down to his underwear. The appellant again sucked M's penis and gave M some money and some cannabis. This act of fellatio was not charged.
18.M said that his last visit then followed about the end of July 1987. After he had his lesson he had to wait for the appellant. He tested M, making M strip down to his underwear and then sucked M's penis. The appellant reassured M over the problems in his family and that it was not M's fault. M said he was too upset to tell anybody and he did not want to upset his mother and his stepfather. Both were seeing a psychiatrist at the time.
19.According to M the general order of events on his second and subsequent visits was first to go to the lab for testing, secondly to have a remedial lesson lasting about 45 minutes and thirdly to return to the lab for further testing.
20.Mrs Barbara Serfontein was employed at the clinic from 1982 to 1985. From 1985 to 1993 she did not work in the clinic but arranged social functions for it. On the death of her husband, Dr Serfontein, the clinic's founder, in 1993, she took over as the proprietor of the clinic and continued in that role until June 2003 when she sold it. She said that the clinic basically assessed children with learning behavioural and social problems. In 1987 the clinic had two doctors (her husband and Dr Sandra Johnson), some psychologists, a receptionist and trained nurses. There was also a remedial teacher.
21.Mrs Serfontein had located records relating to M. These showed that M was tested on 20 January 1987 and a printout of that neurometric testing was admitted into evidence. There were no other test results in the file. Testing involves placing a cap on the patient's head. That was the only part of the body upon which electrodes would be placed. There was also a strap around the chest. The records showed that M also physically attended at the clinic on 24 February 1987 and 4 March 1987. Reference was made to two reports of Dr Johnson of 3 and 26 February 1987 respectively, recommending remedial assistance for M's language subjects and advising on medication. The latter letter stated "he will also be attending remedial assistance with the teacher on our team."
22.There was no dispute that M received remedial assistance at the clinic.
23.Mrs Serfontein believed that the records were complete save that the remedial teacher would have kept records of the remedial lessons attended. She had been unable to locate such records.
24.Mrs Serfontein said that a patient would have an initial neurological test to get a base line reading followed by a test six months later after starting treatment (whatever form it took). A third test would be done six months after that, after all treatments had been withdrawn. She said that tests were never done more frequently than every six months. She said that patients were never tested neurologically with the neurometrics device twice a week. The protocol remained in force from 1982 onwards and was never changed. If there had been pretend testing there would be no record.
25.Mrs D A Murray worked at the clinic until April 1987 as a remedial teacher. She was aware of the appellant's old dark green Volvo sedan, which he told her he parked in the Domain car park when he drove into the city. Generally all of the staff had left the clinic by 5pm. However at times she noticed the appellant there cleaning up after his last patient after 5pm. She noticed that a couple of times in 1987. Generally speaking in 1987 she was the last person to leave the rooms. Mrs Murray had no recollection of M. She did not recall all of her students. There was no parking at 170 Phillip Street.
26.M's de facto wife gave evidence that in about 2000 she was at home with him one evening watching a TV show about priests molesting children. He broke down and said that a similar thing had happened to him when he was going to the Serfontein clinic. M related his first visit with his mother and his second visit was by himself. He remarked on the appellant being very friendly to him. M told her that on his third visit the appellant was very friendly again put electrodes on his body, started caressing his shoulder and asked him to take off his underpants and then performed oral sex. The appellant gave him money and cannabis after asking him if he smoked pot.
27.M told her that on the next visit the appellant offered him a lift home and then went via the appellant's house and gave him a drink and cannabis.
28.M told her that the next week the same process happened at the clinic and again the appellant gave M a lift, taking M first to his home. The appellant poured M a drink and put a sex movie with men on the television and said to M that this was normal, they were having fun and there was nothing wrong. M told her that the appellant said that he would help to ease M's stresses and performed oral sex on him.
29.This varies notably from the version which M gave. He did not give evidence of sexual activity on this occasion in his evidence.
30.M's partner said that M told her that on his last visit to the clinic before he left for Magnetic Island, the appellant again put electrodes on him and performed oral sex on him when he had all the things on his head and chest area.
31.M also told her that he arrived at the clinic about 4.30pm and that when he and the appellant left around 6pm they were the last ones there, because it was the last appointment. M described the appellant's car to her as "an old squarish type purpley maroon Volvo" and his unit was "a small sort of kitchenette unit" which wasn’t very big; it was made of old sort of bricks and steps up to the front door right at the steps. It was near the beach". He "could hear the ocean and see rocks or something."
32.The appellant was the tenant of 1/336 Clovelly Road, Clovelly from 25 January 1984 to May 1987. It was a ground floor unit in a group of three. It did not have an ocean view and was not as close to the ocean as 8/1 Thorpe Street, Clovelly, to which the appellant moved in about May 1987. It had a very limited ocean view and was close to the ocean. The sea could be heard from the front door. The description given by M of the unit to which he was taken corresponds with this unit.
33.The appellant gave evidence of his appearance in 1987. He did this by reference to a photo taken at the Serfontein Christmas party in 1986. He was dressed conservatively and in a manner which was neat and unexceptional. He had brown hair which he brushed back. He was 5'11" tall and well built. While he had a car he did not drive it very often into the city to go to work. When he did on occasions he usually parked in the Domain car park. Neither of the two unit blocks in which he lived had car parks underneath the units.
34.Patients were tested not more frequently than every six months. The hours of operation of the clinic were from 8.30am to 5pm or 6pm, depending on when Mrs Murray or he finished their duties. The doctors usually went home at 5pm. There was a receptionist who was ordinarily present until 4.30pm. So also were the majority of the staff, patients and their parents.
35.The appellant denied ever having purported to test any patient but not having subjected them to a real test. He denied ever setting up any fake test for any patient. He also denied ever conducting any neurometric test on any patient and not recording, or not having recorded, the results of the test.
36.The appellant remembered that M used to pop in and visit the appellant when he came for his remedial classes. The appellant said that he was processing the data from the afternoon's tests, which involved operating the computer, making a copy of the original data disk, setting up a programme for it to crunch the data, wait for it to do all that, then make the printout. The appellant said that he and M spoke generally but mostly about skateboarding or surfing or music. There was no conversation at the clinic of a personal or sexual nature. The appellant said that M, as with other children, used to play the game Donkey Kong when he came into the lab. The appellant denied that he ever provided M with any drugs. The appellant said that M mentioned to him that he had been having cannabis. The appellant advised him against taking that drug.
37.The appellant said that in the afternoon, while processing data, he went down to the noodle bar in Martin Plaza and grabbed some Asian noodles or some satay sticks. M came down in the lift with him. M rode around on his skateboard and went back to his class. M was particularly interested in the Eurythmics (a band). When the appellant told M that he (the appellant) had a Eurythmics tape that he had recently borrowed from a friend M asked if he could have a loan of it. The appellant said that he agreed and would try and remember to bring the tape in to the clinic but said he forgot to do so. The appellant said that on one occasion in June or July 1987 he ran into M in the mall at Bondi Junction. M was riding his skateboard in the mall. M asked the appellant whether or not he had the Eurythmics tape in his car. The appellant said "No" and that it was at his place. M asked him what he was doing and the appellant said he was going to Leichhardt (to play pool). M said "How about we go pick it up and then you could give me a lift to Haberfield." The appellant agreed. They drove down to his place in Thorpe Street, took hold of the cassette, did not stay long and left. The appellant drove M back to his home in Haberfield and went from there to Leichhardt to play pool. The appellant said that they neither consumed cannabis nor alcohol at his flat and that he did not offer either to M. They did not watch any pornographic videos. At that time he had neither a video player nor a video recorder.

