R v BKK
[2001] NSWCCA 525
•14 December 2001
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v BKK [2001] NSWCCA 525
FILE NUMBER(S):
60824/00
HEARING DATE(S): 16 August 2001; 7 December 2001
JUDGMENT DATE: 14/12/2001
PARTIES:
Regina v BKK
JUDGMENT OF: Spigelman CJ Grove J Sperling J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 95/11/0493
LOWER COURT JUDICIAL OFFICER: Morgan DCJ
COUNSEL:
D.M. Woodburne (Crown)
D.S. Timmins (Appellant)
SOLICITORS:
S.E. O'Connor (Crown)
Nyman Gibson & Co (Appellant)
CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SEXUAL ASSAULTS
DELAY
PREJUDICE TO ACCUSED
REQUISITE ASSISTANCE TO JURY OF HANDICAP IN PREPARATION OF DEFENCE
DENIAL OF EVENTS OF EARLIER ALLEGED OFFENCES BUT CONSENT TO LATER EVENTS
CAPACITY TO VIEW CIRCUMSTANCES DISCRIMINATEDLY WITH CONSEQUENT AFFECT TO APPEAL OUTCOME
ACCUSED UNREPRESENTED AT TRIAL
ILLNESS OF ACCUSED
WHETHER TRIAL UNFAIR
WHETHER INSTRUCTIONS TO JURY ADEQUATE
PARTICULAR INSTRUCTIONS ON COMPLAINT CORROBORATION CHARACTER AND FAILURE OF ACCUSED TO TESTIFY
LEGISLATION CITED:
Crimes Act 1900
Criminal Procedure Act 1980
Criminal Appeal Act 1912
Evidence Act 1995
DECISION:
APPEAL ALLOWED IN PART
CONVICTIONS AND SENTENCES QUASHED ON FIVE COUNTS AND NEW TRIAL ORDERED
REMITTED TO DISTRICT COURT FOR RESENTENCE ON BALANCE OF COUNTS
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
60824/00
SPIGELMAN CJ
GROVE J
SPERLING J
Friday 14 December 2001
REGINA v BKK
JUDGMENT
SPIGELMAN CJ: I agree with Grove J. I also agree with the additional observations of Sperling J. There is a clear distinction between counts 1-5 and counts 6-13 both in terms of the issues at the trial and in terms of the length of delay. In the circumstances, a Longman warning was required only with respect to the earlier counts. (See R v Dixon [2001] NSWCCA 39, especially at [78] and R v Green [2001] SASC 25 at [32]-[43] ).
GROVE J: The appellant was tried at Sydney District Court before her Honour Judge Morgan and a jury upon an indictment charging thirteen counts of a variety of sexual offences committed between 1987 and 1994. The trial extended over five to six weeks between May and June 2000. The appellant was convicted on all counts and the structure of sentences imposed resulted in a non parole period being specified which established 19 October 2007 as the earliest date for parole eligibility. The appellant conducted the trial on his own behalf but he has been legally represented in this appeal.
The appellant was born on 24 July 1945. All offences involve the same victim who was one of twin sisters born on 7 June 1974 in Fiji where the appellant and his wife then resided. When the twins were very young they were adopted by the appellant and his wife and moved from an orphanage and thereafter lived in a home in Fiji. The family came to live in Australia in about 1980, the first place of significant residence being at Emerald in Queensland. At that time the family consisted of the parents, the twin girls and a natural born son. Later, two more sons were born.
The complainant gave evidence that her first recollection of anything of a sexual nature occurring between the appellant and herself was in Emerald when she was aged under eleven years. Emerald is, of course, outside of New South Wales jurisdiction. The family moved to this State in about 1987 and the first count charged relates to an event shortly after arrival when the family were resident in a caravan park near Botany Bay. It is not necessary for present purposes to detail all of the sexual acts. The fifth count alleged an act of penile/vaginal intercourse taking place on the complainant’s sixteenth birthday (on 7 June 1990). The sixth count alleged a similar act in early 1992 when the appellant conveyed her home from a TAFE where some administrative matters had been attended to and when no one was at home upon their arrival. The final (thirteenth) count again charged a similar act in late 1994. At that time the complainant was in employment and preparing to leave the family home and live independently. It is acknowledged that there is dispute about some of the dates but contradictions can be referenced if necessary when dealing with relevant issues.
A written submission on behalf of the appellant acknowledged that the evidence of the complainant, if accepted, justified the findings of the jury on each count. At trial the appellant cross examined the complainant over some ten days. The transcript of his cross examination exceeds 500 pages. The appellant did not give evidence. His questioning revealed that he was not disputing the acts charged in counts six to thirteen but was contending that they took place in circumstances wherein the complainant was a consenting party. This was confirmed in his transcribed final address at trial.
The grounds of appeal were expressed in these terms:
1. The verdict of the jury in relation to each count of the indictment should be quashed on the grounds set out hereunder.
2. The Appellant was without legal representation at his trial.
3. It was beyond the capacity of the Appellant to conduct a trial of this complexity bearing in mind the peculiar features of cases involving sexual assault.
4. The Appellant was in such poor health throughout the course of the trial that he was physically and mentally unable to make decisions relating to the conduct of the trial.
5. The Trial Judge erred in not staying the trial until legal representation was available to the Appellant.
6. The Appellant was originally indicted on 13 counts relating to (the complainant’s twin) and there is confusion about the way in which the Crown substituted 13 counts relating to (the complainant).
7. Due to his poor health and inexperience the Appellant was unable to make a reasoned decision whether he should give evidence.
8. Due to his poor health and inexperience the Appellant was unable to make a reasoned decision whether he should call evidence in the Defence Case.
9. The Trial Judge erred in her direction to the jury in relation to evidence of complaint.
10. The Trial Judge erred in her failure to give directions to the jury in relation to corroboration.
11. The Trial Judge erred in her directions to the jury in relation to character.
12. The Trial Judge erred in her directions to the jury in relation to his failure to give evidence.
13. The Trial Judge erred in her directions to the jury in relation to his failure to call evidence.
14. The sentence imposed was manifestly excessive.
15. The Trial Judge erred in her failure to give proper weight to the evidence of the character of the Appellant.
16. The Trial Judge erred in her failure to give proper weight to the evidence of remorse and contrition.
Several of the grounds were obviously associated and it will be appropriate to deal with them together but first there should be a recording of some procedural matters touching upon the hearing of the appeal and in respect of which the Court sought, and received, submissions on a discrete issue. It has been observed that one possibility of the outcome of argument on the issue to which I now turn was that a new trial on all counts might need to be ordered. After deliberation, the Court determined to reconvene and hear further argument particularly on the balance of the grounds.
The Absence of a Longman Direction
The appeal was listed for hearing on Thursday 16 August 2001. On the preceding Thursday 9 August, the High Court handed down its judgment in Doggett v The Queen 2001 75 ALJR 1290. The apparent potential applicability of that authority to the present matter persuaded the Court to seek submissions from the parties in that regard. Both counsel for the Crown and for the appellant were given leave to supplement their oral submissions in writing and, in due course, these were provided.
The Court in Doggett divided, the majority being constituted by Gaudron and Callinan JJ who published a joint judgment and Kirby J. Gleeson CJ and McHugh J dissented. The issue was whether the trial judge should be held to have erred in not giving the jury what has come to be called a Longman direction: Longman v The Queen 1989 168 CLR 79.
As Gleeson CJ, in dissent, commented, it is not particularly enlightening to use the expression “a Longman warning” unless accompanied by an explanation of the terms of the warning. Kirby J observed that there were differences in the reasoning in Longman as to precisely why a warning was necessary notwithstanding statutory relief from the obligation formerly required by common law but he noted a common element in the judgments in that case recognizing the serious forensic disadvantages suffered by an accused person meeting, for the first time, accusations made long after the subject offences were alleged to have occurred. Analysis has shown that Longman does not identify clearly when a warning is mandatory save by reference to the loss by an accused of means of testing a complainant’s testimony which may not have been apparent to the jury: R v GPP [2001] NSWCCA 493.
