R v Colby

[1999] NSWCCA 261

CITATION:	R v Colby [1999] NSWCCA 261
FILE NUMBER(S):	CCA 60587/97
HEARING DATE(S):	11 March 1999
JUDGMENT DATE:	26 August 1999
PARTIES :	Regina v Robert Victor Colby
JUDGMENT OF:	Mason P at 1; Grove J at 217; Dunford J at 218

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0865
LOWER COURT JUDICIAL OFFICER:	Kinchington DCJ

COUNSEL:	A: SR Norrish QC R: WG Dawe QC
SOLICITORS:	A: TA Murphy R: SE O'Connor
CATCHWORDS:	APPEAL - Against conviction - Aggravated sexual assault (s61J Crimes Act) - Sexual intercourse with a person between 10 and 16 by person in authority (s66C(2) Crimes Act) - Whether verdict unsafe and unsatisfactory due to lack of evidentiary support; APPEAL - Against sentence - Whether total of sentences was manifestly excessive - Whether trial judge erred in considering broader context of offences - New sentence; EVIDENCE - Inadequate directions to jury regarding complaint evidence - Failure of trial judge to give adequate warnings in relation to evidence of the complainant - Admissibility of "coincidence" and "tendency" evidence of three former wives - Possibility of concoction - Whether misdirections and inadequate directions given in relation to evidence of former wives - Admissibility of evidence of a third party and whether probative - Admissibility of magazine to show knowledge of complainant of sexual matters - Admissibility of evidence of discharge of firearm to show propensity to act on impulse - Admissibility of finding of "not guilty" on sexual assault charges brought against complainant’s father - Admissibility of certain specialist gynaecological evidence - Whether rejection of any or all of this evidence led to a miscarriage of justice - Whether probative value outweighed prejudicial effect
ACTS CITED:	Crimes Act 1900 Evidence Act 1995 Criminal Appeal Act 1912
CASES CITED:	Hoch v The Queen (1988) 165 CLR 292 R v Johnston (1998) 45 NSWLR 362 Longman v The Queen (1989) 168 CLR 79 R v Pfennig (1995) 182 CLR 461 Robertson (1997) 91 A Crim R 388 BRS v The Queen (1997) 191 CLR 275 R v BD (1997) 94 A Crim R 131 Gipp v The Queen (1988) 194 CLR 106 H (1994) 74 A Crim R 41
DECISION:	Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence upheld; Sentence varied

IN THE COURT OF
CRIMINAL APPEAL

CCA 60587/97

MASON P
GROVE J
DUNFORD J

Thursday, 26 August 1999


REGINA v Robert Victor COLBY

HEADNOTE

The appellant was convicted of two counts of aggravated sexual assault (s61J Crimes Act) and eleven counts of sexual intercourse with a person between 10 and 16 years by person in authority (s66C(2) Crimes Act). A total sentence was imposed, comprising of a minimum term of 16 years and an additional term of 6 years.

The appellant was a long-time friend of the family of the complainant and all but the first counts related to a period when the complainant was living with the appellant, who had been appointed her custodian on the application of the Director-General of the Department of Youth and Community Services. The alleged offences occurred at a time when the appellant was aged about 50 and the complainant was aged 12 or 13.

A key aspect of the Crown case was the evidence of three former wives of the appellant who told of a similar range of sexual practices, including bestiality, and distinctive types of sexual intercourse. They denied collaboration and that evidence was admitted over objection based upon the principles in Hoch v The Queen (1988) 165 CLR 292.

The appellant contested each of the charges and sought leave to appeal against the sentences on the basis that the total of the sentences was manifestly excessive.

HELD by Mason P (Grove and Dunford JJ concurring): Appeal against conviction dismissed. Appeal against sentence allowed. Sentence quashed. New sentence imposed.

(1) In relation to ground 1 (inadequate directions as to complaint):

The directions given to the jury regarding the complaint reflected the need for the jury to be informed of the use that can be made of complaint evidence ( R v BD (1997) 94 A Crim R 131 at 142) and they complied with s405B of the Crimes Act which addresses the issue of delay in complaint. The jury were not warned in the summing up that delay in complaint was relevant to the assessment of the complainant’s credit and while it is well-established that a trial judge may, in appropriate cases, give a comment or warning in such a situation, the absence of such a warning in this case did not involve a miscarriage when no direction or redirection was sought at trial. The need for and content of any comment or warning in certain circumstances is discussed with particular reference to R v Johnston (1998) 45 NSWLR 362 and Longman v The Queen (1989) 168 CLR 79.

(2) In relation to ground 7 (failure to give adequate warnings in relation to the evidence of the complainant):

There was no duty incumbent on the trial judge to give a specific warning in relation to the evidence of the complainant over and above those which had already been canvassed before the jury in the course of the attack upon the Crown case and the evidence of the complainant.

(3) In relation to ground 3 (wrongful admission of evidence of Jennifer Harwood, Nicole Capare and Karen Colby as to their sexual and other relationships with the appellant):

The trial judge was correct in overruling objections which had been taken during the trial to the admissibility of the “coincidence” and “tendency” evidence of three former wives as to their sexual and other relationships with the appellant. The evidence was both relevant and probative of the issues raised in proceedings and it fell within the type of evidence identified in both R v Hoch and R v Pfennig (1995) 182 CLR 461. This evidence was held to have “significant probative value”. The principle in Hoch that similar fact evidence will be rejected if there is the “possibility of concoction” was discussed. The application of the principles expounded in Hoch and the issue of how real a possibility of concoction must exist before the disputed evidence is rendered inadmissible on that basis were discussed in the light of reasoning in Youngson (Queensland Court of Criminal Appeal, unreported, 19 August 1993), Robertson (1997) 91 A Crim R 388 and Schneiders (Victorian Court of Criminal Appeal, unreported 14 December 1992).

(4) In relation to grounds 4, 5 and 6 (misdirections and inadequate directions relating to the evidence of the appellant’s former wives):

The submissions regarding the inadequacy of directions relating to the evidence of the appellant’s former wives are misconceived. The evidence of the former wives was admissible because it satisfied the “coincidence rule” and the “tendency rule” in ss97 and 98 of the Evidence Act 1995. It was therefore appropriate for the jury to be permitted to use that evidence for those purposes if they were satisfied as to its cogency which is exactly the direction they were given. The need for clear directions is established in BRS v The Queen (1997) 191 CLR 275, R v BD (1997) 94 A Crim R 131 and Gipp v The Queen (1988) 194 CLR 106.

(5) In relation to ground 3A (wrongful admission of evidence of Anthony Simone):

This evidence was inadmissible, however in the circumstances of the trial and given the volume of other evidence much more closely connected to the relationship in question, it caused no miscarriage of justice.

(6) In relation to ground 9 (wrongful rejection of Cleo magazine):

The magazine was admissible, however if there was error in rejecting this exhibit, the rejection caused no substantial miscarriage of justice.

(7) In relation to ground 10 (wrongful admission of evidence by Robert McNeil concerning the discharge of a firearm by the appellant as demonstrating a “propensity to act on impulse”):

By Mason P (Grove J agreeing): This ground of appeal is not established. The evidence was properly admitted, however both the prejudicial effect and the probative impact were slight and the trial could not be seen to have miscarried on this account.

By Dunford J: The evidence was inadmissible but the proviso should be applied.

(8) In relation to ground 11 (wrongful rejection of evidence that the complainant’s father had been found “not guilty” of charges brought in respect of alleged sexual assaults upon the complainant):

The refusal to admit this evidence involved no error.

(9) In relation to ground 12 (rejection of certain evidence by Dr Chapman):

There was no error in the putative rejection of the evidence. The evidence of Professor Chapman itself demonstrates that no real disadvantage was done to the appellant by this rejection.

(10) In relation to ground 13 (the verdicts were “unsafe and unsatisfactory”):

The verdicts have not been shown to lack support in the evidence. It was open for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

(11) In relation to the application for leave to appeal against sentence, there was no error in the trial judge’s approach of considering the broader context in which the particular offences occurred. While the “disgusting” nature of the conduct undoubtedly called for a condign sentence, the offences occurred during a closed period of 13 months and involved a single victim which distinguish this case from others. The sentence imposed in the present case was significantly in excess of other sentences for similar offences which have been approved by this court. See R v Hill CCA unreported 7 July 1992; R v Moore CCA unreported 12 April 1994; H (1994) 74 A Crim R 41.

New Sentence: Minimum term 12 years, Additional term 4 years


IN THE COURT OF
CRIMINAL APPEAL

CCA 60587/97

MASON P
GROVE J
DUNFORD J

Thursday, 26 August 1999



REGINA v Robert Victor COLBY

JUDGMENT

1    MASON P: The appellant was tried in the District Court in late 1997. He was indicted on 14 counts (some of them alternative counts) involving the assault or sexual assault of or sexual intercourse with CLB (the complainant). The appellant pleaded guilty to the count of common assault and not guilty to the other charges. Following a jury trial presided over by his Honour Judge Kinchington QC the appellant was found guilty of:

Counts 1 and 14 (aggravated sexual assault: Crimes Act , s61J).

Counts 2-5, 7-11, and the alternative verdict found in relation to counts 12-13 (sexual intercourse with person between 10 and 16 years by person in authority: Crimes Act , s66C(2)).

2    Sentences of imprisonment were imposed, some concurrent and others cumulative. The net effect was a fixed term of penal servitude commencing on 22 August 1997 and expiring on 21 August 2013 with an additional term of six years commencing on 22 August 2013 and expiring on 21 August 2019.

The Crown case in context

3    The appellant was a long-time friend of the family of the complainant. The alleged offences occurred between August 1993 and September 1994 at a time when the appellant was aged about 50 (he was born on 30 September 1944) and the complainant was aged 12 or 13 (she was born on 21 March 1981). All but the first of the counts related to a period when the complainant was living with the appellant, who had been appointed her custodian on the application of the Director-General of the Department of Youth and Community Services (“DOCS”). 4    The appellant was married four times. Significant evidence about his sexual practices was given by three of his wives, the second (Jennifer Harwood: married 1975 - separated 1978), third (Nicole Capare: married 1981 - separated December 1983) and fourth (Karen Colby: met and commenced sexual activity in 1985 when she was 15 or 16, married 1988 - divorced 1992). 5    The complainant had been a flower-girl at the appellant’s marriage to Karen Colby. During the complainant’s childhood the appellant stayed regularly at her parents’ home in Horsley Park when he travelled to Sydney from his home in Browns Creek, near Blayney to work on movie sets, supplying armoury and costumes. During 1993 the appellant used to take photographs of her dressed in period costume. The complainant said that during these photographic sessions he used to kiss and touch her and ask her to rub his penis “like I rub my Dad’s”. The first count in the indictment (aggravated sexual assault) related to an incident when the complainant was at her parents’ home with the appellant. 6    The complainant left her parents’ home in August 1993. She said that, prior to that time, she had confided to the appellant that her father (RB) had been sexually assaulting her. According to the complainant, the appellant told her that he would stay as much as possible at her home to keep her father away from her. In cross examination the complainant spoke of her father disciplining her by giving her the option between having sex with him or being hit with a belt (T89). Her father, called under subpoena in the defence case, agreed that he belted her frequently and that this was the cause of her running away from home (T733). He confirmed that she had told DOCS that he had sexually and physically assaulted her (T734). 7    The complainant said she turned to the appellant for help because “he was the only one that was available for me to” (T90). He had at one stage offered to her that if things got too much there was “always a place for me at his home” (T93). The complainant said “I thought I had a deal with him that he wouldn’t touch me. I thought I could trust him enough that he wouldn’t touch me” (T96). The appellant denied any such conversation, save for having been asked to promise that he would never hit the complainant with a belt because her father had done so (T515). 8    On 24 August 1993 the complainant (then aged 12) left home. It was her evidence that she telephoned the appellant, who picked her up outside Stocklands Mall in western Sydney and drove her to Bathurst (T18). There he contacted a solicitor and the matter was referred to DOCS. The complainant was placed in temporary foster care while enquiries were made. The complainant expressed a preference to live with the appellant rather than be sent somewhere unfamiliar. She said that she got him to promise never to touch her in a sexual way again. (Obviously the appellant’s promise to the complainant was not revealed to the officers of DOCS who authorised the placement of the complainant with the appellant. But it does appear that the history of alleged sexual abuse by the complainant’s father was known or discussed, at least after the complainant commenced to live at Browns Creek, because she was medically examined by Dr Horodan in September 1993 and she commenced receiving sexual assault counselling during this period.) She was placed in the appellant’s care in October 1993. Thereafter she resided at his property at Browns Creek, outside of Blayney, and attended Blayney High School. She stayed there until September 1994. 9    The matters recounted in the previous paragraph were common ground at trial, except for a lively dispute as to whether the appellant met the complainant at Stocklands Mall by arrangement (the complainant’s evidence being corroborated by the evidence of two school friends) or whether that meeting occurred in Bathurst. The appellant’s evidence was that he received a phone call from the complainant who was "hysterical". As a result he met her in Bathurst where she told him she had run away from home (T512). He took her directly to a solicitor in Bathurst. 10    The complainant admitted that she had originally told an officer of DOCS in Bathurst that she had come to Bathurst and met the appellant there. She said that that was a lie told at the suggestion of the appellant (T100-101). She explained her later failure to inform DOCS officers about what was happening on the basis that she did not want to be put back into foster care. Cf T736. 11    Taken broadly, the Crown case was that the complainant was permitted and encouraged by the appellant to regard herself as the appellant’s wife during a period of about ten months in 1993-1994. Evidence was led as to the appellant’s guilty passion for the complainant: frequent sexual intercourse, some of it of a bizarre and distinctive character; the wearing of a wedding ring by the complainant; holding hands and kissing in the presence of third parties; and the complainant sleeping in the appellant’s bed (except when friends came to visit). The summing up explained that this material was led to place the specific charges in context but that the jury had to be satisfied beyond reasonable doubt about the particular acts which were the subject of the counts charged in the indictment. 12    According to the complainant, not long after she commenced living with the appellant he produced a wedding ring which she commenced to wear (except when visiting a DOCS officer). He used to call her “wife” and “my darling wife” (T52). The couple usually held hands except when they were in Blayney for fear of being seen by the DOCS’ officers (T74). 13    The complainant also gave evidence of an occasion, when she was living with the appellant when the appellant spoke of one of his former wives who had had her nipples pierced. She said that he then pierced her nipple using a surgical needle. The needle was left in for a couple of days. He then asked her to pierce his nipple, which she did. They both had rings, like sleepers, in their nipples. On one occasion during sexual intercourse the two rings were linked with a chain. However, the appellant’s ring got torn out leaving a piece of skin sticking out the end of the nipple which she had to cut off. 14    Evidence as to a very close and affectionate relationship between the complainant and the appellant was led from Robert McNeil who observed a “physically close couple” (T191) which he described as closer than the ordinary father and daughter relationship (T205). The appellant had introduced the complainant to Mr McNeil as his daughter, but Mr McNeil’s suspicions were aroused and he made enquiry of DOCS and learnt that the appellant was in fact her guardian (T209). 15    Other evidence as to an inappropriately close relationship between the couple was given by Karen Colby, Gary Davies a former boyfriend of Karen Colby, and Candice P a school friend of the complainant who stayed overnight at Browns Creek on one occasion. Mrs Colby visited the appellant at Browns Creek in August-September 1993. She went to collect the two children of her marriage with the appellant after an access visit. The appellant asked her for a reference if DOCS contacted her. According to her, he told her “I am not going to touch her any more, I am going to be her father” (T364). Notwithstanding, she observed him in a later occasion when she collect her children, walking arm in arm with the complainant and cuddling her (T366). 16    Mr Davies had accompanied Mrs Colby on the latter visit. He said that he observed the appellant and the complainant holding hands, and formed the opinion that the appellant was “not displaying a guardian to child relationship” (T450). 17    Ms P was shown a vibrator, pornographic videos and magazines at the home, she observed the complainant wearing a wedding ring and saw the appellant and complainant kissing “like a boyfriend and girlfriend would passionately” (T475). 18    According to the complainant, the appellant had sexual intercourse with her many times. He encouraged her to keep a tally of sexual activities, saying that his ex-wife Karen had kept a tally and showing her one of Karen's black diaries (T30). Initially she used Karen’s black diary, then a red or burgundy diary supplied by the appellant. She said that there were over 2000 acts of sexual intercourse which she tallied. Those diaries were left at the appellant’s place when the complainant left. The only diary produced in evidence by the Crown was a Standard Diary for 1994 in which “528” and “533” appear on 27 and 28 December 1993 (Ex E). According to the complainant those were part of the tally. The appellant produced a 1994 diary (Ex 6) which he said was found among some items belonging to the complainant about halfway through 1995 (T605-6). It too had tallies in the same pattern. 19    The complainant swore that initially the appellant had sex with her around once per day, but when she was not hurting anymore the rate increased to up to eight times a day (T31). Sometimes at weekends the tally could be as high as 15 (T87). The complainant had her own room but slept in the appellant's bed except when friends stayed over (T31). 20    The appellant’s evidence was that his relationship with the complainant was always only that of a guardian. She referred to him as “Dad”. He denied any sexual intimacy or any conduct which might have suggested that he and the complainant lived at Browns Creek as husband and wife. He said it was the complainant's idea to adopt his surname but that he never encouraged her to pretend that they were married (T529-530). 21    The appellant denied having the capacity for frequent sexual relations as alleged by the complainant (and corroborated by his former wives). He stated that an injury sustained to his testicles while playing cricket before his marriage to Karen Colby made sexual intercourse painful (T530-531). He denied ever having his nipple pierced, and tendered photographs taken in December 1996 which were said to show the absence of any pierce marks (Ex 24). 22    The appellant also denied many of the sexual practices recounted by the complainant and his former wives, including their allegations of penis-measuring, nipple-piercing, the keeping of a diary with a sex tally, the use of carrots or other objects, anal intercourse, bestiality, encouragement to have sex with third parties and voyeurism by videotaping or watching others having sexual intercourse. 23    The details of the counts upon which the appellant was convicted may now be set out. In doing so, I shall refer to the evidence of the complainant and the appellant as well as some, but not all, of the evidence of other witnesses.