38.The appellant denied that he ever took M from the clinic to his unit or that he ever offered M a lift home from the clinic. The appellant denied that he assaulted M. He insisted that he never massaged M and that he did not touch M other than to administer the neuro test. The appellant was adamant that he never asked M to take his clothing off down to his underwear. The appellant did not think he had ever commented on M's appearance and denied that he had complimented M on his skin tone. The appellant denied ever having any sexual contact with M in the appellant's car.
39.The appellant experienced some difficulty in cross-examination as he believed the cross-examiner was trying to trap him and make points which did not fairly represent the true situation. It must be remembered that he was being asked to recall what had happened over 17 years previously.
40.The appellant said that he met M in Bondi Junction between 1pm and 3pm and that it must have been on a Tuesday or Wednesday. When asked why he was not at work, he replied that it was June or July holidays. He believed that he must have had some time off but he could not be exactly sure what time off he had, or that he had time off. He said that sometimes the clinic was very busy during school holidays. There was no evidence whether the school holidays were in June/July during 1987 or whether that was under the old regime of school holidays in May and late August/September. The change in school holidays times reflected the change from three to four terms per year. The appellant said that he also had days off.
41.The appellant said that he had no memory of asking M why he was not at school. When he dropped M off at his home he did not go into the house and tell his mother that M was at Bondi Junction in the middle of a school day. This assumes that it was the middle of a school day. The appellant did not think he mentioned it to M's treating doctor. He could not recollect mentioning this to his teacher.
42.The prosecutor, when it had not been established that M was truanting on the day in question or why he was at Bondi Junction, put to the appellant:
"Q … [M] was a little boy with behavioural problems … He was being treated at the clinic where you worked. You were aware through your friendship with him that he was having problems with truanting at school. You didn't tell his mother. You didn't tell … any of your colleagues, other health professionals who were treating him. Is that the case?
A.He was a pretty independent sort of person.

Q.So you felt that none of these adults needed to know about this wayward behaviour by this patient at the clinic. Is that right?
A.As I said, I wasn't aware that it was out of the ordinary or wayward, but I don't remember the reason.

Q.What do you mean you didn't think it was out of the ordinary or wayward? You'd already had conversations with him about jigging school, when you told him it was a bad idea.

HIS HONOUR: Well wait a minute. It hasn't been established that he was truanting on the day in question. Be all sorts of explanations for it.

CROWN PROSECUTOR: None of which have emerged."

43.The judge was correct in pointing out that it had not been established that M was truanting and that there may be explanations for his presence at Bondi Junction.
44.It was not for the appellant to have to rebut that M was truanting, especially after 17 years and especially if he was still at the special school (Rivendell),
45.The appellant could not recall whether he administered M's first test in 1987. There was another technician who administered tests and the test materials did not show who had administered the test. The appellant agreed that if he did not administer the first test his friendship with M arose out of incidental contact with him in the reception area.
46.The appellant agreed that M accompanied him when he went down to Martin Place to the Noodle Hut and that they talked about music, sport, skating and surfing. The appellant was also told of the impending move to Magnetic Island. None of these suggest anything untoward. They are standard topics of conversation. The appellant said that he was not aware that M and his mother were moving to Magnetic Island because of her failing relationship.
47.The appellant was cross-examined about his professional ethics and his professional duties. He agreed that it was inappropriate for a nurse to have a close personal relationship with a patient he is treating. The appellant did not agree that a friendship was an abuse of trust. The appellant said that at the time he did not think it was inappropriate to take M back to his home. On reflection he did not think it was inappropriate but "a bit of a miscalculation in judgment". He did not see it as anything sinister. He did not concede that it was quite wrong, but he agreed it was, perhaps, not perfectly all right. He denied that he had not told anyone about it because he knew his colleagues would disapprove.
48.This cross-examination was unfortunate because it suggested strongly that the appellant had seriously failed in the discharge of his professional duties. The issue was whether any of the offences alleged had been committed. The section of the cross-examination just mentioned was unfairly prejudicial.
49.The Crown Prosecutor's strong attack on the credibility of the appellant in cross-examination continued in her address. She described him as evasive and the Bondi Junction meeting and subsequent visit to his unit as a story made up to explain how M could describe the appellant's car and the features of the location, means of access (the narrow external stairs to the door), the inside of the flat and the outlook from it. She also alleged that he had suggested that there were more people around the clinic late in the evening than there were. He had endeavoured, unsuccessfully, to minimise, if not eliminate, the times when he was alone with M and the opportunities he had.
50.I propose to defer considering the initial ground of appeal (unreasonable verdicts not supported by the evidence) until I have dealt with the grounds of appeal which it is now sought to raise.
The Summing-Up

51.In commencing his summing-up the judge told the jury that with the exception of one minor matter he was going to confine his remarks to the directions of law that they were going to have to follow in coming to a result. He noted the trial had not been a long one and commended the arguments of counsel to them.
52.The judge explained the matters which the Crown had to prove before the jury could find the appellant guilty and that it had to do so beyond reasonable doubt and added:

"and merely because an accused person gives evidence in a trial, as you have heard in this case, that does not mean to say that he has to prove anything or disprove anything. You have to look at this case in one sense almost as if the accused was not here. You have to determine whether the evidence you have before you is sufficient to satisfy you beyond reasonable doubt as to whether or not the Crown has proved each of these matters."

53.The judge told the jury that if they had a doubt as to any of the ingredients they must find the accused not guilty of that particular matter and that how they found and determined the facts was a matter for them. He reminded them that the two crucial witnesses were the appellant and the complainant and that no one else saw anything. The judge reminded the jury that where sexual impropriety occurs it generally happens in private. He canvassed the assessment of witnesses and evidence and advised the jury that they could partially accept a witness. He told them that they had to make an assessment of the witnesses and directed the jury that the reliability and credibility of witnesses were matters for them to determine.
54.The judge gave the jury other directions of law as to the caution which they should exercise and the approach which they should adopt. So far as they are challenged reference will be made to them later. The judge told the jury:
"There is no independent evidence that is before you other than the evidence of the complainant, not that there has to be … Obviously, when you have a situation where one person says one thing, and that is denied by another, as a matter of commonsense, but I am directing you also as a matter of law, you would have to scrutinise very carefully, the evidence of the complainant before you could be satisfied beyond reasonable doubt that you would accept that evidence and rely upon it."

