R v GS - [2002] NSWCCA 4

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R. v. G.S. [2002] NSWCCA 4

FILE NUMBER(S):
60088/01

HEARING DATE(S): 27/09/2001

JUDGMENT DATE: 01/02/2002

PARTIES:
Regina (Respondent)
G.S. (Appellant)

JUDGMENT OF: Powell JA Sully J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 98/11/0535

LOWER COURT JUDICIAL OFFICER: McGuire DCJ

COUNSEL:
W.G. Dawe QC (Respondent)
P.L.G. Brereton SC/P. Lowe (Appellant)

SOLICITORS:
S.E. O'Connor, Solicitor for Public Prosecutions (Respondent)
Direct Access (Appellant)

CATCHWORDS:
CRIMINAL LAW - Sexual offences - Appeal against conviction - Whether six verdicts of guilty unreasonable having regard to one verdict of not guilty - CRIMINAL LAW - Sexual offences - Prosecution for - When sanction for required - Delegation of power to sanction - At what time may delegation be effected - Whether delegation of power to sanction effective

LEGISLATION CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL
CCA 60088/01
POWELL JA
SULLY J
BELL J
1 February 2002
R. v. G.S.
Judgment

POWELL JA: From 2 January 2001 until 23 January 2001, the Appellant stood trial before McGuire DCJ and a jury of twelve in the District Court Sydney indicted on seven counts alleging offences committed upon his daughter F.S., the counts in the indictment being that he:
1.between 1 January 1974 and 31 December 1974 at Rouse Hill did assault F.S. and at the time of such assault did commit an act of indecency upon F.S., then being under the age of 16 years, namely, the age of 5 or 6 years;
2.between 2 February 1977 and 31 December 1978 at Rouse Hill did assault F.S. and at the time of such assault did commit an act of indecency upon F.S., the said F.S. being under the age of 16 years, namely, between the ages of 9 and 10 years;
3.between 2 February 1980 and 31 December 1980 at Rouse Hill did assault F.S. and at the time of such assault did commit an act of indecency upon F.S., the said F.S. then being under the age of 16 years, namely, of the age of 12 years;
4.between 2 February 1984 and 30 June 1984 at Rouse Hill, then being a father, unlawfully and carnally did know F.S., a girl above the age of 10 years and under the age of 17 years, namely, the age of 16 years, and then being the daughter of him, the said G.S;
5.between 2 February 1984 and 30 December 1984 at Kings Cross did have carnal knowledge of F.S., she being the daughter of G.S.;
6.between 1 January 1986 and 31 December 1986 at Bondi, did have carnal knowledge of F.S., she being the daughter of G.S.;
7.between 1 August 1988 and 31 August 1988 at Sydney did have carnal knowledge of F.S., she being the daughter of G.S.
Each of counts 1 to 3 was based upon the provisions of s.76 of the Crimes Act 1900 as they were between 2 August 1974 and 14 July 1981 prior to their repeal by the Crimes (Sexual Assault) Amendment Act 1981. Count 4 was based upon the provisions of s.73 of the Crimes Act 1900 as they were between 1 October 1924 and 23 March 1986 when they were repealed by the Crimes Act (Child Assault) Amendment Act 1985. Count 5 was based on the provisions of s.78A of the Crimes Act 1900 as they stood between 1 October 1924 and 23 March 1986 when they were repealed by the Crimes (Child Assault) Amendment Act 1985. Count 6 could be supported by the provisions of s.78A of the Crimes Act 1900 as they were prior to their repeal on 23 March 1986 or by the provisions of s.78A of the Crimes Act 1900 as they were following the coming into operation of the provisions of the Crimes (Child Assault) Amendment Act 1985. Count 7 was based upon the provisions of s.78A of the Crimes Act 1900 as they have been since the coming into operation of the provisions of the Crimes (Child Assault) Amendment Act 1985.
At all times since its insertion into the Act by the Crimes (Amendment) Act 1924, s.78F of the Crimes Act 1900 has provided as follows:
“78F Sanction of Attorney-General
(1) No prosecution for an offence under sections 78A or 78B shall be commenced without the sanction of the Attorney-General.
(2) All proceedings under the said sections shall be held in camera.”
The Director of Public Prosecutions Act 1986 provides (inter alia) as follows:
“4. Director
(1) The Governor may appoint a Director of Public Prosecutions.
(2) The Director shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act.
(3) The Director is responsible to the Attorney General for the due exercise of the Director’s functions, but nothing in this sub-section affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings.
……….
11. Consents
(1) The Director may consent to prosecutions for offences, being offences of a kind in relation to which an order under subsection (2) is in force.
(2) A person who has, under a law of the State, the power to consent to prosecutions for offences of a particular kind may, by order published in the Gazette, authorise the Director to consent to prosecutions for offences of that kind.
