R v BDF

[1999] NSWCCA 98

CITATION:	R v BDF [1999] NSWCCA 98
FILE NUMBER(S):	CCA 60340/98
HEARING DATE(S):	1/12/98
JUDGMENT DATE:	6 May 1999
PARTIES :	BDF (Appellant) Regina (Respondent)
JUDGMENT OF:	Sheller JA at 1; Dowd J at 3; Hidden J at 78

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC322 372/98
LOWER COURT JUDICIAL OFFICER:	Ford ADCJ

COUNSEL:	GP Craddock (Appellant) LMB Lamprati (Respondent)
SOLICITORS:	TA Murphy (Appellant) SE O'Connor (Respondent)
CATCHWORDS:	Conviction unsafe and unsatisfactory; appropriateness of decision to allow cross-examination of Crown witness; error contended as to admission of evidence; contention as to inadequate directions of complaint; refusal to limit evidence.
ACTS CITED:	Evidence Act 1995 (NSW)
CASES CITED:	BD (1997) 94 A Crim R 131 Graham v R (1998) 157 ALR 404 Jones v R (1997) 2 ALJR 78 Longman v R (1989) 168 CLR 79 M v R (1994) 181 CLR 487 R v Papakosmas (CCA NSW unreported 10 December 97) Fleming v The Queen (1998) 158 ALR 379
DECISION:	Appeal allowed; Convictions quashed; Direct a judgment and verdict of acquittal on each count

IN THE COURT OF
CRIMINAL APPEAL

SHELLER JA
DOWD J
HIDDEN J

60340/98

6 May 1999

R v BDF

JUDGMENT

1    SHELLER JA: On 1 December 1998 at the conclusion of the hearing of this appeal the Court made the following orders:

1 . The appeal is allowed;

2. The convictions are quashed; and

3. A new trial is ordered.

The Court stated that it would give its reasons for judgment later.

2    In the course of preparing these reasons the Court has reached the conclusion that the verdict of guilty was unsafe. The reasons for that conclusion are set out in the judgment of Dowd J with which I agree. That being so I am of the opinion that the appellant is entitled to a verdict of acquittal and that the order for a new trial should be revoked.

3    DOWD J: The Appellant was indicted before his Honour Ford ADCJ and a jury of twelve at the Campbelltown District Court on six counts, being three counts of attempting sexual intercourse without consent in circumstances of aggravation, namely that the victim was under the age of 16 years (counts 1, 2 and 5) and three counts of having sexual intercourse without consent, in the same circumstances of aggravation (counts 2, 4 and 6) to all of which counts the Appellant pleaded not guilty. The Complainant gave no evidence of penetration, and on that basis, the Crown asked and his Honour agreed to put the counts alleging sexual intercourse (counts 2, 4 and 6) to the jury as attempts.

4    On 30 March 1998 the jury returned with verdicts of guilty to all counts. On 12 June 1998 the Appellant was sentenced on all counts to a minimum term of penal servitude for 2 years 6 months for each count, commencing on 12 June 1998 and expiring on 11 December 2000, with an additional term of one year 6 months, commencing on 12 December 2000 and expiring on 11 June 2002, the sentences to be served concurrently. The Appellant appealed against his conviction.

5    The Complainant, who was aged 10 at the time of the events that are the subject of the first count, lived with her mother, her siblings and the Appellant whom her mother had married in November 1993. During the trial there was evidence to the effect that the Complainant did not get on with the Appellant stemming from the fact that the Complainant’s mother had left the Complainant’s father to enter a relationship with the Appellant.

The Offences

6    The first count arose form an incident alleged to have occurred on a day between 26 May 1993 and 20 November 1993, some time after the Complainant’s tenth birthday and the before the Appellant’s marriage to her mother. The Complainant’s evidence was she had gone into the lounge room to watch television whilst her mother was in her bedroom. According to the Complainant, the Appellant asked her to come and lie on the lounge with him. Her evidence was that when she went and lay in front of him on the couch, the Appellant took down her underpants and tried to put his penis into her anus. She told the Appellant that it was hurting but he did not respond. She and the Appellant were the only ones in the lounge room. The Complainant gave evidence that her mother then walked past in the hallway and then told the Complainant to go to bed.

7    When cross-examined as to why this evidence was not contained in the Complainant’s statement provided to police, she gave evidence that she had told police about the incident, but that they must have omitted it from her statement, which she did not re-read thoroughly as she had been told simply to “skim through it”.

8    The Complainant’s mother, Jennifer, was cross-examined in depth about this incident and on what was contained in her statement to police that around this time she started to get suspicious that the Appellant might touch the Complainant and felt unsafe about them being on the lounge together. Jennifer said to the Appellant: “Caroline is coming to maturity. Do not lie on the lounge with her”. Reference was also made to her comment in the statement that there were occasions when the Appellant walked around the house naked after he had a shower.

9    The second count arose from an incident alleged to have occurred when the Complainant was eleven years of age, around Christmas time in 1994. On this occasion the Appellant went into the Complainant’s bedroom, pushed her onto the bed, pulled down her underpants and his pants, and tried to place his penis in her anus. The Complainant gave evidence that she was very sore and despite telling the Appellant to stop, he refused. He then tried to put it in her vagina. Her evidence was that after this occurred the Appellant got up, wiped a white-coloured liquid from his penis and went out of the bedroom. The Complainant did not mention either of these occasions to anyone because she said she was scared.

