R v DBG

[2002] NSWCCA 328

Reported Decision: (2002) 133 A Crim R 227

New South Wales

Court of Criminal Appeal

CITATION:	R v DBG [2002] NSWCCA 328
FILE NUMBER(S):	CCA 60889/01
HEARING DATE(S):	07/08/02
JUDGMENT DATE:	10 September 2002
PARTIES :	Regina v DBG
JUDGMENT OF:	Meagher JA at 1; Simpson J at 2; Howie J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/41/0054
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ

COUNSEL :	P. Barrett - Crown J.C. Papayanni - Appellant
SOLICITORS:	S. O'Connor - Crown Jeffreys and Associates - Appellant
CATCHWORDS:	Criminal Law - sexual offences - delay in complaint - whether warnings and directions adequate - verdicts unsafe.
LEGISLATION CITED:	Evidence (Children) Act 1997 - ss 11, 14, 18, 25 Criminal Appeal Rules - rule 4 Evidence Act 1995 - ss 60, 66(2), 102, 108(3) Criminal Procedure Act 1986 - ss 107
CASES CITED:	Longman v The Queen (1989) 168 CLR 79 R v SJF [2000] NSW CCA 294 R v Johnston (1998) 45 NSWLR 362 Doggett v The Queen (2000) 75 ALJR 1290 R v BWT [2002] NSWCCA 60 Graham v The Queen (1998) 195 CLR 606 Pfennig v The Queen (1995) 182 CLR 461 Papakosmas v The Queen (1999) 196 CLR 267 R v Lillyman [1896] 2 QB 167 Kilby v The Queen (1973) 129 CLR 460 S v The Queen (1989) 168 CLR 266 R v Baker; ex parte AG(Qld) [2002] 1 Qd R 274
DECISION:	Appeal be allowed, the convictions and sentences be quashed and there be an order for a new trial.

60889/01

MEAGHER JA
SIMPSON J
HOWIEJ

TUESDAY 10 SEPTEMBER 2002

R v DBG

Judgment

1 Meagher JA: I agree with Howie J.

2 Simpson J: I agree with Howie J.

3 Howie J: The appellant was arraigned before a jury in the District Court on an indictment containing two counts as follows:

For that he between 1 January 1996 and 29 August 1996 at Wyong in the State of New South Wales did have sexual intercourse with [the complainant], a person under the age of six years.
Further, that he between 1 September 2000 and 2 October 2000 at Shoalhaven Heads in the State of New South Wales did have sexual intercourse with [the complainant], a person above the age of 10 years and under the age of 16 years, namely 10 years in circumstances of aggravation, namely that at the time of the sexual intercourse [the complainant] was under the authority of himself.

4 He was convicted by a jury of each count on the indictment and sentenced by Judge Armitage as follows: Count 1 - imprisonment for eight years to date from 12 October 2001 and to expire on 11 October 2009 with a non-parole period of six years to expire on 11 October 2007; Count 2 - imprisonment for six years to date from 12 October 2001 and to expire on 11 October 2007 with a non-parole period of four years and six months to expire on 11 April 2006.

5 The appellant appeals against both the convictions and the sentence imposed upon him. The following grounds of appeal have been relied upon before this Court in the appeal against conviction:

Ground 1. His Honour erred in law on both counts in his directing and/or failing to direct the jury adequately and properly as to the evidence of the complainant.

Ground 2. His Honour erred in law in failing to warn the jury that it was "dangerous to convict".

Ground 3. His Honour erred in law in his directing and/or failing to direct the jury as to


(a) delay in respect of both counts.

(b) the fact that there was no complaint as to the first count and the delay in complaint in respect of the second count

(c) the use to which and effect of the complaint after the second count in respect of the complainant's credit and the appellant's defence in respect to both counts.

Ground 5. The verdicts of the jury were unsafe and gave rise to a miscarriage of justice


(a) in that the offences charged were not identified with sufficient particularity to differentiate them from the allegations of offences not charged.

(b) in that they were unreasonable and not supported by the evidence and were unsafe and unsatisfactory.

Grounds 4 and 6, as originally filed, were not relied upon on the hearing of the appeal.

6 The complainant was born on 15 December 1989 and lived with her mother and the appellant at Wyong during 1996. The complainant alleged that on one night between January and August 1996, while her mother was out of the house working, the appellant engaged in intercourse with her by inserting his penis into her vagina while she was lying on her back on the double bed in the appellant’s bedroom. She said that this was the first act of intercourse between the appellant and herself and it hurt her, causing her to cry. The appellant ejaculated onto her stomach and then cleaned her with a towel that was beside the bed. This incident gave rise to the first count on the indictment.

7 The second count related to what the complainant alleged was the last occasion on which the appellant sexually assaulted her. This incident occurred in September 2000 when the complainant was staying with her grandmother, Ms Gray, in Shoalhaven Heads for the school holidays. At this time the appellant was living in the same area with his daughter, Mickayla, he and the complainant's mother having separated. On some occasions during this period the complainant stayed at the appellant's house when her grandmother was working late. The complainant alleged that on one of these occasions she was sleeping in a bedroom with Mickayla when the appellant came into the room and told her to go into his bedroom. There he undressed and told her to take off her clothing, which she did. The appellant began kissing her with an open mouth. While she was lying on her back on his bed, the appellant lay on top of her and inserted his penis into her vagina while telling her, "Look at me".