I do not understand what the judge meant to convey when he described the evidence of the complainant as independent.
55.The judge told the jury:
"It is not disputed, really, that if anything did occur, or the only opportunity or (sic) anything to occur in the clinic, was confined to the area of the clinic."

56. The judge did refer briefly to the evidence as to the car park and its non-existence. The judge told the jury not to attach too much importance to peripheral matters.

57. The judge further said:

"I just remind you of the warning that I gave you at the very beginning, that it is dangerous to convict an accused person just on a complainant's evidence alone – not just [M], but any complainant in any case – on that person's evidence alone unless you can say that we are satisfied beyond reasonable doubt that that complainant is reliable, accurate, consistent and telling the truth."

58.These passages demonstrate that the judge concentrated the jury's attention on what took place in the clinic and on the issue whether they were satisfied beyond reasonable doubt that M's evidence as to what happened there was accurate, consistent and reliable and that M was telling the truth.
59.Appeal Ground 2 reads:
"The … judge failed to put the defence case to the jury."

The judge did not tell the jury that the appellant's defence was that he denied the sexual assaults alleged, denied any fake testing, denied the testing alleged and that such testing was contrary to the clinic's practices. Mention was not made of the defendant's assertions that while on occasions he was the only staff member present in the clinic with M there were many other occasions when other staff members were present. The appellant also denied giving M a lift home on two occasions and that he had detoured via his flat and with M consumed alcohol and cannabis. The judge did not refer to the appellant's defence of the Bondi Junction meeting and subsequent visit to his unit to collect the Eurythmics tape. I have mentioned but a few of the matters on which the appellant relied. There were subsidiary points as to the leaving open the door to the testing room and that, while it was shut on occasions, it was not locked and others could have entered the testing room at any stage.
60.From the evidence given by the appellant his denials of the sexual assaults alleged were plain, as were the further matters and facts on which he wished to rely. The appellant was also relying on the erroneous evidence given by M as to being in a car park under the building in which the clinic was situated, namely, the Law Society Building at 170 Phillip Street, Sydney, and the differences between M's evidence and what he told his partner and the police.
61.While the jury was told that they had to assess the witnesses, they were not directed as to the appellant's defence nor told to take into account the evidence of the appellant in determining whether notwithstanding that, they were satisfied beyond reasonable doubt of the accuracy, consistency, reliability and truthfulness of M's evidence.
62.There is a substantial body of authority that a summing-up must put the defence case fairly and adequately to the jury. The jury must be given an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence. See Stokes v The Queen (1960) 105 CLR 279 at 284, R v Sukkar [2005] NSWCCA 54 at [93] and the cases there cited. Putting a defence case fairly and adequately does not require the summing-up to trawl through the evidence or an exhaustive reiteration or analysis of the entirety of the evidence.
63.The Crown relied on s 161 of the Criminal Procedure Act 1986, which provides that a judge need not summarise the evidence given in the trial if of the opinion that a summary is not necessary. There is no challenge based on not summarising the evidence. The challenge is based on a lack of explanation of the defence case and the matters in support.
64.This was a short trial and the summing-up followed immediately after the addresses. The addresses took place on the same day as the appellant's cross-examination was completed. However, there were issues of some difficulty as the alleged sexual assaults had taken place some 17 years previously, the first complaint was made about 13 years after the occurrence of the events and no complaint was made to the police for a further two years. Questions of credibility loomed large. What is required in a summing-up depends on all the circumstances. Some of the cross-examination was unfairly prejudicial in that it was not directed to the commission of the offence but to the appellant's shortcomings as a nurse. Care needed to be taken that the jury's attention was directed to the true issue of whether the offences alleged were committed and not to side issues.
65.I am of the opinion that the summing-up in the present case should have put the defence case and the matters in support of it.
66.Before starting his summing-up the judge stated that he was not going to go over the evidence. That is different from not putting the defence case and the matters in support.
67.The appellant needs leave to raise this ground. Counsel did not ask the judge to discharge the jury or withdraw his summing-up and sum-up again, putting the defence case or add to his summing-up the defence case. Despite the lack of protest, it remains that the defence case and the major matters in support were not put to the jury. They should have been put to give the summing-up the necessary balance. These are fundamental requirements and, in my opinion, not doing so amounts to a miscarriage of justice. I would grant the appellant leave to raise this ground and uphold it.
68.Appeal Ground 3 reads:
"The … judge erred by extending a Longman direction to possible forensic disadvantage suffered by the Crown."

69.I have earlier mentioned the extent of the delay. In the course of giving a Longman warning that the long delay had made it difficult, if not impossible, for the accused to expose or contest the surrounding circumstances of each offence or to raise an alibi, and that by not nominating a specific date, it makes it extraordinarily difficult for an accused person to meet the allegation that that has been made, this was said:
"See the passage of time not only renders memory more difficult, but as you have heard in this very case, supportive witnesses for both sides and evidence can disappear, witnesses can die, witnesses go overseas."

70. The warning continued:

"It is because of those issues that the complainant's evidence cannot now be properly tested and it would be dangerous to find the offences proved just on the complainant's evidence alone."

71. The Crown Prosecutor had told the jury in a closing submission (TT8.12.04, 10.20):

"So problematic for both the prosecution and the defence is the fact that these things did take place quite some time ago and his Honour will address you on the significant (sic) of that delay when his Honour sums up the case."

72.The Crown accepted that in light of Mason P's observations in R v Folli [2001] NSWCCA 531 that when the judge gave the Longman warning it was inappropriate to have made reference to the possible difficulties created for the Crown by the delay. "Inappropriate" is a gentle word. In R v Folli (supra), Mason P (Sperling and McClellan JJ concurring) said:
“[22] … There is a further difficulty with that passage in that it suggests that the Crown case was also entitled to be viewed sympathetically having regard to the problems of delay. The purpose and form of a Longman warning are directed at protecting the accused from being convicted otherwise than in circumstances of heightened jury scrutiny and caution."

73.The Crown submitted that the judge's direction must be read in the context of a warning in which the primary focus was directing the jury's attention to the forensic problems created for the appellant by the delay.
74.The Crown further submitted that this Court should adopt the same approach as was adopted by Simpson J in R v MDB [2002] NSWCCA 354, namely:
"40. On the authority of Folli it was imprudent for the judge in the present case to suggest to the jury, as he did in the last sentence of the first paragraph extracted above, that the delay, such as it was, may have affected the prosecution witnesses. It may have been taken as suggesting that the Crown, like the appellant, laboured under a disadvantage created by the delay and that, absent that delay, its case might have been stronger. Equally, however, it may have cast doubt upon the complainant’s reliability. I am of the view that, to the extent that the single sentence constituted error, it was an error of no effect."

