R v Grattan - [2005] NSWCCA 306

No judgment structure available for this case.

CITATION:
R v Grattan [2005] NSWCCA 306
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 May 2005

JUDGMENT DATE:

2 September 2005

JUDGMENT OF:
McClellan AJA at 1; Simpson J at 186; Rothman J at 187

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Whether the trial judge erred in admitting evidence of the complainant's distressed condition - uncharged acts not complained of - pre-text telephone conversations and email messages - Incorrect directions to jury - Miscarriage of justice

PARTIES:
The Crown
Phillip John Grattan (Appl)

FILE NUMBER(S):
CCA 2005/117

COUNSEL:
D C Frearson SC (Crown)
B Walker SC/A J Kimmins (Appl)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Ryan & Bosscher (Appl)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0695

LOWER COURT JUDICIAL OFFICER:
Hock DCJ

2005/117

McCLELLAN AJA
SIMPSON J
ROTHMAN J
FRIDAY 2 SEPTEMBER 2005

REGINA v Phillip John GRATTAN

Judgment

1 McCLELLAN AJA: The appellant was tried before Her Honour Judge Hock and a jury at the Sydney District Court on the following charges:

1. That he between 1 January 1993 and 31 December 1994 at Bexley in the State of New South Wales, did have sexual intercourse with the complainant without his consent and knowing that he was not consenting, when the complainant was under the age of 16 years.

2. That he between 1 January 1993 and 31 December 1994 at Bexley in the State of New South Wales, did commit an act of indecency towards the complainant who was then under the age of 16 years.

3. That he between 31 August 1997 and 1 November 1997 at Bexley in the State of New South Wales, did have sexual intercourse with the complainant without his consent and knowing that he was not consenting, when the complainant was under the age of 16 years.

4. That he between 31 August 1997 and 1 November 1997 at Bexley in the State of New South Wales, did attempt to have sexual intercourse with the complainant without his consent and knowing that he was not consenting, when the complainant was under the age of 16 years.

5. That he between 31 August 1997 and 1 November 1997 at Bexley in the State of New South Wales, did commit an act of indecency towards the complainant, who was then under the age of 16 years.

6. That he between 27 August 1999 and 4 September 1999 at Chippendale in the State of New South Wales, did have sexual intercourse with the complainant without his consent and knowing that he was not consenting, when the complainant was under the authority of Phillip John Grattan.

7. That he between 27 August 1999 and 4 September 1999 at Chippendale in the State of New South Wales, did have sexual intercourse with the complainant without his consent and knowing that he was not consenting, when the complainant was under the authority of Phillip John Grattan.

8. That he between 27 August 1999 and 4 September 1999 at Chippendale in the State of New South Wales, did commit an act of indecency towards the complainant, who was then of the age of 16 years.

9. That he between 1 December 1999 and 10 January 2001 at Bexley in the State of New South Wales, did have sexual intercourse with the complainant without his consent and knowing that he was not consenting, when the complainant was under the authority of Phillip John Grattan.

10. That he between 1 December 1999 and 10 January 2001 at Bexley in the State of New South Wales, did commit an act of indecency towards the complainant, who was then above the age of 16 years.

2 On 9 August 2004, the jury returned verdicts of guilty in relation to Counts 2 to 11. A verdict of not guilty was returned in relation to Count 1, but a verdict of guilty was returned in relation to the statutory alternative of sexual intercourse with a child between 10 and 16 years of age (s66C Crimes Act 1900).

3 On 15 October 2004, Her Honour sentenced the appellant as follows:

Alternative to Count 1 : imprisonment for a fixed term of 5 years to commence on 9 August 2004 and expire on 8 August 2009.

Count 2 : imprisonment for a fixed term of 6 months to commence on 9 August 2004 and expire on 8 February 2005.

Counts 10 & 11 : on each count, imprisonment for a fixed term of 6 months to commence on 9 August 2005 and expire on 8 February 2006.

Count 5 : imprisonment for a fixed term of 1 year to commence on 9 August 2005 and expire on 8 August 2006.

Count 8 : imprisonment for a fixed term of 6 months to commence on 9 August 2006 and expire on 8 February 2007.

Count 4 : imprisonment for a fixed term of 2 years to commence on 9 August 2005 and expire on 8 August 2007.

Count 9 : imprisonment for a fixed term of 5 years to commence on 9 August 2005 and expire on 8 August 2010.

Count 3 : imprisonment for a fixed term of 6 years to commence on 9 August 2005 and expire on 8 August 2011.

Count 6 : imprisonment for a fixed term of 5 years to commence on 9 August 2006 and expire on 8 August 2011.

Count 7 : imprisonment for a period of 9 years to commence on 9 August 2006 and expire on 8 August 2015 with a non-parole period of 6 years and 3 months to expire on 8 November 2012.

Overall sentence: Imprisonment for 11 years to commence on 9 August 2004 and expire on 8 August 2015 with a non-parole period of 8 years and 3 months to expire on 8 November 2012.

The Crown case

4 Although the Crown’s case relied primarily upon the complainant’s evidence, the Crown called a number of other witnesses who gave evidence that corroborated aspects of the complainant’s evidence. The complainant also gave evidence about other sexual assaults alleged to have occurred in Queensland that had not been charged. It was the Crown case that evidence of these uncharged acts provided context to and made the circumstances of the charged offences more intelligible. In addition the Crown tendered evidence of two phone calls and three emails between the appellant and the complainant as proof of the intimate nature of their relationship. The complainant and one of his sisters also gave evidence of a complaint made by the complainant about the offences.

Background

5 The complainant’s mother, CM and father, PA, were married in 1980. At this time CM had a daughter, KM (born 29 December 1974), from a previous relationship. The complainant was born on 30 March 1983 and has three younger sisters, R (born on 30 March 1985), S (born on 22 January 1988) and T (born on 28 June 1995). The family lived in Banksia until 1992 when they moved to Arncliffe.

6 AM is CM’s aunt. She lived in a house in Bexley. She never married and had no children of her own.

7 In about 1985, CM developed a drug dependency which continued until her death in July 1997. The complainant gave evidence that his mother had been violent towards him. In about 1990, KM moved away from the family home to AM’s house. From about the age of 10 years, the complainant would also stay at AM’s house on a frequent basis. The complainant gave evidence that he considered AM as a ‘grandmother figure’.

8 PA and CM separated from 1992 until mid 1994 and then again from late 1996. PA maintained primary responsibility for the care of their children except for about 1 month in 1992. He gave evidence that he did this with considerable support and assistance from AM.

9 The complainant went to primary school until 1995 and attended high school from 1996 until 2001. He encountered difficulties with his studies when he reached high school and consequently received special educational assistance. The appellant gave evidence that this was because the complainant was slow and ‘wasn’t quite up with the rest of his age group’.

10 The appellant is the complainant’s uncle by marriage – he is married to CM’s sister, NG. The appellant and NG have two daughters, A and R. The Grattans lived in Sydney until 1989, when they moved to Brisbane. The Grattans and the complainant’s family maintained a close relationship and would see one another every Christmas when the Grattans would visit Sydney and stay with AM. The appellant would also stay with AM on his own when he visited Sydney for business purposes about three times a year for about three or four days at a time.

11 The appellant and the complainant had a close relationship. When the appellant was in Sydney, the complainant would frequently visit him at AM’s house where they would play cards and talk about computers till early in the morning and the complainant would often stay the night. AM gave evidence that the complainant ‘looked up to [PA] quite a lot and they had the same interests and …I think that’s why he would like to stay’. The complainant gave evidence that he got on well with the appellant and that ‘everywhere he went, I would have went with him when he was down in Sydney’. He said that following the death of his mother, he regarded the appellant ‘[p]retty high. Probably a father figure’ and that his relationship with the appellant ‘meant everything’ to him.

Evidence of Sexual Assaults

12 The complainant gave evidence in relation to each offence and the other incidents of a sexual nature that were not the subject of charges.

Incident 1 (Counts 1 and 2)

13 The complainant stated that the first two offences occurred on an occasion when he stayed over at AM’s house. He was uncertain as to the precise timing of this occasion. During his examination-in-chief, he said he thought it was when he was in Year 4 or 5 at school (which would have been 1993 or 1994). Under cross-examination he said he could not recall what year it was but during re-examination he said he thought it was in 1993 - before he received sex education at school in Years 5 and 6.

14 The complainant went to AM’s house with his mother and was planning to return to his house with her. The complainant initially said that only AM was present when he and his mother arrived at the house but then said that the appellant was also there. He indicated that KM was also present during the night.

15 The complainant said his mother had refused a request he had made to stay over at AM’s house but he thought that if he fell asleep there she probably would not wake him up. He went to the back bedroom, which had one big bed in it, and fell asleep in his clothes on top of the covers. During cross-examination, the complainant conceded that he had previously told police that he had been under the covers of the bed but he said that this was false.

16 The complainant said that the only light coming into the room was through the window from the back verandah and that one of the windows in the room was ajar as usual. The complainant said that:

"After --- and then I woke up and then I went out to the toilet and came back in and then Phillip was going to bed as well".

17 The appellant got undressed and ‘he had his shorts and a singlet on’ and got into bed. The complainant stated:

"then when I was already asleep, and then when I woke up I felt Phillip putting his penis in my anus. And then I turned over to look [at] what he was doing and then he, he had his pants down. And then all I could feel was pain".

18 His trousers had been pulled down and pulled off and placed on the floor next to the bed. The complainant said he felt the pain in his ‘backside’ for about 10 to 15 minutes and that he was saying ‘ouch’ for the duration of it. It was the Crown case that this assault constituted the offence set out in Count 1 on the indictment.

19 The complainant stated that after the appellant stopped he ‘started rubbing his penis and then he ejaculated on his singlet’. It was the Crown case that this act constituted the offence set out in Count 2 of the indictment. The complainant’s evidence as to his position in the room at the time of this offence varied. During his examination-in-chief the complainant said that the appellant was next to the complainant in the bed. During cross-examination, the complainant said that he had got himself up and was sitting on the side of the bed with his pants down watching the appellant but then that he was only sitting on the side of the bed after the appellant ejaculated. The complainant also agreed that during an interview with police he had said that they were both lying on their backs at the time the appellant ejaculated.

