R v Dixon

[2001] NSWCCA 39

CITATION:	R v Dixon [2001] NSWCCA 39
FILE NUMBER(S):	CCA 60479/00
HEARING DATE(S):	22/02/01
JUDGMENT DATE:	16 March 2001
PARTIES :	R v Garry John Dixon
JUDGMENT OF:	Mason P at 1; Giles JA at 2; Whealy J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/61/0181
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	M. C. Marien - Crown A. Webb - Appellant
SOLICITORS:	S. E. O'Connor - DPP Sydney Regional Aboriginal Corporation Legal Service - Appellant
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Criminal Appeal Rules
CASES CITED:	Regina v Holden (1917) 34 WN (NSW) 78 Courtney-Smith (No 2) v Regina (1990) 48 A Crim R 49 Regina v Smart (1963) NSWR 706 Williams v Regina (1990) 50 A Crim R 213 R v R A T (2000) NSWCA 77 per Dunford J at 46 Jones v The Queen (1997) 191 CLR 439 R v A R D (2000) NSWCCA 443 Spigelman CJ at (10) Yagar v The Queen (1977) 139 CLR 28 Jackson v The Queen (1976) 134 CLR 42 at 45 R v McCann (1997) 95 A Crim R 308 at 311 Regina v Birks (1990) 19 NSWLR 677 at 683-5 R v A M (2000) NSWCCA 372 Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at (11)-(12), per Callinan J at (182) R v Beserwick (1993) 30 NSWLR 510 at 516 R v Fraser (NSWCCA, unreported 10 August 1998 at 28 R v Greenham (1999) NSWCCA 8 at (28) R v A T M (2000) NSWCCA 475 at (72-77) R v Tripodina (1988) 35 A Crim R 183 at 191-195 R v King (2000) NSWCCA 507 at paras 49-54 Crampton v The Queen (2000) 75 ALJR 133 R v Johnston (1998) 45 NSWLR 363 at 375 R v Kennedy (2000) NSWCCA 487 at aparas 62-65 R v AT (2000) NSWCCA 342 at paras 66-69 R v Longman (1989) 168 CLR 79 at 90-91
DECISION:	1. Leave to appeal be granted pursuant to r 4 of the Criminal Appeal Rules in relation to ground 1(a) of the Grounds of Appeal. 2. That the appeal against conviction be allowed. 3. That the convictions and sentences be quashed. 4. That a new trial be ordered.

IN THE COURT

OF CRIMINAL APPEAL

60479/00



MASON P
GILES JA
WHEALY J


FRIDAY 16 March 2001


REGINA v Garry John DIXON


JUDGMENT

1    MASON P: I agree with Whealy J.

2    GILES JA: I agree with Whealy J.

3    WHEALY J: This is an appeal against conviction on four charges of child sexual assault after trial by jury in the District Court.

4 The appellant was arraigned on an indictment containing four counts. Counts 1 and 3 related to charges of having sexual intercourse with a child under ten years, contrary to s 66A of the Crimes Act 1900 (NSW). The first charge alleged an offence committed between 1 July 1995 and 31 December 1995 at Shalvey. The second (count 3) alleged an offence committed between 1 July 1996 and 9 September 1996 at Narrabri.

5    Count 2 alleged that between 1 July 1995 and 31 December 1995 at Shalvey the appellant incited “BM” to an act of indecency with himself, she being then under the age of ten years (Crimes Act s 61N). The fourth count was in identical terms alleging however, that this event occurred between 1 July 1996 and 9 September 1996.

6    On 23 March 2000 the jury returned a verdict of guilty on each count. The applicant was sentenced on 14 July 2000 as follows: -

Counts 1 and 3
Four years imprisonment with a non parole period of 18 months to date from 14 July 2000 and to expire on 13 January 2002.
Counts 2 and 4
A fixed term of nine months imprisonment to date from 14 July 2000.

The Crown case

7    In about July 1995 the applicant commenced a defacto relationship with the complainant’s mother. He moved into a property with the complainant’s mother and two other children. At this stage they were living at 9 Margaret Court, Shalvey.

8    The complainant had her own room in the house. One night when the complainant was in about Year 3 at school and about eight years old, the appellant came into her room and woke her up. When she woke up, she saw the appellant kneeling down next to her bed. The complainant was wearing satin boxer shorts at the time and the appellant told her to pull her pants down. She pulled her shorts and underpants down and the appellant then put his finger, or fingers, into her vagina and moved it, or them, around. This went on for a few minutes.

9    The complainant’s bedroom door was open and the light from the television in the lounge room was visible in her room. The complainant’s mother was asleep in the lounge room at this time. Eventually the appellant stopped and then walked out of the room. In cross-examination she said she was too scared to call out to her mother and she also maintained that the appellant had told her not to tell her mother. As to this last matter, the complainant agreed she had not told the interviewing police that this statement was made.

10    On another occasion when they were living in Shalvey, either before or after the incident described above, the appellant made the complainant “pull his penis up and down” with her hand. This incident occurred in the lounge room of the house, during the day, while her mother was at the shop. She did this for a few minutes and stopped as she was scared. She went back to her room.

11    In 1996 the complainant, her mother, her younger brother and the appellant moved to Dubbo. On 15 April 1996 the complainant was enrolled at West Dubbo Primary School. They first lived with the complainant’s maternal grandparents and other family members at 7 Gumtree Avenue, Dubbo. They then moved from Dubbo to Narrabri. On 16 July 1996, the complainant was enrolled at Narrabri Primary School. In this township, they first lived, for a brief period, in the house of Jessie Dixon, a relative of the appellant.