75.This case differs from MDB. There was evidence that Dr Serfontein was dead. Snr Cons Capon gave evidence that Ms Tracey Davenport who worked at the Serfontein Clinic could recollect working with the appellant but could not shed any light on M's matter and that he was unable to contact Ms Marina Vanderende, the remedial teacher. The evidence does not disclose the position as to Dr Sandy Johnson. There is little or no evidence as to the supervision of the appellant by the two doctors. The evidence does not disclose whether any supportive witnesses were not available to the applellant. From the evidence led by the Crown, the prosecutor's address and the judge's comment the jury may have thought that the Crown had lost the benefit of supportive evidence. The words used were fairly firm "as you have heard in this very case, supportive witnesses for both sides can disappear; witnesses can die, witnesses go overseas."
76.The appellant did not know what evidence he had lost.
77.In the present case, it cannot be said that the error was of no effect.
78.Leave is required to enable the appellant to rely on Ground 3. The effect of introducing the notion of disadvantage to the Crown through the delay and consequent loss of supportive evidence on its part was the risk of thereby enhancing the Crown case impermissibly and watering down the effect of the Longman warning. The appellant did not receive the benefit of a warning having the effect to which he was entitled and the Crown received an advantage to which it was not entitled. I would grant the appellant leave to rely on this ground and uphold it.
79.The Crown relied on the proviso but in a case where it was essentially word against word and there was substantial delay on the part of M in making his complaint and some errors in some of his evidence, it is not a case in which the proviso should be applied.
80.Appeal Ground 4 reads
:
"The Longman warning was inadequate because it failed to specifically warn the jury about 'the fragility of youthful recollection'."

81.The appellant relied on the observations of Deane J and McHugh J in Longman v The Queen (1989) 168 CLR 79 at 101 and 107-8 respectively. Deane J was concerned with the possibility of child fantasy about sexual matters and the lapse of a long passage of time hardening fantasy or semi-fantasy into the absolute conviction of reality. McHugh J said:

"Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine."

82.At the time of the alleged offences the complainant was either 13 or 14. The judge warned the jury generally about distortions of memory, mentioning that which occurs over long periods of time. The direction did not specifically warn the jury about problems posed by the "fragility of youthful recollection": Crampton v The Queen (2000) 206 CLR 161 [at 45].
83.In R v JBV [2002] NSWCCA 212 at [14] Heydon JA said:
"The trial judge referred to the impact on recollection of the passing of time, but he did not refer specifically to the fact that 'the recollection of events occurring in childhood '… is frequently erroneous and liable to distortion by reason of various factors' to use the words of McHugh J in Longman v The Queen … For that shortly stated reason the summing up was defective."

84.In JBV, as to r 4 of the Court of Criminal Appeal Rules, Heydon JA stated that leave must be granted in view of the importance ascribed by the High Court to compliance with Longman v The Queen, that there was no tactical reason why the warning was not sought and in view of the fact that it is reasonably possible that the warning which was not given could have caused the jury to experience reasonable doubt.
85.The Crown contended that it was significant that M was aged 13-14 at the time of the alleged offences. Boys of that age are usually much occupied by sexual thoughts and sexual matters as their bodies develop. They are also inclined to fantasise and allow their imaginations free rein and their recollections are liable to distortion.
86.The Crown relied on the appellant not disputing that he met M at the clinic, associated with him when he (the appellant) went down to the Noodle Hut in Martin Place and the appellant took M to his home briefly on one occasion to get the Eurythmics tape, which M wanted (this was at M's suggestion). The appellant conceded that he might have administered a neurological test on M. The Crown pointed out that what was in dispute was any sexual impropriety at the clinic during M's treatment and the detail of what occurred in private. The Crown contended that there was no need for any further direction.
87.What is usually in dispute in this class of case is whether there has been any sexual impropriety and what occurred in private. A long period of time elapsed. M was a lad with a troubled history and he was of an age where sexual matters were likely to be of great interest as he developed. The risk of fantasy and distortion could not be ignored.
88.For the reasons given by Heydon JA in JBV leave to rely on this ground should be given. The ground should be upheld.
89.For the reasons given earlier this case is not one for the application of the proviso.
90.Appeal Ground 5 reads
:
"The … judge erred by failing to direct the jury that they needed to be satisfied that uncharged criminal conduct occurred before they could use evidence of the conduct against the appellant."

91.The Crown led two instances of uncharged sexual misconduct by the appellant on M. The first was alleged to have occurred in the same undercover car park as before on the occasion of M's second visit to the appellant's unit. M alleged that they sat in the car talking for about 5 or 10 minutes and the appellant performed oral sex on him in the car.
92.The second uncharged act of fellatio allegedly occurred about a week later. He had his test and a remedial lesson. He returned to the appellant who did "another CT scan". M said he was made to strip down to his underwear and the appellant performed oral sex.
93.The judge told the jury that evidence had been given of offences for which there was no charge on the indictment. The judge explained that evidence had been given in respect of these other acts simply to put the whole of the relationship between the appellant and M into a framework. The judge gave rhe jury these directions:
"Now, it would be wrong for you, and you must not, for example, come to a conclusion that one of the uncharged acts did occur, and argue from that that therefore all the other acts must have occurred. You are not permitted to argue to yourselves in that way. That evidence is solely there to explain the circumstances in which [M] and Mr Healey were in that situation. You also cannot use that evidence as establishing some likelihood on the part of the accused to commit the offences for which he has been charged, because you have to be satisfied beyond reasonable doubt that the charged offences have been committed. You are not there determining a likelihood of them being committed. You have to be satisfied beyond reasonable doubt that they were committed.

So that you cannot look at those other matters to establish, or as helping you to establish beyond reasonable doubt that the charged matters occurred. That is, again, a direction of law that I am to give in cases where that sort of situation occurs, because the defence would argue to you that when you look at the matters that were charged in these other matters that they create a doubt that any offences were committed rather than the opposite. Again, you have heard that argument and that is entirely a matter for you."

94.The appellant complained that the judge omitted to direct the jury that they could only use evidence of criminal acts against the appellant if they were first satisfied that the acts occurred. Reliance was placed on this passage from R v Vonarx, unreported, VSCA 15 November 1995 at 12-13 per Winneke P, Callaway JA and Southwell AJA:
"[W]here evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting."

95.The initial words of the quoted direction assume that the jury has come to the conclusion that one of the uncharged acts did occur. Perhaps they also assume that the jury will decide whether the uncharged acts did occur. However, this is very indirect. The jury was not told with reasonable clarity that they could only use the uncharged acts by way of relationship evidence if they were satisfied that they had occurred.
96.I am not sure what was meant by the latter part of the direction, namely
:
"Because the defence would argue to you that when you look at the matters that were charged in these other matters that they create a doubt that any offences were committed rather than the opposite. Again you have heard that argument and that is entirely a matter for you."

