R v Dann

[2000] NSWCCA 185

CITATION:	R v Dann [2000] NSWCCA 185
FILE NUMBER(S):	CCA 60286/99
HEARING DATE(S):	15 May 2000
JUDGMENT DATE:	19 May 2000
PARTIES :	Regina v Nicholas Trevor Dann
JUDGMENT OF:	Spigelman CJ at 1; Heydon JA at 2; James J at 46

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/71/0100
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL :	Crown - L.M.B. Lamprati Appellant - P.R. Boulten
SOLICITORS:	Crown - S.E. O'Connor Appellant - T.A. Murphy
LEGISLATION CITED:	Crimes Act 1900 Evidence Act 1995 Criminal Procedure Act 1986
CASES CITED:	R v AH 42 NSWLR 702 R v Beserick (1993) 30 NSWLR 510 Pfennig v R (1995) 182 CLR 461
DECISION:	Appeal allowed; convictions quashed; new trial ordered

IN THE COURT OF
CRIMINAL APPEAL

60286/99

SPIGELMAN CJ
HEYDON JA
JAMES J

Friday, 19 May 2000
REGINA v Nicholas Trevor DANN
JUDGMENT

1    SPIGELMAN CJ: I agree with Heydon JA.

2    HEYDON JA

Background

This is an appeal by Nicholas Trevor Dann against his conviction on 5 May 1999 on two counts of homosexual intercourse with his seven year old stepson, contrary to s 78H of the Crimes Act 1900. The trial, before Freeman DCJ and a jury at Albury, took two days. The two incidents, one involving the stepson fellating the accused and the other involving the accused having anal intercourse with the stepson, took place on a single occasion while the stepson was having a bath and the accused a shower. The events took place in the family home at Albury occupied by the accused, his wife, their four children and the stepson. The specific date of the events was not clear: they were alleged to have taken place between 1 January 1997 and 31 March 1997.

3    At the time of the trial the stepson was nine.

4    The accused was not charged in relation to three other incidents occurring later in 1997 after the family moved to Queensland, but the stepson gave evidence about them, over objection. One involved the stepson fellating the accused in the toilet of the family home, one was an incident in a moving car in which the stepson sat on the accused’s penis, and another in a car at a dump involving the accused having anal intercourse and touching the stepson’s penis.

5    There were three grounds of appeal, supported by the spirited submissions of Mr P Boulten (who did not appear at the trial).

The first ground of appeal: Dr Packer’s evidence should have been rejected under the Evidence Act 1995, s 137

6    Dr Packer was community pediatrician for the Australian Capital Territory. She worked in the Child at Risk assessment unit, Canberra Hospital. She examined the stepson on 27 November 1997. At the start of the trial, after the jury was empanelled but before counsel opened, the Crown Prosecutor summarised the evidence he intended to call thus:

“Dr Packer upon examining the child found evidence of dilatation of the anus which could be consistent with either constipation or sexual abuse, and there’s an abundance of evidence from the child’s mother to indicate that the child was not constipated at the relevant time, but quite the contrary.
Your Honour, the Crown submits the medical findings by Dr Packer are consistent with the allegations or at least they don’t exclude the allegations, they’re not inconsistent. The relevance of the evidence of Dr Packer is obvious in my submission.”

He also made it clear that he would not be putting into evidence various prejudicial aspects of Dr Packer’s report of 5 December 1997. The trial judge said to defence counsel that all that was being tendered was “the examination of the general area and … the consistency with two conceivable causes, one of which he will seek to exclude by the evidence of the mother." Defence counsel said:

“Well your Honour, if it’s confined to that, and presumably it’s only going to be confined to the conclusion which arises from the physical examination and that is that the anal configuration was normal, there was mild to moderate anal dilation observed during examination, this is a non-specific sign which can be a feature of both sexual interference and constipation. Very ambivalent your Honour, the conclusion that’s reached and in my submission it does not assist the Crown case. Again the - well I can take it no further than that your Honour.”

