Jarrett v R

[2014] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Jarrett v R [2014] NSWCCA 140

Hearing dates:

15 May 2014

Decision date:

28 July 2014

Before:

Basten JA at [1];
R A Hulme J at [91];
Campbell J at [92]

Decision:

(1) With respect to the appeal against conviction, grant leave to appeal with respect to ground 3, but dismiss the appeal.

(2) Otherwise refuse leave to rely upon grounds 1, 2 and 4 pursuant to Criminal Appeal Rules, r 4.

(3) Refuse leave to appeal against sentence.

Catchwords:

CRIMINAL LAW - appeal - conviction - directions to jury - admissions made of offences with unspecified victim when accused medicated - directions sought and given went no further than suggesting unreliability - whether direction that the accused may have been referring to someone other than the complainant required - prejudicial effect of proposed direction

CRIMINAL LAW - access to video of complainant's evidence in chief in jury room - general warning to jury about reliance on the video - whether further warning required when viewing video in jury room - procedure when jury seek access to video - video requested along with other evidence - Criminal Procedure Act 1986 (NSW), s 306X

CRIMINAL LAW - appeal - sentence - whether trial judge failed to consider the mental health of the accused

EVIDENCE - delay in making complaint about sexual offence - mandatory warning that delay does not by itself undermine a complainant's credibility - whether a warning was required that the complaint was not made at the earliest reasonable opportunity - whether there was "sufficient evidence" to require a warning - Criminal Procedure Act 1986 (NSW), s 294

EVIDENCE - delay in prosecution - whether accused suffered a significant forensic disadvantage - whether "good reasons" not to give warning - Evidence Act 1995 (NSW), s 165B

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 45
Crimes Act 1900 (NSW), ss 61J, 61M
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 294, 294AA, 306X
Evidence Act 1995 (NSW), s 165B

Cases Cited:

Collier v R [2012] NSWCCA 213
Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453
Crofts v The Queen [1996] HCA 22; 186 CLR 427
Gately v The Queen [2007] HCA 55; 232 CLR 208
Gavin v R [2006] NSWCCA 66
Hristovski v R [2010] NSWCCA 129
JJB v The Queen [2006] NSWCCA 126; 161 A Crim R 187
Kilby v The Queen [1973] HCA 30; 129 CLR 460
Longman v The Queen [1989] HCA 60; 168 CLR 79
M v The Queen [1994] HCA 63; 181 CLR 487
Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24
R v Hemsley [2004] NSWCCA 228
R v LTP [2004] NSWCCA 109
R v NZ [2005] NSWCCA 278; 63 NSWLR 628
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Suresh v The Queen [1988] HCA 23; 72 ALJR 769

Category:

Principal judgment

Parties:

John Charles Jarrett (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr P Segal (Applicant)
Ms S Herbert (Respondent)

Solicitors:
Hugo Schleiger (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

CCA 2009/158211

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

31 January 2013

Before:

Black DCJ

File Number(s):

DC 2009/158211

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 29 June 2007, when the complainant was 12 years old, she was indecently and sexually assaulted by the applicant. He threatened to commit suicide if she told anyone. The complainant did not then contact police, although shortly thereafter she told her sister and some friends. In October 2007, the complainant contacted the applicant, telling him she could no longer remain silent. Distressed, the applicant was admitted to a hospital. Whilst at the hospital he made admissions to staff about the offences. The police were notified and contacted the complainant. She declined to be interviewed. It was only in January 2009 that the complainant eventually gave a full account to police. The applicant was charged with a number of offences

The principal prosecution evidence at trial was a video of the complainant's police interview and the applicant's admissions at the hospital. As required by s 306X of the Criminal Procedure Act 1986 (NSW), a mandatory warning was given about drawing adverse inferences from, or giving disproportionate weight to, evidence of a vulnerable person in a recording. The jury sought and was granted access to the video, along with other evidence, in the jury room. No further warning was given or sought. Moreover, the trial judge went no further than to suggest the applicant's admissions might have been unreliable because of his mental state at the time they were made.

The warning that delay in complaint in sexual offence proceedings does not necessarily indicate a false allegation and that good reasons may exist to explain the delay was given: Criminal Procedure Act, s 294(2)(a)-(b). Unless there is sufficient evidence to justify such a warning, no warning is to be given that delay in complaining is relevant to a victim's credibility: s 294(2)(c). The applicant at trial made no argument that the evidence justified such a warning. The only warning sought in respect to delay in complaining was that the applicant had lost the chance to obtain evidence contemporaneous with the offences alleged in the complaint, thus suffering a "significant forensic disadvantage". Section 165B of the Evidence Act 1995 (NSW) requires a warning to the jury if the court is satisfied that delay has caused a "significant forensic disadvantage", subject to any good reasons why such a warning should not be made. The trial judge was not satisfied that the delay had caused such a disadvantage.

The applicant sought leave to appeal his conviction and sentence on the following grounds:

(i) the jury should not have had access in the jury room to the video of the complainant's evidence in chief without a further warning about placing too much weight on it;

(ii) failing to warn the jury that the applicant's admissions may have been referring to someone other than the complainant;

(iii) failing to provide a direction regarding any significant forensic disadvantage suffered by the applicant from the delay in complaining;

(iv) not giving a direction that delay in complaining could be considered in assessing the complainant's credibility;

(v) in respect to sentencing, failure to take into account the mental condition of the applicant at the time of the offence.

The Court held, granting leave to appeal for ground 3 but dismissing the appeal and otherwise refusing leave to appeal on all other grounds:

In relation to (i):

(per Basten JA, R A Hulme J agreeing)

1. A miscarriage did not result from allowing the jury to have access to the video in the jury room or from failing to provide a further warning about its use. The warning given earlier was sufficient and the nature of the jury's request - asking for the video along with other evidence - suggested it would not be misused: [69]-[75].

R v NZ [2005] NSWCCA 278; 63 NSWLR 628; Galvin v R [2006] NSWCCA 66; 161 A Crim R 449 considered.

(per Campbell J)

2. Allowing the jury unsupervised access to the video was an irregularity but it did not give rise to a miscarriage of justice: [93]-[95].

Gately v The Queen [2007] HCA 55; 232 CLR 208 applied.

R v NZ [2005] NSWCCA 278; 63 NSWLR 628 not followed.

In relation to (ii):

(per Basten JA, R A Hulme and Campbell JJ agreeing)

3. The forensic disadvantage of the direction proposed is patent: it is unlikely to have assisted and would potentially have caused egregious prejudice as it suggested the applicant may have committed similar offences against another person: [29]-[30].

Shepherd v The Queen [1990] HCA 56; 170 CLR 573 referred to.

In relation to (iii):

(per Basten JA, R A Hulme and Campbell JJ agreeing)

4. No significant forensic disadvantage was caused by delay: the applicant knew a complaint was in contemplation well before it was made and he arguably contributed to the delay by his threat to commit suicide. Even if such a disadvantage was established, the applicant's threat to commit suicide provided good reason not to warn the jury: [60]-[64].

