JJT v Regina

[2006] NSWCCA 283

Reported Decision: 67 NSWLR 152

New South Wales

Court of Criminal Appeal

CITATION:	JJT v REGINA [2006] NSWCCA 283
HEARING DATE(S):	1 June 2006
JUDGMENT DATE:	11 September 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 91; Simpson J at 92
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – PETITION UNDER S 474B OF THE CRIMES ACT – indecent assault – fresh evidence – whether a miscarriage of justice in light of fresh evidence– whether verdict unreasonable in light of fresh evidence – credit of witness – credit of complainant – directions on use of the complaint – inconsistencies in evidence –whether jury misdirected as to right to silence – direction appropriate in law at time of trial – direction subsequently ruled inappropriate – whether court could consider this ground – application of principles in Mallard
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 (NSW)
CASES CITED:	Azzopardi v the Queen (2001) 205 CLR 50 Gilbert v The Queen (2000) 201 CLR 414 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 Mallard v The Queen (2005) 80 ALJR 160 McKinney v The Queen (1991) 171 CLR 468 MFA v The Queen (2002) 213 CLR 606 R v Barlow (1997) 188 CLR R v Boisnier (unreported, NSWCCA, 17/2/1994) R v Chard [1984] AC 279 R v ED [2003] NSWCCA 255 R v Gregory [2002] NSWCCA 199 R v Habib [2005] NSWCCA 223 R v Heuston (2003) 140 A Crim R 422 R v JJT 3 December 1997, unreported NSWCCA R v Kanaan [2005] NSWCCA 385 R v Khaddour [2005] NSWCCA 303 R v Murray (1987) 11 NSWLR 12 R v Taulu (unreported, NSWCCA, 30/10/1994) R v Unger [1977] 2 NSWLR 990 R v Wakeley [1994] 2 Qd R 196 RPS v The Queen (2000) 199 CLR 620 Weissensteiner v The Queen (1993) 178 CLR 217 Wilson v The Queen (1991-1992) 174 CLR 313
PARTIES:	JJT (Appl) The Crown
FILE NUMBER(S):	CCA 2005/1003
COUNSEL:	R J Button SC (Appl) W Dawe QC/J A Girdham (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	96/21/3039
LOWER COURT JUDICIAL OFFICER:	Craigie DCJ
LOWER COURT DATE OF DECISION:	18 April 1997

2005/1003

McCLELLAN CJ at CL
JAMES J
SIMPSON J

MONDAY 11 SEPTEMBER 2006

JJT v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was tried before his Honour Judge Craigie QC and a jury on four counts alleging indecent assault of his niece, S. The appellant was convicted of the second count but acquitted of the first, third and fourth counts. He was sentenced to a term of imprisonment which has long since been served.

2 A petition, dated 25 March 2004 was presented by the appellant pursuant to s 474B of the Crimes Act. The Attorney-General, having considered the petition, referred the matter to this Court pursuant to s 474C of the Act to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). An application was considered by the Court in relation to the procedure to be adopted on the appeal. It was determined that this Court should itself receive any necessary evidence and proceed to determine the matter.

3 The trial of the appellant took place in 1995 when the complainant was aged fifteen years. She gave evidence of a number of indecent acts allegedly committed against her by the appellant.

4 Count 1 alleged that the appellant touched the complainant’s breast at a barbecue in 1993. Count 2 alleged that, on or about the evening of 2 June 1995 the appellant put his hand down her pants and placed it on her vagina. Count 3 alleged that, immediately afterwards, the appellant bit the complainant on her breast. Count 4 alleged that, early the next morning, the appellant again handled her breast.

5 The daughter of the appellant, KT, was present when the acts upon which counts 2 and 3 were based were allegedly committed. The three of them were in a room together watching television. In 1995 KT was aged twelve years.

6 KT gave evidence at the trial. It will be necessary to consider that evidence in some detail. In a general sense and in some particular respects her evidence supported the complainant in relation to counts 2 and 3. However, KT has since stated that the evidence she gave at the trial was false and, although she was present in the room, she did not observe the alleged assaults. It was because of this change in her evidence that the petition was lodged leading to this appeal.

7 Following his conviction the appellant appealed to the Court of Criminal Appeal. There were two grounds of appeal. The first ground was that the verdict in respect of count 2 was inconsistent with the verdict in respect of count 3. That ground was rejected by the Court (see R v JJT 3 December 1997, unreported NSWCCA). In the course of his reasons, Gleeson CJ noted that the jury had been given careful warnings about the danger of convicting on the basis of uncorroborated evidence. In relation to counts 1 and 4 the evidence of the complainant was uncorroborated. However, as I have indicated, in relation to counts 2 and 3 the evidence of the complainant was, in some respects, corroborated by the evidence of KT. The Chief Justice also drew attention to the fact that on the day following the incidents the subject of counts 2 and 3, the complainant made a complaint to a police officer saying that “last night (the appellant) undid my bra and put his hands down my pants.” However, no complaint was made to the police officer about any biting of her breast.

8 Gleeson CJ found that there was a proper way by which the court could reconcile the verdicts on counts 2 and 3. His Honour identified the fact that there were strong directions and warnings given by the trial judge in relation to the care which needed to be taken before convicting the appellant in the circumstances of the case. His Honour also drew attention to the circumstance to which I have referred that the complaint made to the police officer on the day following the alleged events made no reference to the alleged biting of her breast, but squarely raised the allegation in relation to the matter the subject of count 2. There was also a difficulty with the evidence KT gave about the breast biting incident at the trial and evidence she gave at the committal proceedings. At the committal she was asked whether she saw the appellant bite the breast of N. This was a mistaken reference to the complainant. However, this was not explained to the jury and accordingly Gleeson CJ indicated that they may have been left wondering about the quality of KT’s evidence in relation to count 3.

9 The second ground of appeal complained about the manner in which the trial judge directed the jury concerning the fact that the appellant had not given evidence in his defence. The Chief Justice dealt with this matter by reference to the principles laid down by the High Court in Weissensteiner v The Queen (1993) 178 CLR 217 and rejected the submission. One question sought to be argued in the present appeal is that the trial miscarried having regard to the later statements on this matter by the High Court in RPS v The Queen (2000) 199 CLR 620 and Azzopardi v the Queen (2001) 205 CLR 50.