20 After this incident, the appellant told the complainant ‘not to tell anybody, what happened, and it’s none of anybody’s business’. The appellant went to the bathroom and came back to bed and then the complainant went to the bathroom for a while and was ‘just thinking about what [the appellant] was doing’. He then went out to the kitchen and spoke to AM but did not say anything to her about what had happened because ‘I didn’t know what was going on’.

21 The complainant said that when he was being assaulted he could not hear his mother on the verandah with AM, although the light for the verandah was still on, and by the time he spoke to AM, she had gone home. However, during cross-examination the complainant conceded that he had previously told police that his mother was on the back verandah with AM at the time he was assaulted and that he had spoken to her after the assault.

22 After speaking to AM, the complainant went back to bed with the appellant. He said he went back to the appellant rather than sleeping on one of the other spare beds in the house because none of them were made up and it was going to get colder in the night.

23 The Crown called AM. She gave evidence that she remembered the complainant sharing the back bedroom with the appellant on several occasions. She said that when the Grattans came to stay, the appellant would usually stay in the back room with NG and the girls would stay in the second front room. If the complainant stayed as well, she would put a spare bed in the room with the girls and NG would sleep with them. The complainant and the appellant would then share the double bed in the back room.

24 When AM was specifically asked by police about the allegations the subject of Counts 1 and 2, she provided a statement that she recalled a time when the appellant and complainant shared the double bedroom and the complainant went to bed early because he was sick. She did not think that CM was present on this occasion and she said it may have been that NG and the girls were using the front bedroom.

Incident 2 (Counts 3, 4 and 5)

25 The complainant gave evidence in chief that he believed that the second incident, which concerns Counts 3, 4 and 5, occurred a couple of months after his mother died in 1997. However, during cross-examination he said it was probably when he was 13 or 14 years old, that he could not remember the year and that when he spoke to police about it he did not know the year.

26 The complainant said that the appellant was in Sydney staying at AM’s house and had phoned to ask him to come over and play cards. The complainant agreed to this, and the appellant picked the complainant up that night and drove him to AM’s house.

27 The complainant said that only the appellant and AM were at the house with him that evening and he played card games with the appellant in the dining room for about an hour to an hour and a half. He and the appellant then went to the spare bedroom toward the front of the house, which had two single beds in it, and got ready to go to bed. The complainant got changed into his pyjamas and got into the single bed that was furthest from the window. The appellant got into the bed closest to the window and they started talking. The middle lamp between the two beds was on and the door was closed.

28 The complainant stated that after a while the appellant ‘pulled his penis out and then started rubbing it with his hands’. The complainant watched the appellant masturbating for about 10 minutes. The appellant then ‘came over to my bed and then he pulled the sheets down and then he took my underpants off and then he told me to suck his penis’. The complainant repeatedly told him that he ‘didn’t want to do it’.

29 The complainant said he struggled to keep his pants on by keeping his weight on the bed so the appellant could not pull them down. The struggle lasted for about five minutes but eventually the appellant overcame him and managed to pull them down but not completely off.

30 The appellant pushed the complainant’s head into his penis and the complainant ‘tried to push back but [the appellant’s] hand was there, so I couldn’t really move’. The complainant was kneeling down at the time and his mouth was in front of the appellant’s penis. After some time, the appellant let go and the complainant got up and went back to bed. It was the Crown case that the appellant’s attempt to force the complainant to suck his penis constituted the offence set out in Count 4 of the indictment.

31 The complainant said that the appellant then ‘lifted me up with his hand and then started putting his finger in my anus and kept trying to put his finger in my anus. After that, after 15, 20 minutes, then he stopped’. The appellant’s finger was moving while it was in the complainant’s anus. The complainant said that it was hurting his bottom and that he was continually telling the appellant to stop it and that he ‘didn’t want to do it’ but the appellant told him that ‘it was normal and it shouldn’t hurt for much longer’. It was the Crown case that the act of the appellant putting his finger in the complainant’s anus constituted the offence set out in Count 3 of the indictment.

32 During cross-examination the complainant agreed that when he was interviewed about this incident by police on 13 January 2002, he said that the appellant had put his finger in the complainant’s anus before the complainant was told to suck his penis. The complainant also had not mentioned to police that he had knelt down during the incident.

33 After the appellant stopped putting his finger in the complainant’s anus, the appellant ‘went back to his bed, and then he started rubbing his penis again, then he ejaculated onto himself’. It was the Crown case that this constituted the offence set out in Count 5 of the indictment.

34 After this incident, the appellant told the complainant ‘to not tell anybody, it was no-one’s business’, the complainant put his pants back on, went back to bed and fell asleep.

35 The complainant said that AM usually went to bed late and that he had seen her in the kitchen before he went to bed, but that he did not remember hearing her once they were in the room. She had said to him the next morning that she had heard him and the appellant talking the night before, but he did not bring up with her what had occurred. The complainant said he did not speak to the appellant about the incident again and he did not tell anybody about it because ‘I didn’t know what people would think’. He said he voluntarily went to the bedroom with the appellant on this occasion because he thought the appellant had forgotten about the first incident (the subject of Counts 1 and 2).

36 AM gave evidence that while she remembered the complainant sharing the back bedroom with the appellant on a number of occasions, she could not recall them sharing the other spare bedroom toward the front of the house. In her statement to police she said that when the appellant was visiting on his own he would occupy this front room and that he may have taken the complainant to it, but that she could not specifically remember this.

Incident 3 (Counts 6, 7 and 8)

37 The complainant gave evidence that the third incident, the subject of Counts 6, 7 and 8, occurred when the appellant was in Sydney on business and was staying in a motel in Chippendale. The complainant remembered that at this time the appellant’s car had been broken into and some computer equipment had been stolen from it.

38 The Crown called Constable Frank Levi, who stated that he attended the Metro Motor Inn in Chippendale at about 8.30am on 29 August 1999 in relation to a report made by the appellant that his car had been broken into. Entry into the car had been gained through the front passenger window, which had been smashed. Constable Levi said that police records indicated that the appellant’s report had been acknowledged by police at 8.23 am on 29 August 1999.

39 The complainant said that the appellant telephoned him at home and asked if he wanted to go computer shopping, to which the complainant said he did. The appellant subsequently picked him up and they drove to the motel in Chippendale because the appellant needed to get something from there. The complainant was uncertain as to what car it was that the appellant picked him up with. He initially told police that he thought it was a Thrifty Rental car but said that he could not be sure. He said he did not recall seeing a smashed window in the car.

40 When they arrived at the motel they walked to the appellant’s room through the front doors of the motel. During his examination-in-chief, the complainant said it was a weekend day and it was probably about 10am to 12pm when they got to the motel. Under cross-examination, the complainant agreed that he could have been picked up from his home some time between 12pm or 1pm.

41 During his evidence in chief, the complainant said that when they got to the room the appellant asked if he wanted something to drink and the complainant ‘said yes, and [the appellant] got me a cup of coke. And then I was sit[ting] down drinking’ on a swivel chair ‘sort of on the desk’. During cross-examination, the complainant conceded that he previously told police that he had declined the appellant’s offer of a drink and he said that he was unsure about whether he had a drink or not.

42 The complainant said that the appellant then got undressed. During his examination-in-chief he said the appellant was wearing shorts and a shirt and he saw him take these and his shoes off until he was only wearing a singlet. However, under cross-examination the complainant said the appellant was wearing business wear (shirt, tie, trousers) both when he entered the motel room and when he left and that he thought that the appellant had been working that day. He then indicated that all he could remember about the appellant’s clothing was that he was wearing a singlet after he got changed.

43 The complainant said that he was wearing long tracksuit pants, a jumper and white sand shoes and the appellant tried to undo his shoes. The complainant told the appellant that ‘I didn’t want to take my shoes off’. He was trying to move away so the appellant could not undo them but ‘eventually [the appellant] got my shoes off’. The appellant then took the complainant’s tracksuit pants off while he was still sitting in the swivel chair. During his evidence in chief, the complainant said he told the appellant to stop but his pants came off and he only had his shirt, socks and jumper on. Under cross-examination the complainant said that his jumper was also off.

44 The appellant then went and sat on the bed and said that he wanted the complainant to lie next to him. The complainant told him that he did not want to and that he wanted to go home but the appellant said that if he did not sit next to him he would not take him home.

45 The complainant lay next to the appellant on the bed and the appellant told him ‘to suck his penis’. The complainant told him that he did not want to, but the appellant said ‘[y]ou want to go home, so you do it’. The complainant started sucking the appellant’s penis for five to ten minutes. It was the Crown case that this constituted the offence set out in Count 6 of the indictment. During cross-examination the complainant agreed that when he was interviewed by police on 8 February 2002 about this incident, he said that the reason why he got into bed and sucked the appellant’s penis was because the appellant had said that if he refused they would not go shopping for computer gear.

46 The complainant said that after this, the appellant ‘was putting his penis in my anus’ and that ‘I kept telling him to stop, it was hurting. And he said it was normal, and, “This is what guys do”. And then it was about twenty minutes after, half an hour he stopped’. He said the appellant’s penis was erect and he felt pain in his bottom. It was the Crown case that this act constituted the offence set out in Count 7 of the indictment.

47 During his evidence in chief the complainant said that the Appellant then started ‘rubbing his penis with his hands and he, he ejaculated on himself. During cross-examination, the complainant conceded that he had previously told police that the appellant had ejaculated ‘in the middle of the bed’. It was the Crown case that the appellant’s masturbation constituted the offence set out in Count 8 of the indictment.

48 During cross-examination the complainant agreed that he had previously told police that he had sucked the appellant’s penis before his clothing was taken off. He also agreed that he had told police that he had sucked the appellant’s penis while he was still sitting on the swivel chair rather than while he was lying in the bed next to the appellant.

49 The complainant said that after the appellant ejaculated, he went into the shower and the complainant got changed. He said they were in the room for about an hour and a half in total and then went computer shopping. During this shopping expedition, the appellant bought a hard drive, which he took home to Brisbane and put in his computer. He then sent his old hard drive down to the complainant. During his cross-examination, the complainant agreed that he had previously told police that they did not purchase anything that day in the computer shops.

