R v Bamblett - [2000] NSWCCA 464

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Russell Bamblett (Snr) [2000] NSWCCA 464

FILE NUMBER(S):
60032/00

HEARING DATE(S): 26 October 2000

JUDGMENT DATE: 07/11/2000

PARTIES:
Russell Bamblett (Snr) - Appellant
Crown - Respondent

JUDGMENT OF: Sheller JA James J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/61/0170

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

COUNSEL:
Appellant - C B Craigie/S A Benson
Crown - R D Cogswell SC

SOLICITORS:
Appellant - D J Humphreys
Crown - S E O'Connor

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Sexual intercourse with child under 10 - Whether miscarriage of justice - Whether verdict unreasonable - Where no medical evidence because complainant previously sexually abused by another offender - Where inconsistencies in complainant’s evidence - Where trial Judge suggested to jury complainant’s allegations beyond capacities of child her age - Where no objection raised at trial - Whether misdirection - Criminal Appeal Rules, r 4.

LEGISLATION CITED:
Criminal Appeal Rules
Crimes Act 1900

DECISION:
1. Appeal allowed
2. Quash the conviction
3. Substitute a verdict of acquittal.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60032/00
SHELLER JA
JAMES J
DOWD J

REGINA v Russell BAMBLETT

The appellant appealed from his conviction on three counts of having had sexual intercourse with a female child under the age of ten. No medical evidence was tendered at trial as the complainant had previously been abused by another person. The complainant gave evidence which was both internally inconsistent and also inconsistent with evidence previously given in another trial. In his summing up, the trial Judge suggested to the jury that the complainant’s allegations went beyond the capacities of a child her age as to the detail and nature of the sexual activities described. Counsel for the accused made no objection to this.
Held (by Sheller JA, James and Dowd JJ agreeing):-

The trial Judge quite appropriately impressed upon the jury that the directions he gave were not given because of any view he had formed about the evidence but because they were required by law.
However, there was a real danger that the trial Judge might have led the jury to believe that because of her age, the complainant had no capacity to invent the sexual activities described. This would have been dangerous as the complainant had previously been sexually abused and nothing was known of the nature of that abuse.
The inconsistency in the complainant’s evidence must be viewed in the context of an earlier occasion of sexual abuse. The extent and nature of that sexual abuse was unknown and would not be known to a jury if there were to be a new trial. This element of unreliability in the complainant’s evidence added to the significance of the inconsistencies in her evidence and, accordingly, the conduct of the trial resulted in a miscarriage of justice. Any new trial would involve a further miscarriage of justice.

Jones v The Queen (1997) 191 CLR 439, applied; M v The Queen (1994) 181 CLR 487, applied; Davies and Cody v The King (1937) 57 CLR 170, applied; R v RMM NSWCCA, 19 August 1996, referred to; R v McKnoulty (1995) 77 A CrimR 333, referred to.

Legislation:
Crimes Act 1900
Supreme Court Rules

Cases Cited:
BRS v The Queen (1997) 191 CLR 275
Davies and Cody v The King (1937) 57 CLR 170
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
R v Abusafiah (1991) 24 NSWLR 531
R v McKnoulty (1995) 77 A CrimR 333
R v RMM (1996) NSWCCA Butterworths Unreported Decisions 8
R v Zammit (1999) NSWCCA 65

ORDERS

Appeal allowed;

Quash the conviction;

Substitute a verdict of acquittal.

