R v GPP

[2000] NSWCCA 181

CITATION:	R v GPP [2000] NSWCCA 181
FILE NUMBER(S):	CCA 60302/98
HEARING DATE(S):	09/12/99
JUDGMENT DATE:	19 May 2000
PARTIES :	REGINA v GPP
JUDGMENT OF:	Dunford J at 1; Hulme J at 2; Barr J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/61/0179
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

COUNSEL :	Crown: R Ellis Appellant: R Greenhill QC/D Spears
SOLICITORS:	Crown: SE O'Connor Appellant: Gibsons
CATCHWORDS:	Criminal Law - appellant convicted at four consecutive trials of sexual assaults on four children - whether jury directed appropriately - HELD: yes. - Criminal Law - appellant convicted at four consecutive trials of sexual assaults on four children - whether verdicts unreasonable - HELD: no. - Criminal Law - sentencing - sexual assaults on four children - whether sentences excessive - HELD: no.
CASES CITED:	Aitchison v Director of Public Prosecutions (1996) 90 A Crim R 448 R v JTS, Court of Criminal Appeal 25.5.98 unreported R v E (1996) 39 NSWLR 450 R v RNS [1999] NSWCCA 122
DECISION:	Appeal dismissed; Leave to appeal against sentence refused

IN THE COURT OF
CRIMINAL APPEAL
60302/98

DUNFORD J
HULME J
BARR J

Friday, 19 May 2000

R v GPP

JUDGMENT

1   DUNFORD J: I agree with Barr J.

IN THE COURT OF

CRIMINAL APPEAL
No: 60302/98

DUNFORD J
HULME J
BARR J

Friday, 19 May 2000


REGINA -v- GPP
JUDGMENT

2   HULME J: I agree with Barr J.

IN THE COURT OF
CRIMINAL APPEAL

60302/98

DUNFORD J
HULME J
BARR J

Friday, 19 May 2000

REGINA v GPP

JUDGMENT

3   BARR J: The appellant, whom I will refer to as GPP, appeals against convictions entered in the District Court for sexual offences against four children. The Crown presented a separate indictment for each complainant and the four trials were heard consecutively.

4   There is also an application for leave to appeal against the sentences.

The first trial

5   The complainant at the first trial was a child I will call SKM. She was a niece of the appellant. There were seven counts. The first concerned an assault that was alleged to have taken place between 14 July 1981 and 31 December 1982, when the complainant was about seven years old. The accused, the complainant and their families resided in a village in western New South Wales. The appellant took the complainant and a cousin BY, then five years of age, on his motorcycle to a dam in a paddock a short distance from the village. When they arrived the appellant dropped off the cousin and took the complainant on a further two hundred metres to a tree. There he sat her down, put his hands down the front of her underpants and inserted a finger into her vagina.

6   There was no evidence of complaint. The Crown did not call the complainant’s cousin to give evidence.

7   The appellant gave evidence denying the act complained of. He said that he did not own or have the use of a motorcycle during the period of time particularised. He said that he hurt his back at work in March 1981 and was off work for six years as a result. He spent a considerable part of that time in hospital and was unable to drive or ride for long periods of time.

8   The cousin’s mother gave evidence that the complainant was living elsewhere and could not have been in the village at the time complained of.

9   The appellant was acquitted.

10   In the second count the Crown alleged a further indecent assault during the same period of time. The appellant and the complainant were present at her grandparents’ house, where she resided, in the same village. The appellant took the complainant into the laundry and told her to place her hands on his penis. She did so and he ejaculated. There was no evidence of complaint.

11   The appellant gave evidence denying the act.

12   The appellant was acquitted.

13   The third count depended on an incident which was said to have taken place in 1983 or 1984 when the complainant was nine years old. At the appellant’s request the complainant met him in the fowl yard of her grandparents’ house. He told her to put her mouth on his penis and she did so. There was no evidence of complaint.

14   The appellant gave evidence denying the act complained of and said that there was no fowl yard at the house at the time.

15   The complainant’s mother gave evidence to say that there was a fowl yard at the house at the time.

16   The appellant was acquitted.

17   The fourth count charged a similar act which took place between 14 May 1984 and 13 May 1986 when the complainant was ten or eleven years old. The appellant took her, her sister SLP and a friend on a visit to the rodeo ground near the village to collect firewood. The complainant’s sister gave evidence that she went with the appellant, the complainant and friend on such an occasion, during which the appellant and the complainant went out of sight behind a toilet building.

18   The complainant said that she complained to the friend but withdrew the complaint when her friend said that she would tell her mother. The friend was not called to give evidence.

19   The appellant denied the act complained of. He denied ever going to that place for firewood.

20   The appellant was acquitted.

21   The fifth and sixth counts concerned activities which took place at a motel in Dubbo between 23 March 1986 and 31 December 1987. The appellant took the complainant and her sister NP to Dubbo, where they stayed in a motel. The appellant entered the bathroom whilst the complainant was taking a shower and inserted his finger into her vagina. That was the act the subject of the fifth count.

22   The complainant said that she had told her sister what happened.

23   The sister was called to give evidence. She remembered going with the appellant and the complainant in his car to Dubbo, but not where she stayed. She remembered the appellant being fined for speeding, and the date 7 October 1987 was fixed by reference to an official record of a fine imposed upon him.

24   The sister did not give evidence of any complaint to her.

25   The complainant’s mother said that there was an occasion on which the appellant had taken the complainant and her sister to Dubbo.

26   In evidence, the appellant agreed that he had taken the complainant and her sister to Dubbo but said that he had dropped the complainant off at the house of a woman he named. He did not remember where he and the sister stayed. The woman he named was not called to give evidence.

27   The appellant was acquitted.

28   The sixth count depended on the complainant’s evidence that the appellant inserted his finger into her vagina whilst she was in bed in the motel. There was no evidence of complaint.

29   The appellant was acquitted.

30   The appellant was convicted on the seventh and last count. The complainant said that on 8 December 1987, when she was thirteen years old, she and two other children, NLP and SY were staying at the appellant’s house at Cobar. One day when the complainant was having a shower, the appellant sent the other children away to a service station to buy paddle pops. She and the appellant were in the house alone. The complainant left the bathroom and went to the bedroom. The appellant followed her, pulled the towel from her, lay her on the bed and tried to touch her vagina. She pushed his hand away, screamed and threatened to tell her father. He left the room.

31   NLP gave evidence that when she returned from the service station the complainant was in the house, dressed only in a towel, crying. The witness heard her shout, “You fucking hide from him yourself”.

32   SY was not called to give evidence.

33   The complainant said that she told a friend, MJ, about the appellant’s conduct and that MJ had spoken to the complainant’s sister S, who told the complainant that if she did not tell their mother, she would. MJ said in evidence that no such conversations took place between her and the complainant or between her and S. S gave evidence that she had spoken to MJ and to the complainant in the terms described by the complainant.

