Oladejo v The Queen

[1999] WASCA 247

OLADEJO -v- R [1999] WASCA 247

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 247
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:23/1999	Heard:	10 SEPTEMBER 1999
Coram:	IPP J WALLWORK J WHITE J	Delivered:	17/11/99
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	JAMES ADEMOLA OLADEJO THE QUEEN
Catchwords:	Criminal law Appeal against conviction Whether trial Judge limited cross-examination by defence counsel Whether trial Judge misdirected the jury in relation to the evidence Trial Judge informed the Crown of the existence of documents subpoenaed by the defence Whether prejudicial to accused Whether trial Judge's direction to the jury in relation to evidence of a record of a telephonic call was adequate
Legislation:	Nil
Case References:	Nil A Child v Andrews (1994) 12 WAR 552 Eastough v R, unreported; CCA SCt of WA; Library No 980108; 12 March 1998 HG v R (1999) 160 ALR 554 Hunt & Schulz v Judge Russell & De Pinto (1995) 63 SASR 402 Kilby v R (1973) 129 CLR 460 Ling v R (1996) 90 A Crim R 376 National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 Petty & Maiden v R (1991) 173 CLR 95 R v Martin (1959) 60 SR (NSW) 286 R v Mawson [1967] VR 205 R v West Australian Newspaper Holdings Ltd (1995) 16 WAR 508

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : OLADEJO -v- R [1999] WASCA 247 CORAM : IPP J

WALLWORK J
WHITE J

HEARD : 10 SEPTEMBER 1999 DELIVERED : 17 NOVEMBER 1999 FILE NO/S : CCA 23 of 1999 BETWEEN : JAMES ADEMOLA OLADEJO

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Whether trial Judge limited cross-examination by defence counsel - Whether trial Judge misdirected the jury in relation to the evidence - Trial Judge informed the Crown of the existence of documents subpoenaed by the defence - Whether prejudicial to accused - Whether trial Judge's direction to the jury in relation to evidence of a record of a telephonic call was adequate

Legislation:

Nil

(Page 2)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : In person
Respondent : Mr R E Cock QC & Ms V A Prentice

Solicitors:

Appellant : In person
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

A Child v Andrews (1994) 12 WAR 552
Eastough v R, unreported; CCA SCt of WA; Library No 980108; 12 March 1998
HG v R (1999) 160 ALR 554
Hunt & Schulz v Judge Russell & De Pinto (1995) 63 SASR 402
Kilby v R (1973) 129 CLR 460
Ling v R (1996) 90 A Crim R 376
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
Petty & Maiden v R (1991) 173 CLR 95
R v Martin (1959) 60 SR (NSW) 286
R v Mawson [1967] VR 205
R v West Australian Newspaper Holdings Ltd (1995) 16 WAR 508

(Page 3)

1 IPP J: I have read the reasons to be published by White J. I agree with them and his Honour's conclusions. I have nothing further to add.

2 WALLWORK J: I agree with the reasons for judgment of White J and to the orders proposed by his Honour.

3 WHITE J: Following a trial in the District Court in which he had pleaded not guilty, the appellant was convicted on 21 January 1999 on one count of the sexual penetration of the complainant without her consent, by inserting his finger into her vagina. He was sentenced to a term of 2-1/2 years' imprisonment, with eligibility for parole. He now applies for leave to appeal against his conviction. An application for leave to appeal against sentence filed by him was abandoned on 27 August 1999.

4 The grounds on which the application for leave to appeal against his conviction was stated to be:

"1. The learned trial Judge erred in limiting the defendant's cross-examination of the complainant as to the reason for her delay in reporting the crime.

2. The complainant was shown to be an unreliable and dishonest witness in examination in chief and in cross-examination by the defence.

3. The trial court erred in alerting the Crown to the evidence unearthed by the defence subpoena at the end of the leading evidence in chief from the Crown witness Grono and thus enabling it to make an application to amend the indictment.

4. The trial court erred in allowing the Crown's application to make a third amendment to the indictment."

5 The appellant sought and was granted leave to add the following further grounds of appeal against conviction:

"5. That the trial Judge erred in misdirecting the jury that if the jury accepted the complainant's version of events, then that should be taken that there was no consent given by the complainant.

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6. That the trial court erred in not providing adequate warning to the jury on the value of the evidence of Maria Fiocco and James Curry.