10    The third count arose from an incident alleged to have occurred some time after Christmas 1994. On this occasion the Appellant told the Complainant to lie over her mother’s bed. When the Complainant refused the Appellant pushed her onto the bed and sat on her leg. The Appellant then left the room. The Complainant’s evidence was that she was afraid to move because she thought he would hit her. When the Appellant returned to the room, the Complainant gave evidence that the Appellant closed the windows and he pulled the curtains. He then came over to her and pulled down her underpants and tried to penetrate her anus. Later, he got up, wiped his penis and walked out of the bedroom. Again, she told no-one of this event, because she was scared.

11    The fourth count arose from an incident alleged to have occurred some time after that Christmas, when the Appellant asked her to come down to the workshop in the basement of the house after telling her that he was working on a toy train set. When the Complainant was near the door, the Appellant pushed her over a cement step into a kneeling position. He pulled down her underpants and wiped saliva onto his penis. He then tried to penetrate her anus, and then her vagina. The Complainant said that it had really hurt.

12    Counts five and six arose from an incident alleged to have occurred sometime after the Complainant’s twelfth birthday when the Complainant was doing some cleaning in the home, and her mother was out shopping. On that occasion the Appellant approached the Complainant and made her kneel over the chair. He then went to the kitchen and got some oil. He put it all over his anus and her anus and tried to penetrate her. He also tried to penetrate her vagina, and then her anus again. The Complainant told him to stop, but he refused.

13    A friend of the Appellant, Gaynor, gave evidence that she had obtained a bottle of red massage oil from Jennifer in her kitchen.

14    It was not long after the episode with the oil that the Complainant first complained about the Appellant. Her evidence was that she was too scared to tell her mother about the incident and instead told a school friend, Lauren. Some time after speaking to Lauren, the Complainant, on 27 October 1995, went to see a school teacher at the Thomas Reddall High School where the Complainant was enrolled, and told her of the incidents which had occurred over the past three years. The Complainant told the teacher that on 19 October 1995 the Appellant had touched her. It was a time when the rest of the family had gone out shopping. The Appellant had told her to lean over a chair in the kitchen, culminating in his ejaculation into a towel. The Complainant had been touched by the Appellant over the preceding 3 years. The teacher reported the matter to the Department of Community Services, and a welfare officer was sent to the school.

15    On 1 December 1995, the Complainant spoke to a police officer with a view to withdrawing her complaints, which she did. She made a statement to that effect on 1 December 1995.

16    Shortly after withdrawing the complaints, the Complainant went to live with relatives in Western Australia. Whilst there she reinstated her complaints against the Appellant in a statement dated 3 April 1996. The Complainant gave evidence that she had revoiced her complaint because she did not want to feel scared of anybody.

17    On 9 April 1996 the plaintiff was examined by Dr Gardner. Dr Gardner’s examination revealed a partial disruption of the hymen consistent with partial penetration by a fully erect penis, enlarged veins around the anus and the presence of the organisms and Garnerella Vaginalis and myucroplasma hominis in her vaginal swabs. Dr Gardner’s evidence was that the presence of these bacteria in the vagina was consistent with sexual activity.

18    There were inconsistencies between the Complainant’s statement and her evidence at trial, in relation to the incident in the bedroom, as to whether she was already in the room or taken in there by the Appellant. She had also claimed that the Appellant had locked the bedroom door when this incident occurred, however later agreed that the bedroom door did not have a lock. The Complainant seemed unsure of whether the Appellant had attempted to penetrate her vagina on one occasion. She conceded the reference to the couch in her statement was wrong. It was put to the Complainant that it would have been almost impossible for her to have seen the Appellant wipe his penis if she was facing the opposite direction, to which the Complainant claimed she saw a reflection of him.

19    The Appellant denied sexually assaulting the Complainant in a record of interview, as he did at the trial where the Appellant gave evidence denying all of the Complainant’s allegations. The Appellant gave evidence that it was very rare that he would be left alone in the house with the Complainant and that his wife had mentioned that she wanted him to cease the practice of lying on the couch with the Complainant. Furthermore, the Appellant claimed that he was particularly concerned about sexual abuse, as he had been sexually abused by a step grandparent when he was a child.

20    The Appellant said that he married the Complainant’s mother in 1993 and that the Complainant had been upset with him, because the Complainant saw him replacing her natural father.

21    Other evidence presented on behalf of the Appellant included the evidence of Dr Moran, who said that the presence of the two organisms in the Complainant’s vaginal swabs was not conclusive of sexual abuse. Kenneth and Wayne, both friends of the Appellant, gave evidence that they would be happy for the Appellant to look after their children.

22    A James gave evidence that the Appellant loved children and would not touch them indecently, and the Complainant’s mother gave evidence that the Appellant was not the type of person who would commit such alleged offences.