The trial judge said:

“No, I think that’s admissible and it seems to me that it’s not determinative in the sense that this is the discovery of a sign which is explicable only in terms of sexual interference, but as I understand the doctor’s opinion, it is either that or another physiological cause which the Crown will seek to exclude by the evidence of the mother, so I think that’s probative, potentially at least, to the extent that I would admit it.”

7    On appeal counsel for the accused pointed out the following features of the evidence which Dr Packer gave. The anus was significantly dilated but otherwise looked normal. The dilation of the anus is “not diagnostic of abuse” and “probably the commonest cause is constipation”. There was nothing in the physical examination to suggest that the stepson suffered from constipation, and his mother gave evidence that he had never complained to her of constipation. Dr Packer said that where a dilated anus was caused by sexual abuse there would be “some evidence of irritation around the anus”. There was no such evidence in the present case. Dr Packer also said that anal dilation “in the legal sense … carries little weight”. She said “I can’t say medically that there is evidence that this child was sexually abused”. She also said that chronic constipation can lead to soiling and the complainant in earlier times had suffered from chronic soiling.

8    Counsel for the accused submitted on the appeal that the evidence should not have been admitted because its probative value was outweighed by the danger of unfair prejudice to the accused: Evidence Act 1995 (NSW) s 137. He said:

“The probative value of Dr Packer’s evidence was minimal. The dilation of the anus, in the absence of any other abnormality, did not allow the conclusion that sexual abuse had occurred. This is particularly so, given that the dilated anus could have been caused by constipation. The complainant had suffered from a condition which could well have been caused by constipation.
The risk of unfair prejudice to the accused was substantial. In circumstances where there was an insufficient basis for hypothesising that there was medical evidence consistent with sexual abuse, the jury could well have speculated improperly that the dilated anus was caused by sexual abuse.”

He submitted that the evidence should have been rejected after the argument which took place at the start of the trial. Alternatively, once it had been given, it should have been rejected and the jury discharged.

9    The foundation on which the evidence was admitted - namely that it would show that the dilation was caused by one of two possible causes and one could be excluded - did not come to be established. Constipation as a possible cause was not supported by Dr Packer, and there was no evidence of the irritation which would support sexual abuse as a cause.

10 At the time of the argument early in the trial, the evidence was unquestionably relevant, because it could rationally affect the assessment of the probability of the existence of a fact in issue. There was no prejudice attaching to the evidence beyond its probative force in the Crown case. Hence s 137 could not operate to exclude it at that stage.

11    Once the evidence had been given, its probative force as part of the Crown case fell very sharply but it took on some mild probative force in support of the defence case. Perhaps for that reason, there was no application to have it withdrawn from the jury or to have the jury discharged. Counsel for the accused submitted on the appeal that the consequence of admitting Dr Packer’s evidence in chief was to compel cross-examination of Dr Packer and of the stepson’s mother about aspects of his medical history which must have been distracting to the jury and prejudicial to the accused. He said that a large portion of the evidence was about a hole in the boy’s anus, and in a jury trial in a country town it was prejudicial to the accused to compel discussion of the rectal history.

12    In my judgment there was no prejudice. Counsel for the accused on the appeal explicitly disavowed any criticism of the trial judge’s summing up in relation to Dr Packer. After hearing that summing up, the jury would have noticed the following clear features of the evidence even if they had not noticed them before: that Dr Packer’s evidence was detached, non-partisan and uncoloured; that dilation was only a relaxation of the anus, not a “hole” in it; that there was no evidence of irritation and hence no medical evidence of sexual abuse; and that Dr Packer several times acknowledged this. In short, Dr Packer’s evidence by the end of the trial was capable of being used by the defence in support of a submission negating abuse. The unattractive nature of the subject matter of the evidence related to Dr Packer was not of itself prejudicial.

13    Thus ground one fails.

14    In defending the reception of the evidence, Crown counsel on the appeal (who did not appear at the trial) said:

“Such evidence is commonly called in cases of alleged sexual assault whether the complainant is male or female. It is also common in these cases for the medical evidence to be ‘neutral’. As often as not a medical opinion is given that the examination revealed circumstances consistent with sexual penetration, but also consistent with nothing untoward having happened. Not to call such evidence would leave a gap; an unexplained aspect of the circumstances which a jury would expect to be told about. If the Crown were not to call such evidence in cases such as the present it would almost invariably invite a submission to the jury from defence counsel to the effect that the Crown has neglected an important aspect of the case in not having the alleged victim medically examined.”