7. That the trial court erred in admitting evidence of photographic materials of the complainant's residence, which were taken after changes had been made to the house."

6 Although framed as an application for leave to appeal against conviction, the appellant's notice was filed on 8 February 1999 which was within 21 days of the date of his conviction on 21 January 1999. Accordingly, the appellant is entitled to bring this appeal without leave and the Court dealt with the matter as being an appeal as of right.

Ground 1

7 In his written submissions, the appellant says:

"The issue of what questions can and cannot be raised at the trial was fully canvassed at the direction hearing before His Honour, Judge Charters, in November 1998. There was no mention of the Crown limiting the defence in its cross examination of the complainant as to the reason why she did not report the alleged crime to the Police or why she eventually reported when she did. The decision to restrict the defence cross examination of the complainant was first communicated to the accused person's solicitor only a few days prior to the trial. At the beginning of the trial, the Crown made application to the Court to restrict cross examination of the complainant. The Crown cited the need for the defence to avoid the possibility of the Crown opening up evidence of other complaints against the accused. The trial judge not only agreed that it was in the interest of the defendant not to cross examine the complainant as sought by the Crown, but her Honour also suggested to the defence an acceptable form of cross examination, thus effectively restricting the defence from disclosing certain significant evidence that would have shown the motive of the complainant.

It will be argued that the trial judge inevitably forced the defence into a position where it was not possible to tell the jury the reasons why the complainant made such a late report when

(Page 5)

she went to the Police in April 1997. It will be argued further that this resulted in miscarriage of justice. For there was a clear indication that the complainant actually went to the Police at the instigation of one Greg Cole, Deputy Director of Human Resources at Curtin University. Greg Cole had personally approached the complainant and interviewed her about the rumours he (Cole) was told regarding the matter by one Maureen Carmichael who at the time had some problems with the defendant and wanted to use other people's issues in support of her own case. It was after the interview with Cole on the 14th May, 1997 that the complainant then went and told the Police.

Evidence of Cole's statement to the Police (which was not presented at the trial) as well as other relevant information in this connection will be presented at the appeal hearing."

8 This ground and those submissions are based upon an apparent misconception by the appellant of what the learned trial Judge said. It was apparent from what her Honour was told, in the absence of the jury, that other women besides the complainant had complained about the appellant's sexual misconduct and that the prosecutor was concerned to ensure that the fact that such other complaints had been made against the appellant should not be revealed to the jury. Accordingly, the prosecutor had written to the appellant's counsel on 11 January 1999 advising that:

" … I feel compelled to alert you to the fact that you could cause some difficulties for your client if you cross-examine the complainant about her failure to immediately complain. That is because one of the primary reasons she did not was that she initially felt it would be only her word against his. (Other factors operating on her mind were that she thought it would be fruitless and feared professional repercussions). Once the complainant discovered that other women had made complaints she believed that she would have some support in making her complaint and was therefore willing to co-operate with the University investigation when she was asked to contribute. It was immediately after speaking to the University investigator that she went and spoke to the police.

At this stage the Crown does not propose to lead any evidence of complaints made by other women against the accused. However, it would be most unfair to the complainant and to the Crown if some comment was made or some question was asked

(Page 6)

about her delay in formally reporting the matter. If she were unable to supply the primary reason, the jury would get a distorted picture of the facts. In the circumstances, that may then require the jury to be told about the other complaints. However, if no comment was made (including in your closing address) or questions asked in relation to that matter, there would be no need for the jury to be told about the other complaints."

9 The matter was again raised before the learned trial Judge and the following was said (AB 30 - 32):

"For that reason I felt obliged to warn the defence that this is the reason why she went to the police when she did. Mr Sullivan can cross-examine her about not having put that in her statement if he wants. He can cross-examine her about whether or not that's the real reason, but what she is saying is, 'That is the reason why I went to the police when I did.'

KENNEDY DCJ: But what he is talkingabout is when she didn't go, not when she did go.

ARCHER, MS: If it's restricted to not immediately going to the police, as in the days afterwards, I have no difficulty.

KENNEDY DCJ: No, Mr Sullivan is not saying that. He is saying there's a 12-month delay and he doesn't want to leave that swinging in the air and he wants to say to her, "Why didn't you go in that 12 months?'

If she says, 'Well, at first I was in shock and then I didn't think anyone would believe me,' if he leaves it at that, he leaves it at that but if he then goes on to, 'Why did you eventually go the police?' or, 'Didn't you eventually go the police because you hate my client?' or something, well, then he will have opened a can of worms.