Count 1 (aggravated sexual assault)

24    The complainant swore that, about a month before she left home in August 1993, the appellant took her to Darling Harbour to see an electronics exhibition. They returned to the complainant's home at Horsley Park and went into her parents' bedroom where they watched television. The appellant left the room and when he returned he told the complainant that she had to choose between her father wanting to have sex with her or the appellant having sex with her. He started to take off her clothes. When she objected and pulled her clothes back on, he threatened to get her father. He offered her the choice of sex with her father or with him. The appellant took off the complainant's clothes again and laid her on the bed. She protested and he threatened again to get her father. He put his penis in her vagina and pushed back and forth, ejaculating on her stomach (T26). While they were lying in the bed after intercourse, the complainant’s father and brother came into the room. The brother (Robert) covered her with a sheet. 25    The appellant agreed that he had taken the complainant to an exhibition at Darling Harbour but said that when they returned to the household in Horsley Park, the complainant's parents were both on the premises. The appellant denied going into the parents’ bedroom and having intercourse with the complainant. He said that he slept that night in the complainant’s bedroom whilst she slept in the lounge room. The complainant’s father RB was a defence witness, called on subpoena. He denied ever going into the bedroom and seeing the complainant in bed with the appellant (T697). The complainant’s brother also gave evidence for the defence, denying that he saw the couple in bed in the parents’ bedroom. 26    The remaining counts relate to the period between October 1993 and September 1994 when the complainant lived with the appellant at Browns Creek.

Count 2 (sexual intercourse with a person between 10 and 16 years by person in authority)

27    The complainant said that on about the third day that she resided with the appellant, they were watching TV when he started touching her on the chest and kissing her. He put his fingers inside her vagina, then led her into his bedroom and put her on the bed, with her legs hanging over the side. He took off her clothes, took his pants off and put his penis into her vagina “but not all the way because it really hurt” (T30).

Count 3 (as for count 2)

28    The complainant said that a couple of months after she moved in with the appellant, he took her to the property of a friend, John Toohey, at Mandurama. There was no one around. The appellant and the complainant went swimming naked and the appellant got the complainant to lie down on a towel. He set up a video camera that he brought with him so that it framed her body length. Then he lay on top of her and put his penis into her vagina, pulling out to ejaculate on her stomach. When they returned home they watched the video. 29    The appellant showed the complainant other videos, according to the complainant, including pornographic movies, a video of her brother (Bernie) at the age of about 15 years having sex with Karen Colby, and a video of the appellant having sex with the complainant's mother. 30    The appellant denied ever taking a video camera to John Toohey's place, denied having sexual intercourse there and denied videotaping sex with various people (T516). He also denied ever having any videos of himself having sex with the complainant’s mother or showing such a video to the complainant (T516-517). John Toohey was called as a defence witness. He remembered the appellant and the complainant coming to his place and going off together for a walk to the river for between 35-40 minutes (T644-5). However, he did not see the appellant carrying a video camera (T648).

Count 4 (as for count 2)

31    The appellant and the complainant participated in a dramatic production called "Murder on the Carcoar Express". The production was staged on a steam train the weekend before the complainant left the appellant's home in Browns Creek in September 1994. The complainant’s evidence was that the appellant was angry at her for talking to other people rather than staying with him, and that when they got home he hit her. While they were in bed, Michael Wynne, an actor in the production, telephoned and spoke to the complainant. The appellant became angry, hit her, and made her call Mr Wynne back and tell him that she was only 13 years old. Mr Wynne corroborated the phone call and its content and said that the complainant sounded distressed (T715-721). 32    After school on 5 September, being the following Monday, the appellant penetrated the complainant's vagina with his penis and moved in and out until he was about to ejaculate. Then he rolled onto his back and pushed the complainant's head onto his penis. The complainant sucked the appellant's penis and he ejaculated (T37). 33    The appellant gave evidence regarding the circumstances in which he reprimanded the complainant about her behaviour and the subsequent phone call from Michael Wynne after which the complainant had told him that she had told Wynne she was 16 years of age. He said that he told her to ring Wynne and tell him that she was 13 years of age. He denied assaulting her at the time of that phone call and gave evidence about an argument that developed between them (T525-528). He denied the sexual assault.

Count 5 (as for count 2)

34    According to the complainant, when the appellant and the complainant woke up the following morning, 6 September 1994, the appellant kissed the complainant on the chest and put his penis inside her vagina. He said, "Quick, quick" when he was about to ejaculate, and pushed the complainant's head down for her to suck his penis.

Count 6 (assault)

35    This count, to which the appellant pleaded guilty, was for an assault on 6 September 1994. The appellant beat the complainant about the head and body with his belt. According to the complainant, this was after she received a phone call from persons whom she refused to identify. Photographs of bruising were tendered (Ex C). It was put to the complainant that the assault was part of her motivation to make false charges against the appellant.

Count 7 (as for count 2)

36    The complainant swore that before school the following morning, 7 September 1994, the appellant had sexual intercourse with the complainant, lying on top of her and pushing his penis in and out of her vagina. As with Counts 4 and 5, when he was about to ejaculate, he pulled out and rolled onto his back. He pushed the complainant's head down and she sucked his penis until he ejaculated in her mouth (T41). 37    That day at school the complainant decided that she did not want to return to the appellant. She talked to a teacher who notified DOCS in Orange. She did not tell the teacher about the sexual interference by the appellant because (according to her) she was scared and just wanted to get away but not to cause him trouble (T4).

Count 8 (as for count 2)

38    In the first weekend of July 1994, the complainant accompanied the appellant to Sydney to attend a gun show. They stayed in a motel not far from the Showground. The appellant's son, Bill Colby, was also sharing the motel room but was absent for periods working as a security guard. During one such period of absence, the complainant and the appellant were in the double bed and the complainant was sleeping on her right side. The complainant said that the appellant cuddled up to her and pushed his penis into her vagina from behind (T45). 39    The appellant gave evidence that he attended a gun show in Sydney, and that his son was doing security work at the gun show. He denied having sexual intercourse with the complainant in the motel.

Count 9 (as for count 2)

40    According to the complainant, the appellant employed various objects in sexual activities with the complainant. He used two vibrators, one of which he said had belonged to his former wife, Karen Colby, and another which he bought for the complainant (T33-34). The appellant also used carrots, bananas and cucumbers during sexual intercourse. Not long after the complainant moved into the appellant's house, the appellant put a carrot inside a condom and inserted the carrot into the complainant's vagina while she sat naked on a chair, with his hand placed on her shoulder (T34). The complainant’s evidence of having access to a vibrator was corroborated by a school friend who had stayed overnight with her at Browns Creek. 41    The appellant denied ever showing a vibrator to the complainant or buying a vibrator for her. He denied putting a vibrator or other objects in her vagina (T 517). 42    The evidence tendered by the Crown from the appellant’s former wives was highly relevant to this count. Two of them told of sexual intercourse involving similar objects. The admissibility of this evidence is a ground of appeal.

Count 10 (as for count 2)

43    According to the complainant the appellant performed anal intercourse on the complainant on several occasions. The first occasion took place after the complainant's birthday in March 1994. The appellant was lying behind the complainant and started rubbing his penis around her bottom and vagina area. He pushed his penis into her anus, entering about halfway (T47). 44    Two of the appellant’s former wives gave evidence of acts of anal intercourse. 45    These allegations were denied by the appellant. 46    Dr Paul Tait a specialist paediatrician, conducted a genital examination of the complainant on 13 October 1994 at the request of DOCS. He observed a tear in the complainant's hymen that was "old and well healed, so it was not something that had happened within the last month or so" (T408). He gave evidence that it was more likely that this "injury" to the hymen had occurred at an earlier stage in prepubertal development rather than as a sexually mature adult, and that subsequent penetration would not necessarily cause the tearing to expand or intensify (T409). He examined the complainant's anal region but did not note anything that could be interpreted as abnormal or significant (T409).

Count 11 (as for count 2)

47    The complainant swore that on several occasions the appellant manoeuvred his pet German Shepherd dog, Mack, to have penile-vaginal intercourse with the complainant. The first occasion occurred some time after her birthday in March 1994. The appellant and the complainant were in the laundry. The appellant told the complainant to get down and he put the dog's paws on her back and pushed the dog's penis into her vagina from behind (T47). He told her that his wife Karen had done a similar thing. Nicole Capare and Karen Colby gave evidence about such sexual practices. 48    The appellant agreed that he did own a German Shepherd called Mack (T520-521). However he denied causing the penis of his dog to be put into the complainant's vagina.

Count 12 (convicted on alternative count as for count 2)

49    According to the complainant, the appellant took the complainant on a visit to Sydney after her 13th birthday. They stayed in a motel. On the first night of their stay, Michael Kennedy came over. He was a friend of the appellant whom the complainant had met previously. The appellant set up a video camera to film the double bed in the room. Kennedy took off the complainant's clothes, lay on top of her on the bed and had penile-vaginal intercourse with her. The appellant also removed his clothes and sat on the bed. Kennedy rolled off the complainant and the appellant moved on top of the complainant and pushed his penis into her vagina. He pulled out and ejaculated on her stomach (T83). 50    The appellant’s three former wives gave corroborating evidence of the appellant and Kennedy in sexual encounters involving the two men at the same time. 51    The appellant denied this count. He also denied ever suggesting that his second wife have sexual intercourse with Kennedy or any other person. And he denied ever being in bed having sex with her and Kennedy at the same time (T496).

Count 13 (convicted on alternative count as for count 2)

52    According to the complainant, there was further sexual activity in the motel room involving Kennedy. Kennedy lay on the bed, grabbed the complainant by the hips and sat her on top of him, with his penis inside her vagina. The appellant then put lots of "Vaseline" onto his own penis, moved behind the complainant and leant her forward. Kennedy partially withdrew his penis and the appellant pushed his penis into the complainant's vagina so that their penises were penetrating her simultaneously (T84). The complainant felt "like was ripping, like it cut, it hurt" (T84). 53    The appellant denied that he and Michael Kennedy had taken turns having sex with the complainant in a motel room or that they had their penises in her vagina at the same time (T525). He led medical evidence as to the unlikelihood of this having occurred without permanent injury to the complainant (see Ground 12 below).

Count 14 (aggravated sexual assault)

54    The final incident of sexual intercourse that the complainant said happened in the motel room involved the appellant and Kennedy standing next to each other beside the bed and holding her head while she sat on the edge of the bed, guiding her to suck their penises in turn (T85). 55    The grounds of appeal that were pressed will now be addressed, grouping and arranging them for convenience.

