R v Collins

[2001] NSWCCA 386

CITATION:	REGINA v COLLINS [2001] NSWCCA 386 revised - 26/10/2001
FILE NUMBER(S):	CCA 60562/00
HEARING DATE(S):	31 July 2001
JUDGMENT DATE:	2 October 2001
PARTIES :	REGINA v Michael David COLLINS
JUDGMENT OF:	Mason P at 1; Sully J at 123; Newman AJ at 124

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/51/0011
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ

COUNSEL :	Crown: E A Wilkins Appellant: J S Stratton
SOLICITORS:	Crown: S E O'Connor Appellant: D J Humphreys
CATCHWORDS:	Appeal - trial judge's directions to jury - summing up - sexual assault - whether defence case fairly put - directions regarding complaint - whether Longman direction required - whether directions as to motive in error - whether evidence in one count used as evidence of another.
CASES CITED:	R v Lars (1994) 73 A Crim R 91; Regina v Harvey (NSWCCA, 9 April 1998, unreported) R v Williams (1999) 104 A Crim R 260 R v Colby [1999] NSWCCA 261 Longman v The Queen (1989) 168 CLR 79 Doggett v The Queen [2001] HCA 46 R v Mitchell (NSWCCA, 5 April 1995, unreported) R v Mayberry [2000] NSWCCA 531 R v RCK (NSWCCA, 12 December 1995 unreported)
DECISION:	Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60562/00

MASON P

SULLY J

NEWMAN AJ

Tuesday 2 October 2001

REGINA v Michael David COLLINS

The appellant was convicted by a jury in the District Court on 11 counts consisting of two counts of aggravated indecent assault, two counts of aggravated sexual intercourse without consent, one count of employing a person under 18 years for pornographic purposes, and six counts of aggravated sexual intercourse with a person aged between 10 and 16 years. The appellant at trial denied all allegations of sexual assault, but pleaded guilty to two charges of prohibited drug supply.

The complainant in relation to all but one of the sexual counts was KM, a girl aged between 10 and 12 at the relevant times. The appellant was a close friend of KM’s family and was aged between 46 and 48 at the time of the offences charged.

The appellant challenges certain directions given by the trial judge in the summing up, submitting that the defence case was not fairly put to the jury, that disproportionate time was spent on the evidence in chief of Crown witnesses compared with the cross-examination and defence arguments and that the directions relating to complaint were inadequate. The appellant also submits that the trial judge erred in his directions regarding KM’s motive to lie and the evidence of the complainants AB and NB.

Held, by Mason P, Sully J and Newman AJ concurring:

1. The trial judge’s summing up is balanced when read as a whole. The balance of a summing up is not to be determined by considering what proportion of it relates to the Crown case and what proportion of it relates to the defence case. R v Lars (1994) 73 A Crim R 91 (referred).

2. There is no substance to the appellant’s objections to the trial judge’s directions regarding complaint. The trial judge’s words did not suggest that there were unexpressed reasons known to the judge, why the particular complainants remained silent. Williams (1999) 104 A Crim R 260 (referred). It was well open for the judge to comment that absence of complaint was something of a two-edged sword.

3. The facts of this case did not require a Longman direction. The passage of time here did not deprive the appellant of the proper means to test the complainant’s allegations. R v Colby [1999] NSWCCA 261 (cited); Crampton v R (2000) 176 ALR 369; Doggett v The Queen [2001] HCA 46 (referred).

4. The appellant’s contention that the trial judge erred by in effect inviting the jury to consider the question “Why would the complainant lie?” is rejected. The challenged directions did not seek to take the question of KM’s motive outside its particular context.

5. There was no invitation by the trial judge to the jury to use evidence in one count as evidence of the other nor to use background or contextual evidence in any inappropriate way. R v Mitchell (NSWCCA, unreported 5 April 1995); R v Mayberry [2000] NSW CCA 531; R v RCK (NSWCCA, unreported, 12 December 1995) (discussed).

ORDERS

Appeal dismissed.

***************

IN THE COURT OF
CRIMINAL APPEAL

CCA 60562/00

MASON P

SULLY J

NEWMAN AJ

Tuesday 2 October 2001

REGINA v Michael David COLLINS



JUDGMENT

The appellant was convicted in the District Court following trial before Judge Ducker and a jury. There were 13 counts in the indictment consisting of two counts of aggravated indecent assault (counts 1 and 4); two counts of aggravated sexual intercourse without consent (counts 2 and 3); one count of employing a person under 18 years for pornographic purposes (count 9); six counts of aggravated sexual intercourse with a person aged between 10 and 16 years (counts 5-6, 10-13); and two counts of supplying a prohibited drug (cannabis) (counts 7 and 8).

2 The appellant pleaded guilty to the drug supply charges. After a trial extending over three weeks he was found guilty on the 11 remaining charges.

3 The notice of appeal challenges certain directions given in the summing up.

4 In relation to all of the sexual counts except the thirteenth, the complainant was KM, a girl born on 2 September 1985 who was aged between 10 and 12 at the relevant times. The complainant in count 13 was NB, a girl born on 5 December 1985 who was aged 13 at the relevant time.

5 The appellant was born in 1950 and was thus aged between 46 and 48 at the time of the offences charged. KM was a close friend of his family and about the same age as one of his sons. She had visited the appellant’s home, stayed overnight on occasions and gone on family holidays. NB was a friend of KM, at least until the events in question.

6 The Crown case was that the appellant’s interest in KM changed over the years from one involving natural affection into one in which there was initially (July 1996: the events of counts 1-4) a comparatively minor sexual encounter to the situation in mid-1998 when, in the words of the trial judge (SU 29):

… gradually the girl was corrupted to the extent that towards the end of the period she had taken the initiative in many respects, in order to get money. In particular she was ringing up the accused, knowing very well what she had to do to get that money, and towards the end, became almost like a lieutenant of his, encouraging the other girls into sexual acts with the accused….

7 The Crown case may be summarised as follows.

8 KM’s mother and the appellant’s then wife were good friends and through this association KM got to know the appellant and his family. She began going to his home from about the age of 9, often staying overnight or going on outings or trips with the appellant and his sons.

9 Background evidence of events preceding the first offence was led to show the appellant’s emerging sexual interest in KM and thus to put the offences in context. This included a visit to a nudist beach when the appellant photographed KM unawares. On a later occasion at that beach the appellant persuaded KM to suck his penis. There was another occasion when, on the way home from a trip, the appellant attempted to make KM do “sexual stuff” in return for having taken her with his sons on that trip.