He also said in oral address that neutral though the evidence often was, without it the jury might engage in speculation.

15    If it is the case, and the Court has no reason to doubt it, that medical evidence of a physical examination is often neutral, it seems regrettable that the time of busy professional people with heavy responsibilities such as Dr Packer should be used up giving evidence of such limited materiality. It is also regrettable that court time should be taken up with it. These difficulties could be overcome if some other solution to the problems which would arise from its absence can be devised.

16    A solution in particular cases might be for Crown and defence to agree that the evidence not be called and to agree to join in a request that the trial judge direct the jury that the jury should attribute no significance to the absence of the evidence because it is immaterial.

17    Another technique which might be employed where the Crown proposes to call inconclusive medical evidence is for the trial judge to secure from the defence an undertaking not to comment on the absence of the evidence if the Crown decides not to call the evidence or it is rejected. That admittedly would still leave open whatever risk of jury speculation there is.

Ground 2: evidence of the alleged sexual abuse of the complainant in Queensland

18    At the trial defence counsel objected to evidence of the three incidents which allegedly took place in Queensland in 1997, at a later time than the two Albury incidents which were the subject of the charges.

19    The trial judge assessed the admissibility of the three Queensland incidents by reading statements given to the police by the stepson.

20    The Crown Prosecutor tendered the evidence on the following basis:

“… the Crown seeks to lead that conduct so as to put the conduct that is said to have occurred at Albury in its proper context, not as tendency or propensity evidence, but rather to put it in the proper context. It would be illogical, in my submission, for this type of conduct to have occurred simply once and then the jury not to be aware of the other conduct in context.”

He cited R v AH (1997) 98 A Crim R 71. That case is now reported in 42 NSWLR 702. In that case Ireland J said at 708-709 (Hunt CJ at CL and Levine J concurring):

“Prior to the Evidence Act , and in Beserick (1993) 30 NSWLR 510 at 515; 66 A Crim R 419 at 422, this Court held, on the basis of respectable authority, that evidence of conduct with a sexual connotation between the complainant and the accused other than that which is the subject of the offence or offences charged is relevant in two different ways:
(a) the relationship revealed may place the evidence of the events which give rise to a particular charge into their true context as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated: B (1992) 175 CLR 599 at 610; 63 A Crim R 225 at 233 (see also 602-603; 226-227); and
(b) the guilty passion of the accused revealed - or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant - is directly relevant to proving that the offence charged was committed: Ball [1911] AC 47 at 71; see also Pfennig (1995) 182 CLR 461 at 526; 77 A Crim R 149 at 199.
The evidence - once admissible for either or both of those purposes - will also necessarily make the complainant’s evidence more credible in relation to the events upon which the charges were based.
Where the Crown introduces the evidence for the former purpose, it is not tendency evidence, and the requirements of ss 97 and 101 are irrelevant: Harvey (unreported, Court of Criminal Appeal, NSW, No 60026 of 1996, 11 December 1996) at pp 5-6. Once admitted for that purpose, however, the evidence cannot also be used as tendency evidence in the sense that, because the accused had the guilty passion, he did the act in question unless it does comply with those requirements ( Evidence Act , s 95), and the judge should direct the jury that they may not use it in that way unless it does comply. The direction which the judge gave as to the use of this evidence in the present case failed to make that clear. The evidence was nevertheless admissible for the former purpose because it threw light upon the relationship at the time of the events which led to the last of the offences charged.
Where the Crown does wish to use the evidence of guilty passion as tending to show that the accused did do the act in question (and thus that the complainant’s evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with ss 97 and 101 before it may be used for that purpose.
Section 97 requires the Crown to establish that the evidence has significant probative value. That means that its degree of relevance to the events giving rise to the offence charged is important or of consequence: Lockyer (1996) 89 A Crim R 457 at 459; Lock (1997) 91 A Crim R 356 at 361. In both Harriman (1989) 167 CLR 590 at 597-599; 43 A Crim R 221 at 226-227 and S (1989) 168 CLR 266 at 275; 45 A Crim R 221 at 227-228 Dawson J has said that evidence of guilty passion, although evidence of propensity (or tendency as the Evidence Act calls it), has a sufficiently high degree of relevance as to justify its admission. (See also B at 618; 239-240, per Dawson and Gaudron JJ.) If the conduct in question is not remote from the time of the alleged offence, the Crown should usually have little difficulty in establishing that the evidence has importance in establishing the guilt of the accused, and thus that it is of significant probative value.
Section 101(2) requires the Crown to establish that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The prejudicial effect of tendency evidence is that the ordinary person thinks that someone with an established tendency to conduct himself in a certain way whenever a particular opportunity arises will yield to that tendency and so conduct himself in the circumstances of the particular case: Pfennig at 488; 169. As such evidence is circumstantial in nature, the Crown must establish that there is no reasonable view of the evidence available which is consistent with the innocence of the accused: Pfennig (at 483-484, 485; 165, 166-167). That is what is required by s 101(2): Lock (at 363); Foley (unreported, Criminal Court of Appeal, NSW, 5 June 1997) at p 8.”