In relation to (iv):

(per Basten JA, R A Hulme and Campbell JJ agreeing)

5. The evidence was not sufficient to justify a warning that delay was relevant in assessing the complainant's credibility. There were inconsistencies in the complainant's evidence that went to credibility but these did not provide the basis for a direction based on delay under s 294(2)(c): [49]-[50].

Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 applied.

Kilby v The Queen [1973] HCA 30; 129 CLR 460; Crofts v The Queen [1996] HCA 22; 186 CLR 427; Suresh v The Queen [1998] HCA 23; 72 ALJR 769; R v LTP [2004] NSWCCA 109 considered.

In relation to (v):

(per Basten JA, R A Hulme and Campbell JJ agreeing)

6. The sentencing judge gave careful attention to the applicant's mental health. Even if that was not the case, there is no basis for finding that a less severe sentence was warranted in law: [85], [96]

Judgment

1. BASTEN JA: The applicant was convicted of several offences of sexual assault on the complainant, identified as JT, a 12 year old friend of the applicant's daughter. The offences took place on the evening of Friday, 29 June 2007. The applicant was charged in 2009, but the trial did not come on until November 2012, when the applicant was convicted by a jury on each of four counts. He has remained in custody from the date of conviction, namely 30 November 2012.

1. On 31 January 2013 the applicant was sentenced by Black DCJ to fixed terms of 12 months and 18 months on two lesser offences and sentences of eight years, each with a non-parole period of five years and a balance of term of three years, on the two more serious offences. The sentences were fixed to run concurrently from 30 November 2012. The non-parole period is due to expire on 29 November 2017.

1. The applicant sought leave to appeal against the convictions and sentences.

1. The evidence before the jury fell within a limited compass. The principal evidence was that of the complainant, whose evidence in chief consisted of a video recording of her interview by a police officer. There was brief evidence given by the complainant's sister and her mother. Her sister gave evidence of a complaint at the end of 2007, in terms which were not entirely consistent with the complainant's evidence in court. The mother's evidence was not of complaint, but confirmed that the applicant had bought the complainant a mobile phone in September 2007. The investigating officer also gave largely formal evidence in chief, but in cross-examination provided the content of two further complaints to school friends, the content of which was relied on by the defence as partly inconsistent with the complainant's evidence in court.

1. The second part of the prosecution case involved statements made by the applicant when he was admitted to the Richmond Clinic, at Lismore Base Hospital, in October 2007, when he believed the complainant had gone to the police. Three witnesses gave evidence of statements which were capable of being understood as admissions by the applicant that he had sexually assaulted the complainant.

1. The grounds of appeal, as developed in submissions, were broadly in the following terms, namely that the trial judge erred in:

(1) allowing the jury to have the video of the complainant's evidence in chief in the jury room, without a proper direction under s 306X of the Criminal Procedure Act 1986 (NSW);

(2) failing to give directions concerning circumstantial evidence with respect to the alleged admissions at the Richmond Clinic;

(3) failing to give adequate directions as to the forensic disadvantages faced by the appellant by reason of the delay in complaint, and

(4) not giving directions that the jury could take delay in complaining into account in assessing the credit of the complainant.

1. With respect to the appeal against sentence, the only error alleged was in failing to take into account "the mental condition of the applicant" at the time of the offence (ground 5).

1. No direction having been sought or complaint made during the trial with respect to the matters the subject of grounds 1, 2 and 4, the applicant required leave to rely upon each ground pursuant to r 4 of the Criminal Appeal Rules. The appeal based on ground 3 required leave under s 5 of the Criminal Appeal Act 1912 (NSW). In each case, the Director opposed a grant of leave. For the reasons given below, there should be a grant of leave to appeal with respect to ground 3, but the appeal should be dismissed. Leave under rule 4 should be refused with respect to grounds 1, 2 and 4. The appeal against conviction fails.

1. There was no substance to the application with respect to the sentence; leave to appeal should be refused.

Factual background

1. The applicant's daughter was the complainant's best friend. The complainant often stayed with her friend in the applicant's home. She knew the applicant well and referred to him by his initials, JJ. On her description of the events on the Friday evening, the applicant and his friends had been drinking. When they left the applicant's daughter had gone to bed; the applicant then asked the complainant, "Do you want to watch a movie?" He said she could lie on the sofa-bed in the lounge room and he put on a movie. The complainant laid down on a couch and the applicant lay beside her. The applicant tickled her and kissed her, put one hand under her shirt and felt her breasts, saying "They're nice little ones." (That activity constituted the first charge, being indecent assault of a child under the age of 16 years, contrary to s 61M of the Crimes Act 1900 (NSW).)

1. The applicant also put his hands down the complainant's pants, "started playing with me, and then he took my pants off." (That constituted the basis of the second charge, being another act of indecent assault.)

1. She said that the applicant then "licked me out", a complaint of cunnilingus and the basis of the third charge (of sexual intercourse without consent, knowing she was not consenting, being under the age of 16 years, contrary to s 61J(1)). He then had penile intercourse with the complainant (being the second charge under s 61J(1)).

1. The complainant slept on the lounge that night, but when she awoke in the morning, ran into her friend's room and laid in bed with her. The applicant came in later with cups of tea and vegemite on toast for breakfast. She stayed at the house on the Saturday and on Saturday night the applicant said to her, "Don't tell anyone, this is our little secret and if you tell anyone I'll kill myself."

1. The history of complaints will be addressed shortly; she did not agree to record an interview with police until 28 January 2009. On that day she was interviewed by Detective Senior Constable Rebecca Scott. She gave further details of the conduct constituting the second and third charges which had significance because of some degree of inconsistency with the evidence of earlier complaint to her sister and school friends. The complainant gave evidence of the applicant kissing her, lying on top of her and playing with her belly button, and then feeling her breasts. The following questions and answers were recorded:

"Q162. So then tell me how your bodies were positioned then.

A. Like, he tickled me and I've, like, I was on my side and I've rolled over like that, and I said, Don't, and then he kissed me and, because I was laying down ... he rolled on top of me so I had nowhere to go -

...

- and I've just held my mouth, like, just didn't kiss back.

...

And then he rolled off me and I've just quickly rolled back over, and then he's just played with my belly button, and then went down my pants and then took 'em off.

Q165. OK. So how were you lying when he took your pants off?

A. On my side but then he, like, went down on me and he opened my legs -

...

- and he put, he said, I don't know what he said but he put the blanket over his head and over me when he was doing that, and I don't know, I was just, I had my face turned to the TV with tears rollin' down my face and I was shaking.

Q167. OK. Sorry, he pulled your pants down and that's when you said he went down on you?

A. Yeah, but he played with me first.

Q168. OK. Played with what?

A. With my vagina.

Q169. And what did he use to play with you?

A. His hands.

Q170. And where did he put them?

A. Just on my vagina.

Q171. Did he put them on the inside or the outside?

A. No, he didn't, like, finger me.

Q172. OK. You said he didn't -

A. No.

Q173. - finger you.

A. He just -

Q174. And what's, and what's fingering?

A. Where, isn't where he sticks his fingers in you?

...

Q180. OK. And you said he went down and before you said to me he licked me out.