50 The complainant said he did not leave the motel room when the assaults were going on because he was ‘in the middle of the city and there was nowhere else I could go if I was to run somewhere, and if I was to go Phillip might have left and I’d be stuck in the city’.

51 After they left the motel room the appellant told the complaint not to tell anyone about what had happened and that it ‘was no-one’s business’. He said he did not speak to the appellant about the matter again and after the appellant dropped him off at home later that day he did not tell anyone about what had happened ‘because of what other people would have … thought’. He said he enjoyed the appellant’s company and he thought he would not be able to go out with him again. He also thought that if he told anyone they ‘would’ve thought it was my fault, or I would’ve got into trouble’.

First uncharged incident (Brisbane, January 2000)

52 The complainant gave evidence about a further incident of a sexual nature that occurred in Brisbane in January 2000. This alleged offence was not the subject of any charges.

53 The complainant said that the Grattan family had visited Sydney for Christmas at the end of 1999 and in early January 2000, he drove back to Brisbane via Armidale with them for a holiday. The complainant stayed in Brisbane with the family for about three weeks in total. During his cross-examination, the complainant conceded that when he spoke to police about this incident, he told them that he thought that it occurred in January 2001 after he had flown up to Brisbane.

54 The complainant said that when they arrived at the Grattan’s residence in Carindale, Brisbane, the housekeeper ‘Ronnie’ was there, they had lunch and then he and the appellant drove Ronnie back to his flat. On the way there, the appellant told Ronnie to show the complainant a tape. During his evidence in chief, the complainant said that when they got to Ronnie’s unit, Ronnie got him a can of lemonade, the appellant made a cup of coffee and they sat down on the lounge. During cross-examination, the complainant agreed he had told police that he got the coffee for the appellant and he said that he could not recall who ended up getting the coffee.

55 The appellant then told Ronnie to ‘play the tape’. The complainant said that there was pornography on the tape, with two men having sex. The appellant wanted the complainant to look at the tape and then the appellant ‘started rubbing his penis’. During cross-examination, the complainant agreed that he had not mentioned to police during his interviews with them that the appellant first started masturbating while he was sitting on the couch.

56 The appellant then asked Ronnie to suck his penis, which Ronnie did. The appellant then asked Ronnie if he could suck Ronnie’s penis and after that ‘they started rubbing each others penis … [and] after about 10 or 15 minutes and then they both ejaculated’, one after the other. The appellant and Ronnie were sitting up on the floor when they were sucking each other’s penis. During cross-examination, the complainant said that both men had their clothing on but their pants were down. He agreed that he had earlier told police that they had their shirts up when they were ejaculating, but said that he could no longer recall this.

57 The complainant said he did not leave Ronnie’s flat when the video was playing because he did not know what Ronnie would have done and because he did not know where he was.

58 After this, Ronnie and the appellant went to the bathroom, which was off the bedroom, and the tape stopped. During his examination-in-chief, the complainant said he then went to wash his hands in the bathroom. While he was doing this, the appellant closed the door between the bedroom and the lounge room and when the complainant came out of the bathroom into the bedroom, the appellant told him to take his clothes off. During cross-examination the complainant conceded that he had previously told police that it was while they were in the lounge room that the appellant said he wanted the complainant to take his clothes off and that they were ‘going to do it in the bedroom’. The complainant had also told police that he said he did not want to but the appellant grabbed him by the arm and took him into the bedroom.

59 While they were in the bedroom, the appellant started undoing the complainant’s shoes. During his evidence in chief, the complainant said he kept moving away, but the appellant said that they would not go until he took his clothes off, so he complied. The appellant then took his clothes off and got into bed. During his cross-examination, the complainant said that the appellant took his clothes off before the complainant’s came off and that the appellant had kept his singlet on. He also agreed that he had told police that the appellant had taken the complainant’s clothing off and that the appellant had removed all of his clothes, including his singlet.

60 The appellant then asked the complainant to lie next to him. The complainant said he did not want to but the appellant said that ‘he wouldn’t go until I’d lied next to him. So I did. And then he started putting his penis in my anus’ and was moving it. The complainant agreed under cross-examination that he had told police that the appellant had dragged him onto the bed.

61 The complainant said it was hurting and he continually told the appellant to stop and that he ‘didn’t want to do it, but he kept going’. The appellant stopped after about 15 to 20 minutes and then ‘he was rubbing his penis and then he ejaculated’. While this was happening, he could only hear the music that Ronnie was playing in the lounge room.

62 After the appellant had ejaculated, he went to the bathroom and the complainant got changed and went out to where Ronnie was in the lounge room. He did not speak to Ronnie and the appellant came out later and said to Ronnie ‘thanks’.

63 The complainant said there was only ever one incident of sexual interaction between him and the appellant at Ronnie’s house, although he had been to Ronnie’s flat twice on different days during the same trip to Brisbane. He could not re-call whether this second visit was related to picking up or dropping Ronnie off for a birthday party at the appellant’s house. However, he agreed under cross-examination that he had previously told police that the second time he went to Ronnie’s flat was when he and the appellant drove him home after Ronnie’s birthday party, when they were on the way to the library, and that he did not go into the flat on this occasion.

64 The Crown called Ronald Mann. Mr Mann said that he had known the appellant for a number of years and had sexual relations with him throughout that period. He said he had been away with the appellant on car trips before and that he had looked after the appellant’s house on about 5 occasions at Christmas time when the Grattans went away. Mr Mann gave evidence that he had been on medication for a number of years for anxiety problems that he suffered.

65 Mr Mann first provided police with a statement about this matter on 28 February 2003. He also provided evidence at the appellant’s committal hearing in July 2003. He said this first statement and his evidence during the committal hearing were not true or correct and contained a number of falsities. He said he gave false information and evidence on these occasions because he was scared and frightened of the appellant and because ‘it takes a lot more time in [thinking] what to write and what to say’.

66 Mr Mann said that on 12 November 2003, of his own accord, he contacted an officer at the DPP and told them that he wanted to make another statement because he had previously left things out. He subsequently underwent a recorded interview with police and provided a further signed statement dated 12 November 2003. Mr Mann said he had not spoken to the complainant since the incidents he spoke to police about took place.

67 The trial judge provided Mr Mann with a certificate under s 218(3) of the Evidence Act 1995 for the evidence he provided during the trial. Mr Mann was also granted an assurance from the Queensland Director of Public Prosecutions that he would not be prosecuted for any offences he admitted to during the trial that were committed in Queensland.

68 Mr Mann gave evidence that he recalled a time when he was looking after the appellant’s house in Carindale and the Grattans returned home from Sydney with the complainant. This was the first time that Mr Mann met the complainant. Mr Mann said he had looked after the house from a week before Christmas until about 2 or 3 January but he could not recall what year it was. However, he had said in his first statement to police and during his evidence at the committal hearing that the family had returned in January 2001.

69 A couple of hours after the Grattans arrived home, the appellant drove him and the complainant back to his residence, which was a one bedroom housing commission unit. When they arrived at his flat, they all went inside and the complainant and the appellant sat on the large lounge and Mr Mann sat on the single lounge.

70 The appellant then asked Mr Mann to ‘undo my fly to expose my penis in front of [the complainant]’, which he did and his penis became erect. The appellant then undid his fly and exposed his penis, which also became erect. Both he and the appellant proceeded to masturbate but they did not ejaculate. The appellant was sitting on the lounge next to the complainant and Mr Mann was sitting on the single lounge chair while this was going on. Mr Mann said he did not sit on the floor at any stage during this incident.

71 During cross-examination, Mr Mann said that he only exposed himself because the appellant had threatened him and that he had been threatened by the appellant on a number of occasions. Specifically, the appellant would say to him that if he told NG and the girls that they had had an affair he would ‘hire someone and ring someone from his mobile phone or his telephone and permanently get me killed’. He said that the complainant had been threatened by the appellant in the same way.

72 After Mr Mann and the appellant stopped masturbating, the appellant ‘threatened’ Mr Mann to go and get some adult magazines, with pictures of men in them and the appellant showed these to the complainant. The appellant then asked Mr Mann to go next door to ‘Shirley’s flat’, which he did for about an hour. During cross-examination, Mr Mann said that he was threatened by the appellant to go to Shirley’s and that he left the unit crying. When he returned the appellant and the complainant were outside his flat and then they left. He said he was crying throughout the time he was with Shirley and when the appellant and the complainant left.

73 Mr Mann said that some time after this, the appellant returned with the complainant and asked Mr Mann if he could use his flat. Mr Mann said that, in front of the complainant, the appellant threatened him again and that he started crying and was traumatised. He was uncertain as to how long after the first visit this occurred but during his cross-examination he said it was ‘weeks later’.

74 Mr Mann put some CDs on loudly and the appellant went into his bedroom with the complainant. After a while the appellant came out of the room and said in the presence of the complainant ‘I just fucked the boy’. Mr Mann said the complainant did not seem to communicate with him and he looked sad. Mr Mann then had an argument with the appellant and the appellant threatened him again. Mr Mann told the appellant to leave his flat and not to ever come back and he said he had not seen the appellant since, except in court.

75 Mr Mann said that he recalled a time when there was a birthday party thrown for him at the Grattan’s house, but that the complainant was not there and it happened a long time before he met the complainant.

Second uncharged incident (Brisbane - January 2000)

76 The complainant gave evidence about a second uncharged incident of a sexual nature which he said occurred about a day or so after the first uncharged incident while he was still in Brisbane.

77 The complainant said that he was upstairs on the computer at the Grattan’s house when the appellant asked him if he wanted to go computer shopping. The appellant said that if the complainant wanted to go shopping he would have to go into the bedroom with him. The complainant said ‘no’ but the appellant said ‘if you want to stay here for the rest of the holiday or you want to do stuff then come into the bedroom’.

