R v Dyers

[2000] NSWCCA 335

CITATION:	R v Dyers [2000] NSWCCA 335
FILE NUMBER(S):	CCA 60133/00
HEARING DATE(S):	15 August 2000
JUDGMENT DATE:	25 August 2000
PARTIES :	REGINA (Crown) v KENNETH EMMANUEL DYERS (Appellant)
JUDGMENT OF:	Stein JA at 1; Smart AJ at 2; Ireland AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0012
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	A: Mr M C Ramage QC C: Mr P G Berman
SOLICITORS:	A: Henry Davis York C: S E O'Connor
CATCHWORDS:	Criminal Law & Procedure - appeal against conviction and sentence - indecent assault of minor under authority of appellant - whether trial judge erred in directions to jury - delay in making complaint - whether refusal to allow counsel in address to use visual aids (placards) caused miscarriage of justice.
LEGISLATION CITED:	Crimes Act 1900, s 61E Crimes (Sentencing Procedure) Act 1999, s 12
CASES CITED:	M v The Queen (1994) 181 CLR 487 Jones v The Queen (1997) 191 CLR 439 R v Gordon and Gordon (1991) 57 ACrimR 413 R v Blade (NSWCCA, 1/5/91, unrep) Longman v The Queen (1989) 168 CLR 79 R v DJK (1997) 96 ACrimR 443 R v Johnston (1998) 45 NSWLR 362 Jones v Dunkel (1959) 101 CLR 298 R v Taufua [1999] NSWCCA 205 R v Kneebone [1999] NSWCCA 279 RPS v R 168 ALR 729 Richardson v R (1974) 131 CLR 116 R v Apostilides (1984) 154 CLR 563
DECISION:	Appeal against conviction dismissed. Appeal against severity of sentence granted. See para 83.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60133/00

STEIN JA
SMART AJ
IRELAND AJ

Friday, 25 August 2000

REGINA v Kenneth Emmanuel DYERS
JUDGMENT

1    STEIN JA: I agree with Ireland AJ.

2    SMART AJ: I agree with Ireland AJ.

3    IRELAND AJ: The appellant, Kenneth Emmanuel Dyers, was indicted before his Honour Judge Kinchington QC at the Sydney District Court on 5 July 1999 on a charge that he between 22 July 1988 and 6 August 1988 at Sydney did assault AP, a person then under the age of 16 years, namely 13 years, and at the time of such assault, did commit an act of indecency upon her, she then being under his authority. This offence is in contravention of s 61E(1A) of the Crimes Act, 1900 and carries a maximum penalty of imprisonment for 6 years.

4    The appellant pleaded not guilty and was tried before Judge Kinchington QC and a jury of twelve.

5    On 16 July 1999, the jury returned a verdict of guilty.

6    On 4 July 2000, the appellant was sentenced to 12 months imprisonment. A non-parole period of 4 months was fixed. The sentence commenced on 4 July 2000. On 10 July 2000, the appellant was granted bail pending this appeal.

7    The appellant in addition to his appeal seeks leave to appeal against the alleged severity of that sentence.

8    The Crown case may be summarised as follows.

9    The complainant, AP, who was, at the time of giving her evidence on 7 July 1999, just four days short of her 24th birthday, said that in 1986, when she was 10 years old and residing in the Australian Capital Territory, she began attending meetings conducted by an organisation which was described as a "communications group" called Kenja. She was accompanied by her mother, MW, and her two sisters. She was informed that the activities of the organisation included sporting events and was told about energy centres and energy conversion or processing sessions which occupied thirty to forty minutes during which two people sat opposite each other and stared into each other's eyes.

10    Some four months after the complainant began attending Kenja, she met the appellant at a seminar in Canberra. Afterwards, they had a one-on-one session. On the appellant's instructions, the complainant sat opposite him on a chair with her legs on his chair on either side of his legs and they stared at each other for about forty minutes.

11    While the complainant lived in Canberra, she saw the appellant at monthly seminars held in Sydney. She travelled to Sydney by bus and stayed in the homes of other Kenja members. The complainant participated in group energy conversion sessions as well as one-on-one sessions with the appellant.

12    In July 1986, the complainant, her mother and sisters moved to Point Piper in Sydney. After school, she would be picked up by a minibus organised by Kenja and taken to a centre where she would do her homework and participate in classes before going home.