A. Yeah.

Q181. Can you tell me what that, what you mean by that.

A. Like, he used his tongue to, like, play with my vagina.

Q182. Did you put his tongue inside or outside your vagina?

A. No, he didn't put it inside.

...

Q185. OK. Did he put his tongue inside or outside the lips of your vagina?

A. Well, the clitoris.

Q186. He was, he put his tongue on your clitoris?

A. Yes."

1. At the trial the complainant's sister gave evidence of a conversation in which the complainant had described to her the events of the evening in question, stating that the conversation would have been "at the end of 2007": Tcpt, 27/11/12, p 37(30). She described the complaint in the following terms (Tcpt, p 33(15)-(50):

"A. Yeah. And then he started touching her and licking her and then after a couple of hours someone was knocking on the door and it was ...

...

Q. - 'Started touching her'?

A. Yep.

Q. 'and started licking her'?

A. Yeah. He was fingering her.

Q. I beg your pardon?

A. He was fingering her.

Q. And he was fingering her, and anything else?

A. And he was licking her out.

...

Q. So apart from touching her and fingering her and licking her out, did she say that he did anything else to her?

A. He had sex with her.

Q. When she said that he had sex with her, did she say anything about in what sort of positions they been when he had sex with her?

A. I can't really remember, I think she said it was from behind. ..."

1. In cross-examination, the sister was asked questions about the person who came to the door ("he was looking for his little sister [that] ran away") and about the complaint of "fingering". In re-examination the prosecutor led from the sister (without objection) evidence that in her police interview she had been asked whether the words that he "fingered" her were said by the complainant or were the sister's own words and she said "they were my words."

1. There was discussion in the absence of the jury about the re-examination, counsel for the accused stating that the re-examination was "unfair", saying that he had "no difficulty with the questions that were put, but they were put in isolation": Tcpt, p 42(5). He then asked the prosecutor to "fulfil the context". That was done in the following passage:

"Q. Can I just get you to follow from A31 you said this to the police officer:

'And then he likes she starts shaking and stuff and he was laying next to her and then he put the blanket over them and stuff and yeah he fingered her and stuff like that.'

And I think following over the page the police officer said 'And stuff like that, what else did he do, what did she say' and you said 'He licked her out and stuff' and Rebecca says 'Yeah' and you add 'And then he raped her'. That's what you told Rebecca at the time?

A. Yes.

Q. Then if I can just go lastly towards the bottom of page 4 Rebecca asked you about rape and said this 'Like did she tell you what, did she describe to you what she meant by rape' and you said 'Oh she didn't say rape she like, like having sex with her' and Rebecca said 'Is that what she said' and you said 'Yeah' and Rebecca said 'So she told you what' and you said 'That he was - that he started having sex with her'?

A. Yeah.

Q. Then right at the end there was that further bit that I put to you this morning about where Rebecca asked you again about the use of the word fingered?

A. Yeah and that was my word.

Q. You said at the answer to 45 that you think that they were your words?

A. Yeah.

Q. You weren't certain about it?

A. Yeah."

There was no further questioning of the sister.

1. Before dealing with the manner in which that evidence was dealt with before the jury, it is convenient to summarise the evidence of statements made at the Richmond Clinic. The applicant was admitted to the emergency department of Lismore hospital on the previous night. He spoke with a mental health nurse, Dennis Casey, on the morning of 2 October 2007. Mr Casey was invited to read part of his notes as his evidence in chief, including the following (Tcpt, 28/11/12, p 75(5)):

"Lying in bed sobbing. John tells me he interfered with a 13-year-old girl two months ago at his home. He denies any other contact. Yesterday she rang him to say she had had enough of remaining silent. John says he is terrified that she will tell someone and he will lose his kids and go to gaol. ..."

1. Immediately before Mr Casey spoke to the applicant, the applicant had received five mg of valium orally. Mr Casey described the effect as "mildly sedating, mildly tranquilising, [its] effects would be to reduce anxiety": Tcpt, p 80(10). Later on 2 October, the applicant was given Zyprexa, which Mr Casey described as a powerful sedative used in the management of psychosis: p 82. Mr Casey was cross-examined as to whether the applicant may have said that "he had been told that he interfered with a 13-year-old girl", thus recounting an allegation rather than the fact: Tcpt, p 85. Mr Casey did not recall that being said.

1. The second witness was Gregory Telford, who had been a counsellor working with Aboriginal people with drug or alcohol related problems in Lismore, employed by the Department of Community Services. Mr Telford was asked to read a passage from his notes of his conversation with the applicant, which he did at Tcpt, 27/11/12, p 56(1):

"'I said JJ I need to make you aware that I've come down to see you, I know what you're here for, I have to tell you straight up that prior to me talking with you that should you mention the young girl's name I am a mandatory reporter and I'll have to notify the authorities'.

Q. I think he replied?

A. 'Yeah that's okay'.

Q. Did you then ask him a question?

A. Yes.

Q. Tell us what you asked him?

A. 'Is it true that you had sex with the young girl'.

Q. And if I can just assist you, did he - was his answer 'Yeah'?

A. Yes.

Q. I think you at that point pointed out to him that she was still a minor?

A. Yes.

'John said I want to take responsibility for my behaviour. I said in that case you need to notify the police. John said if I do that I could go to gaol. I said do you want to take responsibility. John said yes. I said notifying the police would be part of that process.'"

1. Mr Telford agreed that the applicant was "quite medicated" at the time of the conversation. In cross-examination he agreed that he had made no note of the conversation at the time and that his statement was prepared three years later, in December 2010. He had a later conversation with the applicant in 2009, apparently shortly before he was charged, at which time he denied the allegations of having sex with a young girl.

1. The cross-examination of Mr Telford focused primarily on his lack of contemporaneous notes of the conversation and the proposition that the applicant was not in a fit state to discuss matters in 2007 because he was heavily medicated.

1. The third witness in this group was consultant psychiatrist, Dr Igor Petroff. He spoke to the applicant at Lismore Base Hospital at about 7am on the morning of 2 October 2007: Tcpt, p 66(5). He formed the view that the applicant was "a mentally disordered person but not a mentally ill person": Tcpt, 27/11/12, p 65(5). Dr Petroff's note was: "Disability Support Pensioner has sexually abused daughter's 13 year old friend some months ago. Now all came to a head with the girl abusing him yesterday. Now terrified of going to gaol, threatening to kill himself": Tcpt, p 65(15). In cross-examination, he accepted the following proposition (p 67(10)):

"In relation to your conversation with him, did he say to you anything along the lines of, that he's been told, other's have been telling him that he has sexually abused a 13 year-old girl?"

1. On 12 October 2007 Detective Senior Constable Scott, then a member of the Ballina Joint Investigation Response Team (now called the Ballina child abuse squad), spoke with the applicant saying that she had information "that he may have sexually or indecently assaulted a 12 year old girl" and identified the complainant. Her evidence continued (Tcpt, 28/11/12, p 88(35)):

"Q. Did he respond in any way?