In their joint judgment in Longman, Brennan, Toohey and Dawson JJ had said (@ p91):
“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”
Doggett makes it clear that the presence of the word “alone” in that passage should not be taken to mean that the mere existence of corroborative evidence extinguishes the requirement for a Longman direction.
The reasoning and application to the then instant case was elaborated in the joint judgment in Doggett (@ p 1297):
“[46] In our opinion, the corroborative evidence which was led here did not relieve the trial judge of the obligation to give a Longman direction for the following reasons.
[47] First, the complainant’s evidence with respect to the circumstances surrounding the first three counts made the point that the complainant’s recollection of some matters was, to say the least, questionable.
[48] Secondly, the suggested explanation for the complainant’s assertions as to the approximate times of the first two offences is not one, with respect, which strikes us as very likely. It was not suggested as an explanation by the trial judge in his summing up on these counts. If it had been, there and then it would probably have drawn attention to the need for a direction of the very kind for which Longman stands.
[49] Thirdly, there was evidence from an apparently independent source, Ms A, categorically denying sworn evidence by the complainant that she had told Ms A some years before that she had been sexually touched by the appellant.
[50] Fourthly, and inevitably, the respondent was obliged to some extent to shift the basis of the prosecution when the discrepancy as to dates with respect to the first two counts, and consequentially if less significantly, to the third, emerged.
[51] Fifthly, the problems with which Longman is intended to deal are not confined to difficulties of recollection that the passage of time might cause for an accused. Of equal, and in some cases of which this might be one, or more importance is the denial by the effluxion of time, to an accused of the forensic weapons that a timely complaint might allow an accused to assemble, such as evidence as to where he was or what he was doing, or what other potential witnesses were doing when the offences were alleged to have occurred.
[52] This is made clear by the joint judgment (Gaudron, Gummow and Callinan JJ) in Crampton v The Queen (2000) 75 ALJR 133:
‘The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused’s defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant’s evidence alone without the closest scrutiny of the complainant’s evidence), should have been put to the jury.’
[53] Sixthly, as we have already indicated, the corroboration was capable of establishing some undefined sexual molestation, probably improper, but not necessarily criminal in the respects alleged in the counts, and therefore not of such a nature as to relieve the trial judge of a duty to direct the jury in terms of Longman as explained in the passage from Crampton set out above.
[54] Seventhly, the approach of the Court of Appeal involved to some extent an inversion of reasoning. The correct approach in our opinion was to examine the evidence relevant to the particular matters with which Longman deals to ascertain whether the case called for a Longman direction, and not to make a broad assessment of the evidence overall (including the corroborative evidence), and to decide at that point, that the corroboration rendered a Longman direction unnecessary. That exercise should more appropriately be carried out in the overall assessment of the case, if and after error has been established, to enable the Court to decide whether the verdict was unsafe and unsatisfactory and whether the proviso should be applied.”
In the course of her charge to the jury in the present matter the learned trial judge said:
“I should also point out to you that there has been a delay between the time when these events were alleged to have occurred, as she has said, back in Emerald and then when she was in this eight or nine year old period and then continuing on right up until just before she left home. But taking those earlier matters back in 1987 and earlier and, as I say, if you accept they took place in Emerald, that the accused may well have been at some disadvantage because of the delay which it has taken for her to bring this to anyone’s attention. And it may be that at that time, if anything had been raised when she was a young girl either in Emerald or in the early days here in Sydney, that it may well be that the accused might have been able to produce some evidence to suggest, well I wasn’t home at that time, he used to go away from Emerald on his business, or it would be an impossibility for something to have happened at that time. Well that is a matter entirely for you, whether you consider he was disadvantaged but that is certainly a matter which you should consider when you are looking at the Crown case.”
In written submissions (prepared before delivery of judgment in Doggett) the Crown Prosecutor contended that Longman would have no application because there was evidence in the case which could be regarded as corroborative. In particular reference was made to the evidence of the appellant’s brother and his sister in law. Whilst the capacity of the content of the evidence of the latter to amount to corroboration may be in dispute there is no reason to withhold that classification from the confessional material testified to by the appellant’s brother.
However, it was conceded by the Crown Prosecutor that that argument as expressed could not succeed in the light of the majority judgments in Doggett. It was further conceded that the learned trial judge’s charge to the jury did not contain directions which would comply with the requirements of Longman if that authority were held to be applicable. The passage of the charge to the jury which I have reproduced would seem the logical place for such a direction and it can be seen that none there appears. The absence is not a criticism of the trial judge who did not have the benefit of the authority and guidance available from Doggett.
The question for this Court is what effect the authority of Doggett should have on the conduct and outcome of the trial.
There was evidence presented by the Crown going back many years, indeed evidence about occurrences in Emerald whilst not chargeable by reason of jurisdictional limits was tendered in order to inculpate the appellant. Not only the complainant’s evidence but that of the appellant’s sister in law had focussed upon matters in the distant past when the family were resident in Queensland.
Following the hearing on the preliminary (Doggett) issue, solicitors for the appellant filed an affidavit sworn by the appellant’s wife (TJK). No leave to file or read such an affidavit was sought or given however, at the resumed hearing counsel indicated that in respect to the deponents of the significant number of affidavits by then accumulated cross examination was not sought on the basis of agreement that neither would seek to gain advantage from the absence of express challenge to an individual deponent if submission was to be made that any of the content of an affidavit should not be accepted or acted upon.
In accordance with leave granted, written submissions on the issue were forwarded on behalf of the appellant and on behalf of the Crown. The submissions on behalf of the appellant did not take the course encouraged by the Court of specifying the obstacles and handicaps pertinent to the appellant’s case in a fashion similar to the exercise undertaken in the joint judgment in Doggett where some seven reasons for the trial judge not being relieved of the obligation to give a Longman direction were scheduled. The bulk of the submission related to citation of selected passages from reported authority. It may have been helpful to analyse the circumstances evidenced at trial and therefrom seek to deduce obstacles to the appellant’s conduct of the case. In encouraging the course suggested it was not implied that the reasons in the appellant’s case should be identical to those in Doggett; some may have been comparable and there may be other and different reasons. However, a summary submission was advanced that because of delay in complaint it had been made “almost impossible for the appellant and his wife to try to track down real evidence, documentary evidence, council records, real estate agent’s records, school records, the church records, evidence of relatives, friends, neighbours, teachers and church members.”
The reasons for seeking such things were expressed as generalities and (compared to the bulk of submission) relatively briefly, viz:
“74. The question of objective evidence being available to identify just when it was that the K family lived at various places was of great importance. The Complainant had suggested that various events of significance occurred at particular times and at particular places.
75. The evidence of the Appellant’s wife TJK, in her affidavit sworn 22 August 2001 was filed to illustrate problems that faced the Appellant and his wife in obtaining evidence which might have been used to balance the evidence that had been given at trial by the Complainant.
76. There was even great importance in fixing when it was that the K family moved to Emerald in Queensland to live.
77. It was important to establish when various events occurred at their local Church. It was important to establish when it was that various friends and related inter acted with the K family. It was important that this evidence be very accurate to balance the evidence of the Complainant.
78. Turning to the affidavit of TJK: In paragraph 2 she gave evidence of the search by her and by the Appellant for records, photos, diaries, correspondence and potential witnesses.
79. In paragraph 4 she gave evidence of the difficulties experienced in obtaining evidence relating to the period of time the K family spent in Emerald Queensland.
80. In paragraph 5 she gave evidence of the difficulties experienced in obtaining evidence relating to events in New South Wales. That period of time was of course most important because it included vital evidence relating to the circumstances surrounding various places where it alleged offences were committed by the Appellant.”