34   Following the complaint a police officer, Sergeant Hay, attended the complainant’s parents’ house on 9 December 1987. Sergeant Hay gave evidence to the effect that he would probably have recorded information and statements about the complaint in his notebook. However, he had no recollection of what the complainant had said to him and his notebook was unavailable and had probably been destroyed. Sergeant Hay identified his signature on an occurrence pad entry dated 10 December 1987.

35   Evidence was given by the husband of the complainant that they began going out together in 1989. After some time the complainant told him that the appellant had interfered with her sexually from the age of about seven years to about thirteen or fourteen years. He said that the complaint was about “touching her and all that sort of stuff”. Asked to elaborate, he said “Just like the fingering, head jobs and that sort of stuff”.

36   The first two grounds of appeal argued may be dealt with together. They asserted that the learned trial judge erred in not explaining fully to the jury the meaning and importance of the lack of corroboration of the complainant’s evidence and that his Honour erred in not fully explaining to the jury why it would be dangerous to convict the appellant on the uncorroborated evidence of the complainant.

37   No request was made for either of the explanations now contended for and leave is necessary to appeal on these grounds.

38   His Honour said this to the jury -

In this case there is one witness who is essential to the proof of the Crown case and that is, of course, the complainant in the case (the complainant). You should therefore examine and scrutinise her evidence with great care before you decide on a verdict of guilty on any or all or some of these counts on the indictment and you should only find the accused guilty if you are satisfied beyond reasonable doubt of the truth and the accuracy of the evidence given by (the complainant). I will be saying more about that later. The fact that I have given you that warning that you should use extreme care in the way that I have indicated does not mean that I have formed a view about (the complainant’s) evidence because you will recall that I do not have any responsibility at all in that regard. The evaluation of her evidence is entirely a matter for you.

39   Later in the summing-up his Honour said this -

It is dangerous to convict on the evidence of a complainant when it is not supported by evidence of other witnesses. You may act on it if, after consideration of this warning, you are satisfied as to its truth and its accuracy.

40   His Honour’s remarks were made in the context of the trial generally and might have been understood by the jury as applying to any count.

41   It was submitted on appeal that his Honour failed to explain the meaning of corroboration and that the complainant’s evidence was not corroborated. Those submissions must be rejected because the evidence of the complainant on the seventh count was corroborated in a striking way by the evidence of NLP. She had been sent away by the appellant, leaving him alone with the complainant, and had returned to find the complainant distressed and uttering words that might mean that the appellant had a need to fear retribution. It was straight away after that event that the complainant complained to her parents and the police.

42   The case against the appellant was strongest on the seventh count for a number of reasons, including the supporting evidence of NLP. It might have advantaged the appellant to have the two directions I have extracted left as though they applied to that count as much as to the others, and that may explain why defence counsel made no application for further directions. If his Honour had dealt with the subject in any more detail he would have had to tell the jury that the evidence of NLP was independent of the complainant’s and that if they accepted it the Crown case on the seventh count did not depend on the evidence of the complainant alone. It is not surprising that defence counsel was content to leave the directions as given.

43   I would refuse leave to appeal on this ground.

44   The next ground of appeal argued complained that his Honour erred in failing to warn the jury about the consequences of the fact that the complainant was an adult, who was recalling in her evidence events that occurred when she was a child, and that for that reason her evidence appear to have greater veracity than it might otherwise warrant. It was submitted that his Honour erred in failing to point out to the jury that a child’s comprehension of sexual matters was usually if not invariably limited and that the complainant’s description of matters such as penile erection, masturbation and ejaculation must have been coloured by her later understanding of such matters.

45   It is not necessary to consider whether his Honour ought to have warned the jury in the terms contended for on the counts alleging misconduct whilst the complainant was of tender years, because the appellant was acquitted on those counts. The events the subject of the seventh count, the only one on which he was convicted, took place when the complainant was thirteen years old. The jury were entitled to assume that by that age she knew about penile erection, masturbation and ejaculation.

46   No application was made for the warning contended for on appeal. I would refuse leave to appeal on this ground.

47   The next ground of appeal argued complained that his Honour erred in not explaining to the jury that the appellant was prejudiced by the unavailability of the complainant’s contemporary account which would have been recorded in Sergeant Hay’s notebook.

48   It was submitted that the absence of the notebook prejudiced the appellant because he could not test the evidence of the complainant by reference to her contemporaneous account and because he was denied the benefit of evidence of earlier allegations about and denials by the appellant which might have been recorded in the notebook.

49   No application was made for a direction in the terms contended for on appeal, and that is not a matter that counsel overlooked. Shortly before commencing the summing-up his Honour told counsel what he intended to say about the occurrence pad entry and the absence of the notebook.

50   The narrative portion of the occurrence pad entry was in the following terms -

On Sunday, 6/12/87 (the complainant), together with her sister, (NLP),10 old went to stay with their Uncle, (the appellant), about 30 old, of (address). They were to stay a week to attend school to save them travelling by bus from (the complainant’s residence)
About 8-8.30pm On Tuesday, 8th December, 1987 (the complainant) went to have a shower, (the appellant) had gave the other sister money to go and buy an ice block. He then entered the bathroom and attempted to fondle (the complainant), she ran from the shower into her bedroom, he followed her and again attempted to touch her breasts and lower body. She kept pushing him away and he then picked her up and threw her to the bed. He held her there for a couple of minutes until she informed him she was going to tell her Father (his brother). He then released her and she ran from the room. She suffered no injuries and was not sexually assaulted.
She informed her parents of the incident about 8pm 9/12/87. She was interviewed at … 10.15am 10th in the presence of her Mother, … Both her parents requested no Police action be taken as it was more a family concern, however, they wished to have the matter recorded. Both agreed that it was an isolated incident and there had been no reports of previous similar incidents. No further police action.

51   His Honour told counsel that he was intending to say this to the jury -

Now you recall the evidence of Barry Hay, a retired Sergeant from Cobar. He was the author of exhibit B, an occurrence pad entry made on 10 December 1987, which dealt with allegations forming the basis of count 7 on the indictment. Mr Hay has no independent memory of any of the events giving rise to the occurrence pad entry, he was unable to say whether or not he made a notebook entry at the time he interviewed various people, he was unable to say who those people were, although one can refer from the text of the entry that he probably spoke to the complainant and the accused. He was unable to say whether statements appeared in his notebook, from who they were taken, whether or not they were signed as to their accuracy and whether or not they were recorded on his occurrence pad accurately reflects on his notebook
For these reasons you should take great care when you come to evaluate the weight that you give to this piece of evidence.

52   Defence counsel said that he was content with what his Honour proposed to say and in due course his Honour gave the jury a direction substantially in the foreshadowed terms.