10 Counts 1-4 related to events occurring in the week following Saturday 6 July 1996, the date KM’s mother remarried. While the mother was on her honeymoon KM stayed at the appellant’s home.

11 Early on the Sunday morning KM was awoken by the appellant who got under the doona with her and placed his hand in her underpants, touching her vagina (count 1). She told him that if he did not stop she would scream her loudest.

12 Later that day the appellant and his two sons went to archery in Lismore and KM agreed to go with them. They drove in the appellant’s four-wheel drive from his home at the coast to Lismore. KM’s evidence was that she and the appellant then went shopping, stopping on the way at a little farm which had guinea pigs, rabbits and pigs. At her request, the appellant bought her two bras, a mini skirt and a pair of underpants. She put them on and they got back into his car. They drove over a bridge and went on to a quiet road with little traffic. The car was parked off the road and the appellant asked KM what he would get in return. Subsequently the appellant pulled KM’s underpants down to her ankles and licked her vagina. She told him to stop but he did not (count 2). There was a further attempted encounter.

13 The appellant drove for about 150 metres up the road. He then stopped the car and pulled his trousers down and forced KM to suck his penis. She told him to stop but he made her do it a couple more times before stopping (count 3).

14 Later on the same occasion the appellant placed her hand onto his penis and forced her to masturbate him until ejaculation (count 4).

15 The only direct evidence of the events covered by counts 1-4 was given by the complainant. The appellant had made no admissions in his ERISP and, in his sworn evidence at trial, denied all allegations of sexual misconduct. The jury were properly instructed that unless satisfied beyond reasonable doubt that KM was telling the truth about these matters they were bound to acquit.

16 However, it was common ground at the trial that KM had stayed with the appellant and his family during the week of her mother’s honeymoon commencing on 6 July 1996. There was also no dispute that the appellant had taken KM and his sons to the archery event in Lismore and that he had, on this occasion, purchased items of clothing for KM when he drove off alone with the complainant.

17 One matter on which there was a live dispute concerned KM’s evidence that on this occasion she and the appellant had visited a little farm with pet animals such as guinea pigs, rabbits and pigs.

18 Fairly late in the Crown case it became clear that the date of the mother’s wedding was 6 July 1996, not 1997 as previously stated. The indictment was amended accordingly. This led to the recall of KM. She effectively restated her evidence linking the stay during her mother’s honeymoon, the visit to Lismore for archery and the visit to the little farm (Tr pp603-613). She said that the road was blocked off and that she and the appellant had walked through the blocked off area to get to the farm (Tr p615). It was put to her that the visit with the appellant had occurred on 15 March 1997 and that it was to Old McDonald’s Travelling Farm which had a stall displaying animals in Woodlark Street Lismore on that date. KM responded:

I have only been to Lismore with Michael once I think and except for when we have been to the markets at Lismore Square, I have only ever been to archery once, and so that was the day. (Tr p616)

19 The remaining counts deal with events in 1998 within the two months preceding the appellant’s arrest.

20 KM was staying at the home of a friend, AB, on the Friday before Mother’s Day, on Sunday 10 May 1998. She rang the appellant asking to borrow money. He agreed to lend her money and arranged to meet the girls at a local Pizza Hut. He arrived in his motor vehicle and told KM that he was running late and he asked her to drive with him to the bank. AB waited behind at a shopping centre.

21 According to KM the appellant drove past the bank and turned off the highway on to a dirt road. He stopped the car and pulled his penis out of the side of his pants. He then pulled her head across with his hands and forced her head down so that his penis went into her mouth (count 5). She told him that she felt guilty. He then pulled her underpants down to her knees and, although she said “No” he then licked her vagina (count 6).

22 On the way back he gave KM two packets of cigarettes and $100. He dropped her off near the Pizza Hut and she went and found AB. (AB gave evidence that she had been away for about 20 minutes to half an hour. She also said that KM came back with money after being away with the appellant in his car.)

23 Counts 7 and 8 related to the supply of cannabis and they were the subject of pleas of guilty. The facts are nevertheless relevant to the issues on the remaining counts.

24 On the following day, Saturday 9 May 1998 KM and AB arranged to meet friends at a shopping centre. While there, KM saw the appellant and he asked her to come to his house, have some marijuana and play Nintendo. She asked if her friends could come and he said that they could. She spoke to her friends and all except AB agreed to go. One of the friends was NB, the complainant in the thirteenth count.

25 When they got to the house the appellant came out of his bedroom with a pornographic video in his hand. He handed it to KM and offered to show it. She asked him not to bring it out in front of her friends, but he did anyway. At that stage the appellant was smoking marijuana and he gave some to KM and her friends (count 7). The appellant drove the complainant and her friends back to the shopping centre about half an hour later.

26 The eighth count related to a further supply of marijuana by the appellant to KM that occurred later on the same day. Once again KM and some friends (AB and NB) were picked up at a shopping centre by the appellant and taken home to his house to play Nintendo and to have more cones of marijuana. KM, AB and NB smoked the marijuana.

27 The ninth count related to events at the appellant’s home that same evening. The appellant propositioned the girls for photos and a price ($30 “each”) was negotiated by KM. Indecent photographs were then taken of the three girls together. Evidence in this regard was given by KM, AB and NB.

28 Later that evening the appellant asked KM to photograph him naked. Before she could do so he grabbed her head and pulled it down on him putting his penis in her mouth. KM said that she was choking and she told him to stop (count 10). She vomited saliva. KM then photographed him lying back on the bed with his penis erect. Her evidence in this regard was corroborated by AB and NB who had opened the door without knocking and saw the appellant lying on the bed with KM photographing him.

29 The events of counts 11 to 13 occurred during a school holiday period between 6-17 July 1998. KM was staying a couple of nights at her friend NB’s house. One day they telephoned the appellant and asked him if they could do “beach photos” for him. They arranged to meet at the local public school. The appellant picked them up and took them to a nearby beach. At his bidding NB went off on a walk for about 10-15 minutes. (NB corroborated this.) With KM alone in the car the appellant removed his penis from his pants, grabbed her head and pulled it down on him placing his penis into her mouth (count 11). According to KM he ejaculated. They were interrupted by NB who returned.