***

IN THE COURT OF

CRIMINAL APPEAL

60032/00

SHELLELR JA
JAMES J
DOWD J

Tuesday, 7 November 2000

REGINA v Russell BAMBLETT

JUDGMENT

SHELLER JA: Russell Bamblett (Snr) appeals from his conviction on three counts that on a single occasion between 25 December 1996 and 27 March 1997 at Dubbo, he had sexual intercourse with a female child under the age of ten. The trial began at Dubbo on 13 December 1999 before his Honour Judge Freeman and a jury. On 15 December 1999 the jury returned a verdict of guilty on all counts. Judge Freeman sentenced the appellant on the first count to a fixed term of imprisonment for two years, on the second count to a fixed term of imprisonment for two and a half years and on the third count to five years penal servitude. Each sentence was concurrent with the others and began 15 December 1999. His Honour found special circumstances and fixed a minimum term of three years and an additional term of two years on the third count. The appellant does not appeal against the sentences imposed.
The Crown case can be summarised in the following way. The complainant was born on 11 October 1989. The appellant had been a friend of the complainant’s family for some years and, on occasions, was invited to babysit the complainant and her siblings, one of whom was slightly older and several younger than she. The complainant gave evidence that the offences charged took place on a day when her parents had gone shopping and left her and her “brothers” and sisters in the care of the appellant whom she called “Uncle Russ”. The complainant said she was inside the house watching television while her “brothers” and sisters were in the backyard. (The evidence was that the complainant’s second brother “B” was born on 30 March 1997). While she was watching television the appellant was in her mother’s room. He called out to her and said “[Name] come in here”. When she did not go, the appellant dragged her by the wrist to her mother’s bedroom.
The complainant gave evidence that she was wearing a one-piece swimming costume. She said that the appellant pulled her swimming costume down. He put her on the bed and pulled his own tracksuit pants down. The complainant said that she saw the appellant’s “private”. She said that the complainant licked her “private” (count 1) and that he put his “private” into her “private” (count 3). She said that the appellant put his finger into her “private” (count 2) and that he did that before he put his “private” into her “private”.
The complainant said that the appellant had said to her “don’t tell your mum”. She said that when her parents returned from shopping, she did not tell them about what the appellant had done because the appellant had told her not to.
In cross-examination the complainant said that while she was in Year 2 at school she had two teachers. The first teacher was Mr Ford and the second Miss Dakin. She said that the offences took place on a school day at a time when she was in Miss Dakin’s class. Detective Edmondson gave evidence that the first school term in 1997 ran from 4 February to 27 March. The complainant said that she was able to remember a time when the appellant and his daughters packed their furniture on to a truck and moved. She said that the offences occurred before the move. The complainant’s younger brother, B, was born on 30 March 1997. The complainant said that the offences took place before B was born. She also said that when the offences occurred, the appellant said to her “Don’t tell your mum or I’ll kill your mum and [B]”.
The complainant’s mother gave evidence that at some stage in 1997 she had a conversation with the complainant about the appellant. After the conversation, the complainant’s mother contacted the police. The complainant’s mother said that at the time she contacted the police her son, B, was 12 days old. In cross-examination she conceded that B was 16 days old at the time she spoke to the police.
The appellant gave evidence and was cross-examined. He said that in January and February 1997 he lived in Dubbo. He knew the complainant’s parents and from time to time he would look after their children. He denied the allegations the complainant made against him.
The appellant said that on 12 February 1997 he went to Gilgandra to attend Court with his son. He stayed in Gilgandra and spent a week with his niece, Miss Sally Anne Carr, and a further week with his sister-in-law, Mrs Maria Fuller. While he was in Gilgandra he arranged to rent a house there. He returned to Dubbo and organised the removal of his furniture. The appellant said that he took up residence at Gilgandra on either 2 or 3 March 1997.
In his cross-examination, the appellant initially said that he spent one night in Dubbo before returning to Gilgandra. He later said that it was “probably correct” that he had spent three or four days in Dubbo.
Miss Carr, Mrs Fuller and Mrs Fay Kearney, the appellant’s sister, gave evidence to confirm that the appellant had spent time in Gilgandra during February 1997.
No medical evidence
At the trial Mr Wilson appeared for the appellant. Before the Crown prosecutor opened to the jury, the following is noted in the transcript:
“IN THE ABSENCE OF THE JURY
(Crown Prosecutor indicates there will be no medical evidence in this trial due to the fact that the alleged victim [complainant] had been previously assaulted by another person, therefore it renders the medical evidence equivocal).”
During a short adjournment, after the evidence was complete but before the addresses, the trial Judge received a note from the jury and asked to discuss the questions with counsel in the absence of the jury. The transcript continues as follows:
“IN THE ABSENCE OF THE JURY
MFI #2 QUESTIONS FROM THE JURY
HIS HONOUR: Question, ‘What happened, for [the complainant] to tell her mother, what has brought this up? Is there any medical evidence for [the complainant], did mother take her to doctor? Did [the complainant’s] behaviour change, ask both parents? When was this reported to the police, what date?’ As to the first, what happened to [the complainant] to tell her mother, what’s brought this up, there is simply no evidence. Is there any medical evidence for [the complainant], did her mother take her to the doctor, same answer. Did [the complainant’s] behaviour change ask both parents, same answer. When was this reported to the police, what date?
CROWN PROSECUTOR: Your Honour, I think there was evidence that that occurred on 15 April--
WILSON: We would allow that your Honour because that was the day the complaint - and the statement was made on the 22nd but Mrs Fuller did go to the police so I don’t know whether that was clearly put into evidence but she got the complaint --
HIS HONOUR: Yes, she did mention 15 April, didn’t she?
CROWN PROSECUTOR: There was mention of --
WILSON: I certainly got her to - because she said twelve days after baby was born and I asked her, well, if you’ll accept that the 15th, is the day she was told.
HIS HONOUR: That’s alright. Now, what - apart from saying there is no evidence, you have to put those matters out of your mind, concentrate on what material you do have, what other answer is there available for the first three?
WILSON: That has to be the answer, your Honour.
HIS HONOUR: Mr Crown seems lost in thought.
CROWN PROSECUTOR: Your Honour, I accept that that has to be the answer but I was wondering in particular circumstances of this whether there should be some gloss put on to that because the question of medical evidence is clearly important and it clearly falls into the category of evidence that anyone would expect that if there was evidence or if there was not evidence, then that would be placed before the jury but in the particular circumstances of this case, the view that I formed and indeed the view that was formed at the earlier trial was that that evidence --
HIS HONOUR: Is simply inadmissible under 409B. [s409B of the Crimes Act 1900 since repealed and transferred to the Criminal Procedure Act 1986 s105].