13    After living in Sydney for about three months, the complainant moved back to the Australian Capital Territory to live with her father and six months later they moved to the Gold Coast. At the end of 1987, when the complainant was aged 12, she went to live with her mother who was by then living in Melbourne and working as a co-director of Kenja in Melbourne. She began attending Kenja three times a week and would also attend monthly seminars in Sydney.

14    One such visit to Sydney took place on Friday, 29 July 1988. The complainant gave evidence that, on that occasion, she and her mother spoke to the appellant in his office after which the complainant had an energy conversion session with the appellant in a room off his office. Her mother was not present during this session.

15    The complainant gave evidence that, during this session, the appellant told her that she needed to 'clear' on certain energies, one of them being sex. They sat opposite each other and the complainant had her legs on the appellant's chair on either side of his legs. The appellant asked the complainant to remove her shirt because she needed to 'clear' on the energies on her stomach and chest. The appellant told her that it would be easier if there was nothing obstructing her energy centres. He then placed his hand on the complainant's stomach and also touched her breasts. He left his hand there for about five minutes. He then fondled her breasts and kissed her on the head and cheeks and then pulled her towards him by her arms. The appellant asked the complainant to remove her skirt, which she did, and also her underwear, which she declined to do. The complainant gave evidence that the appellant became abusive, pushed her chair back, swore at her and called her a "bitch". He told her to get dressed and stormed out of the room. The complainant stated that she was shaken and very upset at what had happened. The session had lasted about three hours.

16    The appellant thereafter had an acrimonious conversation with the complainant and her mother. The appellant later asked the complainant whether she wanted to have another session, which she declined. The appellant then told the complainant that she and her family could stay for the weekend and that she, her mother and sisters would then have to leave the Kenja organisation.

17    The complainant gave evidence that she did not tell anyone about the assault until 1993 because the appellant had told her not to discuss with anyone what occurred during energy conversion sessions.

18    The appellant made a statement from the dock in which he denied the allegations made against him. He said that he hardly knew the complainant because she was not a junior professional (being a rank within the Kenja organisation) and would thus have come under the jurisdiction of another person within the organisation. He said that he did not have energy conversion sessions with the complainant in Canberra or Sydney.

19    There was evidence given at the hearing which related to the affairs of the Kenja organisation, in particular in Melbourne, concerning the activities of the complainant's mother whilst acting as a co-director.

20    It is noteworthy that these matters were raised by the appellant in his unsworn statement and were the subject of evidence called in the defence case.

Ground 1 - The Trial Miscarried

21    In this regard, it is submitted that the trial got out of control and became an inquiry into the Kenja organisation and its finances coupled with an attempt on the part of the Crown to smear the appellant and his witnesses by suggesting an association with Scientology.

22    The mention of Scientology was a passing reference on two occasions in the evidence and not at all in the summing up. The jury was told that Kenja was not on trial and, in his summing up, the trial Judge endeavoured to make plain the purpose for which that evidence was called.

23    Insofar as this ground relates to a reference to Scientology, it is, in my view, not made out. Insofar as it relates to directions given generally, further consideration will be given shortly.

Ground 2 - The verdict of the jury was unreasonable and/or not supported by the evidence

24    It is submitted for the appellant that, on an independent assessment of the case, it was not open to the jury to be satisfied beyond reasonable doubt of his guilt and there is a significant possibility that the appellant is an innocent person who has been convicted.

25    The first point made in this regard is the delay of eleven years in making complaint, with the explanation being advanced that this followed a directive given by the appellant to the complainant not to disclose anything that took place during the sessions. This, it is submitted, makes no sense when the complainant ceased to be a member of the organisation on the day on which the incident was alleged to have occurred.

26    Emphasis is further placed upon what are described as manifest discrepancies and contradictions between the evidence given by the complainant on the one hand and her mother on the other, many of which were brought to the jury's attention in the address made by counsel for the appellant at the trial.

27    Counsel for the appellant has listed in a schedule some of the matters said to be important areas of discrepancy which cast doubt on the complainant's credibility and reliability.

28    I have considered the matters referred to in the schedule. I am not persuaded that they are matters of significance but are readily explicable on the basis that the witnesses were doing their best in the circumstances to recall events which took place some eleven years before.