12    They moved from Jessie Dixon’s house to a flat in Narrabri. On one occasion the complainant was in the lounge room of the flat with the appellant. Her mother was asleep on one of the couches and the appellant was sitting on the other couch. Her younger brother was also in the room.

13    The appellant called the complainant over and exposed his penis. He made the complainant place her hand on his penis and pull it up and down as she had done before. At the same time the appellant also put his fingers in her vagina and moved his fingers around. This went on for a few minutes and eventually stopped when the complainant pulled her hand away and walked away from the appellant.

14    The complainant said that she did not try and wake her mother as she was scared the appellant would hit her mother. She had seen the appellant hit her mother “before”.

15    The complainant said that when they had been living at the house of Jessie Dixon, she had told the appellant’s niece Dianne (who was about ten or eleven at the time) something about the things the appellant had done to her at Shalvey. She told Dianne “he makes me wank him”.

16    The complainant said that some time after all these events, when she was in Year 6 or the start of Year 7, while she was at her grandparent’s house at 7 Gumtree Avenue, Dubbo her Uncle Rick (Patrick Reid) “asked me where he touched me and I said … that he touched me on my private spot”.

17    In cross-examination, the complainant agreed that she had never told her mother about anything the applicant had allegedly done to her and never made any complaint to the mother about any such matter.

18    The appellant’s niece, Dianne, gave evidence without objection, that she had a conversation with the complainant concerning the appellant at her Aunt Jessie’s house at 7 Lenore Street, Narrabri. She said that the complainant had told her that the appellant had been cruel to her. She said, however, - “I have never seen him hit her or anything”. She asked the complainant why she was scared of the appellant and, when questioned, the complainant told her he “pulls my hair and slaps me around”. There was nothing in Dianne’s evidence to suggest that the complainant had asserted to her that the appellant had done anything of a sexual nature.

The Defence Tactic

19    It is clear from this brief description that the Crown case was, in some respects, not strong. It relied essentially on the evidence of the complainant in circumstances where there was no reliable evidence of any complaint having been made, where there was no corroboration, medical or otherwise, and where a significant delay had occurred between the time of the commission of the first offence and the reporting of the matter to the police. An examination of the transcript shows that trial counsel adopted the tactic of highlighting a number of inconsistencies in the complainant’s evidence, and emphasising at the same time the lack of any complaint over a significant period of time. This extended to immediate family, relatives generally, friends and teachers. The final plank in the defence tactic was to suggest that the complainant’s family had put their heads together to persuade the complainant to fabricate the story to “pay back” the appellant for running off with another woman.

20    It is clear that trial counsel embraced the proposition that it would be beneficial to his client’s case if evidence of so called complaints could be brought out into the open so as to highlight their inconsistency with the complaint’s own evidence and to demonstrate, in the end, that they were not matters of complaint which could be relied upon by the Crown at all. Indeed, as will be seen, her Honour accepted the submissions that these matters were not matters of recent complaint and gave directions accordingly. A necessary consequence of the tactic, however, was that the evidence was plainly and unambiguously before the jury. The evidence of the appellant’s niece Dianne, provides a clear illustration. Trial Counsel had shown, by allowing the evidence, that there was a significant inconsistency between the complainant and Dianne. If the jury were to accept Dianne’s evidence, this would throw serious doubt on the complainant’s assertion that she had told Dianne “he makes me wank him”. On the other hand, the acceptance of Dianne’s evidence was capable of leading the jury to believe the complainant was frightened of the appellant and had been physically assaulted by him. Such evidence gave a possible explanation for the failure to complain about the alleged sexual assaults.

21    No doubt emboldened by this tactic, trial counsel confronted the complainant’s mother with the proposition that her daughter had not made any complaint to her to suggest that the appellant had interfered with her. After all, the complainant had said this was the case. The transcript records the following (p 45 line 46): -

Q. (The complainant), did she ever tell you that John had interfered with her in any way?
A. She said something to me once but I wouldn’t believe her, because her and John seemed to get on really good, and he didn’t come across as that sort of person so, and I didn’t believe it, and then once they told me what happened, and that, and I said to (the complainant) that the Detective was coming over to see her; and I said “Well tell me now was it more than once that he done it” and then she told me everything then”.

22    Trial counsel, no doubt taken aback somewhat by this evidence, proceeded to confront the complainant’s mother about it and eventually compelled her to give details about the occasion of the complaint. The matter having been raised in cross-examination, the Crown appeared to think it appropriate to seek some further detail of the complaint in re-examination. That evidence (again without objection) suggested that the complaint had been made to the mother when the appellant and her daughter were living at Milton Way, Shalvey. They had apparently moved back to the suburb of Shalvey (to the home of a relative of the appellant’s) after they had been at Narrabri for a period. The incident therefore occurred some time after the matters which were the subject of counts 2 and 4 in the indictment. The transcript records the following at p 47 lines 10 to 25: -

“ Crown Prosecutor :
Q. You said something “at John’s niece’s place”, whereabouts was that?
A. Milton Way, Shalvey.
Q. Where abouts in the house did she tell you?
A. Upstairs.
Q. What did she say?
A. She came up and she said “Mum”, he was downstairs, had my two kids downstairs and she come up and she said “Mum, John just put his hand down my pants” and I said, and I said “Ah”, and I didn’t know what to say and I didn’t believe her, and …”.

23    It is of course difficult to say whether this evidence was completely unexpected. A reading of the transcript suggests to me that, on balance, it was. If that be so, it must be said the tactic of drawing out complaint evidence had seriously gone wrong for the appellant. There was now before the jury evidence of a sexual assault (“John just put his hand down my pants”) quite separate from and unrelated to the matters charged in the indictment. Further, there was evidence of an immediate complaint to the mother about this much more recent incident.