CROWN PROSECUTOR: Not necessarily that your Honour, that the problem was that there was, the medical evidence when [the complainant] was examined and that occurred on 8 April prior to the complaint in relation to this matter, was that there was scarring on the hymen. And your Honour, that could only have - being prejudicial and misleading perhaps because of 409B because the jury couldn’t have been told the full story. But your Honour, I’m just wondering whether or not it’s possible for your Honour to say in relation to the medical evidence that clearly they shouldn’t speculate and in the normal course of events they might expect to be told one way or the other but that they should accept that there is no evidence and it’s very, very important that they should not speculate. I think it should be brought home to them, I’m sorry if I’m not explaining this very well but that in the normal course of events either from the defence point of view or from the Crown point of view they would expect that there would be medical evidence, that they might therefore accept or expect that there is a particular reason or good reason why there is no such evidence but even that there is that good reason, they should not speculate or seem to guess at what it might be. And your Honour, the other aspect of the medical evidence is that that may be coupled with an explanation in relation to what it is that the Crown has to prove and that is that the Crown does not have to prove penetration of the vagina but merely the slightest degree of penetration of the genitalia. Your Honour, that’s the only submission that I can make in relation to it.
HIS HONOUR: What do you say about it Mr Wilson, is there anything wrong with saying we might expect that sort of evidence would be forthcoming. You might therefore reach the conclusion that there’s a very good reason for it not forthcoming, simply do not try and guess what that reason is and certainly do not speculate about what the evidence might do and might not be.
WILSON: In a sense that may actually invite them to speculate to some extent your Honour because we’re not saying there was never a medical examination and they’ll be in effect and we can’t say that but to actually alert their minds to the possible existence of some material that they haven’t received for whatever good reason that might be, in a sense, alerts them that there may be something in existence but we’re not getting it.
HIS HONOUR: It’s a matter of simple logic that they would understand there is something in existence, which they’re not getting. The Crown’s suggestion is really only to try and strengthen the admonition to them not to --
WILSON: Not to speculate, yes, I know, I understand.
HIS HONOUR: -- start guessing.
CROWN PROSECUTOR: And your Honour similarly and I suppose this should be recorded from the Crown position as to why there is no evidence in relation to what happened immediately prior to [the complainant] telling her mother again, that may have been or probably would have been precluded by 409B because she had returned from a counselling session in relation to another offence and it was in the course of that conversation concerning that counselling session that the allegation concerning this matter emerged and again your Honour, that’s why that area was left alone and particularly because this is a retrial.
HIS HONOUR: They probably would have had difficulties after Graham (?) [Graham v The Queen (1998) 195 CLR 606] anyway.
CROWN PROSECUTOR: Indeed, your Honour. That was the other aspect of it that because of the dates of the offence is uncertain it was clearly not within days of the complaint that Graham’s case probably would have excluded it. So your Honour, I would simply make the same submission your Honour that they’d be given a very strong direction of not to speculate.
HIS HONOUR: Having voiced your uncertainties about what the effect of this is, Mr Wilson, what do you suggest ought to be said? I didn’t quite understand whether in the end you came down to submitting that no such directions should be given or what?
WILSON: If the hypothesis that the jury will in their minds suspect at least that there is in existence something, perhaps it’s best to tell them that the Crown has led all the evidence that he is able to lead in this matter and--
HIS HONOUR: What, as a matter of law?
WILSON: As a matter of law. As a fact and as a matter of law, yes. Not quite as a fact, that’s right, as a matter of law, yes. And it has led all the evidence it is able to lead in this matter and they should not speculate any further about that. I don’t know how you can ever explain in a way - in any other way your Honour because if your Honour mentions the very existence of medical examinations or certificates and then says, don’t speculate why you haven’t got one--
CROWN PROSECUTOR: Your Honour, could I suggest this that if it’s framed in the way my friend suggests then, that the Crown has done all it could, the inference is well, if there was something better the Crown would have done it.
HIS HONOUR: Yes, that’s right. I think that really operates against the accused.
CROWN PROSECUTOR: If it’s done in the way that I suggested that --
HIS HONOUR: Both sides have done as much as they could.
CROWN PROSECUTOR: Well, it may--
WILSON: No onus on me, your Honour.
CROWN PROSECUTOR: It may have some impact there, your Honour, perhaps a neutral way of doing it would be simply to tell the jury that they would understand, that there are very strict rules governing the way in which evidence is adduced and what evidence can be adduced that all those rules had been complied with and that the materials that are not before them they should not in any way speculate as to why that is so and just assure them that all parties have complied with the various evidentiary rules that they are obliged to follow.
WILSON: Just with reference to the materials that are not before, that worries me, your Honour. It alerts them to the fact that there--
HIS HONOUR: Any material that they might think should be before them but isn’t--
WILSON: Yes.
HIS HONOUR: Perhaps put it in that sort of frame.
WILSON: Yes, that’s the way, thank you, your Honour.
CROWN PROSECUTOR: Whether it exists or not.
WILSON: Yes, that’s right. Certainly. And that yes, the last question can be answered as to the date. Because - and your Honour could say that you know in evidence that on 22 April the statement was given to Constable Chapman (?) [Constable Tony Chapman who took the complainant’s statement on 22 April 1997 but did not give evidence]. Whether or not - the other part about the behaviour is not a matter that is probably admissible without expert evidence. It’s just inadmissible your Honour. So there is simply just no evidence about that, the behaviour change.
HIS HONOUR: The note I’ve made is to this effect, let’s see if this is in accordance with your joint submissions. I would propose to tell them there are very strict rules about evidence, what can be led and how. Both parties have complied with those rules in this trial. You might think that there could be other material in existence which is not being presented to you. You must not speculate as to whether such other material does exist or not and you certainly must not speculate as to what that material might establish if it existed. You should leave aside any other queries you may have or hopes or expectations in relation to the evidence and concentrate solely on the material which has in fact been put before you.
CROWN PROSECUTOR: Yes, your Honour.
WILSON: Yes, thank you.
HIS HONOUR: Does that suit you both?
WILSON: Yes, your Honour.
CROWN PROSECUTOR: Certainly, your Honour, yes. And your Honour, there is the answer to the one question.
HIS HONOUR: Yes, the one question of 15th of April
IN THE PRESENCE OF THE JURY
HIS HONOUR: Members of the jury, thank you, for your note which for the record I read as follows: ‘What happened for [the complainant] to tell her mother, what has brought this up, is there any medical evidence for [the complainant], did mother take her to doctor, did [the complainant’s] behaviour change, ask both parents, when was this reported to the police, what date?’
Now I can remind you of the evidence which has been led in relation to the last of those queries. The evidence is the 15th of April 1997. And you know that the statement was in fact taken in detail from [the complainant] on 22 April. So the police were contacted on the 15th and the full statement was taken on the 22nd and that’s part of the evidence.
Your other queries however, caused me to give you these directions as a matter of law, reminding you of something I said when I was dealing with the way in which you can ask questions, directing them to me because I said then there are rules about what can be asked, sometimes on how it can be asked and so on. There are very strict rules about evidence in the way of what can be led and how. Both parties to this trial have complied with those rules. You might think that there could be other material in existence, which has not been presented to you. You must not however speculate as to whether such other material does in fact exist or not. You most certainly must not speculate about what that other material might establish if it in fact existed. You should leave aside any other questions which are not covered by the evidence or any hopes that you might have or any expectations that you might have. You must concentrate only on the material that has in fact been presented to you.”
Counsel then addressed and the trial Judge summed up to the jury.
Summing Up