29    With regard to the item listed as number '4' under paragraph (b) on the second page of the schedule, I can find no justification in the evidence for the emphasised suggestion that the length of the vital session referred to in the complainant's evidence in chief is about five to ten minutes, whereas, in cross-examination, the session was said to be three hours in length. A fair reading of the evidence does not, to my mind, lead to this conclusion at all.

30    This was a case in which the question of guilt turned upon an acceptance by the jury of the evidence of the complainant.

31    The fact that this Court does not have the advantage of seeing the witnesses themselves, necessarily imposes a restriction on its ability to judge whether the jury ought to have had a reasonable doubt as to guilt: see M v The Queen (1994) 181 CLR 487 at 493. In both Jones v The Queen (1997) 191 CLR 439 and in M v The Queen, the High Court emphasised the need to give full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has the benefit of having seen and heard the witnesses.

32    As pointed out by counsel for the respondent, the failure of the appellant to give sworn evidence contradicting the version of events given by the complainant represents a substantial impediment to the success of this ground of appeal: see R v Gordon and Gordon (1991) 57 ACrimR 413. See also R v Blade (NSWCCA, 1 May 1991, unreported).

33    In my view, once it is recognised that the essential question for the jury is whether or not they accept the evidence of the complainant unchallenged by sworn testimony on the part of the appellant, there is ample testimony upon which the jury could rely in establishing to the relevant standard the guilt of the appellant. This ground should be rejected.

Ground 3 - The trial Judge erred in his directions to the jury in respect of prior inconsistent evidence

34    On behalf of the appellant, the submission is made that no direction was given to the jury at the time the trial Judge made reference to inconsistencies in the complainant's evidence generally. Counsel for the appellant recognises, however, the direction given by the trial Judge, at T 140, where his Honour said, "If you think what she said then is inconsistent with what she said now use … it on the question of reliability or use it as evidence of the truth of the situation she was then talking about".

35    In his summing up, at pp 56-58 inclusive, the inconsistencies in the evidence of the complainant and her mother were set out extensively by his Honour citing ten separate incidences upon which reliance was placed by counsel for the defence. The suggestion that this review of the alleged deficiencies in the Crown case did not squarely place before the jury the issue of credibility on the part of both witnesses is captious in the extreme. No exception was taken by experienced counsel appearing for the appellant at the trial in this regard, although in other regards counsel had no hesitation taking issue with any deficiency perceived in the trial Judge's summing up. Leave is required to argue this ground, the point having not been taken at the trial below. I would refuse leave.

Ground 4 - The trial Judge erred in failing to direct the jury to acquit because the evidence in the trial did not support the Crown opening

Ground 5 - The trial Judge erred in failing to discharge the jury

Ground 6 - The trial Judge erred in law in not directing the jury properly or adequately to:-
(a) confine the act said to constitute an indecent assault to that alleged by the Crown; and
(b) ignore any other allegation by the complainant

36    It is convenient to deal with these grounds together.

37    The appellant contends that the case which the Crown opened to the jury and set out to prove was one in which the indecent act relied upon to constitute the indecent assault was a kiss on the complainant's head followed by an attempt to pull down her underpants. The actual evidence that the complainant gave is to be found at T 60-63:-

"Q. You went to a room with the accused, a room which ran off his office, is that right?
A. Correct.
Q. Was there a door separating his office from that room?
A. Yes.
Q. What happened to that door?
A. It was closed.
Q. What happened inside the room with the accused?
A. He said that I needed to clear on certain energies, one including sex.
Q. What happened then?
A. Then we started having a processing session and he asked me to remove my shirt and said I needed to clear on certain energies on my stomach, on my chest.
Q. When you said we started a processing session what position did you take up and what position did he take up prior to the commencement of that session?
A. Opposite each other with my legs exactly the same position straddled over his.
Q. And you've indicated what he told you. At the very commencement of the session how were you dressed?
A. Fully clothed with skirt and a top I think.
Q. You said something about the accused saying something in respect to your clothing?
A. Yes.
Q. What did he say?
A. He asked me to remove my clothing. Firstly I removed my top.
…
Q. What did he say?
A. He said that it would be easier to clear the energy if I didn't have anything basically obstructing my energy centres.
Q. Did he indicate what your energy centres were?
A. Yes.
Q. What did he say?
A. Head energy centre, chest and stomach energy centre.
Q. You removed your top, and after removing your top, what outer garments did you have still on - on your body?
A. A skirt.
Q. A skirt?
A. Yes.
Q. Were you going to say something else?
A. No.
Q. Did he do something then?
A. Yes. He then placed his hand on my stomach that way (indicated) and he also touched my chest.
Q. You have indicated with your right hand - your hand on your own stomach area, fingers parallel to the floor. Would that be right?
A. Yes, correct.
Q. With his thumb uppermost, pointing up towards your head?
A. Yes.
Q. How long did he leave his hand there for?
A. Approximately five minutes.
Q. What did he do with your breast?
A. He then sort of fondled them.
Q. Then what happened?
A. Then he kissed me on my face.
Q. Now when he kissed you, just describe to the members of the jury how he did that?
A. Just basically kissed me on my head and my cheeks and pulled me towards him.
Q. How did he pull you towards him?
A. By my arms (indicated).
Q. He was sitting directly opposite you at that stage?
A. Correct.
Q. What happened then?
A. He then asked me to remove my skirt, which I then did, and he asked me to remove my underwear.
Q. What did you have on as underwear?
A. Myself?
Q. Yes.
A. Just pants.
Q. Your underpants?
A. Yes.
Q. When he asked you to remove your underwear, did you say anything?
A. I said no, I didn't want to.
Q. Did you do anything?
A. I tried to move back."