A. Yes he was quite emotional and was crying.

Q. Did you ask him at that stage if he wished to be interviewed by you?

A. Yes I did.

Q. Did you afford him the opportunity to seek legal advice and to make a phone call to get legal advice from a lawyer?

A. Yes.

Q. Is that what happened?

A. Yes that's what's happened and he -

Q. As a result of seeking legal advice, did Mr Jarrett indicate to you at that stage that he didn't wish to take part in an interview?

A. That's right."

1. At that point, the trial judge intervened to tell the jury that the applicant was entitled to exercise his right to silence and nothing could be held against him for exercising that "absolute right": Tcpt, p 89(5).

Directions - admissions at Richmond Clinic

1. It is convenient to deal with the complaints concerning the trial broadly in the order in which they arose at the trial. The first concerned the manner in which the trial judge left to the jury the admissions made in October 2007, whilst the applicant was a patient at the Richmond Clinic. Immediately before the summing-up, counsel for the accused, in addressing the jury, emphasised that Mr Telford had no contemporaneous notes and accepted that the applicant was heavily medicated when he spoke to him. When he was not, some two years later, he denied the allegations. With respect to Dr Petroff, emphasis was placed on his acceptance that, despite the terms of his note, he was told by the applicant of an allegation against him, rather than the fact of the conduct alleged. With respect to Mr Casey, counsel focussed on the imprecision of the language of "interference" with a young girl: Tcpt, 29/11/12, p 29(45). He suggested that the jury "would not be able to confidently place any weight on these so called admissions": p 30(19).

1. The trial judge, appropriately, dealt with the evidence quite briefly in his summing-up. It had been a short trial and the jury would no doubt have had a ready recollection of the evidence given over less than four full days. He noted the prosecution submission that the applicant had made admissions of sexual misconduct "consistent with the allegations in the indictment although not expressly related to any particular count": summing-up, p 9. He noted the defence case that the applicant had been on some medication, that Dr Petroff had described the applicant as "mentally disordered" and that anything he said whilst in the Richmond Clinic "may be unreliable": pp 9-10.

1. No complaint was made then (or on appeal) as to the way in which the admissions were left to the jury. Rather, the challenge asserted the need for a further direction, albeit one not sought at trial. It was submitted that because none of the statements made to hospital staff identified the complainant, that matter was left to be inferred, the inference being described as "circumstantial evidence" requiring a warning as to the need to be satisfied beyond reasonable doubt as to the fact to be inferred. The suggestion was that a direction should have been given that the jury must be satisfied that the applicant was referring to the complainant, as an "intermediate fact", as described by Dawson J in Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at 581.

1. In response to an invitation to identify the proposed direction, counsel for the applicant stated that it should have included a warning about drawing inferences where there was "a reasonable possibility that the applicant was referring to someone else": CCA Tcpt, 15/05/14, p 4(35).

1. The forensic disadvantage in seeking such a direction is patent. Understandably, counsel for the defence did not raise any such issue with the jury. Had he considered seeking a direction in the terms now proffered, it is highly implausible that he would have sought it. Not only was such a direction unlikely to have assisted, the more fundamental problem of potential egregious prejudice was fatal to the suggestion. This is a paradigm case for the application of r 4: leave to rely upon ground 2 should be refused.

1. The submissions as to ground 2 strayed into other territory. It noted that two of the witnesses had referred to possible sexual interference with a "13 year old" and, in one case, to an event which had occurred "two months ago at his home", whereas the event had occurred over three months earlier. The submissions also referred to the inconsistency between Dr Petroff's note of the applicant saying that the girl had rung him on the previous day and the complainant's evidence that he had rung her and that she had told him to leave her alone and said that she had "told people".

1. Once the evidence from hospital staff was admitted, there were forensic difficulties for the defence in deciding how to deal with it. The discrepancies could be noted, but there must have been a risk in placing too much emphasis on them, given their nature.

Credit of complainant - delay in making complaint

1. Ground 4 suggested error in failing to direct the jury that they could take into account in assessing the complainant's credibility the delay on her part in making a complaint. It was submitted that there was ample opportunity to complain, first to the person who came to the door in the course of the events, secondly to her friend (the applicant's daughter) that night and, thirdly, to her mother. Reliance was placed on the apparent discrepancy between the complaint eventually made to her sister and to two friends that she had been "fingered", although it was not her sister's evidence that she had used that word. The applicant submitted that there had been opportunity to speak to the police in October 2007, but she did not do so.

1. Counsel for the applicant relied upon statements made by the High Court in Kilby v The Queen [1973] HCA 30; 129 CLR 460 at 465 (Barwick CJ) and in Crofts v The Queen [1996] HCA 22; 186 CLR 427. However, these decisions provided no assistance: the former involved the situation under the general law and the latter involved the application of a statutory provision in Victoria which the applicant claimed was "similar to" the relevant legislation in this State, whereas in fact there were significant differences.

1. Quite apart from questions of discretion, the applicant had to bring himself within the terms of s 294 of the Criminal Procedure Act which states:

294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest:

(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or

(b) delay by that person in making any such complaint.

(2) In circumstances to which this section applies, the Judge:

(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and

(b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and

(c) must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning.

1. The critical difference between the statutory provision as in force at the date of the applicant's trial and that in force when Crofts was determined, was the addition of s 294(2)(c) by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (NSW).

1. The present concern is not with any possible prejudice to the accused in responding to a delayed complaint, but the possibility that delay casts doubt on the credibility of the complainant. The common law assumed that it did, and that juries needed to be told that was the case. In more recent times, the underlying premise has been doubted, as has the failure to distinguish between adult and child victims and between alleged aggressors who were strangers, as opposed to close friends or relatives. In Suresh v The Queen [1998] HCA 23; 72 ALJR 769 at [5], Gaudron and Gummow JJ noted, referring to Gaudron J's explanation in M v The Queen [1994] HCA 63; 181 CLR 487 at 515, that "the assumption that the victim of a sexual offence will complain at the first reasonable opportunity is an assumption of doubtful validity, particularly in cases of child sexual assault." In R v LTP [2004] NSWCCA 109, Howie J stated at [123] that "there is in my view absolutely no justification for applying such a highly questionable view of the reasonable conduct of traumatised adult females to young children."

1. The introduction of paragraph (c) in s 294(2) significantly recasts the section. It must also be read as complemented by s 294AA which, in respect of relevant sexual offence proceedings, prohibits the judge warning a jury that "complainants as a class are unreliable witnesses" and in particular prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of a complainant.

1. There is no need to explore the history of the common law in dealing with "delay" on the part of a victim of sexual assault in complaining. The correct approach to the progressively amended statutory provisions is identified in the joint judgment of Brennan CJ, Dawson and Toohey JJ in Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453 at 463:

"The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature. Thus the effect of the amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment."

That approach was recently adopted with respect to the Migration Act 1958 (Cth) in Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 at [25] where Crennan, Bell, Gageler and Keane JJ stated:

"The numerous amendments that have been made to the Act form part of its legislative history and bear legitimately on its construction. They are to be construed as part of the Act, so as to be read together 'as a combined statement of the will of the legislature'. The timing of amendments might assist in determining the 'hierarchy' of apparently conflicting provisions of the Act as amended, but notions of 'implied repeal' have no place."