24    The complainant’s great uncle, Patrick Reid next gave evidence. It was he who took the complainant to the police after his conversation with her on 30 January 1999. Trial counsel cross-examined this witness to emphasise once again the inconsistencies between the complainant’s version of what she said she had told her uncle and his version of that conversation. The cross-examination also emphasised the fact that no complaint had been made at any earlier time to the uncle, and that the topic of any interference by the appellant with the complainant was a matter raised by Mr Reid with her rather than the complainant reporting the matter herself. It is of some significance that Mr Reid’s version of the complainant’s words to him (when he asked her whether the appellant had interfered with her) were “He put his hand down inside my pants”. Although this version was, to a degree, inconsistent with the complainant’s own version of the conversation (and inconsistent with her version of the events themselves), it was very similar to the description of the complaint about the separate and later incident given by the mother. This could hardly have escaped the jury’s attention.

The further course of the Trial

25    The appellant did not give evidence nor was there any evidence called on his behalf. In the absence of the jury, there was discussion between her Honour and counsel regarding those aspects of the proposed summing-up relating to the “complaint” evidence. The Crown submitted that the evidence of Dianne and the evidence of the complainant’s mother should be the subject of directions that those conversations be regarded as evidence of the truth. Trial counsel urged the contrary upon her Honour and submitted that it would be prejudicial to allow the evidence of the niece and mother as evidence of the truth. He submitted that the appropriate comment was that the evidence should be addressed in terms of the complainant’s credit and the credit of the witnesses themselves. The transcript records the following at p 59: -

“ Her Honour: I am of the view Mr Crown that there has really been no complaint. What I intend to do is simply give a direction as to the absence of complaint.”

26 The trial judge then proceeded to give her summing-up to the jury. This was a most comprehensive summing-up and proceeded over some 23 pages of transcript. Her Honour made it clear, as had been submitted by the Crown, that the Crown case stood or fell depending upon whether the jury accepted the complainant as a truthful, accurate and reliable witness. Her Honour addressed on the burden of proof and on the necessary ingredients of all four charges. The next step in the charge to the jury was to repeat that the Crown case stood or fell depending upon whether the jury accepted the evidence of the complainant beyond reasonable doubt. Her Honour stressed, apart from the evidence of the complainant, there was no other evidence against the accused. The next topic (between pages 13 and 18) related to directions as to whether or not there had been any actual complaint made shortly after the commission of the offences. Her Honour said there had been no such complaint. She gave the standard direction in relation to the way in which a jury may use evidence of a complaint as evidence of a consistent course of conduct on the part of the complainant, and also as truth of the complaint. She reiterated that in the present case there had been no immediate complaint at all either in relation to the incidents at Shalvey or Narrabri. Her Honour stated that the essence of the submission made by trial counsel was that the absence of any complaint made by the complainant was inconsistent with the conduct of a truthful person who has been sexually assaulted; and that, so it was alleged by trial counsel, the complainant’s evidence should be regarded as false. Her Honour then gave the warning required by s 107 of the Criminal Procedure Act 1986 and informed the jury that there might be good reasons why a victim of a sexual assault might refrain from making a complaint about the assault. In this context, her Honour made specific reference to the age of the complainant, to the evidence which had arisen in the case of a young girl who had seen violence against her mother and who was frightened that her mother might be hit, if she made any complaint about the actions of the appellant. Her Honour was careful however, to point out to the jury that they should not use the evidence of violence inflicted by the accused upon the complainant’s mother in any prejudicial way against the accused. Her Honour’s directions in this regard were carefully and appropriately expressed and there is no challenge to them in this appeal.

27    Her Honour then went to the evidence of Dianne. She summarised this, repeated the Crown’s submission made in relation to the evidence (to which I shall make reference later) and concluded: -

“But as I say the accused on the other hand says well the reason why no complaint of sexual assault was made was simply because it did not happen, and she has simply made up the whole account of the evidence she has given about that. Those are matters which you will consider because as I have said you will look carefully at the evidence given by (the complainant).”

28    In relation to the mother’s evidence, her Honour said this: -

“… she said that her daughter had mentioned something to her about John putting his hand in her pants. You will recall of course that (the complainant) said that at no time had she ever said anything to her mother. However, her mother said that at some stage, probably a year and a half or so before they finally moved to Dubbo at the time before the complaint was made to the police that her daughter had mentioned something to her about it but she said she did not believe her daughter, she did not think that he would be like that and she just in effect did nothing about it and ignored it. …That is a matter for you whether you accept what (she) said about her daughter mentioning it but in any event it was mentioned sometime, it would seem, although it is a bit vague, sometime well after these offences had taken place, if you find they did take place.”

29    The only reference to Patrick Reid’s evidence was very brief. Her Honour said that Mr Reid gave evidence of speaking to his niece and of what she had told him about what the accused had been doing or had done to her.

30    The summing-up continued on a number of different topics. There were directions given about the fact that the accused had not given evidence; there was a summary of the Crown and defence arguments stressing again that the essential issue was whether the complainant was to be regarded as a witness of truth. Her Honour concluded this summary in the following terms: -

“In effect what he is saying to you is that those other witnesses are telling the truth and this girl is lying to you. Well those are matters entirely for you of course, but he says that she is so unreliable that you could not possibly convict the accused on such evidence as that and indeed you would reject her evidence because he simply submits it did not take place what she alleges and you would acquit the accused of these charges.”

31    Her Honour gave one final direction regarding the need to return a verdict on each of the charges. There is a ground of appeal in relation to that direction and I will return to it at a later stage.