The Appeal

23    The Appellant appealed against his conviction on a number of grounds:

1. The convictions are unsafe and unsatisfactory;

2. The trial judge erred in granting leave to the Crown to cross-examine the Complainant’s mother;

3. The trial judge erred in admitting evidence as to the Complainant’s mother’s suspicions;

4. The trial judge erred in admitting evidence of the Appellant walking around the house naked;

5. The trial judge erred in admitting the evidence of Dr Gardner in relation to the possibility of pre-pubertal penile penetration of the Complainant;

6. The trial judge erred in admitting the evidence of Gaynor as to a conversation with the Appellant on 20 August 1996;

7. The trial judge erred in his directions to the jury concerning the delay by the Complainant in making her complaint;

8. The trial judge ought to have limited complaint evidence pursuant to s136 of the Evidence Act 1995 (‘the Act).

24    I will leave aside, at this stage, the first ground to deal with the remainder.

GROUND 2 : Leave Granted to Cross-Examine the Complainant’s Mother

25 After the Complainant’s mother had been cross-examined by counsel for the Appellant, the Crown Prosecutor applied for leave under s38 of the Act for leave to cross-examine her on the basis that her evidence was “unfavourable” and that she had made a prior inconsistent statement. Leave was granted by the trial judge.

26 The Appellant submitted that the trial judge misunderstood the test for whether evidence was “unfavourable” in terms of s38 of the Act.

27    It was further submitted that the Complainant’s mother had not in fact made a prior inconsistent statement, as her statement referred to suspicions she entertained concerning the Appellant, and her evidence at trial related to whether she had seen her daughter on the lounge in a state of undress.

28    The Appellant also contended that the Crown should have made the application for leave to cross-examine at the outset, during examination-in-chief or not at all, as it was well aware of the witness’ attitude. The Crown, it was suggested, should not have free rein to cross-examine after cross-examination by the Appellant, as this tends to blur the onus of proof.

29 It was further submitted that s38 of the Act is a procedural section, not an admissibility section. The Appellant argued that the purpose of the application was to introduce evidence of the Complainant’s mother’s suspicions concerning her husband, which was not in accordance with the rationale behind s38.

30 The Crown submitted in reply that although it was aware that the Complainant’s mother wished to retract her statement, it was unclear which parts she wanted to retract. In her evidence in chief, she had been taken through her statement and said nothing unfavourable or inconsistent with her statement. It was only during her cross-examination that she gave unfavourable evidence and inconsistencies emerged. In her statement, the Complainant’s mother had alluded generally to having suspicions about improper sexual behaviour on the part of the Appellant towards the Complainant. The suspicions were based on her observations that the Appellant had, on two occasions, washed some towels which had already been washed that day. There were also a number of occasions where she had left the Appellant and the Complainant at home alone and had telephoned the house, but no-one answered. It was submitted by the Crown that the Complainant’s mother’s evidence at trial was an attempt to downplay the suspicions she had initially harboured, and to this extent, it was inconsistent with her statement. It was submitted by the Crown that in addition to the inconsistencies between the Complainant’s mother’s evidence and her statement, she said some critical and hostile things about the Complainant, in particular suggesting that the Complainant was unreliable and untruthful. The Crown argued that such suggestions could certainly be construed as “unfavourable” to the Crown case and thus the granting of leave under s38 was justified.

31 There is a considerable tendency for those familiar with the law before the Act, to find the procedure of s38 of the Act somewhat difficult to adjust to. Section 38 of the Act is one of the most important provisions of the new Act. Although there appears to be something unjust about the witness who is cross-examined by the opposing party and then subject to cross-examination by the party calling the witness, this is clearly the intention of the Act. The unfavourable evidence which comes out may come out at any stage but is obviously more pronounced after cross-examination by the accused. It is intended to provide an opportunity for cross-examination, and I do not see that his Honour has erred in the substance of his application of the Act. The evidence given by the Complainant’s mother in cross-examination was clearly unfavourable to the Crown case and in her fairly clear attacks on the Complainant and her inconsistencies. I do not consider that this ground has been made out and would therefore dismiss this ground of appeal.

GROUNDS 3 and 4 - Admission of Evidence as to the Complainant’s Mother’s Suspicions and Admission as to the Appellant Walking Around the House Naked

32 The Appellant dealt with these two grounds of appeal together. The Appellant submitted that after permitting cross-examination of the Complainant’s mother by the Crown, “she was used by the Crown as a springboard to place before the jury a great deal of irrelevant and highly prejudicial material”. It was submitted that evidence of the Complainant’s mother’s suspicions, aroused after the towel and telephone incidents referred to in her statement, should have been ruled inadmissible as not passing the test of relevance in s55 of the Act. Particularly in relation to the telephone incident, the Appellant submitted that the Complainant had never claimed that she could not answer the phone because she was being molested. It was submitted that if evidence of these suspicions were admissible at all, it should have been excluded pursuant to the Court’s discretion under s137 of the Act.

33    It was further submitted on behalf of the Appellant that the trial judge paid too much attention to the Complainant’s mothers’ suspicions in his summing up and failed to give the common direction that suspicion cannot amount to proof.

34 The Appellant contended in relation to the Appellant’s nakedness around the house, that the trial judge himself questioned the Complainant’s mother about her asking the Appellant to stop going around the house naked. It was submitted by the Appellant that this evidence was of not relevance either because the Complainant had never suggested that the Appellant frequently went about the house naked. It was submitted that the evidence of the Appellant’s nakedness around the house could only have been used by the jury as tendency evidence, and that the trial judge’s questioning on the issue abrogated that law relating to the admissibility of such evidence under ss97 and 101(2) of the Act.