1. Bearing these considerations in mind, the operation of s 294(2) involves three elements. The first is that absence of complaint or delay in complaining does not of itself indicate falsity of complaint, because there may be good reasons why the victim hesitated or refrained for a period. That element is inconsistent with the assumption of fact expressed by Barwick CJ in Kilby (at 469) that it is "a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact".

1. Secondly, removing the presumption did not deny the possibility that in some cases absence of complaint within a reasonable time might cast doubt on the complainant's credibility. There is no presumption either, however, as to how particular facts will operate. The termination of a relationship (particularly one of dependency) may be seen to free the victim of a constraining force, or (especially if the termination was bitter) it may provide a motive for fabrication. These are pre-eminently matters to be left to the jury. Where the complainant has provided an explanation for delay or absence of complaint, the credibility of the explanation may itself be a significant matter to be considered by the jury.

1. Thirdly, accepting that each case must be considered on the evidence, it is logical to conclude that the jury should be given appropriate assistance by the judge in explaining how delay may be relevant to the victim's credibility in the particular case. Nevertheless, a warning (which, in context, is of an adverse inference) is not to be given unless there is "sufficient evidence to justify such a warning."

1. The imprecision in the language is appropriate for two reasons. First, and most obviously, both the circumstances and the nature of the warning will vary from case to case. This is not an area in which a standard form of warning is appropriate. Secondly, the requirement of "sufficient evidence" must not only mould the content of the warning, but it must also fit with the mandatory directions required by paragraphs (a) and (b). Without being prescriptive, there must be something in the evidence sufficient to raise in the judge's mind the possibility that the jury may legitimately consider that the delay could cast doubt on the credibility of the complaint. Usually, one would expect that such matters would have been put to the complainant in the course of cross-examination. Those very matters may constitute the "good reasons" why there was no timely complaint for the purposes of par (b), but, if not believed, may form the evidence justifying the warning under par (c).

1. In the present case, the jury might well have dismissed the possibility of complaint to the person who came to the door in the course of the evening as not constituting a reasonable opportunity. There would also have been good reason to doubt that, assuming the complaint to be true, the victim would complain to the daughter of the offender, who was her best friend. It might be equally unlikely if the complaint were untrue. Different considerations would arise with respect to the victim's mother, but she gave evidence of a hostile relationship at the relevant time and of the unwillingness of the complainant to talk to her about anything. Again, if accepted, that would have provided good reason for the failure to complain to the mother. A further reason was given by the complainant herself in the course of her police interview, namely that she was scared to complain because "he convinced me and make me believe if I told anyone he would kill himself": ERISP Tcpt, Q404.

1. The applicant submitted that the discrepancies between the content of the complaints and the evidence given by the complainant herself provided a basis for warning the jury in terms that might cast doubt on her credibility. Detective Scott was asked whether she had interviewed a school girlfriend of the complainant (who may be identified as A). She agreed that she had conducted a recorded interview on 11 February 2009. She also recorded an interview with a second young person (referred to below as R). In cross-examination, counsel for the defence led from Detective Scott details of what A and R had told her. With respect to A, all that she initially said was that the complainant had told her that the applicant "took advantage of her": Tcpt, 28/11/12, p 95(32). On being asked for details A stated that the complainant had said "[t]hat he fingered her." That evidence was consistent with the first recounting of the complaint to the complainant's sister, and may have cast doubt in the jury's mind on the sister's evidence that the complainant had not actually used the word "fingered".

1. With respect to R, counsel for the defence put the following conversation to Detective Scott, which she accepted (Tcpt, pp 96-97, 99):

"Q. And what did she say to you?

A. She said she was laying down watching a movie.

Q. Mm?

A. And he, like he laid down and started hugging her and she thought it was normal and then he started like touching her and stuff and she got really uncomfortable but she like froze up and then he started to, like, finger her.

...

When he just tried like and then he put, he put himself on top of her and like tried to kiss her and stuff and then he's like "I'm gonna get a condom" and then he came like he came back with and said something like'

...

And then he like, then he kinda like, he was feeling her again and he started to have sex with her but she was like laying this way and he was laying next to her like from behind but like but not like up the arse and yeah and then he like finished and he was like hugging her and stuff."

1. Again, there was the reference to the applicant starting to "finger her" and the suggestion that he had intercourse "from behind". Each of those elements was relied on as inconsistent with the complainant's evidence.

1. The trial judge gave a warning as required by s 294(2)(a) and (b). He also noted the disparate positions taken by the parties with respect to the inconsistencies. Noting that there was no full complaint to the authorities until January 2009, the trial judge also said that there had been complaints to three individuals, including the complainant's sister, the content of which were before the jury. He continued (summing up, p 9):

"The Crown basically say well it is broadly consistent, the defence say it is significantly inconsistent so it is up to you what you make of it but those are their respective positions and as you have only just been hearing about all that, I do not think I need to go into anymore about that."

1. On one view, it was open to the defence to contend that, by January 2009, when the complainant told her story to police, she had confused or added to the events of the evening in question. However, close attention to the supposed discrepancies might not have assisted the applicant. As noted above, the complainant's sister said that she had made an assumption about digital intercourse and the other complaints contained even less detail than the complaint to the sister. What might have cast doubt on the complainant's credibility was not the delay in complaining, but the inconsistencies between her complaints and her evidence. As to that, much was said in addresses and it was not the basis for a direction based on delay.

1. As with the previous ground, no request for further directions having been made, the terms of the proposed direction required to be identified. The terms of the complaints having been elicited by counsel for the defence, there must have been a careful strategic assessment of how far the issue should be taken with the jury. The discrepancies between the evidence of those to whom complaints had been made and the evidence of the complainant no doubt favoured the defence; on the other hand, the fact of three complaints, two to her school friends and one to her older sister, may well have strengthened her credibility. A significant proportion of the cross-examination by counsel for the defence was directed to the content of her complaints to her school friends and her sister. Further, significant emphasis was placed on the discrepancies in the evidence by counsel in addressing the jury. He submitted that the complainant was dishonest: Tcpt, 29/11/12, p 23(50) and p 28(47). He expressly dealt with and dismissed the prosecution's categorisation of the inconsistencies as "slight differences": p 28(5). In such circumstances, counsel may or may not have perceived merit in having the trial judge give a balanced direction to the jury with respect to such material. There was a real risk that such a direction would weaken the defence case. In these circumstances, the absence of a request for a further direction is understandable. Leave should not be granted to allow the ground of appeal.

Delay - forensic disadvantage to defence

1. In Longman v The Queen [1989] HCA 60; 168 CLR 79 at 91, the joint judgment of Brennan, Dawson and Toohey JJ stated:

"The fairness of the trial had necessarily been impaired by the long delay ... and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."

1. The applicant contended that this was such a case, although the delay was not of the same order. However, the applicant accepted that, the prosecution having been commenced after 1 January 2009, the relevant law was to be found in s 165B of the Evidence Act 1995 (NSW). That section reads:

165B Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section:

(a) delay includes delay between the alleged offence and its being reported, and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.