32    When the summing-up had concluded, trial counsel sought a re-direction on two matters. The first of those was a matter relating to the evidence which had been given by Dianne. Counsel submitted that an inappropriate direction had been given in relation to the drawing of inferences from that evidence. Her Honour declined to give a redirection as requested giving as her reason that her statements had been no more than a repetition of one of the submissions which the Crown had put to the jury.

33    The second redirection sought related to her Honour’s direction regarding the failure of the accused to give evidence. I shall return to this aspect in the course of considering the submissions. It is sufficient to say at this stage that her Honour declined to give the redirection as sought in relation to this topic.

34    The jury returned a verdict on all counts later in the afternoon of the same day.

The Grounds of Appeal

35    At the hearing of the appeal the appellant was represented by Mr Angus Webb of counsel. He did not appear as trial counsel. The written submissions relied upon by Mr Webb on behalf of the appellant were some 30 pages in length. These were refined somewhat in the oral submissions put to the Court at the hearing of the appeal.

36    Ground 1(a):

Her Honour erred in failing to giving adequate or clear directions on the use that could properly be made of those areas of the evidence generally referred to as “complaint” evidence.

37    In my opinion, there is no substance in this submission insofar as it relates to the evidence of Dianne and Patrick Reid. The evidence of the complainant’s mother falls into a different category and I shall deal with it separately. For reasons which I shall explain at the end of this decision, I consider that this ground of appeal, insofar as it relates to the mother’s evidence, has been made good.

38    It is important, however, to note that, in relation to the evidence of all three witnesses (Dianne, Patrick Reid and the complainant’s mother) no objection was taken at the trial to their evidence, nor, with the one exception I have mentioned, were any redirections sought in relation to the matters which are the subject of this aspect of the grounds of appeal.

39    So far as the evidence of Dianne and Patrick Reid were concerned, it is clear to my mind that trial counsel, whether or not he might have objected to the evidence and might have had it excluded, wanted that material before the jury. Not only that, trial counsel wanted the jury to accept the evidence of these witnesses because the acceptance of their evidence, according to his ultimate submission, threw doubt on the reliability of the complainant herself. In those circumstances, it is not open for appeal counsel to argue that the jury should have been directed not to accept this evidence so as to reflect a permissible Crown submission that the evidence carried with it, insofar as it did, a reason why the complainant may not have made a complaint to her mother or members of her family.

40    Further, her Honour made it clear to the jury that there was no evidence of recent complaint which the jury might use as evidence of the truth of such complaint. Her reference to the evidence of Dianne is plainly made in the context of the one issue namely, the credibility of the complainant. This was the very tactic at the centre of the defence case. I shall set out the passage at p 16 of the transcript where her Honour dealt with the question of Dianne’s evidence: -

“(The complainant) has told you that indeed she did speak to Dianne who was the accused’s niece and told her. Dianne says well she did not say anything of any sexual nature, she said that he had been cruel to her and he had done dangerous things to her which she explained as being violent acts against her but she certainly did say that (the complainant) told her she was scared of the accused and indeed to such an extent that she wanted to sleep with Dianne and indeed stayed very close to Dianne in the house when the accused was also present in the house. Even though, as the Crown has submitted, there has been no, according to Dianne, no complaint of a sexual nature you might infer from what Dianne says that the girl was indeed frightened of John and the only conclusion you would form that is that she was frightened because of the sexual assaults inflicted upon her . But as I say the accused on the other hand says well the reason why no complaint of sexual assault was made was simply because it did not happen and she has simply made up the whole account of the evidence she has given about that. Those are matters that you will consider because as I have said you will look carefully at the evidence given by (the complainant).” [my underlining].

41    In relation to the underlined sentence above, it is the appellant’s submission that the jury would have taken her Honour to have been directing them that the only conclusion they could draw from this evidence is that the appellant had sexually assaulted the complainant.

42    It is of course necessary to consider the impugned sentence not only in the context of the paragraph in which it appears but as part of the summing-up as a whole. (Regina v Holden (1917) 34 WN (NSW) 78; Courtney-Smith (No 2) v Regina (1990) 48 A Crim R 49). It also important to ensure that the summing-up is seen in the context of the trial as a whole, taking into account the addresses of counsel and the tactics of the defence case (Regina v Smart (1963) NSWR 706; Williams v Regina (1990) 50 A Crim R 213).

43    In my opinion, read in context, the relevant sentence is, in terms, a reference to the Crown Prosecutor’s submission as to how the jury might use the niece’s evidence in the event that they accepted it. As I have said, trial counsel urged upon the jury they should accept the evidence of Dianne. This included evidence that the complainant said that she was scared of the appellant. Such a state of mind was relevant to support the Crown case and to explain the absence of complaint. Her Honour was doing no more than summarising the Crown’s submission on the point. The jury had heard the full submission by the Crown only a short time prior to her Honour’s remarks. Her Honour had given a lengthy direction to the jury prior to mentioning the evidence of Dianne that no complaint had been made shortly after the commission of the alleged offences. Her Honour had also made it clear by her direction that, as a consequence, there was no evidence of the truth of any such complaint. It is clear in my opinion, that the jury would have plainly understood the directions which had been given. The final sentences in the passage I have set out balanced the submissions of the accused’s counsel against the Crown submission, so as to eliminate any unfair emphasis.