8 The complainant gave evidence that, between the two occasions that gave rise to the counts in the indictment, similar incidents took place “heaps" of times. In particular she alleged that the appellant had “sexed" her on about ten occasions at Wyong while her mother was at work and about five times in his house at Shoalhaven Heads. She also alleged that he had sexually assaulted her on about six occasions when they were living in Kalgoorlie. These allegations were relied upon by the Crown as part of the relationship between the appellant and the complainant to be used by the jury to place the particular offences charged in the indictment into the context of the whole of the allegations made about the conduct of the appellant by the complainant.

9 In October 2000 the complainant and her brother, Owen, returned to their mother from Shoalhaven Heads. At that time the complainant and her family were staying at the home of Karen McMahon and her family while they waited for their own accommodation to become available. On one afternoon the complainant drew a picture of a man with an erect penis. When questioned about this by her mother and Ms McMahon, the complainant indicated that it was a picture of the appellant. When asked if he had touched her “where he was not supposed to", the complainant nodded.

10 The complainant was taken by her mother to a paediatrician, Dr Packer, who on 31 October 2001 examined the complainant. The doctor found that the complainant's genital area was such as to suggest severe damage to the hymen over a period of time. Dr Packer gave her opinion that the damage had been caused by repeated episodes of penetration of the hymen by a penis or an object of similar dimensions. She was of the view that the injuries were more likely to have been caused over a period of months or years rather than over a period of weeks. Dr Packer received a history from the complainant of sexual abuse of her by the appellant on a number of occasions. In particular, the complainant told her that the appellant would put on "rude movies" and then touch her all over with his hands. She said that he would put a "cover" on his penis and would use cream. Dr Packer believed, from the history she received from the complainant, that most episodes of sexual assault had occurred earlier that year, that is 2000. However, she stated that children, who had suffered episodes of abuse over a period of time, initially focused on the most recent episodes of abuse until questioned further about the matter.

11 The complainant was questioned by a police officer by way of a recorded interview on 7 November 2000. The appellant was arrested shortly thereafter and on 23 November participated in a lengthy interview with police during which he denied the allegations made by the complainant.

12 The complainant's grandmother, Ms Gray, gave evidence that the complainant and her brother came to stay with her at Shoalhaven Heads sometime before 10 September 2000 for the school holidays. She said that the appellant offered to mind the children while she was at work. She usually finished work about 6 pm but occasionally had to work late and on these occasions the children stayed overnight at the appellant's house. This had occurred on five occasions. Ms Gray said that sometime between 25 and 29 September she had a conversation with the appellant about the children's bedtimes. The appellant told her that the complainant was up until 1:30am. Ms Gray indicated to the appellant that she did not like the children staying up so late. A day or two later the complainant's mother arrived to take the children back to Canberra.

13 Ms Gray gave evidence that about two weeks later she received a telephone call from the complainant's mother. As a result of that conversation she went to see the appellant and said to him "You know what [the complainant's mother] accused you of? You've been interfering with [the complainant]”. Ms Gray said that the appellant had just sat on a stool, saying nothing. She then said to him "Aren't you angry that she says things like that?" He replied, "Yeah, of course I am, I wouldn't do anything to hurt her".

14 Ms McMahon, with whom the complainant’s family was living in Canberra, gave evidence that on a day prior to 15 October 2000, the complainant's mother asked her to go outside and speak to the complainant who had been drawing. Ms McMahon saw a picture of a man with a large penis and testicles and asked the complainant, “Who is this and what is this picture?" The complainant began to cry and said it was of the appellant. Ms McMahon asked if he had “put it inside her” and the complainant said, "Yes". The complainant told Ms McMahon that this had happened when her mother went to work at night and the appellant would put "dirty pictures" on the television and would then call her into the room. Ms McMahon initially kept the picture, which she placed on top of a refrigerator, but after two or three months, when she had heard nothing further from the complainant's mother, she threw it away.

15 The complainant's mother gave evidence that she commenced a relationship with the appellant in October 1995. In early 1996 she lived with the appellant and the complainant in a house at Wyong for a few months. During that period two teenaged couples lived as boarders with them for a period of about one and half months. At this time the complainant's mother worked three or four nights a week and the appellant took care of the complainant at those times. The family moved to Kalgoorlie in October 1998 where the appellant looked after the complainant and Mickayla while she was working at night. In about August 1999 they moved to Shoalhaven Heads where they lived in a caravan park until she separated from the appellant about two or three weeks after they arrived there. From about 23 December 1999, when the complainant and her mother moved to Rylstone, until the September 2000 school holidays, when the complainant and her brother went to stay with Ms Gray, the complainant had no contact with the appellant.

16 The complainant's mother told the jury that in early October 2000 she and her then family went to stay with Ms McMahon in Canberra. On 8 October the complainant and her brother were outside drawing when Owen came into the house and told her that the complainant was drawing rude pictures. She went outside and saw a picture of a man with an erect penis. She asked the complainant why she was drawing pictures like that and the complainant burst into tears. When asked if someone had touched her "where they're not supposed to", the complainant replied that they had. When the complainant's mother asked who it was, the complainant named the appellant. The complainant's mother then asked Ms McMahon to go and talk to the complainant. A short time later she contacted the Canberra Children's Hospital.

17 The appellant gave evidence that he was not guilty of the charges in the indictment and relied upon his denials of the allegations in his interview with police. It was his case that the complainant had lied about the allegations at the behest of her mother so that she could gain custody of Mickayla. The appellant gave evidence that, during the period when the complainant was staying with her grandmother in Shoalhaven Heads, an argument had taken place between himself and the complainant's mother in which she had said words to the effect of "I'm going to get you". She also said, "You know what I am like, you dog, I'll do anything to get you back". The appellant gave evidence that the complainant had stayed at his house in Shoalhaven Heads only twice and on one occasion with Owen. He agreed that he had in his possession a pornographic video as described by the complainant but denied that he had ever shown it to her.