Early in the summing up, the trial Judge, having given directions about the respective functions of judge and jury, said:
“So I will keep my directions or my references to the evidence as brief as I think I can consistent of course with my obligation to give you a full set of directions about the law. That approach however requires that I give you a couple of warnings. The first is that simply because I refer to some part of the evidence and not to others, that does not limit you to the parts to which I have referred nor does it mean that the parts that I have referred to are the important parts and the rest is somehow of less importance.
….
The second warning I should give you is that because it is not my job to decide the facts, I endeavour at least to follow a policy of not expressing any view of my own about what the facts are or what you should find them to be. If you think I fail in that, if you think you picked up some hint or some indication from me of my opinion on the facts, it is important that you remember you are not only entitled to disregard my opinion on the facts, you are indeed obliged to disregard my opinion on the facts unless of course it happens to coincide with some view you have yourselves independently formed. I repeat, it is your job to decide the facts not mine.”
Later in the summing up, the trial Judge made two observations of a general nature about “all witnesses in all trials.” In the course of those observations, his Honour said:
“The human faculty of recollection is subject of course to decay as you understand and in this case you are dealing with the capacity to articulate on the one hand of a child who is now ten and talking about events which are in fact almost three years ago and so on.
That does not mean of course in relation to [the complainant] that because she is a child, you simply overlook any shortcomings, flaws or errors in her evidence. But it does mean that you are required to apply to her the standards that you would find appropriate to a child talking about things relatively a long time ago and not expect her to perform in the way in which you would expect an adult. And you will remember when I was talking a moment ago about the circumstance in which one’s powers of observation are called upon, that she, if you accept what she says, was subjected to what must have been a very stressful experience in the life of an eight-year-old. Now, stress can itself affect the way in which people make observations and I am sure you have been in a situation of being under stress and finding that some things are indelibly imprinted in your recollection and you have probably also realised that some of the things that were going on around you did not register at all and so on. So that stress can have an effect both in terms of sharpening and in terms of blunting one’s powers of observation, recollection and so on.”
Further on the trial Judge said:
“And bear in mind of course that it is not a question of you choosing to prefer one side or the other, the obligation I have explained to you is on the Crown to satisfy you beyond reasonable doubt, which it attempts to do on the basis of the girl’s evidence alone and if the Crown persuades you to that level of satisfaction, then you convict. If you have a reasonable doubt, then you do not convict, you indeed acquit.
The evidence upon which the Crown seeks to persuade you comes of course from [the complainant] and [the complainant] alone. Again as the Crown observed, it is not uncommon that there should be only the one witness in cases of this nature because these activities are not normally engaged in in the presence of witnesses. But whenever there is only one witness to a crime, I am obliged to, as a matter of law not because of any view I have myself formed about [the complainant] either positive or negative but nonetheless I am obliged to give you this caution and when you hear it, you will understand that it is no more than common sense anyway. The caution is that you must approach her evidence with particular care and scrutinise it with great care because she is the only witness against the accused. And really all that means is that the Crown having the obligation to satisfy you beyond reasonable doubt of the guilt of the accused, if it has only one witness whose evidence is capable of doing that, then it makes perfectly good sense that you should be careful in the scrutiny you apply to that witness to make sure that that witness’s evidence does satisfy you beyond reasonable doubt.”
Further on and dealing with Mr Wilson’s address to the jury, the trial Judge said:
“And Mr Wilson says, well, there you are she did not make any complaint and you would expect her to make a complaint and the fact that she does not tell her parents or her mother at least when she returns to the scene is an indicator that there was nothing to complain about; that these things in fact did not happen. And whenever that submission is made, I am again obliged as a matter of law and not because of any view I have formed in this trial to give you certain directions. The first of those directions is that certainly if somebody does not complain, then that is obviously consistent with there being nothing to complain about. But I am also obliged to warn you in cases of sexual assault that there may be many reasons why a person does not complain either immediately or indeed at all. And the fact that they make no complaint does not prove that there was nothing to complain about. In this case, leaving aside questions like the general nature of children and making complaints and so on, [the complainant] says that she did not complain because the accused had in fact made a threat, telling her not to tell her mother or he would bash or kill both her mother and her baby brother, [B]. And of course counsel made a number of points in relation to that aspect as well. The Crown making the point as I understood it, that for a child who was eight at the time that she went to the police about these things and ten now, to have injected the element of there being a threat made by the accused, a threat in fairly sophisticated terms to not only her mother but her unborn sibling is the sort of thing that you would find persuasive as indicating that this is a detail you would not expect an eight year old to come up with. On the other hand, Mr Wilson says that the threat could not have been made in the terms in which [the complainant] says it was made because the accused could not have said I will bash or kill your mother and [B] because on any view of it [B], not being born until 30 March, was not born at the time at which these events took place if they took place.