Ground 1 (inadequate directions as to complaint)

56    Essential to each of the contested charges was the allegation that sexual intercourse had taken place. 57    The complainant left the appellant’s home on 7 September 1994. She spoke to somebody at school about the belting, was taken to see an officer of DOCS, and was placed in foster care with Mrs Gartrell in Orange. When interviewed by DOCS’ officers including Rae Hodder on 7 September the complainant was asked whether the appellant had ever touched her sexually and she had replied to the effect: “Oh no, he has never done that, not like my real dad, it is only that he can’t control his temper”. 58    Mrs Gartrell arranged for the complainant to be examined by a paediatrician in Orange on 9 September 1994. He examined her bruising. The complainant said nothing about sexual matters. 59    On 15 September 1994 Mrs Gartrell took the complainant to see a solicitor in relation to proceedings for a care order that DOCS had initiated in the Children’s Court. While driving home from the solicitor’s office the complainant, who was in an agitated state, said “I have something to tell you…. Dad [referring to the appellant] and I have had sex”. Arrangements were then promptly made for a DOCS officer to come to Mrs Gartell’s home to interview the complainant. Over the ensuing days details of the complaint’s allegations of sexual abuse by the appellant were given. A time chart and detailed statements were taken on 26-27 October 1994. 60    The complainant was challenged in cross examination about not having referred to any sexual assault during her early discussions with DOCS officers on 7 September and on the occasion when she was examined by the doctor on 9 September 1994. She was also challenged as to why she had not spoken about the sexual abuse during any of the times when she had contact with DOCS officers during her placement with the appellant in 1993-94. She explained that she was always accompanied by the appellant. She never disclosed to the district officer what was happening. She said that the appellant coached her in advance as to matters that she should say and not say, and it was he who told her to take off her wedding ring on these occasions. On one occasion there was an unannounced visit to the property by DOCS officers but they were spotted in time for everything to be put in order in the house. The complainant did not tell them about what had been happening. She explained this on the basis that at that time she and the appellant were getting on fine and that she feared being taken away from him (T65). 61    In the summing up, the judge recounted the evidence about the absence of complaint prior to 15 September 1994. He informed the jury that the statement to Mrs Gartell on 15 September was tendered as evidence of complaint. His Honour continued:

A complaint is not corroboration of a complainant’s evidence. It is not independent evidence and a person cannot corroborate themselves by repeating assertions on a number of occasions. Evidence of complaint was admitted to assist you in deciding whether the complainant’s conduct, that is C…’s conduct, was consistent with what she says happened and to rebut any argument that the absence of complaint would suggest that the offences did not take place.

It is not disputed by the Crown that she did not, immediately upon C… leaving the accused’s home, make any complaint. In fact, what she complained of at that time was being hit with the belt around the legs and it was not until she spoke to Mrs Gartrell that the Crown says that that constitutes evidence of complaint. The Crown says that you will be satisfied it is evidence of complaint. It is a question for you to decide as judges of the facts in this case. If you are satisfied that no complaint was made or that the complaint was late that does not necessarily indicate that C…’s evidence, that the event that she has described in regard to each of these counts, did not take place, because there may be good reason why a victim of a sexual assault may hesitate in making or may even refrain from making a complaint about that assault.

You have heard from C…, you have seen her and she, the Crown says, has explained why she did not do it and you would be entitled to conclude that this was a very traumatic part of her life and it is understandable that she did not speak up until she had faith in the person whom she spoke to, and that was Mrs Gartrell. You may think that that is perfectly obvious, that it is a perfectly good reason, on the other hand you may reject it. There may of course be good reasons for delay. The question for you to consider is whether, in this case - if you are satisfied there was a delay on this question of complaint - what you have to consider in this case is the complaint and the circumstances in which it was made: Does that show consistency of conduct on the part of C… in regard to the allegations that she has now made against the accused in these proceedings. (SU 15-16).

62    Later in the summing up the jury were reminded of the evidence concerning the conversation with DOCS officers on 7 September when the complainant had denied that the appellant had ever touched her sexually (SU 97). 63    These directions were substantially as previously discussed with counsel (T762-3). They reflected the need for the jury to be informed of the use that can be made of complaint evidence (R v BD (1997) 94 A Crim R 131 at 142). And they complied with s405B(2) of the Crimes Act which, in cases such as the present in which delay in complaint is raised, requires the judge to:

(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and

(b) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault.

64 Counsel for the appellant at trial had submitted that it was appropriate that the judge give the direction proposed by the Crown Prosecutor. She also submitted that it would be incumbent to remind the jury that the initial complaint was in terms of violence (the belting) and then after that complaint there was the sexual activity complaint (SU 763). This was done in the passage I have quoted. 65 This is an area where neither judge nor counsel adverted to relevant provisions of the Evidence Act. The directions were given as though the evidence of complaint had been admitted as evidence going to the credibility or consistency of the complainant, not as evidence of the facts. During argument before us, senior counsel for the appellant acknowledged that the High Court has recently stated the operation of s66 of the Evidence Act in Graham v The Queen [1998] HCA 61. However, there was no ground of appeal in relation to the recency of complaints and it was accepted that, whether or not the trial judge had s66 in mind, he appeared to have applied a correct test. 66 In the summing up the jury were reminded of the necessity to scrutinise the evidence of the complainant very carefully (SU 20-1, 24, 35). But they were not warned that delay in complaint was relevant to the assessment of the complainant’s credit. 67 No redirection was sought in relation to the way that the summing up dealt with the issue of complaint. Leave in accordance with Rule 4 would be required. 68 The appellant submits that there were a number of fundamental deficiencies in the way in which the issue of complaint was left to the jury. They were that:

(i) The trial judge did not direct the jury that in evaluating the evidence of the complainant, and in determining whether to believe her, the jury could take into account, if found, her failure to make a complaint at the earliest reasonable opportunity as reducing her credibility ( Crofts v The Queen (1986) 186 CLR 427 at 435-6, 449-52). It was submitted that the directions tended to reinforce the complainant’s credibility (cf R v Harvey , unreported, NSWCCA, 9 April 1998).

(ii) The trial judge failed to relate the alleged evidence of complaint to the facts of the case, particularly the allegations of multiple sexual assault over an extended period of time. The challenge focused upon the fact that directions were not given concerning the complainant’s failure to complain of the aggravated sexual assault that occurred, on her account, at her parents’ home in July or August 1993 before she was placed in the care of the appellant at her request; or of the other acts of intercourse that occurred in late 1993 or early 1994 and which are the subject of counts other than counts 6 and 7.

(iii) No direction was given as to the relationship of the evidence of “complaint” to the particular counts in the indictment.

(iv) The trial judge failed to address the absence of a consistent “complaint” or representations (or inconsistent accounts) to those people to whom the complainant spoke on 7 and 9 September 1994, ie Ms Hodder and Dr Kerrigan ( Evidence Act 1995 , ss43, 60, 66; R v BD at 142-3; Harvey ).

69 It is well-established that, notwithstanding s405B of the Crimes Act, a trial judge may, and in appropriate cases must, comment that failure or delay in complaint may be taken into account in the assessment of the complainant’s credit (R v Davies (1985) 3 NSWLR 276; Longman v The Queen (1989) 168 CLR 79; Crofts v The Queen (1996) 186 CLR 427). The obligation to give a warning about the difficulties inherent in a delayed complaint arises “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case” (Longman at 86; Crofts at 435. See also M v The Queen (1994) 181 CLR 487 at 514-5 per Gaudron J). The need for, and content of, any comment or warning will depend on the circumstances of the case (see R v Johnston (1998) 45 NSWLR 362 at 367-9, where the authorities are collected and discussed by Spigelman CJ). 70 The overriding duty is to ensure that the accused secures a fair trial (Crofts at 451). In this context, one matter which would enliven the need for a special warning is where delay has created difficulties for the accused in defending himself. 71 There will be situations where not merely a comment but a warning is called for (Longman at 91). Longman was such a case because it involved complaints of sexual abuse 20-25 years before the trial. The delay caused the accused to lose those means of testing the complainant’s allegation which would have been open to him had there been no delay in prosecution. Brennan, Dawson and Toohey JJ said (at 91):

Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial. After more than 20 years that opportunity was gone and the applicant’s recollection of them could not be fairly tested.
The fairness of the trial had necessarily been impaired by the long delay … and it was imperative that a warning be given to the jury. 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.

(See also Kenny , unreported NSWCCA, 29 August 1997 (9 years delay), Crofts (6 years delay), K (1997) 68 SASR 405 (5-6 years delay), Harvey (5 years delay).)

72    In Johnston, Spigelman CJ referred to these and other authorities before stating the following propositions (at 375):

(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.
(ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt.
(iii) The need for, and content of, any comment will depend on the circumstances of the case.
(iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case.
(v) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties.
(vi) Where the summing-up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate.
(vii) In some cases a warning which uses terminology such as “dangerous” or “unsafe” to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).

73    Those principles were applied in Johnston, a case involving a delay of five and half years before complaint. The problem was there compounded by the fact that the Crown referred to the passage of time as an explanation for inconsistencies in the complainant’s evidence and contrasted this unfavourably with the “amazing recollection” of the appellant as to matters of detail. In these circumstances this Court held that a warning should have been given which identified the specific difficulties for the defence caused by the delay in complaint, provided assistance as to how the jury should approach their task in the light of the difficulties that had been caused by the delay, and explained the reasons for the warning by relating the danger of convicting to the specific difficulties for the defence. 74    In my view the present case is far removed from the situation discussed in Johnston and the other authorities relied upon. There was no misdirection concerning s405B or any other matter relevant to the complaint (contrast Crofts). The Crown had not suggested that the weight of the appellant’s evidence was diminished by delay, nor had it sought to explain difficulties with the complainant’s evidence on that basis (contrast Johnston). There was no lengthy lapse of time between the events in question and the first complaint. The complaint was not the direct response to a specific and loaded enquiry (contrast K). No direction or redirection was sought. Nothing suggested in the evidence or as a matter of experience that the appellant was placed at any disadvantage by the lapse of time between 7 and 15 September 1994 or even by the lapse between August 1993 and 15 September 1994. The appellant was charged on 27 September 1994. The jury were fully apprised of the inconsistent statements made in the early days after leaving the appellant. 75    As regards all of the counts relating to the 11 months when the complainant was living with the appellant at Browns Creek, this was, in practical terms, a case in which the jury were going to be satisfied beyond reasonable doubt about the complainant’s evidence or they were going to reject it in its entirety. They were directed of the need to be satisfied beyond reasonable doubt as to each count. But they were entitled to view the Crown case in context. Even the first count was capable of being seen, in part, as an incident forming part of a course of conduct involving a prolonged pattern of sexual abuse by an infatuated older man upon a girl aged 12 or 13 at the time. 76    It is possible to address compendiously the appellant’s specific arguments (ii) (ii) and (iv) (see par 68 above). The jury were fully apprised of the fact that there had been absence of complaint, deception of the DOCS officers, and (on 7 and 9 September 1994) denials of a sexual relationship on the part of the complainant. It is clear from the complainant’s cross-examination and from the Crown’s submissions as recounted in the summing up that there was a live issue as to the complainant’s reasons for having acted this way and as to the impact that the absence of complaint and inconsistency of complaint had upon her credibility as a witness. In those circumstances, there was no miscarriage stemming from the absence of directions specifically spelling out the obvious consequence of forming the view that the complainant had indeed told the truth when she denied or suppressed any sexual misconduct on the appellant’s part. 77    No direction or redirection was sought to the effect that the statements made by the complainant on 7 and 9 September 1994 were receivable as evidence of the fact. This is a classic case for the application of rule 4 on that matter, in view of the distinct possibility that it may have been perceived that (had such a direction been given) the jury may have been tempted to apply similar reasoning with respect to the complaint evidence itself. 78    I have considered anxiously whether the delay in complaint in relation to the first count (aggravated sexual assault occurring before the complainant went to live with the appellant) called for a separate warning. I do not understand it to be suggested that delay referable to complaint concerning this count caused the appellant any potential prejudice in defending himself or otherwise affected the fairness of the trial. No doubt the jury weighed the credibility of the complainant’s evidence that she chose to live under the appellant’s roof notwithstanding this earlier incident of forced sexual intercourse that took place at her parents’ home. The complainant’s evidence was that she was escaping sexual abuse by her father and that she trusted the appellant. Other evidence also supports the inference that the complainant may have commenced to fall under the spell of confused infatuation directed at a father figure who had already shown signs of interest in her as a woman. The jury were well positioned to assess this material and to apply the warnings previously given about the complainant’s testimony generally (see below). The absence of a warning specifically directed at any one count of the indictment did not involve a miscarriage in circumstances when no such direction was sought at trial.

Ground 7 (Failure to give adequate warnings in relation to the evidence of the complainant)

79    The trial judge gave three warnings in relation to the evidence of the complainant. 80    He told the jury (at SU 20) that the very nature of the charges and the relationship between the accused and the complainant required the jury to:

carefully scrutinise her evidence, both generally and in relation to each of the incidents which she has given evidence about in support of each of those charges. That is necessary because most of the charges arise out of incidents where only she and the accused were present.

81    Later (at SU 24) the jury were reminded that it was necessary to scrutinise the evidence of the complainant very carefully. And (at SU 35) the jury were again reminded that, since the complainant’s evidence was central to the Crown case, the jury:

would, of necessity, scrutinise it with the greatest care. Before you can act upon it you must be satisfied that it is honestly given, reliable and that it establishes beyond reasonable doubt the essential elements that go to constitute the offence charged.

82    The appellant submitted that the force of these warnings was ameliorated by the conjunction of the reminders that there was evidence (especially from the former wives) which “supported” the evidence of the complainant. A number of specific matters were highlighted as fit for specific warnings (written submissions par 7.4). 83    I would reject this ground. None of the specific matters now said to have called forth a duty to give a specific warning appear to have been the subject of any application for such a direction at trial. They really amount to a catalogue of matters in which the Crown evidence was disputed or challenged. Several of them were referred to in the summing up, albeit not in the context of a specific warning about the complainant’s evidence. Some of them repeat aspects of ground 1 which related to inadequate directions as to complaint. These were all matters which would have been canvassed before the jury in the course of the attack upon the Crown case and the evidence of the complainant in particular. The trial did not miscarry because the judge chose not to add his own specific warnings on these matters. 84    The collocation of a general warning and a reminder of the corroborating evidence from the former wives (SU 24, 25-6) involved no miscarriage, especially since no complaint was directed to it at the trial. The jury were reminded of the weight of evidence called by the defence to rebut those allegations (SU 33-34).