21    The Crown conceded that R v AH says nothing “to contradict what was said in [R v] Beserick … about subsequent conduct and that’s the problem I’ve got in this case”. That was a reference to various statements by Hunt CJ at CL in R v Beserick (1993) 30 NSWLR 510 at 522, 523 and 525 to the effect that subsequent sexual activity is less weighty than previous sexual activity.

22    Counsel for the accused relied on two of those passages in R v Beserick. The trial judge pointed out that the interval between the charged and uncharged incidents in R v Beserick was much greater than in the present case. Counsel for the accused also submitted that the evidence was, according to Pfennig v R (1995) 182 CLR 461 at 464 and 530, tendency evidence and that s 97 had not been complied with. The trial judge expressed difficulty in finding support for the former view in Pfennig v R. Finally, counsel for the accused submitted that the evidence should be excluded under s 135 and s 137 of the Evidence Act 1995.

23    The trial judge then gave the following ruling:

“As to the evidence of other acts, that is, acts other than those charged, I agree that they are subsequent and therefore have to be weighed more carefully perhaps even than acts occurring to those charged, but they are still, in my view, within a relatively short time span. They are of similar nature. They are sufficient in my view to set the scene, otherwise we’d have the situation - I mean such evidence must be admissible in principle although it requires the application of discretionary analysis, but otherwise we’d never have the first offence being able to rely upon subsequent, quite marked, detailed and repeated abuse as indicating the commencement of the relationship.”

It is noteworthy that though R v Beserick was a leading authority on
s 409B of the Crimes Act 1900, the possible application of that section was not drawn to the attention of the trial judge.

24    In due course the stepson gave evidence of the three Queensland incidents.

25    The evidence as to the first incident was not very full. The stepson said that while he was in the toilet urinating the accused asked him to put his mouth on the accused’s penis. The following puzzling evidence was then given:

“Q. What happened before that, what led up to you putting your mouth on his penis this time in Queensland?
A. (No verbal reply).
Q. How come you put your mouth on his penis?
A. Cause he wanted me to.
Q. When you say he wanted you to, did he say something or do something to show that to you?
A. No.
Q. What was that [the stepson]?
A. Not as I remember.
Q. What happened that made you think Nicholas wanted you to put your mouth on his penis?
A. Can you please say the question again.
Q. What happened that made you think that Nicholas wanted you to put your mouth on his penis this time in the bathroom at Yeronga?
A. Morning.”

26    As to the second incident, the stepson’s evidence was that it happened in a car while the accused was driving to a farm to do work. Yet it happened at night time while the stepson was wearing his pyjamas, which contradicts the idea that the purpose of the journey was to do some work. Another curious feature of the evidence was that it concerned a series of acts carried out in the cramped space of a moving car by its driver. The stepson’s evidence was that while the accused was driving, after the accused pulled down his shorts and pulled down the stepson’s pyjamas, the accused made the stepson sit on the accused’s penis in the front seat while the stepson was facing the steering wheel.