53   It often happens that the precise terms of complaint cannot be put before the jury, with the consequence that an accused person is unable to compare a verbatim report with the complainant’s evidence before the jury, but that does not of itself produce injustice. The submission that the appellant thereby lost an advantage assumes without warrant that there must have been a material difference between what the complainant told Sergeant Hay and what she told the jury. Since the contents of the occurrence pad entry could only have derived from the complainant’s account, of course, counsel had the opportunity to put to her any suggested inconsistency between the contents of that entry and what she told the jury. She was cross-examined accordingly.

54   As trial counsel recognised, his Honour’s directions were appropriate. It was not necessary for directions to be given in the terms contended for on appeal. I would refuse leave to appeal on this ground.

55   The next ground of appeal argued asserted that his Honour erred in instructing the jury that the complainant’s statement to her husband in about December 1989, to the effect that the appellant had put his fingers in her vagina and got her to suck his penis, could be used as evidence of complaint on the seventh count.

56   What his Honour said was this -

I want to now go on to another aspect of these matters dealing with the question of complaint, as it is called in the law. That is to say, what she said or complained about to some people at some stage about what had happened to her. The complainant has made complaints about count seven to her mother and to the police officer, Mr Hay. There is some other evidence from her husband that she spoke to him some years later.

57   His Honour then went on to deal with the way the jury could use evidence of complaint or of absence of complaint.

58   I do not read what his Honour said as instructing the jury that what the complainant said to her husband in 1989 (as opposed to what she told her parents and the police in 1987) was relevant to the seventh count. As the jury were aware, the complainant told her husband about digital penetration and fellatio. No such act was asserted in the seventh count. I doubt whether the jury would have understood his Honour’s remarks about the complainant’s husband’s evidence to relate to the seventh count at all. It is apparent also that trial counsel did not take his Honour’s words to have that effect, for no application was made for his Honour to modify or withdraw the direction.

59   I would refuse leave to appeal on this ground.

60   The final ground of appeal asserted that the verdict was unreasonable and could not be supported by the evidence.

61   A number of submissions were made under this ground. First, that the appellant was unable to account for his movements and to obtain evidence of alibi and the like because of the delay which had happened between the alleged events and the date of trial, or at least the date of charging. It was submitted that the evidence of the complainant was neither cogent nor convincing, as demonstrated by the acquittals on the first six counts. That was said to show that the jury were not satisfied beyond reasonable doubt of the truth of her evidence.

62   It was submitted that evidence of complaint did not enhance the credibility of the complainant on the seventh count because the terms of complaint were not clear. The attention of the Court was drawn to what were said to be inconsistencies between what the complainant told the jury and what was recorded in the occurrence pad entry. Whereas the occurrence pad entry stated that the complainant and her sister were staying at the appellant’s house in order to avoid the bus journey between their home and school, the complainant in cross-examination did not remember why they were staying there, did not remember the appellant taking them to school and did not remember going to school at all at that time.

63   Whereas the statement in the occurrence pad entry said that the appellant attempted to fondle the complainant in the bathroom, the complainant in cross-examination said that that did not happen in the bathroom. She ran into the bedroom, he followed her there and that is where it happened.

64   The Court’s attention was drawn to what was said to be an inconsistency in the evidence of the complainant before the jury. She said that the appellant threw her onto the bed. He grabbed her by the arm and pushed her down. He was in front of her. He was on the bed with her. It was suggested in cross-examination that it would not be right to say that he was lying on top of her and she agreed, saying that he was not lying on top of her, he was trying to move her hands out of the way, trying to touch her but that she would not let him. Her attention was drawn to a statement she had given the police which contained the following passage -

I was on my back and (the appellant) was on top of me, (the appellant) started trying to touch my vagina but I kept putting my hands in his way so he couldn’t.

65   It was suggested that in her statement she had told the police that the appellant was on top of her and her answer was that he practically was, that she was on her back and that he was in front of her trying to move her hands.

66   It was not correct to submit that the appellant was unable to account for his movements because of any passage of time. This was the one count in the first trial in respect of which there had been immediate complaint, as a result of which the matter had been drawn to the attention of the police. The appellant was asked about this in examination in chief and said that Sergeant Hay had spoken to him about allegations made by the complainant and that he had denied them.

67   It was not disputed that the complainant and her sister had stayed at the appellant’s house at the relevant time or that the complainant and the appellant must have been within the house together.

68   I have read a transcript of the evidence of the complainant. Although she did not always describe events in the same way, I do not think that her evidence is internally inconsistent. I do not think that there is any serious inconsistency between the evidence she gave to the jury and the account that appears in the occurrence pad entry. It is necessary to acknowledge the superior position of the jury in seeing, hearing and evaluating the reliability of the complainant. This Court does not have that advantage. There seems no reason why they should not have accepted her evidence at face value about what happened in the appellant’s house on the occasion that gave rise to the seventh count.

69   The Crown case was a strong one. As well as the evidence of the complainant, there was the supporting evidence of NLP about the unusual distress of the complainant and the words she uttered to the appellant. There was immediate complaint to the parents of the complainant and to the police. Although the friend MJ denied that the complainant told her about the activities of the appellant, the jury were entitled to reject MJ’s denial.

70   In my opinion nothing about the acquittals on the first six counts leads me to the conclusion that the jury ought to have had a reasonable doubt about the reliability of the complainant on the seventh count.

71   In my opinion this ground of appeal has not been made good. I would dismiss the appeal against conviction after the first trial.

The second trial

72   The complainant at the second trial was BLY. There were four counts. The complainant’s evidence about the first was that during the school holidays in 1984, when she was eight years old, the appellant took her for a drive from Dubbo to Cobar in his white V8 Holden. On the way he took his penis out of his trousers, told her to suck it and held her head down, forcing her to do so. The car stopped. At about that time another car, driven by an aunt of the complainant, drove past. The complainant’s aunt spoke to the appellant and then asked the complainant whether she wanted to be driven back home. The complainant accepted the offer. The complainant spoke to her cousin NLP about the matter.

73   NLP was called but did not mention any such complaint.

74   The complainant’s mother, who was also the appellant’s sister, gave evidence that she had never sent the complainant off to Cobar with the appellant and that the complainant was never brought home by her aunt.

75   The complainant’s aunt, also the appellant’s sister, gave evidence that she had never had the complainant in her car between Cobar and Dubbo and had never seen her in a car driven by the appellant.

76   The appellant gave evidence denying the incident, denying taking the complainant in his car when she was small and denying having a white V8 Holden until he purchased one in 1993.

77   The appellant was convicted.

78   The complainant’s evidence on the second count was that one day in 1984 she was taking a shower at home when the appellant opened the curtain and asked for the soap and said that he wanted to wash her. She handed him the soap and he rubbed his hands over her breasts and vagina. No complaint was made until 1995.