Ground 3 (Wrongful admission of evidence of Jennifer Harwood, Nicole Capare and Karen Colby as to their sexual and other relationships with the appellant)

85 The complainant made statements on 23 September and 26 October 1994, 13 July 1995 and 26 November 1996. The appellant was questioned and charged on 27 September 1994. Following committal, there was an abortive trial in December 1996, the hearing dates being 2-6 and 9-11 December. Between 6 December 1996 and June 1997 a number of statements were taken from the second, third and fourth wives. Jennifer Harwood gave statements on 6 December 1996 and 5 February 1997. Nicole Capare gave statements on 12 December 1996, 3 March 1997 and 17 April 1997. Karen Colby gave statements on 6 and 11 December 1996. 86 Before the instant trial commenced, the Crown served notice of the “coincidence evidence” upon which it proposed to rely (cf Evidence Act, s98(1)(a)). By reference to the four statements of the complainant and identified statements of the former wives, various sexual practices of the appellant were identified as improbable events occurring coincidentally. Early in the trial, objection was taken to the admissibility of most of the evidence identified. The objections were based on general relevance as well as specific objections either by reference to the “coincidence rule” (s98) and/or the “tendency rule” (s97). Alternatively, it was contended that the evidence should be rejected because its probative value did not substantially outweigh its prejudicial effect (cf s101(2)). 87 The various statements were not put before this Court. However, the Crown’s notice of coincidence evidence that was served during the trial identified the sources of the various allegations. From this it emerges that allegations were made by the four women about various sexual practices in statements given in the following months:

Complainant Colby Harwood Capare
Kennedy 7/95 12/96 2/79 12/96
2 men at the same time 7/95 12/96
Tally of sex acts 9/94 12/96 4/96
Nipple piercing 10/94 12/96 2/96 12/96
Penis measuring 7/95 12/96 12/96
Carrots, etc 10/94 12/96 4/97
Dogs 10/94 12/96 3/97
Anal intercourse 10/94 12/96 4/97

88    Ms Harwood and Mrs Colby were examined on the voir dire, particularly as to their relationship with the complainant and the circumstances of their contact with each other and with Ms Capare. Rulings were given on 30 and 31 July 1997 identifying which paragraphs of the wives’ statements were admitted. Some paragraphs were rejected on discretionary grounds. 89    Reasons were given on 18 September 1997. Having noted the various objections, the trial judge indicated that he was satisfied that the evidence was both relevant and probative of the issues raised in the proceedings and that it fell within the type of evidence identified in both The Queen v Hoch (1988) 165 CLR 292 and The Queen v Pfennig (1995) 182 CLR 461:

... because it is supportive of the Complainant’s evidence firstly as to the circumstances under which various of the offences were alleged to have been committed and secondly as to the conduct of the Accused on those occasions. To my mind these events described by those three witnesses are not only substantially and relevantly similar to those described by the Complainant but the circumstances under which those events occurred are also substantially similar to the events and circumstances described by the Complainant in her evidence.

As to s101(2), his Honour was satisfied that he should not reject the evidence in the interests of justice. He considered that its probative value so outweighed any prejudicial effect that it should be allowed to be placed before the jury.

90    At the time when the wives’ evidence was ruled admissible, the complainant had completed her evidence. The three former wives were then called in turn. Before the jury there was some further testing as to whether their evidence was contaminated in any way by collaboration with the complainant or with each other. 91    The particular “coincidence” and “tendency” evidence to which objection was taken was to the following effect:

(a) Jennifer Harwood, the second wife of the appellant, said that she first met the appellant on 18 October 1974 when he was working as a security guard on a "muck-up night" at her school. They commenced a relationship soon after and were married on 18 October 1975, separating on 21 December 1978. Ms Harwood gave evidence that the appellant engaged in very frequent sexual activity (up to 6 to 8 times a day), and that he liked to use objects in conjunction with sexual activity including a vibrator, a cucumber and a stick of cabanossi (T281). He also liked to have his nipple or sometimes his ear pierced during sex (T282, 287). The appellant introduced Ms Harwood to Michael Kennedy. At the appellant’s urging, she had intercourse with him, in the presence of the appellant (T285). There was an occasion when the appellant observed this through a window, and another time when the two men got into bed with her and had sex with her in turns.

(b) Nicole Capare, the third wife, met the appellant in October 1980 when she was 21 years of age. They were married in 1981 and separated in December 1983. Soon after their first date, Ms Capare moved into the appellant's house at Kogarah and agreed to leave her job to work with him. Ms Capare gave evidence that they engaged in sexual activity up to eight times per day (T302, 308, 317) and that the appellant's sexually related behaviour included measuring his penis in her presence (T308), taking photos of groups of young girls running naked (310), ear and nipple piercing (of herself) during sex (T315, 318), penetrating her vagina with a carrot and a vibrator (T317), and asking her to have sex with their German Shepherd dog, Bruno (T315-316). She also gave evidence of the appellant videotaping or watching group sexual activity (T310, 313) and asking her to have sex with Mr Kennedy (T311) and another man (T313) and speaking to a third man about working on her to have sex with him (T312).

(c) Karen Colby, the fourth wife, gave evidence that her sexual relationship with the appellant commenced in June 1985 when she was 15. (The appellant contended that it was 16.) The appellant made her keep a tally of their frequent sexual activity in a diary (T347, 350). He manipulated the penis of his German Shepherd dog, Randy, into her vagina (T362) and used a vibrator, carrots, cucumbers and bananas in conjunction with sexual activity (T366). On numerous occasions he got her to measure his penis (T369). He practised nipple piercing for her and him while having sex including the use of a chain between the two sexual partners (T367-369, 403). At his instigation, she had sex on several occasions with Mr Kennedy, in which the two men were in bed together (T349). This included four or five occasions when the two men penetrated her vagina at the same time (T352-3). On other occasions, the appellant arranged for her to have sex with other men (including men in the complainant’s family) in circumstances where he observed it through a window (T354). The appellant used to video sexual activity with Mrs Colby involving himself and others (T372). She also gave evidence of the appellant involving another woman in sexual activity with himself and with her (T350-1).

92    The relevance and strong probative force of this evidence is understood when it is recalled that the complainant’s evidence included very frequent sexual intercourse, the keeping of a sex tally in a diary at the appellant’s instigation, nipple piercing and linking with a chain, penis measuring, the use of a vibrator and other objects such as carrots, bananas and cucumbers, the introduction of Michael Kennedy as a sexual partner (sometimes as a threesome with the appellant), vaginal penetration by two men concurrently, videotaping and watching videotapes of sexual intercourse, and sexual penetration by a dog. Provided that the risk of contamination and concoction was excluded to the requisite degree, this evidence was significant in the nature and variety of the sexual practices recounted. It went well beyond evidence that showed no more than the appellant’s passion for his former wives. Its probative value substantially outweighed any (improper or unfair) prejudicial effect it might have upon the defendant (cf s101). 93    The evidence of the former wives was relevant in corroborating the complainant. The evidence of the complainant, taken by itself, may not have invited credibility from the jury simply because the perversions practised upon her were so outrageous (cf R v H, Court of Criminal Appeal unreported, 24 October 1994). It was highly improbable that the complainant would have concocted so similar an account of the appellant’s sexual practices (cf Hoch at 295-6, Gipp (1988) 194 CLR 106 at 111-12). And the nature and extent of the similarities were tantamount to a stamp of identification comparable to an “idiosyncratic or peculiar modus operandi” (Gipp at 112 per Gaudron J) or “distinctive modus operandi” (Gipp at 134 per McHugh and Hayne JJ). 94 The directions given to the jury as to the relevance, reliability and significance of the evidence of the former wives are challenged in grounds 4 to 6 (below). It is sufficient for present purposes to note that the Crown submitted that the evidence of the former wives was receivable as both tendency evidence and coincidence evidence which the jury could use as corroboration on counts 9-14. The admission of the former wives’ evidence on this basis is challenged in the present ground of appeal. 95 Section 97(1)(b) of the Evidence Act (which deals with the “tendency rule”) provides that evidence of a person’s tendency is not admissible to prove that the person had a tendency to act in a particular way if:

the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

“Probative value” means “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” (Dictionary to the Evidence Act ). In Lockyer (1996) 89 A Crim R 457 at 459, Hunt CJ at CL suggested that “significant” in this context meant “important” or “of consequence” and that this must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact. See also R v AH (1997) 42 NSWLR 702 at 709; R v Fraser , NSWCA, unreported, 10 August 1998 at p23.

96 Section 98 (which deals with the “coincidence rule”) makes similar provision in respect of evidence that two or more related events occurred where that evidence is tendered to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act. Section 98(2) states, for the purposes of s98(1), that:

2 or more events are taken to be related events if and only if:

(a) they are substantially and relevantly similar; and

(b) the circumstances in which they occurred are substantially similar.

97 Section 101(2) further restricts tendency and coincidence evidence by precluding its use by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. Prejudice is not established by the mere fact of the weight of the evidence in relation to the ultimate issue. The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case (Lockyer at 460). 98    The appellant submitted that the evidence of the former wives should have been rejected on the following bases:

(i) The wives’ evidence was inadmissible because of the “possibility of concoction” ( Hoch );

(ii) The evidence was, or was substantially, no more than evidence of the nature of the appellant’s “guilty passion” for his former wives during the respective marriages. It lacked “significant probative value” (cf s97(1)(b));

(iii) The ruling given on 30 July 1997 re Ms Harwood excluded, in the exercise of discretion, material which related to particular acts or instances involving violence towards Ms Harwood by the accused. It was accompanied by the statement, that should it be alleged in cross-examination that the conduct referred to in Ms Harwood’s statements was “consensual” , then the judge would reconsider the question of its admissibility in the light of that questioning. The appellant submits that this created an impossible situation for the conduct of his case at trial. I disagree. The ruling did not preclude the defence from conducting its case as it saw fit. It merely foreshadowed that this might have the consequence of opening up additional areas of evidence. There was nothing unusual in this. It may be observed that, when the appellant’s son William Colby was called in the defence case he made emphatic denial of the suggestion that he had had an improper sexual relationship with his stepmother Ms Harwood. He was being challenged in cross-examination by the Crown Prosecutor, who sought to put to the witness that both he and Ms Harwood were in fear of the appellant’s violence (T631). This line of questioning was objected to. A voir dire ensued. The evidence was rejected in the exercise of the Court’s discretion (T638).

99    The appellant submitted that Hoch establishes a general principle of admissibility of “intra group” evidence in the context of “similar facts”, and that that principle extends to trials conducted in accordance with the Evidence Act 1995. The principle is that similar fact evidence will be rejected if there is the “possibility of concoction” (at 296). What establishes that possibility was explained in the following passage in the judgment of Mason CJ, Wilson J, and Gaudron J (at 297):

… the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction. (emphasis in original).

See also Pfennig at 481-3.

100    This concern based upon the possibility of concoction is really a particular application of a more general principle emphasised in Pfennig (at 483-5, 506-7). The principle is that propensity evidence is inadmissible if there is a reasonable view of the evidence that is consistent with the innocence of the accused, for otherwise its probative value cannot transcend its prejudicial effect. See also R v Best (1998) 102 A Crim R 56. 101 In BRS v The Queen (1997) 191 CLR 275 at 300 Gaudron J emphasised that evidence of this nature is not admissible unless the possibility of concoction has been excluded. Her Honour explained that the issues extend beyond the possibility of joint concoction (between the witness and the complainant) to include “the question whether the complainant might have concocted his or her account after becoming aware of some like event or some like allegation concerning the accused”. 102    In an appeal against conviction it is appropriate that the question of miscarriage stemming from the wrongful admission of evidence should be tested in relation to the evidence in fact adduced in consequence of the challenged ruling or rulings at trial and the way in which that evidence was allowed to go to the jury. It was not suggested by the appellant that we should determine the matter solely by reference to the witness statements that were before the trial judge or the details of the notice served by the Crown at trial. In stating this I am not suggesting that there was any material departure. 103    But it would be another thing entirely to determine that evidence was wrongly admitted on the basis of evidence emerging at the trial but not advanced during a set piece voir dire hearing related to the admissibility of the relevant category of evidence. I am not suggesting that later evidence might not be of such weight that it might ground an application to disallow evidence previously admitted, or even to lead to the discharge of the jury in a proper case. But no such applications were made in this trial. Rather, issue was joined before the jury as to the credibility of the evidence of the complainant based upon the possibility of collaboration or concoction with Karen Colby in particular. 104    Hoch was a case where an employee at a boys home was charged on counts of indecently dealing with a boy under the age of 14. Three boys who had been resident at the home complained that Hoch had sexually assaulted them. Over objection, the evidence of each boy was given in a trial limited to charges concerning one boy. The evidence was of striking similarity, but it was held inadmissible by the High Court. Two of the boys were brothers, and one of them was a friend of one of the brothers. There was evidence that the boys had some antipathy to the accused which may have been unrelated to any sexual act. In these circumstances, their close relationship as well as their opportunity concoct their accounts, coupled with the material indicating that one complainant was ill-disposed to the accused even before the events the subject of accounts in the indictment were said to take place, rendered the similar fact evidence inadmissible. In the words of Mason CJ, Wilson J and Gaudron J (at 297):

There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts.

105    The other judgment in Hoch was given by Brennan and Dawson JJ. They too held that the evidence had been wrongly admitted. Their Honours said that a trial judge should exclude similar fact evidence unless satisfied that there was no real chance that it was the product of a cause common to the witnesses. They explained (at 302) that if there is a real danger of concoction then the reason for rejection of the evidence is “consistent with the attitude which the law adopts towards evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof”. This shows that the reasoning upon which Hoch proceeded is capable of application to ss97 and 98 of the Evidence Act because of the requirements, common to each section, that the evidence have “significant probative value” and that its probative value substantially outweighs any prejudicial effect it may have on the defendant (cf ss101(2)). 106 It was not suggested by the Crown that the relevant provisions of the Evidence Act or the principles expounded in cases such as Hoch and Pfennig are confined to “criminal or reprehensible conduct” (per Gaudron J in BRS at 299) or “criminal or reprehensible propensity” (per McHugh J, ibid at 305). This is an issue that may bear further examination in another case (see generally Palmer “The Scope of a Similar Fact Rule” (1994) 16 Adel LR 161; Nair “Weighing Similar Fact and Avoiding Prejudice” (1996) 112 LQR 262 esp at 272-5; Heydon Cross on Evidence 5th Aust ed [21065]). Since the point was not raised at the trial or on appeal I am content to proceed on the basis that the dangers of propensity reasoning in criminal matters apply with equal force where the evidence led in proof of guilt does not involve “illegal or “reprehensible” conduct (as was the case with respect to some at least of the evidence adduced from the appellant’s former wives who - with the possible exception of Karen Colby - were consenting adults at all material times). 107    Subject to this possible qualification, the procedural approach adopted in Hoch should be applied to trials conducted in accordance with the Evidence Act 1995 where evidence is admitted to show tendency (cf s97) or to rebut coincidence (cf s98). If the reasonable possibility of concoction suggests that evidence of this nature may be contaminated, it must be withheld from the jury because that risk deprives the evidence of its significant probative value, regardless of its substantial and relevant similarity. 108 However, there remains room for disputation as to the application of the principles expounded in Hoch, even or especially if those principles are read in the context of the facts of that case. 109    In Youngson (Queensland Court of Criminal Appeal, unreported, 19 August 1993, passage quoted in Robertson (1997) 91 A Crim R 388 at 407) Pincus JA suggested that the “precise phrasing” of the test stated in Hoch was important. At page 2 of his reasons he observed:

This Court is bound to follow Hoch …If the evidence must be excluded when it is possible that the complainants agreed to concoct their various stories, the prosecution to pass that test would have to show that there was no communication between the complainants before they spoke to the police which could have included arrangements for the concoction. Another test is whether the quality of the evidence is “reasonably explicable” on the basis of concoction, and that appears to me to be different from the test of possibility. The third test is whether there is a “real chance” or a “real danger” of concoction. The first two tests are to be found in the majority judgment (at 296, 297) and the third test in the reasons of Brennan and Dawson JJ (at 299, 300, 302).