At this stage I'm not quite sure how its going to go. It's a bit hard for me to make a ruling because I don't know where it's going. You have done what you can do insofar as the warning is concerned. I'm not prepared to I can't direct him not to ask these questions.

ARCHER, MS: No. I'm, not asking your Honour to do that.

(Page 7)

KENNEDY DCJ: No, all right. Well, at this stage perhaps I could just come back to Mr Sullivan. Mr Sullivan, the prosecutor is not asking me to direct you not to do this. You can do it. All she is saying to you is if you do, there could be consequences. All right? Now, it may well be if you confine yourself to, 'Why didn't you go to the police?' that it won't get to that area but if you get to, 'Why did you then go to the police?' then you may well - I mean, she may well then be entitled to say to you, 'Well, I then went to the police because I knew several other people had also complained and I felt confident people would believe me.'

SULLIVAN, MR: So a question such as, 'Why didn't you go to the police for 12 months?' it would seem would escape the - - -

KENNEDY DCJ: Yes. 'Why didn't you go?' not, 'Why did you then go?'

SULLIVAN, MR: 'Why didn't you go to the police for 12 months?'

KENNEDY DCJ: As long as it's, 'Why didn't you go?' and she can say, 'Well, I was in shock at first and then I didn't think anyone would believe me.'

SULLIVAN, MR: Yes.

KENNEDY DCJ: If you then get on to, 'Why did you then go to the police?' she is - I don't know, I haven't made a ruling on it but you would think she would be entitled to tell you the truth.

SULLIVAN, MR: Yes, certainly, your Honour. I'm satisfied with that because I'm not ignoring the 12-month delay and I'm putting that question, and I won't take it further than that.

KENNEDY DCJ: All right."

10 From what was then said, it is, I think, quite clear that her Honour did not limit the cross-examination of the complainant as submitted by the appellant. Her Honour expressly said to the prosecutor that she could not direct the appellant's counsel not to ask the questions. Her Honour also said that she had not made a ruling on the issue but that one would think that the complainant would be entitled to tell the truth [if asked.] It is also apparent that defence counsel decided to limit his cross-examination of

(Page 8)

the complainant to the issue of why she did not complain immediately, without reference to the question why she did in fact complain when she did, thereby avoiding the risk that his cross-examination might let in the evidence of other complaints against his client. With respect, that decision seems sensible. The fact remains that her Honour did not limit the appellant's right to cross-examine the complainant as suggested by him. I would not uphold this ground of appeal.

Ground 2

11 As framed, this ground is without particularity. In his written submissions, the appellant says:

"On many occasions during the trial, the complainant made claims which were either uncorroborated, or directly contradicted by herself

Whereas the only reason given in by the complainant in her statement to the Police for not reporting the crime until a year later was that she believed that she was in shock. However, once she was advised by the Crown that such a reason would sound ridiculous, the complainant then gave other reasons in Court, including the claim that she had been a victim of child sexual abuse. Matters relating to these other reasons were not disclosed to the defence prior to the trial. And the complainant should not have been led in evidence to give such reasons as it was not only unsupported by evidence, but it was also designed to gain the sympathy of the jury. It will be argued further that the complainant was unreliable as some of the reasons given were plainly false. These will be canvassed in detail at the appeal hearing."

12 The reference to child sexual abuse was directed to the complainant's answer to the question put to her by prosecuting counsel: "Why didn't you go to the police for 12 months?" She said:

"I didn't go to the police for 12 months because, as I already told you, I - I felt incredibly embarrassed and ashamed about - about what had happened to me and I had previously dealt with the childhood sexual assault. I understood the nature of the process I would have to go through and I made a decision at that time that I had to keep functioning in my job and I didn't think I could keep functioning in my job and deal with this and I really

(Page 9)

didn't think - I really didn't think that I would be able to stand up to this at that time."

13 There was no evidence supporting the appellant's contention that the complainant was advised by the Crown that the reason originally offered by her was ridiculous. It is not, in my opinion, a fair inference that the complainant's statement concerning childhood sexual assault was either false or designed to win sympathy. She was not cross-examined in this regard and these allegations were not put to her by counsel for the defence. In relation to the contention that the complainant's evidence was unreliable or false, this was in the end a matter for the Jury to determine.