……….
(5) If the Director consents to a prosecution for an offence, being an offence of a kind to which an order under subsection (2) is in force, the prosecution may be instituted and conducted without the consent of any other person.
(6) The Director shall notify the person who gives an authorisation under this section of the giving or refusing of consent under the authorisation.
(7) If the Director gives or refuses consent under an authorisation under this section, the person who gives the authorisation is bound by the Director’s decision.
(8) In this section:
‘consent’ includes authorisation, sanction and any similar authority.”
Sections 48, 49 of the Interpretation Act 1987 provide (inter alia) as follows:
“48. Exercise of statutory functions
(1) If an Act or Instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.
(2) If an Act or Instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying of acting in the office concerned.
49. Delegation of functions
(1) If an Act or Instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned.
………
(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.
(6) A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.
……….
(8) If a function is delegated to a particular officer or the holder of a particular office:
(a)the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office when the function was delegated ceases to be that officer or the holder of that office, and
(b)the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.
………”
On 10 July 1987 there was published in the Gazette an Order made by the then Attorney-General, the Hon. T.W. Sheehan, bearing date 1 July 1987 which Order, so far as is relevant, was as follows:
“DIRECTOR OF PUBLIC PROSECUTIONS ACT 1986 -
ORDER
IN pursuance of section 11(2) of the Director of Public Prosecutions Act 1986, I do, by this my Order, authorise the Director of Public Prosecutions to consent to prosecutions for the offences in respect of which my consent is required under the following provisions:
Crimes Act 1900 – sections 78F, 78T, 172 and 547A
………”
On 10 November 1997, the Director of Public Prosecutions, N.R. Cowdery Esq QC executed an Instrument which was in the following terms:
“SANCTION OF THE DIRECTOR OF PUBLIC PROSECUTIONS
New South Wales
Section 78F(1) Crimes Act, 1900
PURSUANT to an Order published in the Government Gazette on 10 July 1987, by authority of Section 11(2) of the Director of Public Prosecutions Act 1986 I HEREBY SANCTION the commencement of proceedings against (GS) for three offences contrary to Section 78A of the Crimes Act 1900.”
The trial before McGuire DCJ and jury in January 2001 was the second trial of the Appellant, the first trial, based on the same seven counts as in the indictment in January 2001, having lasted for some 4 weeks in March 2000. At that trial the jury were unable to reach agreement in respect of any of the counts in the then indictment.
Although the matter is not entirely clear, it would seem that either prior to, or at the time of, the presentation of the first indictment, application was made to J.X. Gibson DCJ for an order that proceedings on counts 5 to 7 of the proposed indictment, or of the indictment, be stayed, that application being based upon the submission that the “sanction” of the Director of Public Prosecutions to the commencement of the prosecution of the Appellant upon the charges the subject of those counts was null and void and that any trial on indictment based on such “sanction” was invalid as, in the absence of a validly given “sanction”, the Appellant could not lawfully be convicted of the offences the subject of those counts. That application appears to have been dismissed by J.X. Gibson DCJ on 7 March 2000.
Application was made to this Court (Sheller JA, James and Dowd JJ) pursuant to the provisions of s.5F of the Criminal Appeal Act 1912 for leave to appeal from the Judgment of J.X. Gibson DCJ of 7 March 2000. Having considered the matter, the Court declined to grant the leave sought.
At the conclusion of the trial before McGuire DCJ, the jury found the Appellant guilty of the offences charged in counts 1, 3 to 7 inclusive but not guilty of the offence charged in count 2.
On 16 February 2001, McGuire DCJ imposed the following sentences upon the Appellant:
1.Count 1: a fixed term of 12 months to commence on 23 January 2001 and to expire on 22 January 2002;
2.Count 3: a fixed term of 18 months to commence on 23 January 2002 and to expire on 22 July 2003;
3.Count 4: imprisonment for a term of 7 years to commence on 23 July 2003 and expire on 22 July 2010 with a non-parole period of 3 years and 6 months to expire on 22 January 2007;
4.Counts 5, 6 and 7: imprisonment for a term of 4 years and 6 months to commence on 23 July 2003 and to expire on 22 January 2008 with a non-parole period of 3 years to expire on 22 July 2006.
McGuire DCJ concluded his remarks on sentence as follows:
“The first two sentences comprise fixed terms which have been imposed having regard to the effect of the succeeding sentences. The sentences imposed on the fourth, fifth, sixth and seventh counts are concurrent on each other and cumulative upon the sentences imposed on the first and third counts.
For certainty I state it to be my intention that the overall sentence will result in a non-parole period of six years and a parole period of three years six months.”