110    Pincus JA then cited the decision of the Victorian Court of Criminal Appeal in Schneiders (Victorian Court of Criminal Appeal, unreported 14 December 1992) which deduced from Hoch the principle that “because there was an opportunity for concoction and therefore a possibility of concoction the counts in relation to one complaint for a sexual offence ought to have been tried separately from the counts in relation to the other”. 111    I have drawn considerable assistance from the judgment of Ambrose J in Robertson. His Honour reviewed the Australian and English case law following Hoch and sought to understand how real a possibility of concoction must exist before the disputed evidence is rendered inadmissible on that basis. He referred to the post-Hoch English decisions of R v Ananthanarayanan [1994] 1 WLR 788, [1994] 2 All ER 847 and R v Ryder [1994] 2 All ER 859, observing that the English law has subsequently changed (see R v H [1995] 2 AC 596). Ambrose J concluded that the “possibility” test required by Hoch refers to a reasonable possibility as distinct from a speculative or conjectural one. As in Hoch itself, the decision is to be taken by reference to the particular factual context. I respectfully agree with Ambrose J (at 409) where His Honour said that the language used in the majority judgment in Hoch (at 297, passage quoted at par 99 above):

… implies that the trial judge may use the same sort of commonsense and experience in determining that question as used in the practice reflected in Ananthanarayanan and Ryder . Stated shortly it is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it. To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence. Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility on the facts of Hoch and Youngson will perhaps be a compelling indication of the determination required.

112    The evidence relevant to the issue of possibility of concoction should now be set out:

(a) On the voir dire Ms Harwood said that the only time that she had had any contact with the complainant was on an occasion when the complainant was living with the appellant and visited her and her daughter in the company of the appellant. She had never met Nicole Capare. Her one and only meeting with Karen Colby was in June 1996 at a sporting event. The only conversation (which apparently took place in the presence of children) was to the effect that each woman acknowledged the other as a former wife of the appellant (T240). She said that Karen Colby had indicated that she had not had a very good time during her marriage and that she was glad to be out of it, but there were no specific details discussed (T240-241). At that stage Karen Colby had not made any statement to the police. The only further discussion between Ms Harwood and Karen Colby were telephone conversations in early 1997, ie between the date of the aborted first trial and the trial that resulted in the verdict now under appeal. The significance of the date is that, by that stage, Mrs Colby had provided the police with both of her statements referred to in the “coincidence evidence” notice made available to the appellant (par 87 above) and Ms Harwood had provided the police with the first and possibly the second of her three statements. The matter was taken no further in the voir dire . In her evidence before the jury Ms Harwood repeated this evidence (T286, 290, 294). Ms Harwood revealed in cross examination that it was Karen Colby who rang her and asked her to make a statement (T289). Karen asked for permission to give her name to the police. (This must have occurred between June 1996 and 6 December 1996.) She subsequently spoke to the police without any collaboration with Mrs Colby (SU 67).

(b) Ms Capare was not examined on the voir dire . Before the jury she said that she had never spoken to Jennifer Harwood. The only occasion on which she had met Karen Colby was outside the court in December 1996. She had no ongoing contact with her since that time (T317). She had never met the complainant since she was a tiny baby (T318). This evidence was not challenged in cross-examination. It was put to Ms Capare that the first time she was asked to make a statement was around the time of her first statement on 12 December 1996. She appears to have agreed, adding that she had had no idea of the arrest or of the committal hearing prior to that time (T321). Ms Capare had come to court in December 1996 at the invitation of a third party, Helen Barbalich conveyed through her father (T322). She met Karen Colby on that occasion but was not given any detail about her evidence. She said that she had not been shown statements of the former wives when she came to make her statement. Her statement was based upon notes which she had prepared herself (T322).

(c) In her evidence on the voir dire Karen Colby said that she had had no contact, either personally or by telephone, with the other two wives of the appellant between the time when she left her relationship with the appellant in February 1992 and December 1996. She had never met Nicole Capare. The only occasion on which she met Jennifer Harwood was at a sporting event in June 1996. There was discussion about the appellant’s violence but no discussion concerning the sexual relationship (T269-70). Mrs Colby had not seen the complainant nor had any telephone contact with her since the complainant left the appellant’s custody (T270). In cross-examination she adhered to her position that there had been no discussion relevant to her evidence (T274). She agreed that, by May 1994, she was angry with the appellant because she believed he had cheated her out of $60,000 in relation to property settlement (T271). However, nothing emerged to explain why she did not come forward to assist the complainant in her allegations against the appellant until 6 December 1996. She said she was first asked to give a statement shortly after the appellant was charged, but that (although she thought about the matter a lot) she did not do so until December 1996 (T273).

Later, when she was before the jury Mrs Colby said that at the time of her relationship with the appellant she had met neither Nicole Capare or Jennifer Harwood (T366). Her (first) statement to the police was given on 6 December 1996. Prior to that time she had had no contact with the complainant since having last seen the complainant when she was in the appellant’s company apparently on close and affectionate terms (T369. Cf T366). (The complainant’s diary (Ex 6) contains an entry for 22 May 1994 referring to a meeting at a park between the complainant, the appellant, Karen Colby and their two children.) Mrs Colby had never met the two former wives before December 1996 except for an occasion when she met Jennifer Harwood during which meeting there was no discussion about the sexual relationship with the appellant (T369-70). This evidence was not really challenged in cross-examination (cf T406). Mrs Colby agreed that she had been introduced to Nicole Capare for the first time outside court at the abortive trial in December 1996.
Mrs Colby had divorced the appellant in 1992. The property settlement proceedings between them in the Family Court of Australia had been resolved by the end of 1992 (T374). However, by May 1994 she had become dissatisfied with the settlement, believing that the valuation of the appellant’s armoury business had been too low. She demanded a further $57,000 (T376). She admitted to being resentful, but denied in cross examination that she set about a course designed to harm the appellant (T404). She agreed that she spoke to the complainant on 22 May 1994, but said that it was only for about two minutes and that the discussion did not relate to seeking revenge on the appellant or her own sexual relations with the appellant during their marriage (T376-7, 398, 414). She had not had a conversation with the complainant after the time that the complainant ceased living with the appellant (T401).
In the complainant’s diary (Ex 6) there is an entry in her handwriting: “Woke up, mad rush to get to park, picked up kids there, Karen talked for an hour” . The complainant was recalled for further cross examination. It was put to her that, on the occasion at the park, there was an argument between the appellant and Karen Colby where the appellant departed after about five minutes (T441-2). The complainant denied this, and denied that on this or any other occasion she was told details about Karen’s relationship with the appellant (T443). She said that the mention of Karen talking for an hour was a reference to her discussion with the appellant (T442).

113    At one stage during the defence case at the trial the judge expressed concern about Browne v Dunn unfairness. He enquired whether it was part of the defence case that “all the girls had [put] their heads together” (T602). Counsel for the appellant at trial answered:

I don’t think that is the case, I don’t think there has been a question that all the three former wives and C…have set upon a joint concoction, as it were. I don’t think that has been put anywhere. There has been cross-examination between each of the other two former wives and Karen and to the degree of communication between Karen and C…. As to the discrepancy as to what has been said by Karen and C… as to the extent of their communication as evidenced by the diary entry of 22 May 1994 referring to Karen talking for an hour, I think, and as to the diary and the existence of the diary, I think that is it as far as the defence as has taken it.

114    It is somewhat unclear how much was being conceded by the defence in this exchange. The wives’ evidence had already been admitted. It is probably safer to proceed on the basis that counsel was merely eschewing reliance upon a joint concoction. The unchallenged evidence had clearly closed off any direct lines of communication between the first wife (Harwood) and the complainant and between the second wife (Capare) and the complainant. 115    In the defence case evidence was given by Thomas Huang, a friend of the complainant’s family. He told of a telephone call from the complainant in August 1995 when she was living in a foster home. He asked her why she was not staying at home and she told him that it was because her father had raped her (T728). Reference was made to the appellant in the conversation. The complainant said: “I am also worked together with Bob’s ex-wife Karen to get Bob” (T724, sic). He did not understand what she meant by this, and he did not ask her what she meant. (It had been put to the complainant in cross-examination that she had written a letter to Mr Huang indicating that she and Karen had got together to get even with the appellant. The complainant had denied this (T132).) 116    Mr Huang had not been called on the voir dire that preceded the ruling to admit the wives’ evidence. Nor was any application made for a discharge of the jury after he gave his evidence. Rather, issue was joined before the jury about the rejection of the Crown case because the evidence of this witness, Karen Colby and the complainant supported the inference that Mrs Colby was in effect the hub for communication and possible contamination. 117    In the summing up the jury were reminded of the address of counsel for the defence, who had submitted that Karen Colby had an axe to grind and that she was the common denominator who had spoken to all of the wives and the complainant (SU 34). The Crown submission was that the jury should accept that there had been no discussion about sexual behaviour. This was based upon inviting the jury to accept the credibility of the wives’ evidence and the improbability that the stories could have been dovetailed together without lengthy discussion and coaching of the complainant (SU 141-2). 118    In the light of all this material, there was no miscarriage in the admission of the evidence of the former wives that went to the jury in relation to tendency and to rebut coincidence. As matters stood when the ruling was given following the evidence of the complainant and the evidence on the voir dire of Ms Harwood and Mrs Colby, there was not a “sufficient relationship … and opportunity and motive for concoction” (Hoch at 297) to justify a reasonable inference that there was a real chance of concoction or contamination. Each of the three women examined had denied opportunity and the exercise of opportunity to put their heads together. There was virtually no challenge to that evidence from Ms Harwood and Ms Capare. The complainant had made most of her allegations of bizarre sexual practices in her statements in September-October 1994. Both she and Mrs Colby had denied having had any contact prior to the time of the first trial in December 1996, by which time Mrs Colby had come forward with her statements. This denial extended to the meeting in May 1994 when the appellant and the two young children of the marriage of the appellant and Mrs Colby were present at a park save for a short time when Mrs Colby and the complainant were together. It is unlikely that the conversation between Mrs Colby and the 13 year old complainant in May 1994 would have turned to shared sexual experiences of considerable delicacy on this occasion. I find it unlikely, if Mrs Colby did discover what the two had in common, that she did not expose the appellant then or at least certainly before December 1996. The complainant’s unwillingness to expose the appellant for his sexual abuse persisted even after she left his custody in September 1994 (see T41). 119 Mr Huang’s explicit evidence as to a conversation with the complainant in August 1995 about collaboration with Mrs Colby (par 115 above) was never put to the complainant during her evidence. It had been suggested that he had written to that effect, but the complainant had denied this. The evidence, strictly hearsay, is hard to reconcile with the fact that Mrs Colby did not come forward as a witness until the first day of the appellant’s first trial, 6 December 1996. And, even if true, it did not infer that statements of the complainant in September-October 1994 and those of the other two former wives given later were the product of contamination. 120 If the totality of the evidence is looked at on the issue of contamination (ie not just that which was before the trial judge when he ruled the wives’ coincidence evidence admissible), it is pertinent that no direct evidence suggests that the evidence of the other two wives was contaminated. Their own sworn and virtually unchallenged testimony positively denied it. It is also relevant that Mrs Colby did not produce a statement to the police until December 1996 (cf T780). 121 It is highly unlikely that the complainant and Mrs Colby spoke about intimate details of their shared sexual experiences during the access visit between Mrs Colby and her two children living with the appellant in May 1994. At that stage in the complainant’s relationship with the appellant she remained under his thrall. It was the complainant who first told the police about the details of the appellant’s sexual predilections in September 1994 and Mrs Colby held back from corroborating her evidence in any way until December 1996. 122 I would also reject the submission that the evidence from the former wives was no more than evidence of the nature of the appellant’s passion (“guilty” or otherwise) for his former wives during the respective marriages. The evidence had “significant probative value” because of the nature and extent of the similarities in the sexual practices between the appellant and his three young wives on the one hand and between the appellant and the complainant on the other. 123 During argument in the appeal, the appellant was pressed to identify particular categories of inadmissible tendency evidence. (The whole “similar fact” issue had been debated in a very rolled up manner at trial.) Counsel submitted that the following categories of evidence which went to the jury should have been withheld, in accordance with s98(2)(a), because they were events that were not “substantially and relevantly similar” to the events recounted by the complainant:

Re: Jennifer Harwood

(a) Circumstances of sexual relationship with Michael Kennedy, particularly as to how it started (T282-284);

(b) having nipple pierced during sexual activity (T282);

(c) allegation of being forced to have intercourse with another person (T285-6).

Re: Nicole Capare

(a) Evidence regarding camping trips where young teenage girls swam naked (T309-10);

(b) evidence of an occasion when she was in bed with the appellant and another young woman whilst they watched a film on television or video and the appellant rubbed his hands over the other woman’s body (T310-11);

(c) “forcing” Ms Capare to have sexual intercourse with or to seduce the appellant’s son William Colby when he was 12 or 13 years of age (T312-13).

Re: Karen Colby

(a) requiring her to have sexual intercourse with BB (a brother of the complainant) at Rooty Hill (T354-5) and at Blainey (T73);

(b) being forced to have “lesbian sex” with “Janet Norman” after her sixteenth birthday (T360-1);

(c) being forced to have sexual intercourse with RB wearing particular clothing while the appellant watched (T355-4).