14 In my opinion, there is no substance in this ground of appeal, which must fail.

Grounds 3 and 4

15 These grounds can conveniently be dealt with together. The complainant had said in evidence that the offence had been committed in April 1996, whereas the appellant contended that the incident occurred on 13 May 1996. The defence subpoenaed certain telephone records listing telephone calls made from the appellant's mobile telephone. Those records showed that only one call had been made on that telephone to the complainant's telephone number and that it had been made on 13 May 1996. The indictment had alleged that the offence had occurred on a date unknown between 15 April 1996 and 24 April 1996. As a result of examining the records, the Crown witness, Detective Senior Constable Grono, confirmed that only one call to the complainant's telephone number was recorded in respect of the mobile telephone in question. In the result, the prosecutor applied to amend the indictment to allege that the offence had been committed on a date unknown between 15 April 1996 and 30 June 1996. Counsel for the defence objected to that amendment on the following grounds:

"The initial indictment drafted by the crown stated 1 April to 14 May; a new indictment is dated 15 April to 24 April and now on evidence supplied by the defence the crown again seeks to move the goalposts to encompass a period which includes when the accused is said to have made the telephone call on 13 May. The defence case has been structured on the dates. The resources of the defence aren't anything like the crown. The crown is not taken by surprise. It has had the opportunity to properly investigate the case and hasn't availed itself of it. At

(Page 10)

this late stage of the trial the crown seeks to again hamstring the accused and rely on information supplied by the accused himself. If it please the court."

16 Her Honour ruled on the objection as follows:

"Thank you very much. I can understand the defence objection to this. However, on this occasion I propose to allow the amendment and the reason I propose to allow the amendment is that while the date may be a matter that people can refer to, to the jury in the end as to credibility the reality is that both parties say that this event occurred. What they dispute is the matter of consent on the day and therefore I propose to allow the amendment … "

17 In his written submissions, the appellant says:

"It is an established principle that the defence does not have to disclose its evidence to the Crown prior to the hearing. By the same token, it is not the role of the Court to act as detective for either party. By informing the Crown of the defence subpoena of TELSTRA phone bills, the Court had acted unlawfully thus enabling the Crown to again modify the indictment for the third time.

A central issue to the defence case was that the complainant would not have complained the alleged crime to the Police until she was literally "pushed" by the officers from Curtin university who had been informed by one of the friends of the complainant that she knew of something between the complainant and the accused. In order to save herself from embarrassment, it became necessary for the complainant to deny that she consented to the sexual act between herself and the accused. Consequently, she was unable to remember details of the day and date of the incident, nor did she recall some of the other details.

In view of the circumstances of this case, the ability of either party to recall the date is quite central to the matter, contrary to the view that the date was only a matter of particular. In that event, the permission given the Crown to modify the date for the third time is prejudicial to the applicant, contrary to the provisions of S591 of the Criminal Code."

(Page 11)

18 With respect, her Honour's ruling recognised that the live issue in the case was whether the sexual penetration, which it was conceded by the defence had occurred, was done with or without the consent of the complainant. In saying that "The defence case has been structured on the dates", counsel was not indicating that the question as to the date of the alleged offence was of significance in the defence case save only for what value, if any, it might have had as to credibility of the witnesses. I shall refer to this again in relation to ground 6, hereunder.

19 The point of time at which her Honour indicated the existence of the records was when the last witness for the Crown was called to the stand. At that stage, the evidence of those witnesses to which the record was significant, namely, the complainant, Ms Fiocco and Mr Curry had already been given. Accordingly, no forensic objective could have been served which was defeated by the indication as to the existence of the records. This was not the sort of case, for example, where an alibi was relied upon and, in the end, I conclude that the issue was one for the jury and that her Honour was right to allow the amendment. The insistence by the complainant and Ms Fiocco that the incident had occurred in April 1996 had been tested in cross-examination and the submission that such insistence was inconsistent with the telephone records was fully available to defence counsel and in no way impaired by her Honour's indication that the records were in the possession of the Court. In my opinion, no prejudice resulted to the appellant and no injustice was caused to him in the result.

20 I would not uphold these grounds of appeal.

Ground 5

21 In support of this ground, the appellant's written submissions are:

"The honourable trial judge's direction to the jury was ambiguous and contradictory in many ways. This, it will be argued, left the jury with no option than to convict, even when there might have been reasonable doubt in the mind of the jury.