Express mention will be made of the content of some affidavits but the bulk emanates from family members (the appellant’s wife and sons) and is of little objective assistance. It is scarcely surprising that they would detect that the appellant appeared stressed as this would be expected of anybody facing trial on serious criminal charges. Nothing will be served by summarizing the affidavits, much of the descriptive content of which is couched in hyperbole. There are also demonstrable inaccuracies for example, TJK asserted that the judge told BKK that he could not take off his jacket in court and there followed a tale of leaving the jacket at home which was said to be “symptomatic of his stress and disorientation”. In fact BKK did complain of feeling the heat and her Honour responded “well see how you go, if you find that it’s unbearable, remove your coat”. (T125) All material will be weighed in the final analysis of whether the trial has been unfair and that comment applies equally to the affidavit material produced by the Crown.
Upon reconvening the Court specifically invited submissions on the issue of whether the appeal should be allowed on some counts and refused on some counts. The potential differentiation was between the more recent counts on the indictment for which the occurrence of the events was in issue. No submissions on this point were forthcoming from counsel for the appellant. Crown counsel submitted simply that such a course was open to the Court.
In my opinion such a course is open where there is an appellable error that affects one or some of the counts, but not the remainder of the counts.
There is a distinction to be drawn in the present case between the cogency of complaints of handicap where, on the one hand, the appellant denies sexual dealing with the complainant and on the other, dispute is limited to the proof of absence of consent to admitted sexual congress.
The Crown resisted the conclusion that the absence of a Longman direction should lead to a new trial.
First it was argued that in Doggett the majority apparently regarded the corroborative evidence as of inferior quality leaving open the possibility that in an appropriate case corroborative evidence may remove the need for a Longman direction. The sixth mentioned reason in the extract from the joint judgment is pertinent. Kirby J also remarked:
“As Gaudron J pointed out in M v The Queen (1994) 181 CLR 487 ‘corroboration or lack thereof is only one of many considerations which bear on the evaluation of evidence’. Furthermore, where (as here) the corroboration is patchy, in some respects unspecific and in others completely silent on the incidents referred to in the charges, the mere fact that corroborative evidence of some kind exists will not entirely remove the utility, and the necessity, of a Longman warning.”
Whether there be some case where corroboration is so strong that warning is not required, the present case cannot be so classified. The evidence of conversation with the sister in law included ambiguities and oblique references to such things as “mandatory reporting of child abuse” (as an alleged Queensland state requirement). Whilst more pointed and including an admission by the appellant of having “sex”, the evidence of the appellant’s brother nevertheless included generalities such as assertions that he ignored “the rest because they were all rantings and ravings”. These remarks need to be qualified in relation to the thirteenth (final) count when, on the day following the alleged offence, the complainant’s condition was viewed and assessed by witnesses including medical experts who detected signs consistent with the allegation. Corroboration available in respect of that count was markedly stronger.
The object, of which sight must not be lost, is assistance to a jury particularly with respect to considerations of which they may not be aware and with which they may not be familiar. Determination of whether the jury has had appropriate assistance cannot be dependent upon an isolated assessment of the strength or otherwise of corroborative evidence, the weight to which a jury has concluded should be given, will be unknown.
The second aspect of the Crown argument involved an extensive and painstaking survey of matters relating to the distant past which the appellant was able to refer to in detail – it was described as minute detail - which was manifest particularly in his cross examination of witnesses including the complainant.
So impressive in its extent were these matters and associated documentation produced or under reference, that it was submitted that in the “perhaps unique” circumstances of the case the Court should hold that a Longman direction was not required.
The warning to the jury does not concern what an accused has in fact been able to produce. It is concerned with informing the jury and cautioning them about matters which may have handicapped that accused and as a consequence obstructed him from being able to elucidate circumstances or demonstrate facts which support his contentions. That is not to invite a jury to speculate upon what an accused may have been able to prove and expression of a Longman direction must be so designed as to avoid that error.
There is, however, a matter in relation to the appellant’s claims of handicap which is unusual. In the disturbingly large number of cases concerning sexual abuse which come before the courts, where there is dispute between an alleged offender and a child (at the time of offence) complainant, the issue is frequently whether sexual activity took place at all. This has previously been observed by Gaudron, Gummow and Callinan JJ in Crampton @ p141. Consent is of course irrelevant and provides no basis for defence in such cases. The sexual activity will usually be alleged to have occurred in secret and it is in seeking to support a denial of occurrence that the handicap encountered by an alleged offender has been perceived. Recognition of such matters does not imply any shift in the burden of proof. Longman for example was a case itself of denial by an accused who, when questioned by police (and at trial), described his dealings with the complainant as entirely innocent. It adds to difficulties faced in such circumstances that there would have been necessarily dealings between disputant parties, they very frequently having resided as members of a domestic unit. It is acknowledged that Doggett had some unusual features in allegations by the alleged offender of sexually precocious advances by the complainant, but in that case all offences charged involved conduct when she was aged under sixteen years.
The unusual matter to which I refer in relation to the appellant affects the sixth to thirteenth counts. Each of these counts charged sexual intercourse without consent contrary to s61I of the Crimes Act 1900. The cross examination of the complainant showed that the appellant did not contest the occurrence of sexual congress but essentially claimed that she was a consenting party.
A synopsis of the basis of each count and the conduct by the appellant of his case at trial should be made.
Count six was located by reference to the complainant having left school at age sixteen, attended TAFE as an evening student for a year (1991) and making a decision to seek to repeat that year. Arrangements were made to see the College Head and the appellant accompanied the complainant on that visit. Afterwards when they returned home there was no one else in. Intercourse took place against the complainant’s wishes. Significantly the appellant put this question to her (T594):
“Q. I am therefore not denying that there was full vaginal penetration when you talked about coming back from the TAFE College. I am not denying that. I put it to you that that was the first time there was ever full vaginal penetration?
A. No.”
Count seven was referenced by the complainant to a celebration of the eighteenth birthday of the twin girls which did not occur on the actual birthday but within one or two weeks thereof. The complainant gave evidence of a series of sexual acts performed on her by the appellant including sodomy, attempted fellatio, penile intercourse and cunnilingus. The appellant cross examined the complainant about a number of matters relating to the preparations for the party and the closeness of the relationship between them alleged to have been in existence at the time. I cannot identify questions asked by the appellant which concede specific sexual activity on this occasion but the following extract (T717) suggests that any denial is focussed upon the allegation of the combination of events rather than denial of sexual conduct. In this context the wide statutory definition of sexual intercourse is germane. The evidence was:
“Q. Thank you. Going back to the incident of your 18 birthday and referring to the evidence in chief at page 173, which you won’t have, line 30, the Crown asked:
‘Q. What sort of a noise did you make?’ You replied ‘A. Like a, like a whimpering noise and he just told me to shut up or else I’ll wake my sister. I goes, No, well it hurts. And then, and I, and I rolled over and then he, he tried to put his penis in my mouth’. Remember that answer?
A. Yes I do.
Q. Did I not yesterday ask a brief general question about the personal hygiene of yourself and myself and you gave positive answers in relation to that, do you remember that?
A. Yes I do.
Q. That we both have high standards of hygiene and personal cleanliness, remember that?
A. Yes I do.
Q. Well I reject emphatically, entirely and completely and I put this to you, this is completely and utterly wrong that I would ever go from penis to anus to penis in mouth to penis in vagina. I reject that and I put to you this is a blatant lie?
A. No it is not.
Q. I also suggest to you the event never happened?
A. Yes it did.”
The eighth count was evidenced by a description by the complainant of an occasion whilst the appellant’s wife was away in the Blue Mountains and the three boys stayed at a friend’s house. The twin girls went to see a film with the appellant and on return he demanded that the complainant engage in sexual congress with him. She described the occurrence which included penile/vaginal intercourse. The appellant cross examined the complainant at length concerning the time of the year during which his wife went to a conference or seminar in the Blue Mountains. He also cross examined her about detail of the actual residential address at the time and the films which were showing in Sydney at the time.