18 The first ground of appeal complains of a failure of the trial judge to give the jury a warning during the course of his summing up in respect of the fact that the complainant's evidence was given both by way of a tape-recorded interview with an investigating police officer and by closed-circuit television under the provisions of the Evidence (Children) Act 1997.

19 Section 11 of that Act provides, in effect, that a child may give evidence in chief by way of the playing of a recording of the questioning of the child by a police officer made in connection with the investigation of the commission of an offence and, during the course of which questioning, the child has made allegations against the accused. If a child witness gives evidence in this manner, the child must be available for cross-examination and re-examination either orally in the courtroom or in accordance with an arrangement made under Part 4 of the Act. Section 14 provides

If a child gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Part in any proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.

20 Section 18 of that Act entitles a child to give evidence by means of closed-circuit television in proceedings in which it is alleged that a person has committed a “personal assault offence”, which includes an offence of the nature of those charged in the indictment. Section 25 relevantly provides:

25(1) In any criminal proceedings in which the evidence of a child is given by means of closed-circuit television facilities or any other similar technology (by virtue of section 18), the judge must:


(a) inform the jury that it is standard procedure for children's evidence in such cases to be given by those means, and

(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities or that technology.

21 Although it is conceded that the trial judge complied with both ss 14 and 25(1) in his initial remarks to the jury before the evidence commenced, it is submitted that his Honour was required to repeat what he had said at that time during the course of the summing up and that his failure to do so was an error.

22 For the purposes of dealing with this ground of appeal it is unnecessary to set out in detail what His Honour said to the jury concerning the fact that the complainant was to give evidence both by way of a taped recording of the interview with the investigating police officer and that she was giving evidence before the jury by way of closed-circuit television. It is sufficient to state that there was no suggestion on the hearing of this appeal that his Honour in any way misdirected the jury or failed to comply with the requirements of ss 14 and 25(1) of the Act. The jury was fully and effectively informed and warned of the matters set out in those sections.

23 For my part, I believe it is highly preferable that a trial judge gives such information and warnings as are required in respect of a particular part of the evidence that is to be given in a trial before a jury either immediately before or immediately after the giving of that evidence rather than to wait to fulfil that obligation during the course of the summing up. Generally speaking, it would be expected that any information or warning that a jury is required to consider in their assessment of a particular piece of evidence would have considerably more impact upon the jury if given at a time proximate to the evidence. This does not mean that it would not be advisable, or even necessary in some cases, to convey that information or warning again during the course of the summing up. But whether such a course is necessary in order to ensure a fair trial and one according to law will depend upon all the circumstances of the particular case and the nature of the information or warning that must be given.

24 In the present case his Honour said all that was necessary in order to comply with ss 14 and 25(1) immediately before the substantive part of the trial commenced. The complainant was the first witness called by the Crown immediately following the Crown Prosecutor’s opening. There is no reason to suppose that the jury would have forgotten what his Honour had said to them about the manner in which they were to approach the complainant's evidence when her evidence commenced by way of closed-circuit television and then the playing of the tape-recorded questioning of her by the police officer.

25 The trial commenced on 8 October 2001 and the trial judge began his summing up three days later on 11 October. The jury embarked upon its deliberations first thing the next morning. During the course of the summing up, when directing the jury on the way they were to approach their task of assessing witnesses in the case, his Honour made observations concerning the difficulty the jury might have in taking into account the demeanour of the complainant by reason of the fact that she gave evidence by closed-circuit television. It is unnecessary for present purposes to detail what the trial judge said to the jury in that regard. At this point in the summing up, his Honour might have again reminded the jury of the matters contained in ss 14 and 25(1) of the Act but it was not obligatory upon him to do so and no request was made that he do so.

26 The ground as amplified in oral submissions was as follows. In the summing up, after his Honour had given various directions, comments and warnings to the jury and before moving on to canvass the evidence, the trial judge said to the jury “these are the directions of law that I am required to give you”. His Honour had not at this point conveyed to the jury, in the summing up, the information and warning required under the sections. Therefore, the jury might have disregarded what his Honour had said earlier about the manner in which the complainant had given her evidence.

27 This Court should eschew such an overly technical, formalistic and unrealistic approach to a consideration of whether a trial was in accordance with the law. But there is an equally technical, formalistic and probably unrealistic answer that can be given to the complaint: ss 14 and 25(1) require no direction of law to be given by a trial judge. The sections merely require that certain information and warnings be given to the jury. But in any event, I am far from satisfied that there was a requirement for the trial judge in the circumstances of this case to have once again informed and warned the jury of the matters set out in the sections, or, if there was, that the failure to do so resulted in the possibility of a miscarriage of justice. Insofar as leave is required under rule 4 of the Criminal Appeal Rules to argue this ground of appeal, that leave should be refused.

28 The second ground of appeal asserts that his Honour erred in law in failing to warn the jury that it was "dangerous to convict" on the evidence of the complainant. Support for this ground of appeal is said to be found in the decision of the High Court in Longman v The Queen (1989) 168 CLR 79 and a long line of decisions both of the High Court and this Court dealing with the proper warnings, comments, and directions to be given in cases where there has been a lengthy delay between the date of the alleged offence and the trial of the accused for that offence. It is unnecessary in the present case to do more than acknowledge their existence. But I do not believe that they reveal that a rule of practice or of law existed at the time of this trial requiring that the jury be directed that it would be dangerous to convict on the evidence of the complainant whenever such delay had occurred.