38    It is submitted on behalf of the appellant that the case should not have been left to the jury and that the trial Judge should either have directed the jury to acquit or discharged the jury.

39    It was further put that a strong remedial direction was required directing the jury to put out of their minds the case opened by the Crown as to the attempt to pull down her underpants as compared to that given by the complainant in her evidence.

40    In his written submissions, counsel for the appellant contends that the trial Judge refused to direct an acquittal or to discharge the jury. This was not the situation. The trial Judge refused to direct an acquittal, however, an application to discharge the jury was specifically eschewed by counsel for the appellant.

41    The further complaint is made that, in summing up to the jury, the trial Judge said:-

"Here the Crown alleges that on the day in question that (AP) was having a 'session' with the accused, an 'energy conversion session', and that during that 'session', and in the context of having asked her to take off her top and her skirt, leaving her dressed in her underpants, he kissed her and pulled her towards him. And the Crown says that in the context of those actions, bearing in mind her age, bearing in mind the accused, bearing in mind the purposes of that 'session', according to the Crown, that that constitutes an indecent assault." (S/U 17)

42    Words to similar effect were used by his Honour in his summing up at p 18. The inclusion of the words "pulled her towards him" is said not to form part of the Crown case.

43    That a complainant or any witness in a Crown case may not come completely up to proof is no novelty. For that reason, trial judges invariably direct juries that what counsel say in opening is not evidence in the case. That was done in this case and the trial Judge was at pains to tell the jury on two occasions from whence the evidence upon which they were to rely was to be derived.

44    In this case, where a 13 year old girl, at the request of the appellant, had removed her upper clothing, had experienced the fondling of her breasts and had been kissed on the face, i.e. head and cheeks, and then had complied with a request to remove her skirt, following which she was requested to remove her underwear but declined, there was no warrant for a directed verdict of acquittal.

45    Had any prejudice to the appellant been apparent in his less culpable actions, in pulling her towards him, than the act of attempting to pull down her underpants, as opened by the Crown, the remedy would have been in an application to discharge the jury.

46    Consideration of this course by counsel for the appellant resulted in emphatic declinature, on his part, to adopt such a course. This ground of appeal is not made out.

Ground 7 - The trial Judge erred in law in misdirecting or failing to direct the jury adequately and properly as to the effect of delay in making a complaint

Ground 11 - The trial Judge's summing up lacked balance

47    It is convenient to deal with these two grounds together.

48    The offence upon which the appellant was indicted had occurred some eleven years prior to the trial. It is common ground that the first time the complainant is said to have told someone about the assault was in 1993. The first time the matter was raised with the appellant was in September of that year.

49    In his written submissions, Mr Ramage, Senior Counsel for the appellant, cites what was said by his Honour, in his summing up at pp 22-24, as being the only directions given in relation to delay and says that these directions were inadequate in that; (a) they did not bring home to the jury that the delay reflected adversely on the complainant's credit and; (b) they did not indicate that the evidence of the complainant could not be adequately tested and, also, that the directions given were used to explain the inconsistencies in the evidence of the complainant and her mother, rather than the adverse affect upon the appellant.