97.The appellant was relying on the errors made by M as to the car park and it being under 170 Phillip Street to cast serious doubt upon M's evidence as to the alleged incident in the car and on the whole of his evidence. The clause "rather than the opposite" suggests the use of the evidence as substantiating the commission of the offences. That is going further than using the evidence as relationship evidence. Such an approach is confirmed by the following sentence, that that argument is entirely a matter for the jury.
98.While the language used may have been less than ideal, the jury probably proceeded on the basis that the appellant was relying on M's evidence as to intercourse in a car in a car park which did not exist as casting serious doubt on M's evidence as to that incident and the whole of his evidence.
99.The Crown contended that the directions given by the judge as to the uses the jury may and may not make of the uncharged sexual acts were correct. That was not the appellant's complaint. His complaint was that the judge did not tell the jury that before they could use the evidence of any of the uncharged acts as relationship evidence, they had to be satisfied that such acts had occurred. As earlier mentioned, the jury was not told this with reasonable clarity.
100.The Crown contended that leave should not be granted to raise this point. It could have easily been accommodated if it had been raised at the end of the summing-up. On the other hand, the jury has been told as to the use they could make of evidence of uncharged acts of sexual assaults without being told that they have to be satisfied that they occurred. There is a real basis for doubting whether they did occur. There has been a miscarriage of justice. I would grant the appellant leave to rely on that ground and uphold it.
101.Appeal Ground 6 reads:
"The … judge erred by (a) suggesting to the jury that their determination would involve accepting 'one version as opposed to the other'; and (b) failing to direct the jury that they did not have to believe that the appellant was telling the truth before he was entitled to be acquitted."

102.The judge, after directing the jury that where you have a situation where one person says one thing and that is denied by another, both as a matter of common sense and of law, you would have to scrutinise very carefully the evidence of the complainant before you could be satisfied beyond reasonable doubt that you would accept that evidence and rely upon it (the Murray direction) continued (SU9.3-9.6):
"The reliability and the credibility of a witness are matters for you to determine, not for me to determine, and as I said at the very beginning of my summing-up to you, these are directions that I am required to give you in cases like this. They are not to be considered by you as indicating any view that I have about the complainant. (But, obviously, it is a matter of commonsense, if you were dealing with something outside the court room where someone said one thing and another person said something completely different, that you'd have to exercise great caution in determining to accept one version as opposed to the other.) The Crown has to prove the case to you beyond reasonable doubt, remember that at all times."

103.The appellant submitted that the italicised passage was intended to guide the jury in their resolution of the conflicting versions of M and the appellant. Reliance was placed on the judgment of Wood CJ at CL in R v PAH unrep. NSWCCA, 18 December 1998:
"It is important to ensure that the jury understands that it is not a question of making a choice between the evidence of the principal witness called by the Crown and that of the accused.

It will generally be advisable, particularly when the accused has given evidence, to advise the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt, notwithstanding the denial by the accused, and that they do not have to believe that he was telling the truth before he is entitled to be acquitted,"

104.The appellant submitted that the italicised passage suggested to the jury that their task was essentially one of deciding which of the two competing versions they accepted and that this suggested error and the attendant risk of miscarriage were compounded by the judge not telling the jury that it was not necessary that they believe that the appellant was telling the truth before he was entitled to be acquitted. It was further submitted that the reference in the italicised passage to "accepting one version as opposed to the other" made it necessary to give the direction to ensure that the jury did not reason in an impermissible way towards guilt.
105.I am unable to accept these arguments. Immediately after the italicised passage the judge reminded the jury that the Crown had to prove the case beyond reasonable doubt. In the course of the Murray direction the jury was reminded of the need for them to be satisfied beyond reasonable doubt of the truth of the complainant's evidence. The italicised sentence must be read in the context of the whole summing-up. At an early point in the summing-up (p5) the judge stressed that the evidence must be sufficient to satisfy the jury beyond reasonable doubt of each of the elements of each of the offences. The judge reminded the jury that an accused person does not have any responsibility or obligation to prove or disprove anything (P5). The jury were warned that it would be dangerous to convict on M's evidence alone. On two occasions the judge told the jury that merely because the accused gave evidence that did not mean that he had to prove or disprove anything.
106.Sometime later in the summing-up the judge instructed the jury that before they could accept M's evidence as establishing beyond reasonable doubt that these offences have been committed they would have to be satisfied beyond reasonable doubt that M was reliable, accurate, consistent and telling the truth. That involved rejecting the evidence of the appellant that the offences did not occur.
107.When the summing-up is taken as a whole the jury would have understood that they had to be satisfied beyond reasonable doubt of the accuracy, reliability, consistency and truthfulness of M's evidence before they could convict.
108.I would refuse the appellant leave to rely on Ground 6.

109. Appeal Ground 7 reads:

"The … judge erred by failing to direct the jury that rejection of the complainant's motive to lie does not mean that the complainant is necessarily telling the truth."

110.M admitted in cross-examination that both he and his de facto wife had virtually no assets. They had a car each, that was all. M had been unemployed for over 12 years and on a disability support pension for 2½ years. He was granted that pension because of the child abuse he had suffered.
111.M agreed that he told the police that he thought that the appellant was a doctor.
112.M was cross-examined about evidence he gave in the committal proceedings as to making enquiries about applying for compensation for the psychological trauma or problems suffered as a result of the appellant's conduct. Initially he said that he had made no enquiries. When pressed he said he had only made enquiries in the last two years. (That may have been a slip for two days). On being further pressed he said that he had made enquiries about getting compensation two days ago. Then M added, "I had to come down for my committal hearing and while I was at my committal hearing I had to fill my VCT claim out, I was made to by the solicitor and while I was there he said to me about this case. I did not mention it to him, he asked me, he wanted to see the whole lot." M said it was when he came to Sydney (from Queensland). He said that he did not enquire about compensation but was told about it. He agreed that he did say in the Local Court that he had made enquiries about getting compensation. M explained that the enquiry was virtually a recommendation and that he didn't ask anyone. It was M's contention that he was told by a solicitor about the legitimacy of compensation and that he was not looking to make money out of what had happened to him. He agreed that the incidents were very traumatic and that it was very hard to forget about them. My reading of the cross-examination is that M was struggling to handle it
113.In her closing address the Crown Prosecutor said:
"There is also the suggestion that's been made and will be made to you again, and in my submission it's a misleading suggestion that [M] is making this whole thing up for the purpose of financial gain. You will remember that he was cross-examined about victim compensation payments and that it was put to him that he was doing all of this so that he could claim victim's compensation. [M's] evidence is that he was first made aware of victim's compensation for victims of sexual assault long after he had given his statement to the police, and again long after he had told his wife.

