R v DH

[2000] NSWCCA 360

CITATION:	R v DH [2000] NSWCCA 360
FILE NUMBER(S):	CCA 60127/99
HEARING DATE(S):	15 August 2000
JUDGMENT DATE:	15 September 2000
PARTIES :	R v DH
JUDGMENT OF:	Stein JA at 1; Smart AJ at 124; Ireland AJ at 125

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/61/0206
LOWER COURT JUDICIAL OFFICER :	Nader ADCJ

COUNSEL :	Crown - P G Berman Appellant - R Burgess
SOLICITORS:	Crown - S E O'Connor Appellant - D J Humphreys
CATCHWORDS:	CRIMINAL LAW - sexual assault - failure of judge to sum-up on facts - duplicity - use of evidence of sexual assaults not charged - relationship evidence - delay in complaint - complaint direction - corroboration warning - rule 4 Criminal Appeal Rules - unreasonable and unsupported verdict
LEGISLATION CITED:	Crimes Act 1900, ss 78N, 405AA, 405B Criminal Procedure Act 1986, s 99
CASES CITED:	BRS v The Queen (1997) ALJR 1512 Domican v The Queen (1991 - 1992) 173 CLR 555 Jones v The Queen (1997) 191 CLR 439 R v AH (1997) 42 NSWLR 702 R v Ali Ali (1981) 6 A Crim R 161 R v Beserick (1993) 30 NSWLR 510 R v Condon (1995) 83 A Crim R 335 R v Davis [1999] NSWCCA 15 R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported) R v Khouzame and Saliba [1999] NSWCCA 173 R v RNS [1999] NSWCCA 122 R v Vinh Le [2000] NSWCCA 49 R v Williams (1999) 104 A Crim R 260 R v Zorad (1990) 19 NSWLR 91 RPS v The Queen [2000] HCA 3 (3 February 2000) S v The Queen (1989) 168 CLR 266 Walsh v Tattersall (1996) 188 CLR 77
DECISION:	Appeal against conviction dismissed

IN THE COURT OF
CRIMINAL APPEAL
60127/99
STEIN JA
SMART AJ
IRELAND AJ

Friday, 15 September 2000

R v DH
JUDGMENT

1    STEIN JA:

Introduction

2    The appellant, DH, was indicted on 8 February 1999 before his Honour Acting Judge Nader in the District Court at Dubbo on four counts of having homosexual intercourse with a male person above the age of 10 years and under the age of 18 years, to wit 15 years, (s 78N Crimes Act 1900). I will refer to the complainant, who is the son of the appellant, as DHJ. 3 The first count alleged that between 8 November 1994 and 20 March 1995 at Parkes the appellant, being the father of DHJ, had homosexual intercourse with DHJ, then being about 15 years. 4 The second and third counts alleged acts of homosexual intercourse with DHJ between 21 March 1995 and 16 April 1995 at Forbes. 5 The fourth count alleged that the appellant had homosexual intercourse with DHJ on 3 May 1995 at Forbes. 6 The appellant pleaded not guilty and was tried before his Honour and a jury of twelve. On 10 February 1999 the jury returned verdicts of not guilty by direction of his Honour on counts 2 and 3. On 11 February 1999 the jury returned verdicts of guilty on counts 1 and 4. The appellant was sentenced on 12 February 1999 to 8 years penal servitude, comprising a minimum term of 6 years and an additional term of 2 years.

The Crown case

7    Briefly summarised the Crown case was that the complainant was born on 21 January 1980 and aged 15 at the time of the alleged offences. The complainant lived in various rural locations in Narromine, Parkes and Forbes with his family. In Parkes and Forbes he later lived alone with his father, the appellant. 8    The complainant’s first recollection of sexual contact with his father was when he was about 5 years of age at Narromine. Subsequently, there was sexual contact on too many occasions for him to be able to count. The complainant described an incident where the appellant had given him a white tablet which induced drowsiness. The complainant said that the appellant subsequently put his penis into his anus and made him do the same to the appellant. This was accompanied by a threat with a knife. The incident was said to have occurred at the Bushman’s Caravan Park at Parkes about 3 months before the events the subject of count 1. 9    Between 8 November 1994 and 20 March 1995 the complainant was living in a caravan with the appellant at Bushman’s Caravan Park. The appellant had become friends with Gordon Scott, another resident. Gordon had a son, Sean, and the complainant and he spent time together while the appellant and Gordon socialised and drank together. On the day in question the complainant had been discharged from hospital with a new plaster on his broken arm. It was also Gordon Scott’s birthday. The appellant went to Gordon’s caravan for a drink, while the complainant and Sean watched television in the appellant’s caravan. After a while Sean returned to his caravan and the appellant returned to the van to get more beer. The complainant was playing chequers. According to the complainant the appellant was drunk. The appellant proposed that he play. He proposed that if the complainant won, the complainant would have ‘to pork him’. If the appellant won, the complainant would have to suck the appellant’s penis. The appellant won and told the complainant ‘now you’ve got to give me a head job’. The complainant then placed his mouth over the appellant’s penis. In cross-examination the complainant maintained that the appellant also had penile anal intercourse with him. 10    On 3 May 1995 the complainant was released from hospital with his broken leg in a heel to knee plaster. He and the appellant were then living in an old farmhouse at Cotton’s Weir, near Forbes. He went home by taxi. He had been home about an hour or so when the appellant came in from outside. There was an argument about money. The appellant said ‘if you don’t give me what I want I’m going to bash the crap out of you’. The appellant than grabbed the complainant and put him down on the floor, ripped his shorts off and put his penis into the complainant’s anus. The complainant went to the toilet and noticed some drops of blood from his anus. He then obtained some clothes. The altercation with the appellant continued culminating in the appellant throwing the complainant through a window. 11    The complainant took off down the road to Cotton’s Weir where he stayed for 30 minutes, then he went to a telephone box and telephoned Sue McGrory, an older friend. She drove and picked him up and the two of them went to the house of Lynne Schaeffer. Ms Schaeffer was an ex-girlfriend of the appellant. While they were at the house there was a loud noise outside. Fearing it was his father, the complainant hid on the floor. Ms McGrory said to the complainant that she could not help him unless he said what had happened. The complainant told her that ‘my old man had sexual intercourse’ with him and told her how they had ‘done it and everything’. Ms McGrory’s version of the complaint was generally consistent with the complainant’s account, albeit more explicit. 12    The complainant stayed with Ms McGrory for some time and she accompanied him to the Grenfell police station to make a statement. On 5 June 1995 the complainant was examined by Dr Larcombe. On examination she found that the complainant’s anus revealed a 4 mm gap and there was laxity of the anal sphincter. This meant that normal muscle tone was decreased. Her observations were consistent with the history given by the complainant of the appellant having anal intercourse with him, that it had been painful and that he had bled.
13    The complainant was very slight for his age, and, according to Dr Larcombe, did not appear to have gone through puberty. By the time of the trial he was 19 years and had grown appreciably taller and filled out physically. 14    Mr Boness was the proprietor of the Bushman’s Caravan Park at Parkes. He produced the park records which recorded that the appellant lived there from July 1994 to 20 March 1995. The records also showed that Gordon Scott lived there from July 1994 until 19 January 1995. This would have the effect of narrowing the range of dates in the first count. 15    Statements were also admitted into evidence before the jury that the complainant had been in the Manning Base Hospital between 3 and 8 November 1994 and the Forbes District Hospital from 29 April 1995 until his discharge on 3 May 1995. 16    Gordon Scott could not be traced and Lynne Schaeffer did not wish to give evidence or assist police in their inquiries.