124 In my view, these matters were relevant and admissible and were properly within the scope of the trial judge’s rulings admitting specified portions of the statements of the three former wives. Some of the activities (eg nipple piercing and voyeurism) have already been dealt with. The other evidence showed the appellant’s propensity to share his young “wives” with particular friends (Michael Kennedy and members of the complainant’s family, some being very young at the time). The incident in which Karen Colby was asked to touch the breasts of another woman who was in their bed (T360-1) is part of a pattern in which the “wife” was available to do the sexual bidding of the appellant, whatever its nature. This, and the incident involving Ms Capare and Ms Shinner about which complaint is made corroborated the complainant’s evidence as to what the appellant asked her to do (while he watched) with her friend Candice P. 125 The mere fact that there were certain dissimilarities of the circumstances of the three former wives when compared to that of the complainant (eg they were between three (Karen Colby) and nine (Nicole Capare) years older than the complainant at the relevant time) does not in itself detract from the Crown’s capacity to rely upon their evidence provided, of course, that the requirements of ss97, 98 and 101 were complied with in relation to any “tendency” or “coincidence” evidence; and provided that the jury were given clear directions as to the proper use of their evidence against the appellant.

Grounds 4, 5 and 6 (misdirections and inadequate directions relating to the evidence of the appellant’s former wives)

126    The appellant submits that the trial judge failed to give proper or adequate directions or warnings as to the relevance, reliability and legal significance of the “similar fact” evidence of the three former wives (Ground 4); that there was error in a direction that the evidence of the wives “corroborated” that of the complainant (Ground 5); and that the jury were left without proper or adequate directions on the issue of corroboration and the relevance of that issue to the particular counts in the indictment (Ground 6). These grounds were addressed concurrently. 127    The jury were directed that the Crown was entitled to adduce evidence as to the accused’s sexual behaviour on other occasions with other females provided there were “sufficient similarities” between that sexual behaviour and the sexual behaviour described by the complainant. They were told that the value of this type of evidence lay in the improbability of accounts of happenings of such similarities unless the happenings actually occurred. 128    The jury were then reminded of particular aspects of the appellant’s sexual behaviour as recounted by the complainant and their attention was drawn to the evidence of one or more of the former wives who had given evidence of similar sexual practices. Reference was made to the use of a video, the use of objects such as carrots and a dog’s penis, anal intercourse, the threesome involving Michael Kennedy, and also the situation where two men penetrated a woman concurrently (SU 19-20). 129    The jury were reminded that the Crown had argued:

that [this] evidence reinforces the evidence of [the complainant] and that you can safely act upon that evidence and in support of the events described by [the complainant] in her evidence even though some of them are of the most bizarre nature and are not easy to accept if they stood alone. (SU 20)

130    The jury were told that it was necessary for them to determine whether the evidence was of “sufficient and compelling similarity to give weight to” what the complainant had said. They were told that the value of the evidence of similar conduct lay in the improbability of the witnesses and the complainant giving accounts having such similarities unless those happenings occurred to each them (SU 26). 131    The notion of “corroborative” evidence was also used in the summing up when the jury were reminded of the evidence of various witnesses who had observed the close relationship between the appellant and the complainant (SU 36-37). 132    BRS v The Queen (1997) 191 CLR 275, R v BD (1997) 94 A Crim R 131, Gipp at [132-3] establish the need for clear directions to ensure that a jury will not use evidence for an inadmissible purpose if the use of the evidence for that purpose would be adverse to the accused. In the light of s95(2) of the Evidence Act, it is vital that a jury be given directions that ensure that evidence that, under Pt 3.6, cannot be used to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. 133 The appellant submits that a primary vice of these directions was that all of the evidence of the former wives was lumped together. It is submitted that it would have been impossible for the jury to be able to identify with precision which part of the evidence of each witness had a particular relevance to the Crown case. More particularly, it is submitted that the jury should have been directed that the “similar fact” evidence of the former wives was not available for “tendency” or “propensity” purposes. 134 In my view these submissions are misconceived. Some of them repeat ground 3 and are answered by the answer to that ground of appeal. It would appear that counsel for the defence at trial accepted that directions as to tendency evidence were appropriate, objecting only to directions as to coincidence (T763). 135 If the evidence of the former wives was admissible because it satisfied the “coincidence rule” and the “tendency rule”, then it was appropriate for the jury to be permitted to use that evidence for those purposes if they were satisfied as to its cogency. This is exactly the direction they were given. The jury were informed that the evidence of the three wives could be used, if the jury were satisfied beyond reasonable doubt that the similarities that they described took place, “to support and be corroborative of” the evidence of the complainant. It was made clear (at SU 35, 36) that the jury were only entitled to treat this evidence as corroborative if satisfied that the similarities were such that they established, as a matter of commonsense, the objective improbability of the wives and the complainant giving accounts of happenings having such similarities unless they occurred. In other words, the corroborative impact of the evidence was linked to its role as coincidence or propensity evidence. 136    It was not necessary for the judge to break up the evidence of the individual wives, linking each similarity with one or more identified wives. Indeed, to have done this would only have spelt out to the jury the extent of detailed similarities. The absence of any such complaint at trial is perfectly understandable. 137    As I have already indicated, even at the end of the trial there was not a great deal of evidence to support a submission that there had been “collaboration” or “concoction” between the three former wives both inter se and with the complainant. Indeed there was much evidence to the contrary. The suggestion of joint concoction had been spurned by counsel for the appellant at trial (see par 113 above). No direction was sought or given on the dangers of concoction or collaboration. This occasioned no miscarriage, especially since it is apparent that both counsel devoted time to these issues in their addresses to the jury, and the jury were reminded of these matters (see eg SU 34, 141-4, 148-9). The mere fact that there was something of an issue about the possibility of concoction did not in itself call forth a judicial duty to give a warning to that effect. The relationship that existed between each of the former wives and the appellant did not in itself stamp their evidence as unreliable. 138    The use of the term “corroboration” betrayed no error. It was explained in conventional terms (SU 35-36) but in a context where the particular way in which the wives’ evidence was said to be supportive of the complainant was carefully spelled out (SU 19, 36. Cf BRS at 297-8, 323-4). In the light of the directions given it is evident that the jury were not permitted to range at will, with the risk that the accused might be convicted by a “chain of forbidden reasoning”, to use the phrase of Lord Hailsham in Boardman v Director of Public Prosecutions [1975] AC 421 at 453. 139 The appellant’s complaint about the trial judge’s directions mirrors the complaints raised in respect of ground 3. And it invites a corresponding response.

Ground 3A (wrongful admission of evidence of Anthony Simone)

140 Nicole Capare had given evidence that the appellant had told her about an occasion when he went camping with two named young girls when he got them to take their clothes off, took his own off and the three went swimming naked together (AB 308-9). On another camp Ms Capare was present when the appellant encouraged young girls to prance around naked under a sprinkler (AB 309-10). Over objection, Mr Simone was permitted to give evidence corroborative of the appellant’s statement to Ms Capare about the second camp. The Crown did not suggest that this evidence formed part of the propensity or coincidence evidence, nor were the jury directed that it did. Mr Simone said that the appellant, the two named girls and his wife Nicole Capare all pranced around under a sprinkler (AB 428). The two young women were aged 13 and 14. The appellant had an erection at the time. Mr Simone’s credibility was challenged in cross-examination on the basis that he and the appellant had had a falling out over an incident involving an explosion. 141 The appellant complains that any probative value of this evidence was outweighed by its prejudicial effect. It was further submitted that neither s98 nor s102(2) of the Evidence Act ought to have permitted this evidence to be led. 142 I agree that this evidence was inadmissible. At its highest it showed the appellant acting inappropriately in the presence of young women. However the impact of this evidence upon the issues fought at trial must have been minimal when compared with the graphic detail and volume of other evidence much more closely connected to the relationship between the appellant and the complainant. I agree that the evidence had minimal probative value, but its prejudicial effect was also minimal in the context of this particular trial. The directions given to the jury about this evidence (SU 86) merely recounted the evidence. 143 I am satisfied that, in all the circumstances of the trial, the verdict would plainly have been the same if the error had not occurred (cf Van der Meer v The Queen (1988) 62 ALJR 656 at 668).

Ground 9 (wrongful rejection of Cleo magazine)

144    During cross-examination, the complainant agreed that she occasionally read magazines such as Cleo and Cosmopolitan (T154). Her preference was Dolly, a magazine targeted to a younger age group than Cleo and Cosmopolitan (T154). The complainant was shown the September 1994 edition of Cleo and it was put to her that this was a magazine that she had had in her possession at the appellant’s house. Her answer was that it may have been but that she did not remember it. At that stage the magazine was marked for identification (MFI 4). 145    The appellant swore that MFI 4 was one of a bundle of books left behind by the complainant in her bedroom when she left the house (T530). Counsel for the appellant then sought to tender the magazine. In the absence of the jury, the relevance was said to be that the magazine contained an advertisement for “ladies vibrators”. It was said to be typical of the type of publication that referred to sexual matters generally and that it would go to show a degree of knowledge of the complainant in relation to sexual matters coming from a source other than from activities with the appellant. 146    The tender was rejected on the basis that there was no evidence connecting the magazine to the complainant apart from the finding of the magazine. 147    In my view the appellant is correct in the submission that the magazine was admissible to show a means whereby the complainant may have learned about vibrators. The mere fact that (as the Crown reminded us) other young girls had visited the complainant did not negate the inference which the jury were capable of drawing, namely that the complainant had access to this magazine. Simply because the complainant had not admitted having read it did not render it inadmissible. Possession of a document may be proved to show that its possessor had by reading it become aware of its contents (Wigmore on Evidence Chadbourn rev §260). But it must be reasonable to draw that inference in the particular situation. To give an extreme example the possessor of a set of Encyclopaedia Britannica is not deemed to know their contents, even on a prima facie level. 148    This said, I consider that if there was error in rejecting this exhibit, the rejection caused no substantial miscarriage. It was not the complainant’s evidence that she had knowledge of the sort of implement advertised from the activity of the appellant and nowhere else. The particular advertisement relied upon by the appellant’s counsel at trial appears in small print at page 192 of the magazine. This advertisement may have been seen by the complainant, but the inference is not a strong one. Indeed it is highly unlikely that it would have been the source and inspiration of the complainant’s evidence relating to the vibrator which, she said, she had been given by the appellant and whose use by the appellant she described in graphic detail. The corroboration of this evidence by the former wives is also pertinent.

Ground 10 (wrongful admission of evidence by Robert McNeil concerning the discharge of a firearm by the appellant as demonstrating “a propensity to act on impulse”)

149    When recounting her evidence about an unannounced visit by DOCS officers, the complainant described the steps hurriedly taken by her and the appellant to make everything appear normal. In this context she said that he hid all his guns (T65). She was asked (without objection) to indicate how many guns there were in the house and she described an armoury that included two triple gauge shotguns in the bedroom, one in the lounge room, two additional .22 rifles and an automatic pistol. The appellant gave evidence about the pistol being used on the farm to shoot rabbits. 150    The complainant owned a horse and she had it moved from her parents’ home to Browns Creek. Over objection, the Crown was permitted to lead evidence about what occurred in relation to this horse. The horse was running around quite flightily amongst some cattle belonging to the appellant. The appellant then commenced firing at the horse with his pistol. One bullet went through the hoof. The complainant begged to be able to call a vet but the appellant stated that “we will just leave it for a while”. It was left and the horse’s leg became infected to such an extent that it had to be put down by the appellant a few weeks later. 151    The Crown pressed this evidence on the basis that it went to the state of mind of the complainant as evidence from which the jury could view the nature of the relationship between the complainant and the appellant. It was submitted that the incident painted the background of the relationship, with a theme of terror going through it. Although objection was taken at trial to the relevance of this evidence, I do not see in the transcript (T69-70) any question being raised as to the evidence being excluded on discretionary grounds. The trial judge admitted the evidence as relevant to the general issues arising in the proceedings, adding that his ruling did not relate to the foreshadowed leading of evidence by the Crown by other persons as to the accused conduct towards other animals that belonged to him or them on a prior occasion (T70). See also T778, where the issue resurfaced during final addresses. This ruling is not challenged in the appeal. 152    Robert McNeil was a Crown witness who gave evidence of visiting and being visited by the appellant and the complainant during the time that they lived together. Mr McNeil was permitted to give evidence of having observed the appellant firing a shot from a .303 rifle at a horse which appeared to be annoying cattle in nearby paddock. Objection was taken on the basis that this evidence went only to the issue of character. It was also contended that the prejudicial impact of the evidence outweighed its probative value. 153    The trial judge admitted the evidence, apparently on two bases:

• to support the complainant’s evidence as to the previous discharging of a firearm described by the complainant, although it was not alleged by the Crown that the incident observed by Mr McNeil was the same as that described by the complainant;

• to negative any assertion which might be made by the appellant that he was not a person who could act in a violent manner on impulse.

154    His Honour declined to exclude the evidence in the exercise of his discretion. 155    On appeal, it was submitted that the evidence could only be admissible in accordance with the “tendency rule” (cf Evidence Act, s97). The submission as to the prejudicial effect outweighing the probative value of the evidence was repeated in the context of s101(2) of the Evidence Act. It would not appear that the objection at trial was based upon the terms of these sections. 156 In my view this evidence was properly admitted. There was a live issue as to the circumstances in which the complainant’s horse was injured and had to be put down. The complainant’s evidence in this regard was contradicted both by the appellant and his witness Mr Preston. 157 The possession of guns by the appellant at Browns Creek does not itself appear to have been disputed. The appellant was interested in militaria. It had not been suggested that the guns were unlicensed. 158 The fact that the appellant would have discharged a gun in the complainant’s presence, aiming at her pet horse, was indicative of the dominant force of his personality in relation to her, and his readiness to do what he wanted with her. Mr McNeil’s evidence corroborated this attitude, albeit by indicating a tendency to act in this type of way. Cf DJT v The Queen (1999) 73 ALJR 460. It may be doubted whether the evidence had the “significant probative value” required by s97. However, there is no indication that this was the basis of the objection at trial. In any event I would not conclude that the trial miscarried on this account. Assuming that s97 applied to Mr Neil’s evidence, although it did not suggest that the shooting which he observed was necessarily “criminal or reprehensible” (cf par 106 above), the prejudicial effect of the evidence must have been slight at most, just as its probative impact was in all probability fairly tangential. The summing up reminded the jury that Mr McNeil had given evidence that he saw the accused fire a rifle in the direction of a horse on an occasion when the complainant was not there. No comment was added as to the significance or relevance of this evidence (SU 63,64). 159    This ground of appeal is not established.