78 The complainant said that this occurred at about midday but during cross-examination he agreed that he had told police it was early in the morning when the appellant asked him about going shopping. There was no-one else in the house but the complainant was uncertain as to where NG, A or R were at the time. He had previously told police that he thought it was a weekday because the girls and NG were at work and university. However, he conceded during cross-examination that at the time he was staying with the Grattans, NG and the girls were on holidays from work and university. He also said that he thought the appellant was not working that day but agreed he had stated to police that the appellant had later worked in the office at the house.

79 The complainant said he went into the main bedroom with the appellant. The appellant closed the door and started taking his clothes off and then the complainant’s. The complainant told the appellant that he did not want to and that he wanted to go back to the computer but the appellant said that ‘if I don’t…you’re going to stay here and so – and then he got my clothes off. And then….he [lay] on the bed and then …he said …for me to lie on the bed as well with him’. The complainant said no but the appellant said if ‘you want to go anywhere you lie on the bed’. The complainant kept saying no but then the appellant got up and told him to suck his penis. The complainant again said no but the appellant said ‘you’re going to be staying here if you keep saying no’. The appellant pushed his head down to his penis and the complainant sucked it for about 10 to 15 minutes. The complainant said he and the appellant were near the door to the room when this occurred. The complainant conceded during cross-examination that he had not mentioned to the police that he had sucked the appellant’s penis when they interviewed him.

80 The appellant then started rubbing his penis and got back onto the bed and told the complainant to lie next to him. The complainant complied. The appellant then stuck his penis in the complainant’s anus for about 10 or 15 minutes. The complainant told the appellant to stop, and that it was hurting but the appellant said it was normal and the pain would go away.

81 After this, the appellant started rubbing his penis again. During his evidence in chief the complainant said the appellant then ejaculated. However, during cross-examination, he agreed he had previously told police that the appellant did not ejaculate on this occasion and he said that he could not recall whether he had or not. He also agreed that he had told police that the only thing he could remember about this incident was the appellant’s penis in his anus.

82 After this incident, the appellant went to the bathroom. The complainant got changed and went downstairs and five minutes later NG arrived home. He said he did not tell her about what had happened because ‘being Phillip’s wife she might have said I was lying and [I] didn’t know what she was going to do’. The complainant and the appellant then went computer shopping and the appellant said to the complainant in the car that if he ‘told anyone what we did that we’d both get in trouble and he told me … it’s none of anybody’s business’.

83 About one week later, the complainant’s father drove to Brisbane to pick him up and take him back to Sydney. The complainant said he did not tell his father because he did not know what he would think.

Incident 4 (Counts 9 and 10)

84 The complainant gave evidence that the offences the subject of Counts 9 and 10 occurred at around Christmas time in 2000 when the appellant was staying at AM’s house again.

85 The appellant called the complainant sometime between Christmas 2000 and New Years 2001 and asked him to come over so they could go computer shopping. The complainant agreed to this and he got the bus from Arncliffe to Rockdale and then walked to AM’s house. During cross-examination the complainant agreed that at around this time he had his own car and that he would often drive over to AM’s house.

86 The complainant said that when he arrived at AM’s house at about midday the appellant was gardening in the backyard. All of the Grattans were staying at AM’s at the time but there was no-one else there when he arrived. The complainant stayed with the appellant in the backyard for a while and then followed him into the front spare bedroom of the house, where the appellant started packing. The complainant said the appellant was packing a suitcase but he could not remember what he was putting into it. He remembered he was standing watching the appellant as he packed but could not recall where exactly he was in relation to the appellant. The door was ajar and he could not see through the doorway.

87 The appellant undid his fly, pulled his penis out and started rubbing it. He asked the complainant if he could suck it and the complainant said no and went toward the door but the appellant grabbed him by the arm and told him to suck his penis. The complainant said that he and the appellant had done strength tests together in the past and that the appellant would always win. The appellant would not let go of his arm and then he pushed the complainant ‘down on his head and then you know I was sucking his penis…. for about 10, 15 minutes’. It was the Crown case that this act of forcing the complainant to suck the appellant’s penis constituted the offence set out in Count 9 of the indictment.

88 The appellant eventually let go and the complainant got up but the appellant still had his back to the door so he could not get out of the room. The appellant then ejaculated into his hand. It was the Crown case that this constituted Count 10 on the indictment.

89 The complainant said he could not recall what he did after this incident but he had earlier told police that the appellant did some more gardening, they then went and looked at the shops and the appellant went home with him and came into his house. He also told police that it was after this incident that the appellant sent him a computer hard drive from Brisbane but he said that he had been wrong because it was after the incident in the Chippendale motel room that this happened.

90 The complainant said he did not discuss this incident with the appellant again and he did not tell anybody about it because he did not know what they would think. He said he went into the bedroom with the appellant on this occasion because he thought that NG and R and possibly AM would not be far away and that the appellant would not try anything because they might come home.

Incident 5 (Count 11)

91 The complainant gave evidence in chief that the last offence occurred in the September/October school holidays of 2001 when the appellant was in Sydney staying at AM’s again. During cross-examination, the complainant agreed that he had told police he had school the next day and he said that he could not remember with certainty whether it was a school day or a holiday.

92 During his examination-in-chief, the complainant said the appellant called him and asked him to come over and play cards, so he drove over to AM’s house that night. During cross-examination, he agreed that he had told police that the appellant was at his house and had asked the complainant to drive him back to AM’s house. The complainant said that he remembered that he drove to AM’s but was uncertain as to whether the appellant was with him in the car.

93 The complainant said his sister, KM, and the appellant were at AM’s when he arrived there between 8pm and 10pm, but he was uncertain as to whether AM was there or not. KM was getting dressed to go out and the appellant said he was packing because he was leaving the next day. The complainant and the appellant went to the dining room and played cards for about half an hour. While they were playing cards the appellant said that if the complainant did well in his Higher School Certificate (HSC) he would take him on a holiday to Cairns. When they finished playing cards, the complainant followed the appellant into the front spare room and the appellant started packing a suitcase. The complainant could not recall where he was standing in the room or whether he sat down but agreed that he had previously told police that he was sitting on the bed. He said he heard KM moving about between the kitchen and her bedroom.

94 The complainant gave evidence in chief that the appellant ‘turned the door over’ (making it ajar) and had his back to the door but under cross-examination he was unsure as to who turned the door over. The appellant started ‘rubbing his penis with his hands. And after about 15, 20 minutes, he stopped and ejaculated into his hand’. It was the Crown case that this constituted the offence set out in Count 11 of the indictment.

95 The appellant was near the door while he was doing this and every minute or so he would stick his head out of the door to see if someone was coming up the corridor. The complainant said he was moving toward the door and he told the appellant that KM was in the house and that she might come up to see what was going on. During cross-examination, the complainant’s evidence as to whether he sat down again after he went toward the door varied. Initially, he said that he did not sit down again but agreed that he had told police he was sitting on the bed at the end of the incident. He then agreed that he had sat back down.

96 The complainant said he told the appellant he wanted to get out of the room but he could not leave because the appellant’s back was toward the door. After the appellant ejaculated, he got some tissues and cleaned his hands with them.

97 The complainant said he went into the room with the appellant because KM was in the house. He did not tell KM about what had happened because he did not know what she would think.

Third uncharged incident (Cairns - 2001)

98 The complainant gave evidence about a third uncharged incident which he said occurred in Cairns after he had finished his HSC in 2001.

99 The complainant flew to Brisbane, stayed one night with the Grattans and then flew to Cairns with the appellant for a holiday. They arrived at the motel in Cairns at about midday. The complainant was wearing black track suit pants and a jumper and when they unpacked their bags he got changed into shorts and a t-shirt. When he came out the appellant was getting undressed and then he lay on one of the beds and told the complainant to lie next to him and take his clothes off.

100 The complainant said he did not want to, that he wanted to go outside and have a look around but the appellant said that if he didn’t ‘we’ll just stay here’, so the complainant lay next to him. The complainant said that this occurred within about 10 minutes of having arrived at the motel. The appellant then started to put his penis in the complainant’s anus. For about 20 minutes the complainant told him it hurt and he ‘didn’t want to do it’ and the appellant kept saying that it was normal and that the pain would go away. The appellant eventually stopped and ejaculated on himself. The appellant then went into the bathroom to get changed, the complainant got changed and they both went outside.

101 Under cross-examination the complainant’s evidence as to the timing of this incident varied. He conceded that he had told police that when they first arrived at the motel room, the appellant went and saw a friend at the hospital and that he had watched television until the appellant returned. He then said he could not remember whether this was correct or not. He also agreed that when he spoke to police about this incident he had difficulty remembering what had happened.

102 The complainant said that the appellant took a computer with him to the motel room and that after this incident, the complainant saw him look at pictures of naked men on it and rub his penis. The appellant also gave the complainant a tube of lubricant, which he told him to keep in his bag so that NG did not see it. The complainant said that the appellant used this lubricant when he was looking at the pictures on the computer.

103 After staying in Cairns, the appellant and the complainant drove down to Brisbane. The complainant said that there were other incidents while he was in Cairns and in motels on the way back to Brisbane but that he could not recall anything specific.

104 The complainant said he did not tell anyone about this incident because he did not think that anyone would believe him. He agreed that after the trip he had undertaken some research on the courses that were available at the TAFE in Queensland.

Evidence as to complaint

105 The complainant gave evidence that after New Year in 2002, KM came over to his house and he ‘told her what had been happening with me and Phillip’. He said he decided to talk to KM about the matter because he had ‘had enough of it'. KM told him that he should make some notes about what had happened. He did not talk to her about the notes and could not recall whether she had seen them. After he told KM he also told other family members.

106 The complainant said that he knew that KM did not like the Grattans and that there was a dispute between them.

107 The complainant said he did not complain earlier because he was scared, the appellant had a high position in the family, he did not want to cause problems and because the appellant’s friendship meant more to him. He said he did not talk to AM, his mother or father about intimate things and that he did not have anyone that he could talk to. He said that he was closer to the appellant than he was to his father.

108 The Crown called KM. She gave evidence that at the end of 2001, she visited the complainant because she needed to use his computer. She said that the complainant was ‘quite distraught, shaken and upset’ and that he then complained to her that the appellant had sexually interfered with him.