27    The third incident related to anal penetration by the accused and the touching by the accused of the stepson’s penis in the car at a rubbish dump.

28    Counsel for the accused on the appeal pointed to the unsatisfactory evidence in relation to the first incident and the bizarre nature of the evidence of the second incident. Those features were not present in the stepson’s statements to the police, which the trial judge had read before ruling the evidence admissible.

29    There was no cross-examination on the Queensland incidents: the topic was approached, but a short adjournment was then taken at the witness’s request and the topic was not returned to.

30    The jury were directed that the only purpose of the evidence was to give them an appreciation of the relationship between the accused and the complainant and to put the acts with which the appellant was charged in the context of the whole relationship. The jury were also directed that they could not use this “relationship evidence” as tendency evidence.

31 On appeal counsel for the accused advanced two arguments. One was that the evidence was inadmissible by reason of s 409B(3) unless paragraph (b) of that section applied, which it could not. The other was that the evidence should be excluded under s 137 of the Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice.

32 Section 409B(3)(b) (which has been repealed and replaced by the Criminal Procedure Act 1986, s 105(4)(b)) at the time of the trial provided:

“In prescribed sexual offence proceedings, evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is admissible except: …
(b) where it is evidence relating to a relationship which was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant; …
and its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.”

It was common ground that these were prescribed sexual offence proceedings, that the stepson was a complainant, and that the evidence of the Queensland incidents was evidence of the stepson’s sexual experience or activity.

33 The accused’s submission on s 409B(3)(b) potentially raises two issues. The first is whether the Queensland evidence as to the uncharged conduct was evidence relating to a relationship which was existing or recent at the time of the charged Albury conduct. The second was whether it could be said that its probative value outweighed any distress, humiliation or embarrassment which the stepson might suffer as a result of its admission. It is notable that the accused was relying on a provision introduced in order to benefit persons complaining of sexual misconduct, not to benefit the accused. Section 409B is an example of different types of legislation introduced in the 1970’s and 1980’s in England and Australia to deal with the fact that the common law was not thought to offer satisfactory protection to persons complaining of sexual misconduct from oppressive cross-examination on their prior sexual lives. But since s 409B(3) is cast in language which renders the particular evidence inadmissible, it is open to persons in the position of the present accused to invoke it if the circumstances of their cases fit its terms, and the Crown did not contend to the contrary.

34 In my judgment it is undesirable to decide this appeal on any basis wider than the narrowest basis necessary to decide it. The appeal can be decided, and ought to be decided, by holding that the evidence ought to have been excluded after an application of the balancing process set out at the end of s 409B(3), and on the ground of s 137. Accordingly, it is not necessary to consider the difficult questions of whether the Queensland evidence was admissible as “relationship evidence” independently of s 97 notwithstanding non-compliance with its safeguards, and whether it can be said that the evidence of the Queensland incidents, or any other evidence, established a relationship which was existing or recent at the time of the Albury incidents within the meaning of s 409B(3)(b). The authorities in relation to these issues bristle with problems: see, for example, Gipp v R (1998) 194 CLR 106 and R v Fraser (NSW Court of Criminal Appeal, unreported, 10 August 1998). It is undesirable to seek to resolve them in their practical application except in a case which renders their resolution critical for its outcome. This is particularly so where the trial judge was not asked to turn his mind to the terms of s 409B(3)(b).

35    In the course of the trial a nine year old child was asked to describe two incidents happening at about the same time in Albury in support of the prosecution’s charges. The child had to describe what happened at his stepfather’s hands when he was seven. It would be expected that that experience would cause him distress, humiliation or embarrassment. The eliciting of the further evidence of the three Queensland incidents would, in my judgment, be likely to cause further distress, humiliation or embarrassment. Those emotional states would be likely to flow not only from the giving of the evidence in chief but also from exposure to cross-examination on the evidence in chief. The fact that there was no cross-examination by counsel for the accused on the three Queensland incidents so that in fact there was no distress, humiliation or embarrassment arising from cross-examination does not alter the fact that at the time when the evidence was admitted, distress, humiliation or embarrassment were emotional states which the stepson “might” suffer as a result of the admission of the evidence. There is some indication that the stepson in fact experienced distress, humiliation or embarrassment: this may explain the mode in which he gave evidence of the first Queensland incident, and he did ask for an adjournment as soon as the cross-examiner moved on to the subject of the Queensland incidents.