30 They drove back to the school and on the way the appellant gave them cigarettes and money. (Their departure from and arrival back at the school was corroborated by TR who was a male friend of NB.)

31 One Friday afternoon after 17 July 1998 KM and NB had a free period at school. KM rang the appellant and asked if they could see his new house then under construction at South Ballina. They arranged for the appellant to pick them up and he drove them to the house. The appellant told KM to tell NB to go for a walk and while she was away he attempted to stick his penis in her vagina while she was standing and, when she said it hurt, then turned her around and committed an act of anal penile intercourse. KM said that it hurt very much and she told him to stop but he did not let go (count 12). KM said that NB came back and saw them in the act: NB said she came back and saw the two standing near each other and she asked KM if she was OK.

32 The conduct referred to in the thirteenth count occurred on the same occasion, shortly after NB returned. The appellant lifted up NB’s skirt and licked her vagina after having tried to stick his fingers in it and after NB said “Ouch, stop it”. Evidence was given about this by both KM and NB.

33 On the way back the appellant gave KM some money, portion of which she distributed to NB and AB.

34 The witnesses in the Crown case included KM, AB, NB, KM’s mother, NB’s mother, the young man who saw the appellant pick up KM and NB from the school on the day of the incident at the beach, AB’s grandfather and two specialist medical practitioners.

35 The police officer in charge of the investigation gave evidence that she had located a Polaroid camera in a built-in wardrobe at the appellant’s house as well as a pornographic video in the garage.

36 The appellant was interviewed on 24 July 1998 and his ERISP was tendered. He was questioned about the allegations of sexual assault, nude photography and supply of cannabis between 1 March 1998 and 5 July 1998. He admitted that KM had stayed at his home at various times over many years. He did not know NB or AB by name. He agreed that he picked up KM and some of her friends at a shopping centre and brought them to his home. He admitted the supply of cannabis to KM and said that KM chopped it up and handed it to her friends, who smoked it (Q/A 95-126). He admitted the second supply of cannabis on the occasion when KM and two girlfriends were brought back to his home (Q/A 130-135). One of the girls had rung him up and arranged to be picked up (Q/A 177-185). He denied taking indecent photographs of the girls (Q/A 136-148) or sexually assaulting KM shortly thereafter (Q/A 149-165). He denied ever giving KM or the girls money in 1998 (Q/A 171-2), although he later agreed that he had bought them cigarettes (Q/A 205-211). Other allegations of sexual assault of KM were also denied (Q/A 186-200). Later in the interview the appellant agreed that he had taken KM and NB to his new home when it was in the course of construction, having picked them up at a school. He denied any sexual impropriety (Q/A 238-263).

37 The case for the accused at trial included evidence by the appellant (in which he denied on oath all allegations of sexual assault). The appellant had no prior convictions and raised his good character.

38 Judge Ducker’s summing up spans 77 pages. I shall deal only with those matters relevant to the grounds of appeal, returning to the detail as I address relevant grounds.

39 There were repeated admonitions as to the onus of proof and the need of the jury to be satisfied beyond reasonable doubt that the evidence proved each particular charge.

40 The essential elements of the various categories of charge were explained before the judge proceeded to detail the evidence referable to the individual counts.

41 There were general directions about complaint and delay in complaint (SU 14-16, 64-65) to which I shall return.

42 At one stage the jury were told that, when all embellishments were removed, the case got down to “a very simple basic issue, and that is, has KM told you the truth?” (SU 26). On this and other occasions the jury were told that if they were not satisfied beyond reasonable doubt that KM had told the truth then they were bound to acquit on the counts involving charges of sexual assault upon that complainant. Where the jury were reminded about specific challenges that had been made to KM’s testimony in matters of detail, they were frequently directed that the defence used this to show that KM had deliberately fabricated her evidence generally (eg SU 52-3, 56). The jury were directed that in every situation where the evidence of one witness was relied upon to prove beyond reasonable doubt the commission of a criminal offence, that was a reason to scrutinise the evidence of that witness with the utmost care (SU 26-27).

43 Before addressing the individual counts, the judge reminded the jury on several occasions that the accused’s case was that none of the events had ever happened, apart from the charges to which he had pleaded guilty (eg SU 18-19, 30). On each such occasion the jury were promptly reminded where the onus of proof lay.

44 After reminding the jury that “the most critical issue in this whole trial is the credibility of the complainant KM” (SU 31), the learned judge proceeded to recount the evidence referable to the several charges. His pattern was to summarise the complainant’s evidence in chief followed by a statement that the appellant’s answer to the evidence of sexual misconduct was that it had never happened. Sometimes specific inconsistencies or problems with the complainant’s evidence referable to a particular count were touched upon at that stage (SU 33, 35, 38-40). The jury were reminded that the prosecution relied entirely upon the evidence of KM as regards the 1996 counts (counts 1-4) (see SU 33, 34).

45 The jury were also told about the conflicting evidence led in the defence case. The criticism of the complainant’s evidence was outlined, together with a reminder of the Crown case and/or evidence that sought to meet such criticism. A particular example involved the challenge to KM’s evidence that the 1996 incident occurred at Lismore when there was a visit to an animal farm. The evidentiary and argumentative challenges to this evidence, and the Crown’s responses, were put in some detail (SU 38-41).

46 The jury had requested access to the complete trial transcript and, as occasion demanded, the judge would give them appropriate page references.

47 When his Honour got to the events of 1998, he interspersed his directions on the facts by reminding the jury of the evidence of witnesses other than the two complainants which, in limited degrees corroborated the complainants.

48 The jury were reminded of the defence suggestions that the three girls had put their heads together (SU 46-7). Further directions about this issue were given later (SU 74-75). (In fact there was a strong body of evidence to the contrary, and indicating that the friendship of AB and NB with KM came to an end as a result of KM having disclosed matters of which they were ashamed and contrary to what she had originally agreed with NB: See eg Tr pp244-6, 351, 403-4, 421).

49 Towards the end of summing up Judge Ducker recounted aspects of the defence case. He summarised the appellant’s evidence, indicating in effect that there was no trace of any admission of wrongdoing (SU 72). Directions on character were given. The evidence of the appellant’s former wife was recounted.