The present appeal

10 Two grounds of appeal were advanced in the present appeal. Firstly, it was submitted that there has been a miscarriage of justice having regard to the evidence which is now available in particular, although not exclusively, the fresh evidence of KT. Secondly, it was submitted that his Honour misdirected the jury in relation to the failure of the appellant to give evidence at his trial.

The evidence of the complainant at trial

11 The complainant said that she was assaulted at her home on the night before she was due to travel with KT, her mother, the appellant and a number of others on an overseas trip to participate in gymnastic competitions. The appellant and KT were staying the night at the complainant’s house. The complainant was in the family room lying on the lounge and the appellant was sitting on the chair next to her. The complainant was sitting directly opposite KT who was also in the room. The complainant said she was watching TV while packing her clothes and other things to take on the trip. The complainant’s father had gone to bed and her mother, who was separated from her father, was not present.

12 The complainant said she was scratching her back when her uncle lent over and starting scratching it. She said she told him to stop but he proceeded to undo her bra. She said when her bra strap was undone she was shocked and sat up. She said that the appellant said to her “I won’t tell if you don’t tell.” She continued to hold her bra against her chest but was unable to resecure its fastening.

13 While the complainant was holding her bra to her chest she said the appellant put his hand down her tracksuit pants. The following exchange occurred with counsel:

“Q. And what happened after he touched your vagina?
A. He just left it there.
Q. Did you try to move or did you stay where you were?
A. Yes, I got onto the floor somehow.
Q. And did he still have hold of you?
A. Yes.
Q. How did he have hold you?
A. By my vagina.
Q. And what happened after that?
A. Somehow he let go and I got ready, I got my stuff and hopped back on the lounge.
Q. And where was KT?
A. She was sitting opposite still.
Q. When you say he had hold of your vagina, did he do anything else to your vagina with his hand or did he just have hold of it?
A. He just had hold of it.
Q. And when he had hold of it in the way you have described did you say anything?
A. Yes, I was telling him to stop it.
Q. Can you remember whether you said that once or more than once?
…
Q. Did he say anything to you?
A. He thought it was a joke.
Q. What made you think that he thought that?
A. Because he was smiling and laughing.
Q. When he took a hold of you in that way were you doing anything to try and get away?
A. Yes, I was kicking.
Q. How long were you kicking for?
A. I can’t remember.
Q. And as you were kicking did you say anything else to him?
A. I said ‘What did I do’.
Q. And was it then that he let go of you.
A. I can’t remember.”

14 She said that almost immediately following this incident the appellant grabbed her. She was asked:

“Q. What part of your body did he touch or grab you by?
A. He put his arm around my throat again.
Q. And did he touch you anywhere else?
A. Yes he bit my tit.
Q. Can you just describe how he did that please?
A. He pulled my T-shirt down so it was showing and then he placed his mouth over it.
Q. And when you say your tit, you’re talking about a nipple on your breast.
A. Yes.
Q. Can you remember which breast?
A. No.
Q. And did you feel anything when he did that?
A. Yes.
Q. Can you tell us what it felt?
A. A sharp pain.
Q. Did you say anything to him?
A. I can’t remember, I started crying.
Q. And can you tell us whether your bra strap was still undone or done up when you were bitten in that way?
A. It was undone.
Q. And where was KT your cousin when that happened?
A. She was still sitting across.
Q. And what did you do after that?
A. I went up to my room.”

15 The following morning the complainant and the others were driven to the airport in a bus driven by Constable Eades, a member of the New South Wales police, who was involved in youth work and known to the complainant. She gave evidence of reporting the event to Const Eades at Mascot Airport. Her evidence was as follows:

“CROWN PROSECUTOR: Q. [S], you were telling us before we adjourned for lunch that on 2 July, the Sunday, when you were about to travel out of Australia you had a conversation with Const Eades at Mascot Airport?
A. Yes.
Q. Can you tell us what it was that you said to him and what he said to you, as if you were talking now, as if you were having the conversation right now?
A. Yes, he asked me was I looking forward to going away and I said, ‘No’. And he asked me ‘Why?’ and I said, ‘Because of John.’ And he said, ‘What happened?’ and I said, ‘He undid my bra and put his hands down my pants.”

16 This account of the conversation is the same as that appearing in Const Eades statement. The complainant also gave evidence that when she was in Los Angeles with the touring party on 4 July she spoke with the appellant. She said that the appellant said to her “If I say anything he’ll kill me.” She said he spoke in a mean voice and was “kind of angry.”

17 The complainant said that she had tried to speak about the incidents to her mother when they were overseas but was unable to do so until about 13 or 14 July when they had arrived in Germany.

18 On returning to Australia the complainant said that she spoke to a police officer on 28 July at the police citizens youth club. She said that she told the police officer “that John ripped my bra off and put his hands down my pants.” She thereafter made complaint to the police at the police station.

19 When cross-examined the complainant was asked what she did when the appellant put his hand on her vagina. She said “I kicked.” She was asked:

“Q. Did you scream?
A. Yes.
Q. What did you scream?
A. Stop it.
Q. How many times?
A. I am not sure.
Q. Did you scream it loud?
A. Yes.
Q. Very loud?
A. Yes.
Q. Your father was up stairs this whole time?
A. Yes.
Q. I think you said you kicked him?
A. Yes.
Q. Did he stop eventually?
A. Eventually, yeah.”

20 The complainant was challenged with respect to her alleged dislike of the appellant. The following exchange occurred:

“Q. You’re aware aren’t you S, that in May or June 1995 your uncle made a complaint about you to the police?
A. Am I aware of it? I knew about it yeah.
Q. You told him didn’t you the police will never believe anything you say, didn’t’ you?
A. No.
Q. Since that time you have hated him, haven’t you?
A. No.
Q You haven’t hated him since that time?
A. Since May last year.
Q. 1995.
A. I haven’t hated him.”