(7) For the purposes of this section, the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable.

1. The effect of this provision is:

(a) to prohibit the judge from directing the jury "about any forensic disadvantage the defendant may have suffered because of delay" otherwise than in accordance with the section (subs (5));

(b) there is a duty to warn, but only where the judge is satisfied that the defendant has "suffered a significant forensic disadvantage because of the consequences of delay" (subs (2));

(c) the obligation to warn is subject to a rider where there are "good reasons" for not taking that step (subs (3));

(d) the judge is prohibited from suggesting that it would be dangerous or unsafe to convict "solely because of" the delay or the disadvantage (subs (4));

(e) subject to the last prohibition, no particular form of words need be used (subs (4)).

1. Consistently with this scheme, the judge must identify the significant forensic disadvantage and must inform the jury of the nature of that disadvantage; the direction will therefore need to be case specific. In directing the jury of the "need" to take that disadvantage into account, it will usually be expected that a direction would identify, so far as it is not obvious, how the disadvantage may affect the jury's consideration of the evidence. This aspect of any direction will not be straightforward: the usual consequence of delay is the loss of evidence or the loss of opportunity to test evidence; each involves a counterfactual assumption.

1. Prior to the summing up, the trial judge outlined the general scope of the topics he proposed to cover. He specifically invited suggestion from counsel for the defence as to whether "anything should be said about delay": p 116(40). Counsel invited a direction on the basis that there had been "significant forensic disadvantage", namely, (1), "had there been an immediate complaint the complainant may have been taken to the hospital and vaginal swabs and the like taken"; and (2) "the accused has not been able to muster witnesses who would have matters fresh in their memory, because of the delay, the loss of time, memories fade ...".

1. The trial judge accepted the point about "medical examination" but sought detail as to evidence of loss of memory. In response, defence counsel noted that he had spoken to the applicant's daughter who was unable to pinpoint the precise evening and say whether the complainant had slept with her that night: p 117(40). On being pressed for other examples of disadvantage, counsel was unable to provide any and agreed that "that's as high as it goes": p 119(25). The trial judge indicated that he would be happy to assume that the daughter's position might have been different if the complainant "had gone to the police the next day" (p 119(45)-(50)) but declined to give a direction on the basis that, in the absence of any evidence, there was nothing specific to direct the jury about. Further, while accepting that the applicant had not been told of the precise charges or indeed any detail about the complaint, he had been on notice from October 2007 of allegations by the complainant of sexual assault, which were sufficiently distressing to cause him to be admitted for several days to the Richmond Clinic at Lismore. Subject to the debate about who initiated the phone call, he does not seem to have been in doubt that the complainant was directly threatening to go to the police in October 2007.

1. The trial judge did point out to the jury, in a neutral fashion (described by counsel for the applicant as "insipid") that there was "no relevant medical evidence" because there had been no contemporaneous complaint, but did not identify that as a significant forensic disadvantage to the applicant.

1. With respect to the inability of the applicant's daughter to identify the night in question, the written submissions for the applicant stated that the judge said "he would not give such a direction because police had spoken to the appellant in October 2007." It is correct that the judge put that in the course of argument to counsel for the applicant, but the reason he gave for not giving a direction was that "at the very least it seems to me that there'd have to [be] some evidence about that": pp 119-120. Counsel did not seek to call evidence, being content to rely on his statement that he had had a conference with the daughter (apparently shortly before the trial) and that she had no recollection of the events of the evening in question.

1. To assess the challenge to the trial judge's refusal to give the proposed form of direction, it is desirable to identify how the question should be approached. However, the operation of s 165B should not become encrusted with judicial exegesis of the kind surrounding the "Longman direction", which led to its enactment. Suffice it to say, there are a number of broad considerations which bear upon its application in the present case.

1. First, the proper focus of the section is on the disadvantage to the accused; it does not reflect any degree of prejudgment of the reliability of a complainant's evidence with respect to a sexual offence, aspects of which underlay certain observations in Longman: see Spigelman CJ in JJB v The Queen [2006] NSWCCA 126; 161 A Crim R 187 at [4]-[8].

1. Secondly, the concept of delay is relative and judgmental. Where both complainant and law enforcement authorities have acted with all reasonable expedition, it is not usually apt to describe any lapse of time as involving "delay". Delay is suggestive of hesitation or indecision of the complainant or inefficiency on the part of authorities. That is not to say it involves blameworthy conduct: quite significant lapses of time may be reasonable in the context of a child who is the victim of sexual assault. Whether that which is not unreasonable constitutes "delay" for the purposes of s 165B will depend upon particular circumstances.

1. Thirdly, although various factors may contribute to a delay, where a significant element is misconduct on the part of the accused, any resultant forensic disadvantage may not be characterised as a consequence of delay or, in the alternative, may provide a good reason for a judge not to give a direction, pursuant to the permissible exception in s 165B(3). In the present case, the complainant alleged that the applicant had said to her, "this is our little secret and if you tell anyone I'll kill myself": ERISP Tcpt, Q47. It is doubtful whether such a manipulative threat of self-harm, made by the father of a 12 year old girl's best friend, is any less deplorable than a threat of harm to the victim. If the trial judge had been satisfied that such a threat had been made (and it appeared to be corroborated by the documented circumstances of the applicant's admission to Richmond Clinic when he understood a charge might be laid against him, he then being suicidal) that would have provided a good reason not to treat the direction as required or, if the power were engaged, a good reason for not exercising it.

1. Fourthly, if the accused is put on notice of the complaint, any failure to make inquiry or investigation thereafter will not normally constitute a consequence of the delay, but a consequence of the accused's own inaction. The applicant complained that the trial judge took that into account, but he was wrong to do so. However, the circumstances of his admission to the Richmond Clinic in October 2007 were inconsistent with the position of a person told of a potential allegation for the first time or even after warning, where he knew the complaint was utterly false. If he had wanted further details from the complainant as to the time and place where the offence was said to have been committed, there was no evidence that such information would not have been provided, even if she declined to be interviewed. (At that time it seems the police knew few details.) Further, since he feared gaol, it would not have been unreasonable for him to seek legal advice at that time, as he did in March 2009, when the police had a basis to charge him. However, there was also no basis in the evidence for inferring that, if told of the general nature of the charge, he would have made inquiries at that time of his daughter.

1. In short, the assertion that the trial judge should have been satisfied that the applicant had suffered a significant forensic disadvantage as a consequence of delay, has not been made good. Even if it had been, there were good reasons why the trial judge would not have erred in declining to give a direction in the terms sought.

1. The operation of the relatively novel provision in s 165B warrants a grant of leave to appeal on this ground, pursuant to s 5(1)(b) of the Criminal Appeal Act. Nevertheless, an appeal based on that ground must be dismissed.

Jury access to complainant's evidence

1. Ground 1 asserted that the trial miscarried because the judge allowed the jury to have access to the video of the complainant's evidence (constituting her evidence in chief) in the jury room. That course was said to be inconsistent with the approach required by R v NZ [2005] NSWCCA 278; 63 NSWLR 628. The "balance of evidence" was disturbed in circumstances where the other evidence was available only in a paper transcript.