The appellant’s case

17    The appellant’s case was one of denial of all of the allegations made by the complainant. He gave evidence to this effect. While he agreed that he could have been a better father and had been neglectful of the complainant, he had never sexually molested him. He agreed that he had become intoxicated on the day of Gordon Scott’s birthday and returned to the van for more beer but denied having anal intercourse with the complainant. 18    The appellant also denied the allegation of the complainant of 3 May 1995, including denying that he threw his son through the window. The appellant also denied the complainant’s allegation of sexual assaults not the subject of the counts in the indictment.

The grounds of appeal

19    The grounds of appeal are as follows:

1. His Honour erred in directing the jury about the manner in which they might use evidence of sexual conduct other than that charged.

2. His Honour erred in failing adequately to direct the jury about the significance of delay in complaint.

3. His Honour erred in suggesting that the evidence of Sue McGrory might be capable of corroborating the complainant’s evidence.

4. The verdicts are unreasonable and cannot be supported by the evidence.

5. (a) His Honour failed to sum up the evidence at all and failed to relate the
elements of the offences to the facts in the case, and

(b) the trial miscarried in that the act of sexual intercourse relied on in relation to each of counts 1 and 4 was not identified by the prosecution or his Honour, and the case was left to the jury on the basis that in respect of each count there was both an act of anal intercourse and an act of oral intercourse.

20    All of the grounds, bar ground 4, require leave of the Court since no objection was taken at the trial.

The trial

21    The trial commenced on 8 February 1999. The Crown opened to the jury outlining acts of anal intercourse with respect to each of the 4 counts in the indictment. 22    After the Crown’s opening and in the absence of the jury, the prosecutor indicated that he proposed to seek to adduce evidence from the complainant of acts other than those charged in the indictments. The purpose was to show the context of the relationship between the complainant and the accused and also that the appellant had a tendency to act in the way it was alleged he did on the four occasions charged. The leading of relationship evidence was not opposed by counsel for the accused, although its use as tendency evidence was opposed. While it is unclear what ruling his Honour made, it may be assumed that the evidence was admitted to show the relationship between the parties but not guilty passion, since the latter was not referred to in the summing-up nor, one may assume, in counsels’ closing addresses to the jury. 23    The complainant then commenced to give his evidence before the jury. He recounted how when he was 15 years and living with his father at the Bushman’s Caravan Park at Parkes, he returned from hospital with a new plaster on his broken arm. It was Gordon Scott’s birthday and the complainant and Sean, Gordon’s son, were watching television in the appellant’s caravan while the appellant and Gordon were drinking in Gordon’s van. Sean went home and the appellant returned to his van for more beer. The complainant was playing chequers by himself. The appellant wanted to play and proposed that if the complainant won, he would ‘pork’ him and if the appellant won, the complainant would have to give him a ‘head job’. According to the complainant, his father was drunk. The appellant won and the complainant sucked the appellant’s penis. The appellant grabbed the beer and left. 24    The complainant said that this was not the first occasion of sexual contact with his father. The first time was when he was 5 years of age and living at Narromine, his father played with his penis. Between 1985 and 1995 there were too many occasions of sexual contact with the appellant to count. 25    The complainant recounted one occasion when the appellant had given him a white tablet which made him drowsy and sick. He said that the appellant was ‘playing’ with him and he had ended up with the appellant having anal intercourse with him as well as vice versa. On this occasion, the appellant threatened him with a knife if he did not comply. The complainant told the appellant not to do it and to stop because it hurt. 26    At this point in the trial his Honour gave an opening address to the jury concerning their role. In this address his Honour explained the concept of proof beyond reasonable doubt.

27    The complainant then resumed his evidence in chief. He gave evidence concerning what occurred on 3 May 1995 at the farmhouse near Cotton’s Weir, Forbes where he was living with his father. This concerned count 4 in the indictment. The complainant had been released from hospital with his broken leg in a plaster. The plaster was from the heel of his foot to just beneath his knee.