50 It is convenient to address ground 5 first.

Defence case not put fairly (ground 5)

51 After the jury retired to consider their verdict defence counsel asked the judge to withdraw the whole of his summing up. It was submitted that remarks made at the end of the summing up involved entry into the arena. This criticism was focussed particularly at the directions dealing with the defence allegation that the three girls had put their heads together.

52 Judge Ducker reminded counsel that he had previously invited them to give references as to any matters which they particularly wished to be noted. Defence counsel was asked whether there was any further specific matter he wished to be put to the jury (SU 79). There was no response to this invitation other than reiteration of the request for the whole summing up to be withdrawn.

53 In this Court the appellant submitted that the summing up failed to put the defence case fairly because the judge dealt with the evidence in chief of the principal Crown witnesses at length, but did not deal with the cross-examination of them to anywhere near the same degree. It was further submitted that the defence arguments were hardly referred to at all, except to give the jury reasons to reject them. The appellant also submitted that the defence case was characterised as an assertion that the three complainants had entered into a conspiracy to make false allegations against the appellant.

54 This ground must be rejected.

55 The summing up is balanced when read as a whole.

56 The balance of a summing up is not to be determined merely by considering what proportion of it relates to the Crown case and what proportion relates to the defence case (R v Lars (1994) 73 A Crim R 91 at 146).

57 The great bulk of the evidence was given in the Crown case. For the most part the defence case did not deny that the appellant had the opportunity to commit the offences alleged. His case was that they had not happened. There were repeated directions to this effect throughout the summing up. More importantly the jury were reminded of this as the Crown case on each count was put to the jury. As indicated above, his Honour also reminded the jury of particular inconsistencies in the evidence and specific challenges to the complaints’ evidence. Where the Crown had sought to meet those challenges by further evidence or submissions in final address his Honour reminded the jury of these matters. The Judge was perfectly entitled to do this and the manner in which he did it betrayed no lack of balance.

58 His Honour can scarcely be criticised for having suggested that one issue was whether the three girls had put their heads together. That matter had been put to the witnesses in cross-examination and it obviously figured in final addresses (See also Tr p754). It was never suggested that acquittal depended upon the conspiracy theory being made out. There were numerous directions to the contrary in the context of directions concerning onus and standard of proof.

Directions as to complaint (grounds 1 and 2)

59 In grounds 1 and 2 the appellant raised various challenges to the directions concerning complaint.

60 Some of the matters first came to light a few weeks after the South Ballina incidents in early July 1998. KM’s mother was concerned that her 12 year old daughter had money, jewellery and clothing that had not come from her parents or any other known source. After getting evasive answers, the mother pressed her daughter and was told that she had been given money by the appellant to have her photo taken while naked. A short time later KM was first interviewed by the police on 22 July 1998. The appellant was confronted with KM’s allegations on 24 July 1998. At this stage KM had made no complaint about the 1996 incidents, nor did she refer to having observed the assault on NB at South Ballina in July 1998. These allegations were first given to the police on 10 September 1998.

61 As previously indicated, NB was a friend of KM. She gave powerful corroborative evidence relevant to several of the counts involving misconduct towards KM occurring in 1998. NB was also the complainant in relation to count 13, which covered events occurring in early July 1998. Her evidence in chief was that she told no one about what had happened because she was ashamed. She had previously told KM not to tell anyone (Tr pp403-4, 421, 424, 427). She went to the police and gave a statement on 23 July 1998 after KM had spoken to the police.

62 Ground 1 in the notice of appeal contends that the trial judge failed to give adequate directions as to the failure of or delay in the complainants making complaint; and in particular did not direct the jury as to the difficulties that the delay created for the appellant in presenting his defence. Ground 2 contends that the judge erred in putting to the jury possible explanations for the failure of the complainants to make a complaint, when there was no evidence as to the reason for the failure to complain.

63 His Honour’s directions as to the absence of complaint were as follows (SU 14-16):

So far as “complaint” is concerned, you have heard reference to that. Complaint has a long history. It came from the days when women in particular were treated pretty much as chattels, and if a woman did not raise a hue and cry at the first reasonable opportunity after having suffered sexual assault, or rape, as it was then known, then nothing would be done about it. The law still says that the failure to make a complaint is still something which a jury must take into account on the question as to whether or not the offence did occur.
On the other hand, the jury must also take into account in deciding that issue whether there may be reasons for that failure to make a complaint, to take into account that there may be good and valid reasons why a person does not complain. There may be reasons of a somewhat similar kind to something I have referred to earlier. Where children are concerned, you should bear in mind that children are relatively powerless, much less sophisticated and less worldly than adults, as a general rule. There may be exceptions, of course, but you should bear in mind that not all people who are sexually assaulted do complain. The person concerned may simply not want to face the ordeal of having to go through the, at times prolonged, business of legal proceedings, or dread having to give evidence. Some people simply prefer to try to put an unpleasant experience in the past, and get on with their lives. There may be other reasons. I will refer to those as they apply to the particular complainants when I am dealing with the particular charges. But complaint, the existence of a complaint does not mean that an accused person must be found guilty, it does not mean that the offence did happen. And the failure to complain does not mean that an offence did not happen. It is just a matter which has to be considered, along with the other evidence, on the question as to whether or not the alleged offence did occur.
The suggestion here, in general terms, is that there was no complaint by any of the three girls concerned, that they did not want to complain, for whatever reason, and that it was only [KM’s] mother’s concern about the amount of money that she appeared to have, that triggered off the events which have led to this trial. In other words, that [KM], although these things were being done to her, was quite content not to complain because of the inducements that she claims to have been given - being paid money, being driven around, being bought cigarettes, being given marijuana, and so forth.
That absence of complaint is something of a two-edged sword in this case, you might think, because it is also something that you are entitled to take into account when considering the question as to whether these girls put their heads together to conspire to bring false charges against the accused. You are entitled, along with the other evidence on that issue, to consider the fact that not one of these girls complained, and that the whole series of events that culminated in this trial, on the prosecution version, came about because DM was concerned about the money which her daughter seemed to have. I am not suggesting one way or the other whether that will be decisive of that issue, but I mention it in passing as evidence which is relevant on that issue.

64 The underlined passage is pointed to by the appellant as a misdirection. It is submitted that there was no evidence of any reasons for the absence of the complaint.