1. The error was compounded, the applicant submitted, by the failure to give the jury a warning at the time access was provided, pursuant to s 306X of the Criminal Procedure Act. That section states:

306X Warning to jury

If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.

1. Those two steps in combination were said to result in a miscarriage, in accordance with the reasoning of this Court in Galvin v R [2006] NSWCCA 66; 161 A Crim R 449 at [63]-[64] (Howie J).

1. The written submissions for the Director responded in the following terms:

(a) no objection was taken to the course adopted at trial, nor was a further direction sought; accordingly leave was required pursuant to r 4;

(b) the jury had in fact been warned on an earlier occasion in compliance with s 306X;

(c) when seeking access to the video, the jury also requested the transcripts of the complainant's evidence and that of Detective Scott, which incorporated the evidence of complaints made by the complainant to A and R, the likely purpose being to allow the jury to compare the alleged inconsistencies between the complaints and the complainant's evidence in chief and her cross-examination;

(d) the procedures set down in NZ were not mandatory; the jury was not merely given the video, but the entirety of the complainant's evidence in transcript; NZ did not prescribe a necessary consequence of a failure to give a warning at that stage; and

(e) any question of imbalance or unfairness is more likely to arise where an accused has given evidence, so that the jury has before it in visual form the evidence of the complainant, but not the contradicting evidence. The applicant did not give evidence; nor was there other evidence significantly contradicting the complainant.

1. At the outset of the oral argument, counsel for the applicant indicated that, having read the Director's submissions, he no longer pressed ground 1. On being questioned by the Court, he indicated that he would withdraw the ground in so far as it relied upon NZ, and based the argument upon the application of s 306X. The issue having been raised, however, it was appropriate for this Court to satisfy itself that there was no proper basis for granting leave under r 4.

1. The principal judgment in NZ was given by Howie and Johnson JJ, Wood CJ at CL and Hunt AJA agreeing. (Spigelman CJ dissented on the basis that allowing the video tape evidence to go to the jury in the jury room gave rise to a relevant imbalance and led to a miscarriage of justice.)

1. After a comprehensive review of the authorities in many English-speaking jurisdictions, the joint reasons stated that "to preserve the balance and the fairness of the trial, the videotape should not as a matter of course be sent to the jury room after the jury retires to consider its verdict": at [196]. Howie and Johnson JJ further opined that "the judge should give a warning to the jury as to the caution with which they are to approach the replaying of the videotape of the evidence in chief of a witness ... [B]ecause they are hearing the evidence ... repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case": at [208].

1. Nevertheless, the joint reasons made it clear that the Court "should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape": at [210]. Howie and Johnson JJ declined to adopt any inflexible position with respect to circumstances where a judge might allow the jury to have the tape replayed without any warning or reminder of cross-examination: at [211]-[212].

1. As already noted, the applicant's trial was relatively short and the evidence fell within two tranches. The first, being the evidence of the complainant and the second being the evidence of the hospital staff. The primary challenge to the complainant's evidence in cross-examination arose from the evidence of complaint tendered through Detective Senior Constable Scott. This material fell within a reasonably narrow compass. The only evidence called for the defence was that of the applicant's sister who, relevantly with respect to the complainant's evidence, spoke of two issues. The first was that, at the applicant's request, she had explained to his children (including the complainant's friend) that the applicant had had a vasectomy and could not have any more babies. This formed the basis for a suggestion that the complainant may have known that fact otherwise than because the applicant said she would not get pregnant when he ejaculated inside her. The second aspect of the evidence was that the applicant complained to his sister of impotency problems frequently in 2006. That evidence was relied on to cast doubt upon the claim that he had managed penile intercourse with the complainant.

1. As ground 1 was eventually argued, the focus was the failure to give a second warning pursuant to s 306X at the time the jury was provided with the video evidence. However, the warning having been given early in the trial, there was no realistic likelihood that the jury would draw an inference "adverse to the accused" because of the way the evidence was given: that had been adequately explained. The rest of the warning required by the section, namely that the evidence not be given "any greater or lesser weight" because of the way it was given would not in terms have addressed the question of balance. That issue was, however, expressly addressed by providing the whole of the transcript of the complainant's evidence and the transcript of Detective Scott's evidence. The jury were reminded to check anything they heard against the transcript in the event that there was any issue in their minds about any passage in the tape: Tcpt, summing up, 29/11/12, pp 23-24.

1. In the circumstances, counsel was correct to accept that ground 1 did not warrant a grant of leave in circumstances where the procedure had been accepted by counsel for the defence at trial and no further direction had been sought.

Challenge to sentence

1. The notice of appeal identified error with respect to the sentencing of the applicant as a failure to take into account "the mental condition of the applicant that prevailed at the time of the offence": ground 5. In the course of the hearing, the temporal limitation was removed. The mental state of the applicant at the time of the offending might be relied upon to reduce the importance of general deterrence in fixing a sentence; the continuing mental state of the applicant might demonstrate that the term of imprisonment would constitute more severe punishment for him than for a mentally robust offender.

1. Relying upon the reasoning of Sperling J in R v Hemsley [2004] NSWCCA 228, the applicant submitted that mental health considerations could result in (a) moderating the importance of general deterrence; (b) reducing the level of moral culpability and (c) increasing the hardship of incarceration.

1. Viewing the matter generally, reference was made during the sentencing hearing to the significant evidence of a psychiatric history involving treatment for depression since 2003 and admission to the Richmond Clinic following the death of the applicant's mother in 2006, after an attempted suicide.

1. Counsel recognised that, in the judgment on sentence, there was reference to "significant issues impacting upon the offender which will make time in custody somewhat harder than for persons not having those problems", which was identified as a basis for a finding of special circumstances, relevant to the relationship between the non-parole period and the total sentence. Since that factor was taken into account, appropriately, the challenge focused on the question of reduced moral culpability and the reduced significance of general deterrence.

1. This submission should be rejected for two reasons. First, the sentence was imposed, and reasons given, immediately following the hearing on 31 January 2013. The trial judge made several appreciative references in his reasons to the submissions of counsel for the applicant. In the course of the hearing, counsel tendered a medical report containing a psychiatric assessment by a Dr Pearson, which pre-dated the trial. The transcript records that the judge read the report when it was tendered: Tcpt, 31/01/13, p 8(30). Counsel then noted that the offences were "clearly serious" and called for a period of imprisonment "that reflects the need for general deterrence for these matters" and stated that he did not propose to make submissions in relation to those issues: p 8(32)-(35). Nevertheless, he identified the circumstances giving rise to the applicant's depression and mental health difficulties by reference to matters set out by Dr Pearson and in the recent pre-sentence report dated 22 January 2013. Accepting that the applicant "knew the nature and quality of his conduct" he nevertheless submitted that there can be "some level of general deterrence moderation for this matter": p 10(19). He submitted, further, that "because of the defendant's mental illnesses that the time that he spends in custody will be exacerbated": p 10(22).