44    In relation to the evidence of Patrick Reid, it was common ground in the trial that his evidence of the conversation he had with the complainant was not evidence of the complaint. Her Honour’s general direction on the topic confirmed this and made it clear that this evidence was not evidence of the truth of the “complaint”. Again it must be said that trial counsel wanted the jury to accept Patrick Reid’s version of the conversation he had with the complainant on the topic. It enabled trial counsel to attack the credibility of the complainant because of the difference in their respective versions. A direction from the judge that the jury should not accept the evidence of Mr Reid would have flown completely in the face of the case which trial counsel wished to present on his client’s behalf. This is precisely why trial counsel did not seek such a direction and indeed, submitted to the jury that they should accept Mr Reid.

45    It is not open to appeal counsel to complain that a direction was not given where such a direction would have clearly undermined the defence case and in circumstances where no redirection was sought. Finally, her Honour’s brief reference to Mr Reid’s evidence at p 18 was plainly in the context of the assessment of the complainant’s credibility which is precisely where, having regard to the nature of trial conducted, it belonged.

Ground 1(b):

Such directions and comments as were given and made … contained factual suggestions not supported by the evidence

46    At page 14 of the summing-up her Honour had said that although the complainant had not made an immediate complaint at Narrabri, she had said that she was frightened “and she had seen violence in the house”. She had seen the accused hitting her mother. Her mother had given evidence that she had been struck by the appellant on occasions and at times in front of her daughter. Her Honour proceeded to give a direction beneficial to the appellant by pointing out that the fact “he has hit these people around” was not to be used by the jury in any way showing that he had committed the sexual assaults upon the complainant.

47    At p 20 of the summing-up, when repeating the Crown’s submissions, her Honour referred to the submission that “a lot of violence went on in that household and you have a young girl confronted with that situation”.

48    It is submitted that the sentences extracted from the summing-up paint a bleaker and more extreme situation than that presented by the evidence in fact. I do not accept this submission. The first reference on p 14 was clearly supported by the evidence of the complainant and her mother. The second passage was merely a repetition of the Crown submission.

49    A reading of the summing-up as a whole, in the context of the trial evidence, does not support this submission.

Ground 2:

Her Honour erred in instructing the jury (in effect) that if they reached a verdict “Guilty” or “Not Guilty” on the first charge, then they would find the same verdicts (sic) on all of the other charges.

50    The first point made in the written submissions is that there was a genuine basis upon which the two sets of counts in the indictment may have been distinguishable from each other in the trial. It is my understanding, however, that appeal counsel resiled from this suggestion at the hearing, making a proper concession that upon reflection, this was not so.

51    Notwithstanding the concession, the submission is nevertheless advanced that the direction given by her Honour was inappropriate and disclosed error. The direction appears at p 22 of the transcript. It is in the following terms: -

“Now in this case, except for a couple of matters I will say to you before retiring to consider your verdict, I should say to you that you will have to return a verdict on each of the charges that you are considering whether it be guilty or not guilty. Because you may find him not guilty or guilty whatever the case may be on the first charge does not necessarily follow that the verdict would be the same. However, the way in which this trial has been conducted it would seem to follow that if you find the accused guilty or not guilty or whatever it might be on the first charge, you would find the same verdicts on all of the other charges because as is well in your mind the evidence relies upon (the complainant) and if you accept her one would assume, it is a matter entirely for you, that you accept that everything she said took place as to the sexual offences. If you reject her well obviously you would reject her as to all of the matters she says took place.”

52    As I have noted above, the concessions made by appeal counsel that there was, in truth, no distinguishing feature between the two sets of counts in the indictment was properly made. There was nothing in the complainant’s evidence or the surrounding circumstances which gave any ground for supposing that with respect to a particular count her evidence was more reliable than it was in relation to any of the other counts. In R v R A T (2000) NSWCCA 77 Dunford J (with whom Barr J agreed) at (46) held that Jones v The Queen (1997) 191 CLR 439 appears to have established that in sexual assault cases where the only direct evidence of the commission of the offences is that of the complainant, if the jury is for any reason not satisfied beyond reasonable doubt that the complainant is telling the truth in relation to one count, it is not open to them to be satisfied to the criminal standard that the complainant is telling the truth in relation to any other count. Therefore, in such cases, if the jury finds an accused not guilty on one count it must also find him not guilty on all counts. Hulme J at (55) agreed with Dunford J that in some cases such a direction may be appropriate. Hulme J said at (55): -

“However it seems to me before such a direction is required, not only would the complainant’s evidence of the commission of the offences have to be the only direct evidence of the commission of the offences but there would have to be nothing else in the evidence bearing on her credibility or in the evidence of surrounding circumstances which lends support for one charge rather than another.”

53    In R v ARD (2000) NSWCCA 443 Spigelman CJ said at (10) that the direction proposed by Dunford J in R v RAT was not suggested by his Honour to be a mandatory direction. Spigelman CJ said that he agreed with Dunford J that, depending on the circumstances of the case, it will often be prudent, and sometimes necessary, to assist the jury in the manner suggested by Dunford J. There is nothing however, in RAT or ARD which would warrant the giving of a direction in a sexual assault case requiring the jury to find an accused guilty of the remaining counts in the indictment if they were satisfied beyond reasonable doubt that he was guilty of an earlier count.

54    The submission was made that her Honour’s direction amounted to a direction that the jury, if they found the accused guilty on the first count, should necessarily find the accused guilty on the remaining counts.

55    Although this aspect of the submission was not fully argued, it raised the broader question as to whether a trial judge could ever direct a jury to bring in a verdict of guilty.

56    In Yager v The Queen (1977) 139 CLR 28 there were, for relevant purposes, two live issues. These were whether the remarks of the trial judge amounted to a direction to the jury to find the accused guilty. Secondly, whether in a trial where all the material ingredients of the offence had been established either by admission or without dispute, a presiding judge cannot so inform the jury and tell them it is their duty to return a verdict of guilty. Barwick CJ and Mason J (as he then was), with whom Stephens J agreed, were of the view that in circumstances where all the elements of a charge were admitted or were not disputed, the trial judge was entitled to direct the jury to return a verdict of guilty (see also Jackson v The Queen (1976) 134 CLR 42 at 45).