As amended, the grounds of appeal taken by the Appellant are as follows:
1.Pursuant to s.78G (sic) of the Crimes Act 1900, the “sanction” relied upon by the Respondent in prosecuting the Appellant in respect of the s.78A offences (being counts 5 to 7 on the indictment) is null and void and/or otherwise invalid;
2.The Appellant received an unfair trial in that the Trial Judge failed to discharge the jury in respect of prejudicial evidence led by the Crown from Dr. A;
3.The Trial Judge failed to adequately and/or properly direct the jury in relation to the Crown prosecutor’s criticism of (A..S.) the Appellant’s elder son, a Crown witness, by failing to direct the jury that the witness had not been given the opportunity to respond to the assertions made by the Crown;
4.The Trial Judge erred in permitting the Crown to recall (Dr. C.Q), a Crown witness following the Appellant giving evidence in his defence;
5.The Trial Judge erred in permitting the Crown to read onto the record the witness statement of (H.S.) the Appellant’s wife, a Crown witness in respect of whom the Crown was given leave to cross-examine pursuant to s.38(1)(c) of the Evidence Act 1995;
6.The Trial Judge erred by failing to permit the Appellant to lead evidence in his defence;
7.The Trial Judge erred in rejecting a no case submission made at the close of the case for the Crown in relation to count 6 on the indictment;
8.The Trial Judge erred in his directions to the jury by:
(a)by failing to adequately and/or properly direct the jury in that, in directing the jury to look at each count on the indictment separately, he failed to direct the jury that they were entitled to take into account any reasonable doubt in respect of one count when considering the other counts;
(b)by failing to warn the jury that, in the circumstances of this case, should they have a reasonable doubt with respect to the Complainant’s evidence on any count, such ought to be taken into account on the Complainant’s credibility and truthfulness generally;
(c)by failing to direct the jury that they could not use evidence of complaint as evidence of the truth of what was being asserted;
(d)by commenting in an impermissible manner in relation to the nature of the charges preferred against the Appellant;
(e)by failing to direct the jury as to the potential unreliability of the evidence of (Dr. S.), a Crown witness;
9.The verdicts are inconsistent;
10.The verdicts cannot be supported, having regard to the evidence;
11.Generally there has been a miscarriage of justice.
The Written Submissions which were filed on behalf of the Appellant contain a short summary of the Crown case at trial, which summary was as follows:
“The Crown case at trial alleged that the Appellant had an incestuous relationship with his natural daughter (F.S.) which was commenced in 1974 and lasted some 14 years. It was alleged by the Crown at trial that the relationship commenced by way of indecent acts towards (F.S.) in the nature of masturbation and oral sex and that full penile penetration commenced some time during 1984 and lasted for four years, being counts four to seven on the indictment.
The evidence in support of the Crown case consisted of
(a) the complainant’s evidence;
(b)admissions by the Appellant of a general nature, but none which went specifically to a particular charge;
(c)cards and letters written by the Appellant which he gave to the complainant (his daughter); and
(d)observations made by the Appellant’s brother and that brother’s wife of what was considered to be inappropriate behaviour between the father and daughter.
The complainant’s evidence was that during the fourteen year period she had sexual contact with the Appellant, consisting of him rubbing his penis against her, graduating to oral sex, masturbation and then to full penile sexual intercourse. In relation to this sexual contact, it was the case for the Crown that the seven counts on the indictment were selected instances of a more comprehensive pattern of behaviour of the Appellant with such evidence being led by the Crown as contextual or background evidence by the Crown.”
However, while that summary provides a convenient general statement as to the nature of the Crown case, it is necessary, if one is fully to understand the case made by the Crown and the grounds of appeal taken on behalf of the Appellant, that a more detailed summary of the evidence tendered at trial be given.
The Complainant F.S. is the natural daughter and eldest child of the marriage of the Appellant and his wife H.S. whom the Appellant, then a United States citizen, had met while serving with the United States Armed Forces in Korea in about 1966 or thereabouts. The Complainant was born in Korea in February 1968. The Appellant, his wife and the Complainant appear to have come to Australia in about 1970 when the Complainant was 2 years of age. The elder of the Complainant’s brothers, A.S., was born in July 1972, the younger of the Complainant’s brothers, D.S., was born in August 1976 and the Complainant’s younger sister, T.S., was born in February 1983.
Although, after they arrived in Australia the Appellant, his wife and the Complainant – and, after his birth, A.S. – lived for a time at Paddington and, later, Randwick, in about December 1973 they moved to Rouse Hill, following which the Complainant commenced to attend Annangrove Public School.
The case which the Crown sought to advance in respect of the several counts in the indictment was as I set out below.