29 In R v SJF [2000] NSW CCA 294 this Court was concerned with the directions and warnings given by a trial judge to a jury in a case in which there was a delay in complaint in respect of some counts and no delay in respect of others and where the complainant was alleging that there was a continuing course of conduct over the period during which the alleged offences occurred. A ground of appeal, which asserted that the trial judge was in error in failing to direct the jury that it would be dangerous to convict on the complainant's evidence or that it was necessary to scrutinise her evidence with care, was rejected. In giving the reasons of the Court for dismissing the appeal, with which reasons Stein JA and Greg James J. concurred, I said:

30 Although in most cases of delay it will be essential to warn the jury that it would be dangerous to convict, I am not persuaded that such a warning was required in the present case in order to ensure a fair trial to the accused. In the evidence before her Honour there was neither the extensive delay or the concatenation of factors which has been present in cases where the expression "dangerous to convict" has been required, see R v SJB [2002] NSWCCA 163 at [52] (a case in which the desirability of such a warning was apparent to defence counsel who requested one). Although there was a delay in respect of the first seven counts, there was none in respect of the last two counts. Whether a warning is required is not a matter of mathematical calculation, but the extent of the delay and the consequential prejudice are clearly relevant matters. The fifth, sixth and seventh counts occurred a little more than twelve months before the complaint and there could have been little actual prejudice, if any, suffered by the appellant.
31 In my view, reading the summing up as a whole and in the context of the issues raised, the jury was sufficiently warned about the approach they were to take to the evidence of the complainant, both by reason of the importance of her evidence to the Crown case and because of the prejudice to the accused caused by the delay, to ensure that the accused received a fair trial. A judicial caution was given in relation to reliance upon the evidence of the complainant, appropriate comments were made as to the effect of delay upon the reliability of the complainant and other Crown witnesses, and the jury were told in sufficiently clear terms of the potential and actual prejudice suffered by the appellant because of the delay in complaint. The summary quoted above would have been unexceptional had her Honour referred to the necessity to scrutinise the complainant's evidence with care. I cannot accept that the requirement for an appropriate summing up to meet the circumstances of a particular case has descended to such formalism that the failure to use particular words or the expression "dangerous to convict" amounts to an error of law in every case of delay

30 In the present case, I am unpersuaded that it was necessary, either as a matter of law or in order to ensure a fair trial to the appellant, that the trial judge use the phrase "dangerous to convict" in warning the jury as to the approach to be taken when assessing the complainant's evidence. No such warning was sought by an apparently competent defence counsel. However, simply because that particular warning was not required in the circumstances of this case, it does not necessarily follow that the summing up was adequate to ensure a fair trial for the accused in light of the delay in the prosecution of the allegation contained in the first count. That is a matter taken up in the next ground of appeal.

31 Ground 3 asserts that the summing up was deficient in a number of respects in relation to what his Honour said to the jury as to the way they should approach the evidence before them. The first complaint under this ground is that his Honour failed to direct the jury as to the effect of delay in the prosecution of both counts in the indictment. As I have already indicated, there was no complaint made by the complainant in respect of the conduct of the appellant until October 2000, yet she alleged a history of sexual abuse upon her from some date between January and August 1996. There was thus a delay of over four years before any allegation was made about the commencement of the alleged sexual assaults committed by the appellant.

32 It is now clearly established that, where delay in the prosecution of an offence has resulted in prejudice to the accused at his trial, the trial judge must make the jury aware of the existence of the prejudice and indicate to them how they are to use that matter in their assessment of the evidence in the Crown case, see R v Johnston (1998) 45 NSWLR 362 at 376-377; Doggett v The Queen (2000) 75 ALJR 1290. On some occasions the prejudice or potential prejudice will be such that, in the circumstances of the particular case, the jury should be directed that it would be dangerous to convict on the evidence of the complainant and that they should do so only after scrutinising that evidence with care having regard to the warning given to them. Although this was not a case that required such a warning or direction, it was a trial in which his Honour should have averted to the prejudice to the accused caused by the delay in complaint in order to ensure that he received a fair trial.

33 The law now requires that, in any case of significant delay in the prosecution of an offence, the jury is to be directed that the accused has been prejudiced in his defence of the charge by the delay and that matter is to be taken into account by the jury in determining whether to act upon the evidence of the complainant. Such a direction is to be given even if no actual prejudice can be identified: R v BWT [2002] NSWCCA 60. If it can be shown that actual prejudice has been caused to the accused in defending himself, that prejudice is to be identified for the jury with particularity; R v Johnston, above. In my opinion the delay in complaint and the consequential prejudice to the accused in defending the first count required the trial judge to bring that matter to the attention of the jury and to direct them as to the need to consider that prejudice in determining whether or not to accept the complainant’s evidence beyond reasonable doubt.

34 On the hearing of the appeal the Crown Prosecutor argued that, in the circumstances of the present case, it was unnecessary for any comment, warning or direction to be given to the jury as to the effect of delay. This, it was submitted, was because the delay and consequential prejudice were not issues ventilated by the defence during the course of the trial. The defence case was that the allegations made by the complainant and the evidence of complaint to her mother and Ms McMahon were fabricated so that the complainant's mother could gain custody of Mickayla. In those circumstances, so the argument ran, no significant prejudice could have been suffered by the applicant or, at the very least, no direction or warning was required to be given by the trial judge as to the effects of delay where none was sought by defence counsel.