50    These grounds of appeal, in my view, lack merit. In addition to those matters in the summing up to which counsel for the appellant has directed us, the respondent relies upon the following passage in the trial Judge's summing up at p 27:

"… you may think that those facts place him in a very difficult and disadvantageous position in the sense that after the passage of five years, without an inkling that such an allegation would be made, it may be difficult for him to reflect back on what he was doing at that particular time to prepare material so that questions could be asked of (AP) , or to account for his actions on that day and what he was doing to rebut any assertion that he had been involved with (AP) in the way she described. Even bearing in mind there is no onus on him to prove anything, but still he is placed, you may think, at a disadvantage because five years have elapsed before he hears about the allegations made by (AP) .
That might affect the memory of people that might be able to support him as to what occurred at that time. It might affect him obtaining any information about the events of that day about which he could question (AP) , or her mother."

These are, in my view, proper and adequate directions as to the disadvantages which may accrue to an accused person arising as a result of delay.

51    Mr Berman further refers to other aspects of the summing up. At p 23, his Honour stated that the absence of complaint "does not necessarily indicate that the allegation that the offence was committed was false"; also, the reference in the summing up, at p 24, where his Honour notes that delay "may indicate fabrication"; and the further extract from the summing up, at p 27, where his Honour said, "the time that has elapsed without him becoming aware of these allegations is a factor for you to take into consideration, both on the issue of reliability of (AP's) evidence and also on this question of whether the accused has been disadvantaged in any way by such a delay in him receiving notice of (AP's) allegations", - all being matters which properly and adequately emphasise the disadvantages of delayed complaint.

52    The further submission is made on behalf of the respondent that his Honour's imprimatur was added to the submission made by trial counsel for the appellant and reiterated by his Honour who said:-

"… that the absence of any such complaint to anyone to whom she might reasonably have been expected to complain, is inconsistent with the conduct of a truthful person who has been sexually assaulted" ,

and his Honour's concluding remark:-
"That is a matter which you may consider …".

53    A consideration of these matters makes it plain that the issue of delayed complaint was comprehensively and adequately dealt with by the trial Judge and that the necessary balance with which the jury should be directed to approach this aspect of the trial was adequately presented and complied with. These grounds are rejected.

Ground 8 - The trial Judge erred in law in failing to direct the jury in accordance with Longman v The Queen (1989) 168 CLR 79 at 108

54    Here it is submitted that it would be dangerous to convict on the uncorroborated evidence of the complainant and that a direction to closely scrutinise the evidence of the complainant was inadequate.

55    In his summing up, the trial Judge said this:-

"As both counsel have referred to, the Crown relies solely upon the evidence of (AP) to prove its case against the accused in these proceedings. If you do not accept (AP's) evidence as being reliable, either wholly or in this particular issue as to what she says occurs there, well that of course would be the end of the matter because if you do not accept her as reliable on that evidence then it would not establish the essential element, that is that an indecent assault took place, or that any assault took place.
In these circumstances you must carefully scrutinise her evidence, both in general, and more particularly in so far as it relates to the charge. In order to determine whether you can act upon it, having decided that question, will depend on what you do thereafter.
If after the closer scrutiny you are satisfied it is reliable and safe to act upon then you go on to determine whether that evidence establishes the three essential elements to which I have referred in this case." (S/U 25)

56    His Honour further referred to this aspect of the jury's function, at S/U 30-31, where he said, concerning the evidence of the complainant:-

"If you have a reasonable doubt about her evidence in that regard (her version of events) the accused is entitled to the benefit of it and it would almost inevitably follow that you would be duty bound to return a verdict of not guilty.
It is for those reasons that I told you earlier that you must scrutinise her evidence with the utmost of care, both from (t) he point of view of reliability and honesty, and determine firstly whether you are satisfied you can act upon it, and secondly if you can whether it establishes beyond reasonable doubt the essential elements that go to constitute the offence charged."

57    In this regard, the respondent submits that there is respectable authority in this Court, and elsewhere, that not in every case is it necessary to say that it would be "dangerous" to convict on the uncorroborated allegations of a complainant. Cited is R v DJK (1997) 96 ACrimR 443 at 450. Further reliance is placed upon the passage in R v Johnston (1998) 45 NSWLR 362 at 375B, where the function of the trial judge was enunciated as being to "… make such comments and give such warnings as will ensure that the trial is fair". The point being made that there are decisions in earlier authorities to the effect that it was not necessary in every case for the trial judge to say that it would be "dangerous" to convict on the uncorroborated allegations of a complainant.