First, at 181, (all references to page number in the appeal book), the trial judge said, 'Now this is in fact not one of those cases where each side is saying that the facts are similar and so the jury must make an interpretation as to whether consent was there.' That statement is not only prejudicial to the accused person, but it also amounts to misdirection because the facts are

(Page 12)

actually similar, contrary to the judge's statement to the jury. There is therefore a misinterpretation of the factsby the judge. The similarity in the facts will be enumerated at the trial.

Another element of misdirection in the judges (sic) instruction to the jury occurred at 181B and D, where she said: 'It is a matter for you, but I would have thought that if you're satisfied it happened largely as she said, you would be satisfied that there was no consent.' Then she added: 'As I say, it's entirely a matter for you. You may say, "well, I'm satisfied it happened the way she said, but I am not satisfied that there was no consent," and as I say, that is entirely a matter for you. But that is not the basis on which the accused has argued this matter, and it would seem to me that if you were satisfied that it happened in the way in which she says, you would be satisfied that there was no consent.'

Two major issues immediately arose from that direction to the jury. First, the judge was saying to the jury, 'look, if generally speaking, you agreed with some of what the complainant has said, then you must reach the conclusion that there was no consent.' This amounts to misdirection in so far as the standard of proof required in this matter was for the jury to be satisfied 'beyond a reasonable doubt'. Any direction that allows the jury to base its verdict on a general acceptance of the version of the events reduces the onus of proof to the level of balance of probability, rather than an absolute satisfaction of the jury.

A second issue which arises from the judges direction to the jury that if they are 'largely satisfied' with the complainant's evidence, then they should be satisfied that no consent was given is that the direction contains apparent contradictions, and it is therefore misleading. On the one hand, the judge said at 181B: 'You may say, "well, I 'm satisfied it happened the way she said, but I'm not satisfied that there was no consent," and as I say, that is entirely a matter for you.' It would have been prudent and unambiguous to leave the direction at that, and let the jury decide whose version they believe, to what extent or degree, and what interpretation or inferences they would want to draw from whatever version of event they chose to believe. But the honourable trial judge did not leave the question of the inferences the jury might want to draw to jurors. Rather, she immediately indicated to the jury

(Page 13)

once again, that it is not plausible to believe the complainant's version in a general sense and not agree that there was no consent. Hence in 181B, the judge pointed out, 'But that is not the basis on which the accused has argued this matter, and itwould seem to me that if you were satisfied that it happened in the way in which she says, you would be satisfied that there was no consent.'

Secondly, and of equal significance, the honourable trial judge misrepresented the accused person's argument to the jury, when she said at 181B: 'But that is not the basis on which the accused has argued this matter', in referring to the issue of consent. In other words, and taken in the context of what the judge had said immediately preceding, the judge was saying to the jury, look, the accused person is not contesting the issue of consent. Permit me to quote from the transcript again. At 181B, the honourable trial judge said to the jury: 'You may say, "well, I'm satisfied it happened the way she said, but I am not satisfied that there was no consent," (and as I say, that is entirely a matter for you). But that is not the basis on which the accused has argued this matter, and it would seem to me that if you were satisfied that it happened in the way in which she says, you would be satisfied that there was no consent.'

The judges (sic) statement here to the jury grossly misrepresented the accused person's case, and indeed, the thrust of the defence's case. For indeed, the defence's case was that there was consent, and the defence was at pains to point this out on many occasions during the trial. At 80D, 80E, 81A, and 87A, the questions put to the complainant during cross examination, and the suggestion throughout was that right from the start to the end, what took place in the complainant's house was a consensual act.

The significance of the misrepresentation became more serious when one notes that there was a point at 191B, when the jury broke their deliberation to request for information relating to what Jo Hart said in relation to how the accused person got to her house. In providing that bit of information, the honourable trial judge ensured that the jury was told twice that it was not a relevant issue. She said 'There wasn't a lot of evidence about this', a point she repeated at 191D to emphasize her view. Of course, it is normal to expect that the judge would have her own

(Page 14)

views, but it would have been prudent in this circumstance not to express it, given that the jury was already in deliberation. The trial judge should have left the jury to come to a decision of its own as to the significance of that piece of evidence, rather than try to influence the jury with her own views.

It is important to note also that, in summing up each side's case, the judge misled the jury with her own interpretation of events when she said at 181C, 'He follows her and pins her against the cupboard and told her that he wasn't leaving until he had seen her breasts, and then, he's trying to pull up her jumper.' A careful reading of what the complainant said in her evidence in chief and in cross examination did not suggest that she was pinned against the cupboard. Further details of these will be canvassed at the hearing."