The appellant produced a lease to support his contradiction of the accuracy of the complainant’s testimony concerning the date of this offence by demonstrating that the family was not in occupation of the premises specified at the time. However the cogency of that attack has been undermined by the content of the appellant’s wife’s recent affidavit which includes:
“The complainant identified a particular incident by reference to my attendance at a conference for teachers in the Blue Mountains. I know that the conference was at another place and another date, but despite diligent searching I cannot find a diary or other record that would provide verification.”
The challenges would need to be assessed in the light of the general posture of the appellant which did not deny the existence of a sexual relationship between the father and adopted daughter. A revealing exchange is recorded at T588-599:
“Q. Given the general description that you have given of your mother’s work and that you had your own single bedroom, I put it to you that is when the relationship between your father and yourself began to intensify. We are talking here around late 1991, 1992. What I mean by relationship, that is when you were first caressed in 1991 in the downstairs area of Halcyon Avenue.
A. That is garbage. That is a lie. You used to do it to me in Carrington Road.
Q. We have heard that before. I also put to you the first time your father did caress you, he himself went into deep shock at what he had done?
A. That is a lie. It is not true.
Q. I also put to you that what stunned him the most was your positive reaction?
A. That is a lie.
Q. I also put to you that from then on in you did everything to encourage a sexual relationship?
A. That is a lie.
Q. I also say to you that at Halcyon Avenue towards the end of 1991 there was already an occasion did occur where, late 1991, where you did, it did actually lead to ejaculation but not penetration, late 1991, because of the caressing and the messing about?
A. (No verbal response).
HER HONOUR: Can you answer that?
A. I did not realise it was a question. I thought he was stating something. I was waiting for him to ask me a question.
ACCUSED: Q. In late 1991 because of the caressing did it lead then eventually to ejaculation because we were both messing about on the bed, do you remember at that?
A. No I don’t.
Q. Was it because that happened your father said ‘No (R), no, this is not for me to do this, is wrong. One day you will meet up with someone your own age and it is for that person to do’. That is what your father said?
A. That is a lie. It is a lot of garbage. It never happened. I never said that.
Q. Your reaction was, ‘No there is nothing wrong. What’s wrong about this’ and that then led to your comment, ‘What’s the difference between me and as if a strange woman walked into this place’?
A. That is garbage. That is a lie.
Q. Later on I recall, I am putting to you later on in Alice Street in September/October 1994, I reminded you of this event and I said to you ‘(R) I used to always wonder about this so-called strange woman walking down the driveway’?
A. Never said any such thing.
Q. I also put to you in September/October 1994 the reason why I said that to you is because in September and October 1994 I was saying to you again ‘The affair must end, we have got to go and get help’?
A. Garbage. Outright lie.
Q. I also put to you in September/October 1994 that the major topic of discussion between you and me was whether or not at law there was an incestuous relationship and I would face criminal prosecution because of it?
A. That is a lie. You never ever said that.”
The ninth count alleged an act of intercourse in bushland while returning from a journey to an airport during a family holiday at Bermagui. Again the descriptions by the complainant were of enforced acts including penile/vaginal intercourse. The appellant cross examined the complainant about a considerable amount of detail concerning the events at Bermagui, however there was a significant suggestion by him that there had been discussion between them that there would be a sexual encounter before return from the journey to the airport. Cross examination by the appellant included (T698):
“Q. All right. I would suggest to you in relation to the answer that you gave that, going back to line 45 plus, ‘He ripped the L plates off the front of the Toyota and told me to get in the passenger side which’. I don’t know what the ‘which’ is for but that’s what you said. That’s partly correct but hides the real reason as to why that incident took place and I put it to you that we were actually running behind time. We knew we were going to get late into Bermagui and we already had discussed the fact that we were going – that there was going to be a sexual encounter before we got home. It had already been discussed?
A. No, that’s a lie.
Q. Do you remember that?
A. No I don’t.”
And:
“Q. I put to you this is what happened; as we were approaching the T intersection. I said to you ‘Look, Honey, it is getting late, we better go home’ which would mean then I would continue on to the T intersection, turn left and go home and you replied, ‘No it’s not too late, it’s all right, let’s go’ or words to that effect and you said ‘turn here’. Do you remember that?
A. No I don’t.
Q. The reason why you said ‘turn here’ was because if you go there even today three is a little dirt track just prior to the T intersection where, if you turn left, it goes into what is generally known as the Bermagui National Park, do you remember that?
A. I remember an entry to the National Park but I don’t know about dirt. The dirt track is in the National Park.
Q. Furthermore I said ‘are you sure’ and you replied explicitly, ‘yes, yes, I want to’, do you remember that?
A. Didn’t happen.
Q. And it is not surprising, I put to you, that you said, ‘yes, yes, I want to’ because for the previous 10 minutes or half an hour you had been caressed?
A. That is an outright lie.”
The tenth count involved an allegation that forced intercourse had taken place at the complainant’s place of employment at Artarmon. Cross examination by the appellant did not involve a denial of sexual intercourse and in fact posited that it occurred “regularly” there. (T602):
“Q. Without conceding the date of the 26th of February 1994, I do agree that sexual intercourse did take place at Snap Artarmon on a fairly regular occasion and I also state that the act of sexual intercourse did take place on what is known as the trimming bench at Snap Artarmon. I do not deny that. I am not allowed to make a statement, so I put it to you that what I have just said is basically – you would agree with me I’m telling a truthful statement when I say that, that there was sexual intercourse between you and me regularly at Snap Artarmon?
A. I don’t know the question you are asking me. If are you asking me did it happen regularly or that it did happen on the trimming bench?
Q. It happened regularly. I think you have already said yes?
A. No, I didn’t understand when you meant regularly, like that’s the incident. I could remember when I made my statement and it did happen.
Q. Did it happen almost invariably each time your father went with yo to work overtime at Snap Artarmon?
A. Are you saying every time on the trimming bench did the sex act?
Q. Just the act of sexual intercourse, did it?
A. Like I said, they are the two times I could remember when I made my statement.”
The eleventh count was described by the complainant with reference to driving lessons which the appellant gave her during which they visited the Mt White area just near the old Pacific Highway. The complainant said there were many incidents between them on these driving lessons. The content of the appellant’s cross examination did not seem to involve denial, indeed at one point he put questions to the complainant suggesting she had said to him that she would move her position in the car “so Mum won’t suspect or guess what’s going on”. The appellant did not expressly concede the description of events by the complainant but, consistently with his assertion that there was a “relationship” between them, he asked questions such as (T666):
“Q. I also suggest that there are other paragraphs in your statement where the paragraphs scream consent?
A. (No verbal response).
Q. Yes or no?
A. I don’t know the question you are asking. I thought that was a statement.”
The issue which the appellant appeared to be seeking to canvass was the precise location of the alleged misconduct which he referred to from time to time as “events”, for example, (T668):
“Q. I suggest to you that if the event took place it took place near pine trees on a divided road, you are quite correct. When you came out from underneath the pine trees you actually almost turned the car into on coming traffic and that is hence the panic. I grabbed the wheel, swung the car round and put it in the opposite direction for you.”
The twelfth count was identified as to time by reference to a mock wedding ceremony held by a youth group of which the complainant was a member and a red dress which she borrowed to wear on the occasion. It was on her return home that she described another sexual attack by the appellant. Cross examination by the appellant was directed towards detail in the complainant’s statement concerning a description of the complainant taking off her red dress and taking something from the bed to cover herself and flicking it away. The peripheral detail was put in issue by the appellant but not the act of intercourse. Some of his cross examination included (T768):
“Q. The Crown asked you on p 210 at the bottom line 57,58: ‘Did you take the dress off’? And you replied ‘Yes I did’. And the Crown, do you remember that answer?
A. Those when I came back yes.
Q. And the Crown went on further to say did something happen at that point and you said, yes, my father had come in and then there you continued to give well – I have got to go on with it. The Crown asked what happened when you came in and you replied: ‘He asked why did you take the dress off and I had grabbed something off the bed to cover myself’; do you remember?