The Crown in answer to that, again as I understood his argument said that if you are dealing with an eight or a ten year old, the fact that the child has since been born under the name [B], is an indistinguishable thing from the unnamed ‘child’ who was in her mother’s womb at the time, so you do not read anything particular into that whereas Mr Wilson says that you take it literally and that is what she is asking you to do and you do read into that, that she is talking about an impossibility. It is a matter for you what effect those arguments have on your mind. But that is all I need to tell you about the making of the complaint or the failure to make a complaint at that time. She says that is the reason she did not do it. Ultimately of course she did go to the police and we know on 15 April and made the full statement a week or so later on the 22nd.”
Later in the summing up, the trial Judge came back to remind the jury of some of the arguments that had been put by counsel. His Honour said:
“[n]ot necessarily all of them but I will take you through to remind you very briefly of some of the things they said in order to assist your recollection by refreshing them.”
His Honour referred first to the arguments put by the Crown prosecutor and, in particular, his argument about the truth of the complainant’s evidence. His Honour then said:
“I have already mentioned the idea of the sophisticated threat being in his submission beyond the capacities of a child of her age and the sort of details which she invested her story with like the accused going to the toilet and the order in which these sexual activities took place being what you would expect of sexual activities of this nature, although not of course involving a child but indeed beyond the capacity of a child to get what you might think was the correct sequence.”
In this passage, the trial Judge was seeking to summarise what the Crown prosecutor had said in his address and without objection. The Crown prosecutor had said:
“Now you see [the complainant] told you as part of these events that occurred in the bedroom that the accused threatened her, that he said to her something to the effect that ‘Look I’ll harm your mother and [B].’ And she made no complaint about these events when her parents came back from shopping. You might think that if such a threat had been made to such a young child that it would be natural for that child not to say anything if the complaint was effective, if the threat was effective there would be no complaint. She says this was the threat that was made. That threat, you might think for an eight year old child thinking back on it giving evidence two years later, is a fairly difficult kind of thing to articulate because the threat was to the effect that it’s made when her mother is pregnant, her mother subsequently gives birth to the child [B] and in the evidence of [the complainant] the threat is ‘Well look I’ll hurt your mother and [B].’ That threat in the Crown’s submission was made and was effective because it was that [the complainant] never complained to her mother at the time they returned from shopping. Now it may be that you would know and it may be that his Honour will give you some direction about it, that there might be any number of reasons why people delay complaining about sexual matters or never complain about them at all. But the fact that there is a delay in making a complaint doesn’t mean that when eventually [the complainant] comes to tell people what has happened to her isn’t true. That threat that the accused made and the complexity of the threat, that is in relation to the unborn child being harmed as well, is a complexity in [the complainant’s] story that in the Crown’s submission simply wouldn’t be there unless it was that she was telling the truth. You might think that that little gloss on the story is something that a child couldn’t put there unless it was true.
Just in relation to those little details, [the complainant’s] evidence was that when these events came to an end the accused left and went to the toilet. And again in the Crown’s submission that’s another detail that gives you an insight into the truthfulness of [the complainant’s] account. The order of the events that she describes may be distasteful but she describes that there was a licking of the vagina, that there was then an insertion of the finger and that there was then an insertion of the penis. That order, that chronology is something that in the Crown’s submission you might expect the chronology to be and again is a detail that lets you look at the truthfulness of her account.”
The part of the summing up on which grounds 3 and 4 of the appellant’s appeal are based is that part of the quotation which starts with the words “the sort of details” down to “correct sequence.” A little later in the summing up, when dealing with Mr Wilson’s address to the jury, the trial Judge said:
“ He suggested to you, the impression you would have had from her was not that which you would expect of a child who had been sexually assaulted as she claimed.”
Shortly afterwards the summing up ended and no relevant exception was taken to it.
The jury retired to consider its verdict on 14 December. Thereafter a note was received from the jury “Audio tape required for when Mr Crown questioned [the complainant] on when she was dragged into the bedroom and then when he went to the toilet”. Later, the foreperson indicated that what was required was the whole questioning from when the complainant was actually dragged until the appellant went to the toilet. The jury returned with its verdict the next morning.
Remarks on sentence
In his remarks on sentence, the trial Judge said that the appellant was of aboriginal descent. At the age of twenty he formed a relationship from which there were three children. His two daughters are now in their teens and are doing well in high school. The appellant was, for a time at least, the sole carer. He had a close relationship with them. The appellant’s son aged nineteen was in a somewhat different category. His Honour said:
“I was told during the course of the trial that he [the son] is in prison for sexually abusing the same victim and hence there was no medical evidence called, despite the positive findings of penetration, on medical examination of the child because there was no way of distinguishing between the damage done by this prisoner or by the other offender.”
At the end of the remarks on sentence, the Crown prosecutor said:
“Your Honour one very minor matter in relation to Russell Bamblett junior the term of imprisonment that he is serving in fact relates to one of [the complainant’s] siblings and not to her.”
Apparently, it had also been alleged that the son had sexually assaulted the complainant.
Grounds of appeal
The appellant relied on the following grounds of appeal:
1.The learned trial judge erred in qualifying his warning to approach the uncorroborated evidence of the complainant with caution with the words ‘I am obliged as a matter of law not because of any view I have myself formed about [the complainant] either positive or negative but nonetheless I’m obliged to give you this warning’.
2.The learned trial judge erred in qualifying his warning as to the absence of complaint with the words preceding the warning ‘And whenever that submission is made, I am again obliged just as a matter of law and not because of any view I have formed in this trial to give you certain directions.’
3.The learned trial judge erred in characterising the Crown case as one suggesting that the allegations were ‘beyond the capacities of a child of her age’ as to the detail and nature of the sexual activities described.
4.The verdict was unreasonable and a jury acting reasonably should have had a reasonable doubt as to the appellant’s guilt.”
Rule 4 of the Criminal Appeal Rules provides that no direction or omission to direct given by the Judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for appeal unless objection was taken at the trial to the direction or omission by the party appealing. At this trial, the appellant’s counsel took no objection to the directions now complained of in grounds 1, 2 and 3.
In R v Abusafiah (1991) 24 NSWLR 531 in a judgment with which Gleeson CJ agreed and Mahoney JA agreed generally, Hunt J said at 536 that the requirements of rule 4 did not constitute some mere technicality which might simply be brushed aside
“the Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial.
There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice. The scope of r4 was discussed by this Court in R v Tripodina (1988) 35 A CrimR 183 at 191-195, and it is unnecessary to repeat what was said there.”
Mr Craigie, who appeared for the appellant on his appeal, faced this problem squarely and referred us to BRS v The Queen (1997) 191 CLR 275. In that case the majority of the High Court upheld an appeal on the basis that there was a miscarriage of justice as the result of the trial Judge’s failure to direct the jury according to law, because the jury might have convicted the accused by a reasoning process that a proper direction would have denied to them. At 306, McHugh J said:
“Trial judges have no authority to dispense with the directions that the law requires them to give in criminal trials. If the failure to give a direction may have resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. It is no answer that the directions which were given or not given gave the accused a better chance of acquittal than the directions that the law required. A person is entitled to be tried according to law. If the failure to give a required direction may have brought about the accused’s conviction, there is a miscarriage of justice.
So a critical question in the present case is whether there is a real chance that the omission to give directions concerning W’s evidence may have been the factor that resulted in the appellant’s conviction.”
It is appropriate to consider first whether the directions complained of, or any of them, gave rise to a miscarriage of justice. It is convenient to deal first with ground 3.
Ground 3
The appellant submitted that the direction suggesting that the complainant’s allegations were “beyond the capacities of a child of her age” as to the detail and nature of the sexual activities described gave the Crown the benefit of a consideration which it did not seek and to which it was not entitled. In their context the particular words complained of were: “the sort of details which she invested her story with like the accused going to the toilet and the order in which these sexual activities took place being what you would expect of sexual activities of this nature, although not of course involving a child but indeed beyond the capacity of a child to get what you might think was the correct sequence.” There was some debate between counsel and the bench about whether this passage went beyond, as the appellant submitted, what the Crown prosecutor said in addressing the jury.
The passage from the Crown prosecutor’s address which I have quoted deals with the terms of the threat said by the complainant to have been made to her by the appellant and the delay in her complaint. It deals with the threat as an explanation for the delay and the reference in the threat to the unborn child as a gloss that a child could not put there unless it was true. The complainant’s evidence about the appellant leaving and going to the toilet was submitted to be “another detail that gives you an insight into the truthfulness of [the complainant’s] account”. The order of events is referred to and the Crown prosecutor said:
“That order, that chronology is something that in the Crown’s submission you might expect the chronology to be and again is a detail that lets you look at the truthfulness of her account.”
Nothing is said to suggest to the jury that these matters were “beyond the capacities of a child of her age” to invent, beyond the statement in relation to the threat of the harm to the unborn child about which the Crown prosecutor said: “You might think that that little gloss on the story is something that a child couldn’t put there unless it was true.”
In my opinion, the learned trial Judge took this further, though I accept quite unintentionally, when he linked the phrase “sexual activities of this nature” with the “capacity of a child” and this capacity to getting “the correct sequence”. Put bluntly, this passage in the context of the summing up as a whole could well have left the jury with the impression that the sexual activities the complainant described would have been beyond her capacity to invent because of her age. In this trial this was dangerous territory. On the material before this Court and perhaps before the trial Judge, it is difficult to assess the extent of that danger. The Judge was told that the complainant had been previously assaulted by another person. Because of this sexual abuse, no medical evidence was called “because there was no way of distinguishing between the damage done by [the appellant] or by the other offender.”