22 The first complaint is directed to the direction by her Honour at AB 181, where the learned trial Judge said:

"Now this is in fact not one of those cases where each side is saying that the facts are similar and so the jury must make an interpretation as to whether consent was there."

23 The appellant submits that that direction was prejudicial to him and amounted to a misdirection because the facts are actually similar. That submission misses the point of what her Honour was saying. The accounts of what took place were in fact quite different, the appellant's contending that advances had been made to him by the complainant who was a willing participant in his conduct, whereas the complainant's evidence was to the effect that, despite her protests, he persisted in a sexual assault upon her in the course of which he forced his finger into her vagina. The point being made by the learned trial Judge was that it was not a case where the relevant facts were agreed and the question was whether those facts should be understood as demonstrating the existence of consent. This complaint is without substance.

24 The second complaint is directed to her Honour's direction, at AB 181, where her Honour said:

"It's a matter for you but I would have thought that if you're satisfied it happened largely as she said, you would be satisfied that there was no consent. As I say, it's entirely a matter for you. You may say, 'Well, I'm satisfied it happened the way she said but I'm not satisfied that that was no consent' and, as say, that is

(Page 15)

entirely a matter for you but that's not the basis on which the accused has argued this matter and it would seem to me that if you were satisfied that it happened in the way in which she says you would be satisfied that there was no consent."

25 The directions in question were her Honour's comments on the facts and the jury was reminded in the passages cited, that it was a matter entirely for the jury to determine. The learned trial Judge was, in my opinion, doing no more than to express the view that, if the jury accepted the evidence of the complainant, it would follow that she had not consented. That proposition, it seems to me, is incontrovertible.

26 The appellant submits that her Honour was saying to the jury that he was not contesting the issue of consent. In my opinion, her Honour's remarks cannot properly be understood in that way. Immediately after the passage complained of, the learned trial Judge summarised for the jury the complainant's evidence as to what had occurred. Her Honour said:

"Now, what she says is that he came to her home, he starts to make advances to her which she realises are getting out of hand, she tries to fob him off and leave him with some dignity and leave herself, one presumes, in a situation where she can face him the next day and where he can face her the next clay. She talks about his wife, she talks about his religion, and she's pulling away from him and trying to finish the incident off without too much embarrassment. He then produces his penis. At that point she grabs the cups, says to him, 'James, put that away' and heads for the kitchen but he follows her and pins her against the cupboard and told her that he wasn't leaving until he had seen her breasts and then he's trying to pull up her jumper.

While she's trying to protect her breasts he put his hand into her pants and put his finger into her vagina. At that point she screams at him that she will see to it that he never gets another job in a university in Australia or Western Australia or wherever and that brings the incident to an end. Now, if you're satisfied that it happened in that way,while it's a matter for you, as I say, I would have thought you would find that there was no consent."

27 Her Honour then summarised the accused's evidence as follows:

"Now he says that it didn't happen that way: within less than an hour after their first meeting she told him that she loved him;

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later she invited him to her home. He went and he took with him a paper she was going to read for him and comment on; she wasn't interested in reading it; she actually initiated the sexual contact between them; she told him she found him attractive; she fondled him and touched his penis and in response he did put his finger into her vagina; the incident went on for 5 or 10 minutes and he ejaculated. Then they went into the kitchen and he washed his hands and they had tea."

28 Her Honour went on to mention the video-taped interview with the appellant, which the jury had seen and would take with them to the jury room when considering their verdict, saying that " … but the advantage of it in another way, from an accused's point of view, particularly if the accused is a well-educated, articulate person, is that their evidence is on video." Her Honour added:

"… The only reason I refer to that is that I don't have to go through his evidence in great detail, and in fact I didn't really go through her evidence in great detail either …

If it happened in the way - if you think in the way he says, then plainly she is consenting. Not only is she consenting, she initiated it. … In reality, in this trial, the central issue for you is whether you are satisfied that there was no consent. For you to be satisfied that there was no consent, you must be satisfied of the truth of her evidence. In determining that, you have got to consider all the evidence and all that you have seen and heard."