Other evidence of relationship

109 Senior Constable Parker gave evidence that he obtained a warrant for a listening device in respect of phone calls between the appellant and the complainant. The Crown tendered excerpts of two of these phone calls on 18 April 2002 and 6 May 2002. Before the phone call in April 2002, Senior Constable Parker said that he suggested certain subjects to the complainant that he could raise with the appellant. There is reference in this phone call to the appellant and the complainant seeing one another naked. It was the Crown case that the calls provided evidence of a sexual relationship.

110 The Crown also tendered copies of three emails between the appellant and the complainant. It was the Crown case that these also contained language of a sexual nature that reflected a sexual relationship between the two.

The Appellant’s case

111 The appellant did not give evidence or call any witnesses. It was the appellant’s case that the complainant was not a credible witness and that his evidence of the offences and other uncharged acts was unbelievable and left a reasonable doubt as to the appellant’s guilt.

112 The complainant was cross-examined over three days. The appellant relied upon the inconsistencies between the complainant's evidence in chief and his cross-examination and also what he told police as casting doubt upon his credibility. The appellant also asserted that Ronald Mann was not a credible witness and that in any case he did not provide evidence of the offences.

113 It was the appellant’s case that AM’s evidence did not support the complainant’s evidence in relation to incidents 1 and 2 (Counts 1 to 5). In respect of the first incident, AM said that the appellant and the complainant would normally share this room when NG and the girls were also staying. However, the complainant gave evidence that they were not there at the time. In respect of the second incident, AM said that she could not recall the complainant and the appellant sharing the front room where the complainant alleged it occurred.

114 In respect of the third incident that allegedly occurred at the Metro Motor Inn in Chippendale (Counts 6, 7 and 8), the appellant tendered a number of receipts and bank statements that indicated that he checked out of the motel on 29 August 1999 and that from 29 August 1999 until 2 September 1999 he stayed at the Country Comfort Motel in Sydney. It was the appellant’s case that this would have meant that the appellant left the Chippendale motel at least by the standard check out time of 10am on 29 August 1999 and that this was inconsistent with the time that the complainant said the incident occurred. The appellant also tendered a document indicating that his smashed car window was fixed on 31 August 1999, which meant that the window would still have been smashed at the time the appellant picked the complainant up. It was the appellant’s case that this was inconsistent with the complainant’s evidence that he could not recall a smashed window in the car. Furthermore, no evidence could be found to suggest that the appellant had obtained and/or paid for a hire car at the relevant time.

115 It was the appellant’s case that the emails and phone calls provided no proof of the offences. Additionally, it was submitted that these calls and emails presented a significant opportunity to the Crown to obtain specific evidence of the offences from the appellant, yet no such evidence had been presented.

116 The appellant also pointed to the complainant’s failure to complain to anyone prior to 2002 about the alleged assaults. This was despite the fact that the complainant gave evidence that he had a close relationship with his mother, father and AM and that he received a lot of support from them. Additionally, immediately after most of the offences, there was a family member available to the complainant to whom he could complain. The complainant had only complained to KM when he became aware that there was a family dispute going on between her and the Grattans.

The appeal

117 The appellant filed a notice of appeal in relation to both his conviction and sentence. Six grounds of appeal were advanced in relation to the conviction but they were not all pursued on the appeal. The appeal against sentence was not pursued.

118 The grounds of appeal which were argued are as follows:

Ground One: The learned trial judge erred in admitting evidence of the complainant's distressed condition and the learned trial judge gave incorrect directions to the jury as to the use they could make of that evidence.

Ground Three: The learned trial judge erred in admitting evidence of uncharged acts not complained of by the complainant.

Ground Four: The learned trial judge erred in admitting evidence in relation to pre-text telephone conversations and email messages.

Ground Five: The learned trial judge gave incorrect directions to the jury in the summing up and failed to direct the jury adequately on areas of law. Although expressed in this manner the only basis on which this ground was pressed was that the summing up was not fair and balanced. It was submitted that the trial judge had failed to adequately present the defence case to the jury.

Ground Six: There has been a miscarriage of justice in that the verdicts of the jury were against the weight of the evidence and/or were unsafe and unsatisfactory.

Ground One

119 The complainant gave evidence without objection of a complaint to KM shortly after New Year's Eve in 2001 in terms of "what had been happening with me and Phillip." However, objection was taken to further evidence which suggested that the complainant exhibited distress at the time the complaint was made. Her Honour admitted that evidence which was to the effect that the appellant had interfered with the complainant and allowed evidence that the complainant was "quite distraught, shaken and upset."

120 The appellant submits that it could not be inferred that a causal connection exists between the complaint and the complainant's distressed condition. Because the last charged offence occurred at least two months prior to the complaint it was submitted that it could not be corroborative of the complainant's evidence. Counsel drew attention to the decision of the Queensland Court of Appeal in R v Link (1992) 60 A Crim R 264 at 266.

121 In Link the appellant was convicted of committing sexual offences against his daughter. Evidence was admitted at the trial that on an occasion when the children, who did not live with their father, were being taken to visit him they were upset and "hysterical" saying "please don't make me go. I don't want to go."

122 The Queensland Court of Appeal confirmed that distress may be admissible as a corroborative circumstance. However, the Court acknowledged that before the evidence could be admitted it was necessary to determine whether it is a reasonable inference from the evidence that a causal connection exists between the matter of complaint alleged and the distressed condition R v Flannery [1969] VR 586. Both because of the lapse of time, 8 months, and the inherent weakness of the evidence as corroborative of the offence, as opposed to demonstrating a general antipathy by the children to their father, the court found that the evidence should not have been admitted.

123 The present case is of quite a different character to Link. The fact that the recounting of a stressful event can be accompanied by outward indications of distress is a common human experience and can be corroborative of the happening of the events complained of. To my mind, the passing of two months since the happening of a potential traumatic event is an insignificant time. Distress could accompany the retelling of events months or even years after they occurred depending on the nature of the events and their impact on the victim.

124 This ground of appeal fails.

Ground 3

125 The prosecution case was that the appellant had committed eleven acts of sexual indecency with the complainant in New South Wales. The complainant also gave evidence of incidents of a sexual nature in Queensland. This ground of appeal relates to evidence of events which were alleged to have occurred at the home unit of Ronald Mann of which I have provided detail above.

126 In summary the evidence was that the complainant travelled by car with the appellant and his family to Brisbane during a Christmas period. When they arrived at the appellant's home the complainant was introduced to Ronald Mann who had been "house sitting" for the appellant and his family.

127 The complainant gave evidence that he, the appellant and Mann travelled in the appellant's car back to Mann's premises where the appellant and Mann engaged in sexual activity. Subsequently the complainant says he and the appellant went into the bedroom where the appellant sexually assaulted the complainant. The complainant's evidence was that this was the only occasion in which sexual indecency occurred at Mann's premises.

128 When Ronald Mann gave evidence he testified that there were two occasions when the appellant came to his premises in company with the complainant. He said that the two occasions were separated by a number of days and that on the second occasion the appellant emerged from the bedroom where he had been with the complainant and said to Mann "I just fucked the boy."

129 At the trial counsel for the appellant did not object to evidence being given in relation to the first alleged event. However, objection was taken to the admissibility of Mann's evidence relating to the second alleged incident but it was admitted by the trial judge. The appellant appeals against that ruling.

130 The appellant emphasises that the matter of which Mann gave evidence was never the subject of a charge and submits that accordingly it could only be adduced if it was relevant to a fact in issue. The appellant relies on the remarks by Gaudron J in Gipp v The Queen (1998) 194 CLR 106 at 112-113 where her Honour said:

R v Ball

In cases of child sexual abuse, the defence case may be conducted in such a way as to raise an issue to which prior abuse is relevant. As pointed out by McHugh and Hayne JJ in this case, evidence of prior sexual abuse may explain lack of surprise or failure to complain. If they are issues in the trial, evidence of general sexual abuse is relevant and admissible. But they can only be made issues by the way in which the defence case is conducted. And they were not made issues in this case. More precisely, they had not been made issues when the evidence of general abuse was given by the complainant in chief and repeated in non-responsive answers in the course of her cross-examination. Thus, that evidence was not admissible."

131 The Crown's submission draws attention to the fact that there was no general challenge by the appellant to the admissibility of relationship evidence. The objection is confined to that part of Mann's evidence which relates to the second alleged incident. Being evidence relevant to the alleged relationship between the appellant and the complainant the Crown submits it was admissible, the disparity between the evidence of the complainant and Mann being a matter for consideration by the jury.

132 The approach taken by Gaudron J in Gipp has not received universal acceptance and its significance is diminished by a difficulty in determining any clear position from the majority judgments. This Court considered the matter in R v Fraser unreported, NSWCCA, 10 August 1998 and later in R v TAB [2002] NSWCCA 274. In the joint judgment of Mason P, Wood CJ at CL and Sperling J in Fraser the Court said, speaking of the divergence of views in the High Court in Gipp:

Gipp

133 The position was comprehensively considered by Levine J in TAB where his Honour said:

"The judgment of the High Court in Gipp was delivered on 16 June 1998 and as shortly thereafter as 10 August 1998 in Regina v RM Fraser (NSWCCA unreported 10 August 1998, Mason P, Wood CJ at CL and Sperling J) it was held that unless the High Court otherwise decides (the decision in Gipp lacking a clear ratio ), the law in relation to the admission of (relationship) evidence should be taken to be as declared in Regina v Beserick (1993) 30 NSWLR 510 and Regina v AH (1997) 42 NSWLR 702. Both these decisions received the consideration of this Court (Spigelman CJ, Heydon JA and James J) in Regina v Dann [2000] NSWCCA 185 in which it is to be observed that Heydon JA not inappropriately remarked with reference to both Gipp and Fraser that "the authorities in relation to these issues bristle with problems" at [34].

"relationship"

KRM

Gipp

,

Gipp

"relationship"

' I ...agree with McHugh J that until this Court decides to the contrary, courts should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have in the past. I agree that this may well mean that trial judges must warn juries of the limited use that can be made of evidence of that kind and that sometimes, perhaps often, they will have to give warnings about propensity reasoning'.