He said that it was only when he came to Sydney for the committal hearing in this trial that he was provided with information of victim's compensation by the DPP and another solicitor gave him some advice about that and this is, in my submission, a weak effort by the defence, by the accused, to explain away these allegations." (TT, 8.12.04, 12.8 ff)

114.Counsel for the appellant closed his address on this aspect of the evidence. After reading some of the evidence counsel continued:

"Now members of the jury my submission to you is that [the complainant] must have known when he gave his evidence in the Local Court that he'd made, himself, inquiries about some form of financial compensation because it was only two days before he had given the evidence. It's impossible that he couldn't have remembered that or had forgotten it. The only conclusion that you could come to members of the jury about that issue, about what he said about making inquiries about compensation, is that he lied under oath. Forget about whether his motives for coming forward with his allegations is indeed to claim any form of financial compensation. He lied about it under oath in the Local Court.

He agreed in this trial that he's got no money, investment, or assets, nor does his wife, and that he thought the accused was a doctor, which is wrong. So members of the jury that is all I wish to say to you about the defence case …" (TT 8.12.04, 27.39 ff)

115.The appellant submitted that in view of the cross-examination of the complainant and the competing arguments put to the jury, the issue of he complainant's motive to lie assumed prominence in the trial. The Crown Prosecutor referred to the misleading suggestion that M was "making this whole thing up for the purpose of financial gain" and described this suggestion as "a weak effort by the accused to explain away the allegations." On the other hand the appellant contended that M had lied under oath in his evidence in the Local Court when he denied he had made enquiries about compensation.
116.It was not put to the jury in his final address by counsel for the appellant that M had made the complaint and caused the proceedings to be brought, and lied in support of them for the purpose of financial gain. What was put was that M lied under oath in the Local Court about making enquiries about compensation. That falls far short of saying that the proceedings had been brought to obtain compensation and that he had lied in support of such a claim. I put to one side that the jury may well have accepted M's explanation. The jury may also have thought that M had not lied to them.
117.The appellant submitted that the judge erred in not directing the jury that, if they rejected the defence suggestion that M had a motive to lie, that would not mean that M was necessarily telling the truth: R v Ulhrig (unrep, NSWCCA 24 October 1996). The appellant contended that the failure to so direct created a tangible possibility the jury might consider that there had been a reversal of the onus of proof in relation to the existence of a motive to lie and that the way in which this issue was left to the jury caused the trial to miscarry.
118.Having regard to the terms of the summing-up and its emphasis upon the Crown having to prove its case beyond reasonable doubt and the various warnings which were given there was no reasonable possibility that the jury might consider that there had been a reversal of the onus of proof in relation to the existence of a motive to lie. Nor was there any reasonable possibility of the trial miscarrying on that account.

119.The judge told the jury that the onus of proving the case beyond reasonable doubt rests with the Crown throughout the whole of the proceedings and that it has to prove each of the ingredients of the offences charged to that standard (SU5). The judge also told the jury to bear in mind that an accused does not have any responsibility or obligation to prove or disprove anything. The judge made a similar observation when he said:

"But I just remind you once again that merely because he came into the witness box and gave evidence, does not mean that he is under any obligation to prove or disprove anything in regard to this trial and the allegations made against him … The Crown has the obligation of proving the case from the very beginning to the very end of the trial."

120.The question of whether M told lies as to making compensation enquiries before the Local Court was not of major importance. What became of greater importance were the periods M and the appellant were alone in the lab room and alone in the clinic and how M became familiar with the location, features and inside of the appellant's unit and the details of his car. M denied that the Bondi Junction meeting occurred.
121.In the circumstances of the present case, the suggested direction was not necessary. As the ground has no prospect of succeeding I would refuse leave to raise this ground. It is unnecessary for me to consider the proviso although the Crown relied on it as a matter of last resort.
122.Appeal Ground 8 reads:
"The … trial judge erred by giving an inadequate Crofts direction."

123. The judge gave this direction

"… the fact that there has been a delay in making a complaint, as there has in this particular case, does not necessarily indicate that the offence, that allegation as to the commission of these offences, is not true. There may be many reasons why a person does not complain about something immediately or shortly after it occurs, and you have heard the explanation given in this case. It is a matter for you to determine whether or not that explanation is reasonable and believable. You have been urged to consider the situation of the complainant at the time these things were happening. A young boy, thirteen, fourteen, suffering a degree of psychological disturbance, and in the circumstances that he found himself at the time, where shortly after his time at the clinic he went to Magnetic Island with his mother, and has remained there ever since, in effect."

124.At the close of the summing-up the Crown Prosecutor asked the judge for a Crofts' direction and summarised it. The judge agreed and said to the jury:
…you remember what I said about the question of complaint, that delay in complaint does not necessarily indicate that the allegation that the offence has been committed is not true, and there may be many reasons why persons do not complain, but you can also use the absence of complaint at an earlier time than was in fact the case as something going towards the credibility of the complainant, but bearing in mind that there may be good reasons why people do not complain. And you have heard the reasons given by the complainant, and one of the things that of course you would bear in mind in that regard is that at the time of these allegations the complainant was not an adult, so that how a child might react to situations like that as to whether or not they might complain, may be different as to how an adult should react"

125.The appellant complains that the trial judge repeated the direction about the explicable delay in complaint both before and after the Crofts' direction and that the Crof'ts' direction was entirely subsumed by the judge's remarks about why a delay in complaint was understandable. The appellant submitted that the judge in effect "sterilised" the complaint against critical comment on the issue of delay in complaint and that the imbalance which arose constituted error.
126.As to r4 it was submitted that after the judge had given the further direction, any request by the appellant's counsel for a further re-direction would have entailed a risk of adding to the imbalance, the subject of this ground. It was the Crown Prosecutor who drew the judge's attention to the need for a Crofts' direction. Counsel for the appellant could have sought to have the judge correct the balance.
127.It is not suggested that the further direction (the Crofts' direction) which was given was in its terms incorrect. The complaint is as to a lack of balance.
128.The effect of the judge's direction was to emphasise that M had a good explanation for the delay in complaint and that while the jury was entitled to use the absence of earlier complaint as bearing on the credibility of M, the jury should bear in mind that M had a good explanation. While the judge gave the jury a strong pointer as to the approach they should take, ultimately he left the matter to the jury to decide. Unfortunately for the appellant the facts which emerged in evidence pointed to M having a good explanation for the delay.
129.While greater emphasis was given to the explanation for the delay than the delay itself, I do not think that the directions exceeded the permissible bounds. The jury was made fully aware of the delay. While the issue of delay in complaint was one of the issues relied upon by the appellant, the issues relating to the conduct and opportunities of the appellant at the clinic were at the centre of this trial.
130.I would refuse leave to rely on Ground 8. I am not persuaded that there was a miscarriage of justice on this Ground.
131.Appeal Ground 9 reads:
"The … judge erred by failing to direct the jury that they should disregard evidence and arguments concerning the 'inappropriateness' of the appellant's conduct."