65 Later his Honour returned to the question of absence of complaint in these terms (SU 64-65):

You might think that some of the critical evidence in the case comes from [DM, KM’s mother]. You will remember that yesterday I told you about complaint. The failure of a person who claims to have been sexually molested to complain, is something you take into account in deciding whether or not the events did occur. The theory is that it is reasonable to expect that a person who has been sexually assaulted will complain at the first reasonable opportunity. On the other hand, there may well be reasons why a person would not complain. Occasionally, of course, people who were not assaulted do complain that they were and that is what is alleged here. There is no doubt that false accusations of sexual offences do occur. That is why a jury must always be very careful when deciding cases of this kind. As I told you, the fact that a complaint was made does not prove that an offence occurred and the fact that a complaint was not made, does not prove that it did not occur. It is however something that you are entitled to take into account when assessing the overall credit of the witness.
[DM’s] evidence shows that [K] did not complain. In fact none of the three girls, not one of them, complained. The catalyst you might think that has led to these proceedings was the fact that [DM] questioned [KM] as to where she was getting the money that she had. Only after [K] had endeavoured to give other explanations, which her mother did not accept, did [K] tell her she had got money from Michael she claimed for posing. That led after a time to a discussion between [K] and her mother and in due course, to the matter being referred to the police. On 22 July 1998, [K] was interviewed by the police.

66 Neither direction was the subject of complaint at trial.

67 Counsel for the appellant submitted that the trial judge should have directed the jury to view the failure to complain as a matter that reduced the credibility of the complainants’ evidence, whereas the overall effect of the directions was a suggestion that the failure to complain reinforced their credibility in the particular circumstances. Regina v Harvey (NSWCCA, 9 April 1998, unreported) was cited as authority for the proposition that a proper direction about the impact of delay in complaint had to suggest its capacity to undermine the credibility of the complainant.

68 Secondly, it was submitted that the directions were inadequate because the jury were not told that the delay made it difficult for the accused to defend himself. It was submitted that the circumstances of the case called for a Longman warning about this.

69 There had been no evidence or submission at trial concerning this suggested problem and (as indicated) no redirection was ever sought.

70 The appellant had been confronted with the substance of the two complaints relating to July 1998 when the ERISP was conducted on 24 July 1998, the day of his arrest. I am not aware of evidence indicating when the appellant was first confronted with the allegations concerning the 1996 incidents.

71 In this Court counsel for the appellant accepted that he could not point to any particular loss of evidence or specific prejudice stemming from delay, although at one stage he suggested (somewhat faintly) that a prompt complaint might have enabled more conclusive medical evidence to have been obtained. In the end, the main submission was that the judge should have warned the jury that in the ordinary nature of things the frailty of human memory was such that the lapse of time must have placed the accused at a disadvantage.

72 There is no substance to these objections to the summing up.

73 The portion of the direction said to be unsupported by particular evidence followed the mandate of s107 of the Criminal Procedure Act 1986 (formerly s405D of the Crimes Act). It was entirely appropriate for such a direction to be given in the particular case, having regard to the age of the complainants and the challenges to their evidence at trial. The words emphasised in the passage at SU 14-16 did not suggest that there were unexpressed reasons, known to the judge, why the particular complainants remained silent (cf R vWilliams (1999) 104 A Crim R 260 at 265-6).

74 The particular directions about delay were well open on the evidence and the way the case was obviously fought at trial. It is clear that KM did not want to complain for as long as she was under the appellant’s thrall. On the appellant’s own admission he was using the promise of marijuana to lure these young girls to his home in 1998. Matters first came to light when KM’s mother became suspicious about the money KM had at her disposal. KM’s evidence that she kept quiet about the events at South Ballina and about witnessing the assault on NB was explained on the basis that NB had made her promise to do so. NB corroborated this, as well as KM’s evidence that the three girls had not put their heads together. The contrary had been clearly suggested in cross examination of KM (Tr pp216) and AB (Tr pp351). NB gave strong evidence that she did not speak to KM about the matters at South Ballina and that shame had prevented her making complaint until KM spilled the beans (Tr pp421-4).

75 In those circumstances, it was well open for the judge to comment that absence of complaint was something of a two-edged sword, also relevant to the issue of conspired concoction. I infer that he was doing no more than reminding the jury of the Crown argument in final addresses.

76 The facts of this case did not call for a Longman direction.

77 I summarised the relevant principles as follows in R v Colby [1999] NSWCCA 261 at [69]-[73]:

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).

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.

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).)

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).

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.

See also Crampton v R (2000) 176 ALR 369 esp at [45], Doggett v The Queen [2001] HCA 46.

78 There was no long delay sufficient to trigger an obligation to give a specific Longman warning about the appellant being deprived of proper means to test the complainants’ allegations. The time lapse was a matter of weeks as regards the 1998 allegations and a little over two years as regards the 1996 allegations (assuming as I do that the appellant was first confronted with them in about September 1998 – the contrary was not suggested in submissions). No particular prejudice was or is suggested.

79 As regards the 1996 events, it was common ground at the trial that KM stayed with the appellant during her mother’s honeymoon in July 1996; that KM went to Lismore with him and his sons; and that there were periods when the two were alone in the car after the boys had been dropped off at archery. It is true that an issue opened up as to whether or not it was in July 1996 or March 1997 that the appellant had taken KM to the little animal farm. This was explored at some length at the trial and in the summing up. It is to me significant that KM had been cross examined on the basis that she had looked at the animal enclosure when she was alone with the appellant (Tr p210). The appellant himself gave evidence to similar effect (Tr pp647,668-9).

80 I do not think that this was a case where the effluxion of time deprived the appellant of the forensic weapons that a timely complaint would have allowed him to assemble, such that a judicial warning to that effect was called for (cf Doggett at [51]-[52], [121]-[125]). The jury were repeatedly told of the need to assess carefully the credibility of the complainants upon whose evidence the Crown case depended. This was sufficient in the circumstances.

81 I would refuse the leave required under r4 to take these objections and I would reject these grounds of appeal.

Directions as to KM’s motive to lie (ground 3)

82 In ground 3 the appellant contends that the judge erred in putting to the jury that KM had no reason to lie about certain details of her allegations which the appellant asserted were false.

83 Unless the jury accepted KM as a reliable and credible witness then most counts were bound to fail and the remaining counts very seriously undermined. KM’s testimony was subjected to searching cross-examination and part of the defence case sought to establish material inconsistencies.