The parties had agreed that it would be unfair to the appellant to allow the jury to think that because of the capacities of a child of her age, the complainant could not have invented the sexual activities she described. Nothing is known about the nature of the other sexual abuse, when it took place and whether it involved one occasion or more than one occasion. The parties accepted that all such evidence was inadmissible, perforce of s409B of the Crimes Act 1900, then in force. Perhaps more accurately, the Crown saw it as equivocal. All this made it the more important that the jury did not think that because of the age of the complainant she could not have invented the sexual activities she described.
To some extent the argument became one of whether the Crown prosecutor had been permitted without objection to trespass into this dangerous area and whether the trial Judge was doing any more than reminding the jury of what the Crown prosecutor had said. Further, reference was made to the trial Judge’s account of Mr Wilson’s submission to the jury that the impression they would have had from the complainant “was not that which you would expect of a child who had been sexually assaulted as she claimed”. According to the summing up that was a different point based on the complainant appearing open, friendly and unemotional or in an emotionally unscarred way. In my opinion, there was a real danger that the jury may have been led to believe that because of her age the complainant had no capacity to invent the sexual activities she described. That impression may have been a false one and to that extent the jury misled. The possible miscarriage of justice that resulted was such that leave should be granted under r4. I would uphold this ground of appeal.
Grounds 1 and 2
Both these grounds concern the form of the directions given in relation to the complainant’s evidence being uncorroborated and the absence of complaint. They were said to suggest that the trial Judge may have held a view about the complainant’s evidence favourable to or sympathetic with the complainant and that it was only because obliged by law that the direction was given. It was a mere technicality.
If these directions are read in their context, I do not think the criticism is well founded. In the case of the first direction, the trial Judge immediately went on to say that the caution was that “you must approach her evidence with particular care and scrutinise it with great care because she is the only witness against the accused”. A little later he said “it makes perfectly good sense that you should be careful in the scrutiny you apply to that witness to make sure that that witness’s evidence does satisfy you beyond reasonable doubt”. The second direction was immediately followed by the statement:
“The first of those directions is that certainly if somebody does not complain, then that is obviously consistent with there being nothing to complain about. But I am also obliged to warn you in cases of sexual assault that there may be many reasons why a person does not complain either immediately or indeed at all. And the fact that they make no complaint does not prove that there was nothing to complain about”.
Quite appropriately the trial Judge impressed upon the jury that the directions were not given because of any view he had formed but because he was obliged by law to do so. I can see no impropriety in these directions taken either individually or together. In my opinion, leave to rely on these grounds of appeal should be refused. Compare R v Zammit (1999) NSWCCA 65 at para 79-82.
Ground 4
The appellant submitted that this Court should conclude that, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. Reference was made to the joint judgment of Gaudron, McHugh and Gummow JJ in Jones v The Queen (1997) 191 CLR 439 at 450-451 where their Honours referred to the decision of the High Court in M v The Queen (1994) 181 CLR 487 at 493 and went on to say that the majority in that case emphasised that it was not the function of the Court to answer that question merely by examining the transcript of evidence and the exhibits. The majority in M at 493 said that:
“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.”
However, the majority went on to explain the test as follows:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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.”
In Jones at 452 Gaudron, McHugh and Gummow JJ said:
“..the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.”
In M v The Queen at 493 the majority of the Court quoted with approval a passage from the decision of the Court in Davies and Cody v The King (1937) 57 CLR 170 at 180 in which it was observed that a Court of Appeal will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand “because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled”. In M v The Queen at 504 Brennan J said that “it would be a mistake to regard any case in which there is a ‘substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken’ to be a case calling for the quashing of a conviction.” For present purposes it is sufficient to point to the consequence of the jury being misled.
The appellant relied upon discrepancies in the complainant’s evidence. In her evidence in chief, the complainant was taken back to Christmas time “after you were in Mr Ford’s class”. The complainant said that when she was in Year 2, being the year in which the offences were committed, she had two teachers, Mr Ford and Miss Dakin. She gave evidence that in March 1997 she was in Miss Dakin’s class. In cross-examination, she said that her first teacher in Year 2 was Mr Ford in class 2F. Miss Dakin’s class was 2D. However, she said the offence occurred on a school day when she was in Miss Dakin’s class.
There was evidence that her brother B’s date of birth was 30 March 1997. She could not remember whether or not her younger brother had been born. She could not remember if she had been in Miss Dakin’s class before or after Easter. The Easter holiday commenced on Good Friday, 28 March. She remembered the day on which the appellant and his family moved from Dubbo. She agreed the matter she complained of happened before the move. She could not remember if her brother had been born at this point. Initially she denied that she had been present at the removal truck and could not remember if on the day of the alleged assault she had been in the water. She later conceded when shown a photograph that it showed herself and her siblings at the removal truck with the appellant and others on the day he moved from Dubbo. She could not remember if the appellant had been present before her parents left the house on the day she was assaulted. She could not remember if he had been outside at any point of time. She agreed that her eldest sister, then aged eight, another sister aged six and a brother aged three were playing outside. She could not remember if the appellant had checked on the other children and could not remember if he had remained when her parents returned home. The assault was alleged to have taken place in the main bedroom from which the complainant said one could see through the front window which had its curtains tied back to permit in air and light. At no point during the alleged assaults did the appellant make any effort either to check as to the whereabouts of the other siblings or secure himself from view or unwelcome entry through the door which was left open.
The complainant was cross-examined about evidence she had given at an aborted trial which began on 22 October 1999. At that trial she gave evidence that the appellant had pulled her swimming costume down and they were described by her as “still on me somewhere”. This was inconsistent with her evidence in the present trial where she could not say whether the costume was on or off. The complainant did not dispute the inconsistency but said that her memory was better on the occasion of the first trial. In cross-examination she said that she now remembered that the costume was still on her somewhere. She was asked: “That’s because you said it last time is that right?” and she answered “Yes”.
In chief the complainant said that the appellant had told her to close her eyes and that later she opened them and “saw his private”. Her statement to the police in this regard was quoted to her. In that the complainant told the police that the appellant pulled his own pants down and that she “didn’t see his private”. The reason given for this was “cause I didn’t to”.
The appellant submitted that there was conflict between this earlier account and the version asserted in chief that the complainant had seen the appellant’s genitals when he pulled down his pants. The complainant gave evidence of the appellant pulling down his tracksuit pants and then being told “to close me eyes”. She was asked:
“Q. Yes, and did you close your eyes? A. Yes.
Q.And what happened after you closed your eyes? A. I seen his private.”
In cross-examination, she was asked:
“Q.And after he pulled your costumes down he pulled his tracksuit trousers down, is that right? A. Yes
Q.After he pulled his tracksuit trousers down did he then ask you to close your eyes? A. Can you please repeat that?
Q.Right. After Big Russell asked, took his tracksuit trousers down did he ask you to close your eyes? A. No.
Q.What was the next thing that happened after he took his tracksuit trousers down? A. (No verbal reply).”
In her evidence in chief, the complainant gave an account of the appellant first licking her vagina and “after he licked your private”, “he put his private into my private”. She said that he was moving up and down during this act. She was asked:
“Q.Did Uncle Russ do anything else to you that day? A. Yes.
Q.What else did he do? A. He put his finger into my private.”
The complainant conceded that her statement to the police was inconsistent with her evidence in chief and cross-examination wherein she had asserted that the appellant was lying on top of her “only when he put his private in [her] private”. In her statement, the appellant had said the appellant climbed on top of her before he commenced licking her vagina which was the first in a sequence of three acts. The complainant asserted that, notwithstanding the conflict with the statement given to the police, her version of events at trial was correct. When cross-examined on the matter, she replied that she did not know for how long the appellant had inserted his finger. When pressed, the complainant said that she could not remember if the appellant had lain right on top of her nor could she remember the position of her legs, apart from saying that they were apart in answer to the question “Do you know if your legs were together or apart when he lay on top of you?”. As to the duration of the act of penile-vaginal intercourse, the complainant said that this had been “a short time” although she agreed that on 22 October she had said that she could not remember whether this had been a short time or a long time. She could not remember the degree of penetration and said she had not seen the appellant’s private inside her private. The complainant was cross-examined about an apparent inconsistency between evidence given on 22 October where she had said in relation to her costume “he pulled them up”, whereas in chief in the present trial, she had asserted that she herself had pulled up her swimming costume. The complainant finally asserted that the appellant was still in