132.The appellant submitted that the Crown Prosecutor cross-examined the appellant at length and repetitively about what was described by the Crown Prosecutor as "his inappropriate conduct". As earlier mentioned she attacked him for not investigating why M was in the Mall at Bondi Junction and reporting this to his colleagues and M's mother, taking M to his unit, forming a friendship with M and failing in the discharge of his professional duties.
133.The appellant complained that the Crown Prosecutor's questions sought to emphasise that in forming a friendship with M, the appellant had acted unethically and had perpetrated an abuse of trust. It was submitted that the questions were highly objectionable on the basis of relevance and unfair prejudice to the appellant and that the questions sought to raise the bad character of the appellant (even though he did not adduce evidence of character) and pronounce moral condemnation upon him. No objection was taken to the cross-examination.
134.The appellant complained that the Crown Prosecutor had reiterated the evidence in her address and elaborated upon it (as later quoted).
135.The appellant submitted that once the Crown Prosecutor returned to the issue in her address, it was necessary for the judge to direct the jury not to have regard to such evidence and submissions and remind the jury that the appellant was not on trial for professional misconduct. Not doing so, it was submitted, created an appreciable risk that the jurors were deflected from their proper task by irrelevant and prejudicial material.
136.The Crown submitted that it was entitled to rely upon the body of evidence in question as it revealed the nature of the relationship between M and the appellant. The Crown submitted that the evidence was properly admitted and that it was entitled to rely upon and make reference to that evidence in closing address. Reliance was placed upon the remarks of McClellan CJ at CL in Qualtieri v R [2006] NSWCCA 95 esp at [80].
137.I agree that evidence showing the relationship between the appellant and M was admissible. It is one thing to adduce whether in chief or in cross-examination evidence showing the relationship between them. It is another matter to cross-examine the appellant to the effect that he has failed seriously in his professional duty by (a) failing to question M about why he was not at school and not reporting his meeting at Bondi Junction to M's mother and the appellant's colleagues at the clinic, (b) forming a friendship with M and (c) taking a 14 year old patient back to his unit and not realising this lacked propriety and wisdom.
138.It was not unfairly prejudicial to elicit the prime facts of the meeting at Bondi Junction and the trip to his unit, and the friendship which formed. However, the cross-examination went further in seeking to establish and obtain admissions that the appellant had seriously failed in his professional duty in the respects mentioned.
139.While no objection could correctly be taken to the questions eliciting primary facts showing the relationship between the appellant and M, objection was not taken by the appellant's trial counsel to questions suggesting serious failure of professional duty.
140.In her final address the Crown Prosecutor said to the jury that on the appellant's version of events of the Bondi meeting, the trip back to the appellant's unit for the Eurythmics tape and the subsequent trip to M's home, she had put to the appellant that what he was doing was highly inappropriate given that M was probably 14 years old, a disturbed child who was a patient at the clinic where the appellant was a nurse and that the appellant had disagreed that it was inappropriate. The Crown Prosecutor continued:
"Members of the jury using your experience and your common sense, it was and is highly inappropriate behaviour by the accused [to take the complainant back to his home] and his refusal to acknowledge that undermines his evidence considerably. You will note that he didn't tell [the complainant's] mother about this trip to his home and he didn't tell his colleagues either, although he refused to agree with me when I suggested that that was because they would not have approved of him taking this child back to his unit." (TT, 8.12.04, 16.58-1717)

141.Trial counsel for the appellant did not raise any objection or ask the judge for any direction. This matter was not addressed in his closing speech, counsel concentrating on weaknesses in the Crown case and particularly in M's evidence.
142.The now challenged evidence having been admitted without objection, no objection being raised to the closing speech of the Crown Prosecutor nor any direction sought, it is too late for these matters to be raised. If timely objections had been taken the problems could have been cured. The appellant's strategy at the trial was to focus on what were believed to be the weaknesses in the Crown case.
143.The jury would not have thought that they were dealing with a case of professional misconduct and they were clearly directed as to what the Crown had to prove before they could convict the appellant. The unfairly prejudicial portions of cross-examination and of the prosecutor's address to which I have referred would, to put it mildly, not have helped the appellant when the jury were assessing his credit and considering his evidence.
144.I would refuse leave to rely on this ground.
Ground 1
145.I return to Ground 1, namely that the verdicts are unreasonable and cannot be supported having regard to the evidence for reasons, which I summarise and comment upon, namely:
(1)The sexual assaults could not have happened.
M's evidence and the Crown case was that each of the three assaults the subjects of Counts 1, 2 and 4 respectively occurred during a neurological test. The clinical records from Serfontein Clinic revealed that only one such test was conducted and that was on M's first visit on 20 January 1987. According to Mrs Serfontein the clinical records with respect to M were complete. M confirmed that there was no sexual contact as between himself and the appellant on his first visit to the clinic. The clinical records were in accordance with the Serfontein Clinic's testing protocol which involved testing patients never more frequently than once every six months. Mrs Serfontein said that patients were never tested once or twice per week.

In cross-examination M initially disagreed that he was only scan tested on one occasion. This evidence followed:
"Q:I suggest to you sir that the only time that you were ever subjected to a scan or neurological test at the Clinic was on 20 January 1987?

A:          Yep
Q:          Do you agree with that?
A:          Yes
Q:           You do?
A:Well, if you're saying that it's in the statement I'd have to agree with that.

Q:I suggest to you sir that that was the first date upon which you ever attended the Clinic, that is 20 January 1987.

A: Yep
Q:I suggest to you sir that it's inconceivable that you would have been tested twice or even once per week with the scan tests?

A. I don't know."

Comment M seems to be proceeding on the basis that if 'the statement' said he was only tested once that must be so. The burden of his evidence was that there were many apparent tests. The clinic had a record of one test, that is on 20 January 1987. That does not mean that M sat in the testing chair, the cap placed on his head and the strap around his chest but once. It does not exclude fake or simulated tests nor tests of which no record was kept. This does not exclude the appellant sucking M's penis after having M strip to his underwear and occupy the chair. Having regard to the clinic protocols, records of more than one test would not be expected. It was not unreasonable for M to accept what the clinic's records showed.

(2)The complainant gave contrary versions as to when Counts 1 and 2 occurred.
M's evidence at trial was that the offence the subject of Count 1 occurred on his second visit to the clinic (T1611, T17.06). When M complained to his de facto wife he told her nothing happened during his second visit (T87.53 and following). M gave evidence of attending the clinic on seven occasions. He gave this evidence:

"Q:… I am suggesting to you that you told your spouse that nothing happened to you at all of a sexual nature on the second occasion that you attended the Serfontein clinic?

A I don't recall
Q:You told her that the first time that anything of a sexual nature happened between yourself and Chris [the appellant] was at the clinic after your fourth visit?

A: No I don't recall."