A. Yes.
Q. and he said how were you dressed?
A. I was just in my under pants. Yes.
Q. And in fairness you grabbed something and then yo replied you tried to flick them away do you remember answering that?
A. Yes I do.
Q. That is what I am puzzled about because the Crown asked what were you trying to flick away and you replied I grabbed something off of the bed and was holding it in front every myself and he was trying to flick whatever I was holding away. I cannot remember what it was. I put it to you you cannot remember because it never happened?
A. Yes it did.
Q. I put it to you the reason why you came home by 10pm that night, and that this event never happened is you wanted to make love with your red dress on?
A. That is a lie.”
The thirteenth count relates to an occurrence in October 1994 when the complainant had determined to leave the family home. In the evening there was some discussion between the appellant, his wife and the complainant. She said that later in the evening she was in her room when the appellant entered and told her to take her nightie off and intercourse took place in the complainant’s bed. The appellant did not deny this act of intercourse but cross examined the complainant at length about the details as to how it occurred. He referred to evidence that the complainant had given that she had been crying and put to her that he was caressing her and kissing her “before the sexual act began”. He continued:
“Q. I also say, on this entire story, that you left out completely, the details of the sexual act that actually, did take place even though those details are contained within your own statement. Would you look at your statement.”
In relation to this last count there was apparent reference to the occurrence in a later phone call which the appellant had with his brother (after he had been charged with offences) when he said, amongst other things “on the Thursday night I slapped her but she was very consenting with sex” (T973).
As already noted, the cross examination extended over many days but the above extracts suffice to demonstrate that, subject to dispute about the commencement date, details of the acts and consent, the appellant did not seek to join issue with the complainant that intercourse had taken place. He referred frequently to “relationship” and at times has mentioned the name of an American film producer whose then current marriage notoriously came to an end when he was discovered to be engaged in a sexual relationship with an adopted daughter of his wife.
Counts six to thirteen can be categorized differently from counts one to five for the purpose of assessing whether the appellant was disadvantaged by the absence of a Longman direction. No submission has been made by counsel now appearing which identifies any specific handicap visited upon the appellant in conducting his case on the issue of consent in relation to the latter counts which he contested. The details of the surrounding circumstances of the undenied intercourse, and critically whether consent was freely given, were on the case that the appellant was presenting within the exclusive knowledge of the participants. Insofar as the appellant sought to support his contentions by matters such as the appearance of the complainant, her continued participation in family and church group activity, the absence of overt distress and so forth, these were uninhibitedly and extensively canvassed by the appellant in his cross examination of the complainant.
It can be interpolated that, following the event giving rise to count thirteen, there was prompt complaint about it. The complainant testified that on the day following the offence she went to work and her employer made an enquiry about the appearance of her face. She replied in the negative but then spoke to a girlfriend whom she told that the appellant had hit her and raped her. This was on 28 October 1994. A Detective Frances Lynch came to the complainant’s place of work and saw her appearing upset and tearful. She was taken to the sexual assault clinic at Royal North Shore Hospital and seen by a social worker and a gynaecologist. Accompanied by a solicitor, the appellant attended upon Detectives Robertson and Lynch at Lane Cove Police Station on 13 December 1994 where he was charged. He was committed for trial in May 1995.
Counts one to four allege indecent assaults occurring respectively at Botany, Narrabeen, St Ives and Wahroonga between January 1987 and September 1989. The fifth count charges carnal knowledge of a daughter contrary to s73 of the Crimes Act on 7 June 1990 which was the complainant’s sixteenth birthday. Consent does not provide defence to a charge under that section if the victim is aged less than seventeen. The extracts of evidence set out above include the assertion by the appellant (T588) that the “first caressing” occurred in Halcyon Avenue in 1991 and it can be deduced that the appellant contends that the events described by the complainant in support of counts one to four did not happen and that no sexual intercourse took place on the complainant’s sixteenth birthday, and that no such intercourse took place until after she had attained her seventeenth birthday.
It is important however to consider that the Crown had also called a significant amount of “relationship” evidence going back to the complainant’s recollection of the earliest sexual dealing with her by the appellant in Emerald, Queensland in the mid 1980s. It is not necessary for present purposes to detail all of this evidence but its content was clearly designed and capable of adding force to the Crown’s case of inculpation of the appellant.
There is an obvious difference between disadvantage that might be perceived in seeking to support a denial of misconduct in increasingly distant past which is said not to have happened at all and disadvantage in seeking to support an assertion of consent to relatively more recent occasions of undenied sexual congress.
Applying the principles elucidated in Doggett, I conclude that the absence of a Longman direction in relation to the former category leads to an assessment that the jury did not receive needed assistance in respect of considerations of which they may not be aware and with which they may not be familiar, however, the same assessment should not be made in relation to those counts which are in the latter category.
It was submitted by the Crown that the Court should, in the event of reaching the conclusion which I first mentioned dismiss the appeal by application of the proviso to s6(1) of the Criminal Appeal Act 1912. I do not consider that appropriate to the circumstances and I would reject the submission.
The consequence of those views is that the convictions and sentences on counts one to five should be quashed and I would order a new trial in respect of them but the Court should proceed to consider the other grounds of appeal particularly as they pertain to counts six to thirteen.
The Absence of Legal Representation at Trial
Grounds 2, 3 and 5 are associated and can be dealt with together. It is the fact that the appellant represented himself at trial, that is to say, the trial which eventually took place. In assessing the appellant’s complaints it is instructive to make some observations of the events leading up to it. In this context the observation of the Court (Gleeson CJ, Kirby P and Mahoney JA) in Attorney General for New South Wales v Milat 1995 37 NSWLR 370 @ 374 can be borne in mind:
“There is nothing in Dietrich to suggest that an indigent accused can be frustrate attempts to bring the accused to trial simply by rejecting offers of legal aid or other assistance. Mason CJ and McHugh J emphasized that the circumstances of each case need to be considered, and Deane J related the principle in question to denial of legal representation by reason of an accused’s lack of means and the unavailability of other assistance”.
Following committal for trial the appellant was arraigned in September 1995 and after listings hearings a trial commenced in June 1996 at which the appellant was represented by senior counsel. On the appellant’s application (through counsel) the jury was discharged in order to enable certain handwritten notes from the appellant’s brother to be examined and for counsel to take instructions about them. Between 1996 and 1998 four further trial dates were fixed. The appellant sought vacation of the trial dates on the basis of the need to resolve disputes between himself and legal aid authorities. On one occasion (in 1998) he informed the Court that he had withdrawn the instructions of the solicitor to whom the matter had been assigned by the Legal Aid Commission. In 1999 the appellant applied for a stay of proceedings “until the matter of legal representation is resolved”. This was heard by Christie DCJ. The managing solicitor of the Legal Aid Commission gave evidence and during his testimony pointed out that the appellant had never lodged an appeal against any refusal to grant him legal aid. His Honour refused the stay. A few days later a solicitor appeared before his Honour on a pro bono basis and, inter alia, informed him that an appeal had been lodged against the refusal to stay proceedings.
This appeal came before the Court (differently constituted) on 3 February 2000 and judgment was given on 8 February when the appeal was, by majority, dismissed: R v BK 2000 NSWCCA 4. A scheduled trial date had been fixed for 14 February 2000. Sully J remarked:
”Having regard to what has passed previously between the appellant and the Legal Aid Commission, as supplemented by the fairly exiguous additional material that was placed before the Court in connection with any fresh application by the appellant for legal aid, it seems to me to be an overwhelming inference that the appellant either will not be granted legal aid at all; or will be granted legal aid upon such terms as are unacceptable to him. There seems to be an irreconcilable difference of view between the appellant and the relevant officials of the Legal Aid Commission as to the justification for the briefing of Senior Counsel rather than junior counsel to represent the appellant at his trial. It is, in my opinion, reasonable to infer also that there are irreconcilable differences of opinion between the appellant and the relevant officials at the Legal Aid Commission as to the way in which, and the basis upon which, the appellant’s case at trial should proceed.”