28    The complainant was by himself in the house playing Gameboy. The appellant came in from outside where he had been watering. There was an argument about money and the appellant threatened the complainant that if he didn’t give him what he wanted he was ‘going to bash the crap out of you’. The appellant then grabbed his son and put him on the floor. 29    The appellant than had penile anal intercourse with the complainant. The complainant went to the toilet and started bleeding. He then went to get his clothes and the appellant picked him up and threw him through the lounge room window. 30    The complainant took off down the road to Cotton’s Weir where he stayed for one half hour. He then telephoned his friend, Sue McGrory. She came and picked the complainant up and they went to Lynne Schaeffer’s house in Forbes. Lynne was the appellant’s ex-girlfriend. While the complainant was there he heard a big noise outside. He looked outside and heard another big bang. The complainant then hid on the floor because he thought it might be his father, of whom he was scared. Later that evening he told Sue and Lynne that his father had sexually assaulted him. He said that Sue had said to him that she couldn’t help him unless he told what had happened. He said that ‘my old man had sexual intercourse’ and that he told Sue how ‘we done it and everything’. He had not told anyone of the events before because he was scared. 31    At the close of the complainant’s evidence in chief it was apparent that the complainant had alleged only oral intercourse re count 1, had given no evidence supportive of counts 2 and 3 and had complained of anal intercourse regarding count 4. 32    Defence counsel cross-examined the complainant at some length. The thrust of the examination was to expose inconsistencies between the complainant’s evidence in chief and statements made to police. For example, counsel referred to an allegation the complainant had made about the appellant sexually assaulting him in a flat above the Copperart Shop at Parkes. The complainant was unwilling to give this evidence saying that he had not wanted to come to court in the first place and only came to tell about ‘the four main ones’. 33    A voir dire examination of the complainant ensued which ended in his Honour adjourning the trial to the next day so that the complainant could be provided with independent legal advice. This apparently occurred and cross-examination of the complainant resumed on 9 February 1999. He then gave evidence of the appellant having anal intercourse with him at the Copperart flat in Parkes. He had not told the police of this. He was asked whether the homosexual intercourse that the appellant had had with him above the Copperart shop was the same sort of sexual intercourse that the appellant was on trial for and he answered ‘yes’. 34    The complainant was cross-examined about the chequers incident on Gordon Scott’s birthday. He said that he had told Detective Marsh that his father had had anal intercourse with him on that occasion. Further, that he had noticed drops of blood from his anus when going to the toilet after being sexually assaulted. He said that it had made him cry. 35    The complainant was also cross-examined about the incident at the farmhouse on 3 May 1995. This included evidence of forced anal intercourse by the appellant of the complainant while his leg was in plaster. The cross-examination was descriptive of a violent sexual assault and fight culminating in the appellant sucking the complainant’s penis and the complainant urinating. This resulted in the appellant punching the complainant in the head, picking him up and throwing him through the window. 36    Dr Dianne Larcombe was interposed and gave evidence of her examination of the complainant on 5 June 1995, one month after the alleged offence in count 4. She noted complaints by DHJ of anal intercourse by the father and of a small amount of bleeding from his anus. On examination she found a 4mm diameter gap in the anus. There was laxity in the anal sphincter which meant that normal muscle tone was decreased. This could be consistent with the complaint made. Laxity was caused by forced dilation. The forcing open of the anus caused stretching and the laxity could be caused by the insertion of a penis. The doctor expected that it would have been on more than one occasion to fit with her finding of a 4mm gap on examination. 37    Dr Larcombe also noted that the complainant, when examined, appeared younger than his age and was quite slight. He had no body hair or pubic hair and appeared to be in the early stages of puberty. His left leg was in plaster. In cross-examination she agreed that there was no scarring around the anus nor recent lesion. 38    Significantly she was asked whether there could be other reasons (that is, other than forced sexual penetration) for the laxity of the anal sphincter. She answered that it was possible but that she could not think of any other reason. She was asked whether chronic constipation could produce laxity. She said that it was possible but ‘not likely’. She was pressed as to whether anal penetration was the only possible cause of the laxity. She answered that she did not use the word ‘only’ very often. However, she said that it was ‘fairly probable’ that it was the cause. 39    The complainant’s cross-examination then resumed to completion. In re-examination the complainant confirmed that on Gordon’s birthday the appellant had had intercourse with him and also on 3 May 1995 after he had been discharged from hospital. 40    Ms McGrory gave evidence that when she picked the complainant up on 3 May 1995 he was agitated and distressed. When there was a big bang outside Lynne’s house the complainant hid under the table saying that he was not going home. He was hysterical and crying. He complained to her of the appellant ‘porking him up the arse’. He told her that the first time it had happened was when he was 6 years old at Narromine. 41    It was during Ms McGrory’s evidence that his Honour raised with counsel whether or not he should sum up the facts. He said:

The summarising of the evidence is in some cases optional to the Judge and quite frequently with the consent of counsel and on one occasion with the approval of the Court of Criminal Appeal I have not summed up the facts of the case by way of any sort of summary of the facts.
The facts of this case notwithstanding that it is a lengthy case for other reasons, don’t come into a - they’re not wired in complicated facts as they might be in say a fraud case for example and it occurs to me it might suit counsel better - I don’t want an immediate response but I want you to think about it, if you, in your own addresses to the jury, deal with all of the facts which you wish the jury to consider in support of your respective cases, all of the evidence I mean, when I say all of the facts, and that I don’t run the risk of detracting from that by trying to do some fairly superficial summary of the facts. Would you consider that and in due course tell me whether you, for some reason particularly want me to attempt a summary of the facts as well.

42 His Honour referred to s 405AA of the Crimes Act and added:

Do you think that it may be an appropriate case for the application of that section? The section provides that “a Judge of the Supreme Court or District Court need not summarise at the end of a criminal trial before a jury the evidence given in the trial if the Judge is of the opinion that in all the circumstances of the trial the summary is not necessary”.
That would be so if you gentlemen deal with the evidence yourselves to the extent that satisfies you that the jury are fully aware of what your cases are. After all, it’s not the moral authority of the judge that’s needed in summarising the facts. The moral authority of the judge as they call it, is required to emphasise generally rules of law and the way they should consider the evidence. I’m certainly not going to withdraw from that.