Ground 11 (wrongful rejection of evidence that the complainant’s father had been found “not guilty” of charges brought in respect of alleged sexual assaults upon the complainant)

160 It had been the complainant’s evidence that she had been sexually assaulted by her natural father RB and that her motive in leaving home and going to live with the appellant was to escape further abuse at her father’s hand. 161 At the trial the appellant called the complainant’s father RB as a witness. He had been subpoenaed. Early in the course of his evidence, he was informed of his privilege against self-incrimination. However, counsel were agreed that, in the event that the privilege were invoked, there would be power to grant a certificate in accordance with s128 of the Evidence Act (T689). RB was informed about this before he commenced the substance of his evidence. 162 RB gave evidence on a number of issues contradicting aspects of the evidence of his daughter, the complainant. However, he did not in chief address or contradict the complainant’s evidence that he had sexually abused the complainant. In cross-examination, he admitted striking the complainant with his belt about 20 or 30 times about two weeks before she left home and that she ran away from home, but he denied threatening her so she would have sexual intercourse with him (T733-4). The Crown prosecutor put to him the evidence that the complainant had given (without objection) as to her father’s abuse of her (T18, 88). It was put to RB that, at a time when the complainant was about 8, he used to touch her breasts and genitals, and get the complainant to touch his penis and masturbate him. RB denied this. The following questions and answers ensued (T702):

Q. You were preparing her for your goal of having full sexual intercourse with her when she was 12 years of age, weren’t you?
A. This is incorrect.
Q. Two days before her 12th birthday you declared to her, ‘I am going to root you tonight’, didn’t you?
A. That is all your Honour. I have to refer to a previous thing to answer that question Sir. It has already been disproven.
His Honour:

Q. Is the answer Yes or No or do you want to take the objection –

A. No I did not.

163    In the absence of the jury there was an exchange between the judge and the witness. It became clear that RB had been tried on various charges relating to the sexual abuse of his daughter, the complainant. RB indicated that on some of the charges brought against him a verdict of not guilty had been returned and that on other charges his jury had disagreed. The judge explained again to the witness how he might take an objection based on self-incrimination. Counsel for the appellant then submitted that, in the light of the witness’ evidence and in the circumstances of the present trial, the result of the previous trial should be admissible in evidence. Counsel conceded that the evidence would not normally be admissible. However she contended that, if the evidence was not allowed to be adduced, the jury would be left in a position where it might speculate as to whether in a previous trial this witness had indeed been convicted. 164    The trial judge ruled that the evidence was inadmissible. In his reasons, he pointed out that what had occurred in RB’s trial was not relevant to the present proceedings. It was not known why the jury returned a verdict of not guilty in respect of some of the charges and failed to agree in regard to other of the charges. His Honour said that, if evidence as to the verdict were placed before the jury, then he would have to explain all those matters to the jury and this would invite them to speculate more than they otherwise would speculate if they were told that what occurred on that occasion was not relevant to the issues that arose in the present proceedings. He indicated that the jury would be given an appropriate direction in regard to RB’s trial and that he would discuss its terms at an appropriate time. 165    Later in the trial RB was further cross-examined on various matters. He agreed that he had been charged in October 1994, ie after the appellant (T738-9). 166    It would appear that the defence addressed the jury on the basis that the truth or otherwise of the allegations against the father had not been canvassed by the defence at the trial (T782). This may be the explanation why both his Honour and counsel decided that the better course would be to say nothing about the matter in the summing up. The summing up recounted the evidence of RB, including his denials of ever touching the complainant in a sexual way. However, nothing was said about any criminal proceedings involving RB. No redirection was sought. 167    Before us, the appellant submitted that the cross-examination of RB had opened the issue up and made the fact of RB’s acquittal relevant. I disagree. 168    It is important to address the specific complaint, which is the rejection of evidence disclosing that the complainant’s father had been found not guilty of certain (unspecified) charges brought in respect of alleged sexual assaults upon the complainant. This ground of appeal does not relate to any failure to discharge the jury (no such application having been made). It is not suggested that RB’s acquittal on (presently unidentified) charges relating to the complainant rendered the cross-examination about the father’s alleged sexual abuse of his daughter inadmissible. The topic had been well and truly opened up by the complainant’s evidence as to the circumstances in which she had left home and sought what she originally thought was a safe refuge with the appellant. No objection was taken to the cross-examination of RB on this issue, notwithstanding the form of the two questions set out in par 161 above. 169    That part of the answer to the second question which said “It has already been disproven” was non-responsive, albeit an understandable reaction to a very goading question. But as far as the jury were concerned the matter was left there. The appellant submits that RB’s answer “it has already been disproven” was not tantamount to asserting an acquittal. However, the assertion was not challenged in further cross-examination, and, for that reason, I cannot see how the jury could have speculated that the witness had indeed been convicted. But, even if it had, evidence as to the outcome of those proceedings had no relevance to the issue joined in the trial of the appellant. Whatever the charges, there could be a myriad of reasons why the particular jury returned its verdict, none of them probative of any issue in the present trial. 170    The refusal to admit this evidence involved no error. An acquittal is not a finding of innocence. The particular circumstances in which the issue of RB’s alleged improper conduct towards his daughter arose did not change that situation.

Ground 12 (rejection of certain evidence of Dr Chapman)

171    The complainant was medically examined by Dr Horodan in September 1993 in respect of a complaint made to DOCS concerning sexual assaults committed by the complainant’s father, RB. Dr Horodan provided a report on 30 September 1993. However, she was not called as a witness, nor were her notes or report put into evidence. Dr Horodan’s notes apparently included a sketched diagram representing observations on the vaginal examination of the complainant. 172    The complainant was also examined by Dr Tait in October 1994 in the light of her allegations against the appellant. His notes accompanying a report dated 13 October 1994 also contained a diagrammatic representation of his findings on the vaginal examination of the complainant. Dr Tait is a specialist paediatrician and he had been involved for some time in the assessment of children who were suspected of having been the victims of sexual assault. He was given a history of multiple sexual abuse episodes over an extended period of time, including anal and vaginal intercourse and bestiality. Dr Tait had observed a tear in the hymeneal membrane that was probably many months old. He detected no damage in the anal area, but did not think that this was of significance. He considered it rare for any damage not to repair naturally (T409-10). In cross-examination Dr Tait was asked whether he had directed his attention to the findings of Dr Horodan in respect of her vaginal examination. He was shown an unidentified photocopy document (T413). It apparently contained on its left-hand side a copy of Dr Tait’s diagram of the complainant’s vaginal area, and on its right-hand side another diagram. Dr Tait said that he did not know where the right-hand side diagram was from but that he could see that the diagrams were “quite different” (T413). The matter was taken no further in his evidence. Neither the diagram nor the notes were tendered. 173    Professor Michael Chapman was called as a witness for the defence. He was a specialist gynaecologist who was a Professor at the School of Obstetrics and Gynaecology at the University of New South Wales. He indicated that he had read the reports of Dr Horodan dated 30 September 1993 and Dr Tait dated 13 October 1994. He referred to diagrams that those doctors had prepared. Counsel for the defence indicated her intention to lead from him evidence that it was unlikely that there had been intercourse as frequently as alleged by the complainant in the period between the examination by Dr Horodan in September 1993 and the examination by Dr Tait in October 1994. It was submitted that Dr Horodan’s examination presented a finding that was consistent with the complainant having had sexual intercourse by the time she left her family home. The trial judge was shown a copy of Professor Chapman’s report. The transcript (T746) then states:

DISCUSSION CONTINUED

(Ms McSpedden indicated that if his Honour did not consider it admissible she would not lead that evidence as she could ask the witness about other matters).

The report was then marked for identification.

174    The ground of appeal is that the judge erred in declining to permit counsel for the defence to examine Dr Chapman in relation to alleged differences in observations made during medical examinations of the complainant by Dr Horodan on 30 September 1993 and Dr Tait on 30 October 1994. In the light of the material summarised above, I am not persuaded that counsel pressed the admissibility of this part of Dr Chapman’s evidence. But, if it was pressed, I see no error in the putative rejection of that evidence. After all, the groundwork had not been laid for establishing that the sketch on the right-hand side of the photocopy document shown to Dr Tait was Dr Horodan’s sketch. Dr Horodan was not called as a witness at the trial. 175    The ground for the putative rejection of the evidence is not revealed, except perhaps that it had previously been submitted by the Crown Prosecutor (T745) that this material had not been put to Dr Tait. There is however nothing to indicate the trial judge’s adoption of that submission. Had it been clear that the evidence of Professor Chapman on this issue was rejected simply because the matter had not been put to Dr Tait then that would have raised an issue as to the scope of the principle in Browne v Dunn in its application to the admissibility of evidence as distinct from the Court’s duty to ensure fairness (cf Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551 at 556; Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 at 303). 176 I do not doubt that Professor Chapman was qualified to express an opinion based upon the documented evidence of Dr Horodan’s examination in September 1993 and Dr Tait’s examination of October 1994 and anything that stemmed from observed differences. But, in the absence of a clear indication that the defence proposed to lay the groundwork for establishing Dr Horodan’s observation and that the defence pressed the admissibility of that part of Professor Chapman’s evidence that related to this comparison, then I cannot find that there was any miscarriage, let alone a substantial miscarriage involved in what is recorded at T746. Cf HG v The Queen [1999] HCA 2, 160 ALR 554. 177 It is also relevant to observe that the evidence of Professor Chapman (at T747-752) demonstrates that no real disadvantage was done to the appellant by the putative refusal to admit the evidence. Professor Chapman was permitted to give evidence about the consistency of the complainant’s physical condition as observed by Dr Tait and her evidence as to the various sexual acts that had occurred involving the appellant, particularly the evidence as to concurrent vaginal penetration by two men. 178 Professor Chapman did not negate the possibility of this having occurred, although he expressed the view that it was unlikely to have occurred without a significant damage to a childless woman (T747-8). He said that he would expect to see "scarring", which he could not see in the diagram (T748). The judge intervened by saying that, by looking at the diagram "that doesn't mean there wasn't scarring" or "that the scarring is not shown in the diagram". The Professor responded that, as Dr Tait was conducting an examination for a specific purpose, he would have expected Dr Tait to have recorded it (T748-749). He said that if there were over 2,000 acts of intercourse one would expect to see minimal hymeneal remnants (T748-749). He agreed that he would have been in a better position to give an opinion if he had conducted the physical examination himself (T750). When pressed as to whether the physical findings of Dr Tait as reported to him were totally inconsistent with the history he said "I can't say it is totally inconsistent but incredibly unlikely" (T751.10). He reiterated the view that until a woman was mature, fully grown and probably only if she had a baby, would he expect to see no damage with dual penetration (T751.35). It does not appear that his attention was drawn to the complainant’s evidence about the use of Vaseline.

Ground 13 (the verdicts were “unsafe and unsatisfactory”)

179    This submission was pressed on three bases. First, it was submitted that the verdicts were unreasonable and could not be supported on an independent assessment of the evidence. This involved the application of the test expounded in M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439, not overlooking the actual language of s6 of the Criminal Appeal Act 1912 (see Gipp). 180 Secondly, it was submitted that the verdict was unsafe in consequence of the inadequate or erroneous directions covered in the earlier grounds of appeal. 181 Finally it was submitted that the conduct of the trial judge and of the Crown prosecutor, taken with other matters of complaint, raised a substantial possibility that the jury may have been mistaken or misled (Gipp at 115; Davies & Cody v The Queen (1937) 57 CLR 170 at 180).

(i) Verdicts unreasonable having regard to totality of evidence

182    Lying at the heart of this submission was the attack on the credibility of the complainant’s evidence. It was contended that there were clear reasons to doubt her reliability. Specific reference was made to:

• the inherent improbability that the complainant would have seen the appellant as the only means of escape from an abusive father when the complainant had already been sexually abused by the appellant (Count 1);

• the alleged “promise” that the appellant would not sexually assault the complainant if she came to live with him in these circumstances had all the hallmarks of fabrication or fantasy;

• the conduct of the appellant in taking the complainant first to a solicitor in Bathurst and then arranging for her to be placed in the care of DOCS who in turn organised foster care renders it improbable that the appellant would have harboured intentions of sexual abuse and that he would have engaged in the same during the period that the complainant lived with him under DOCS supervision;

• the absence of complaint and the denials of sexual abuse on the complainant’s part until after the occasion when the appellant assaulted the complainant with a belt. There was said to be no rational explanation for a failure to have complained promptly about the appellant given her ability to complain about her father a year previously and her anger and upset at the belting she had received at his hand;

• the complainant was not a “prisoner” or “slave” to the appellant. She went to school and was visited by friends;

• reliance was placed upon Professor Chapman’s evidence which suggested the unlikelihood of some of the complainant’s claims of multiple sexual abuse;

• reference was made to specific instances where the complainant was caught out in cross-examination on aspects of her evidence about the diary entries;

• it was submitted that the complainant’s graphic evidence of a serious injury to the appellant’s nipple had to be rejected when it was not confirmed by photographs of the appellant (Ex 24). Nor did the complainant mention or have observed any signs of a nipple ring having previously been placed in her body when she had been examined by doctors in September and October 1994. The first mention of this was made by the complainant on 26 October 1994 and the photograph of her nipple showing the ring was taken within a week of that date. It was submitted that the nipple ring evidence was a physical “recent invention” ;

• the affectionate cards passing between the complainant and the appellant, and the way in which the complainant referred to the appellant when she was at school, were said to be inconsistent with any “reign of terror” or obsession on the complainant’s part;

• despite the denials of contact or collaboration between the former wives and the complainant, it was the fact that Jennifer Harwood had contact with Karen Colby before either gave statements to the police and that Karen Colby had contact with the complainant before the complainant left the appellant’s home; and that Jennifer Harwood and her daughter had had contact with the complainant. These matters were added to the indications that each of the wives bore some resentment towards the appellant in respect of matters of access to children, property settlement or the like. (This was the submission, but I am unaware of any evidence of resentment involving Ms Capare or Ms Harwood);

• It was submitted that the position of Mrs Colby was pivotal and that the truthfulness of her denials of collaboration or discussion with the complainant and others were very much open to doubt, despite her evidence. On this last point specific reference was made to:

• inconsistency between the denial of Mrs Colby and the complainant that their meeting of 22 May 1994 had been lengthy, when compared with the complainant’s contemporaneous diary entry (Ex 6);
• Mrs Colby had admitted on the voir dire that she had learnt from a police officer in September 1994 of the allegations made by the complainant. She had been asked to make a statement but had desisted from doing so for over two years;
• She had endeavoured to contact the complainant on learning of the complainant’s allegations but claimed that she was unable to do so. This evidence was challenged by the appellant (although the basis of the challenge was not made clear);
• Mr Huang had given evidence of a statement by the complainant to him in August 1995 that she and Karen Colby had worked together “to get” the appellant. He was a friend of the appellant. The fact that he had been contacted by the complainant at some stage was relied upon to challenge Ms Colby’s evidence that she had been unable to make similar contact.