21 The complainant also denied that she blamed the appellant for breaking up her parents’ marriage.

The evidence of KT at the trial

22 KT was 12 at the time of the alleged events and aged 13 when she gave evidence at the trial. She said that she was sitting on the floor in the family room and the complainant was sitting on the double lounge with her father on the single lounge next to the complainant. She said that the complainant was lying on her stomach on the lounge when the complainant scratched her back. She was asked:

“Q. You saw her scratch her back?
A. Yes.
Q. So you weren’t looking at your key ring at that point were you?
A. No.
Q. Then what did you see?
A. [The complainant] sat up and my Dad put his hand to the front of her bra and bit her on the breast.”

23 Later she was asked:

“Q. Did she [meaning the complainant] say anything?
A. Not that I can remember.
Q. Then what happened?
A. Then she sat up and then my Dad took his hand out and then he put his hand to the front of her T-shirt and bit her on the breast.”

24 The following exchange took place:

“Q. Then your Dad leaned over?
A. Yes and bit my cousin on the breast.
Q. Did he pull down her T-shirt?
A. I don’t know.
Q. Was [the complainant] wearing a T-shirt?
A. Yes.
Q. Did he bite the outside of her T-shirt?
A. Not the outside, no.
Q. Did you see her breast?
A. No.
Q. Did you see him bite her breast?
A. Yes.”

25 The exchange with counsel continued and she was asked:

“Q. Then what happened?
A. Then after that happened, then he stuck his hand down my cousin’s pants.
Q. So he bit your cousin on the breast?
A. Yes.
Q. Did your cousin scream?
A. She said ‘Stop it.’
Q. Did she say that more than once?
A. Yes.
Q. How many times?
A. About twice.
Q. You heard her say that?
A. Yes.
Q. Did your Dad stop?
A. No.
Q. But he only bit her on the breast once right?
A. Yes.
Q. After he bit her on the breast what did the complainant do?
A. Nothing.
Q. She just stayed there?
A. Yes.
Q. Did she stay there with her legs in the same position pushed up?
A. No she pushed her legs down, so then the bottom of her feet could touch the floor.
Q. So at that point her feet were on the floor?
A. Yes.
Q. What do you say your father did then?
A. Stuck his hand down her pants.
Q. Which hand?
A. His left hand.”

26 She ultimately indicated that the appellant put his left hand down the complainant’s pants while holding her hands together with his right hand. She said that shortly after this the complainant ran upstairs crying.

27 She was also asked about an incident which occurred that evening when the complainant had a key ring stuck on her finger. The appellant helped her to remove it but it hurt and the complainant cried.

28 There are some problems in reconciling KT’s evidence at the trial with the evidence of the complainant. The most significant problem comes from the fact that the complainant said that the sequence of events involved the appellant putting his hand down her pants before biting her on the breast. However, KT gave evidence that the biting on the breast occurred before the hand was placed down the pants.

29 There was one further and to my mind significant difficulty with KT’s evidence at the trial. Evidence was given that upon returning from overseas she was interviewed by the police and on 5 September 1995 told Const Lister that she had not seen anything on the night in question. This was, of course, directly contrary to the evidence she later gave at the trial.

The evidence of Const Eades at the trial

30 Const Eades gave evidence in which he indicated that he had known the complainant for about three years through a local youth club. He used to be a volunteer working at the club and said that he would often see the complainant and speak with her when he visited the club premises. He was the driver of the bus which took the touring party to the airport on 2 July 1995. He said that once he had unloaded the bus he and the complainant were walking around the terminal looking at duty free shops. They then went and sat down and the constable said “Are you looking forward to going away.” The complainant replied “No.” The constable said “Why?” to which the complainant replied “because of John.” The constable said “What happened?” The complainant said “Last night John undid my bra and put his hands down my pants.”

31 Constable Eades was not cross-examined and his evidence was not contradicted. However, given that the conversation was allegedly a private exchange between SD and Const Eades this would have no significance.

The directions given by the trial judge

32 The trial judge emphasised to the jury that the appellant had pleaded not guilty and the Crown was accordingly required to prove each element of the allegations against him. The judge said:

“The accused is entitled to say nothing at all in his defence and still to ask you to find that some elements or some elements in the Crown case have not been proved beyond reasonable doubt.
That is what he has done in this case and the fact that he has placed no material before you does not constitute any kind of admission of guilt. On the other hand, he has not denied or sought to explain any particular piece of evidence in the prosecution case and it is proper to have in mind that it is usually easier to accept uncontradicted evidence than evidence which is actively disputed.
Whether that is so in this case is for you and for you alone to consider. You must decide the case on the evidence that has been given.”

33 His Honour addressed the jury in relation to the evidence given in the Crown case. He stated that:

“The vital evidence of the Crown is that of [the complainant] and to some extent that of Ms KT.”

34 Having reminded the jury that people sometimes lie or tell fibs his Honour said:

“As a matter of common sense ladies and gentlemen you should be very careful in your task. It is dangerous to convict anyone on the uncorroborated, independently unsupported evidence of any person of tender years, and you may like to consider that mostly in connection with the first and fourth counts in the indictment. So it can be dangerous to convict anyone on uncorroborated, independently unsupported evidence of any person of tender years.”

35 His Honour later said “You should therefore scrutinise the evidence very carefully” emphasising that obligation on more than one occasion.

36 His Honour dealt with the matter of complaint saying:

“One other matter I should say to you, that in evaluating the reliability of the evidence of a child who says that she has been sexually assaulted, you can take into account her conduct in complaining or in failing to complain at the earliest opportunity about what she says the accused did to her. You may consider that the evidence of the complainant … that she has been consistent over a period as to what she says the accused did to her. You may well consider that the actions of the child in raising the complaint is a matter which reflects favourably on her credit as a witness.”

37 His Honour then reminded the jury of the evidence of the statements made by the complainant to Const Eades at the airport.