35 In my opinion that argument must be rejected. The necessity for a trial judge to ensure a fair trial for the accused is not circumscribed by the manner in which the trial is conducted by defence counsel or the particular defence relied upon by the accused. The first two propositions stated by Spigelman CJ in R v Johnston, above, at 474 emphasise the obligation falling upon the trial judge and are as follows:

"(i) Whenever it appears to a trial judge that delay, whether occasioned by the 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 the 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.

36 Rather than relieving a trial judge from taking what course is necessary to ensure a fair trial, the conduct of the defence may impose upon the trial judge the burden of ensuring that the jury is not distracted from a proper assessment of the prosecution case by the nature of the defence or the evidence of the accused. But in any event, the obligation imposed upon the trial judge in cases of delay has become more burdensome since R v Johnston was decided. Prejudice to an accused in defending himself is now presumed as a result of delay in the prosecution of a sexual assault offence and, accordingly, in any case of significant delay the jury must have that prejudice brought to their attention; R v BWT, above.

37 But significant delay does not merely affect the ability of the accused to defend himself by depriving him of the opportunity to gather evidence which might at least place a doubt upon the Crown case. It can also prejudice the accused in a more subtle way, as occurred in the present case. By reason of the delay, the complainant was necessarily vague as to the specific occasion upon which she alleged that the first act of intercourse occurred. She was also unable to supply any particularity to the history of sexual assaults that she alleged had been committed upon her except by relating them to the place where they occurred.

38 The difficulty for an accused person in rebutting that evidence is obvious, at least to the legal mind. On the other hand, a jury might readily accept that, even if the complainant were telling the truth about her allegations, she would, by reason of her young age, the delay and the number of incidents of sexual abuse alleged by her, have difficulty giving any but the barest detail of the circumstances surrounding them. Such a situation might even engender some sympathy for the complainant when those defending the accused require particularity and consistency in her evidence and criticise her when it is not forthcoming. Where such a possibility arises, it is necessary for the trial judge to bring home to the jury the consequences of delay upon the accused’s ability to test the Crown’s case. It may even be necessary for the trial judge to make it clear to the jury that the delay may have caused the Crown witnesses to become unreliable or in some other way have weakened the Crown case rather than to allow the jury to act on the basis that the delay might excuse or explain apparent defects in the evidence of those witnesses.

39 In the present case, rather than warn the jury about the effect of the delay upon the ability of the accused to defend himself or to test the Crown case, the trial judge reminded the jury of a submission made by the Crown Prosecutor on the effects of delay as follows (my emphasis):

Well members of the jury what I want to do at this stage is in a very broad way indicate to you how it seems to me that the Crown endeavours to put its case. The case for the Crown is in essence that [the complainant's] evidence is credible and reliable and it is safe for you to act upon it. Any inconsistencies or discrepancies in that evidence the Crown says are of a minor nature and the sort of things you would expect [of] the evidence of a truthful 11 year-old girl casting her mind back to events that took place between 1996 and September 2000 .

40 In the present case the failure of the trial judge to refer to the effects of delay and its impact upon the appellant's ability to defend himself from the allegations made against him resulted in the possibility of a miscarriage of justice notwithstanding that neither counsel assisted the trial judge by seeking such comments, warnings, or directions as were necessary to ensure a fair trial. Therefore, I would grant leave under rule 4 for the appellant to rely upon this ground of appeal and uphold it.

41 The second aspect of the summing up about which criticism is made in the third ground of appeal is that relating to his Honour's directions in respect of the evidence of complaint. As I have indicated earlier in this judgment, evidence was admitted before the jury of an occasion in early October 2000 when the complainant told her mother, and then Ms McMahon, that the accused had sexually interfered with her. This allegation arose in circumstances when the complainant had been questioned about a drawing she had made of a male figure with an exaggerated penis.

42 That evidence was not relied upon by the Crown as recent complaint admitted under s 66(2) of the Evidence Act and which could have been used by the jury as evidence of the truth of the allegations contained in the complaint or as evidence of conduct consistent with her allegations. Rather the evidence was admitted on the basis that it rebutted the suggestion to be made to the complainant that she had fabricated the allegations against the accused at the instigation of her mother. The evidence was admitted by the trial judge relying upon s 108(3) of the Act.

43 It is submitted on behalf of the appellant that the evidence was admitted notwithstanding that his Honour had not granted leave to the Crown as required under that section. It was further argued that, in any event, the evidence was not admissible for the purpose for which it was admitted. Reliance was placed on the decision of the High Court in Graham v The Queen (1998) 195 CLR 606 to support this contention. It was further submitted that, in light of the fact that the accused asserted that the evidence of the complaint was itself fabricated, the evidence could not be admitted to support the complainant’s credibility.

44 In my view it is unnecessary to deal with this third argument in any detail. The proposition that, because an accused asserts that evidence of a complaint was fabricated it necessarily follows that the evidence is rendered inadmissible, is patently untenable. It is matter for a jury to decide whether or not to accept a witness’s account that the complainant made an allegation that the accused sexually assaulted her. I can think of no instance where it has been held that, simply because evidence is disputed by one of the parties to the proceedings, that evidence is rendered inadmissible or deprived of any relevance it might otherwise have had.

45 The fact that a piece of evidence is in dispute might be a relevant consideration in determining whether or not to reject the evidence in the exercise of a discretion that for some reason or other arises. This is because the fact that the evidence is disputed affects its weight, see Pfennig v The Queen (1995) 182 CLR 461 at 482. In the present case the fact that the evidence of complaint was disputed might be a matter relevant to the decision whether or not to grant leave to the Crown to call the evidence. But, in my view, that is the only relevance of the fact that the accused was asserting that the evidence of complaint was itself fabricated by the witnesses who gave the evidence.