79   The appellant gave evidence denying the incident.

80   The appellant was convicted.

81   The complainant’s evidence on the third count was that between 9 February 1988 and 31 December 1989 she and other children were taken by the appellant to a swimming hole near Cobar. Whilst she was in the water with the appellant he inserted his finger into her vagina. The complainant did not recall the names or genders of the other children.

82   The appellant gave evidence that there were no waterholes near Cobar which were fit to swim in. He had never swum in any of them or taken anyone to them.

83   The appellant was acquitted.

84   The complainant’s evidence on the fourth count was that one day between 9 February 1990 and 31 December 1991 she was staying at an aunt’s house at Cobar. Whilst she was having a bath the appellant entered the room and got into the bath with her. She slapped him, got out of the bath and went to her bedroom. He followed her, pushed her onto the bed and tried to insert his penis into her vagina. She struck him again, left the house and went to the house of friends where she stayed for a few days. She complained to her two cousins, NLP and BP, about the appellant’s behaviour.

85   NLP said the complainant had told her that the appellant had tried to get into the bath with her. BP gave evidence that the complainant was upset, crying, and said that she had left the house because the appellant had tried to do something to her. When she was asked about it she said that he had tried to fondle her in the shower and in the bedroom when she was getting dressed.

86   The appellant gave evidence denying the incident.

87   The appellant was convicted.

88   The first two grounds of appeal complained that his Honour erred in not explaining fully to the jury the meaning and importance of the lack of corroboration of the complainant’s evidence and in not fully explaining to the jury why it would be dangerous to convict the appellant on her uncorroborated evidence. They may be dealt with together.

89   Having directed the jury that the burden of proof lay on the Crown throughout the trial, his Honour pointed out that the Crown case depended on the evidence of the complainant and that for that reason her evidence should be examined and scrutinised with great care before the appellant were convicted on any count. His Honour directed the jury about the need to be satisfied about the truth and accuracy of her evidence. His Honour reminded the jury that there was no complaint about the evidence the subject of the first three counts and of the significance of that fact for their assessment of the credibility and reliability of the complainant. His Honour directed the jury that it was dangerous to convict the accused on the evidence of the complainant when it was not supported by independent witnesses.

90   In my opinion, taken together, these directions brought home to the jury the need to look for support for the complainant’s evidence from other witnesses and sufficiently explained the meaning and significance of “lack of corroboration” in all the circumstances of the case.

91   Defence counsel at the trial apparently considered the directions adequate because no application was made for further directions. I would refuse leave to appeal on these grounds.

92   The next ground of appeal argued complained that his Honour erred in failing to warn the jury about the consequences of the fact that the complainant was an adult, who was recalling in her evidence complaints that occurred when she was a child, and that for that reason her evidence might appear to have greater veracity than it might otherwise warrant. It was submitted that his Honour erred in failing to point out to the jury that a child’s comprehension of sexual matters was usually if not invariably limited and that the complainant’s description of matters such as fellatio must have been coloured by her later understanding of such matters.

93   In his final address, defence counsel referred to the situation of an adult giving evidence about what happened in childhood as a matter for the jury to take into account. Having done so, counsel was not concerned to ask the learned trial judge to say anything about the matter. In my opinion his Honour was not obliged to do so.

94   On appeal, counsel referred to a passage of a judgment of Higgins J in Aitchison v Director of Public Prosecutions (1996) 90 A Crim R 448, in which his Honour described recollection in adult terms of childhood events as giving a false sense of veracity which, if the evidence had been given contemporaneously, might not have been given.

95   I do not think that his Honour was attempting to lay down any rule for jury directions generally in which adults give evidence about things that happened to them in childhood. I understand his Honour’s observations to be no more than a comment upon the facts of the case before him.

96   I would refuse leave to appeal on this ground.

97   The next ground of appeal complained that his Honour erred in failing sufficiently to assist the jury about the use they might make of discrepancies and inconsistencies in the evidence of the complainant.

98   This is yet another ground of appeal which results from a careful combing of the summing-up without reference to the issues that really mattered to trial counsel in the conduct of the case. Having dealt with the evidence of the complainant on each of the counts, reading substantial parts of it verbatim from the transcript, his Honour observed that the complainant had been cross-examined at length and that inconsistencies had been mentioned in counsel’s address, particularly about the fourth count in the indictment, where in her statement the complainant had said that penetration had occurred whereas in her evidence before the jury she said that there was no penetration.

99   It was submitted that that portion of the summing-up gave little or no assistance to the jury as to the use they might make of such inconsistencies as they might find.

100   This second trial commenced on Monday 18 May 1998 and the jury retired at lunchtime on Wednesday 20 May 1998. It was necessary and desirable in view of the shortness of the trial for the trial judge to deal only briefly with the evidence, which must have been fresh in the minds of the jury. Counsel’s closing address took place on the Wednesday morning immediately before the summing-up, and must also have been fresh in the minds of the jury.

101   It is not the duty of the trial judge to repeat every defence submission. The importance of consistency and inconsistency in the evidence of the complainant was self-evident and needed no emphasis.

102   It was further submitted that his Honour’s concluding remarks, to the effect that he did not wish to say much more about the matter, were likely to leave the jury with the impression that any points raised by defence counsel were insignificant. I disagree. His Honour explained to the jury that it was their duty, not his, to find the facts and that he did not intend to express opinions about the evidence. He also directed the jury in the usual way that it was their duty to reject any opinion they perceived might be his unless they arrived independently of the same opinion.

103   Defence counsel did not see fit to ask his Honour for the directions sought on appeal. I would refuse leave to appeal on this ground.

104   The next ground of appeal was that his Honour erred, in explaining to the jury why a victim of sexual assault might hesitate to complain, by providing irrelevant examples.

105   In the passage of the summing-up complained of his Honour told the jury that delay in complaining does not necessary mean that the allegations are false and that there may be good reasons why a victim of sexual assault may hesitate in complaining. His Honour continued -

Fear of the other party, not knowing what steps to take and confusion are examples of such reasons and these problems may be greater when the complainant is a child.

106   In her evidence in chief the complainant said, referring to the first count, that she did not tell anybody at the time because she feared a flogging. When asked why she did not complain about the events the subject of the second count, she said that nobody would have believed it, that they would have shut her up and given her a smack in the mouth.

107   Relying on these passages, counsel for the appellant submitted that the specific reasons the complainant had given were fear of others and the probability of disbelief by others. The complainant never said that she did not know what steps to take and she never said that she was confused. What his Honour said about such matters was therefore likely to mislead the jury. Reliance was placed on R v JTS an unreported decision of this Court of 25 May 1998.

108   I do not think that that case supports the appellant’s argument. What was there being criticised was a direction suggesting fear of revenge by the accused as a reason for not complaining. That was described by the Court as an embellishment founded upon matters of speculation and conjecture so as to produce a trial unfair to the accused.