58    In the present case, the caution with which the jury was directed to approach the uncorroborated aspects of the evidence of the complainant was adequately impressed upon the jury, and this ground of appeal, in my view, should be rejected.

Ground 9 - The trial Judge erred in his directions to the jury equating "reliability" with "credibility" in respect to the complainant's evidence

59    The submission is made on behalf of the appellant that the real issue in the case was "the complainant's credibility". This, of course, is merely one way of putting the principal issue. Another way is to ask the question which, in my view, is more appropriate in a jury trial, that is - is the complainant telling the truth and is her (or his) evidence reliable.

60    In the context of this case, where the central issue in the trial, being the acceptance by the jury of the evidence of the complainant, was made crystal clear, the distinction sought to be drawn by the appellant between her credibility and her reliability is altogether too fine. I would reject this ground.

Ground 10 - The trial Judge erred in law in directing the jury that they were entitled to draw an inference that witnesses not called by the defence would not have assisted the defence case.

61    The trial Judge gave the jury a Jones v Dunkel (1959) 101 CLR 298 direction. The appellant complains of the following matters. First, it is said that this direction related to the failure of the appellant to call certain witnesses. This is only partly true. The direction given related, in a general sense, to both parties and did not single out the appellant. In fact, both counsel for the prosecution and the defence had made reference in their respective addresses to a failure on the part of the other party to call witnesses. Further complaint is made that the jury should have been told that the issue did not arise at all unless they were of the view that the named persons were potentially important witnesses. What his Honour said was:-

"Where it appears to you, as judges of the fact, that there is a witness who could be expected to have been able to give relevant evidence on some aspect of the case, but that witness has not been called, you are not entitled to speculate upon what that witness might have said if the witness had been called." (S/U 59)

62    The further submission is made that, if the trial Judge was contemplating giving such a direction, it was incumbent upon him to raise the matter with counsel in the absence of the jury. This submission overlooks the exchange between the trial Judge and counsel, during the course of the summing up and in the absence of the jury, at pp 12 and 13 of the summing up. His Honour said, "Now both counsel have addressed on this question of failure to call witnesses". He identified three witnesses about whom counsel for the defence had commented in his address to the jury as being persons whom the Crown would have been expected to call. His Honour went on to discuss with the Crown the witnesses whom the Crown had commented upon as those which the jury may have expected the defence to call. No objection was taken to the clear intention of the trial Judge to give at least a bi-partisan Jones v Dunkel direction.

63    The dangers which attend the giving of a Jones v Dunkel direction in a criminal trial are well recognised: see R v Taufua [1999] NSWCCA 205.

64    In supplementary submissions we have been referred to R v Kneebone [1999] NSWCCA 279, a case in which the failure of the Crown Prosecutor to call a relevant and material eyewitness on the basis of an asserted unreliability, without undertaking appropriate steps to ascertain the willingness and capability of the witness to give relevant and truthful evidence, was held to constitute a miscarriage of justice.

65    In the present case, no issue as to the capability or the reliability of the persons who may have been called to give evidence arose. Whilst the Crown Prosecutor is obliged to present the Crown case with fairness to the accused, the duty to call witnesses does not extend in the present case to everyone present on any given occasion. There is no evidence as to why the witnesses in question, in the present case, were not called to give evidence. In this regard, R v Kneebone is to be distinguished.

66    In RPS v R 168 ALR 729 (a judgment handed down on 3 February 2000, after the trial in the present case), the High Court of Australia in considering the directions appropriate for a trial judge to give regarding the failure of an accused person to give evidence, Gaudron ACJ, Gummow, Kirby and Hayne JJ at [28]-[29] said this:-

"[28] In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.
[29] If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' Richardson v R (1974) 131 CLR 116 at 119; [see] also R v Apostilides (1984) 154 CLR 563 and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused."

67    In the present case, a reading of the transcript makes plain that the witnesses referred to by the Crown Prosecutor in his address were not witnesses whom the Crown, in fairness, would be expected to call to give evidence. No complaint was made, nor could it have been, that the trial Judge did not make abundantly clear the onus which the Crown at all times bore. RPS v R does not proscribe the giving of a Jones v Dunkel direction in a criminal trial. What is, however, essential is that, consideration be given to questions of fairness, including the need to make clear to the jury that an accused person is not bound to give evidence and that it is for the Crown to prove its case beyond reasonable doubt.