35    The Crown submitted in relation to the Complainant’s mother’s suspicions, particularly those aroused as a result of the towel incident, that this evidence was clearly relevant because the Complainant had testified that she had seen the Appellant wipe his penis after some of their encounters. The inference was fairly open, after it was shown that the Appellant had washed a towel that was already “clean”, that something had been put on the towel that he did not want anyone to discover.

36    Further, the Crown submitted that the evidence of the Complainant’s mother’s suspicions was also relevant to the jury’s assessment of her credibility, as that evidence, given in her statement, which was made much closer in time to the events in question, conflicted substantially with her evidence at trial which was that the Appellant’s re-washing of clean towels suggested nothing of untoward significance.

37    In relation to the trial judge’s questioning of the Complainant’s mother about the Appellant’s practice of walking around the house naked, the Crown submitted that, based on the Complainant’s mother’s answers to the judge’s questions, this evidence could not have been damaging to the Appellant’s case. The Complainant’s mothers’ response to the questioning was that she had objected to the Appellant walking around naked after he had had a shower, usually about 10:30pm, after the children were asleep, because she did not want the children to see him if by chance they were to wake up.

38 The evidence as to the Appellant wiping his penis and his walking around the house naked is clearly admissible evidence in the context of the trial. I do not accept that this comes within the tendency evidence provision. In a criminal trial, a Crown case can be made up by a series of circumstances, some of which may only have slightly evidentiary value, but which may cumulatively make up part of the Crown case. The evidence was not such as ought to have been excluded under Pt3.11 of the Act, and was evidence in a matter that ought have been before the jury whatever use may have been made of that evidence in argument.

39    I consider that neither of these two grounds has been made out.

GROUND 5 : Admission of Evidence of Dr Gardner on the Possibility of Pre-Pubertal Penile Penetration of the Complainant

40    The Crown case could go no further than alleging attempted penetration. This became clear prior to the completion of the Complainant’s evidence in chief. The Crown led evidence from Dr Gardner as to injury sustained. It was submitted by the Appellant that this evidence was irrelevant and highly prejudicial. It was submitted that, even though the allegations of penetration were withdrawn, the admission of Dr Gardner’s evidence may have led, impermissibly, to the jury being more comfortably satisfied as to the attempts.

41    The Crown submitted that, even though the Complainant may have been unable to say whether the Appellant’s penis had actually penetrated her vagina or anus, she was quite clear that he had made efforts to achieve those aims and this had caused her pain and soreness. Dr Gardner’s evidence as to whether there was actual penetration did not conclude that issue. There was however, evidence admissible as to the attempt at penetration. It was submitted by the Crown that, given that the Appellant denied that any sexual interference had occurred, Dr Gardner’s evidence was relevant to whether there had been any kind of sexual interference with the vagina and anal area of the Complainant.

42 The evidence of Dr Gardner was clearly admissible under the Act as to the attempt offences with which the Appellant was charged. The evidence of the organisms which Dr Gardner found indicative of a high suspicion that sexual abuse had occurred, and the examination of the child’s anus revealing evidence of perianal veins, which was unusual in children where no other unusual medical conditions pertain and which was associated in some children with previous penetration of the anus, was obviously consistent with evidence of a sufficient attempt to cause the Complainant pain and soreness during these incidents. The evidence was clearly relevant to the attempt. This ground is not made out and I would therefore dismiss it.

GROUND 6 : Admission of Evidence of Gaynor as to a Conversation with the Appellant on 20 August 1996

43    Gaynor gave evidence of a conversation she allegedly had with the Appellant after his arrest. It was submitted that the conversation had “sinister overtones” but lacked probative value. The effect of the conversation was that the Appellant was very angry about being charged and was saying that he would arrange for someone other than the Complainant’s mother to take custody of the children. The Appellant submitted that this evidence could have been combined by the jury with evidence improperly led from the Complainant’s mother as to whether she left the Appellant after the allegations were made known, suggesting that the Complainant’s mother believed the Appellant to be guilty.

44    In relation to ground 6, the Crown submitted that no objection was taken to the evidence of Gaynor at the trial. Indeed, Counsel for the Appellant sought greater detail about the conversation in cross-examination. A part of the conversation which the witness said had occurred on 20 August concerned the bottle of oil referred by the Complainant as having been used during one of the alleged sexual acts, and was thus extremely relevant.

45    It was submitted by the Appellant that the evidence that the Complainant was “angry” after being charged was hardly something which would show the Appellant in a bad light. Indeed, it could go to support the Appellant’s claim of innocence, in that being falsely charged with sexual assault would quite understandably make someone angry. This is a proper matter for the jury to assess, as the tribunal of fact, in the light of the evidence at trial.

46    It was submitted by the Crown that Gaynor’s evidence in chief was fairly vague and did not produce unfairness to the Appellant. The evidence may have implied that all was not well between the Appellant and the Complainant’s mother at the time, but that hardly amounted to significant prejudice to the Appellant. I do not consider that any unfairness to the accused was established by this, otherwise admissible, evidence and would dismiss this ground of appeal.