"fluid"

Fraser

Beserick

AH

KRM

Gipp

134 To my mind, this Court should follow the approach taken by the Court in TAB and reject the submission that the reasoning of Gaudron J reflects the present law. Accordingly, the evidence to which objection is taken was admissible as evidence explaining the relationship between the complainant and the appellant. Whether Mann's evidence should be accepted, having regard to its apparent inconsistency with the evidence of the complainant, was a matter for the jury.

135 This ground of appeal fails.

Ground 4

136 Objection was taken at the trial to the admission of the evidence of a number of pre-text phone calls and emails. The phone calls had been recorded and a tape of the portions admitted into evidence was played to the jury. The transcript of the conversation is as follows:

"PG: You know, that's the trouble with K, all her life it's been vindictive horrible natured person. You're not like that, BA.

BA: Mmm, yeah.

PG: So there you go.

BA: Yeah.

PG: And the reason you're always welcome in my house and she's not is because you're a nice guy and she's an arsehole.

PG: I mean, as much as she likes to create fracas, there's no way that she's gunna sever the relationship between Aunty and, and our family.

BA: Yeah.

PG: As much as she thinks she might, that would never happen.

BA: Yeah.

PG: And talking to a lot of the family, I mean, you know, it's just, it, whatever's she's tried to do hasn't worked. Because, you know, that's why she's trying to worm things out of you …

BA: Yeah.

PG: … I mean, what's she trying to say, you saw me naked, I saw you naked, well, you know, that's what boys do, you go and play a game of football and you all get changed together in a, and shower together in a locker room … you know. What's she, what's she playing at?

BA: Yeah. So she keeps, she keeps saying, yeah, like, if anything happened during, while we were up in Brisbane and, any …

PG: What do you say?

BA: … time I was around you. I have said, I said nothing …

PG: Well …

BA: I said nothing happened.

PG: … exactly. So what if you saw me naked and I saw you naked. I mean, that's like, I say, that's what happens in sporting fields every day of the week, playing football and …

BA: Yeah.

…

BA: Yeah, well, about K, I don't …

PG: You keep coming back to that. You're like a …

BA: Huh? No, I just don't know, I just don't know what to, what I, what…

PG: How often do you see her?

BA: … I do. Yeah, well, I …

PG: You don't even live in the same house.

BA: Yeah, I know, but it's just getting, I just don't know whether I should tell Dad or Aunty about us doing stuff together.

PG: Well, that's up to you.

BA: Well, I don’t want to create it, problems or get anybody into trouble.

PG: I mean, you know, going away on trips and drinking and, and, yeah, all that sort of stuff, that, that's just stuff guys do together.

BA: Yeah, yeah.

PG: My advice is whatever you do with mates when you go away is your business … .

BA: Yeah.

PG: … and it should stay that way.

BA: Yeah.

PG: So if you went away to Canada or Germany and, and went to 15 brothels and had a ball, well, that's your business. You don't come home and say, Dad, I screwed 15 hookers last week.

BA: Yeah."

137 The emails were admitted and became Exhibit S. They read as follows:

From: BA

Hi BA, how are you dude, I miss ya heaps.

Hi BA, glad to see your liking the course, it really makes a big difference, Re my website: I need to add new agencies which I have signed up for to my website during March Do you get a few days college break for Easter. Or can you come up for a weekend? As I said I will pay for the return airfare, and of course pick my card playing buddy up from the airport too. Of course shouting the west caost coolers and whipping your arse in CRASH, hehehehe. Let me know asap if you can or cant come up so I can organise a new website designer for my target date of end of March. Cheers buddy, Phil."

138 The appellant submits the evidence, being of limited probative value should have been excluded having regard to the provisions of s 137 of the Evidence Act 1995. The submission emphasises the fact that her Honour, having come to the view that the probative value of the evidence was slight, nevertheless concluded that its probative value was not outweighed by the danger of unfair prejudice to the accused. It is submitted that this decision was wrong, particularly having regard to the fact that the emails and pretext phone calls:

(a) occurred some number of months after the last charged offence and last uncharged offence; and

139 Section 137 of the Evidence Act 1995 was authoritatively considered by this Court in R v Blick (2000) 111 A Crim R 326. Notwithstanding the inclusion of the word "discretion" in Pt 3.11 of the Act, in which s 137 is found, the court made plain that in the event that it was decided by the trial judge that the probative value of the evidence is outweighed by the damage of unfair prejudice, there is no residual discretion and the evidence must be rejected (see: Sheller JA at [20]).

140 The evidence to which objection was taken was determined to be relevant by the trial judge as relationship evidence. It is referred to by her Honour in her summing up in the following terms:

"For example, the Crown says that you would be assisted about these matters by other evidence that has been placed before you. Such as, for example, the content of the telephone calls, exhibits Q and R, and the e-mails, exhibit S which the Crown says support the nature of the relationship between the complainant and the accused as the complainant has told you it was."

141 Her Honour admitted both the pretext phone calls and the emails without any statement of reasons, although, from her Honour's comments with respect to the emails, it is apparent that she considered the provisions of s 137 when coming to that decision.

142 The appellant submits that as the communications took place "some number of months" after the last charged offence and last uncharged event "their probative value is diminished." When added to the fact that the communications contain no specific reference to anything amounting to an admission directly or indirectly of the relevant facts it is submitted that the evidence has little probative value.

143 I do not accept this submission. Although the emails are dated January and February 2002 and the telephone intercepts occurred in April and May of that year, with the alleged offences occurring between 1993 and January 2001, the evidence is significantly probative of the relationship both as it may have been in 2002 and as it was during the earlier years. When the Crown case is that the appellant had developed a relationship with the appellant, which included unacceptable sexual activity, over a lengthy period, evidence of the nature of the relationship even after a lapse of twelve to eighteen months, has considerable probative value.

144 There can be no doubt the evidence was prejudicial to the appellant. The prejudicial material was not limited to the references to them being naked in each other's presence. The reference to "stuff guys do together" and repeated references to the questioning of the complainant by his sister were capable of being understood to the prejudice of the appellant. However, the question which requires to be determined is not whether the appellant is prejudiced but whether the probative value is outweighed by the danger of unfair prejudice. Prejudice may be relevantly unfair for a number of reasons (see Papakosmas v The Queen (1999) 196 CLR 297; R v GK [2001] NSWCCA 413) but this will not merely be because it makes it more likely that the defendant will be convicted. In general unfair prejudice will be present if there is a real risk that the evidence may be misused by the jury (R v BD (1997) 94 A Crim R 131) and may occur when there may be procedural difficulties which create problems for the defendant in responding to the evidence: (R v Sing [2002] NSWCCA 20 at [35]).

145 Although in the present matter the appellant can point to prejudice flowing from this evidence I cannot see that it was unfair in the relevant sense. To my mind, there was no risk that the evidence would be misused and no forensic difficulties arose for the appellant in dealing with it.

146 This ground of appeal fails.

Ground five - Errors in the summing up

147 Although originally framed more widely this ground was confined at the hearing to the submission that the summing up was not fair and balanced. Complaint is made that her Honour's summing up concentrated on the Crown case but did not adequately reflect the address of the appellant's counsel which, because the appellant neither gave, nor called, evidence, was mostly concerned with the doubts which the jury should have had about the complainant's evidence, including the inconsistencies which it contained.

148 There is no doubt that there are inconsistencies in the Crown case, particularly in the evidence of the complainant. They are identified in the summary of the trial which I have earlier related. They were also referred to by counsel for the appellant in his address to the jury.

149 The evidence in the trial occupied most of nine days. On the tenth day the prosecution addressed the jury. That address extended into the following day. Defence counsel then addressed for most of one day and part of the following day. His address occupies 70 pages of transcript on that day, and a significant portion of the following day, where it occupies 25 pages of transcript. A review of that transcript demonstrates that defence counsel emphasised the possible difficulties in the Crown case in considerable detail, including the inconsistencies in the complainant's evidence. A reading of the transcript leads to the conclusion that it is inconceivable that the jury would not have understood the possible weaknesses in the Crown case. Furthermore they would readily have brought those weaknesses to mind when they were referred to by her Honour. Defence counsel concluded his address with the following remarks:

"KIMMINS: The prosecution case rests on the shoulders as I've indicated to you of BA. You have to be satisfied that his evidence, as I've indicated, was so truthful, so honest, so accurate, so reliable and consistent that his evidence was sufficient to push to one side the presumption of innocence, that it was so overwhelming that you'd be satisfied that not only was he probably guilty of any of these offences but the evidence of this person has reached the status of being able to prove beyond reasonable doubt that he is guilty of the offences. We submit on what you have heard that the only response to that is never. Thank you your Honour."

150 Her Honour's summing up occupies 40 transcript pages following which counsel were invited to raise any matters which they believed may require correction. Counsel for the appellant raised only one matter being the admissibility of the evidence of the complainant's distress. No issue was raised with respect to the balance and fairness of her Honour's summing up. Accordingly, r 4 of the Criminal Appeal Rules applies.

151 In the course of the summing up her Honour gave the usual essential instructions in conventional form. Her Honour then stressed to the jury that the Crown case relies solely on the evidence of the complainant, emphasising that the jury could not convict the accused of any particular count in the indictment "unless they are satisfied beyond reasonable doubt that the complainant's evidence was both honest and accurate in respect of his account of the facts and circumstances on which the particular allegation in that count arises."

152 Having instructed the jury as to the elements of the offences her Honour then briefly recounted the complainant's evidence in relation to each charge. It was essential that her Honour undertake that task. Her Honour then reminded the jury of the addresses of both the prosecutor and counsel for the appellant. In particular, the respective arguments as to why the complainant's evidence should be accepted or rejected were identified.

153 Her Honour said:

"Now I have dealt with the elements and the evidence on which the Crown relies members of the jury in respect of those elements. You would be well aware that the real issue in this case is whether you are satisfied beyond reasonable doubt that the complainant, BA, is being honest with you in his account that he has given you of the relationship between the accused and him from 1993. It could hardly be that he was mistaken about any of the facts which are at the core of his version of these events which he says occurred between those years. He might be mistaken you might think about some of the peripheral details with so many years having passed since he said some of these events occurred but you might think he could hardly be mistaken as to whether he was in the motel room at Chippendale for example and the acts which he alleges occurred to him.