Carruthers AJ observed:
“Reduced to its simplest terms the issue of legal representation for the appellant reached a stalemate some considerable time ago. The matter cannot be resolved by the grant of legal aid at the instance of the Legal Aid Commission for three reasons. The appellant’s financial position is such that he does not qualify as eligible for a grant of legal aid because of the Commission’s means test criteria. Secondly, even if the means test could be satisfied the Commission would only grant legal aid for junior counsel to represent the appellant. This has always been unacceptable to him. Thirdly, there is an insuperable difficulty because of ethical matters, the detail of which it is inappropriate to expand upon at this stage. Those ethical problems could be resolved by the appellant but the mode of resolution is unacceptable to him.
On the other hand the appellant is not in a financial position to afford the quality of private representation (experienced senior and junior counsel) which he wishes to retain.
The only proposal which senior counsel appearing for the appellant before this Court was able to submit for the resolution of this problem was for the trial to be delayed for at least a further 18 months or two years to enable the appellant to obtain the necessary funds to finance appropriate private representation.
Such a proposal is, however unsupportable. It is now almost five years since the appellant was committed for trial on these serious charges, some of which relate to the period when the complainant was a child. Such further proposed delay in the trial is unacceptable. Secondly, in the light of the evidence as a whole, no court could have any degree of confidence on the present evidence that the appellant would be in a financial position to afford the quality of legal representation of which he speaks at any foreseeable time in the future.”
Smart AJ, in dissent, would have ordered the vacation of the trial date. His Honour observed that cash apparently available to the appellant and his wife would be required to meet taxation liabilities and having noted that they were conducting a business he referred to a proposal by the appellant that a long delay be granted in order to enable him to earn money to pay for private representation. His Honour spoke in alternative terms:
“It would not be beyond the Court’s power to require the applicant to set aside weekly amounts to meet his costs. If the moneys held by the wife are paid to the Taxation Department that may enable a fresh application for legal aid to be made.”
Nothing has been put forward to indicate that the appellant ever sought to implement his Honour’s suggestions.
In fact the trial did not proceed on 14 February 2000. A motion was filed seeking to postpone the trial principally on the grounds of the appellant’s alleged medical condition. On various days in February and March the matter was before Horler A/DCJ, Howie DCJ (as his Honour then was), Blanch CJ/DC and Dalgleish A/DCJ.
A trial date of 3 April was vacated but on 29 March 2000 the Chief Judge commented that it appeared that the appellant was seeking to avoid trial and it eventually commenced before Morgan DCJ and a jury on 1 May 2000.
In written submissions on behalf of the appellant reference is made to Dietrich v The Queen 1992 177 CLR 292 and it was submitted that “the fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law”. There can be no dissent from that proposition but the decision is not authority for the implied assertion in this case that a trial conducted by the accused without legal representation was inevitably unfair.
Unfairness of this trial was sought to be stated by seven points expressed thus:
“He did not have legal representation,
His health prevented him from making correct decisions during the trial,
The jury did not have the benefit of evidence from the appellant,
The jury did not have the benefit of evidence from other witnesses called to support the defence case,
Errors were made by the trial judge.
All of the factors combined to bring about a miscarriage of justice.”
The first merely states an uncontested fact. Her Honour gave express advice and the appellant’s right to give evidence was well known to him as was his entitlement to call witnesses, although who these witnesses would be and what relevant evidence they may have given has not been articulated. I shall in due course deal with the grounds asserting error on the part of the trial judge. Apart from the statement in the grounds no other errors by her Honour are sought to be identified. The appellant’s health is the subject of separate grounds but it is correct that it would be appropriate to consider any matters of health in conjunction with the absence of legal representation, however that is not to say that any impediment whatsoever to health has necessary nexus to absence of legal representation with the consequence that it must be concluded that the trial was unfair.
Reference was made to s402 of the Crimes Act 1900 (now s96 of the Criminal Procedure Act 1980) which provides that “an accused person is entitled to make full answer and defence by counsel”. The purpose of reference is unclear but the provision in its terms neither mandates that an accused be provided with counsel at public expense nor that particular counsel or counsel of particular rank must be supplied.
Article 14(3) (d) of the International Covenant on Civil and Political Rights is set out in written submissions. It reads:
“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
…..
(d)To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”
That covenant is not part of applicable domestic law in New South Wales and it gives rise to no particular right vested in the appellant. The issue is whether the trial which has been conducted was unfair and neither the existence of the covenant nor its provisions determines the answer to that question.
This appeal was previously listed on 9 May 2001 before a court differently constituted (Hodgson JA, James and Adams JJ) when reference was made to affidavits which had been prepared in connection with the appeal, some of which had not then been served. In the circumstances earlier stated they, and the further affidavit of the appellant’s wife have been put before the Court.
The relevant content of the affidavit of the appellant sworn 7 June 2001 is as follows:
“2. I had intended to give evidence at my trial and this continued to be my intention well into the period of presentation of the prosecution case. However when the prosecution case concluded and it was time to present my defence my mental and physical condition was such that I felt incapable of giving a reliable account of myself. Consequently I elected to present no case.
3. In outline my answer to the charges laid against me was to be as follows:
(a)That at no time did I have any sexual nor intimate conduct in relation to the complainant, otherwise than with her full approval.
(b)I did not have sexual intercourse with the complainant prior to her reaching the age when she was enabled to give her consent.”
In relation to that affidavit the Crown has submitted that, given the limited scope of that intended evidence, particularly the complete failure to explain how and in what circumstances the appellant would say that the consensual relationship with his adopted daughter commenced, that evidence would have been of little benefit to the jury and predictably of less benefit to the appellant’s case. I agree with those comments.
I mentioned the absence of identification of intended witnesses. If it is intended to suggest that the appellant’s wife might have been called then it is pertinent to observe what happened when she was called during the sentencing proceedings. In cross examination she agreed that she had written letters to the complainant twice in November 1994 encouraging her to change her account of what happened and to withdraw her complaints. It is also difficult to see how it would materially assist the appellant’s case if it were revealed that he initially lied to his wife by claiming that sexual intercourse between himself and the complainant had happened only once when later he conceded to “an affair”.
In relation to grounds such as the present it is appropriate to look at the reasonableness of the conduct of the appellant in all circumstances: R v Kennedy 1997 94 A Crim R 341. Such observation should not, however, deflect from attention upon the central issue of whether the trial which has taken place can be perceived to have been unfair. It is appropriate to form a conclusion in the circumstances pertaining to the appellant’s health.
The Appellant’s Health
Grounds 4, 7 and 8 can be dealt with together. As already recorded the appellant sought postponement of the trial before it began on the grounds of his state of health. As accurately stated in the appellant’s written submissions, prior to and during the course of the trial numerous medical reports were tendered. In summary terms, it was put:
“The evidence that was before the Court was that the appellant was suffering from a severe blood viral infection. Subsequent testing, including blood testing, resulted in a specialist physician diagnosing the appellant as suffering from a non specific viral hepatitis.”
There were also available for reference results of numerous liver function tests. The issue is not to determine any precise clinical picture but whether the appellant was so affected by health problems that the trial should be categorized as unfair. The appellant’s treating general practitioner was Dr Andrew Pritchard Davies. He saw the appellant during the trial on 2 and 5 May. In a report of 8 May he suggested, and he suggested no more than, that the court should take into account the appellant’s condition when “setting days and sitting time”. He saw the appellant again on 1 June during the trial but did not expressly report in relation to this until afterwards.