GROUND 7 : Directions to the Jury Concerning the Delay Between the Alleged Assaults and the Complaint

47    It was submitted by the Appellant that the trial judge’s summing up lacked any reference to the reasons why lateness of complaint may adversely affect an accused’s ability to defend himself. Delay serves to blur memory, which can be exceptionally prejudicial to an accused. The Appellant contends that to investigate the allegations against the Appellant, precision of memory on the part of nearly all of the witnesses was crucially important. It was important, for example, to investigate the exact times when the opportunity could have presented itself for the Appellant and the Complainant to be left alone in the house together.

48    The Crown submission in reply to this ground of appeal was that counsel for the Appellant should have sought a direction at the trial itself that delay in making a complaint could adversely affect the accused’s ability to defend himself. The Crown further submitted that the matters of opportunity and furnishings around the house raised by the Appellant in this appeal, and requiring, according to the Appellant, “precision of memory”, were not really live issues.

49    There were two occasions when the two were alone together and no precise time was given for either occasion. It is therefore unlikely that any prejudice could arise from delay in complaint by the Complainant. On the other occasions, from a reading of the evidence, it appears that the Complainant and the Appellant were about the house on a daily basis. There was evidence to the locking of the door which was canvassed at the hearing. There was evidence of locking of the basement door which was also canvassed. Apart from the general matter of opportunity, where no detail has been given, and a general reference to furnishings in the house, no particular issues have been pointed out as matters reflecting the Appellant’s inability to defend himself as a result of the delay. Delay did arise during the course of the hearing. The High Court in Longman v R (1989) 168 CLR 79 held that delay in complaint was an issue which obliged the trial judge to give directions to ensure a fair trial, but each case must be determined on its own facts. Delay in complaint is a factor which has to be assessed, both as to its consequences for acceptance of the Complainant’s account and the difficulties for the defence. The Complainant has given an explanation for the delay and there is no evidence shown that has caused difficulties for the Appellant to defend himself.

50    In the light of the issue being raised during the trial, the trial judge, in dealing with the matter at page 15 of his summing up, has, in my view, sufficiently raised the issue with the jury to warn them as to the difficulties caused by the delay in complaint by the Complainant. I would therefore also dismiss this ground of appeal.

GROUND 8 : Inadequate Limitation of Complaint Evidence Pursuant to s136 of the Act

51 It was submitted by the Appellant that the Complainant’s complaint evidence should have been inadmissible, even under s66 of the Act, because of the delay between the alleged assaults and the complaint (Graham v R (1998) 157 ALR 404), unless s108(3)(b) of the Act had been employed and the evidence had been used to buttress the credibility of the Complainant. This avenue was simply not explored at the trial.

52 It was submitted that s136 of the Act should be used to limit the use of complaint evidence, because if evidence of a complaint becomes admissible under s108(3)(b), then s60 will apply to that evidence and render it proof of the facts. In respect of complaints which are made a long time after the alleged incident, it was submitted that s60 would not create a just result, and thus the trial judge should have limited the use made of the Complainant’s complaint evidence, pursuant to s136.

53 The Appellant has further submitted that the correct approach should be that complaint evidence is not admissible under s66 of the Act, but only pursuant to s108 and that s136 should always be employed to limit the use made of complaint evidence. The Appellant has submitted that special leave has been granted by the High Court in the matter of R v Christos Papakosmas (Unreported, NSWCCA, 10 December 1997) to argue this approach.

54 The Crown submitted that the admission of the complaint evidence was not objected to at trial, and no application was made for that evidence to be limited pursuant to s136. It was submitted that the existing authorities established that once evidence of complaint is admitted, it may establish the truth of what was said subject to the power of the trial judge to exclude it under ss135 or 137 or to limit its use pursuant to s136. It was submitted that the preferred approach was that of Hunt CJ at CL, as he then was, in R v BD (1997) 94 A Crim R 131, being that unless the evidence of the complaint does not clearly fall within the precise terms of s136, the use of that evidence should ordinarily be limited only where its unreliability is such that it cannot be cured by warning given pursuant to s165, the question to be determined in accordance with the facts of each particular case.

55 It was further submitted by the Crown that the former common law position had been changed by the Act, such that a jury may now regard a complaint as being evidence of the truth of what was said.

56    The arguments on behalf of the Appellant, summarised above, were put to this Court in R v Papakosmas (supra) in which the Court unanimously rejected those arguments. I consider that Papakosmas, which supported the reasoning of Hunt CJ at CL and Bruce J in R v BD, that where evidence of complaint does not clearly fall within the precise terms of s136 of the Act, the use of that evidence should ordinarily be limited only where its unreliability is such that it cannot be cured by a warning given pursuant to s165 of the Act, is the correct approach.