109   The facts of that case were nothing like the present. In any case, it is apparent from a reading of the transcript of the evidence of the complainant that she might well have been confused and unsure what to do about what was happening to her, and the jury were entitled to take that view.

110   In any case, it is permissible in my view for a trial judge to tell a jury that ignorance or confusion may explain why a child sexual assault victim fails to complain, even where those reasons are not expressly put forward in evidence. One would be surprised if such a child were not confused or ignorant of what to do. His Honour did not direct the jury that those possible reasons had been expressly put forward by the complainant and the jury were not misled.

111   Recognising these matters, defence counsel made no application for the direction complained of to be withdrawn. I would refuse leave to appeal on this ground.

112   The next ground of appeal complained that his Honour erred in directing the jury that they might use evidence of complaint to show consistency with the complainant’s evidence, in failing to point out to the jury that complaints to NLP, BP and NY were inconsistent with her evidence and in failing to point out that those complaints were not referable to the act of attempted intercourse with which the appellant was charged.

113   Three witnesses said that the complainant had complained to them. BP said that one day during the time the complainant was staying at the appellant’s house she entered BP’s house. She was crying and told BP that she had left the appellant’s house because he “had tried to do something to her”. The complainant went on to say that he had tried to fondle her in the shower and in the bedroom when she was getting dressed. Shortly after the complainant said those things, BP noticed police officers in attendance.

114   NLP remembered an occasion when the complainant was staying in Cobar at a house occupied by the appellant and his sister C. The complainant came out of the house and spoke to NLP. She was upset and said that the appellant had tried to get into the bath with her.

115   The complainant’s mother, NY, said that it was reported to her that the complainant had left the house of the appellant, where she was supposed to be staying, and was associating with a person she disapproved of. She went to the house of her brother CP in Cobar and there spoke to the complainant, who said that she was not staying with the appellant because he got into the bath with her. When she was asked what happened, the complainant said, “I jumped up to get a towel from behind the bathroom door and (the appellant) got up behind me and said ‘I’m going to stick my dick in your arse’.”

116   The complaints all related to the event the subject of the fourth count. His Honour said this to the jury -

Members of the jury, in respect to count 4, the complainant, (BLY), made complaints about that conduct alleged at the hands of the accused to those three people that I have mentioned and that is what it is alleged she said to them in response to that conversation. That is called evidence of complaint. Complaint is a part of the Crown case. You can use it to support the evidence of the complainant in a way that may show some consistency with the complainant’s evidence. You should evaluate that as evidence in the trial.

117   It was submitted that the substance of the complainant’s evidence about the fourth count was that the appellant lay on top of her and rubbed his penis on her vagina in an attempt to penetrate her. None of the complaints was in any way consistent with that allegation. It was therefore necessary for his Honour to direct the jury that the evidence of complaint was not about the act of attempted intercourse which was substantially the basis of the fourth count and could not be used to support the evidence of the complainant in the manner stated by his Honour. Reliance was placed on passages contained in judgments of this Court in R v E (1996) 39 NSWLR 450 and R v RNS [1999] NSWCCA 122.

118   In R v E the Court observed that evidence of complaint made in substantially different terms from the sworn account, either because it contains additional allegations or does not contain allegations made in the sworn account, may be treated as detracting from the credibility of the sworn account of the events relied on by the Crown: Sperling J at 457F.

119   However, the Court was not in those cases laying down rules for directions that must invariably be given. Every case is different and the duty of the trial judge is to give such directions as appear appropriate to the facts of the case. It was not suggested on appeal that the evidence of complaint was not admissible, and it obviously was. In cases like the present, where evidence of complaint deals with part but not all of the appellant’s acts as detailed in the sworn evidence of the complainant, it may be appropriate to draw that fact to the attention of the jury. It may sometimes be appropriate for the trial judge to limit the use the jury might make of complaint evidence. However, it does not seem to me that it was necessary for his Honour to take that approach in the present case.

120   His Honour warned the jury that evidence of complaint was not independent, as the source of it was the complainant herself. He warned the jury to be cautious in their assessment of the material and to look very carefully at all the circumstances surrounding the evidence.

121   His Honour and counsel may well have taken the view that it was unsurprising that when complaining, the complainant had given a partial account of what the appellant had done. The complaint witnesses said that the complainant was distressed when she spoke to them. The transcript of her evidence shows that throughout the trial the complainant had a great deal of difficulty giving her evidence and was emotionally affected from time to time as she did so. She was apparently not a person to whom the giving of a forthright and complete account came easily.

122   Defence counsel may have viewed the evidence of the complainant in this light as well, for no application was made for his Honour to give further directions. I would refuse leave to appeal on this ground.

123   The next two grounds of appeal may be dealt with together. They assert that his Honour erred first in not directing the jury that even if they disbelieved or did not accept the evidence of the accused it was still open to them not to be satisfied beyond reasonable doubt of the guilt of the accused and in telling the jury

… and you might ask yourselves who is to be believed, but even if you think the prosecution witnesses are not telling you the truth, that does not conclude the issue whether the prosecution has proved the case against the accused beyond reasonable doubt.

124   It is necessary to put the words into context. During the summing-up his Honour said -

I should tell you, I do tell you there is no requirement for you to compartmentalise any particular witness and say of that witness, “Well, I accept everything that he said or she said or I reject everything that he said or she said”. You are entitled as judges of the facts to be able to look at the particular witness and say, “Well, I think, thinking about it, this witness on that particular point was correct, but on that particular point was mistaken”. In this case it has been submitted to you by Mr Crown that there is no room for mistake here at all. Either you accept the evidence of the complainant or you reject it. There is no possibility for any middle road here and if you reject her evidence, you are obliged to return verdicts of not guilty; if you accept her evidence and you are otherwise satisfied beyond reasonable doubt of the guilt of the accused, then you are otherwise obliged to return verdicts of guilty in those cases where it is appropriate.
We are commonly confronted in our daily lives with circumstances where two people might tell us different versions of the same incident and it becomes necessary for us on some occasions to make some decisions about which of the two versions we accept. A lot of the time it does not matter, but because there is a conflict in the evidence in this case between what the complainant has told and what the accused has told you, it is appropriate that I say something to you about the fact finding process and about the way in which you might like to think about resolving those differences of opinion.
In respect to all of the witnesses you are going to have to decide whether or not that witness’ evidence was reliable. That is to say, whether you can safely act upon it. The reliability of a witness depends upon two factors. Sometimes they overlap. Those two factors are first the honesty of the witness and, second, whether or not that witness’ evidence was accurate.