36 The probative value of the evidence, even if it were admissible under the general law as relationship evidence and even if s 409B(3)(b) was satisfied before moving to the balancing operation, was slight. For present purposes those propositions have been assumed. But it is to be remembered that in R v Beserick (1993) 30 NSWLR 510 at 525 Hunt CJ at CL said:

“It could not usually be said that the evidence of subsequent sexual activity is relevant in order to place in its proper context the evidence of the earlier activity upon which the offence charged is based. I am not prepared to say that it could never be relevant for that purpose, but the cases in which it would be relevant for that purpose must surely be unusual ones.”

He also said at 522-3:

“Where the sexual activity between the complainant and the accused has taken place over a long period, it is the usual practice of the Crown to charge the accused in relation to a number of 'representative’ incidents which sufficiently reflect the total criminality involved, spread over the whole of the period …
On the other hand, where the Crown does not follow that usual practice … , and only one offence is charged, the limits upon the proper admission of such evidence must inevitably be greater … [If] the Crown contemplates that it is reasonably necessary to lead evidence of sexual activity over a long period other than that giving rise to the offence charged, it will in most cases also be appropriate for a number of so-called ‘representative’ offences to be charged. If for some reason in the particular case it is not so appropriate, then the ordinary consequence would usually be that evidence of the other sexual activity will be limited by the trial judge in the exercise of his or her discretion.
In each situation, I repeat what I said before. In general, the weight to be afforded to subsequent sexual activity will be less than that afforded to previous sexual activity, hence the proper exercise of discretion will more readily favour the admission of evidence of the previous rather than the subsequent kind.”

Here there was in substance only one offence charged (though there were two offences, they arose out of a single incident); it was not appropriate to charge “representative” offences because there were none; the Queensland incidents were subsequent to the Albury incidents; a necessary consequence, according to Hunt CJ at CL, is that less weight must be afforded to them, and the necessary consequence is usually that evidence of them will be limited in the court’s discretion. Not only were the Queensland incidents later in time than the Albury incidents, but they were vague in time and in particularity in every respect; so far as they were particular, the details were conflicting and unconvincing to a degree. The evidence came from a young child exhibiting signs of distress. The Crown did not tender the Queensland evidence as disposition evidence, and the trial judge reminded the jury that it was not tendered for that purpose. Being tendered only as giving a context or a background, it had to meet less rigorous tests than those created by s 97. Its probative value was correspondingly less. The lack of probative value in the evidence is indicated not only by the strange way in which the stepson’s evidence of the first Queensland incident ended, and not only by the bizarre character of the second Queensland incident (in contrast to his police statements), but also by the very brief way in which he gave the evidence of all three incidents, in contrast to the much more detailed evidence which the prosecution elicited from him in relation to the Albury incidents. In my judgment in the circumstances of this case had the trial judge been invited to turn his mind to the question, he would have, or should have, rejected the evidence pursuant to the tailpiece to s 409B(3).

37 In my judgment the evidence ought to have been rejected under s 137 also. Its low probative value was exceeded by the unfairness caused by a multiplication of questionably established discreditable instances. Though the jury were warned not to use the evidence as tendency evidence, only as relationship evidence, the distinction is difficult to grasp at the best of times. The vagueness of the evidence, particularly as to date, made it prejudicial in the sense that it was difficult for the accused to respond to it except by a denial.