Count 1: The first time something of a sexual nature appeared between the Complainant and the Appellant was soon after Complainant started at Annangrove in 1974. On that occasion the Appellant came to the Complainant’s bedroom while she was in bed. The Complainant shared that bedroom with her brother, A.S. The Appellant lifted the Complainant’s nightie and swung her legs around and took off her underpants. He then separated her legs and rubbed his penis against her vagina. This went on for a while and then he ejaculated onto her stomach.
After the first occasion, the Complainant’s mother, H.S., was giving the Complainant a bath. H.S. said the Complainant’s vaginal area looked red and asked her whether she had touched herself there, to which the Complainant replied “No, but Daddy has”. H.S. confronted the Appellant who denied touching the Complainant.
Instances similar to the first one happened again on several occasions through the first part of that year. Sometimes the Appellant would also rub his fingers on the outside of the Complainant’s vagina.
Count 2: Things started to change when the Complainant was in fifth class. One Sunday morning the Complainant and the Appellant were alone in the house. The Appellant had just taken a shower and was wearing only a towel. They had a conversation about sperm. They then went into a bedroom and the Appellant lay on the bed and asked the Complainant to lie next to him. He unwrapped the towel. His penis was erect and he started to rub his hand up and down it. He asked the Complainant if she could do the same, and she put her hand on his penis and rubbed it up and down. He put his hand over hers and rubbed it a bit faster and then ejaculated. The Appellant told the Complainant that that was what sperm looked like, that she was a very good girl and this was their special secret and not to tell her mother.
The Appellant and the Complainant had a very close relationship at this stage. There was an emotional bonding, which, if resisted by the Complainant, would result in the Appellant using “emotional blackmail”.
After the above incident, the Appellant started rubbing his penis against the Complainant’s vagina during the day if the two of them were alone. He would also ask her to masturbate him which she did.
Count 3: One day when the Complainant was in first form the Appellant came into her bedroom and sat down on her bed with an erect penis. He told her to take her clothes off and she did. He asked her kneel between his legs and suck his penis which she did. They heard a door open and HS called out. The Appellant put his pants back on and the Complainant ran into a built-in cupboard and put on her school uniform telling her mother “I’m just showing Daddy my new uniform”. She said this because the Appellant had told her that if her mother knew what was happening, her mother would be sent to a mad hospital.
In late 1993-early 1994, the Complainant and the Appellant went to America. In New York they visited the Appellant’s brother SS and his family. They also visited the family in late 1985 and late 1987. It was in an hotel in New York on this first trip that the Appellant first had sexual intercourse with the Complainant. Sexual intercourse went on almost daily when they were on overseas trips, or when the opportunity presented itself when they were at home at Rouse Hill.

Count 4: Shortly after returning from the first trip to the United States the Complainant and the Appellant were alone in the house at Rouse Hill. The Appellant came into the Complainant’s bedroom, massaged her shoulders and asked her if she would like to do it in his bedroom or hers. He then undressed the Complainant and himself. They engaged in oral sex and sexual intercourse. They used a condom.
The Complainant had been studying music since aged 5 or 6 years. She played viola with the Sydney Youth Chamber Orchestra. The Appellant oversaw her practice, took her to lessons, and generally encouraged her.
Count 5: On the occasion of the Complainant’s first rehearsal with the orchestra the Appellant picked her up from school and told her he had a surprise for her. They drove to the Hyatt Hotel in Kings Cross. She stayed in the car while he registered and got the keys to their room. In the room they engaged in oral sex and sexual intercourse with a condom. He told her how extremely lucky they were to have this sort of relationship. He then drove her to her rehearsal.
Approximately once a week after that in 1984 the Appellant would take the Complainant to the Hyatt before rehearsals and have sexual intercourse with her. However this changed when her rehearsal times changed. However, the Appellant would go to different towns for work e.g. Richmond or Cootamundra and take the Complainant with him.
Count 6: Around 1986 when the Complainant was in her first year of university, the family bought a flat in Bondi. The Complainant and the Appellant were alone there one day, and engaged in oral sex and digital penetration.
Similar things would occur at the Bondi premises several times a week.
About this time the Complainant began to feel that the relationship was not something she could hide as easily as before, but the Appellant told her she was just as guilty as he was, and there was nothing to worry about because it was a loving relationship. After beginning university the Complainant began to resist the Appellant more and “tried to put things off”.
Count 7: In her third year of university, in 1988, the Complainant commenced her first serious relationship with JA. She was finding it more difficult to keep up the relationship with the Appellant, as well as having a sexual relationship with JA. On the last occasion they had sexual intercourse the Appellant had taken the Complainant to an hotel in Coogee called The Esron. He was licking the Complainant’s vaginal area and then tried to get on top of her. She resisted and became angry. She then submitted to sexual intercourse but became distressed and began crying. The Appellant told her that he had gone to a lot of trouble and expense to bring her there and he expected her to be in a more reasonable condition when he got back. He then went for a walk. When he returned they went home.