43    Neither the prosecutor nor the appellant’s counsel objected, indeed to the contrary. 44    At the end of the Crown case an application was made by defence counsel for directed verdicts of not guilty on counts 2 and 3. The prosecutor agreed with the submission and his Honour directed verdicts of not guilty on these counts. That left before the jury only counts 1 and 4. The appellant then gave evidence which denied the charges and denied any sexual molestation of the complainant. 45    On the morning of the fourth day of the trial (11 February 1999) the defence closed its case. Before the prosecutor commenced his address to the jury the trial judge again raised the question of his not summing-up on the facts. His Honour said that a lot of the evidence was in the nature of a narrative and he could not be expected to repeat it all to the jury. 46    His Honour said that if there was aspects of the evidence relied on, it was counsel’s duty to point it out to the jury. The judge noted the difficulty produced by the absence of transcript, especially of the cross-examination of the complainant. He also referred to witnesses mumbling and speaking quickly making note taking almost impossible. 47    The Crown prosecutor then addressed the jury. In the absence of the jury his Honour asked the prosecutor what sort of intercourse was the first count. The prosecutor responded ‘penis and anus’. His Honour referred to the evidence of the complainant in-chief to a ‘head job’. The prosecutor reminded his Honour that the Crown had opened to the jury on anal intercourse and that is what the complainant had said in chief. This was incorrect. The complainant’s evidence in chief had not been of anal intercourse. The exchange between the bench and bar then continued with the prosecutor saying:

But your Honour he is then cross-examined in relation to that count [Count 1] and he detailed how it was that the accused had had anal intercourse.

48    The prosecutor said that in opening to the jury he had put the Crown case of an act of anal intercourse and, by the time the complainant’s cross-examination was completed, he had given evidence of this act. 49    It is noteworthy that defence counsel made no protest or response to this exchange between the bench and the prosecutor. 50    His Honour reiterated that he was not going to summarise the facts to the jury. He noted that two of the witnesses were almost inarticulate and spoke rapidly. This was clearly a reference to the complainant and the appellant. Both the prosecutor and counsel for the appellant indicated that they were content with the judge’s decision. 51    Defence counsel then addressed the jury. In the transcript before us, and immediately after reference to his address, the following note appears: ‘Counsel in agreeance that the evidence has been canvassed sufficiently before the jury to not require his Honour to summarise it to the jury’. 52    His Honour then summed-up. He gave standard directions on deciding the case only on the evidence before the Court and as to how evidence could be evaluated. 53    His Honour referred to a ‘special’ matter which was that the complainant’s evidence was uncorroborated. He said that his evidence was ‘not supported, in its material respects, in its important respects, by the evidence of any independent witnesses or any other independent fact’. He gave an example of corroboration and said that that sort of evidence did not exist in the case. He directed the jury that:

It is dangerous to convict on such evidence unless you carefully scrutinise it, carefully consider it, critically look at it - I do not mean “critically” in that nasty sense of the word but “critically” in the sense of analysing it carefully and thinking about it, very carefully. And having done that, satisfied yourself that you can rely upon it. If you do that, if you carefully do that but conscientiously do that and if at the end of that exercise you - each one of you - says to yourself “Yes, I think notwithstanding that the evidence is uncorroborated and having looked at it so carefully I am still satisfied that I can rely on it” then you can act on it, but I am required because of the experience of the courts over many years, to point out that uncorroborated evidence in a situation like this one, has to be looked at in that very particular way, with that scrutiny that I have mentioned.

54    His Honour then turned to the evidence of witnesses who may refer to ‘peripheral material’. He gave an example of such evidence. He said:

For example, Ms Susan Mary McGrory was called and she was called because she comes into the picture by reason of the fact that there was communication between the complainant and her at a particular time which you will no doubt well remember and some various times associated with that and the complainant gives evidence about that and Susan Mary McGrory gives evidence about that. Well, what you may find is that Susan Mary McGrory tends to corroborate some of those peripheral matters. You may not find that - I am not suggesting you should - but if you do, then you may find that they are mutually supporting pieces of evidence.

55    His Honour referred briefly to the evidence of Dr Larcombe and her evidence of the complainant’s ‘relaxed sphincter muscle’ and her opinion. He said that it was for the jury to evaluate her evidence and its bearing on the evidence of the complainant. 56    The summing-up then referred to the two counts in the indictment - counts 1 and 4. His Honour handed to the jury an aide memoir of the elements in each count. This was with the approval of counsel. The document is not available to this Court. His Honour made it plain that the ‘contentious’ element in the trial was the allegation that the appellant had homosexual intercourse with the complainant. His Honour had earlier referred to the definition to homosexual intercourse but he repeated it. He also referred to the dates of the alleged offences in each count. He told the jury that they had to ask themselves, as to the contentious element in each count, are we ‘satisfied beyond reasonable doubt that the accused had homosexual intercourse with the complainant?’. 57    His Honour then said:

… you have heard counsel tell you what evidence they rely upon. They have done so at length, they have done so very carefully. They have done so on the basis that I will not summarise the facts of the case to you again. I think there would be a real danger if I tried to do it, of detracting from the way counsel have put it to you.

and

… they have done that and they have done it very thoroughly and they have done so on the basis that I will not try to go over the facts again and I think this is the very kind of case where if I did try to do that, I might water down the force of what they have said individually to you and I am not going to do it. I simply remind you of this, that essentially what you have is a person complaining that certain things were done to him by the accused and he has given a narrative of that which has been elicited from him by questions asked by the Crown Prosecutor and he has been cross examined and very thoroughly and lengthily cross examined as you might think it is not an inappropriate thing for the counsel for the defence to do.

58    His Honour briefly referred to the evidence of the witnesses in the Crown case - the complainant, Dr Larcombe, Mr Boness, Ms McGrory, and Detective Marsh. Some witnesses’ evidence was dealt with in more detail then others. 59    The judge turned to the relationship evidence. With regard to this he said:

There has been some evidence given by the complainant of a general background of sexual assaults. He said that - I think I recall the expression when he said “there were too many to remember”. He said they started when he was 5 in his evidence. There is some evidence that he said elsewhere, when he was 7 or 8. You will consider those matters. Those alleged assaults are not the ones with which he has been charged and the only use you can make of those arises if you are satisfied that such assaults did take place and that you are satisfied beyond reasonable doubt that they took place. If you are satisfied beyond reasonable doubt that those other assaults took place, you may use them to assist you to understand the general nature of the relationship between the accused and his son. He is not charged with them but they may assist you to understand the way these 2 people related to one another because that may be a relevant factor in deciding the matters with which the accused has been charged. But you cannot consider them at all unless you are satisfied that such additional assaults committed over a greater period of time than that covered by the alleged charge assaults actually did occur. Of course they would have to have happened before the counts in the indictment if they happened at all and if you are satisfied that they did occur, you are allowed to consider them in helping you to understand the way in which the accused related to his son and vice versa.