38    I would allow the appeal so far as it rests on ground 2.

Ground 3: failure to direct the jury about the unreliability of the stepson’s evidence

39 The evidence concluded late on the first day of the trial. On the second morning, after dealing with other matters, the trial judge inquired whether counsel desired any particular directions: he specified s 165 of the Evidence Act. Counsel for the accused asked for a s 165 direction on the ground of the age of the stepson. The trial judge experienced difficulty in seeing what useful direction could be given in relation to the obvious fact of the child’s age. In particular the trial judge asked: “what’s the warning I should give them?” The submission of counsel for the accused boiled down to a contention that the trial judge should warn the jury that they had to take into account the potential unreliability of the stepson’s evidence because he was a child.

40    The trial judge gave that warning and told the jury to approach the stepsons evidence “with some circumspection”. The trial judge then continued:

“I know of no evidence that says children are inherently unreliable or any less or more reliable than adults, nonetheless he is a child and you will bear that fact in mind.
You will bear it in mind in a number of ways of course, not only because of the risk of unreliability but because of the limitations which exist in relation to a child giving evidence. He does not have the experience, the vocabulary or the common sense if you like to be able to paint perhaps as complete a picture as you would expect an adult to paint had they had the same experience.
That does not mean that you give him carte blanche and say ‘I accept everything he says because he is a child and because these shortcomings are necessarily evident in his evidence’. Just bear in mind the fact that he is different.”

These passages were the subject of complaint on the appeal.

41    The trial judge also dealt with the credibility of the stepson later in his summing up in summarising the submissions of each counsel on that subject. He said that counsel for the accused had suggested the stepson was a fairly unconvincing witness in respect of whom it was difficult to extract detail or indeed to get the story told at all. He said that counsel suggested that that was an indication that the stepson was nervous and backward because he was telling lies. The trial judge said that “it might be simply an indication, as the Crown would suggest, that he is not nervous and not forthcoming because it is all a bit embarrassing and it is all a bit traumatic anyway.”

42    In summary counsel for the accused on the appeal contended that so far as the trial judge’s directions were satisfactory, they were undermined by his statement that he knew of no evidence which said that children were inherently unreliable and invited the jury to make allowances for the fact that as a child his evidence would not be as full and complete as it would have been if he had had the experience and abilities of an adult. Counsel said that the jury should have been told that the stepson’s evidence might be unreliable because of the following features:

“1. The complainant was very young when the incident was alleged to have taken place (seven years old) and that more than two years had passed since the incidents were alleged to have occurred. In these circumstances, the cognitive development of a young child may make it difficult for him to reliably appreciate incidents when they occurred and to recall them accurately some years after the event.
2. The complainant made his allegation in the context of a bitter and acrimonious marital break-up. He was living with his mother from November 1997 until the time of the trial and had had no contact whatsoever with the appellant. In these circumstances, a young child may be improperly influenced by others - especially adults and may allow their imaginations to run away with them and to invent untrue stories. This is especially true if they think that it might please one of their parents.
3. Some young children tend to confuse fantasy with fact. Their comprehension of the seriousness of telling the truth may not be properly and fully formed.”

The argument cited authorities dating from a time before the enactment of s 165 and the abolition of corroboration warnings effected by s 164(3) pointing out the dangers which the common law perceived in the evidence of child complainants in sexual cases.

43 As counsel for the accused conceded, leave was required pursuant to rule 4 of the Criminal Appeal Rules for this ground to be relied upon. In my judgment leave should be refused. Counsel for the accused at the trial drew the trial judge’s attention specifically to the need for an s 165 warning and in debate with the trial judge arrived at the terms of that warning. No complaint was made at the close of the summing up about the warning which had been given. Trial counsel are in a position of great advantage over appellate counsel and appellate courts in estimating whether a direction which had been requested was adequate to meet the exigencies of the occasion. The failure to complain indicates that there was nothing substantial to complain about. The three factors of which the jury should have been told, according to the submission advanced on appeal, were not raised with the trial judge. The suggestion that the stepson’s evidence had been improperly influenced by his mother was not put to either of those witnesses.

44    Whether or not the trial judge’s direction could have been improved, it does not appear to be such that as a matter of justice leave should be granted and the appeal allowed on this ground.

Orders

45    I would allow the appeal, quash the convictions and order a new trial.

46    JAMES J: I agree with the judgment of Heydon JA.

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