46 No transcription was made of the argument concerning the admissibility of the evidence of the complainant’s mother or Ms McMahon in respect of the allegations made by the complainant to them. The following is recorded in the transcript:

Medical report of Dr Susan Packer of 3/11/00 given to his Honour. On Page 2 of the report, the last two paragraphs and page 3, paragraph 1 will be led in evidence as a relevant history provided by the complainant. The evidence which will be led from the doctor will be as a history that forms the basis of her opinion not as complaint evidence. The Crown asked to restrict the evidence under section 136 of the Evidence Act as going to the credit of the Complainant only.

The Crown will also be calling Karen McMahon and the mother of the complainant,…..

On 8 October 2000 two separate conversations were held with the complainant. This is not admissible evidence of complaint, but the Crown seeks to lead this evidence under section 108(3) of the Evidence Act and also to show the credit of the complainant.

Discussion ensured re section 192 of Evidence Act.

Restrict evidence of credit under section 136 of Evidence Act.

The Crown questioned whether the complainant was competent to give evidence under oath under section 13(1) of the Evidence Act. She would be able to give others warned evidence, but this would be a matter for his Honour. Discussion ensued as to what will be done.

The Crown indicated what parts of the ERISP dated 7/11/00 would be removed. Page 25, questioned 215-222 inclusive.

Mr Hoare indicated he has no objection to the manner in which the evidence will be admitted. Complaint is admissible under section 108(3)(b) because defence is one of fabrication. The complaint evidence is not corroborative.

47 In light of what is recorded in the transcript, and, in particular, the apparent concession made by the appellant's then legal representative that the evidence of complaint was admissible, it is almost disingenuous for a protest now to be raised that his Honour admitted the evidence without formally granting leave. However, in oral submissions counsel for the appellant did not seek to argue that the trial miscarried by the failure, if there was any, to grant leave. He accepted that the appellant was bound by the conduct of his representative at the trial and was content to rely upon the grounds of appeal concerned with the directions his Honour gave the jury about the evidence.

48 The first argument relied upon was to the effect that his Honour could not give any direction to the jury as to the use to be made of the evidence of complaint because there was no legitimate use to which it could be put. It was submitted that, because the evidence had been erroneously admitted after the concession made by defence counsel, his Honour should have said nothing about it at all.

49 To consider this and the other criticisms made of the directions given with respect to the evidence of complaint, it is necessary to very briefly summarise the chronology of events. The complainant alleged that the first act of sexual misconduct was that in the first count which occurred sometime between January and August 1996. There was, thereafter, repeated acts of sexual intercourse until some time in September 2000. The first occasion when the complainant raised any allegation of sexual misconduct by the appellant toward her was 8 October 2000, when she was questioned by her mother and then Ms McMahon. Dr Packer examined the complainant on 31 October and she was eventually interviewed by the investigating police officer on 7 November 2000.

50 It is clear that the evidence of what the complainant said to her mother and Ms McMahon on 8 October could not have been admitted as evidence of recent complaint in respect of either count in the indictment. Indeed the Crown did not seek to lead the evidence on that basis. It was admitted in order to rebut the suggestion that the complainant had fabricated her allegations. The evidence was only relevant if in some way it could assist the jury in determining whether that suggestion might possibly be true. In Graham v The Queen, above, at 609 in the joint judgment of Gaudron, Gummow and Hayne JJ it was stated:

[8] In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the "credibility rule" -- the rule that evidence that is relevant only to a witness's credibility is not admissible (s 102). Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication.

51 I have some difficulty, on the material before this Court and without hearing full argument on the matter, in appreciating how it would have assisted the members of the jury in determining whether the allegations made to the doctor on 31st October 2000, to the police on 7 November 2000, and during the trial were fabricated by the jury being made aware that the complainant had made similar allegations on 8 October 2000 to her mother and Ms McMahon. Even if it might have had some little relevance to a consideration of the allegation in the second count in the indictment, it seems to me to have had no relevance at all to the allegation in the first count. I make these comments merely because, as it seems to me that this appeal must be allowed, the convictions quashed and a new trial ordered, I do not wish it to be assumed by the parties or any future trial judge that this Court has accepted that the evidence was admissible under s 108(3) or that leave ought to be given to the Crown to adduce it.

52 But it is unnecessary for the disposition of this appeal to determine whether the evidence should have been placed before the jury. As I have already indicated, the only ground argued about the admissibility of the evidence was that his Honour had not actually granted leave to the Crown. Counsel for the appellant conceded that, even if that ground of appeal were successful, it would not justify the setting aside of the convictions. Similarly, it is unnecessary to determine whether his Honour could have given any sensible direction to the jury as to the use to be made of that evidence assuming that it was properly before the jury. That complaint is, in effect, an argument about the admissibility of the evidence in a different guise and should not be entertained.

53 However, it was further argued that, even if the evidence had been properly admitted, the directions given by the trial judge in respect of that evidence were erroneous. It is, therefore, necessary to set out what his Honour said to the jury in respect of the evidence of the complainant's mother and Ms McMahon. It was as follows (my emphasis)

“Now, members of the jury, I need to say this to you about that evidence. The Crown has led this evidence in order to meet the suggestion made by the accused that the complainant, [ ], has not told you the truth in her evidence here in court. The Crown argues that the time at which the complaint was made, well that was October, very shortly after this last alleged incident, the time at which the complaint was made together with the circumstances in which it was made demonstrate that her version has always been consistent. In other words the evidence is relevant to the credit of [the complainant] as a witness in that it may increase the weight which you give to her evidence as to the alleged sexual assault with which the accused is charged . However, it is not evidence as to what actually happened between the complainant, [ ], and the accused as the person to whom the complaint was made was not present and did not see what happened between them

Now on the other hand the defence says that you would not accept the evidence of these two witnesses. It is put to you by the defence that they are good friends and it is pointed out to you that the picture allegedly drawn has mysteriously disappeared and, as I understand it, it is suggested to you that this story has been concocted between these two women. The submission made by the defence is that [the complainant] did not say what those two women alleged she said."