125   Later in the summing-up his Honour said this -

But by giving evidence, the accused became a witness in the trial like all of the other witnesses. Exactly the same principles are involved in evaluating his evidence as you would apply in evaluating the evidence of all the other witnesses. By giving evidence, of course, he in no way varied or altered the obligation of the Crown to prove the case against the accused beyond reasonable doubt. By giving evidence he does not undertake to prove anything, he does not have any burden of proof.
It might be said, members of the jury, that the case does turn on a conflict between the evidence of the complainant and the evidence of the accused and you might ask yourselves who is to be believed, but even if you think the prosecution witnesses are not telling you the truth that does not conclude the issue whether the prosecution has proved the case against the accused beyond reasonable doubt. Even if you prefer the evidence of the prosecution, your should not convict the accused unless you are satisfied beyond reasonable doubt of his guilt and the truth of the evidence of the complainant. (Emphasis added.)

126   It was submitted that his Honour ought to have told the jury that the Crown case depended upon their accepting that the evidence of its principal witness was true beyond reasonable doubt, notwithstanding the appellant’s sworn denial, and that they did not have to believe that he was telling the truth before they were entitled to acquit him.

127   These grounds of appeal and the submissions made under them exemplify the unrealistic nature of this appeal, lifting words out of one part of the summing-up and paying no attention to the summing-up as a whole. In other parts of the summing-up his Honour told the jury that the burden of proof of the guilt of the accused rested upon the Crown, that the Crown had to establish each element of the charges beyond reasonable doubt and that the accused bore no onus of proof of any matter. His Honour told the jury that they did not have to be satisfied that the accused was innocent before they might acquit him. They were told that if they did not know where the truth lay the accused was entitled to the benefit of that doubt. Even if they were suspicious that the accused might have committed the crimes or some of them or one of them that would not be enough, because suspicion was no substitute for proof beyond reasonable doubt, not even grave suspicion. His Honour told the jury that there was one witness in the case who was essential to the proof of all the charges against the accused, namely the complainant. They were told to examine and scrutinise her evidence with great care before they decided that a verdict of guilty should be returned on any of the charges and they should find him guilty only if they were satisfied about the truth and accuracy of her evidence.

128   In my opinion the summing-up as a whole gave the jury proper directions about the circumstances in which they might properly convict the appellant on any of the charges.

129   I have emphasised the words “prosecution” and “not” in quoting the passage relied on in the second of these grounds, because one of them must be erroneous. Perhaps, by a slip of the tongue, his Honour said “prosecution” instead of “defence” or unintentionally added the word “not”. Perhaps the passage has been mistranscribed. If it was the former, the slip was immediately corrected by the sentence which followed.

130   The failure of either counsel to draw attention to the matter suggests that the error was one of transcription. I do not think that the jury were misled. I would refuse leave to appeal on these grounds.

131   The final ground of appeal was that the verdicts were unreasonable and could not be supported by the evidence.

132   It was submitted that the delay in bringing these matters to trial had irretrievably prejudiced the appellant’s ability to meet the case against him. The wide range of dates over which the events the subject of the first two counts were said to have taken place made it impossible for the appellant to say where he was and, perhaps, produce evidence of alibi.

133   It seems to me that the appellant was in no worse position than an accused in most cases where the Crown cannot precisely identify the date of the acts giving rise to the charge. The appellant was in the fortunate position that he was able to call the complainant’s aunt to say, with respect to the first count, that she had never given the complainant a lift back to Dubbo and had never seen her in a car driven by the appellant. He was also able to call the complainant’s mother to say that she had never sent the complainant off to Cobar with the appellant. The jury did not believe them, but there is no reason to suppose that they would have been any more believable if they had been speaking about recent events.

134   The events the subject of the second count took place at the complainant’s home when only the two were present. The simple issue was whether the events had happened at all, and the appellant was able to deny them on oath.

135   Immediately after the assault the subject of the fourth count, the complainant complained to a number of people, including police officers. Although no charges were laid at the time the appellant was well aware of what the complainant was saying and was in a position, if he should wish, to make a record of his movements at the time.

136   It was submitted that the delay had robbed the appellant of the benefit of the rule, since repealed, that an accused person could not be convicted on the unsworn and uncorroborated evidence of a child. As to that, the passage of time produced the advantage for the appellant that the complainant was required to take an oath to tell the truth. Secondly, the appellant has no valid complaint because he received a trial according to law.

137   The appellant submitted that the complainant’s evidence was uncorroborated. The evidence of complaint was unimpressive. It was not confirmed on the first count and there was none on the second. The complaint on the final count failed to mention the appellant’s most serious act. It was submitted that the complainant’s evidence was “clearly lacking in veracity”. Long passages of her evidence were referred to.

138   I have read a transcript of the evidence the complainant gave but, allowing for the fact that there was no corroboration, that the appellant gave sworn evidence denying the acts alleged and that the evidence of complaint was not of the strongest kind, it does not seem to me that the jury were bound to doubt that she was speaking truthfully and accurately in her account of what the appellant did to her.

139   Particular reliance was placed on a retort the complainant made towards the end of her cross-examination, when she said -

My head’s that drug fucked it’s not funny. I can’t remember what I did yesterday and you want me to remember back years ago. Can you remember, can ya?

140   The complainant was apparently not the most sophisticated young woman. Also, as I have already remarked, she showed signs of distress as she gave her evidence. The passage relied on came almost at the end of a long cross-examination. The complainant spent almost one day out of a three day trial giving evidence. It seems clear that her outburst was not intended to be taken literally, because she claimed to be able to remember events much more than one day old. I think that the passage was merely an example of the complainant’s display of exasperation at having to endure the unfamiliar conditions of the witness box for so long. There are other examples in the transcript but it is not necessary to refer to them. The complainant’s reference to drugs was not followed up, perhaps advisedly, because the transcript shows that she responded coherently to questions asked of her.

141   The final submission was that the verdicts of guilty could not stand with the verdict of acquittal on the third count. However, it seems to me that there is a clear explanation for the jury’s discrimination. On the third count the complainant was quite vague about important details of the events she was describing. She was unsure how she had come to be at the swimming hole. She could not remember the names of other children present or their gender. She could not remember what she was wearing. More importantly, she could not remember whether the swimming hole was in Cobar or some other place. That must have achieved some importance in the minds of the jury when they were told by his Honour that the first element that the Crown had to prove beyond reasonable doubt was that at the time and place stated the accused had sexual intercourse with the complainant.

142   In the circumstances the acquittal is not surprising, though nothing about the circumstances of it suggests to me that the jury ought on that account to have entertained a reasonable doubt about the reliability of the complainant on the other counts. The jury were told, of course, that they could accept part and reject part of what a witness said. They were told that they had to consider the counts separately.

143   In my opinion this ground of appeal has not been made good. I would dismiss the appeal against the convictions at the second trial.