Both counsel have addressed you at length about whether you would find that the complainant was truthful in the witness box. The Crown has pointed to what he said would be your assessment of BA as a witness or a person of truth. He suggested to you that his evidence had the ring of truth. He reminded you that BA was a young boy and a young man, and still is a young man, who had learning difficulties during high school, that does not mean that you would not accept him as a witness of truth as to the elements that he was accurate and reliable.

Mr Kimmins on the other hand has spent a great deal of time pointing out inconsistencies between what BA said to the police and what he has said to you here in the witness box. The purpose of that was to persuade you that you could not rely on the complainant as a witness of truth. I do not propose to go over what was said to you by Mr Kimmins, a large part of yesterday was occupied by that analysis of the evidence, and you would clearly take those matters into account and would clearly have them in mind."

154 Her Honour later said:

"Now as I have said to you, the Crown case relies exclusively on the evidence of BA. There is no evidence at all which proves that the accused committed these offences. Where the Crown case depends on the word of one witness unsupported by any other evidence, a jury has to treat the evidence cautiously because it is upon that evidence alone that the Crown has to prove the allegation or allegations and prove them beyond reasonable doubt. This is so regardless of the nature of the allegations or the nature of the charges which are before the jury. It has nothing to do with the fact that the complainant is raising allegations of a sexual nature. The caution that you have to show in having regard to the evidence of a single witness in relation to a Crown case flows from the fact that the Crown has to prove its case against the accused person, and prove it beyond reasonable doubt, and can only rely on the evidence of the complainant to fulfil that obligation.

On the matters you can take into account when determining whether or not you accept the honesty of the complainant is when it was that these allegations were first raised by him. You would understand that normally the fact that somebody has made such allegations to another person does not really tell you anything about whether those allegations might possibly be true. However, in some circumstances, the fact that a person made a complaint or raised an allegation of sexual assault is a matter which can be used by the jury in determining whether the person is actually telling the truth in the allegation made in Court. Where the allegation of sexual assault is raised by a complainant at the first reasonable opportunity after the alleged assault occurred, the fact that the complainant made such an allegation or raised such a complaint after the alleged assault, might indicate that the complainant is being consistent in his or her conduct. This is because experience of human nature might suggest that if a person was the victim of a sexual assault, that person would raise a complaint about it at the first reasonable opportunity that presented itself. If such consistency in the complainant’s conduct is demonstrated, then this might be material which would indicate that the complainant, or could indicate that the complainant is telling the truth in the allegations made in Court. But the converse is that if a person fails to complain at the first reasonable opportunity which presented itself, then that might indicate that the person is not telling the truth about the allegation. This is because the failure to raise such an allegations shortly after the assault may indicate that the person is not behaving in a consistent manner in relation to the allegation that he or she makes. Thus the failure of the complainant at the first reasonable opportunity to raise any of these allegations might indicate that the allegation is not true and the failure of the complainant to raise these allegations can be used by you, the jury, as material which might indicate that the complainant’s account ought not to be accepted. The failure of the complainant to raise this allegation with any person shortly after he said any of these acts took place, is a matter you can take into account when assessing the allegations he has made to the police and has made before you in this Court room.

I am not suggesting for one moment that you would, or should, for that reason alone disbelieve the complainant. What you make of this matter is for you to determine using your commonsense, your experience of life and taking into account the relevant circumstances. For example, his age at the time, the nature of the act of sexual intercourse or act of indecency which he alleges, the relationship between him and the accused as you find that relationship to be, and any other matter which you believe is significant when looking at and evaluating the complainant’s conduct at this time.

You should understand that just because a person fails to complain about a sexual assault at the first opportunity, it does not necessarily follow that the person must not be telling the truth about it. There may be good reasons why a person in the position of a particular complainant might not complain about a sexual assault, even if a person cannot adequately identify or articulate those reasons.

Now in this case the complainant told you as to the first count when he was aged ten that he did not know what was going on and he did not say anything to Aunty. He also said in respect of other counts that he did not know what other people would have thought and he would not be able to go out with the accused any more. He told you that he thought he might have got into trouble and also that the accused said to him “If I told anyone we would both in trouble and it is none of anyone’s business”.

The Crown says that looking at BA’s age at the time that these sexual assaults commenced and looking at the relationship between him and the accused, what the complainant said to you and his actions in not making the allegations at the time, is consistent with your commonsense and your experience of life. He suggested to you that the accused fostered a relationship with BA from the time he was a little boy, that BA was trusting, immature and easily influenced by a person to whom he looked for attention and who was a “father figure to him”.

Mr Kimmins’ submission to you about this aspect on behalf of the accused is that the failure of the complainant to tell anyone about what occurred indicates that the allegations are not true. He suggested to you that consistently with your experience of human nature and children, you would have expected there to be immediate complaint if any of these acts occurred. Again these are other matters, members of the jury, that you are going to have to determine.

…

LUNCHEON ADJOURNMENT

…

Going back to what I said before the lunch break, there are other matters which, of course, you need to take into account when considering and assessing the complainant’s evidence and whether you can rely on it to the appropriate degree necessary. There has been a delay in this matter being brought to the accused’s attention. The allegations relate to incidents which are said to have occurred between approximately three and eleven years ago. Because of the delay in the matters being brought to the attention of the accused, he has been unable adequately to test and to meet the evidence of the prosecution. To give you an example, because of the passage of years you would be aware that the recollections of some of the witnesses, if not all of the witnesses, are less accurate. You should understand that you are perfectly entitled to convict the accused on any of the charges he faces on this indictment, otherwise you would not have been empanelled as jurors. However, because of the matters I have brought to your attention, specifically the absence of early complaint, and the delay in the prosecution, I am required to warn you that it would be dangerous to convict on the complainant’s evidence alone unless after you have scrutinised it with great care, considered the matters relevant to its evaluation and taken note of this warning, you are satisfied beyond reasonable doubt of its truth and accuracy so far as it establishes the essential elements of each charge.

As I have been endeavouring to point out to you, your deliberations in this matter must centre on the evidence of the complainant. You will primarily be concerned with making an assessment of his evidence and determining whether his account is an honest one. All of the other evidence in this trial has been placed before you to assist you with that task. For example, the Crown says that you would be assisted in finding that the complainant was telling the truth about these matters by other evidence that has been placed before you. Such as, for example, the content of the telephone calls, exhibits Q and R, and the e-mails, exhibit S which the Crown says support the nature of the relationship between the complainant and the accused as the complainant has told you it was."

155 At the conclusion of the summing up her Honour said:

"Finally, members of the jury you have heard lengthy addresses from both counsel and they have raised many matters for your consideration. I do not propose to recapitulate what counsel said. As I said earlier you should consider carefully everything that each counsel has put to you and I am sure it is fresh in your mind.

In very brief summary the Crown Prosecutor suggested to you that you would accept BA as a witness of truth. He suggested to you that his evidence was credible and had the ring of truth. He suggested that the accused had fostered a relationship with BA who was trusting, immature and easily influenced and responded to the accused’s shared interest in computers and in playing cards.

The Crown Prosecutor suggested that the accused took advantage of BA’s trusting nature and manipulated his feelings but eventually BA, as he told you, had had enough. He had left school and had reached a level of maturity where he was able to speak out even though he liked the accused and he did not want the friendship with the accused to end.

The Crown Prosecutor reminded you that other members of BA’s family were trusting too. AM was of the older generation. Mr PA, BA’s dad, was occupied looking after his large family and with working and he reminded you of BA’s evidence that the accused held a position of respect in this family.

Mr Kimmins on the other hand has suggested to you that you would find the complainant is unreliable, that the inconsistencies he reminded you of on Thursday in respect of his account to the police, his evidence-in-chief and his cross-examination would cause you to have a reasonable doubt about the accused’s guilt. He suggested as I have just reminded you that he would not accept Mr Mann’s evidence at all, that the other matters that the Crown might point to as being capable of supporting BA’s account did no such thing. Such matters as the e-mails, the phone calls and the bottle of lubricant. He suggested that it was unlikely or ludicrous to suggest that a person who had been dealt with in this way as BA alleged over many years would go on a trip to Queensland with the accused as he did towards the end of 2001."

156 The trial judge emphasised in her summing up that the real issue for the jury to consider was the honesty of the complainant rather than whether he was mistaken. Although the appellant's counsel takes issue with this characterisation of the issue in this manner I am satisfied that her Honour was correct to do so.

157 In the summing up her Honour emphasised that the facts must be determined by the jury having regard to the evidence which they considered to be honest and reliable. Although reminding the jury of the essential elements of the Crown case her Honour was careful to remind them of the weaknesses asserted by defence counsel to be present in the credibility of the complainant and the reliability of his evidence. Having regard to the detailed examination of that material which had been undertaken by defence counsel I am satisfied that her Honour adequately presented the defence case to the jury.

158 In R v Lars (aka) Larsson (1994) 73 A Crim R 91 this Court emphasised that where, as in the present case, the Crown leads the greater part of the evidence at the trial, it may be expected that the summing up will devote greater attention to the Crown evidence. When the question is whether the summing up is properly balanced, although it is appropriate to consider the proportion related to the Crown case and the proportion related to the defence case, it is necessary to consider the summing up having regard to the whole of the trial including the evidence given and the addresses by counsel.

159 As Street CJ emphasised in R v Veverka [1978] 1 NSWLR 478 it is sometimes not easy to resolve a submission that a summing up was not fair, remote from the atmosphere of the trial (p 482). It is no doubt for this reason, amongst others, r 4 of the Criminal Appeal rules provides that unless objection is taken at the trial such a ground of appeal may only be allowed with the leave of this Court (see R v Abusafiah (1991) 24 NSWLR 531 at 536). Where it is said that by failing to refer to the detailed matters going to credit raised by counsel in a submission put before the jury on the previous day any unfairness is best judged at the time and, if thought necessary objection should be taken. In the present case, if objection had been taken it would, if thought necessary, have been relatively straightforward for her Honour to have reminded the jury of matters raised by counsel the previous day.