After referring the jury to the competing arguments made by the Crown and the defence in respect of that evidence, his Honour went on:

“However I remind you that the evidence is not there to prove what actually happened. It is there because in the Crown's submission it is relevant to [the complainant's] credibility. The accused, through his counsel, Mr Hoare, has put to [the complainant] that the alleged sexual assaults did not take place. The Crown submits that the evidence of [the complainant's] mother and Karen McMahon shows that within a few weeks of the assault allege[d] [in the] second charge [the complainant] actually told them that she had been sexually assaulted. The Crown puts to you that that demonstrates [the complainant's] consistency .”

54 It is argued on behalf of the appellant that these directions were erroneous in that they gave the evidence a greater relevance to the credibility of the complainant than was appropriate for evidence admitted under s 108(3). In effect, it was submitted that those directions would have been appropriate only if the evidence had been admitted as recent complaint. In my view there is merit in that submission.

55 The credibility rule is found in s 102 of the Evidence Act. That rule provides that evidence, which is relevant only to a witness’s credibility, is not admissible. Evidence of recent complaint is admitted now, not as evidence relevant to the complainant's credibility per se, as it was at common law, but as first person hearsay under s 66(2) of the Act, see Papakosmas v The Queen (1999) 196 CLR 267. It is, therefore, admissible both as to the truth of the allegation made in the complaint and (because it is not relevant only to the complainant's credibility) as to the consistency of conduct on the part of the complainant that makes it more likely that she is credible in respect of the allegation she makes: R v Lillyman [1896] 2 QB 167 at 170; Kilby v The Queen (1973) 129 CLR 460.

56 As was pointed out in the passage from Graham v The Queen, which I have quoted above, the admissibility of evidence under s 108(3) is an exception to the credibility rule. It is admitted for a purpose different from that for which evidence of recent complaint is placed before the jury. It is evidence of a prior consistent statement which is relevant to rebut an attack upon the complainant's general credibility which arises either by the introduction of a statement which is inconsistent with the evidence given in the trial or because of an allegation that the evidence given in court is a fabrication, reconstruction, or the result of suggestion. Because the statement is being admitted to meet that particular attack, the timing of the making of the statement, generally speaking, will be more important than the circumstance in which the statement is made.

57 There are a number of differences between evidence of complaint admitted under s 66(2) and evidence of a prior consistent statement admitted with leave under s 108(3). The main distinction is, of course, that evidence admitted under the former section is principally evidence going to the truth of what is asserted in the complaint. But unless limited under s 136, evidence admitted under the latter section can also be used for this purpose by reason of the operation of s 60. The fact that the statement is made close to the conduct to which it relates is not a crucial requirement for admissibility under s 108(3) as it is when complaint evidence is being tendered under s 66(2). Further, the evidence is not being admitted in order to show consistent conduct on the part of the complainant following the incident alleged in the complaint but rather to restore the complainant’s credit that has been impugned either by proof that the witness has made a statement inconsistent with the evidence now being given or an allegation that the evidence that is being given is a fabrication, reconstruction or the result of suggestion. In this regard evidence admitted under s 108(3) is relevant to the complainant's credibility, either generally or in a particular respect, whereas evidence admitted under s 66(2) is relevant to the complainant's credibility in respect of the particular allegation or allegations raised in the complaint.

58 The passages which I have underlined from those parts of the summing up concerning the evidence of what was said by the complainant to her mother and Ms McMahon on 3 October show, in my respectful opinion, a confusion, or at least a blurring, of the distinction between evidence admitted as hearsay evidence under s 66(2) and evidence of a prior consistent statement admitted under s 108(3). In particular, the passage in the second quote refers to the complainant's consistency arising from the fact that she complained at a time shortly after the assault that gave rise to the second count. The direction refers to a submission to that effect made by the Crown Prosecutor to the jury in answer to an assertion put to the complainant by defence counsel that the sexual assaults had not occurred. I am unable to see how such a direction differs from that which would be given in respect of evidence admitted as recent complaint.

59 Further, the directions make no distinction between such relevance as the evidence might have had to the second count on the indictment and how it impacted, if at all, upon the jury’s consideration of the first count. It was at least misleading to allow it to be suggested to the jury that the evidence was relevant to show that the complainant had always been consistent in her versions or that early complaint after the incident alleged in the second count could demonstrate her consistency, when in fact no complaint had been forthcoming for over four years.

60 Late complaint is a matter that, generally speaking, adversely affects the credit of a complainant. True it is that s 107 of the Criminal Procedure Act has to some degree ameliorated the position by requiring a trial judge to alert the jury to the possibility that there may be reasons which explain the delay and to warn them that delay does not necessarily mean that the allegation is untrue. But a delay in complaint cannot be used to bolster the credibility of the complainant in respect of the allegation made in that complaint. Yet this is the impression that the passages in the summing up quoted above would have conveyed to the jury.