60    His Honour referred to the evidence of ‘complaint’. He said that if count 4 actually occurred the complaint about it was made very soon after. His Honour directed the jury that the evidence of complaint had relevance to the credit or credibility of the complainant. He gave an example of how complaint or its absence could be used. Of this he said:

Now that can happen of course and it does not mean that the event did not occur but you can take it as something you take into account in relation to the credibility of the person because what you normally expect, if someone suffered such an assault as the one I have just described - I have deliberately made it a fairly extreme case - you would expect them virtually to tell the first person they saw almost out on the street “Help, I’ve just been raped”. And the fact of them complaining is admissible in evidence, not to prove that they have been raped, because that is not corroboration, because that emerges from the person herself or himself as I will explain to you later, corroboration has to come from another source, but it supports the credit of that person, the credibility of that person, the believability of that person and you might say if that person did come out of the park and immediately complain to someone or ran across the road to a shop and told someone or rang the police straight away that that was consistent with what she said happened and therefore that assists that person’s credibility. It does not corroborate what they said but it assists the person’s credibility. That person’s believability in the eyes of a jury and you are entitled to consider the complaint made to Mrs McGrory in relation to the fourth count in that way because it was a complaint made on the evidence, if you accept it. If you accept the evidence that it was made very soon afterwards, then you can treat it in that way, that is as supporting the credibility of the complainant. Mind you, that evidence was not uncritically accepted and there is a great deal of contest about it and you can only use it in that way if you are satisfied beyond reasonable doubt that that is what happened. If you have got a doubt about that then you just put it out of your mind. It does not support his credibility. But if you are satisfied that he did tell this lady as soon as reasonably expected afterwards, it does not have to be the exact minute that he sees her but if you think that it was done as soon as you would reasonably expect him to tell her in the circumstances, then you may treat it - you may treat it - as supporting his credibility in the case.

61    His Honour directed the jury to disregard the complaint evidence in relation to the first count because ‘it was made too long after the matter occurred to support his credibility’. What the complainant told Ms McGrory about earlier assaults was not a matter ‘which should support his credibility in your thinking’. [My emphasis added] 62 At the conclusion of the summing-up the prosecutor raised one matter and the defence two (one of which is immaterial). The prosecutor asked for a direction in accordance with s 405B of the Crimes Act in relation to the complaint. His Honour said that he would give such a discretion. Defence counsel sought that his Honour direct the jury that to convict they must be satisfied beyond reasonable doubt that each offence occurred on the dates alleged in the indictment. A reading of the transcript indicates that the prosecutor supported this request. The jury returned and his Honour gave them a s 405B direction, which included reading the provision to them. After giving the direction his Honour added:

You may take a different view. You may say “Oh, there was no complaint, therefore it did not happen, or it may not have happened” but I am required to give you that direction and to inform you that there may be good reasons why such a complaint is not made.

63 His Honour also directed the jury as to the importance of the dates alleged in the indictment making some reference to the evidence. At the conclusion of the summing-up neither counsel sought any further redirection. 64 Of particular importance in this appeal is that defence counsel made no objection to the summing-up in relation to alleged duplicity in the offences charged, the absence of summing-up on the facts, his Honour’s directions on how to use the relationship evidence, the absence of corroboration and the evidence of complaint. This raises the question of the application of rule 4 of the Criminal Appeal Rules.

Ground 5 - failure to sum-up on facts and duplicity

65 It is convenient to deal with this ground first and to consider the two limbs together. 66 The core of the submission of Ms Burgess on behalf of the appellant is that his Honour not only failed to summarise the facts, but failed to relate the directions of law which he gave to the evidence. Ms Burgess, who did not appear at the trial, submitted that s 405AA (now s 99 of the Criminal Procedure Act 1999) did not permit a trial judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It did not relieve the trial judge of the obligation to sum up the respective cases made by the Crown and the accused, R v Condon (1995) 83 A Crim R 335 and R v Zorad (1990) 19 NSWLR 91. 67 Counsel for the appellant is critical of his Honour for not directing the jury as to which act of sexual intercourse was relied on by the Crown in relation to each count, particularly given the confusion which she says is inherent in the evidence. There is, so Ms Burgess submits, a latent ambiguity in both charges in that what was left to the jury was two acts of sexual intercourse in relation to each count. She submits that it is not possible to know whether there was unanimity in the jury in respect to any one of the two acts disclosed in the evidence on both counts, R v Khouzame and Saliba [1999] NSWCCA 173, Walsh v Tattersall (1996) 188 CLR 77 and S v The Queen (1989) 168 CLR 266. 68 In Zorad at 105 the Court said:

A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence.

69    Zorad involved an unrepresented accused person and was decided before the introduction of s 405AA. 70 In Domican v The Queen (1991 - 1992) 173 CLR 555 the High Court had occasion to refer to s 405AA. The joint judgment remarked that matters of fact, and the arguments in relation to them, were in a different category from directions on law. Citing R v Ali Ali (1981) 6 A Crim R 161, the Court said that a trial judge was not bound to discuss all of the evidence or analyse all the conflicts, and by itself, the failure to do so does not mean that there has been a miscarriage of justice. The Court referred to s 405AA, which had come into existence after the trial. The requirement of fairness nonetheless meant that ordinarily the cases for the accused and prosecution must be accurately and fairly put by the trial judge. But this did not oblige the judge to put every argument put forward by defence counsel. Their Honours continued at 561:

Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.

71    Condon post-dated the enactment of s 405AA. Allen J said that even if it was reasonably open to the trial judge to form the opinion that a summary of the evidence was not necessary, the provision did not relieve the judge of certain duties. These included an explanation of the application of the elements in the offence to the respective cases of the Crown and the accused. Allen J said at 347:

In short, it is his duty to give them assistance so that they understand what the critical issues of fact are upon application of the law to the particular case. The trial judge is not relieved from that duty by the arguments of counsel. Indeed, as Murphy J pointed out in Salvo , it would not be enough even for the trial judge accurately to state what the case for the accused is as it has been presented. He must instruct the jury what the law is in respect of that case and do so in terms which throw up, clearly, what the critical issues of fact are which it raises.