84 Counts 1-4 related to events in July 1996 occurring during the time that KM stayed at the appellant’s home during her mother’s honeymoon.

85 Counts 2, 3 and 4 were said to have occurred on Sunday 7 July 1996 during an outing to Lismore attended by the appellant, two of his sons and KM. They went to do archery there. It was KM’s evidence that three sexual assaults occurred after the appellant had dropped off his boys at the archery field and then driven off in his car with KM. KM said that they first went to a shopping centre where the appellant bought her two little bras and then:

We also stopped at this funny farm type thing and there was just all these little guinea pigs and rabbits and pigs and that sort of thing. (Tr p8)

86 As indicated above, KM was cross examined on the basis that she had indeed looked at the animal enclosure (Tr p210). The appellant gave evidence that he did not think that the visit to Lismore occurred on the occasion when KM stayed with him during her mother’s honeymoon (Tr p645). However, he agreed that there was an occasion when they had gone to Lismore and when, after dropping off his sons at archery, he and KM were alone for a period driving in the car. He denied any sexual impropriety, but he did not deny the visit to the animal farm. He said that KM was with him alone in the car after the boys had been dropped off at archery (Tr pp646-7) and that, after he had parked the car at the front of a church:

… we walked over to the fair and I, as K said, I thought it was just a little packet of things, if it was bread it was bread, something to feed the animals. That was the whole idea of the farm, so children could feed the animals.

87 In response to a request from his counsel (“Would you just draw in the area where this animal or funny farm or whatever it was was”) the appellant marked the plan which later became an exhibit.

88 In the defence case evidence was led to suggest that the animal farm at Lismore was not there in July 1996 but was there in March 1997, and that there had been no council approved road closure in July 1996 (Tr pp722-5, 755). It was accordingly put to the jury on behalf of the appellant that KM’s account of visiting the little hobby farm in Lismore where the road was blocked off could not be correct.

89 The trial judge dealt with this criticism at considerable length and in the following terms (SU 38-41, emphasis added):

Now a great deal of criticism you will remember was directed to the prosecution evidence by learned counsel for the accused. I am not going to go into that evidence at any depth. It is suggested that the only time when a farm or baby animals, I have forgotten just what it was called, was around Lismore on an occasion in March 1997, six months after the wedding of K’s mother. It is suggested that the inclusion of the animal farm indicates that KM has a capacity for fabrication, that this was made up. Now, you will really need to take time to think about the implications that are involved, because the accused admits going to Lismore with his two sons, that they did go to archery, that he did buy some clothes for her at Best and Less - he said two pairs of pants or two bras, one or the other. She says also K-Mart, they went there too, and he bought her a miniskirt and top. The accused denies that that miniskirt and top were bought on that occasion, but agrees that he did buy these garments at Best and Less. He also says that there was an animal farm in Lismore and the streets were blocked off. So whatever the date was, he says that there was an occasion where, as K has said, the boys went to archery, the garments were purchased at Best and Less and the donuts were purchased and taken out to the boys, but, he says there was never a time when he drove out on the road as described by K, and nothing of that kind did occur. The suggestion is, as I understand it, that K is not to be believed and that this was fabricated. She said it happened on the same day as the first count in the indictment and that that was during a time when her mother was on her honeymoon. Her mother was married on 25 June 1996, therefore K just has to be disbelieved. K on the other hand has always said that she only went there once. It is a matter for you to consider just whether K was inventing something. If she only went there once, and the accused agrees that she went there once, he says that the animal farm was there and so does she. So what is at issue you might think is more a question of the time, the date, than anything else. That would lead you of course to say “Well why would she be confused about the date?” But if it was March of 1997, well, the accused says, she was there and the animals were there, and they only ever went there once. It is a matter for you to decide what you make of all of that.
The principal criticism as I understand it is that this could not have happened during the mother’s honeymoon, and she said that it was the same day as the touching of her genitalia in the boys’ room. Well perhaps the alternative possibilities are that was she mistaken about the date of the first offence. Was there simply another time when she was staying at the Collins’? She really seemed to take the view that the offence was definitely at that time. Is she confused about the offences happening on the same day? Is that where an innocent mistake could have been made? Or is it all part of the fabrication because nothing really did happen? On the other hand, what would she have to gain by suggesting it was on that day, the same day, if she did not believe it to be so? Another thing that you may wish to give some thought to is this: why would she say that there were little pigs there and little animals at the animal farm, if she did not believe it was true? It is a rather complicated situation with regard to those charges. You have heard the addresses made to you by counsel. The Crown suggests that she has made an honest mistake as to the time when this happened; that it is conceivable that she has just got things mixed up with regard to the animals in some way; the fact is that there was one such occasion - and one occasion only; and a number of the other things which she said had happened on that day, did happen and did happen, according to the accused, at the same time as the animals were there. However he says that it was in 1997 not 1996.
Well that is a question of fact which you will have to consider. It is a matter for you what conclusions you draw from it. You must be satisfied before you could find the accused guilty of those charges, that the act in question did occur and that the other ingredients of the charges were made out in all respects. If you have any reasonable doubt about that, then you must acquit the accused.

90 I have emphasised the portions of this direction that are criticised in ground 3. The appellant submits that, by posing these questions for the jury, his Honour was in effect inviting the jury to consider the question: “Why would the complainant lie?”. It is submitted that, in inviting the jury to consider such a question, his Honour fell into the error discussed in Regina v E (1996) 39 NSWLR 450; Regina v Uhrig (NSWCCA, unreported 24 October 1996); Regina v AH (1997) 42 NSWLR 702; Regina v Jovanovic (1997) 42 NSWLR 520 and Palmer v The Queen (1998) 193 CLR 1.

91 This ground of appeal should be rejected.

92 The directions (which were not the subject of complaint at trial) dealt with a very specific part of the complainant’s evidence, relevant to some only of the counts involving her. In my view the judge was perfectly entitled to assist the jury by recounting arguments that had been advanced by opposing counsel in final addresses on this not unimportant, but necessarily peripheral issue. The challenged directions did not seek to take the question of KM’s motive outside its particular context. In that context, where the nub of the defence case was that KM had lied on this issue and was therefore lying generally, it was not inappropriate for the judge to remind the jury of the Crown argument in rebuttal (see Jovanovic at 521-2 per Priestley JA).