57    Gibbs J (as he then was) and Murphy J were of a different opinion. Gibbs J said (at 39) that a judge should never go so far as to direct a jury to bring in a verdict of guilty. He suggested that to so direct them would be to usurp their function and suggest to them, wrongly, that the responsibility of returning a verdict was not theirs alone (see also R v McCann (1997) 95 A Crim R 308 at 311).

58    There is nothing in the present trial which would in any way align it with the wholly unusual circumstances identified in Yager. If her Honour’s direction, fairly construed, amounted to a direction of the kind categorised by the appellant’s submissions, I would have serious reservations about accepting that the direction was permissible. I do not, however, accept that the direction should be read in this way. Her Honour had, in the earlier part of her summing-up, informed the jury that it was no part of her function to decide the facts and that it was the responsibility of the jury to do so, and their responsibility alone. Her Honour told the jury that it was common ground in the trial that the Crown case depended upon the complainant and whether her evidence was to be accepted beyond reasonable doubt. Her Honour had informed the jury that the burden of proof of the guilt of the accused was placed firmly upon the Crown and that the burden remains upon the Crown in relation to every element of each of the charges. Her Honour analysed and described the ingredients of each charge in detail. She stressed that the defence case was that none of these events took place at all; that they were fabricated by the complainant whose evidence was false in relation to each matter.

59    It is against the background of these general matters dealt with in the summing-up that one comes to examine the paragraph containing the direction under attack. In terms, her Honour told the jury that it was necessary that they return a verdict on each of the charges. As well, her Honour told them that “it does not necessarily follow that the same verdict would flow from a finding of guilty or not guilty, for example on the first charge”. I take the next sentence in the paragraph to be a general comment by her Honour as to a practical approach which might be adopted by the jury, having regard to the way in which the trial had been conducted. It is clear that the central issue throughout the trial had been the credibility of the complainant in relation to the matters she alleged against the appellant. In practical terms, if the jury did not believe her in relation to the first charge, they would not believe her in relation to the others; if they did believe her in relation to the first charge, they would believe her as to the others. But that they could and might differentiate between the charges was made clear. It was, perhaps, unfortunate that her Honour chose to run the words “guilty or not guilty” together in this otherwise practical admonition to the jury. It is clear in the concluding part of the paragraph, however, that her Honour stressed that it was entirely a matter for the jury, depending upon whether they accepted “everything” that the complainant had said took place. Her Honour reminded the jury that if they rejected the complainant, they would reject her “obviously” as to all of the matters that she said took place.

60    A fair reading of the summing-up as a whole, and the relevant paragraph in particular, satisfies me that no misdirection of the kind alleged occurred.

Ground 3

The Appellant was otherwise denied a fair trial according to law in the light of:

(i) Inadmissible and prejudicial evidence was led in the trial in response to which trial counsel failed to object and/or failed to seek discharge of the jury …. Counsel also led inadmissible evidence that should not have been led.

(ii) The complainant’s giving of evidence was unfairly contrasted with the election of the accused to remain silent at arrest and trial.

(iii) Her Honour’s summing-up placed undue emphasis on the explanation of deficiencies in the Crown case as perceived by the defence.

(iv) Her Honour failed in the summing-up to comment on the need for caution because of the delay in complaint and its attendant vagueness.

Conduct of Counsel - Point 3(i)

61    Generally an accused is bound by the way the trial is conducted by defence counsel who has a wide discretion to make forensic decisions during the course of the trial. Not every error on the part of trial counsel will result in a successful appeal, although flagrant incompetence may result in a miscarriage of justice: Regina v Birks (1990) 19 NSWLR 677 at 683-5.

62    I do not consider that there has been any infringement of these principles in the present trial. As I have explained, there appears to have been a clear tactical decision, taken from the outset, to highlight the “complaints” described by the complaint’s mother, her uncle and the appellant’s niece. It cannot be said that this was a “flagrantly incompetent” course to pursue, although it carried with it certain attendant dangers. This became especially apparent in relation to the evidence given by the complainant’s mother. It may have been more prudent for trial counsel to leave well enough alone when the mother made an unexpected response to his questions. It seems however, he endeavoured to turn it to his advantage by contrasting the fact that the complainant had asserted on a number of occasions that she had never complained to her mother. Whatever damage was done by the answers given by the mother in cross-examination and re-examination, nevertheless, the evidence permitted trial counsel to maintain his continued attack upon the complainant’s credibility. I am not satisfied that the conduct of counsel was incompetent or that it brought about any miscarriage of justice. It is clear that a considered decision was made to allow in or lead evidence which it was perceived would damage the complainant’s standing as a credible witness.

63    There is no substance in this ground.

Direction regarding the Accused’s failure to give evidence - 3(ii)

64    Appeal counsel conceded that this was not his strongest point. His sole attack focuses upon one sentence at p 20 of transcript. There her Honour had said (when dealing with the evidence given by the complainant):

“She did not attempt to avoid giving evidence.”

65    It is said that this sentence contrasts unfavourably with the directions which had just been given regarding the accused’s election not to give evidence. This is a textual attack which, in my opinion, has no substance.

66    Her Honour had given a direction in impeccable terms regarding the election by the accused not to give evidence. This extended over one and a half pages of the transcript (pages 19 and 20).