57    As McInerney J stated, outlining the various arguments before the Court in Papakosmas, and with which Abadee and Dunford JJ agreed (at pp.16-23):

“It was submitted in R v BD , as it was submitted in this case, that evidence of complaint is not admissible pursuant to s66, upon the basis that the mere assertion of a self serving statement in relation to the fundamental fact in issue could never rationally affect the assessment of the probability of the existence of that fact, and therefore (in accordance with s55) the statement was not relevant to proof of that fact.
Hunt CJ at CL accepted the possibility that there may be cases where the mere assertion of a self-serving statement could not rationally affect that assessment, but he did not accept the argument that such a statement could never do so. It all depends, he said, upon the circumstances in which the statement was made, and whether or not it does in fact do so will then be a question for the jury. A complaint made in a situation where it might be expected that such a complaint would be made by a truthful person who has been sexually assaulted, his Honour said, is clearly capable of affecting such an assessment and is thus relevant.
…
Bruce J (who agreed with Hunt CJ at CL stated that s66 has effected a significant change in the law. He said [at 2]:
“The events in respect of which the complainant made the statements of which evidence was given must be taken to have been fresh in her mind at the time she made the statements and she was called to give evidence.
Accordingly the requirements of s66 were satisfied in this case and evidence of complaint by the complainant was admissible as evidence of the truth of the facts asserted by her by virtue of the operation of the section”.
His honour then discussed the question of whether it was appropriate for the trial judge to have exercised his discretion pursuant to s136 so as to limit the use to which the evidence could be made to the question of credit of the complainant. Bruce J concluded that evidence may be unfairly prejudicial to a party if there is a real risk that the evidence would be misused by the jury in some unfair way. He concluded that evidence of contemporaneous or near contemporaneous complaint would not ordinarily satisfy the requirements of s136 but whether it does or does not is a question which must be determined in each case depending upon the individual circumstances. Bruce J went on to state [at 5]:
“In my view the giving of evidence of complaint is not of itself, in the ordinary course, sufficient to justify the conclusion that there is a danger that the evidence might be unfairly prejudicial to a accused”.
Bruce J further said that if a warning under s165 is sought it should ordinarily be given.
[The appellant] submitted that [the Court] should follow the decision of Smart J who disagreed with the approach of the majority. Smart J concluded [at 10]:
“Assuming the same complaints are also admissible under s66, then in the absence of a direction under s136, the statements would be evidence of the facts which they assert. In such a case the better course will usually be to admit the statements or representations and direct that they are to be used as evidence that such statements were made not of truth of the facts asserted in the statements”.

[The appellant] submitted there are two problems with s66. First, a prerequisite to admissibility is that the asserted fact complained of was fresh in the memory of the person who made the representation. But in many cases (such as the present) the whole issue is whether the assertion (rape) was fact or fabrication; if it was fabrication it could not be fresh in the memory. If the jury accepted the complaint as deriving from a true memory, they would not need to consider other evidence to convict.

Second, unless limited, the evidence is corroboration of the complainant’s other evidence, a concept which offends established notions that corroborative evidence must be independent of the complaint. It is submitted that when applied to complaints in sexual cases, s66 gives the evidence spurious cogency unless its use is limited.
…
As stated earlier, complaint evidence was previously admitted to support the complainant’s credit, whereas other types of prior consistent statements were not admissible, except in exceptional circumstances, where it was admitted to rebut recent fabrication.
The prohibition requested by the defence, the Crown submitted, is far too wide. As stated earlier, there must be cases where the evidence may be restricted by the use of s136 or cases where a warning may be given of possible unreliability pursuant to s165 if a request is made by a party for such a warning.
With respect to Smart J, I cannot accept that in all cases evidence of complaint should be restricted in the manner in which he believes it should be. I prefer the reasoning of the majority judges, although it was obiter dicta to the decision in that case, namely how the complaint is dealt with depends on the particular circumstances of the making of the complaint as to whether evidence of complaint should be restricted to the question of the credibility of the prosecutrix pursuant to s136 of the Evidence Act or whether a warning should be given as to its possibility (sic) unreliability pursuant to s165 of the Act.
It was further submitted by [the appellant] that if the evidence of the complaint was admissible it should have been restricted by s136 in the circumstances of the case. I cannot accept that submission. The trial judge was not required to so limit evidence, and rule 4 applies. I am not persuaded in the circumstance (sic) of this case the manner of the trial judge’ summing-up on this aspect was unfairly prejudicial to the appellant or that it was in any way misleading or confusing.
It was further submitted that a warning should have been given under s165 as to the possible unreliability of the evidence. The trial judge, once again, was not asked to give such a warning, and rule 4 again applies… In my view, that was a clear and adequate warning concerning the possible unreliable evidence of the complainant.
I am not satisfied in the circumstances of this case that failure to limit the evidence or give a warning in addition to the above has resulted in a miscarriage of justice (s6 Court of criminal Appeal Act 1912)”.

58    The arguments cited in support of this appeal endeavour to limit the complaint evidence as only going to credibility. It was the view of this court that the Evidence Act has changed the law, and decided in Papakosmas should be applied, that the evidence ought not have been limited under s136 of the Act. In the light however, of the decision on the first ground of appeal which is set out below it is not necessary for this court to decide this issue.

GROUND 1 : Unsafe and Unsatisfactory Verdict

59    The Appellant contended that the errors identified in grounds 2 to 8 inclusive, either in their own right, or in combination with each other and weaknesses in the Crown case, produced a miscarriage of justice warranting the quashing of the convictions. Counsel for the Appellant pointed to the following as matters which should have raised a reasonable doubt in the minds of the jurors as to the Appellant’s guilt- the delay between the first alleged offence and the complaint; the Complainant’s motive to make a false complaint; the withdrawal of complaint in December 1995 with no evidence of outside pressure to do so; the discrepancies between the Complainant’s statement and her evidence, which she often attempted to explain by blaming others; that some of the Complainant’s attempts to explain discrepancies in her statement were “silly”, such as her evidence that she saw a reflection of the Appellant wiping his penis.