29 It is apparent from the aforegoing that her Honour correctly put it to the jury that the central issue was whether the jury was satisfied that there was no consent. Furthermore, the learned trial Judge directed the jury that, if it accepted the appellant's version as to what had happened, then "plainly she is consenting". There was no misdirection by the learned trial Judge as to the nature or gravamen of the defence.

30 The appellant complains of the direction, at AB 181, that:

" … he follows her and pins her against the cupboard and told her he wasn't leaving until he had seen her breasts and then he's trying to pull up her jumper."

31 The complaint is that the evidence of the complainant was not that she was "pinned" against the cupboard.
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32 In examination-in-chief, the complainant said at AB 50:

" … he followed me into the kitchen. At this point his shirt was out and he still had his shoes off. He just grabbed me up against the kitchen sink and started trying to kiss me and trying to lift my jumpers up and he said he wouldn't leave the house until he had seen my breasts … "

33 In cross-examination, the complainant's evidence was:

"Was he restraining you from leaving?---He was - I was forcibly held.

How was that?---I was up - well, it was a corner. It was a small corner and I was being held against a bench and he said - I had asked him to leave the house and he said he wasn't going to leave until he had seen my breasts. He was also pressing himself against me. He was you know - he was trying to throw his tongue down my throat."

34 In my opinion, her Honour's direction to the jury was not inconsistent with the thrust of the complainant's evidence.

35 I would not uphold this ground of appeal.

Ground 6

36 The appellant's submissions in relation to this ground of appeal are:

"The judge's warning about Fioccos' evidence (and the lack of any warning on the written statement of Peter James Curry, who was not in court to be cross examined) failed to properly put the matter before the jury. For the question that arises is this: If indeed the incident took place in May, as clearly shown by the telephone bills of the accused person, and agreed to by the complainant herself, how then could anyone claim that they were told about the incident in April. Rather than pointing to this situation, the honourable judge actually directed the jury to regard Fiocco and Curry's evidence as possible corroboration of the complainant's evidence. At 188A, the judge said: "but as I have said, your common sense should tell you that even if she got the date wrong ... consent". That view is misleading and prejudicial to the accused person's case."

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37 The witness Fiocco gave evidence that the complainant had told her some time in April 1996 that she had been sexually assaulted by the appellant. The cross-examination of this witness was limited to the date of the alleged complaint to her and she was definite that it was in April 1996, not in May or June of that year.

38 The deposition of the witness Curry was read to the jury, apparently by consent - certainly there was no objection to this course by counsel for the appellant. He, too, deposed to a telephonic conversation with the complainant which he believed had occurred on 24 April 1996.

39 It was the appellant's case that the incident the subject of the charge against him had occurred on 13 May 1996, being the date on which the records show a telephone call was made to the complainant's telephone number from the appellant's mobile telephone. It was common cause that, on the day of the incident, the appellant had telephoned the complainant at her home, but it was not common cause that such call had been made on the appellant's mobile telephone. More than one telephone call by the appellant to the complainant at her home were deposed to by the complainant (AB 60).

40 The significance of the evidence as to the date of the telephone call from the appellant's mobile telephone was recognised by her Honour and by counsel as relating to credibility and, in particular, the credibility of the complainant and of the two witnesses whose evidence confirmed that she had complained in April and not in May 1996.

41 In his final address to the jury, counsel for the defence said, in this regard:

"There is a telephone account which has been produced as an exhibit which is before the court, which is independent evidence from Telstra Corporation which indicates that such a call was made on 13 May, and this information was obtained, that a call was made on that mobile phone to that telephone number on that date. This was obtained by the defence in an attempt to put together some sort of chronology that would make sense to the accused person and, indeed, to this case.

You will recall the complainant in this case does not know what date in April. It's April of 96, but what date? There may have been some mention of a Friday, so the day of the week again does not seem entirely right. Then there was evidence from Mrs Fiocco. You will recall that the complainant is adamant

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that it wasn't in May, Mrs Fiocco isadamant that it wasn't in May.

Both of these witnesses were questioned about whether it could have been before or after and it may seem a fairly minor point, but it does, I would respectfully submit to you, contribute to a picture of credibility and a picture of accuracy throughout the course of these events because the complainant in this matter has advised the court, or it would seem from her evidence, that the events of that day impacted on her to a tremendous degree, that she was physically upset when she approached Fiocco, that she had made a telephone call to somebody whose statement was read by the crown to you, Peter Curry, and that a phone call was made then about 24 April, so essentially there is this fixed position that these events occurred in April, but the defence say, 'No, they occurred in May.'