38 Finally his Honour summarised the Crown case saying that:

“What simply is being said by the Crown is that you would accept [the complainant] in her evidence and you will be reinforced in that acceptance in respect of the second and third counts, by virtue of the evidence given by KT. There is, the Crown says, some discrepancy which may be explained by the youth and other factors to which he’s adverted. In the case of [KT] the inability to see the statement that she had made more immediately after the events she saw and yet there seems to be no real explanation as to why she would want to be concocting this story or going in collusion with [the complainant] to give evidence against her father and uncle respectively.
And the Crown says that you would be comforted in coming to the conclusion that their evidence is acceptable in the material particulars which underlie the Crown case, because you have heard nothing from the accused and I hasten to warn you, as I did earlier, merely because the accused did not give evidence or present any material whatsoever in his case, does not necessarily allow you to draw any adverse inference from that whatsoever. It is the Crown’s duty from start to finish to satisfy you of the guilt of the accused beyond reasonable doubt.”

39 With respect to the case for the appellant the trial judge said that the appellant submitted that the jury could not be satisfied beyond reasonable doubt:

“Because of the quality of the evidence, particularly of [the complainant] and it is in no way supported, he says, by the evidence of [KT], because [KT] turned out to be quite inconsistent in a number of areas about matters of considerable importance.”

Evidence for the appellant on the appeal

40 On the hearing of this appeal the appellant gave evidence. He did not do this at the trial. He denied assaulting the complainant:

“Q. Is it the case that that evening you placed your hand on the vagina of your niece, [S]?
A. No, I did not.
Q. What, in a general sense, were you, [K] and [S] doing in that room at around that time?
A. Just talking and watching television.
Q. Did anything of great note happen that evening at that time, to your recollection?
A. All I can remember is [S] got a key ring stuck on her finger and I pulled it off her finger and made her cry.”

41 In cross-examination the following exchange occurred:

“CROWN PROSECUTOR: I put it to you that on the night, either the night of 1 July 1995 or the early morning of the second, that you indeed did put your hand down the pants of [the complainant] and place it on her vagina?
A. I did not.

Q. You say that [the complainant] cried in your presence on that night?
A. Yes, that is right.

Q. What were the circumstances of that?
A. She had a key ring stuck on her finger and she could not get it off and when I got it off I made her cry.

Q. You recall the children going to bed, that is [the complainant] and your daughter going to bed that night?
A. Vaguely.

Q. Can you give any indication as to how long before they went to bed that this incident, you say, of pulling the key ring from [the complainant’s] finger and making her cry occurred?
A. I cannot remember now.

Q. Are you able to recall whether or not [the complainant] remained in the room after you had removed the key ring from her finger?
A. I think she did.

Q. Were you sitting on a lounge chair at that time?
A. Yes.

Q. Where was [the complainant]?
A. I think she was standing in front of me.

Q. At the time you pulled the ring from her finger you say?
A. Yes.

Q. Where had she been when she first indicated that she had the ring stuck on her finger?
A. Sitting on the lounge.

Q. Was she sitting on the lounge next to you, or was it a different chair, what was the situation?
A. A different chair altogether.

Q. And how far away from you was she?
A. Probably a metre, a metre and a half.

Q. Did you have any bodily contact with [the complainant] other than pulling the key ring from her finger?
A. No.

Q. I put it to you that you did and, indeed, you did place your hand down the front of the girl's trousers?
A. No, I did not.

Q. When you say you did not say anything to [the complainant] about killing her when you were on your trip, do you recall any conversations between yourself and [the complainant] in America or in Europe relating to the night before you left home?
A. No.”

42 KT also gave evidence on the appeal. She said that the evidence she had given at the committal where she said she observed the appellant put his hand down the complainant’s pants was not true. She had no recollection of giving evidence at the trial. Her evidence on the appeal was that she did not see the appellant assault the complainant.

43 When asked why she had given contrary evidence on the earlier occasions she said she was influenced by those around her:

“Q. Can you explain to us how it was in September 1995 you were saying you didn’t see anything, but in November 1995 you were telling the police you did see these things?
A. I was, like - wherever I was to go, like, if I was to go with my cousin or my aunty or someone, all they would talk about was the incident with my dad and by them always talking to me, made me believe that it did happen, but I didn’t actually see it happen.

Q. When you say that you believe that it did happen, when you were speaking to Police Officer Davey, were you deliberately lying to him - do you understand what I mean by that? Were you deliberately saying something that you knew was not true, or did you believe it was true?
A. I was lying.

Q. Just to be clear about it: when you spoke to him, did you believe that these things had happened, or did you believe that these things had not happened?
A. I didn’t believe that it happened.

Q. You said a moment ago words to the effect that wherever you went it was being discussed, and I think you said, by your cousin or by your aunt. By your cousin, did you mean [the complainant]?
A. Yes.
Q. And by your aunt, did you mean her mother, [SD]?
A. Yes.”

44 KT said in her oral evidence that she had not had contact with her father from the time of the alleged assault until she had made a statement to a solicitor. She also said that she had first contacted her mother and asked for her assistance in making a statement and that she understood her mother had contacted her father. Assistance was ultimately provided by Ms R, a neighbour of the appellant. KT said that once she had made the statement she took it to her father and said to him “Read this, do what you want to do with it.”

45 KT’s evidence as to the sequence of events was contrary to the sequence she had related to a policeman who took a statement from her. In that statement she says that she first approached her father in July 2003 and “told him that I was sorry for making the statement to the police.” She said that her father “just looked at me and smiled, I just walked away.” She then says that it was later that she spoke to her father’s neighbour Ms R and arrangements were made for a statement to be made to a solicitor. The statement contains no reference to speaking with her mother.

46 The appellant also tendered the statement of DH, a friend of KT and the complainant, made in December 2004. DH was not called to give evidence. DH gave evidence that she had never heard the complainant state that she sent her uncle to gaol for something he did not do. DH also recalled the complainant telling her that her [the complainant’s] mother offered KT money to testify in court against her father. Both the complainant and her mother denied this allegation.

Evidence for the Crown

47 The Crown called the complainant to give evidence. She confirmed that the assault occurred although she had little if any recollection of most of the surrounding events. This is not surprising. The events occurred approximately 11 years ago when she was aged 15. Since then she has suffered significant physical illness as well as depression. She has been through a period of years when she apparently ate gravel and has been on medication for pain following a major intestinal operation. She has also been addicted to pethidine for which she has undergone rapid detoxification using naltrexone.