68    In the present case, the direction given was neither inappropriate nor unfair. There was no miscarriage of justice. This ground of appeal is not made out.

Ground 12 - The trial Judge erred in limiting the way in which counsel for the accused was able to address

69    This ground relates to the refusal of the trial Judge to permit counsel for the appellant to use cards or placards as aids to establish or emphasise important points to the jury. The submission is made that this ruling placed a bar or impediment on the way in which defence counsel could address and make appropriate points to the jury.

70    The placards in question were described by Mr Ramage as approximately one metre square in dimension and to comprise the catchwords and phrases set out in the reduced scale photocopies, Exhibit B on appeal. The words used in the placards are not confined to aides-memoire but include comment obviously intended to persuade. The manner in which the trial was to be conducted was a discretionary matter for the trial Judge. I am not persuaded that the ruling to disallow use of the placards was such as to result in a miscarriage of justice. This ground is not made out.

71    I would propose that the appeal against conviction be dismissed.

72    The appellant seeks leave to appeal against the alleged severity of his sentence. Firstly, on the basis that, in all the circumstances, the penalty imposed was unduly harsh and severe and, secondly, on the basis that the sentencing process was allegedly vitiated by error.

73    In support of the first ground, the submission is made by counsel for the appellant that there was no penetration, no touching of genitalia and that it was an isolated incident that lasted only seconds at the most. The appellant is an elderly man, now 78 years of age, who is frail and suffering chronic ill-health. I shall return to a consideration of this ground.

74    The second ground claims that the sentencing process miscarried in that the trial Judge took into account on sentence, facts and circumstances that were not elements of the offence.

75    Counsel for the appellant reiterates those aspects opened by the Crown to the jury relating to the complainant's underwear which were not made out in the evidence, as well as placing reliance upon the assertion that, in kissing the complainant, the appellant pulled her towards him as part of the indecent assault. The further submission is made that the expressions used by the learned sentencing Judge, in his remarks on sentence, constituted a gross exaggeration of the facts and were not capable of use as aggravating matters to justify imposing a custodial sentence.

76    The further submission is made that insufficient emphasis was placed upon the delay between when the offence occurred and the sentencing being undertaken, and that fairness to the offender in his situation at the time of sentencing required that he be given a degree of leniency which was not reflected in the sentence imposed. A comprehensive list of authorities has been included in the submissions placed before this Court, with reference also being made to the fact that the matter could have been dealt with as a summary offence, where a maximum 2 year sentence would have been applicable. Further emphasis is placed upon the appellant's prior good character, his community service including his war service, and the testimonials as to his character tendered on his behalf.

77    On behalf of the respondent, it is submitted that the sentencing Judge correctly identified the seriousness of the objective circumstances of the offence. Mr Berman makes the submission with force that it cannot be a mitigating factor as to one offence, that a more serious offence was not committed or charged.

78    On the issue of the sentencing process being vitiated by error, counsel for the respondent has submitted a comprehensive and helpful review of the principles and the authorities relevantly to be considered.

79    The learned sentencing Judge had before him a report of Dr Mark Hardy of 27 June 2000. This report, part of Exhibit 31, lists the medical conditions from which the appellant is suffering.

80    The exhibit includes a report of Dr David Malouf of 29 June 2000 which speaks of the need for surgery.

81    Admitted into evidence before us today is further medical material which, inter alia, relates to events occurring since the appellant has been sentenced, in particular, in the brief period when he was in custody.

82    For my part, I am not persuaded that the sentencing process was vitiated by error on the trial Judge's part. Nevertheless, on a consideration of the more recent medical material, I am of the view that the appellant should not be returned into custody.

83    I would propose the following orders:-

1. That the appeal against conviction be dismissed.

2. That leave to appeal against severity of sentence be granted.

3. That the appeal against severity of sentence be upheld and the sentence quashed.

4. That the appellant be sentenced to 12 months imprisonment deemed to have commenced on 4 July 2000 expiring on 3 July 2001.

5. That pursuant to s 12 of the Crimes (Sentencing Procedure) Act, 1999 , the sentence be suspended subject to the offender entering into a bond to be of good behaviour during the remainder of the term of the sentence.

**********