72    The next relevant case is R v Williams (1999) 104 A Crim R 260. Wood CJ in CL considered a submission that the trial judge had failed to sufficiently summarise the key points in the defence case. Noting that the trial was a short one, his Honour said that it was entirely appropriate that the trial judge should have taken the course followed, as permitted by s 405AA. Trial judges should ensure that the jury have sufficient guidance on the issues. The need for guidance depends, of course, on the nature of the trial, its length and its complexity (Domican). Wood J emphasised the need to focus on the critical issues, which was underlined by Allen J in Condon. 73 Wood J added at 269:

In a single issue trial as short as this, when the summing up concluded within a morning and followed immediately upon the address of defence counsel, I am unconvinced that it was necessary for the trial judge to have undertaken a comprehensive analysis of the kind that the appellant now contends for.

74    His Honour added a statement which has particular significance for the present appeal:

The common sense and intelligence of the jury requires respect, as does the experience of trial counsel who, in this case, expressly stated that he did not require any further direction or redirection.
I am unpersuaded that in a short trial, where the focus was on the complainant’s credibility, anything would have been achieved by yet another restatement of that issue or of the points made either by the Crown or by the defence. The position is likely to be otherwise in a complex and lengthy trial, to which the observations in Domican are particularly apposite. It would also have been otherwise had the trial judge here undertaken, for example, a detailed analysis of the Crown case and then dismissed the defence case in short terms. What is required is a fair balance when any excursion into the issues and evidence is undertaken. Again I am of the view that leave should be refused to argue this ground under r 4 of the Criminal Appeal Rules . [at 269 - 270]

75    Two days later the Court heard and delivered judgment in R v Davis [1999] NSWCCA 15. In giving judgment Wood CJ at CL said:

The trial judge, with the consent of the parties, summed up without reference to the evidence. That was a course properly open to him under s 405AA of the Crimes Act , in a trial that had lasted three days, in which there were only six witnesses in the Crown case and none in the defence case. On one view, that approach worked in favour of the appellant, since it avoided the one-sided appearance that may have been presented by a reiteration of the evidence called by the Crown, and silence in relation to the defence.
Attention was, however, drawn to the observations of this Court in RJC CCA NSW 18 August 1998, unreported, as well as in Zorad (1990) 19 NSWLR 91 at 105 and Condon (1995) 83 ACR 335 as to the need for the jury to be instructed as to the issues of fact and law which arise in a trial, and where appropriate, to have the evidence to be related to those issues.
Those requirements are to be understood in the light of the explanation in Domican (1992) 173 CLR 555 at 561, which was discussed as recently as yesterday by this Court in Williams NSW CCA 9, 23 February 1999 unreported.
The need for, and the extent of, any exploration of the evidence and of the issues, in a summing-up, is to be assessed in the context of the trial, its length, its complexity and in the light of the way that it has been run. Where the summing-up in a short trial has followed hard on the heels of a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses. To so require would be to credit the jury with little in the way of intelligence or common sense. An exercise of judgment is always required, on the part of the trial judge, to frame the summing-up in a way that is helpful to the jury. To elevate the observations in RJC and Zorad to a requirement that, in every case, regardless of its length or complexity, the trial judge must identify and repeat the points made by defence counsel, the relevant evidence, would be to go too far. Counsel should be expected to contribute in this regard, and to disclose whether they seek more, by way of summary of the evidence and of the submissions, than the judge proposes. [paras 21 - 24]

76    In R v RNS [1999] NSWCCA 122 (7 June 1999) Bell J was dealing with a similar submission to the one here made, incidentally involving the same trial judge. Her Honour said:

The trial was a short one. Evidence was taken over three days. At the conclusion of the evidence his Honour invited the jury to give careful attention to the addresses of counsel. He had earlier signalled his intention to both counsel not to summarise the evidence. This course was consented to by both counsel. Provision is made in s.405AA Crimes Act for a trial Judge to dispense with a summary of the evidence. That provision does not permit the trial judge to give the jury no guidance as to the way the evidence relates to the directions of law given. It does not relieve the trial Judge of the obligation to sum up the respective cases made by the Crown and the accused. [para 58]

77    However, her Honour did not decide the case on this ground alone and proceeded to other grounds upon which the appeal was upheld.

78    The most recent authority is RPS v The Queen [2000] HCA 3 (3 February 2000). In the joint judgment, their Honours referred to the task of trial judges in giving instructions to juries (paras 41 - 42). They stated that the trial judge should instruct the jury about the elements of the offence, the burden and standard of proof, the respective functions of judge and jury, the identification of the issues in the case and to relate the law to those issues. The judge should, of course, put the accused’s case fairly to the jury.

79    However, their Honours continued:

But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.

80 How then should these authorities be applied to the present appeal? 81 First, it seems to me that proper content should be given to the provision (s 405AA), now found in s 99 of the Criminal Procedure Act. It provides as follows:

99 (1) At the end of a criminal trial before a jury, a Judge need
not summarise the evidence given in the trial if of the
opinion that, in all the circumstances of the trial, a
summary is not necessary.
(2) This section applies despite any rule of law or practice to
the contrary.
(3) Nothing in this section affects any aspect of a Judge’s
summing up function other than the summary of evidence
in a trial.

82    Taking account of the circumstances of a trial, a judge may be entitled to form the opinion that a summary of the evidence is unnecessary. As observed by the High Court in Domican, whether the judge is bound to refer to the evidence depends on whether the jury would have sufficient knowledge and understanding of the evidence without assistance. Trials will vary considerably in their length, content and complexity. Allen J observed in Condon (adopted by Wood J in Williams) that guidance for the jury needs to focus on the critical issues.