48 The complainant’s mother, SD, gave evidence for the Crown. In her statement she denies that she told KT to make a complaint or coached her in the evidence she should give. She said that KT and the complainant remained friends after the overseas trip which was contrary to the evidence which KT now gives.

49 The Crown also tendered two statements made by Ms R, the current neighbour of the appellant. She stated that sometime in 2003 she was told by the appellant that his daughter wished to make a statement. She did not discuss the nature of the statement with KT, but took her to the solicitor and paid the solicitor’s fee.

50 The Crown tendered the statements of two police officers, Det Sgt Davey and Sgt Lister. Det Sgt Davey was the officer who took KT’s statement in November 1995, and states that he recalls nothing unusual about her demeanour. Sgt Lister was the officer in charge and recalled that KT was “not distressed’ in giving her account. Neither officer was called to give evidence.

How to approach the present appeal

51 Section 6(1) of the Criminal Appeal Act is in the following terms:

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

52 The proper application of the section has, at times, proved troublesome but was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. In R v Habib [2005] NSWCCA 223 I said of these decisions:

“There are two joint judgments in MFA. Gleeson CJ, Hayne and Callinan JJ state that when the issue is whether the verdict of a jury is unreasonable or cannot be supported the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’


As the High Court emphasised in Chamberlain v The Queen(No 2) (1984) 153 CLR 521 it is important to appreciate that the role of the Court of Appeal is to decide a question of fact. "It is supervising or reviewing the findings of a tribunal of fact" (see Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643; R v R (1989) 18 NSWLR 74).

In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36].

In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict.

Embracing the test adopted by the majority of the court in M the joint judgment stated:

‘Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' [55].

The joint judgment offered the following by way of guidance:

‘The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].

In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].

53 A question arises as to the approach which this Court should take both to evidentiary matters, but more significantly the applicable law in the determination of this appeal being, of course, initiated by a petition pursuant to s 474B.

54 The role of this Court when considering an appeal initiated by the Minister by a referral pursuant to s 474C(1)(b) was considered by the High Court in Mallard v The Queen (2005) 80 ALJR 160. In that case Gummow, Hayne, Callinan and Heydon JJ adopted the approach which had been taken to similar legislation by the House of Lords in R v Chard [1984] AC 279 where it was indicated that “since it is the ‘whole case’ that is referred, this must include all questions of fact and law involved in it.” (emphasis added) at 291.

55 Their Honours described the approach which must be taken in these terms at 164-5:

“…. Subject only to what we will say later about the words ‘as if it were an appeal’ which appear in s 140(1)(a) of the Act, the explicit reference to ‘the whole case’ conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words ‘the whole case’ embrace the whole of the evidence properly admissible, whether ‘new’, ‘fresh’ or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words ‘as it if were an appeal’ are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.
This construction of Pt 19 of the Act is consistent with the approach of Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg v The Queen (1989) 167 CLR 259 at 312:
‘The words of s 21(a) of the Code, so far as they require ‘the whole case … [to] be heard and determined’, permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorise the exclusion of issues which are frivolous or vexatious: Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335; Metropolitan Bank v Pooley (1885) 10 App Cas 210. However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented.’ ”

56 To my mind faithful application of these principles requires this Court to determine whether, having regard to the evidence received at the trial, together with the evidence admitted in this appeal, the verdict of the jury cannot be supported. That determination is made complex by three matters: the evidence admitted on the appeal which was not before the jury; the significant lapse of time since the events allegedly occurred; and the current law with respect to the appropriate directions to be given to the jury in the event that the accused does not give evidence at the trial.

57 The appellant submitted that there are two critical matters arising from the evidence admitted on the appeal. Firstly, the appellant has now given evidence denying the assault, which is evidence which was not available to the jury at the trial. For my part I do not find his evidence of significant utility. Although the appellant denied the assault he was not asked to explain in any detail the relevant sequence of events and I find myself unable to form any view as to whether the evidence which he gave should be accepted. His evidence could be appropriately described as a ritualistic denial of the allegations.

58 More significantly, the appellant accepts that the Court is now faced with irreconcilable conflict between the evidence of KT given at the trial and her evidence on the appeal. It is submitted that the consequence must be that the court could not assign any weight to her evidence either in support of the Crown case or the appellant. Furthermore, it is submitted that the conflicting evidence as to how she came to make the statement in 2003 seriously undermines her credit.

59 The inconsistency identified relates, inter alia, to the number of occasions on which she spoke to her father regarding her evidence at the trial, before she made her statement retracting that evidence. The issue was explored in cross-examination of KT in this appeal. The following exchange occurred:

“Q. In July of 2003, did you have some conversation with your father about the incident about which you had given evidence before you went to the solicitor and made the statement?
A. No.
Q. So was it after 11 July when you went to the solicitor that you had a conversation with your father?
A. Yes.
Q. How many conversations did you have with your father about changing your story?
A. I have never had a conversation about changing my story with my dad.
Q. Never?
A. No.
Q. Did you ever have a conversation with your father about the fact that you had lied?
A. No.
Q. Never?
A. No.”

60 In the statement which she made to the police in September 2004 she said that she had first spoken with her father to say that she was sorry that she had made the statement to the police in 1995. She said that she later spoke to her father’s neighbour, Mrs R and arrangements were made for her to see a solicitor and make a further statement. She later gave her father an envelope containing the fresh statement.

61 When cross-examined about the sequence of events KT suggested that she had only spoken to her father after she had made the statement to the solicitor and gave him a copy and it was on that occasion that she told her father she was sorry.

62 After careful consideration I have come to the view that this submission must be accepted. The evidence given in this Court by KT that she did not speak with her father before making the statement could be explained by her desire to ensure that this Court did not conclude that she had changed her story merely to help her father. However, if KT had that concern, it is a concern which would have existed in 2003 making it likely that she would not at that time have disclosed a sequence of events from which it could be suggested that she was encouraged to make a statement by her father. Whether or not the explanation for that contradiction is benign I find myself unable to determine whether her 1996 or 2006 version of the relevant events should be accepted. To my mind this appeal must be determined on the basis that KT could not give evidence which supported either the Crown case or the appellant.