After the Complainant had given the evidence to which I have referred above, there were then tendered Exhibits B-N which exhibits were tendered in order to show what was the relationship between the Appellant and the Complainant. These exhibits were notes and cards that were written by the Appellant to the Complainant with what were said to be inappropriate comments on them implying a sexual relationship. Later, during the course of the Appellant’s cross-examination, the Appellant was cross-examined as to the terms of an affidavit, prepared by him, and sworn by him in September 1996 in relation to certain civil proceedings in which the Appellant stated that “From about 1982 we would jokingly refer to our closeness as being lovers and our sexual relationship”.
It was during the period when those exhibits were being tendered that McGuire DCJ gave to the jury a direction which had been agreed to by both the Crown Prosecutor and the Appellant’s counsel as appropriate at that stage with regard to relationship. That direction was as follows (T. 54):
“Ladies and Gentlemen, as you are aware from what you have seen in that indictment there are seven charges brought against the accused. It is the obligation on the Crown, if it is to prove those charges, to prove them on the evidence to a standard of beyond reasonable doubt.
You have heard evidence from the complainant that there were many other acts of sexual contact involving rubbing the penis on the vagina, oral sex, masturbation, full penile penetration and so on. The accused is not charged with that conduct. You may be wondering why you are hearing that evidence and what you are to do with it. That evidence of the conduct which has not been charged is relevant in order to place the evidence of the actual offences charged into a true and realistic context, in order to assist you to appreciate the full significance of what otherwise appears to be an isolated act occurring without any apparent reason. It can be used for that purpose and no other purpose. You are not entitled to substitute the evidence concerning the acts not charged for those the subject of the charges. You can not use the evidence of the acts not charged as establishing any propensity on the part of the accused to commit offences of the type charged.
In the course of my summing-up, I will give you a fuller direction with regard to that aspect of the case but I give you that direction in the meantime in order that you may appreciate just how you are not to treat the evidence. You can not treat it as establishing a likelihood of committing the acts charged. You can only use it in the way in which I have outlined it to you.”
The second witness called in the Crown case was HS, who, on 15 February 1990, at Paddington Police Station, had been interviewed by, and given a statement to, Constable N. I. McGrath, who was then attached to the Child Mistreatment Unit, in the course of which statement she corroborated the Complainant’s version of some of the events especially those regarding counts 1 and 3.
Despite what was contained in that statement, HS, in the course of her oral evidence gave a different version of what had occurred at the times referred to in counts 1 and 3, a fact which led to the Crown Prosecutor applying for leave pursuant to the provisions of s.38 of the Evidence Act 1995 to cross-examine her in relation to the statement which she had made in 1990, which leave was granted by McGuire DCJ. During the course of that cross-examination, HS said that what was contained in the statement was only what she had been told by the Complainant in 1990, before which she had no suspicions, and that the Complainant’s account of the events the subject of counts 1 and 3 had never occurred.
At the conclusion of HS’s evidence, the Crown Prosecutor sought to tender HS’s statement, to which tender the Appellant’s counsel objected. In the course of developing his objection, counsel said (inter alia) (T.313):
“Now it is anticipated from what the jury said earlier they will probably have a transcript anyway if they ask for it, subject to your Honour’s view of course. One has to, with respect, draw the line and it should be drawn against tendering a statement such as this because it is not normally done. I’m not saying it can’t be done. But it is not normally done and particularly in the circumstances where the witness has been taken through the statement.
And it is no advantage to the Crown to have the jury have the statement in their possession. They have heard the evidence, they have been obviously paying very close attention to the evidence and they will probably have access to the transcript in any event. And even the officer, if necessary, could read the statement onto the record. So your Honour one particularity (sic) in a case like this, where this sort of emphasis could alert the jury to the fact that this is what the girl had said, this is the written word, when in fact the only purpose of the statement going in is reflective upon the credibility of a witness for the prosecution, and not the complainant. So it strengthens the complainant’s evidence in written form when the purpose of the cross-examination was to attack the credibility of (HS).”
At the time, McGuire DCJ deferred ruling on the application until he had had an opportunity to review the transcript of HS’s evidence.
The transcript for the following day records (inter alia) the following (T. 412):
“CROWN PROSECUTOR: Your Honour, perhaps as a compromise I would be prepared to adopt Mr. Bellanto’s suggestion that rather than the written statement to go before the jury that the police lady who took the statement read it onto the record.
HIS HONOUR: Yes.
HIS HONOUR: I have never previously admitted a statement to police over an objection. I was tempted in this case to depart from the practice, having regard to what I consider to be the deliberate obfuscation and frustration in the cross-examination which might have made it virtually impossible for the jury to understand or retain what was being put to the witness, being necessary to keep coming back to the question after numerous interruptions in one form or another. There is a risk that undue emphasis would be placed on the statement if it goes before the jury in written form. That is to say, that the statement is tendered, and in those circumstances, with some misgivings, I reject the tender on the basis that the police officer reads the statement on to the record so that it will appear in some intelligible form. I take it that you have no objection to that course which you suggested yesterday?