He phoned for directions when he was lost. A conflict exists."

42 In the course of her Honour's summing up to the jury, she said:

"Now, the next matter is the matter of the dates. I told you that the crown must prove the elements or the ingredients of the offence but the dates don't have to be proved. They're simply a particular to let an accused know about time it's said that he's alleged to have committed the offence and sometimes the dates are more important than others and you heard in this case the prosecution ask to amend the dates and the defence opposed it and I allowed te (sic) prosecution to amend.

Now, sometimes you would not allow the prosecution to amend. You would simply say to the prosecution, 'You are stuck with those dates' and, for example, if a person is charged with a bank robbery on 1 April and the matter has been proceeding on and he's charged with a bank robbery on 1 April and we get into court and he brings along his local minister of religion and several upright citizens and they say he was with them on that day; on 1 April from dawn till dusk all the time that the bank was open, any time that this robbery took place he was in their presence, after he presents his evidence the crown simply would not be allowed to change the dates because he has got his case ready and brought his witnesses along and presented the whole thing on the basis that it was 1 April and he's proven - and what

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he has done is he has put in issue alibi and he has said, 'I wasn't even there.' You can't shift the goalposts afterwards, but that's not the case here. In this case Mr Oladejo says quite freely, 'Yes, I went to this house. Yes, I did put my finger in her vagina' and it's obvious that they are talking about the same incident.

I mean, I am quite sure that all of you are -whatever view you hold of the facts, have no doubt that both of these people are talking about the same incident and therefore the date is of very little significance in relation to these matters.

The crown would say to you that she has probably got the date right and that he didn't necessarily ring her on that mobile phone in any event, and the other evidence would indicate that she has, but as I have said, your commonsense should tell you that even if she got the date wrong it doesn't necessarily mean she's not telling the truth about her lack of consent.

Now, so far as the accused is concerned, what he says is it's another nuance on the evidence which shows that the accused is more reliable in his retelling of events, and that too is a factor for you to take into account. If I can just repeat the issue for you, which I'm sure you already know, the issue is are you satisfied to the required standard that there was no consent and it means are you satisfied on all that you have seen and heard that she has told you the truth about this matter, that she did not consent?"

43 Accordingly, her Honour apparently accepted the submission by counsel for the defence that " … it may seem a fairly minor point, but it does, I would respectfully submit to you, contribute to a picture of credibility and a picture of accuracy throughout the course of these events … so essentially there is this fixed position that these events occurred in April, but the defence say, 'No, they occurred in May.'"

44 Her Honour, correctly in my respectful opinion, drew the matter to the attention of the jury as a matter relevant to credibility and reliability. In my opinion, her Honour's direction was adequate in the circumstances and the issue was one for the determination of the jury.

45 I would not uphold this ground of appeal.

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Ground 7

46 The appellant's written submission in relation to this ground of appeal was:

"It will be argued that the evidence of the photographs of the complainant's house were inadmissible on two grounds

(a) The photographs were taken well over one and a half years after the alleged crime, during which time, changes had been made to the house (as admitted by the complainant herself).

(b) The photos did not show the relational location of the rooms in the house, which would have been necessary in view of the differences in the claims of both parties as to where the incident took place.

(c ) The statement of James Curry has also been edited and for whatever reason, what was read to the Jury was not all of the witness' statement

It is to be argued further that the statement made to the Police by the complainant was most probably not the first statement but a second one, and the Appeal Courts attention will be drawn to the possibility of the Police having coached the complainant and asked for another statement as late as October 1997, almost six months after the first statement was made.

It will be argued further that the conduct of the Crown in the trial was unfair to the extent that the Crown's application to restrict the accused person's cross examination of the complainant was a deliberate manipulation of the trial; and further that the Police trumped up evidence of a previous conviction against the accused and presented that false information to the Court, thus falsely attempting to influence the Court's decision in sentencing."

47 The submission extends beyond the ambit of this ground of appeal. The photographs tendered as evidence were taken some time after the incident. This was admitted and the jury was aware of the fact. The changes, if any, were not concealed from the jury and the defence was fully entitled to make any submissions in relation to any such changes as were considered appropriate. There is no substance in this ground of

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appeal which must fail. The other submissions made by the appellant which are not directed to any ground of appeal need not be dealt with.

48 In the result, I would, if necessary, grant leave to appeal but I would dismiss the appeal.