60    In relation to this first ground of appeal, the Crown submitted that the “errors” raised in grounds 2 to 8 did not establish that the convictions were unsafe and unsatisfactory, bearing in mind that the test for an unsafe and unsatisfactory verdict is whether the Court thinks that upon the whole of the evidence it was “open to the jury” to be satisfied beyond reasonable doubt that the accused was guilty: Fleming v The Queen (1998) 158 ALR 3679 at paragraphs 7-14. Further as to that, see Jones v R (1997) 2 ALJR 78 at 84; and M v R (1994) 181 CLR 493:

“… the Court must not regard 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”.

61    The Crown has submitted to the Court that none of the other grounds of appeal, which are dealt with below, establish, together or individually, that the convictions are unsafe or unsatisfactory.

62    In relation to matters set out above in support of the appeal on this ground, which the Appellant claims are sufficient to raise a reasonable doubt, the Crown submits that the delay could be adequately explained by the fact that the Complainant was so young and was “scared” to tell anyone; that even if the Complainant had strong feelings for her father and resented the Appellant’s replacing him, this did not necessarily mean that she would make up allegations of sexual abuse. In any case, this factor was referred to the jury repeatedly; that the withdrawal of her complaint could be explained again by the fact that she was scared. The jury was also well instructed on this point; that the discrepancies between the Complainant’s evidence and her statement wasn’t necessarily indicative of a false allegation. In any case, the jury had ample opportunity to see and assess the Complainant as she gave her evidence; that the Complainant’s answers in question were not necessarily “silly”. In any case, their significance would no doubt have been assessed by the jury.

63    Delay between the first offence and complaint does not necessarily raise a reasonable doubt, since delay in complaint, particularly with young people, is not uncommon. Fear on the part of the Complainant is a serious inhibiting factor in a complaint coming forward. Sometimes a child is scared of getting into trouble, particularly from a mother who may not want to accept that an offence has occurred. The contention that the complaints were based on resentment of replacement of the Complainant’s father by the Appellant does not, in my view, make it likely that she would make up these allegations against the Appellant. This and the matter of complaint was fully dealt with before the jury. The allegations of discrepancies between the statement which is taken for Court purposes and evidence given in Court is not at all unusual. This matter was explored before the jury thoroughly, and there was adequate opportunity for the jury to assess the Complainant and her evidence. The issue of the reflection in the glass was fully examined before the jury.

64    In terms of the contention that the judgment is unsafe and unsatisfactory, that is as to whether the court is persuaded that it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty, it is necessary to look at the specific evidence of the Complainant both in terms of variations from the first statement which she gave and its difference from the second statement; in terms of significant variations in her evidence from the statements and her evidence in chief and her evidence in cross-examination, some of these are set out in the facts above.

65    As contended by the Appellant, the Complainant tended to blame others for those variations in her evidence and tended in her answers, where inconvenient, to come up with explanations which give the appearance of being creative. Set out below is a number of examples from the transcript of the trial which give examples of such evidence.

66    At p61 the Complainant said that the attempt to penetrate her as set out in her statement of 3 April 1996, hurt and that she had told the police even though she agreed that there was nothing in her statement about the matter.

67    At p70 of the transcript the Complainant’s evidence was that there was no lock on her door in her evidence concerning the allegation that the Appellant closed the windows of her bedroom and locked her door. Her evidence was as follows:

“Q. Locking has a specific meaning relating to doing something to a lock to prevent it being opened, doesn’t it?
A. Yeah.
Q. In your statement to the police you said “I just layed there, he came back in and locked the door, closed the window and closed my curtains. It is untrue isn’t it?
A. No.
Q. Well it is untrue isn’t it?
A. No.
Q. It is untrue because the door doesn’t have a lock on it, isn’t it?
A. Just because it doesn’t have a lock on it.
Q. You can’t lock a door which doesn’t have a lock on it, can you Caroline?
A. Well once the door is closed in our old house you are not allowed to go in -
Q. Caroline, you chose your words quite carefully in the statement didn’t you?
A. She just told me to tell her everything I knew”.

68    At p72 of the transcript, line 50 to the following page the Complainant said:

“Q. The police asked you, how you knew a penis could be inside your anus, didn’t they?
A. No.
Q. You told the police didn’t you that he had put his penis inside your anus, didn’t you?
A. Yes.
Q. But today you are saying you didn’t think he did, is that right?
A. No.
Q. Well it would be untrue to say wouldn’t it that he put his penis inside your anus if he didn’t, wouldn’t it?
A. It would be untrue.
Q. And you know how important it is to be quite careful about what he did to you, don’t you?
A. Yes”.

69    At p76 of the Complainant’s evidence was:

“Q. And you were quite specific when you told the police that he put his doodle in your vagina, weren’t you?
A. Yeah.
Q. And what you meant was he actually put his penis in your vagina, didn’t you?
A. Yeah.
Q. Because the police asked you whether he’d put his penis inside you, didn’t they?
A. No, they didn’t actually say he put it inside you”.