In his evidence in chief (T22.40) M said that the incident and offence the subject of Count 2 occurred on his fourth visit to the clinic. That evidence was in accordance with what M had told the police in his police statement. (T41.21). That was the second time he was sexually assaulted. When M gave evidence at the committal proceedings (T41.56-T42.27) he said that no sexual act took place on the fourth visit. He was offered by the appellant and took a sum of cash ($50-$100) and cannabis.

At T42.40 of the trial M gave this evidence:

"Q:So you weren't sexually assaulted at the clinic on your fourth visit at all were you?
A:Well – says in my statement I mustn't have been."

Comment: The jury must have been satisfied that each act of fellatio alleged occurred. They may not have thought that it was important to identify with precision on which visit the sexual assaults occurred. The appellant did not dispute that M made a number of visits to the clinic between 20 January 1987 and July 1987. M's evidence of three sexual assaults was cogent. He went into the lab room, stripped to his underwear at the appellant's request, underwent preparations for the purported test and after the preparations and in the course of his time in the lab the appellant performed oral sex. This happened late in the afternoon, that is, about 5pm or later when most, if not all, the other staff at the clinic had left. The remedial teachers would not be concerned to enter the lab, the door to which could and would be shut.

(3)The complainant gave evidence as to highly significant events occurring by reference to a car park that did not and has never existed.

M said that at the end of his third visit to the clinic the appellant offered him a lift home and he accepted. M said that he and the appellant went down to the latter's car by lift. The car "seemed to be underneath the building of the Serfontein Clinic”. He described the lighting in the car park as very dark and not very well lit and the appellant's car as a dark coloured Volvo. He gave evidence of travelling in the Volvo to the appellant's unit.

M said that at the end of his fifth visit he was again offered and accepted a lift. Again they went down to the appellant's car in the same car park where the appellant performed an act of fellatio upon him. This act of intercourse was one of the two uncharged acts of intercourse. The first time M disclosed that allegation was to the Crown Prosecutor on 3 December 2004, the Friday before the trial commenced. When M told the Crown Prosecutor about that he said it occurred following the third (not fifth) visit to the clinic (T.75.23). It was common ground between the Crown and the appellant that there was no car park under the Law Society Building at 170 Phillip Street, Sydney.

Comment: The appellant gave evidence that while he did not usually drive into the city he did on occasions and parked in the Domain car park. After such a long period a mistake as to the location of the car park is not of consequence. It was not part of the Crown case that the appellant took M to the Domain car park.

4.The complainant's evidence as to seeking compensation.
M initially said at the trial that at no time prior to 6 December 2004 had he made any enquiries about applying for compensation for psychological trauma or problems that he alleged had been caused by the appellant. M said he had not attempted to get any compensation. He had received advice but had not made any enquiries personally. He referred to having filled out the VCT claim form through a solicitor. He was cross-examined about the evidence he gave in the Local Court and that has been summarised earlier, along with M's explanation.

Comment: I do not agree that M's evidence as to seeking compensation should have caused the jury to look with real disfavour upon the complainant's credibility. It was apparent that he was trying to say a solicitor had advised him that he was entitled to compensation and that a solicitor had caused him to fill out a VCT claim form. He had been referred to that solicitor two days before the committal proceedings. The claim for compensation was not related back to the time when M made his statement to the police. M did not regard himself as the moving force for compensation or being motivated by a desire for compensation.

5.The delay in complaint
The appellant submitted that there was no satisfactory explanation behind M's failure to make a prompt complaint, nor for the two year delay between telling his de facto wife and making a statement to the police.
Comment: The materials show that when the offences are alleged to have occurred NM was a disadvantaged boy needing treatment. He also needed friendship. His family situation was unsettled and unsatisfactory and he did not want to add to his mother's difficulties. He had been in trouble in the past and did not want to get into further trouble. He tried to put the experiences behind him. Eventually he found a partner and started a new life having his own family. The TV programme triggered bitter memories and his partner sensed that something was wrong. He felt able to tell her. She was the only person he felt able to tell. Ultimately he went to the police, at least partly at the prompting of his partner. He also thought that it was time something was done about the matter.

6.The complainant's evidence as to the allegations is entirely uncorroborated.
Comment: No detailed submissions were made in support of this ground but the point was made. This deficiency was drawn to the attention of the jury and the judge gave the jury the necessary warning.

146.I have paid close attention to each of the matters upon which the appellant has relied and the effect of them in combination. I have examined the whole of the evidence in detail.
147.The surrounding circumstances are not in doubt:
(a)M attended at the clinic from 20 January 1987 to July 1987 on a number of occasions.
(b)On occasions M and the appellant were the only persons present in the clinic after 5,00pm. On occasions the appellant was the last person to leave the clinic but generally the remedial teacher was the last person to leave.

(c)M was a disadvantaged and disturbed boy with behavioural and learning problems needing treatment. He attended remedial classes.

(d)The appellant and M formed a friendship, one unusual aspect of which was that on at least one occasion the appellant took M to the appellant's unit before driving him to his home at Haberfield.

(e)The appellant spent most of his time at the clinic in the lab or testing room. That had a door which could be closed.

(f)The opportunity existed for the commission of the alleged offences and there was an unusually close relationship between the appellant and M.

148.While there were aspects of the evidence of M which were fairly open to criticism, the core of his evidence as to the commission of acts of fellatio at the clinic was solid. Too much importance should not be attached to matters of secondary detail. What is important is cogent proof that the acts alleged happened rather than proof of the particular visit in a series of visits on which each assault occurred.
149.The chance Bondi Junction meeting and its aftermath deposed to by the appellant was remarkable and very hard to accept. The evidence of the appellant was not persuasive, although of course he does not have to prove anything.
150.My examination and assessment of the evidence has led me to the conclusion that upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of the three offences it was considering. See M v The (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606. The appellant is not entitled to have a verdict entered on his behalf.
151.I return to the other grounds of appeal. I have held that the summing-up was deficient in a number of respects. It is not a case for the application of the proviso. While the Crown case was one of some strength there were weaknesses. The deficiencies in the summing-up were of consequence. Regrettably, there must be a new trial. I propose the following orders:
1.Appeal against conviction allowed.
2.That there be a new trial, at the discretion of the Director of Public Prosecutions at such time and place as may be directed by the District Court.
**********

LAST UPDATED: 07/06/2013

Actions

Download as PDF Download as Word Document

Citations

Healey v R [2006] NSWCCA 235

Most Recent Citation

O'Meara v R [2009] NSWCCA 90

Cases Citing This Decision

8

Bates v The King [2023] SASCA 65

FH v Regina [2014] NSWCCA 231

Gorge v The Queen [2021] NSWCCA 206

Cases Cited

11

Statutory Material Cited

1

R v Sukkar [2005] NSWCCA 54

Franklyn & Franklyn [2019] FamCAFC 256

Stokes v The Queen [1960] HCA 95

[2006] NSWCCA 235

4 August 2006