The third trial

144   There were two counts. The evidence of the complainant, SLP, on the first count was that between 30 June 1980 and 29 June 1981, when she was nine years old, she was visiting the house of her grandparents. The appellant was there too. She accepted an invitation from the appellant to go a water tank to get water for the house, which had only rain water tanks and a tank that had to be replenished from time to time. That was done by carting water from the village tank in a portable tank mounted on a utility truck.

145   The village tank was situated about one kilometre from the village in a fenced and gated enclosure. There were apparently no buildings around and it was a quiet spot.

146   The appellant drove the utility truck through the gate and positioned it under the outlet hose. He turned on the tap and got back into the utility where the complainant had remained during that operation. The utility had a bench seat. The appellant told the complainant to say nothing about this to anyone, lay her on her back on the bench seat, pulled down her pants and her trousers to her knees and lay on top of her. She did not remember whether his clothes were on.

147   A man called Ronnie Southern drove in through the tank gate in a blue Suzuki motor vehicle. The complainant heard the vehicle coming. The appellant must have heard it too, because he got up, got out of the utility and went to speak to Mr Southern. The complainant stayed where she was and pulled up her underpants and shorts. She remained in the utility while the accused spoke to Mr Southern.

148   The complainant did not say whether the appellant filled the tank but said that he got back into the utility and moved off. However, the utility broke down and they managed to push start it with the help of local children. This implies that Mr Southern had left by then.

149   In his evidence, the appellant said that although he had carted water for his parents up to about 1975 or 1976, he had not done so after that because there had been no need to do so. Some fruit trees his father had owned had died and that and other events made it unnecessary for the household to cart water any longer. Besides, the appellant moved away from the district in 1977 and got a job at Kemps Creek. He had never been to the tank in the company of the complainant and Mr Southern.

150   Evidence was adduced from the officer in charge of the investigation that inquiries undertaken to find Mr Southern had been unsuccessful.

151   The second count concerned the events of Melbourne Cup Day 1994, which was also the Cobar Mine picnic day. The complainant went to the picnic with her father and mother and afterwards went to her Aunty Cath’s house in Yarran Circle, Cobar. The appellant was there with some friends of his. The complainant was at the front of the house when the appellant received a telephone call for her from her mother. He called the complainant into the kitchen, where the telephone was and she entered the kitchen and took the telephone from him. As she was speaking to her mother on the phone the appellant was seated near her, feeling the outside of her clothes over her vagina. She told him to stop.

152   The appellant said that although he was in that house on that day he did not receive any telephone call for the complainant or call her to the telephone. He was on his way to the shower when he heard the telephone ring.

153   The complainant told nobody anything about these matters until about a year after the second of them.

154   The appellant was convicted on both counts.

155   The first two grounds of appeal argued may be dealt with together. They were that the learned trial judge erred in not explaining fully to the jury the meaning and importance of the lack of corroboration of the complainant’s evidence and that his Honour erred in not fully explaining to the jury why it would be dangerous to convict the appellant on the uncorroborated evidence of the complainant.

156   The submissions made under this ground were identical to those made under a similar ground in the appeal from the conviction at the first trial. The directions given by his Honour were not significantly different from those at the trial. It is unnecessary to say more. I would refuse leave to appeal on these grounds.

157   The next ground of appeal complained that his Honour erred in providing irrelevant examples when explaining why a victim of sexual assault might hesitate to complain.

158   The complainant’s evidence was that she was too scared to tell anyone about the events the subject of the first count and that she did not want to have any fights with the family after the second attack. His Honour told the jury that there might be good reasons why a victim of sexual assault might hesitate to complain or refrain from complaining and went on to mention fear of the other party, not knowing what steps to take and confusion as examples, and pointed out that such problems might be greater for a child.

159   It was submitted that since the complainant never offered confusion or ignorance as a reason for not complaining, his Honour’s directions caused the trial to miscarry.

160   The submission was identical to one put under a similar ground in the appeal against the convictions at the second trial. For the reasons given in dealing with that ground I would refuse leave to appeal.

161   The final ground of appeal was that the verdicts were unreasonable and could not be supported by the evidence. It was submitted that the delay in making complaint and bringing the matters to trial prejudiced the appellant’s ability to meet the prosecution case.

162   It was submitted that in the first count particularly, the effect of alleging such a wide range of dates and such a long time in the past prejudiced the appellant because he could not after such a time reasonably ascertain his whereabouts at the time of the incident alleged. The difficulty in establishing possible alibis was increased by the delay.

163   Given the absence of Mr Southern, the issues for determination on the first count were a contest of word against word. The trial judge gave the jury clear directions that each charge was to be considered separately and that the onus of proof was at all times on the Crown. His Honour told the jury that the Crown relied on the evidence of the complainant, which they had to scrutinise with great care. He told the jury that the delay in complaining was relevant to their assessment of the credibility of the complainant and warned the jury about the effects of delay upon the ability of the appellant to defend himself. No complaint was made as to the adequacy of those directions.

164   The jury had the advantage of seeing and hearing the complainant and there seems no reason why they should not have accepted her as a reliable witness.

165   In my opinion, the delay in complaining and the wide range of dates particularised on the first count were not in the circumstances of this case particularly likely to give the appellant difficulty in showing that he might have been elsewhere. His case was that he was not even in the district at the time, having left to take a job at Kemps Creek in 1977. Notwithstanding the passage of a substantial time, he could have subpoenaed his former employers to produce evidence of his employment. He could have obtained, by subpoena or otherwise, copies of taxation returns and other financial documents and the like. The passage of time would not seem to have made his task in such matters significantly harder. Although his parents died in 1979, there were other family members whom he could have called to say, if it were the fact, that he had moved out of the district and was not there during 1980 and 1981.

166   The next submission was that delay robbed the appellant of the advantage of the rule that he could not have been convicted upon the unsworn and uncorroborated evidence of a child. As the Court observed in dealing with an identical ground concerning the second trial, no injustice resulted because the appellant had a trial according to law.

167   This ground of appeal has not been made good.

168   In support of the appeal against the second conviction it was submitted that the evidence of the complainant should be doubted because she was at the time herself an adult and was in the company of a number of adults, including her cousin and her aunt and was on the telephone to her mother at the time, yet she did not complain for another year.

169   The appellant was asked why she did not complain and said that she did not want to create trouble in the family. These matters were all put before the jury by counsel and his Honour gave appropriate directions about the effect of delay in complaining upon the evidence of the complainant and how it gave rise to a need to scrutinise evidence carefully.

170   In my opinion this ground of appeal has not been made good.

171   The appeal against the convictions should be dismissed.

The fourth trial

172   There were two counts. The evidence of the complainant, LJH, was that on a day between 1 January and 25 December 1975 the appellant took the complainant to the same water tank on the back of his motor cycle. When they arrived at the gate the appellant said that they were running out of fuel and they stopped. The appellant and the complainant got off the motor cycle, he put his arm over her shoulder and pulled her into him, her back to his front, and started caressing her breasts on the outside of her clothing. She was wearing shorts and a T-shirt. He put one hand inside her T-shirt. She tried to pull away and kicked him and her shirt came off. He also began touching her on the vagina.