70    At p81, line 45 the Complainant’s evidence was:

“REY. Q. What did he do then Caroline?
A. He wet his penis with his saliva, then he tried to stick it in my anus.
Q. Where were you when he tried to do that?
A. Leaning over the edge of the bed.
Q. And are you sure he wet his penis with saliva?
A. Yes, I’m sure.
Q. And that is something you would have remembered at the time you made your statement to the police, isn’t it?
A. Yes.
Q. And if it is something that happened, it is something you would have told the police, isn’t it?
A. Yes.
Q. It is something that would have been in your statement, isn’t it?
A. Yes.
Q. So if it is not in your statement, did it not happen?
A. It did happen.
Q. But it is not in your statement.
A. Well I don’t know what they put in my statement, I just read it”.

71    The Complainant in her evidence at transcript p88 said the following:

“Q. You would know if someone put their penis inside you, wouldn’t you?
A. Some times.
Q. You are a small girl aren’t you at the moment, or you were then, weren’t you?
A. Yes.
Q. And a penis is a large object, isn’t it?
A. Yes.
Q. And if it went inside your vagina when you are a virgin you would certainly know it was there, wouldn’t you?
A. Yes, but it all depends on how far it went in.
Q. But it didn’t go in, did it?
A. I said I didn’t know.
Q. Well why did you tell - -
A. Even if you try to push it in it still hurts.
Q. Well if you didn’t know, why did you tell the police it went in?
A. I didn’t tell the police it went in.
Q. You made a statement to the police didn’t you?
A. Yes.
Q. In the statement you told the police accurately what had happened didn’t you?
A. As accurate as I could be”.

72    At transcript p92 the Complainant said:

“Q. You were asked what happened, you said before you pulled my knickers up, before you said you pulled you knickers up the Crown Prosecutor asked you what happened then, and you said “I am not sure what he did then because I wasn’t watching”. Is that true?
A. I saw him.
Q. You didn’t see him wipe his penis did you?
A. Yes I did.
Q. You didn’t see him because you weren’t watching, is that right?
A. I was watching. I wasn’t deliberately watching, I just happened to turn my head”.

73    And in her evidence at transcript p100 in relation to the last incident concerning the red oil the Complainant’s evidence was:

“REY. Q. Caroline, yesterday you told the Crown Prosecutor Mr Patrick that in relation to the last incident in the lounge room with the red oil, Mr Patrick asked you, “after he had done these things did you see what occurred” and you said, “No, because I had my back turned”. Do you remember saying that?
A. Yeah.
Q. Now when [the Appellant] stopped doing these things to you, you were facing the lounge chair, were you?
A. Yes.
Q. You didn’t turn around did you?
A. No.
Q. So you wouldn’t have been able to see him get a hankie and wipe his penis, would you?
A. No.
Q. And you didn’t see him do that did you?
A. I saw a reflection.
Q. You didn’t see him get a hankie and wipe his penis, did you?
A. I saw a reflection.
Q. Well you didn’t tell the Crown Prosecutor that yesterday when he asked you, did you?
A. No.
Q. And he asked you if you had seen anything and you said “No”, you didn’t say I’d seen a reflection, did you?
A. No.
Q. And you could have said that if you had seen a reflection couldn’t you?
A. Yes.

74    Set out above are examples where excuses have been given and convenient answers provided and the variations in the Complainant’s evidence to which I have earlier referred when outlining the nature of the offences. In the light of the fact that the Complainant alleged penetration of her body on three occasions in her statement but did not give that evidence at the trial and in the light of the significant discrepancies in her evidence and the examples that have been set out above, of conveniently giving implausible explanations to cover discrepancies in her evidence, it is my view that the Complainant’s evidence ought to have raised reasonable doubt in the minds of the jurors as to the Appellant’s guilt (Fleming v The Queen (1998) 158 ALR 379), particularly evidence such as that she saw a reflection of the Appellant wiping his penis, when it was clear that she could explain her evidence. I do not consider that it was open to the jury to be satisfied beyond reasonable doubt of the Appellant’s guilt and therefore would uphold this ground of appeal.

75    The orders of the Court as already announced were that:

1. The appeal is allowed;
2. The convictions are quashed; and
3. A new trial is ordered.

76    In the light of the finding as to the first ground of appeal it seems to me that in lieu of a new trial being ordered that the Appellant, if this Court makes a finding on ground 1 in the circumstances of the case, is entitled to an acquittal.

77    Accordingly I propose that this Court should:

1. Confirm its orders that the appeal should be allowed and that the convictions quashed;
2. The Court vacate its order that a new trial be ordered; and
3. Direct a judgment and verdict of acquittal be entered on each count.

78    HIDDEN J: At the conclusion of the argument in this appeal, we decided that there was sufficient substance in a number of the complaints about the conduct of trial to entitle the Appellant to a new trial. However, having read Dowd J’s analysis of the evidence at the trial and, in particular, the deficiencies in the testimony of the Complainant, I am persuaded that the verdicts cannot be supported, having regard to that evidence: Fleming v The Queen (1998) 158 ALR 379 at paragraphs 7-12. Those deficiencies raise a doubt which cannot be resolved by recognition of the jury’s advantage in seeing and hearing the witnesses: M v The Queen (1994) 181 CLR 494. That being so, I find it unnecessary to express any conclusion about the other grounds of appeal.

79    I agree with the orders proposed by Dowd J.

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