83    Williams referred to the short length of the trial as being a factor which would favour the appropriateness of a trial judge’s decision not to summarise the facts. Wood J also referred to a single issue trial, when the summing-up follows immediately upon the defence address, as a factor relevant to the decision not to summarise the evidence.

84    As I have said, Wood J’s remarks about respecting the common sense and intelligence of the jury, as well as respecting the decision of counsel in acquiescing in the judge’s decision and not seeking any further directions, are important. They are apposite to this trial which was relatively short (4 days), notwithstanding the interposition of other matters and an early adjournment on one day to allow the complainant to receive advice. Moreover, the facts were within a small compass, involving only two counts. The trial was principally a contest of credibility between the complainant and the appellant, with the focus on the complainant’s credibility. This must have been patently apparent to the jury and was underlined by his Honour in the summing-up. It is difficult to see what would have been gained (for the jury) by a restatement of the factual matters already the subject of addresses by the Crown and defence. 85    The strictures of the High Court in RPS are relevant. A judge is not bound to comment on the facts unless her or his other functions require it. In many cases, the safer course to take is to make no comment on the facts except to remind the jury of counsels’ arguments. This remark by their Honours in RPS raises the question of the possible dangers which may be inherent in summarising the evidence. The trial judge here was aware of this possibility when he raised the issue with counsel. He referred to the lack of a transcript and the manner in which some witnesses gave their evidence (including the complainant) making note taking almost impossible. There was the clear risk that, in summarising the evidence, his Honour could have misled the jury. 86    There is also the point made in Davis, another short trial with only six witnesses, that summing up on the evidence may lead to a one-sided appearance being presented to the jury. 87    His Honour flagged his intentions early on in the trial and gave every opportunity to counsel to object or require that he summarise the evidence, in whole or part. Counsel chose to acquiesce in the course proposed and, no doubt, framed their addresses to the jury to accommodate his Honour’s decision. 88    I agree with Wood J that the observations in Zorad should not be too highly elevated so as to have the effect of nullifying the power and discretion contained in s 405AA (and s 99). 89 The question here is whether the trial judge failed to give the jury guidance on the way the evidence related to the directions of law. Also, whether his Honour summed-up the respective cases of the Crown and the accused. 90 The crux of the argument made on behalf of the appellant concerns the alleged duplicity in each of the charges and his Honour’s failure to instruct the jury on the act of sexual intercourse relied on by the Crown in relation to each count. 91 It is necessary to have regard to the conduct of the trial and I have already referred to some of the relevant material. 92 What is apparent with regard to count 1 is that the prosecutor opened to the jury alleging anal intercourse. In his evidence in chief the complainant did not give any evidence of anal intercourse in relation to this count, but gave evidence of oral intercourse. In cross-examination the complainant gave evidence of the accused having had anal intercourse with him. 93 Doubtless the prosecutor addressed the jury on this count on the basis of anal intercourse. No objection was taken at any time by counsel for the accused. The Crown was not called upon to elect. His Honour was not asked to give any direction on the matter. In my view, the jury could not have been under any misapprehension. The consistency in the Crown approach was such as, at the least, to impliedly elect, should that have been required. 94 This case is quite unlike the facts of Khouzame and Saliba, where multiple acts were before the jury. Indeed, six acts in Saliba’s case. 95 The fourth count is similar to the first. It may reasonably be assumed that the Crown opening to the jury alleged anal intercourse. The evidence of the complainant in chief was to this effect. There was also evidence by the complainant of other acts, but the case on count 4 was always one of anal intercourse. His Honour directed the jury as to how they should treat the evidence of other acts not charged. Again, the Crown was not required to elect and no protest was raised by defence counsel, nor any request to sum-up on the issue or redirect. I can see no unfairness to the appellant in what occurred and no miscarriage of justice has been demonstrated. 96 In my opinion, the issue of duplicity does not arise. The summing-up, given the context of the trial and the ‘contentious’ issue, referred to by his Honour and left for the jury to consider, adequately related the elements of the offences to the evidence and summed-up the respective cases of the Crown and appellant. Given the short trial, the narrowness of the issues, and other factors mentioned, the judge was entitled to form the opinion that it was not necessary to summarise the evidence. 97 I would refuse leave to argue this ground pursuant to rule 4 of the Criminal Appeal Rules, see R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported).

Ground 1 - use of evidence of sexual conduct not charged

98    As earlier recounted, counsel for the appellant did not oppose the leading of evidence from the complainant of allegations of sexual conduct with the appellant other than that charged. His objection was that the evidence not be used as evidence of tendency. I have already set forth in para 59 his Honour’s direction as to the use that could be made of the evidence by the jury. 99    Such evidence may be led to place the offences charged in context. The relationship revealed may provide the context as part of the essential background. The second way that it might be relevant is to the ‘guilty passion’ revealed and, in this situation, it may be directly relevant to proving the offences charged. Where the Crown introduces the evidence merely to place the charged offences in its context, it is not tendency evidence and cannot be used for that purpose. 100    When such relationship evidence is introduced, the jury should be warned that it is not entitled to substitute evidence concerning acts not charged for those the subject of the charges. They should also be warned not to reason impermissibly that the accused is guilty of the charged offences simply because he has committed the uncharged offences, R v Beserick (1993) 30 NSWLR 510 at 515 - 516, R v AH (1997) 42 NSWLR 702 at 708 - 709 and BRS v The Queen (1997) 71 ALJR 1512. 101 The Crown concedes that the warning was not explicitly given by the trial judge. Nevertheless, Mr Berman submits that what his Honour said to the jury clearly carried with it the implicit warning not to use the evidence in any way other than to place the charged offences in context. That is, that the jury would understand from what his Honour said that they were not to reason that because they might believe that the accused was guilty of other offences not charged, he was guilty of the charged offences. 102 I accept the submission. It seems to me that his Honour’s direction effectively conveyed the required warnings. There was no request for any redirection and I do not believe that any miscarriage of justice was occasioned. It is relevant that his Honour did not refer to the evidence as tendency evidence in his summing-up. 103 This case is unlike BRS, where there was a very real risk that the jury might have misapplied the evidence and treated it as propensity evidence. In the light of the way the instant trial was run, its emphasis on counts 1 and 4 and his Honour’s directions, I do not accept that the jury could have misused the relationship evidence. It would have been better, as the Crown acknowledges, had the warning been explicit. Nonetheless, the absence of complaint at the time is significant. Rule 4 applies and the appellant has not satisfied the Court that a miscarriage of justice was occasioned.