61 In order to avoid the error that is manifest in the summing up in the present case, it is important that a trial judge clearly appreciates the different purpose for which evidence is admitted under s 66(2), on the one hand, and under s 108(3), on the other. It is necessary to consider this distinction both at the time that leave is sought under s 108(3) and when formulating directions in respect of the evidence if it is admitted. It seems to me that it would be advisable for the parties and the trial judge to avoid referring to evidence admitted under s 108(3) as evidence of complaint in order to minimise the risk of any confusion arising as to the basis upon which evidence is admitted under that section with the purpose for the admission of evidence under s 66(2).

62 In my opinion this ground is made out and, notwithstanding that no request for a further direction or redirection was sought by defence counsel, this ground should be upheld.

63 The result of upholding Ground 3 is that the appeal should be allowed, the convictions quashed and a new trial directed. However, Ground 5 asserts that the convictions could not be supported by the evidence and, if this ground were made out, the proper result would be an order of acquittal.

64 The basis upon which this Court determines whether such a ground has been established are well settled. This Court is required to consider for itself the evidence in the trial and determine whether the jury ought to have had a reasonable doubt that the Crown had proved the charges on the indictment. If there is a reasonable possibility that an innocent person has been convicted, this Court must intervene.

65 Counsel for the appellant has set out in his written submissions a large number of, what are said to be, instances of confusion and inconsistency in the complainant's evidence which ought to have given rise to a reasonable doubt in the collective mind of the jury. While it cannot be gainsaid that there were inconsistencies in the complainant's account of the occasions upon which she alleged that she had been sexually assaulted by the appellant, those matters do not by themselves persuade me that the jury ought not to have accepted the complainant’s version as generally honest and reliable.

66 One matter of significance in this particular case was the evidence of Dr Packer as to the state of the complainant's genitalia when examined by her on 31 October 2000. It should be remembered that the defence before the jury was that the complainant had concocted these allegations at the instigation of the mother who wished to discredit the appellant in order to obtain custody of the other child, Mickayla.

67 The fact that the complainant had been subjected to repeated acts sexual intercourse over a lengthy period of time was clearly a very relevant factor for the jury to consider when evaluating the complainant’s evidence, even though it did not itself support her allegation that the person responsible was the appellant. It was for the jury to consider the probability or improbability that the complainant would falsely accuse the appellant of that behaviour whatever might be her motive to do so. It was not the more usual case where the issue is whether the complainant has fabricated her allegation of sexual abuse. Nor was there any issue that the complainant could have been mistaken about who was responsible: she had to be falsely implicating the appellant as the person who had repeatedly engaged in intercourse with her.

68 Much of the criticism of the complainant’s evidence during the hearing of the appeal was concerned with the details of her account as to when she said that assaults other than those charged occurred, and the greater part of this criticism related to her evidence as to where the various assaults had taken place. The complainant, however, was not shown to be unreliable in her account of the two incidents that gave rise to the counts in the indictment, except in details which the jury would be entitled to consider were not matters of particular significance such as to undermine her credibility. These inconsistencies were, firstly, that she believed that Mickayla was in the house on the occasion giving rise to the first count, yet the uncontradicted evidence was that she had not been born when the complainant was living at Wyong and, secondly, that on one occasion she said that the conduct occurred in her bedroom rather than in the appellant’s bedroom. There was also the inconsistency in her allegations at trial with the history given to Dr Packer, although Dr Packer explained why that might have occurred and yet the complainant be reliable in her later allegations.

69 I am not to be taken as suggesting that inconsistencies in the complainant’s evidence generally were not important matters for the jury to take into account in assessing her reliability. But the significant matter for the jury to determine was whether she was honest in relation to her allegation that the appellant had intercourse with her on the two occasions that were charged as offences.

70 In this regard a further basis upon which it was submitted that the convictions were unsafe was the lack of particularity in the two counts on the indictment so as to identify precisely the occasion that was the subject of each count. Counsel for the appellant relied upon S v The Queen (1989) 168 CLR 266 to support this submission. It was argued that the incident giving rise to the first count could not be distinguished from those unidentified and uncharged allegations which were relied upon as part of the relationship between the complainant and the appellant. It was submitted that, without further particulars being provided, the appellant could not defend himself.

71 No application was made for a stay of the indictment before the trial judge. Nor were any further particulars sought as to the incidents which gave rise to the two counts in the indictment. The appellant was prepared to go to trial on these matters simply on the basis that the allegations were fabricated at a time shortly before the police were informed of them. There was no suggestion that he was embarrassed in conducting that defence or in meeting the Crown case by reason of the nature of the charges. The complainant alleged that the two occasions were the first and last occasions when sexual intercourse occurred. There could, thus, be no difficulty identifying the particular occasions charged in the indictment if the question of autrefois convict or acquit arose. Nor was there any difficulty in understanding that the evidence of uncharged acts went to the relationship between the complainant and the appellant between the occasions to which the two counts related. The situation was, therefore, unlike that which confronted the accused in S v The Queen. Although some criticism has been made of the practice of particularising a charge by reference to it being the first or last act in a history of sexual abuse, see R v Baker; ex parte AG(Qld) [2002] 1 Qd R 274, in the present case there was sufficient particularity of the charges to allow the appellant to receive a fair trial. I am confirmed in this view by the absence of any complaint about the form of the indictment either before or during the trial. The only significance of the nature of the charges and the generality of the relationship evidence when considering the fairness of the appellant’s trial is the failure of the trial judge to warn the jury about the effects of delay in this regard.

72 I am not persuaded that this ground has been made out. Therefore, I proposed that the appeal be allowed, the convictions and sentences be quashed and there be an order for a new trial.

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