93 Taken in their particular context, and in the context of the summing up as a whole, the sentences underlined could not have been seen by the jury as an invitation to speculate generally about the complainant’s motive to lie and thereby to reverse the onus of proof or otherwise to introduce an irrelevant and dangerous issue.

Directions regarding evidence of AB and NB (Ground 4)

94 This ground contended that the judge erred in not directing the jury that the evidence of the complainants AB and NB could not be used as proof of the guilt of the appellant in offences involving the complainant KM alone.

95 KM was the complainant in relation to all of the sexual assault counts except count 13. NB was the complainant in count 13. AB was not a complainant in relation to a sexual assault count, but she was sometimes referred to as a complainant in the summing up, having regard to the fact that she was one of the girls photographed naked. In various ways the evidence of AB and NB supported the Crown case relating to the assaults on KM.

96 More than once during the summing up the judge directed the jury that they must decide each charge on its own merits (see, eg SU 10, 28. See also the direction given during the trial at Tr pp33-4.). One such direction was in the following terms (SU 16-17):

Now, there is another direction which I must give you, which is extremely important. It is one which I have given you before, but it is absolutely critical that you bear in mind. That is as to references made, evidence given, of sexual misconduct allegedly committed by the accused on occasions other than as set out in the charges on which you have to reach your verdicts. That evidence, as I have told you again, was admitted for a very limited purpose, and that was to place into context the acts which do found the particular charges in the case. In other words, if you had no background, you might be wondering how these things came about, but if you consider the charges in the context of other offences having been allegedly committed, that will assist you to better understand the evidence as relates to those charges. But that is as far as it goes. That is the only purpose for which you can use that evidence. You cannot use that evidence to say “Oh well, he did those sort of things in the past, therefore he probably did these”. I tell you now, and I direct you most firmly that that sort of reasoning is not available to you. That evidence is there only to give context to the alleged offences which are charged. That evidence cannot be used as a make-weight if you think that the evidence is deficient in relation to any of the charges. You must consider the evidence relating to each act separately, and it is only if you are satisfied beyond reasonable doubt that the act did take place that you can use this evidence. You cannot use this evidence about other alleged offences to prop up a charge if you feel that you could not be satisfied beyond reasonable doubt on the evidence that applies to that charge. So please be most careful that you do not slip into that error.

97 However the appellant submits that his Honour erred when (in the latter portion of the summing up) he said (SU 75):

Although, as I must emphasise, each charge has to be decided on its own merits, you are entitled to look at the context, the overall context, in relation to each charge, in the sense that you do not look at it in isolation, you look at it in context. You might think that in the overall sense, each one of these charges gets down to a very fundamental question and that is: Are you satisfied beyond reasonable doubt from the evidence of the witnesses called by the prosecution that the particular act charged did occur and that it did amount to the offence with which the accused has been charged?

98 Judge Ducker did not direct the jury that they could not use the evidence of NB to support the evidence of KM: nor was he asked to give such a direction. It is submitted that the failure to do so constituted a miscarriage.

99 The appellant relies upon statements in R v Mitchell (NSWCCA, 5 April 1995, unreported) and R v Mayberry [2000] NSWCCA 531.

involved four charges of aggravated indecent assault, two charges in respect of each of two complainants. Each complainant was a daughter of a woman with whom the appellant was living at the time. One complainant was aged 10 and the other 11 at the time of the offences. The appellant denied any act of indecency. It was the defence case at trial that the complaints were concocted in an attempt by the father of the complainants to strike back at their mother and their mother’s lover.

101 At the close of evidence there was discussion concerning directions. The issue that needed to be addressed was whether the evidence of one complainant about the alleged incidents involving her was admissible in proof of the Crown case in relation to incidents involving the other complainant. An application by the prosecutor for a “similar fact evidence” direction was refused because there was a serious issue as to concoction (cf Hoch v The Queen (1988) 165 CLR 292).

102 The complaint made by the appellant in Mitchell was that the trial judge did nothing in his summing up to warn the jury against using the evidence of one complainant in proof of the Crown charge relating to the other complainant. On the contrary, there were a number of observations which would have encouraged the jury to use the evidence in the manner for which the Crown had originally contended. The judge’s failure to give a proper warning was held to have been a material misdirection. It was not cured by the directions about considering the charges separately and returning separate verdicts, because such directions are not inconsistent with the possibility that in reaching their separate verdicts the jury may consider the totality of the evidence in the case as relevant to each charge (see per Gleeson CJ at 5).

103 It was in this context that Gleeson CJ (with whom Cole JA and Sperling J agreed) made the following remarks (at pp4-5):

It is submitted on behalf of the appellant, in my view correctly, that in the circumstances that had arisen the trial judge was obliged to warn the jury in clear terms against using the evidence of one complainant towards proof of the guilt of the appellant of offences involving the other complainant. There was also a need to give the jury careful directions about the way in which evidence admissible towards proof of the guilt of the appellant of a particular offence against one complainant could be treated in relation to the other alleged offence against the same complainant.
Not only did the trial judge fail to give any such warnings or directions, but his Honour on a number of occasions exhorted the jury to consider the totality of the evidence in the case when coming to their decisions. It is true that such exhortation was given in a context somewhat removed from the particular context presently under consideration, but, nonetheless, in the absence of any warning of the kind earlier mentioned, the jury might well have understood that the evidence of one complainant was admissible towards proof of the appellant’s guilt generally.

104 In my view it is not appropriate to take the first paragraph of the passage just quoted out of context and to elevate it into a principle of law that would require the giving of the direction for which the appellant now contends. The vice of the summing up in Mitchell was that the absence of the warning of the kind suggested by Gleeson CJ meant that the jury might well have understood that the evidence of one complainant was admissible toward proof of Mitchell’s guilt generally. The failure to give appropriate warnings was coupled with exhortations by the trial judge to consider the totality of the evidence in the case when coming to their decisions.

105 The same cannot be said of the summing up in the present case. There was much more than exhortations to consider the charges separately, although those exhortations appear to have been more strident than those in Mitchell. In the present case Judge Ducker was at considerable pains to emphasise that the counts involving the complainant KM depended upon the jury accepting KM’s evidence of them. There was no invitation to use evidence in one count as evidence of the other nor to use the background or contextual evidence in any inappropriate way. On the contrary there were clear directions as to the limited use that could be made of the latter type of evidence.