BELLANTO: Dragging and kicking your Honour but, no.”
On the following day, the former constable who had taken HS’s statement and, as well, a statement by AS was called to give evidence, in the course of which (T.417-420) she read HS’s statement onto the transcript.
After HS had concluded her evidence and before the former constable was called to give her evidence, there were called the Appellant’s brother SS, the Appellant’s sister-in-law, Mrs. SS, and Dr. A, the father of JA, who, as I have earlier recorded, for a time had kept company with the Complainant.
SS, who is a physician and a qualified psychiatrist and who lives with his wife and family in New Jersey in the United States, gave evidence as to the relationship between the Appellant and the Complainant which he had observed over a period of years. In 1982, by which time the Complainant was 14 years of age, SS, while on a family visit to Australia noticed that the Appellant and the Complainant were very physically affectionate with each other, the Appellant frequently embracing the Complainant, and the two of them kissing and cuddling a great deal. In 1984, when the Appellant and the Complainant visited SS and his family in the United States, SS noticed there was even more physical closeness between them than before with kissing and cuddling and the Appellant treating the Complainant “as one treats a lover”. Although SS and his family expected the Appellant to say with them in their home, the Appellant said that he and the Complainant preferred to say in Manhatten at an hotel. SS also noticed that the Appellant and the Complainant dressed in almost identical clothing. In 1986, when the Appellant and the Complainant again visited SS and his family, SS observed the same sort of behaviour as before. Although SS asked the Appellant and the Complainant to stay with him and his family, the Appellant again said that he preferred to stay in New York at an hotel. In 1988, when the Appellant and the Complainant again visited SS and his family, SS noticed that the relationship appeared to have changed to some degree, the Complainant appearing restive and giving him the impression that she would have preferred to have remained at home. While the Appellant continued to “paw” her, to touch her, to pull her, to embrace her, the Complainant was more resistant. Later in 1988, following the death of SS’s, and the Appellant’s, mother, SS and his family visited the Appellant and his family in Australia. At that time SS noticed that there appeared to be a heightened tension between the Complainant and the Appellant. Prior to 30 January 1990, SS had had a series of telephone conversations with HS and the Complainant who had remained in Australia while the Appellant had taken AS and DS on a trip to Europe before returning to stay with SS and his family. On 30 January 1990 SS spoke with the Appellant in the presence of his (SS’s) wife and confronted him with the allegations which he (SS) said had been made to him by HS and the Complainant that the Appellant had been sexually molesting the Complainant from the age of 6 or 8 until the age of 20. In the course of a lengthy conversation which extended over many hours, the Appellant made such statements as “Well, what of it?”, “Well, what business is it of yours?”, “I never hurt her, I never forced her to do anything that she didn’t want to do.”, “Everything that we did together was to both our self interests.” and “Look, just because you psychiatrists have some idea that it is bad, I don’t believe it, I don’t believe that loving your daughter is bad and I don’t buy it, that is I don’t buy what you psychiatrists have to say about it.” Later SS and his wife spoke to AS and DS and told them of the allegations which were said to have been made by HS and the Complainant.
Mrs. SS gave evidence in similar terms to that of SS as to her observations over the years as to the physical relationship between the Appellant and the Complainant. Mrs. SS also gave evidence that, prior to the Appellant and his sons returning to New York, she had received a telephone call from HS in which HS told her about the sexual relationship that the Appellant had had with the Complainant from the time she was a little girl up until the time she was almost 20. At one stage in the course of his evidence in chief, Mrs. SS gave the following evidence (T.383-384):
“A. …
At one point in the conversation I asked (the Appellant) about why (the Complainant) no longer was in the home anymore? He had told me that he was angry with her and she had been asked to leave. And I asked him what happened? You know, that she essentially had been kicked out of the house. And he told me, in effect, was that she had a boyfriend.
………
CROWN PROSECUTOR: Q. Tell us what was said? A. Okay. And what (the Appellant) said was: ‘I was angry at (the Complainant) because she had her boyfriend, (JA), and she no longer wants to sleep with me. She no longer wants to have a sexual relationship with me.’ And (the Appellant) told me that he said to her ‘I have had a sexual relationship with you and your mother all these years. Why can’t you have a sexual relationship with both me and your boyfriend (JA)?’ (The Appellant) told me that (the Complainant) refused and that’s why he asked her to leave the home. When I said to (the Appellant) that I thought what he had done was hurtful to (the Complainant) he told me that he felt that he hadn’t done anything that she hadn’t agreed to; that everything that he had asked her to do, she had consented to. I said to (the Appellant) that – ‘There is no way a child of six or eight or ten or twelve or any age child has the free will to consent to anything like that.’ (The Appellant) said to me that he felt that what he did was in her best interests. He loved her in the way that he thought was in her best interests and that my notion of what was in a child’s best interests is based on some conventional do-gooder notion of what was in the child’s best interests that just wasn’t accurate, and that I was wrong. (The Appellant) also told me that he didn’t have full sexual intercourse with (the Complainant) until she was of age and that again therefore he hadn’t done anything that she didn’t agree to. He hadn’t done anything wrong.”