63 There are also some difficulties in relation to the evidence given by the complainant on the appeal. Although she confirmed that the appellant put his hand down her pants and touched her vagina she said that she cannot now remember virtually any other detail of the relevant events. She was extremely agitated when giving her evidence and broke down on more than one occasion. As I have previously mentioned she has, in recent years, suffered serious physical and psychological problems and is constantly medicated with pain killers and anti-depressant drugs. Her evidence on the appeal adds nothing, either of benefit to the Crown or the appellant, to the evidence she gave at the trial.

64 The other evidence tendered on the appeal is not of any significance in the resolution of the appeal. The consequence is that the appeal must be determined having regard to the evidence at the trial but without the evidence of KT.

65 As I have related the appellant stood trial on four counts. He was only convicted on the second. The question of whether the conviction on that count was incompatible with the acquittal on count 3 was considered and resolved by this Court in the earlier appeal. As I have indicated Gleeson CJ found three reasons which could explain the jury’s verdict – the strong directions and warnings given by the judge, the fact that the complaint made the next day by the complainant to the police officer did not refer to the breast biting incident, and problems with KT’s evidence in relation to the breast biting incident.

66 With respect, the latter two reasons are to my mind the more compelling. The directions and warnings were common to all the counts but the appellant was convicted of one but not the other three. With respect to KT’s evidence in relation to the breast biting incident there were problems apart from that referred to by the Chief Justice. The sequence of the events which KT reported was contrary to that stated by the complainant and she was confused as to whether the breast was uncovered or the bite occurred through clothing. In my opinion, such evidence would have been of little assistance to the jury. Her evidence in relation to the appellant touching the complainant’s vagina was also brief and lacked any detail. Certainly it must be remembered that it was evidence given by a thirteen year old of events she had observed the previous year and was inherently unlikely to be lengthy or detailed. However, for my part it was not convincing.

67 There was a further and major difficulty with KT’s evidence at the trial. As I previously mentioned when the sporting group returned from overseas and complaint was made to the police, KT was interviewed. She denied seeing anything by way of an assault upon the complainant on the relevant night.

68 Having regard to all of these matters I have concluded that the jury could only have placed minimal if any weight in KT’s evidence. It had little if any evidentiary weight in the Crown case.

69 It must not be overlooked that not only was the appellant acquitted on count 3 he was also acquitted on counts 1 and 4. The distinguishing feature is that no contemporaneous complaint was made except in relation to count 2.

70 In the final analysis this Court now has the evidence of the complainant at the trial which was accepted by the jury in relation to count 2. The jury made its finding notwithstanding the firm warnings given by the trial judge. Although her evidence was criticised at the trial and some aspects of it are criticised on the appeal, in my opinion, it should be accepted. It is said that the conjunction of the appellant and complainant on the couch and chair make the reported sequence of events difficult if not impossible to accept. Although the complainant’s account that she ended up on the floor with the appellant still holding her by the vagina requires careful consideration, I do not believe the precise sequence of events to be determinative in this case. I can accept that the complainant’s recollection of the precise sequence and physical detail of the events may be confused. However, to my mind the central allegation that the appellant put his hand down her pants and placed it on her vagina has not been disturbed.

71 As I have indicated the complaint to Const Eades is important. His evidence is not challenged. Although at the time of the trial directions were given which confined his evidence to supporting the complainant’s credit this was not appropriate. Section 66 of the Evidence Act provides for the admission of the complaint as evidence of the truth of the matter alleged.

72 Three further matters require consideration. Firstly, as the evidence which is now available to resolve the matter must exclude the evidence of KT the relevant issue must be resolved having regard to the evidence of the complainant and the appellant. A Murray direction would be appropriate (see R v Murray (1987) 11 NSWLR 12).

73 The appellant also points to the fact that although he has convictions for some relatively minor matters he has no convictions for sexual assault or similar matters. He has now given evidence, including evidence that on the relevant evening the complainant had a key ring stuck on her finger which he removed causing her pain and tears which it was suggested may have been the reason for her being distressed. The complainant accepts that this incident occurred.

74 The third matter is that raised by the second ground of appeal which I consider below.

75 The consequence of the decision in Mallard must be that the appeal is to be resolved upon the basis that there was nothing which required explanation of matters known only to the accused. The fact that he chose not to give evidence should have been explained to the jury to be irrelevant to their decision. The comment by the trial judge that “it is proper to have in mind that it is usually easier to accept uncontradicted evidence than evidence which is actively disputed” could not now be made: see Azzopardi v The Queen (2001) 205 CLR 50.

76 Of course the appellant has given evidence before this Court and we are required to consider the matter having regard to his sworn denial of the alleged assault. To the extent that the directions of the judge at trial must now be ignored as erroneous their only relevance is to the significance which they may have had in the jury’s verdict.

77 Although the directions which his Honour gave would now be considered to be erroneous I do not believe in the circumstances of this appeal they have any significance. I have reached that conclusion primarily after consideration of the fact that the jury acquitted on three of the four counts. If they had been influenced by the fact that the appellant had not given evidence I would have expected convictions on some, at least, of the other counts.

78 In my opinion consideration of the evidence before the jury and the additional evidence admitted in the appeal does not lead to the conclusion that there is a significant possibility that an innocent person has been convicted. Accordingly, I would dismiss the first ground of appeal.

79 There was no argument before this Court but that the direction which his Honour gave at the trial in relation to the fact that the appellant had not given evidence, although appropriate at that time (see Weissensteiner v The Queen (1993) 178 CLR 217) is no longer appropriate (see RPS v The Queen (2000) 199 CLR 620 and Azzopardi v The Queen (2001) 205 CLR 50). However, the Crown submitted that because that issue was the subject of an application for leave to appeal in the previous appeal, when leave was declined, it could not be agitated in these proceedings.