106 In Mayberry the appellant was the step-father of both complainants. The offences were alleged to have been committed at a time when he was the primary carer of the children. At trial, defence counsel sought a “Mitchell direction” to the effect that it was necessary to warn the jury, in a case where there was a possibility of contact and contamination between complainants, that the evidence of one complainant could not be used in proof of the Crown case against the other (Mayberry at 31). Beazley JA with whom Greg James J and Kirby J agreed referred to Mitchell and then continued:

38. The need for such a direction is obvious. When there is more than one complainant there is invariably some common features in their evidence. Although an accused can seek to use this to advantage by trying to establish inconsistencies in such evidence, it can work to the serious disadvantage of the accused if the evidence is largely consistent. In that circumstance, the evidence of one complainant can help to strengthen the case relating to the other or others. The disadvantage can be even more marked where the evidence of one complainant is particularly under attack. In that case the possibility of a jury assessing that complainant’s evidence favourably, because the evidence of the other is more reliable, is a real one.

107 Beazley JA pointed out that the trial judge had referred to the need to look at each charge separately, but that the reasoning of Gleeson CJ in Mitchell indicated why that was not sufficient to remove the danger in question.

108 Nevertheless, it is significant in my view that Beazley JA proceeded to examine the summing up as a whole to determine whether the appellant in Mayberry might have been deprived of a fair trial. She looked at passages emphasising the importance of considering each charge separately. As in Mitchell, there were aspects of the summing up which effectively encouraged the jury to consider the totality of the evidence in the case when coming to their decisions. At one stage the charges were referred to as a “job lot”. Furthermore, when the trial judge in Mayberry dealt with the essential elements of the offences he dealt globally with the counts spanning the two complainants. The charges were lumped into categories where the common elements were emphasised in circumstances that essentially merged the separate cases relating to the two complainants. For example, there was a direction that spoke of the “real live issues in regards [to] those charges … [is that they] occurred without … consent” (Mayberry at [49]).

109 Beazley JA summed up her conclusions in the following passage:

54. In my opinion, the appellant has made good this ground of appeal. Although his Honour gave directions in relation to the requirement to look at each charge separately, from time to time during his summing up he treated the charges globally. That, in itself, could potentially have been misleading to the jury. However, the fundamental error was that his Honour failed to give what I have referred to as the Mitchell direction. I do not think that the direction which I have emphasised in para 52 satisfied the requirement in Mitchell and in any event, it has its own inbuilt flaw. His Honour “rolled up” counts 1 to 9 and counts 10 and 11 and invited the jury to consider the evidence of NRD in respect of counts 1 to 9 on the evidence of JMD in respect of counts 10 and 11. The correct direction was that each charge had to be considered separately and that the evidence in respect of each count in JMD’s case could not be used in respect of the offences in NRD’s case. The direction was not sufficiently close to the required directions as to be adequate in the circumstances. There was nothing else in the summing up to ameliorate this failure. Rather, the tendency from time to time to treat the charges in categories, in my opinion, compounded the failure. I consider that on this ground alone the appellant should have a new trial.

110 Once again the present case can be distinguished on a number of grounds. There was never a serious suggestion of collaboration between the complainants. And, unlike Mayberry there was no tendency to “roll up” the charges touching the two complainants.

111 The present case is much closer to R v RCK (NSWCCA, 12 December 1995, unreported). That was a case in which the convictions were quashed and a new trial ordered on the ground that, as in Hoch, the trial judge had omitted to decide whether there was a real chance of conspiracy amongst several children not all of whom were complainants in the trial proceedings. (No such problem is raised in the present appeal.)

112 There was however a third ground of appeal in RCK based on failure to give a direction in accordance with Mitchell to the effect that the evidence which one child (S) gave about the misconduct of her father towards her was not admissible against the appellant on the count concerning another child (Z) and vis-a-versa. No such direction had been sought at the trial.

113 The Court (Gleeson CJ, Studdert J and Dowd J) refused leave to raise this third ground of appeal. The discussion shows that the Court did not regard Mitchell as laying down an invariable requirement to give the relevant warning in every case involving multiple complainants.

114 Gleeson CJ observed that there was a very substantial difference in time between the events complained of by S and the event complained of by Z; and that the Crown was not relying upon the evidence of Z in proof of the count involving Z as evidence in aid of the proof of the Crown case on the other counts involving S.

115 Similarly, Studdert J distinguished Mitchell, pointing out that that was a case where there was a real possibility that the complainants had concocted their evidence with a consequential need to direct the jury consistent with Hoch. No such direction was sought. Furthermore the directions as to the need to consider each count separately were held sufficient in the circumstances. Studdert J emphasised a passage in the summing up which made it clear to the jury that the Crown case on the counts involving S stood or fell upon the jury being satisfied beyond reasonable doubt about S’s evidence. Likewise with Z.

116 In the present case there were similar directions.

117 The appellant submits that the failure to give a Mitchell direction was particularly damaging in light of the passage at SU 75 that is set out at par 97 above. It is submitted that the invitation to the jury to “look at the context, the overall context, in relation to each charge, in the sense that you do not look at it in isolation, you look at it in context” conflated the evidence of the complainants as to the several and separate assaults charged in the indictment.

118 This is the aspect of ground 4 that troubles me in the appeal. However, I do not think it led to miscarriage in light of the repeated admonitions to assess the credibility of the two complainants separately.

119 It is far from clear what the learned judge was endeavouring to convey by his reference to “context” and his admonition against looking at each charge “in isolation” in the passage. However, his opening remarks at SU 75 reinforce my impression that he was endeavouring to give a brief re-capitulation of the longer direction at SU 16-17. There had earlier been repeated directions to consider each count separately. At SU 52-53 there was a careful direction as to the limited purpose for which the evidence as to an incident at Lake Ainsworth might be used. For those counts that depended upon the jury accepting the evidence of one of the complainants (eg counts 1-4 as regards KM) the jury had been told in effect that guilt stood or fell upon acceptance of her evidence. The summing up gave the jury no encouragement to engage in propensity-type reasoning.

120 The remarks are unfortunate, but I do not think that the trial miscarried because of them. They were not the subject of objection or request for redirection at trial.

121 I would therefore reject ground 4.

122 The appeal should be dismissed.

I agree with Mason P.

I have had the advantage of reading the draft judgment of Mason P and I agree with his Honour’s reasons for judgment and the order he proposes.

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