Ground 2 - failure to adequately direct on delay in complaint

104 I have already set forth his Honour’s directions on how they might use the complaint material, see para 60. 105 Ms Burgess submits that while his Honour directed the jury to disregard the complaint in relation to the first count and stated that it did not support the complainant’s credibility, he did not go the step further. In the context of the s 405B warning given at the request of the Crown, his Honour should have told the jury that the delay in making the complaint was also relevant to the complainant’s credibility and a factor to be taken into account in assessing his consistency of conduct. 106 I do not see that there is anything in the point. The clear effect of his Honour’s directions was that the credibility of the complainant was affected by whether the complaint was delayed. He told the jury that early complaint may support the credit of the person making it. On the other hand, he told the jury that if a complaint was not made when you would expect it to be made, you might use that against the person. His Honour gave the jury a graphic example which they would have readily understood. 107 A fair reading of the relevant parts of the summing-up indicates that a balance was held. The jury were directed that lack of complaint could damage credibility just as an early complaint could bolster it. 108 Next it was submitted that it is difficult to see how the complaint, which it is said was in general terms, could be confined to the fourth count. I do not agree that the complaint was not descriptive of the fourth count, given the context. It was open to the jury to accept that the complaint made related directly to the fourth count, both from the evidence of the complainant and that of Ms McGrory. In any event, in R v Vinh Le [2000] NSWCCA 49 complaint evidence in general terms was admitted (Sully J at 51 - 53 and Hidden J). 109 It was further submitted that his Honour did not explain that the complaint evidence was not admissible as evidence of the facts complained about. That is not so. The jury was directed that the complaint material was not available to prove the facts, see Summing-Up AB 238 (p 23) - ‘not to prove that they have been raped’. 110 Again, it must be kept in mind that defence counsel made no objection to his Honour’s summing-up on the complaint evidence. The Crown did raise an objection and this resulted in a redirection under s 405B. In giving the redirection his Honour said:

You may take a different view. You may say “Oh, there was no complaint, therefore it did not happen, or it may not have happened.”

111 I would refuse leave to argue this ground pursuant to rule 4.

Ground 3 - error in summing-up on corroboration

112 His Honour gave the jury a very strong warning on corroboration, perhaps one overly generous to the appellant. He directed the jury that the complainant’s evidence was uncorroborated and that it was dangerous to convict on such evidence. 113 However, his Honour later said that the jury might find that the evidence of Ms McGrory might tend to corroborate some of the ‘peripheral matters’. It was submitted that his Honour should have directed the jury that the evidence of Ms McGrory did not amount to corroboration. I find nothing in the point. The strong direction that the complainant’s evidence was uncorroborated can stand with his Honour’s passing reference to possible corroboration by Ms McGrory on ‘peripheral matters’. 114 In the context of the issue of corroboration, his Honour did not refer to Dr Larcombe’s evidence. This worked in favour of the appellant. I would have thought that Dr Larcombe’s evidence provided some corroboration for the complainant. 115 Again, rule 4 applies because no point was taken at trial. In Jeffrey, Mahoney JA made some pertinent observations about the role of rule 4 where an appellant relies on misdirections or non-directions to which no objection was taken at trial. They bear repeating. His Honour said:

[It] is proper to emphasise the importance of the principle embodied in R4.
In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial, be raised at the time of the trial. The judge should be asked to, and should have the opportunity to, correct any error or deficiency of this kind.

…

Errors will occur and R4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level. Not infrequently this Court is asked to act under R4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under R4. In the end, the court must exercise the power given to it by R4 according to the merits of the individual case. However, in my opinion, in exercising that power, the court should keep steadily in mind the function which R4 performs in the criminal trial process. [p 4]

Ground 4 - verdicts unreasonable and unsupported by the evidence

116    Six points are relied on by the appellant.

1. The directed acquittal verdicts on counts 2 and 3. This is said to affect the complainant’s credibility.

2. The delay in complaint.

3. The inconsistent evidence of the complainant.

4. The inconsistent statements made to police by the complainant.

5. The lack of corroboration, and

6. The appellant’s denial on oath.

117    As to the first point, the directed verdicts do not assist the appellant. This was not a trial where the jury disbelieved the complainant. In the circumstances of the trial and his clear reluctance to give evidence, the complainant could have well forgotten to tell the court about the facts of counts 2 and 3. 118    As to points 3 and 4 above, the inconsistencies in the complainant’s evidence and police statements did not convince the jury that he was not a credible witness. Notwithstanding the inconsistencies, the evidence was such as to entitle the jury to return guilty verdicts. 119    The jury had the benefit of seeing the complainant giving evidence and facing cross-examination of some length. They also had the benefit of hearing the appellant give evidence and be cross-examined. The jury had the opportunity to assess their evidence at first hand. We only have the black and white of the transcript. The remarks of the judge, the unusual circumstances, the poorly educated and inarticulate complainant, his grossly deprived upbringing and the qualities of the appellant, point to the jury’s assessment of each of them and their evidence as being very important in the resolution of the case. This is not a case like Jones v The Queen (1997) 191 CLR 439 where the jury refused to accept the complainant on one count. Here there is no material to conclude that the jury disbelieved the complainant on any matter. 120 As to the delay in complaint about the fourth count, it is clear that it was open to the jury to find that the complaint was made fairly soon after the offence and that there was no real delay. 121 As to the absence of corroboration for the complainant, the appellant had the benefit of a very strong direction in his favour. The submission of counsel for the appellant ignores the evidence of Dr Larcombe about the consistency of the history with her observations and findings. It is plain that her evidence, including cross-examination, was not helpful to the appellant. Indeed, to the contrary. 122 I would reject this ground of appeal. 123 It follows that the appeal against conviction should be dismissed. 124 SMART AJ: I agree with Stein JA. 125    IRELAND AJ: I agree with Stein JA.

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