173   The complainant threatened to tell her father, a man the appellant feared, and he stopped his misbehaviour and drove her back to the village. The complainant was ten years old.

174   On the occasion giving rise to the second count, virtually the same thing happened. The motorbike stopped near the tank and the appellant placed his hand on the complainant’s breasts outside her clothing.

175   The complainant said nothing to anybody until she told her mother when she was about twenty-four or twenty-five years old. She remained silent in the meantime because she was frightened that any complaint would precipitate arguments and fights within the family and that she would be in trouble over it.

176   The appellant gave evidence to the effect that he had never taken the complainant on the back of a motorcycle to the tank and had never indecently assaulted her. He said that he left school in 1975 when he was fifteen or sixteen and started working shiftwork at the mine. He did not have a motor cycle in working order or any access to such a motor cycle.

177   The appellant was convicted on both counts.

178   The first two grounds of appeal argued may be dealt with together. They were that the learned trial judge erred in not explaining fully to the jury the meaning and importance of the lack of corroboration of the complainant’s evidence and that his Honour erred in not fully explaining to the jury why it would be dangerous to convict the appellant on the uncorroborated evidence of the complainant.

179   Identical grounds of appeal, supported by identical submissions, have been dealt with in the appeals against convictions at the earlier trials. The directions complained of at this trial were not significantly different from those given at the earlier trials. I would refuse leave to appeal on these grounds for the reasons given in the earlier appeals.

180   The next ground of appeal complained that his Honour erred in giving irrelevant examples when explaining why the victim of a sexual assault might hesitate to complain.

181   Identical grounds of appeal, supported by identical submissions, have been dealt with in the other appeals. For the reasons already given I would refuse leave to appeal on this ground.

182   The next ground of appeal complained that his Honour erred in granting leave to the Crown to adduce certain evidence from the complainant’s mother.

183   The complainant and her mother gave evidence of a conversation that took place between them in 1991, some sixteen years after the events complained of. They related to sexual advances made by the appellant towards the complainant. The Crown took the view that they were not admissible as evidence of complaint in view of the long delay that had taken place. However, as appears from an account given to his Honour by counsel after the jury retired, the Crown sought an assurance from defence counsel that it would not be suggested to the complainant that she had recently fabricated or reconstructed her evidence. The assurance was not given. The Crown prosecutor took the view that the evidence was admissible under s 108(3) Evidence Act, provided the Court gave leave. Defence counsel agreed. Evidence of the conversation was therefore adduced from the complainant and from her mother without objection from defence counsel.

184   However, counsel overlooked the requirement in s 108(3) that the Court give leave. The Crown realised its omission after the jury had retired and raised the matter with his Honour. The account that I have summarised was given. Defence counsel stated his position, concluding -

I do not raise any point about it now because it was both our oversights (sic) that it was not raised earlier.

185   Accordingly, the Court granted retrospective leave.

186   It was submitted on appeal that the receipt of the evidence caused the trial to miscarry.

187   In my opinion the evidence was properly admitted so that the Crown might re-establish the credit of the complainant in anticipation of a defence attack on her credit. Leave was properly given. The trial was conducted precisely as intended by defence counsel. I would refuse leave to appeal on this ground.

188   The final ground of appeal was that the verdicts were unreasonable and could not be supported by the evidence. As with the two counts in the third trial, this case was essentially one in which the jury were required to weigh word against word. The jury were appropriately instructed about the burden of proof and how it never shifted to the defence. They were told that they must carefully scrutinise the evidence of the complainant, especially in view of the delay in complaint. They had the advantage of seeing and hearing the complainant and there appears no reason why they should have doubted the accuracy of her evidence.

189   It was put on behalf of the appellant that the lapse of time between the supposed events and the bringing of charges had caused him particular difficulty, because he wished to assert that although there were motor cycle parts around his house at the time, there was no machine in working order. The appellant’s parents might have been able to give evidence about such matters, but they both died in 1979.

190   I do not consider that the want of such evidence produced a miscarriage of justice in all the circumstances. There were other family members the appellant could have called, and of course he gave evidence to like effect himself. The jury obviously took the view that his sworn evidence was insufficient so much as to raise a reasonable doubt about the reliability of the complainant.

191   This ground of appeal has not been made good and the appeal should be dismissed.

The sentence appeal

192   The appellant seeks leave to appeal against the sentences.

193   His Honour regarded the most serious offence as having sexual intercourse with BLY without her consent, she being under sixteen. That was the first count in her trial. When she was eight years old the appellant forced her to suck his penis. The maximum penalty was imprisonment for ten years. His Honour imposed a sentence of imprisonment of eight years, comprising a minimum term of six years and an additional term of two years. His Honour intended that sentence to comprehend all the appellant’s criminality.

194   The other offences carried various maximum sentences up to ten years’ imprisonment and his Honour imposed fixed terms, concurrent with the minimum term of the sentence I have mentioned, ranging from one year to three years.

195   It was submitted that the sentences were manifestly excessive. Attention was directed to the age of the appellant, and it was submitted that at the time of the indecent assaults upon LJH he was himself a child, aged fifteen or sixteen years. The appellant was born in 1959. That submission takes an extreme view. At the time of most of the offences he was in his twenties. For the latter ones he was in his thirties. The most serious ones, those committed on BLY, happened when he was in his mid to his late twenties.

196   Then it was submitted that there had been a delay bringing the matters to trial. That is not something in my opinion that works in favour of the appellant, because delay in making such matters public is an ordinary consequence of the fear which sexual assaults engender in the minds of children.

197   Then subjective factors were pointed to, including the poor health of the appellant.

198   His Honour took all these matters into account. He observed that the appellant was thirty-nine years old and, at one hundred and fifty kilograms in weight, obese. His Honour recorded that there was a long-standing injury to the back and that the appellant suffered angina. His Honour observed that because of these matters and because of the fact that he would have to be held on protection he would find it more difficult to serve his sentences. His Honour also observed that there was no contrition and that the offences had had an effect upon the appellant’s victims, particularly BLY, who was badly affected.

199   It was also submitted that because, for the reasons I have summarised, the appellant will serve his sentence hard, his Honour ought to have found the existence of special circumstances justifying the imposition of an additional term which exceeded one-third of the minimum term of the longest sentence imposed.

200   No attack was made upon the structure of the individual sentences.

201   In my opinion there is no substance in the appellant’s submissions. The total effective sentence imposed by his Honour was well within the range of his sentencing discretion, as was the imposition of an additional term not exceeding two years. I would refuse leave to appeal against sentence.

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