183    Karen Colby’s evidence was itself challenged on specific bases which included the fact that she had given evidence that the appellant had spoken to her before he gained custody of the complainant and had asked her for a reference to give to DOCS. Her evidence that the appellant had, at this stage, admitted that he wasn’t going to sexually assault the complainant any more (T364) was said to be inherently implausible for a number of reasons (Appellant’s submissions p51). In particular, it was unlikely that he would have made this admission at the same time that he was asking his former wife to assist him in his and the complainant’s attempt to persuade DOCS to allow the complainant to go into his custody. And why, it is asked, did Ms Colby not take her concerns to DOCS when she observed the couple in a close personal relationship when visiting them at Browns Creek in late 1993 or early 1994? 184    In relation to each of the three former wives who gave evidence, that evidence included acts of bizarre sexual practices and other forced indignities before the respective women married the appellant. This is said to be implausible and matching the implausibility of the complainant’s own evidence that she went voluntarily to live with the appellant after the circumstances described in the first count. 185    I have considered these matters anxiously. And I have endeavoured to make an independent assessment of the evidence, subject to due allowance for the jury’s advantage. But I cannot conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. 186    The complainant’s evidence was supported by the evidence of several witnesses who observed signs of the appellant’s guilty passion for her (Mrs Colby, Davies, McNeil, Candice P). The parallels between the sexual practices as recounted by the former wives and the complainant were many and striking. On the dispute as to whether the appellant came down to Sydney to pick up the complainant at Stocklands Mall, the complainant was corroborated by two school friends. Karen Colby gave evidence of a damning admission by the appellant (T364). 187    It is true that the complainant’s evidence painted a picture of bizarre depravity. Standing uncorroborated it would in all probability not have been accepted by the jury. But it was corroborated in significant respects. Ms Harwood and Ms Capare gave independent yet strikingly similar evidence and they were not shown to have any particular axe to grind because (unlike Mrs Colby) there were no outstanding issues left over from a marriage that was well and truly behind them. 188    Making every allowance for the possibility that the key Crown witnesses may have borne some grudge to which they would not admit in evidence, there must be placed in the balance that for each of them the recounting of their own histories of bizarre and depraved sexual domination by the appellant and his friend Kennedy must have been an unpleasant experience not lightly to have been embarked upon and persevered with. Little wonder that Mrs Colby hesitated for two years before coming forward to assist the complainant’s case. 189    The arguments that each of the four women acted “irrationally” in submitting to “marriage” after the early signs of the appellant’s conduct assumes real freedom to choose to act. Yet these were all very young women (all four of them) when they fell under the spell of the appellant. Each emerged, ultimately, and gave a graphic tale of prolonged sexual abuse which (if true) went a long way towards explaining why it would be quite wrong to assume disinterested rational behaviour in assessing their conduct. 190    The jury were entitled to accept the complainant’s evidence of sexual abuse at the hands of her father. If true, it went a significant way towards explaining why the complainant might have seen the appellant as a preferred escape route and why she should, as she contended, have conspired with the appellant successfully to pull the wool over the eyes of the DOCS officers. 191    Karen Colby’s evidence was significant, but the jury were entitled to accept her denials of collaboration and concoction. True, she had an axe to grind by mid 1994. But she hesitated doing so for two years. The appellant had custody of their own children during at least some of this period. After Mrs Colby came forward, so too did the other two wives. Unlike her, they did not have any apparent motive to harm the appellant or to assist the complainant. And, like her, they swore that there was no opportunity for collaboration. For each woman the experience must have been distressing. 192    In my view the verdicts have not been shown to lack support in the evidence. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

(ii) Inadequate or erroneous directions

193    For reasons already given these involved no miscarriage, whether taken singly or together with the other complaints raised by the appellant.

(iii) Conduct of trial judge and Crown prosecutor

194    As to the conduct of the trial judge, it was submitted that there were hostile interventions, unwarranted questioning of witnesses, failure to uphold “reasonable objections” by counsel for the appellant, the upholding of objections from the Crown Prosecutor, and failure to intervene with evenhandedness. With the exception of the rulings on evidence which have been challenged in the appeal, none of these appear to have been the subject of complaint at trial. The summing up is balanced and not made the subject of any complaint except as appears in specific grounds addressed above. 195    The same can be said about the appellant’s belated complaints concerning the conduct of the Crown Prosecutor. I have carefully considered the particular instances relied upon in the schedule tendered by counsel for the appellant in the appeal. Responding to two particular matters of complaint, I see nothing improper in the stance adopted by the Crown Prosecutor in objecting to the way in which the appellant was seeking to get Dr Horodan’s evidence in through the back door and to use it as the basis for an attack on the appellant based upon medical evidence from a doctor who had not himself examined the complainant when no such attack had been directed to Dr Tait when he had been called. 196    The other specific illustration relied upon by the appellant is described as an (improper) attempt to prevent the jury knowing the formal outcome of Mr RB’s trial. The Crown Prosecutor’s objection was properly taken and properly upheld. 197    The appeal should be dismissed.

Application for leave to appeal against sentence

198    The appellant seeks leave to appeal against sentences which in their totality represented a minimum term of 16 years with an additional term of 6 years. 199    It is not submitted that the trial judge fell into any particular error. Rather, the submission is that the total of the sentences was manifestly excessive. 200    In his remarks on sentence, Judge Kinchington observed that the maximum penalties provided by the law in respect of the various offences were:

Counts 1 and 14 (aggravated sexual assault: Crimes Act, s61J) - 20 years penal servitude.

Count 6 (assault: Crimes Act s61) - 2 years imprisonment.

Remaining counts (sexual intercourse with person between 10 and 16 years by person in authority: Crimes Act s66C(2)) - 10 years penal servitude.

201    His Honour recounted the facts. He reminded himself that the appellant was to be sentenced for the particular offences for which he stood convicted, but that he should not overlook the broader context in which they occurred. There was no error in this approach (see H (1994) 74 A Crim R 41 at 43). 202 It was observed that the appellant was aged between 49 and 50 at the time of the offences and that he had no relevant prior convictions. Not surprisingly the appellant was in a stressed condition at the time of sentencing, although his health was generally sound. 203 His Honour described the case as the worst case of child sexual assault that he had encountered in his career of 39 years in the legal profession. He described the appellant’s conduct as callous, degrading, destructive, insensitive, selfish and self-centred and involving a clear betrayal of trust of the highest magnitude. The sexual assaults were disgusting and degrading. 204 A victim impact statement had been tendered. It described the complainant’s loss of identity (she had changed her name when she had become a State ward), her inability to trust adults and institutions with its negative impact upon her capacity to seek counselling, symptoms of post-traumatic stress, severe damage to her potential to form long term close friendships with peers, significant interruption to studies on the part of a student with good academic potential, feelings of guilt, dirtiness and damaged self-esteem. These findings are entirely understandable. 205 A total sentence of 22 years, to be served by way of a minimum term of 16 years penal servitude, together with an additional term of 6 years penal servitude was then structured as between the various counts. 206 This was undoubtedly a case that called for a condign sentence. There was a gross betrayal of trust involving a young girl who was in a peculiarly vulnerable condition having regard to the earlier abuse she had suffered at the hands of her father. The appellant was in a position of authority. The particular offences were disgusting and degrading and were part of a pattern of domination and abuse for selfish gratification. Two of the offences involved circumstances of aggravation and carried a maximum sentence of 20 years penal servitude. There was no plea of guilty. The impact of the offences will be with the victim for the rest of her life, albeit that the appellant was not the first close adult to have sexually assaulted the complainant. 207 It is however relevant to note the closed period (13 months) and the fact that a single victim was involved. These are points of distinction from some of the other cases to which the Court was taken. 208 No two cases are identical. Nevertheless, the sentence imposed in the present case was significantly in excess of other sentences for similar offences which have been approved by this Court. Particular reference should be made to R v Hill CCA unreported 7 July 1992; R v Moore CCA unreported 12 April 1994 and H (1994) 74 A Crim R 41. It is unnecessary to recount the discussion in those decisions and the other cases referred to therein. 209 H involved prolonged sexual abuse (a span of 11 years) principally involving the prisoner’s daughter, but also another young girl. The prisoner had no criminal history. The maximum penalty for the most serious offences charged was, at the time, 10 years penal servitude (contrast the present case). Nevertheless H had pleaded guilty from the first time that he was confronted by the authorities. A sentence of 16 years and 6 months, involving a minimum term of 11 years and 6 months and an additional term of 5 years was held to be excessive in its totality. After reference to earlier decisions, including Moore and Hill Gleeson CJ (with whose reasons Mahoney JA and Sully J agreed) said that consideration of the other cases had led him to the conclusion that the total effect of the sentences was excessive to an extent requiring appellate intervention. 210    In my view the same can be said of the present case. 211    I would reduce the overall sentences to represent a minimum term of 12 years and an additional term of 4 years. 212    The appellant was sentenced as follows:

Count 1: fixed term of 10 years dating from 22 August 1997.

Counts 2, 3, 4, 5 and 8: fixed term of 4 years dating from 22 August 1997.

Count 6: fixed term of 1 year dating from 22 August 1997.

Count 7: fixed term of 4 years dating from 22 August 1997.

Count 9: fixed term of 5 years to be served cumulatively on the sentence imposed in respect of count 1 (ie commencing 22 August 2007).

Count 10: fixed term of 6 years to be served cumulatively on the sentence imposed in respect of count 1 (ie commencing 22 August 2007).

Count 11: fixed term of 8 years dating from 22 August 1997.

Count 12: fixed term of 5 years dating from 22 August 1997.

Count 13: fixed term of 6 years to be served cumulatively on the sentence imposed in respect of count 1 (ie commencing 22 August 2007).

Count 14: fixed term of 6 years together with an additional term of 6 years, to be served cumulatively on the sentence imposed in respect of count 1 (ie commencing 22 August 2007).

213    An appropriate resentencing to give effect to the total sentence which in my view is appropriate would be:

Count 1: A fixed term of eight years penal servitude to commence on 22 August 1997 and to expire on 21 August 2005.

Counts 2, 3, 4, 5 and 8: On each of these counts to be served concurrently a minimum term of four years penal servitude to commence on 22 August 2005 and to expire on 21 August 2009 together with an additional term of four years to commence on 22 August 2009 such sentences to be served cumulatively upon the sentence imposed in respect of count 1.

Count 6: A fixed term of imprisonment for one year to commenced on 22 August 1997 and to expire on 21 August 1998.

Count 7: A fixed term of four years penal servitude to commence on 22 August 1997 and to expire on 21 August 2001.

Count 9: A fixed term of four years penal servitude to be served cumulatively upon the sentence imposed in respect of count 1 to commence on 22 August 2005 and to expire on 21 August 2009.

Count 10: A fixed term of six years penal servitude to be served cumulatively upon the sentence imposed in respect of count 7 to commence on 22 August 2001 and to expire on 22 August 2007.

Count 11: A fixed term of eight years penal servitude to commence on 22 August 1997 and to expire on 21 August 2005.

Count 12: A fixed term of five years penal servitude to commence on 22 August 1997 and to expire on 21 August 2002.

Count 13: A fixed term of six years penal servitude to be served cumulatively on the sentence imposed in respect of count 7 to commence on 22 August 2001 and to expire on 21 August 2007.

Count 14: A fixed term of six years penal servitude to be served cumulatively on the sentence imposed in respect of count 7 to commence on 22 August 2001 and to expire on 21 August 2007.

214    It is specified that the appellant will first become eligible for parole from 21 August 2009. The various fixed terms have been imposed as they will be served wholly within the span of time before the appellant becomes eligible for parole and concurrently with minimum terms imposed on other counts. 215    In respect of the sentences proposed in respect of counts 2, 3, 4, 5 and 8, the additional terms exceed one third of the minimum terms so as to take account of the overall effect of the other sentences proposed, both cumulative and concurrent: cfR v Simpson (1992) 61 A Crim R 58 at 61. 216 I propose the following orders:

(1) Appeal against conviction dismissed.

(2) Grant leave to appeal against sentence.

(3) Appeal against sentence upheld.

(4) Quash the sentences imposed by his Honour Judge Kinchington QC and substitute the following:

Count 1: A fixed term of eight years penal servitude to commence on 22 August 1997 and to expire on 21 August 2005.
Counts 2, 3, 4, 5 and 8: On each of these counts to be served concurrently a minimum term of four years penal servitude to commence on 22 August 2005 and to expire on 21 August 2009 together with an additional term of four years to commence on 22 August 2009 such sentences to be served cumulatively upon the sentence imposed in respect of count 1.
Count 6: A fixed term of imprisonment for one year to commenced on 22 August 1997 and to expire on 21 August 1998.
Count 7: A fixed term of four years penal servitude to commence on 22 August 1997 and to expire on 21 August 2001.
Count 9: A fixed term of four years penal servitude to be served cumulatively upon the sentence imposed in respect of count 1 to commence on 22 August 2005 and to expire on 21 August 2009.
Count 10: A fixed term of six years penal servitude to be served cumulatively upon the sentence imposed in respect of count 7 to commence on 22 August 2001 and to expire on 22 August 2007.
Count 11: A fixed term of eight years penal servitude to commence on 22 August 1997 and to expire on 21 August 2005.
Count 12: A fixed term of five years penal servitude to commence on 22 August 1997 and to expire on 21 August 2002.
Count 13: A fixed term of six years penal servitude to be served cumulatively on the sentence imposed in respect of count 7 to commence on 22 August 2001 and to expire on 21 August 2007.
Count 14: A fixed term of six years penal servitude to be served cumulatively on the sentence imposed in respect of count 7 to commence on 22 August 2001 and to expire on 21 August 2007.

217    GROVE J: I agree with Mason P. 218    DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgment of Mason P. I agree that the appeal against conviction should be dismissed and I agree with his Honour's reasons, except that I am not convinced that the evidence of Mr McNeil was admissible as I do not see it as having any probative value or relevance to any fact in issue. However, I also consider it was quite insignificant in the overall picture, and its admission could not possibly have made any difference to the jury's verdicts. I would therefore apply the proviso. 219    In respect of the application for leave to appeal against the sentences, I agree that leave should be granted, the appeal upheld and the appellant should be re sentenced in the manner proposed by Mason P.

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