It would be unnecessarily tedious to detail how comprehensively her Honour applied the doctor’s cautions. Counsel for the appellant has tabulated references to expressions of discomfiture by his client. On occasions the appellant said he was tired or that his memory was failing. A particular mention in this context was made of an intention to call his wife as a witness. Her Honour advised him that if that was the intent she should remain outside until called. I have made some observations about potential cross examination of her and will not repeat them. It might be mentioned in passing that this occurred prior to the calling of the complainant and a consequence was that she did not hear that evidence including the appellant’s cross examination. The delay followed, inter alia, the conduct of a Basha enquiry concerning some other Crown evidence. The appellant’s remarks need to be weighed with the medical material and the extent of accommodation suggested by it. The Crown submissions give some twenty three transcript references as examples of accommodations. At no time did the appellant, after the commencement, apply for the adjournment of the trial other than for limited periods and these were, when requested, granted. In the course of giving appropriate guidance to the unrepresented appellant this exchange occurred between him and the learned trial judge:
“HER HONOUR: Indeed, if you find at any time during the course of the trial ………….. that you need a break, you may raise that with me ……… should you fall ill during the trial the court will be adjourned until such time as it is a reasonable time that you are fit to be able to resume ……….. the court would require medical certificates in relation to anything that might extend more than a day. You understand that?
A. Yes, I understand.”
Dr Pritchard Davies has sworn an affidavit on 27 February 2001 which also mentioned the occurrence of a poisoned foot which required removal of tissue and antibiotics treatment which would have added to the appellant’s “general debilitation”. This treatment occurred on 5 May 2000. In a post trial letter dated 28 August 2000 addressed to solicitors now acting for the appellant Dr Pritchard Davies wrote:
“My opinion is that it would have been extremely difficult if not impossible, for (BKK) to adequately perform or concentrate adequately during his trial period because of the chronic and debilitating nature of his illness. After a chronic and debilitating illness it may often take months to regain full strength and condition that allows you to perform to the best of your ability.”
It is not a test of integrity of trial to consider whether an accused is performing to the best of ability. Many factors as well as health might affect attainment of the superlative. The issue is fairness of the trial and the capacity of the appellant as a factor in that, seen with the benefit of hindsight.
The absence of hindrance is forcefully demonstrated by two aspects of the appellant’s conduct of his case. First, he was able to put minute detail in cross examination and second, he was able to produce and utilize in that cross examination a prodigious quantity of documentation.
Examples of the first are his contentions concerning conversations, some of them extending back as far as 1979 to 1981; descriptions of food the family ate for dinner on the dates of particular alleged offences, pizza on 23 September 1989 and chicken and chips (with lollies) in January 1994; film videos watched identified by title on the occasion of the alleged offence at Bermagui and series of dates and times concerning the date of adoption, the complainant becoming an Australian citizen, the family leaving Fiji, the family leaving Emerald, staying at Botany Caravan Park, Narrabeen Caravan Park, speaking to the Head of TAFE, the holiday in Bermagui and the time the complainant arrived home on 30 September 1994.
Examples of the second included production of a family tree; books and pamphlets on sex education; an article from New Weekly magazine; school reports; fitness centre cards; learner driver’s licence; church rosters; photographs; greeting cards; lease agreements and other dated documentary records.
This topic should not be passed without mention that the Crown produced opinion from Professor McCaughan, Director of the A. W. Morrow Gastroenterology and Liver Centre who opined that it was not possible to make a diagnosis of “viral hepatitis” upon the evidence available, that it was possible that the liver blood tests were abnormal secondary to a general illness and that there was no evidence for a definitive diagnosis of the stated illness to be found.
There is a second aspect to considerations touching upon the appellant’s state of health. This is the suggestion that the appellant suffers from obsessive compulsive personality disorder and that a person suffering from such disorder should not conduct his or her own defence to criminal charges.
Dr Clark who has made this diagnosis describes the condition in these terms in a short letter dated 13 April 1999:
“This means that he becomes stuck in detail, lost in his perfectionism, such that he finds it difficult to complete tasks. He is pre-occupied so that the major point of many activities is lost. He is unable to work with others unless they submissively agree to his way of doing things.”
The only other material from Dr Clark is dated 17 July 2000 (post-trial) and states that the appellant is depressed and unable to organize his affairs properly and needs time to “complete his appeal”.
The Crown asked Dr Bruce Westmore another psychiatrist to consider the matter. In his report he emphasied that he did not see the appellant. Dr Westmore theorized that if Dr Clark’s diagnosis was correct then it is possible that such a disorder would adversely affect an individual’s ability to represent themselves, particularly in a long and complex trial. He suggested that a possible disadvantage would be an inability to identify or discern important issues from unimportant ones because of lack of legal background. Dr Westmore was also provided with information concerning the suggested viral illness and he expressed this opinion:
“In the final analysis in this particular case, I think the issue of his ‘fitness’ to conduct his own affairs is more related to physical medicine rather than psychiatric medicine. Having considered the documents and this matter, my final conclusion is that it would probably be unsafe to assume that this man could represent himself, to his best advantage, given his potentially physically debilitating disease and its impact on him both physically and from a psychological and psychiatric perspective. There is insufficient history of the psychiatric report of Dr Clark(e), that is insufficient detail of this man’s symptoms and how they might affect him in court to provide an opinion as to whether the diagnosed obsessive compulsive disorder played a primary role in any fitness alleged by this man. I note that Dr Clark(e) did not indicate that he was unfit to be tried from Presser perspective and a detailed description of his mental state, specifically a cognitive assessment was not described in Dr Clark(e)’s report of 8 August 2000. This further adds to the difficulties in expressing an opinion about whether the viral hepatitis was affecting this man’s attention and concentration and his memory functions.”
The ability of the appellant to give an account of himself in the sense of representing himself adequately so as to render the trial in which he participated not unfair can be judged not only from his abilities to cross examine but from his address to the jury which has been transcribed. The transcript of the appellant’s address extends over some sixty pages. In confirmation of what has been said in relation to counts six to thirteen the appellant referred to anguish and pain and added “the anguish and the pain is understandable and so is the anger because for any man such as myself to stand here and say to you I had an affair with my daughter is reprehensible, it’s abhorrent. I never denied it because that’s what I said.” (Extract transcript p2).
The instant question is whether the difficulties in thought process and articulation mentioned by Dr Clark have been manifest in this and other aspects of the appellant’s conduct of his defence. No point will be served by reproduction of the transcript of address but it shows an attempt (insofar as the evidence permitted it) to grapple with the strength of the Crown case and a collated and targeted expression of the assertions that the appellant advanced in cross examination. Insofar as complaints have since been made that the appellant was too exhausted at the end of the day to attend to transcripts it might be noted that at the end of address he commented upon the content of it and his understanding of the conventions of advocacy is illustrated by his final remarks namely:
“We’ve covered the issues of guilt. Therefore in totality, I’d like to say to you that in sum total, the evidence as a whole has not been substantiated by the case by the Crown beyond reasonable doubt according to the facts presented and then I ask you again, if yo can separate out the emotional from the objective criterias (sic) required to be put concerning the proven facts and substantive facts to support each criminal charge, I say the Crown has failed and the verdicts therefore must be not guilty. Thank you.”
An assessment of whether the trial has been unfair involves consideration of the foregoing matters in combination relating to both state of health and absence of legal representation. In my assessment the trial was not unfair and I would reject all of the grounds advanced.
The Name of the Victim (Ground 6)
An indictment, obviously erroneously, nominated the complainant’s twin sister as the victim in some counts. The transcript (pages 5 to 7) shows that the appellant was arraigned upon an indictment showing no such error and goes on to record that the Crown Prosecutor read a list of witnesses and the jury was then empanelled, presumably from a panel in waiting when the indictment would have been read. There is no substance in this ground.
Alleged Errors in the Judge’s Charge to the Jury
Grounds 9 to 13 inclusive identified various subject matters upon which her Honour is asserted to have erred but the grounds do not, as they should, identify the errors asserted. That said, the complaints encapsulated by the grounds can be dealt with seriatim in accordance with matters raised in submissions.