80 The Crown relied on a number of previous decisions: R v Unger [1977] 2 NSWLR 990; R v Gregory [2002] NSWCCA 199; R v Heuston (2003) 140 A Crim R 422; R v ED [2003] NSWCCA 255; R v Khaddour [2005] NSWCCA 303; R v Kanaan [2005] NSWCCA 385. Of these decisions only Heuston relates to a matter determined by this Court following an application pursuant to s 474 of the Crimes Act.

81 In Heuston the appellant, who was convicted on a number of counts, unsuccessfully appealed to this Court. An application under s 474D of the Crimes Act was rejected. Thereafter, following evidence which was brought to light by the Police Royal Commission he made a further application which was granted and the matter referred to this Court as if it were an appeal. The appeal was upheld.

82 One of the grounds of appeal related to a submission which the prosecutor made to the jury which it was said invited them to speculate in an impermissible manner. The Court determined that, although a direction warning the jury against speculation should have been given, the lapse of time and as the matter was not raised at the trial an appeal on this ground was not justified. The Court did not say that by reason of the dismissal of the previous appeal this Court was deprived of jurisdiction to entertain the ground.

83 In Gilbert v The Queen (2000) 201 CLR 414 the trial took place before the High Court had handed down its decision in R v Barlow (1997) 188 CLR 1. At trial it was established that the accused had driven the victim and two co-offenders to a secluded place. While the accused waited in the car, the co-offenders took the victim away and brutally assaulted him. The victim died. The trial judge directed the jury that under the Queensland Criminal Code if the accused knew that his co-offenders intended to kill or inflict grievous bodily harm on the victim then the accused would be guilty of murder. If only a lesser state of knowledge could be established (such as that the accused believed that the two others merely intended to assault the victim), the verdict must be not guilty of murder or manslaughter. Accordingly, the judge directed the jury that manslaughter was not an available verdict. This direction was “in line with the previous understanding of the law in Queensland” (Gilbert at 418), but it did not conform with what the High Court later said in Barlow. Four separate judgments were delivered (Gleeson CJ and Gummow J in a joint judgment; McHugh J, Hayne J and Callinan J gave their own reasons). It was accepted by all members of the court that this misdirection was “a wrong decision of a question of law” within the meaning of s 668E(1) of the Queensland Criminal Code. The only question was whether or not to apply the proviso. The majority held that the proviso did not apply and that a new trial should be ordered. It was clear, however, that such a direction would not give rise to a successful appeal in every case.

84 This approach is consistent with earlier decisions in this court: R v Boisnier (unreported, NSWCCA, 17/2/1994) and R v Taulu (unreported, NSWCCA, 30/10/1994). Both cases involved directions in relation to the definition of manslaughter by an unlawful and dangerous act. The directions were given before the High Court had decided Wilson v The Queen (1991-1992) 174 CLR 313, which changed the way that the term “dangerous act” was to be explained to the jury. In both cases the trial judge’s directions had been correct at the time they were given. The court nevertheless held that in each instance the trial judge had misdirected the jury. In both cases the court granted leave to argue the ground. Ultimately the misdirections were found to be immaterial and the appeals were dismissed.

85 The approach of the Queensland Court of Appeal in R v Wakeley [1994] 2 Qd R 196 should be mentioned. That case involved evidence of a disputed confession. Following the conviction of the accused, the High Court handed down McKinney v The Queen (1991) 171 CLR 468. At 201 the Court of Appeal said:

“Having mentioned something of the impact of McKinney on future criminal trials, it remains to be stated that McKinney is not a general authority for the allowance of appeals in relation to cases tried before that decision was handed down. That case effected a change in the law in the nature of the introduction of a rule of practice as distinct from a change to the substantive law, and the High Court specifically laid it down as applicable to future trials. There is no general reason to suppose that there has been any prima facie miscarriage of justice in trials conducted before McKinney provided they have been conducted in accordance with law, notwithstanding that they did not anticipate the High Court’s formulation of the rule of practice now stated in McKinney. Of course there will be some cases such as the present where the absence of a warning may be seen as having led to a miscarriage of justice or as having contributed to an unsafe verdict. The issue in appeals in any such matters will not be whether a warning of the kind formulated in McKinney was given or not, but rather whether there has been any miscarriage of justice.”

86 All of these matters were decided before the High Court gave its decision in Mallard. Given the expansive application of the section which the High Court endorsed I am satisfied that this Court may consider this ground of appeal. Although the matter was raised in the former appeal it was not resolved and instead leave was declined. The first question is whether this Court should now grant leave.

87 There are powerful considerations which would point to this Court denying leave. As was said, admittedly in a different context, in Gregory [2002] NSWCCA 199 the interests of justice include consideration of the administration of the law generally, including “considerations supporting the finality of judicial decisions” [41]. The complicating factor in the present case is that the point was unlikely to have succeeded if objection had been taken at the trial as the reasoning of this Court in the earlier appeal made plain. The problems with the directions given at the trial have only been brought into focus by decisions made since the original appeal was determined.

88 There is another aspect of the present matter favouring a grant of leave. The appeal comes to this Court following referral by the Minister. Mindful of the breadth of approach to the appeal which the High Court required in Mallard this Court should be slow to refuse leave to raise this ground even after the lapse of time.

89 Although there is no doubt that the directions given by the trial judge were not in accordance with the law as now understood the trial judge’s observations were moderate and were, as Gleeson CJ observed, probably motivated from a desire to protect the appellant in case the jury drew an adverse inference from the fact that he had not given evidence. The fact that the jury acquitted on counts 1, 3 and 4 is a compelling indication that the judge’s direction did not result in a miscarriage of justice: see s 6(1) of the Criminal Appeal Act 1912. Although I would grant leave to raise this point I would reject the second ground of appeal.

Orders

90 In my opinion the appeal should be dismissed.

91 JAMES J: I have read in draft the judgments of McClellan CJ at CL and Simpson J and agree, for the reasons given by their Honours, that the conviction should be confirmed.

92 SIMPSON J: On 15 August 1996 JJT was convicted by a jury of a single count (on an indictment containing four counts) of assault with an act of indecency. He was sentenced and has served the whole of the sentence. An appeal against the conviction was dismissed: R v JJT, unreported, NSWCCA, 3 December 1997.