Dubbo when her brother B was born on 30 March 1997.

In the defence case, the appellant availed himself of a partial alibi in the shape of details pertaining both to his moving from Dubbo to Gilgandra and related preparations for the move which coincided with a court commitment by his son in Gilgandra. The appellant gave evidence that his five brothers and three sisters lived in Gilgandra. He visited Gilgandra for the purpose of accompanying his son to court on 12 February 1999. On this occasion, he stayed for a week with his niece, Miss Sally Anne Carr. Thereafter he stayed a further week with his sister-in-law, Mrs Fuller. Whilst in Gilgandra, he made arrangements to rent a house so that he could be near his son “because of the problems he was having at Gilgandra”.
The appellant’s father lived in Gilgandra and was in poor health. This was cited as another reason why the appellant considered it desirable to move. After spending the last week in Gilgandra with his sister-in-law, the appellant made arrangements with Mr and Mrs Jackson to rent a house in Hunter Avenue, Gilgandra. The house and grounds were in need of a substantial amount of tidying up and, on agreeing to attend to this, the appellant was forgiven a week’s rent. He returned to Dubbo and made arrangements with Mr Gus Semmler, a friend, to move his furniture. Tendered on the appellant’s behalf was a document indicating the payment of rent for periods commencing on 9 March 1997. The appellant identified the photograph earlier shown to the complainant as one of himself, the complainant and others gathered about the removal truck on the day that he had arranged to have furniture removed from his Dubbo home to Gilgandra. He said that after the furniture left on the truck, he returned the children to their home and then stayed overnight at the home of his sister-in-law, Miss Elizabeth Carr and her partner Mr Maurice Wright. The following day, he went to Gilgandra.
In cross-examination, the appellant conceded he had earlier given evidence in an unrelated matter on 31 August to the effect that he had been in Dubbo for three or four days after the furniture had left on the removal truck. This account was agreed to be “probably correct”, although the appellant said that “I would have left about two or three days later”. The effect of evidence called from his sister-in-law Mrs Fuller, his sister, Mrs Fay Kearney and niece, Miss Sally Anne Carr, was to confirm that for some weeks in February 1997, the appellant had stayed with each of them in Gilgandra. The window of opportunity for the commission of the alleged offence was thereby substantially narrowed.
The appellant relied upon the age of the complainant, the absence of corroboration of the complainant’s evidence and the inherent unlikelihood of the complainant’s account. A single occasion was relied upon. There was no suggestion of dis-inhibition from alcohol or any other explanation. The appellant was alleged to have launched into a series of quite unexpected sexual acts upon the complainant. At the time the complainant’s three siblings were nearby and free to wander about the house, including through the back door. The curtains of the main bedroom where the alleged attacks took place were drawn apart, giving a view both in and out of the window. The appellant was not said to have taken any precaution either to secure the door or the window or to ensure that he would not be interrupted.
The appellant submitted that the assertions by the complainant that she had been threatened to remain silent by reference to harm which could befall her mother and as yet unborn brother were inherently unbelievable. It was submitted that the Crown’s argument that the name “B” was used as a transposition of a known detail into recounting a past event should not be accepted.
In the course of her evidence, the complainant in answer to a question “When these things happened to you on this day, was [B] already born?” she said “Can’t remember”. Later in her evidence, she was asked and answered:
“Q. Did these things happen that you say happened in the bedroom did they happen before [B] was born? A. Yes.
Shortly afterwards the complainant was asked what the appellant said to her.
“What did he say? A. He said ‘Don’t tell your mum or I’ll kill your mum and [B]’.
Q.           Is that what he said? A. Yes.
Q.           Did he say [B’s] name? A. Yes.
Q.           You sure about that? A. Yes.”
The appellant submitted that there was plainly no misunderstanding on the part of the complainant and that her evidence in this regard could not be accepted as anything other than untrue. Although it would be completely understandable for an eight year old, having had a brother born and subsequently named, retrospectively to substitute the name of her brother for the unborn baby, in this case, at first, she was not sure whether the baby was born or not but later she was definite that it occurred before [B] was born. In the absence of any evidence of pre-knowledge of the gender of the baby and what the baby’s name was to be, her evidence is more consistent with construction or reconstruction of the event afterwards. This raises concern about the reliability of her evidence.
Overall the appellant submitted that the complainant’s evidence was not of a sufficient and compelling pattern of consistency and detail to remove a justifiable concern that her evidence was either in whole or in part not a truthful account of what passed between herself and the appellant. It was further submitted that there was a disturbing possibility that the evidence had about it “a veneer of truth because over a period of time there was a possibility that matters suffered not at the hands of the appellant but at the hands of another attacker had been confused with or substituted for the truth”.
As I have indicated, in my opinion, the danger of the jury proceeding on a false basis as a result of the direction given about the capacities of a child of the complainant’s age mean that the verdict must be quashed. There is undoubtedly a level of inconsistency in the complainant’s evidence but the jury saw and heard her give it. I would regard these inconsistencies as peripheral. If they stood alone, it still remained open to the jury to be persuaded beyond a reasonable doubt that the acts of sexual abuse the complainant had alleged had occurred; see R v McKnoulty (1995) 77 A CrimR 333 at 338-9; R v RMM (1996) NSWCCA Butterworths Unreported Decisions at 8 and following. However, they must be viewed in the context that on another occasion before the trial the complainant was sexually abused. As I have said, the extent and nature of that sexual abuse is unknown and will not be known to the jury if there is a new trial. This element of unreliability in the complainant’s evidence adds to the significance of the inconsistencies in her evidence. In my opinion, the conduct of the trial resulted in a miscarriage of justice. Any new trial would involve a further miscarriage of justice. The verdict should be quashed. The appellant is entitled to a verdict of acquittal.
ORDERS

In my opinion, the following orders should be made:
1.            Appeal allowed;
2.            Quash the conviction;
3.            Substitute a verdict of acquittal.
JAMES J: I agree with the judgment of Sheller JA.
DOWD J: I have seen the reasons for judgment of Sheller JA. I concur with the proposed orders, and with those reasons.

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LAST UPDATED: 07/11/2000