The first of these grounds related to her Honour’s directions to the jury concerning evidence of complaint. As already noted, complaint following the event giving rise to the thirteenth count was made after the complainant attended work on the following day. Counsel for the appellant referred to evidence given by the appellant’s wife after conviction including a version of the facts relating to complaint and it was contended that that evidence should have been before the jury. The Evidence Act assumes that members of the family of an accused person, including spouses, are compellable witnesses but compulsion is limited by express rights of objection vested by s18. Having regard to the appellant’s wife’s admissions of her attempts to persuade the complainant to vary her allegation or to withdraw it, I cannot perceive how the appellant can sensibly claim to have been disadvantaged by the absence of his wife from the witness box as a Crown witness.
As counsel for the Crown pointed out no precise error is identified in support of this ground. In the absence of such identification this ground cannot be sustained.
The next ground makes complaints in relation to directions concerning corroboration. To a large extent any complaint in relation to this has been dealt with in consideration of the application to this case of the principles stated in Doggett. In this case there was evidence capable of amounting to corroboration including the telephone conversation between the appellant and his brother and remarks to his sister in law and to the husband of the complainant’s twin sister. However, the appellant’s complaint should be dismissed in the light of the circumstance that, notwithstanding the express provisions of the Evidence Act in deleting former obligation to warn a jury about acting on uncorroborated evidence (s164(3)) the learned trial judge, although adverting to the potentially corroborating evidence, gave the jury instructions which included:
“The Crown case stands or falls on the complainant’s evidence”
and
“The Crown case depends upon the complainant and must be scrutinized carefully”
and
“There are no witnesses to support the complainant to say they had witnessed the offences”.
Ground 11 relates to the appellant’s prior good character. Directions were given to the jury in this regard and the asserted deficiency is again not identified.
In cross reference to earlier grounds, it was submitted that the failure by the appellant to call positive evidence of good character was a major blunder inspired by his inability to represent himself. The value of such evidence would need to be assessed and three comments might be made: first, that there was no suggestion of anything adverse to the appellant other than the offences charged, second his own assessment of his behaviour was starkly sketched in the short passage from his address to the jury including adjectives “reprehensible” and “abhorrent” which is set out above and third her Honour gave the appellant express advice in this regard at the beginning of the proceedings.
Ground twelve referred to the appellant’s failure to give evidence. Reference is made to RPS v The Queen 2000 199 CLR 620 and Azzopardi v The Queen 2001 75 ALJR 931. The appellant’s submissions included a long list of suggested assistance which a judge might give to a jury concerning fact finding but such is not comprehended within the ground as expressed. The necessity for elaboration to the extent suggested is somewhat obscure. Her Honour had given conventional instructions on this matter and I do not perceive that more was required. Reduced to critical terms, the Crown was required to prove beyond reasonable doubt in relation to counts one to five that certain sexual actions occurred, the occurrence of which the appellant denied. In relation to counts six to thirteen, the Crown was required to prove the absence of consent to sexual congress between the appellant and the complainant, which congress was not in dispute.
Her Honour did give the jury instructions in relation to the absence of the appellant from the witness box but it can be observed that her directions were in language about which it was said in RPS that no complaint could be made.
Ground thirteen was sought to be supported by the absence from mention in the Judge’s charge to the jury of the circumstance that the Crown could have called the appellant’s wife to give evidence (subject to s18 of the Evidence Act). The argument in this regard is simply untenable. It was not the Crown case that the complainant had spoken to her mother and it adduced evidence from her explaining her failure to do so.
There was no comment made nor any identified suggestion of inference whereby her Honour invited the jury to consider that it could be expected that the appellant would call his wife as a witness.
None of these grounds have been made out.
Grounds Fourteen, Fifteen, Sixteen
These grounds relate to sentence. Having regard to the opinion already expressed concerning the outcome of the appeal in relation to counts one to five, the matter should be remitted to the District Court where sentence can be dealt with in accordance with the outcome of the new trial if it is held or, if prosecutorial discretion is exercised not to seek to retry those counts, sentence be reassessed and imposed in relation to conviction on counts six to thirteen only.
I propose the following orders:
(1) The appeal be allowed in part;
(2) The convictions and sentences on counts one to five of the indictment be quashed and a new trial ordered in respect of such counts;
(3) The sentences in respect of counts six to thirteen be quashed and the matter of sentence in respect of those counts remitted to the District Court to be dealt with according to law.
SPERLING J: I agree with the orders proposed by Grove J and with his reasons.
I wish to add some short observations of my own, which encapsulate why, in my view, the Longman v R direction was required in relation to certain of the counts and not in relation to others.
The rationale of the Longman v R direction appears to be that there is a special risk of the accused being wrongly convicted in a sexual offence case where the events occurred a long time ago. That, as explained in GPP [2001] NSWCCA 493 by Heydon JA (with whom Wood CJ at CL and Carruthers AJ agreed), may be because the accused might not be able to obtain evidence or information which would have been available earlier (per Brennan, Dawson and Toohey JJ at 90); or, in the case of a child complainant, because children are prone to fantasy which may be distinguished by contemporaneous questioning but which can harden into an absolute conviction of reality with the long passage of time (per Deane J at 100-101); or because recollection of events which occur in childhood is particularly susceptible to error and to the possibility that it may not even be genuine (per McHugh at 107-108). In relation to these considerations, as discussed in Longman, Heydon JA said, at [57]:
[I]t is impossible to escape from the conclusion that if delay causes either forensic prejudice to the accused in the particular circumstances, or risks of the type described by Deane and McHugh JJ in Longman v R, a warning must be given. The passages which support that conclusion cannot be read down or evaded.
Once sufficient time has elapsed to be material in any such respect, the absence of a Longman direction will be excused only if special circumstances make the direction unnecessary.
Was there a sufficient lapse of time in this case to attract the prima facie need for such a direction? The offences were alleged to have occurred over the period 1987 to 1994. The earliest incident under counts 1 to 5 was in 1987, the most recent was on 7 June 1990. In relation to counts 6 to 13, the earliest incident was alleged to have occurred between 1 January and 31 March 1992, the most recent on 27 October 1994. The applicant was interviewed by police and charged on three counts in December 1994. He was committed for trial in May 1995. The materials before us do not disclose on which counts the appellant was charged in December 1994, nor on which counts he was committed for trial in May 1995. In these circumstances, insufficient time may have elapsed in relation to counts 6 to 13 before the appellant was apprised of those allegations. But a Longman direction was not required in relation to those counts for the reasons given by Grove J and in this judgment.
The position is different in relation to counts 1 to 5. In my view, the lapse of time was sufficient in relation to the later incidents in that series, even if the allegations were brought to the appellant’s attention as early as December 1994. It was unquestionably sufficient in relation to the earlier incidents in that series. So there was a prima facie requirement for the direction in relation to counts 1 to 5.
The special circumstances relied upon by the respondent, in the present case, as making the direction unnecessary, were (a), in relation to counts 6 to 13, that the only issue was consent; and (b), in relation to all counts, that the accused had demonstrated an unusual capacity for retrieval of detailed information about circumstantial situations and events.
There is substance in point (a). In view of the nature of the issue under counts 6 to 13, there was no serious possibility that extrinsic information, once existing but no longer available, might have made a difference to the outcome of the trial in relation to those counts. And the alleged acts relied upon under those counts occurred when the complainant was aged 17 to 20, so that the possibility of childhood fantasy did not arise.
By contrast, the issue in relation to counts 1 to 5 was whether the alleged acts had occurred at all. And they were alleged to have occurred when the complainant was aged 12 to 16. Much earlier acts were relied upon in support of these counts. The fact that a large amount of detailed information was available to the appellant at the trial does not dispel the risk that other information of importance might not have been, by reason of the passage of time.
These are the considerations which I would emphasise as distinguishing between the need for a Longman direction in relation to counts 6 to 13, and not in relation to counts 1 to 5.
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LAST UPDATED: 14/12/2001