67    When read in its context, the sentence under attack appears in a passage in which her Honour repeated, once again, the importance of deciding whether to accept or not the evidence given by the complainant. In this context, the sentence means no more than that, as a witness, the complainant was not evasive in her method of giving evidence. I have no doubt this is precisely the matter her Honour intended to convey, and that it would have been so understood by the jury.

68    There is no substance in this submission.

Undue emphasis placed on Crown case - 3(iii)

69    It is submitted that, in the summing-up, her Honour devoted too much time to the issue of the absence of complaint in the Crown case and that this occasioned a miscarriage of justice.

As I have already noted, this was the major part of the defence case. Additionally her Honour was obliged to give the warnings and directions as required by s 107 of the Criminal Procedure Act 1986 and did so. Having read the entirety of the summing-up, I am of the opinion there is no substance in this submission. The defence case was presented adequately and fairly in her Honour’s extensive analysis.

The need to make a Longman Direction in relation to delay - 3(iv)

71    The appellant submits that her Honour failed in the summing-up to comment on the need for caution because of the delay in complaint. Specifically, it is submitted that warnings in the present matter should have been given to alert the jury to two aspects of potential difficulty. The first was the difficulty of testing the allegations themselves, given the wide time span into which the allegations fitted. The second aspect was that of the delay itself. It was conceded that the complaints were not “ancient”. It was submitted nonetheless that it would have been appropriate to alert the jury to the possibility of difficulties arising in situations where there is no recent complaint.

72    The Crown, on the other hand, urges that nothing occurred in the trial to indicate that the appellant encountered any particular difficulties in testing the evidence of the prosecution or adducing evidence in defence. Nor, at the hearing of this appeal, was any matter so identified. In relation to the aspect of delay in complaint effecting the credibility of the complainant, it is submitted that although there was no “immediate complaint” the delay in complaint was not of a kind requiring her Honour to make a comment about delay affecting credibility. Finally, it was submitted that no comment or warning was sought by trial counsel concerning the matter of delay in complaint.

73    In trials of sexual assault, where delay in raising complaint has arguably disadvantaged the accused in his ability to defend himself, the High Court has made it clear that there may arise a need for either comments or warnings to address consequent issues prejudicial to the defence case. In Longman v The Queen (1989) 168 CLR 79, in the joint judgment of Brennan, Dawson and Toohey JJ, their Honours (at 90-91) stressed the importance of warning the jury, in an appropriate case, that the accused may have lost the means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. Indeed, in a particular case, the warning is imperative and should go so far as to tell the jury it would be dangerous to convict on the complainant’s evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. It is not sufficient, in such a case, to tell the jury simply to consider the relative credibility of the complainant and the appellant without either a warning or comment related to the factors relevant to the evaluation of the evidence.

74    More recently in Crampton v The Queen (2000) 75 ALJR 133, the High Court reiterated and emphasised these principles. In the joint judgment of Gaudron, Gummow and Callinan JJ, their Honours, referring to the relevant passage from Longman, noted that it distinguished between two different sets of circumstances, those which might well invite and would generally require, comment; and those in respect of which a warning would be imperative.

75    Their Honours then referred to and quoted passages from the judgment of Deane J at 95-96; and McHugh J at 108-109 in Longman. Their Honours said at 141 para 45: -

The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused’s defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant’s evidence alone without the closest scrutiny of the complainant’s evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman : the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.”

76    The Longman principles have also been considered by this Court. In R v Johnston (1998) 45 NSWLR 362 at 375 Spigelman CJ analysed circumstances which may give rise in a particular trial to the need for a trial judge to give either a comment or warning of the kinds specified in Longman. His Honour’s analysis stressed the fact that the need for, and content, of any such comment or warning would depend on the circumstances of the case.

77    The practical application of these principles may be seen, for example, in R v Kennedy (2000) NSWCCA 487 (at paras 62-65); R v AT (2000) NSWCCA 342 at paras 62-69; R v King (2000) NSWCCA 507 at paras 71-74. The circumstances of the present trial were that the complainant gave evidence that she had told her friend Dianne of the incidents at Shalvey a relatively short time after the occurrence. At the most, it was a matter of months only. She did not report the incidents to Patrick Reid or the police until December 1999, with the consequence that a period of some four years elapsed between the first incident and its report to authorities. The trial itself came on quite quickly, about six months later in May 2000.

78    It does not seems to me that the passage of some four years in the circumstances of this case, particularly given the absence of any suggestion in the conduct of the trial to suggest that any specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, necessarily gave rise to an imperative that a warning of the more severe kind referred to in Longman was required. The delay which had occurred in Longman was more than twenty years. The delay was about twenty years in Crampton. By comparison, having regard to the facts and circumstances of the present trial, I do not consider that there was a need for a warning that it would be dangerous to convict on the evidence of the complainant alone.

79    More importantly, appeal counsel was unable to point to any specific matters which conveyed, with conviction, the proposition that specific difficulties were encountered by the appellant in the course of the present trial. It is true that the written submissions refer to the possible difficulty of testing the complainant’s allegations given the lapse of a period of years. The only reference I have been able to find to any factual matter in the evidence, possibly relevant to such a potential difficulty, appears at page 22 of the transcript where the complainant was asked whether she was able to recall that the applicant was not living with the family at Shalvey for a period after 23 November 1995. The complainant said she was unable to remember whether this was so or not. This suggestion does not appear to have been pursued by trial counsel in any way through out the remainder of the trial. Indeed, the essential nature of the defence case was that the complainant had fabricated her evidence as a consequence of a family vendetta against the appellant. For these reasons, I do not consider that her Honour fell into error in failing to give, in the circumstances of this case, a Longman direction.