1. Given that the sentences were imposed immediately following submissions by the parties, and given the submissions made as to the relevance of the mental health issues, there is no reason in principle to suppose that the submissions were not properly considered, because not expressly addressed in the reasons.

1. The second reason for rejecting the submission relates to an alternative basis for identifying that proper weight may not have been given to a specific mitigating factor, namely that the sentences actually imposed were outside an appropriate range. That was not the case with respect to the applicant. Counsel's submissions at the sentencing hearing addressed the JIRS statistics provided for the relevant offences. His submissions involved three elements: first, that the objective seriousness of the offending was below the mid-range. Secondly, that the middle or median terms for the more serious offences "appear to be periods of imprisonment of between five and six years in the non-parole and a period of nine to ten years in the head terms": p 11(3). Thirdly, he submitted that total concurrency was appropriate. Taking these matters into account, he submitted that an appropriate total sentence period would involve "a non parole of five to six years with head sentences somewhere in the vicinity of eight to ten years": p 11(20).

1. Neither party paid particular attention to the range for the lesser offences, (nor were they the focus of submissions on the appeal). At the sentencing counsel for the applicant sought to characterise them as "preparatory" and warranting "substantial if not total concurrency". To a large extent the prosecution's submissions supported the approach adopted on behalf of the applicant.

1. In the result, the sentencing judge imposed a non-parole period and balance of term precisely in line with the bottom of the range proposed by counsel for the applicant. All sentences were wholly concurrent. The proper conclusion is that the sentencing judge gave careful attention to the submissions of counsel for the applicant. Even had that not been the case, there was no basis for this Court to be satisfied that a less severe sentence was warranted in law: Criminal Appeal Act, s 6(3). The absence of merit in the application requires that leave to appeal against sentence be refused.

1. There is one further issue with respect to the sentences. Although the Director submitted that no error had been demonstrated by the challenge raised by the applicant, he noted that there was an error with respect to the imposition of fixed terms for the two lesser offences. Each involved an offence of aggravated indecent assault (dealt with at the sentencing hearing as arising under s 61M(1) of the Crimes Act) and carried a standard non-parole period of five years. Because the sentences were to be wholly absorbed within the non-parole periods for the more serious offences, it was practical to set fixed terms and, indeed, the prosecutor invited the sentencing judge to do that. However, to take that step is to decline to set a non-parole period, a power which is available under s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but not in respect of offences subject to a standard non-parole period. The Director further contended that the judge had erred in failing to give reasons for not fixing a non-parole period, contrary to the obligation in s 45(2). With respect to the latter complaint, the failure does not invalidate the sentence: s 45(4). The problem arising from the lack of power to decline to specify a non-parole period cannot be so simply disposed of.

1. This problem and the authorities addressing it were thoroughly reviewed by R A Hulme J in Collier v R [2012] NSWCCA 213; it has continued to arise in subsequent cases.

1. The difficulty was addressed by Johnson J (with whom McClellan CJ at CL and Grove J agreed) in Hristovski v R [2010] NSWCCA 129 (the appellant is referred to in the media neutral citation as Hristovksi). After noting that the problem was not so acute where another error had been identified warranting intervention by the court, Johnson J stated that "in the absence of a ground of appeal which is upheld by this Court, no basis exists to intervene and impose a fresh sentence on these counts": at [65]. He concluded that although the sentences were "contrary to the terms of the statute, the error ought not be treated as one affecting the validity of the sentence". Johnson J also noted that such an error may be corrected under s 43, which could allow the sentencing court to reopen the proceedings on its own initiative.

1. In the present case both of the fixed terms sentences have now expired (the longer sentence having been served by 29 May 2014) and there is no practical purpose in taking any further step with regard to those sentences.

Orders of the Court

1. The Court should make the following orders:

(1) With respect to the appeal against conviction, grant leave to appeal with respect to ground 3, but dismiss the appeal.

(2) Otherwise refuse leave to rely upon grounds 1, 2 and 4 pursuant to Criminal Appeal Rules, r 4.

(3) Refuse leave to appeal against sentence.

1. R A HULME J: I agree with Basten JA.

1. CAMPBELL J: I have had the benefit of reading the judgment of Basten JA in draft. Subject to two matters, I agree with his Honour's reasons.

1. The first matter concerns Ground 1 which his Honour deals with at [66] - [76]. Since NZ was decided, the High Court of Australia has dealt with jury access to pre-recorded evidence of a complainant in a trial for sexual offences in Gately v The Queen [2007] HCA 55; 232 CLR 208, an appeal from Queensland. The statutory provisions are not entirely the same, but what the Justices said about jury use of pre-recorded evidence depends upon "fundamental characteristics of Australian trial processes, particularly for the criminal trial" rather than on the precise content of the particular legislative scheme in question (at 235 [88] per Hayne J). The approach adopted by the High Court in that case is, in my judgment, somewhat more prescriptive than the approach adopted by this Court in NZ. As Basten JA has demonstrated at [71] - [73], the approach of Howie and Johnson JJ, agreed to by the other members of a five-judge bench, was that the Court "should not lay down any rule of practice or procedure".

1. In Gately Hayne J said (with the agreement of Gleeson CJ and Heydon J) (at [94] - [96]) that for reasons of the preservation of fairness and balance it would "[s]eldom ... be appropriate to meet a request [that the jury be reminded of the evidence] by giving the jury unrestrained access to the recording to play and replay". Such a request "should ordinarily be met by replaying the evidence in Court in the presence of the trial judge, counsel and the accused". And it may be necessary to remind the jury "of countervailing evidence or considerations relied upon by accused". His Honour concluded:

Seldom, if ever, will it be appropriate to allow the jury unsupervised access to the record of that evidence.

With respect, this approach now ought to be the practice adopted in New South Wales.

1. This conclusion involves a decision that allowing the jury unsupervised access to the video of the complainant's evidence was an irregularity. I acknowledge that counsel for the applicant withdrew Ground 1 so far as it relied upon giving the jury unsupervised access to the DVD of the complainant's evidence. Notwithstanding what I regard as an irregularity, for the reasons expressed by Basten JA at [74] - [76], I am of the view that no miscarriage - let alone a substantial miscarriage - of justice has actually occurred.

1. The second matter concerns the sentence appeal. With respect, I agree entirely with what Basten JA has written. However, notwithstanding the extempore nature of the learned judge's reasons for sentence, obviously it would have been better if the relevance of the mental health issues as perceived by his Honour had been spelt out even briefly in his reasons. In the end, the reasons expressed, and only those, are taken to disclose the whole of the reasoning process that led to the decision. However, for the reasons given Basten JA, I am not satisfied that a less severe sentence is warranted in law.

1. I agree with the orders proposed by Basten JA.

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Amendments

06 February 2015 - [46] Amending "he" to "she".

[55] Adding "and" before "(2)".

[58] Adding "[be]" in quote.

[69] Adding "and" and end of (d).

[72] Replacing "They" with "Howie and Johnson JJ" and adding "[B]" in quote.

[73] Replacing "They" with "Howie and Johnson JJ".

Decision last updated: 06 February 2015