93 Pursuant to s474C(1)(b) of the Crimes Act 1900, on 24 May 2005 the Attorney General for the State of New South Wales referred the case to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912. By s474C(2) such action may be taken only if it appears that there is “a doubt or question” as to the guilt of the person convicted or as to any part of the evidence in the case.

94 The “doubt or question” that, plainly, prompted the Attorney General to refer the case as he did arose as a result of a change of heart on the part of one of the witnesses in the trial: JJT’s daughter (KT), who had given evidence in the trial corroborating the evidence of the complainant in respect of two of the counts on the indictment. In a statement dated 11 July 2003 KT retracted the statement she had previously made. She said that she did not see her father assault the complainant and that she had been pressured by the complainant and the complainant’s mother to provide a statement against her father. In a further statement made on 3 September 2004 she adhered to her 2003 statement.

95 Because s474C(1)(b) requires this Court to treat the proceedings as an appeal under the Criminal Appeal Act, this Court is obliged to follow procedures apposite to an appeal and is confined to making orders of the kind which may be made following an appeal: see Mallard v The Queen [2005] HCA 68; 80 ALJR 160; 157 A Crim R 121.

96 Like McClellan CJ at CL, whose judgment I have read in draft, and largely for the reasons given by his Honour, I would not interfere with the conviction that followed the jury trial.

97 I wish to add little to what his Honour has said.

98 Because this Court is required to deal with the reference as an appeal under the Criminal Appeal Act, it was necessary for JJT’s legal representatives to formulate the grounds upon which they proposed to argue against the conviction, and the orders that they sought.

99 The grounds formulated were:

“There has been a miscarriage of justice, in the light of the fresh evidence.
His Honour misdirected the jury about the failure of the appellant to give evidence in the trial.”

100 The orders sought were the setting aside of the conviction and the entry of a verdict of acquittal.

101 It is also necessary for this Court to bear in mind the provisions of s6 of the Criminal Appeal Act, which is set out in full in the judgment of McClellan CJ at CL, and which I do not propose to repeat. It may be, however, as was observed by the High Court in Mallard ([10]), important to bear in mind the proviso to that section.

102 In respect of the first ground, asserting miscarriage of justice, the exercise is not, in my opinion, the same as, or analogous with, the exercise required in an appeal where the ground of appeal is that the verdict of the jury was unreasonable. That is because this Court is not confined to the material that was before the jury. The obligation of this Court is to take into account all of the evidence. That is the evidence given in this Court, as well as the evidence given in the trial.

103 S6 is not a shining example of the draftsperson’s art. But, when dissected, it can be seen to provide a number of distinct grounds on which this Court may set aside the verdict of a jury. The first of these is that the verdict is unreasonable, or cannot be supported having regard to the evidence. That, axiomatically, is the evidence that was before the jury. The second ground is erroneous decision of any question of law (which includes admission or rejection of evidence and directions of law given to the jury). The third ground is miscarriage of justice, (which may be constituted by any other mishap, which may be established by new, or fresh evidence, and which may relate to events prior to, or at trial, or postdating trial).

104 The first of the grounds specified on behalf of JJT invokes the third, and not the first, of the grounds provided for by s6. The second ground advanced on his behalf invokes the second of the s6 grounds. Neither alleges unreasonable verdict. Where such a ground is raised it is determined by the Court on the basis of the evidence that was before the jury. Having regard to the grounds advanced in this case, it is not the task of this Court to review the reasonableness of the jury verdict.

105 I agree with McClellan CJ at CL, that, in the assessment of the first ground advanced, the evidence of KT, both at trial and in the present proceedings, ought to be disregarded. Her various changes of position on various issues have the inevitable consequence that she is to be regarded as entirely unreliable, and no weight can be attached to any of her evidence. The evidence available to this Court is, as I have said, that which was given in the trial, together with that which has been given in these proceedings. While KT’s evidence was part of those processes, it would be wrong, in my opinion, to give it any weight at all, either in favour of the Crown or in favour of JJT.

106 The subsequently established unreliability of KT’s evidence would be a compelling feature of an appeal against conviction on the ground that the verdict was unreasonable if the jury had convicted JJT of both of the charges on which she corroborated the evidence of the complainant. Had that occurred, it would suggest that the jury had attributed significant weight to her corroborative evidence. The fact that the jury convicted on only one of those is, as proposed by McClellan CJ at CL, suggestive that they regarded other evidence as of significantly more weight.

107 But, in any event, the task of this Court is not, as I have said, to review the jury verdict. It is not to the point that the jury might have regarded KT’s evidence as significant. The task of this Court is to determine whether, in the light of the evidence as it must now be regarded, a miscarriage of justice has been shown to have occurred. The question now is whether, excluding the evidence of KT, the remaining evidence establishes guilt. That evidence includes JJT’s sworn denial, although, like McClellan CJ at CL, I am unpersuaded that that evidence is of significant weight.

108 It is not possible for this Court to assess the credibility of the complainant’s evidence in the trial, at least by reference to conventional considerations of her demeanour at that time. It is difficult to assess her credibility as to the account she gave in 1996 of 1995 events by evaluation of her demeanour when giving evidence in the present proceedings. It is, however, possible to make some objective assessment of one significant aspect of her evidence. This was evidence of complaint, which she said was made by her the day after the alleged events of 2 July 1995, the subject of Counts 2 and 3. Her evidence was confirmed in its entirety in this respect by Constable Eades. What is, in my opinion, highly persuasive about this evidence is not merely the fact that the complaint was made: it is also the circumstances in which it was made, and its content. It was an apparently spontaneous response to a question incidentally asked, but which prompted a disclosure that might not otherwise have been made. The apparent spontaneity, and the incidental means by which the complaint was made, may also explain why the complainant made no mention of the breast-biting allegation to Constable Eades (although, it may be, the jury did not perceive it that way).

109 Those circumstances, in my view, invest the evidence of complaint with considerable weight. It is sufficient to persuade me that no miscarriage of justice has occurred.

110 In respect of the second ground, I agree with McClellan CJ at CL.

111 I would, therefore, confirm the conviction.

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