80    I have, however, indicated earlier in these reasons that one ground has been made good. The basis of the successful ground, and the consequent need for a new trial, are discussed later in this judgment. It is sufficient to say in relation to any new trial, that, the rejection of this ground does not mean, depending on the evidence and the issues arising in the course of such trial, that a comment or warning of the lesser kind addressed in Longman and Crampton may not be appropriate. That will be a matter essentially for the trial judge who will be in the best position to assess having regard to the course of the trial, whether such a comment or warning is required.

Ground 4

Unreasonable Verdict

81    This ground was not pressed.

The Evidence of the Complainant’s Mother

82    As I have said earlier, I have come to the conclusion that her Honour failed to give adequate directions in relation to the evidence elicited both by trial counsel and the Crown (the latter in re-examination) from the complainant’s mother. This related to a conversation between the complainant and her mother regarding an alleged sexual incident which occurred at Milton Way, Shalvey.

83    This evidence, if accepted, demonstrated that the complainant had immediately complained about an incident which occurred perhaps a year or so after the occurrence of the last of the assaults charged in the indictment. In my opinion, the evidence of the conversation between the mother and daughter as to the incident itself was not admissible on any basis. It was not relationship evidence since such evidence could only be admitted if the relationship were relevant to the issues before the jury: R v AN (2000) NSWCCA 372. It was not generally admissible as it had no relevance to the issues raised in the trial; Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at paras (11) - (12), per Callinan J at para (182). The evidence was neither relevant so as to place the events giving rise to the charges in the indictment into context and to explain the conduct of the complainant and the accused on the particular occasions specified in the indictment; nor was it evidence of any tendency on the part of the accused to act in a particular way towards the complainant, sometimes described as “guilty passion”. It was conceded by the Crown that the evidence was not relied upon, nor sought to be relied upon, as tendency evidence at the trial in any way.

84 As the asserted conversation was not relevant to any issue in the trial, it could not have been a matter which properly arose as re-examination. It was also conceded on the hearing of the appeal that s 108(3) of the Evidence Act 1995 would not have had operation in the circumstances so as to permit leave to be given to adduce the evidence.

85    Notwithstanding all this, the evidence was plainly before the jury. What were they to make of it? It is the duty of a trial judge to explain to the jury the purpose for which the evidence of uncharged acts of sexual misconduct by the accused towards a complainant have been placed before them. It is the duty of a trial judge to make clear to the jury the use they may make of such evidence in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary for the trial judge to warn the jury about any such impermissible use. It will generally be necessary to direct them against using the evidence in a way other than that for which it was admitted into evidence; R v Beserick (1993) 30 NSWLR 510 at 516; R v Fraser (NSWCCA, unreported 10 August 1998 at para 28); R v Greenham (1999) NSWCCA 8 at para (28); R v ATM (2000) NSWCCA 475 at paras (72-77). It will usually be necessary, for example for the judge to give a warning that the jury should not substitute the evidence of any other sexual activity for the specific activity which is the subject of any charge in the indictment. Moreover, the jury should be told they must not reason that because the accused may have done something wrong to the complainant on some other occasion, that he must have done so on the occasion which is the subject of the charge; R v Greenham above, at paras (28) - (29).

86    In my opinion, the brief paragraph in her Honour’s summing-up which I have set out earlier in these reasons, did not adequately do justice to the principles to which I have referred. In saying this, I accept that her Honour was placed in a most difficult position. The particular evidence had emerged unexpectedly. It came “out of the blue”. It had a capacity to do substantial damage to the appellant’s position at trial. It was not, as I have explained, relationship evidence. Indeed, it had not been admitted in the trial for any purpose whatever. It had simply emerged as an unexpected, and no doubt unwanted, consequence of the defence tactic of highlighting inconsistencies between the complainant and other witnesses. I suspect from the very brief and rather dismissive remarks made by her Honour regarding the evidence, that her Honour sought, as it were, to sweep the matter “under the carpet”. This, however, was not a sufficient method of dealing with the damaging material.

87    The direction which her Honour gave, arguably, related the evidence to the issue of the complainant’s credibility, although this is not altogether clear. It may have been that the jury understood that the general directions on complaint evidence which had been given required that they should not regard the mother’s evidence as evidence of the truth of the matter allegedly asserted by her daughter to her. At the very least, however, the evidence required a forceful direction that the material should be ignored and put to one side altogether; that the jury should make no use of it whatsoever in determining the charges against the accused. Further, that it would be quite impermissible to substitute the evidence of the incident at Milton Way, Shalvey for the specific activities which were the subject of the particular charges in the indictment. I doubt, however, whether even forceful directions of this kind would have been sufficient to undo the prejudice occasioned by the evidence. It may well be the position that the appropriate action to take in all the circumstances was to discharge the jury.

88    It is of course the fact that no application was made to discharge the jury nor were any re-directions sought in relation to the mother’s evidence. I am satisfied, however, that the failure to give adequate directions in relation to this evidence was attended by a real risk that the jury would make use of it wrongly to the appellant’s detriment. The likelihood of misuse was so high as to raise the real possibility of a miscarriage of justice. In such circumstances, it is appropriate to grant leave to the appellant to argue the ground; R v Tripodina (1988) 35 A Crim R 183 at 191-195; R v King (above (71-74).

89    For these reasons I am persuaded that the appeal against conviction should be allowed.

90    I would therefore propose the following orders: -

1. Leave to appeal be granted pursuant to r 4 of the Criminal Appeal Rules in relation to ground 1(a) of the Grounds of Appeal.

2. That the appeal against conviction be allowed;

3. That the convictions and sentences be quashed.

4. That a new trial be ordered.

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