Dr. A gave evidence of a conversation which he said he had had with the Appellant at St. Vincent’s Hospital where HS was then convalescing. He said (T.398):
“… I said that I was aware of his relationship with (the Complainant) and I was distressed firstly about what was happening or what was happening to her emotionally and I mentioned my fears about the younger child, the little girl. That was my conversation …”
At that point, McGuire DCJ stopped Dr. A and the jury was sent outside. Following some discussion, the Appellant’s counsel informed his Honour that he was instructed to ask for a discharge. After further discussion, the transcript records (T. 401-403):
“HIS HONOUR: However, he said it Mr. Bellanto and I agree that causes a problem. If you are seeking a discharge on that basis the short answer is no. There has been a four week trial last year, this matter is already of some antiquity. You’re aware that two witnesses have come out from America and they are going back today. I don’t propose to discharge the jury.
BELLANTO: Your Honour, the next problem how do we deal with it. To tell the jury they should ignore it really doesn’t go far. We ask your Honour to tell the jury that they may have picked up something which refers to the younger daughter but is reference to other proceedings but the consequence or result of that there is no finding that (the Appellant) has done anything of a sexual nature towards the younger daughter and is clearly at home something along those lines your Honour.
………
HIS HONOUR: I propose to tell the jury something along these lines: If anybody wants to suggest some additional deletion or variation, let me know.
‘You may have heard reference to the accused’s younger daughter and reference to proceedings and infer that they related to the younger daughter, (TS).
Ladies and gentlemen, let me make it crystal clear, there is no evidence or, indeed, any allegation of any propriety (sic) or misconduct with regard to (TS), the younger daughter. Indeed she still lives with the accused.
As a matter of law I give you this direction: You must genuinely put aside any reference to (TS) or any speculation that may have been raised in your minds. If you do not, you would be untrue to your oaths and affirmations.
The oaths and affirmations you took involved your solemn undertaking to determine the question of guilt or otherwise of the accused on the evidence admitted before you. If you do not do so you would acting (sic) unfairly as well being (sic) in breach of your oath or your affirmation.’
BELLANTO: I am happy with that your Honour.”
When the jury returned, McGuire DCJ then gave a direction in virtually identical terms with those which he had read to counsel (T.406).
Dr. A’s wife gave evidence of a conversation which she had had with HS. That evidence was as follows (T. 431-432):
“Q. And what was the conversation? A. (HS) brought up the fact that she knew that (the Complainant) had told me that her father had been having sexual relations with her. I asked her whether she had known about this, and she said she suspected it for some time, and then one day when (the Complainant) was around 17, she saw her father emerge, that’s her husband, emerge from (the Complainant’s) bedroom naked. And then she said that she knew what she had suspected was true.
………
Q. And did (HS) say anything in that conversation about how she felt about what had occurred between her husband and daughter? A. She did.
Q. What did she say? A. She sounded resentful of (the Complainant), she blamed (the Complainant). She said (the Complainant) had been trying to get her father or (HS’s) husband away from her.”
AS, who, as I have earlier recorded, had given a statement to the police in February 1990 gave evidence as to his questioning the Appellant concerning the allegations that had been made during the course of the confrontation with the Appellant when they were at SS’s home earlier that year. In the course of that evidence AS said that the Appellant flatly denied the allegations. On two occasions the Crown Prosecutor sought leave pursuant to s.38 of the Evidence Act 1995 to cross-examine AS because of what were said to be inconsistencies between his oral evidence and certain parts of the written statement which had given to the police but those applications were rejected, although McGuire DCJ did indicate (T. 458-459) that, depending on the evidence which AS gave in the course of cross-examination, the application might be renewed.

Despite the suggested inconsistency between his oral evidence and the statement which he had given, AS appears to have adhered to other parts of the statement, as, for example, that, at one stage in the course of his being questioned by AS, the Appellant said that he loved the Complainant and she offered him something that HS could not, and that she had all these new and exciting ideas which the Appellant could discuss with the Complainant which he could not discuss with HS (T.455-456) and that in the course of his statement he had said that the relationship between the Appellant and the Complainant was like that of a married couple (T.457), although in the course of cross-examination (T.464), AS said that he did not mean by that expression to convey anything sexual.