160 It is useful to bring to mind, as Hunt J did in Abusafiah, the remarks of this Court in R v Haeney (Court of Criminal Appeal, 13 June 1978, unreported) quoted in R v Aziz [1982] 2 NSWLR 322 at 331:

"What is important to be borne in mind is that the absence of objection by counsel, in particular to matters involving criticism of the form, content or balance of the summing-up, furnishes a basis for concluding that, in the context of the atmosphere at it existed at the trial, and in the contemporary awareness of the manner in which the summing-up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing-up. The Court of Criminal Appeal, no matter how experienced its members, and no matter how comprehensive the written record may be, can never hope to recapture the full texture of the atmosphere in which the question of the accused's guilt was submitted to the jury in the concluding stages of the trial. It is for this reason that, at an appellate level, there is a well recognised hesitance in entertaining grounds of appeal challenging the form, content or balance of a summing-up when those matters have not been adverted to by counsel at the proper time during the trial. This it is that Rule 4 enshrines."

161 This is not a case such as was considered by this Court in R v V (1998) 100 A Crim R 488 when the appellant had given evidence denying the allegations and the defence raised a case which could explain the complainant's motives for making the allegations. In those circumstances there is little difficulty in accepting a submission that a balanced summing up required a summary of the defence.

162 However, the issue in the trial in the present case was whether the complainant should be believed, having regard to the apparent inconsistencies in his evidence. Given that the inconsistencies had been carefully identified by counsel, the jury, having been reminded of their fundamental importance to the defence case did not, in my opinion, require any further assistance from the trial judge.

163 Because the suggested inadequacy in the summing up was not raised before the trial judge and I am satisfied the trial did not miscarry, I would decline leave to raise this ground of appeal.

Ground six - the verdicts were unsafe and unsatisfactory

164 The appellant's counsel provided a detailed written submission in which attention was focused upon the inconsistencies in some of the accounts by the complainant of the events relating to the various offences. I have already referred to those matters when relating the evidence at the trial.

165 The complainant was cross-examined extensively at the hearing and the inconsistencies in his evidence identified and later emphasised by counsel in his address to the jury. Having regard to the fact that the offences were alleged to have occurred over the period from 1993 to 2001, commencing when the complainant was about 10 years of age, and the complainant has a learning disability, it is not surprising that some inconsistencies have emerged in his different accounts, given at different times.

166 Having regard to the submissions of counsel and the summing up by the trial judge, I am satisfied that the jury were provided with the necessary assistance to resolve issues with respect to the complainant's credit.

167 In the course of his submission senior counsel for the appellant accepted that the case was about honesty, by which I understand him to accept that it was for the jury to determine whether the complainant should be believed. However, it was submitted that the circumstances in which it was alleged that some of the offences were committed were so improbable that the jury should have entertained a reasonable doubt about the appellant's guilt. Senior counsel particularly emphasised the circumstances of the first offence when at the time the incident is alleged to have occurred in the bedroom the complainant's mother and aunt were apparently on the verandah, where there was a light, which could have lit the bedroom and the window was open.

168 Senior counsel drew our attention to a number of decisions which were submitted were relevant to this aspect of the matter.

169 In R v Bennett (30 April 1991, Queensland Court of Appeal 8/91) the Queensland Court of Criminal Appeal considered a case where a jury convicted the appellant of sodomy with a nine or ten year old boy. The evidence of the boy was that the accused had put his penis in his bottom and that version was repeated on a number of occasions. The boy gave evidence that he did not know where the accused's hands were at that time. He said that he knew that it was the accused's penis in his bottom because he could feel it. However, the boy was unable to say how far, if at all, penetration had occurred.

170 The Court of Criminal Appeal identified a difficulty, which was conceded by the Crown, of ambiguity in the meaning to be attributed to the statement that the appellant put his penis in the complainant's bottom. The meaning which the boy intended to give to the phrase was not clarified at the trial and the evidence being ambiguous as to whether penetration had occurred, the court set aside the conviction as being unsafe and unsatisfactory.

171 Another factor which influenced the Court in Bennett was that the alleged event occurred in a bedroom in close proximity to the parents' room but there was no evidence of calls for help. Although obviously a relevant matter for both the jury and the Court on appeal to consider, it would not alone have justified the quashing of the conviction.

172 In R v Harrington [1998] 3 VR 531, the sexual incident was said to have occurred when the accused entered the creaking lower bunk where the complainant was lying which was only a distance of 3 feet from where another girl was lying in bed. At the time of the relevant incident both the accused's wife and the complainant's mother were also nearby. Although there were other factors which the Court considered, in the absence of corroboration, the Court held that the circumstances in which the offence was said to have occurred were so improbable that the verdict should be set aside.

173 In R v Watkins [2000] NSWCCA 76 this Court considered the circumstances of offences which were alleged to have occurred in a room where a third person was sleeping at the time. The accused's wife was also sleeping in an adjoining room. The Court of Criminal Appeal considered these factors relevant, with other matters, when concluding that the verdict should be set aside.

174 The circumstances of the present case are, to my mind, significantly different to any of the cases referred to by counsel. Although the room in which the offences are alleged to have occurred had a window which was apparently ajar, the evidence does not enable the conclusion to be drawn that if there was a person on the verandah at the relevant time they would have necessarily heard the activity occurring in the bedroom. Although the complainant is said to have protested, there is no evidence which would suggest that the protest could have been heard beyond the bedroom and as he did not complain to the adults in the house after the events had occurred, although there was every opportunity, his reticence being adequately explained, there is no reason to believe that his protests would have been made in a way which would have been audible outside the bedroom. No other person was present in the room at the time.

175 Apart from the submissions in relation to the first alleged offence the appellant provided detailed submissions in relation to counts 3, 4, and 5. The appellant drew attention to the fact that the alleged offences occurred in a bedroom and involved aggressive activity by the appellant with resistance, including the use of forceful words, by the complainant. At the time the complaint's aunty was present in the house and she apparently habitually retired late to bed. It was submitted that in these circumstances the complaint lacked the requisite credibility.

176 I am unable to accept this submission. As with the first two counts I am satisfied that the jury were in a position to evaluate relevant evidence and there is no reason why this Court should intervene.

177 The appellant also made detailed submissions in relation to the other counts and provided a marked up copy of the transcript in which inconsistencies in the complainant's evidence were identified. In general the submission was that these inconsistencies, together with the other matters to which I have referred, were such that the verdicts were unsafe. I have considered both the detailed submissions and the marked up transcript. In my opinion, all of the matters referred to required consideration by the jury but were not such as to require intervention by this Court.

178 Finally, the appellant raised for consideration the evidence relating to the third uncharged incident which allegedly occurred in Cairns in 2001. As I have already related the complainant says that on this occasion the appellant gave him a tube of lubricant which he told him to keep in his bag so that NG did not see it. The complainant said that the appellant used this lubricant when he was looking at the pictures on the computer.

179 The lubricant bottle was ultimately given to the police in a plastic bag as was a tissue and both items were tested for the presence of DNA. No evidence of the DNA of the appellant was found on the bottle, although the complainant's DNA was identified.

180 The complainant gave evidence that during the incident when the bottle was given to him he never ejaculated. When the tissue was examined the complainant's semen was identified on it.

181 The appellant submits that these circumstances are a compelling indication that the complainant's evidence should not have been accepted by the jury. The scientific evidence being inconsistent with the complainant's account of relevant events it is submitted that a doubt in relation to the credibility of the complainant must exist and, accordingly, this Court should intervene in relation to the jury's verdicts.

182 The complainant gave evidence that he gave the lubricant bottle, which was in a plastic bag, to the police. He also indicated that the appellant had used the lubricant bottle on his penis until he ejaculated and then cleaned himself up with some tissues. Although tissues were found in the bag which contained the lubricant the complainant did not give evidence which necessarily connected the tissues with the actions of the appellant. It is obvious that the presence of the complainant's semen, without any evidence of the appellant's DNA, would indicate that the tissue was not one used by the appellant to clean himself up. However, the fact that it did not contain any DNA of the appellant does not mean that the complainant's account of the relevant event could not be accepted. All that it means is that the tissue found in the bag was not one used by the appellant to clean himself up. When the complainant was questioned about the matter he was pressed in relation to whether the appellant had put the tissues in the bag which contained the lubricant bottle. The complainant on more than one occasion said that he could not remember how the tissues came to be in the bag.

183 The appellant's submission was that the presence of the complainant's semen had the consequence that the jury could not have been satisfied of the veracity of the complainant's account of this event and of other events and that the conviction should be set aside. In my opinion, this submission cannot be accepted, Although the presence of the complainant's semen is not explained, this does not mean that the account of the complainant in relation to this event or other events could not be accepted.

184 I have otherwise reviewed the whole of the evidence in the matter and the addresses of counsel and the summing up of the trial judge. To my mind, notwithstanding the inconsistencies in some of the complainant's evidence, the Crown case was strong and there is no reason why this Court should intervene.

185 The appeal should be dismissed.

186 SIMPSON J: I agree with McClellan AJA.

187 ROTHMAN J: I agree with McClellan AJA.

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R v Grattan [2005] NSWCCA 306

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CITATION:	R v Grattan [2005] NSWCCA 306 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 May 2005
JUDGMENT DATE:	2 September 2005
JUDGMENT OF:	McClellan AJA at 1; Simpson J at 186; Rothman J at 187
DECISION:	Appeal dismissed

CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - Whether the trial judge erred in admitting evidence of the complainant's distressed condition - uncharged acts not complained of - pre-text telephone conversations and email messages - Incorrect directions to jury - Miscarriage of justice
PARTIES:	The Crown Phillip John Grattan (Appl)
FILE NUMBER(S):	CCA 2005/117
COUNSEL:	D C Frearson SC (Crown) B Walker SC/A J Kimmins (Appl)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Ryan & Bosscher (Appl)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0695
LOWER COURT JUDICIAL OFFICER:	Hock DCJ