Dr. CQ, a psychiatrist, gave evidence of having been consulted by the S family in 1991 on which occasion all members of the family were present. During the course of her evidence in chief, Dr. CQ gave the following evidence (T.476-477):
“Q. Did (the Complainant) speak of the sexual contact that she had with her father over the years at that visit? A. Yes.
Q. And talk in some detail about it? A. Not a lot of actual detail of the sexual activity, but talking about the fact that there had been a sexual relationship between herself and her father since she had been very young.
Q. And what, emotionally, was she like when she was speaking? A. She and her mother were very agitated. (The Complainant) was – it was a crises (sic) situation so there was a lot of distress. But mostly the mother and the older daughter were very distressed.
Q. Did the father say anything? A. He didn’t say a lot. He was not particularly distressed.
Q. Do you remember anything he said at all? A. I remember very clearly his attitude seemed to be one of as if he wasn’t sure why there was such fuss being made. Also that he made no attempt at all to deny anything.
………
Q. Do you remember anything he said specifically? A. Well the one thing I remember specifically was his statement to (the Complainant), ‘But you were my mistress’, which was something that is fairly unforgettable, so.
Q. Was that directed at her? A. I can’t remember all of the preceding conversation but it was something about which (the Complainant) very distressed (sic) and weeping and saying to her father words to the effect of, ‘How could you have done – or look what you have done to me, something like that’. I can’t remember the precise words but I do remember clearly his response. He was looking at her and said ‘But you were my mistress’.”
Although Dr. CQ was cross-examined briefly to suggest that what the Appellant had said was “What do you think she was, my mistress?” – a suggestion which Dr. CQ rejected – it was not suggested to her that she had “badgered” the Appellant during the course of the interview.
In the course of his evidence in chief, the Appellant gave the following (inter alia) evidence concerning the occasion of which Dr. CQ had given evidence (T.592):
“Q. Then, was a point reached when you said in response to what said (sic)? A. At a much later stage in this discussion, yes.
Q. What was the topic of the discussion? A. (The Complainant) was speaking first and raising the same sort of allegations (that) SS had raised to me but of course not in that graphic language. It went along these lines that ‘You did this and you did this and you did this’. That sort of thing. At some stage (Dr. CQ) took over (the Complainant’s) cause and kept the same, badgering me, but on the same lines. ‘Why did you do it to her’.
………
Q. (Dr. CQ) said something? A. Yes.
Q. Was a point reached when you said something? A. Yes.
Q. What did you say? A. I said without the leading up to, what I said is ‘what the hell do you think, she’s my mistress?’
Q. When you said that, what were you intending to convey? A. I was intending to confront the allegations that (Dr. CQ) was making to me.”
After that evidence had been given, the Crown Prosecutor submitted to McGuire DCJ that if the Appellant wished to persist in the suggestion that Dr. CQ had “badgered” the Appellant, she should be recalled to answer what was being raised, a submission that was opposed at that stage (T.593) by the Appellant’s counsel. However, the transcript (T.599) records the following at the end of the discussion:
“HIS HONOUR: Short of recalling (Dr. CQ), what do you say, Mr. Bellanto or Crown, if I was to adopt this course; and tell the jury that what the accused said about (Dr. CQ’s) badgering him and him responding to (Dr. CQ), they should disregard, that having never been put to (Dr. CQ) and indeed I was entirely at odds what with what (sic) (Dr. CQ) said, and what the doctor said at page 477.
BELLANTO: Your Honour I think she should be recalled that is if the Crown wishes to have her recalled.
CROWN PROSECUTOR: Yes, I do.”
The transcript (T.710) records the following evidence given by Dr. CQ in chief when she was recalled:
“CROWN PROSECUTOR: Q. (Dr. CQ), you gave evidence the other day on the 15th (sic) January this year in relation to the first meeting you had with the (S) family at a family therapy session. And you gave evidence that at one state (sic) during session (sic) (the Complainant) was very distressed and weeping and said to her father words to the effect of, ‘How could you have done these things?’ or ‘Look at what you have done to me’ and it was in response to that you said that he gave the clear response to her, looking at her, ‘But you were my mistress’. Is that right? A. Yes.
Q. Do you agree with that as being your evidence? A. Yes.
Q. What do you say to any that, that was in fact a response to what you said to him? A. No, that is not what it was.
Q. And/or that was a response to you taking over her cause and badgering him along the lines of, ‘Why did you do it to her?’ A. No, no, that is not how I would conduct a session like that.”
Although Dr. CQ was again cross-examined with a view to her conceding that what the Appellant had said was “What the hell do you think she was, my mistress?” it was not suggested to her during that cross-examination that she had “badgered” the Appellant during the course of the interview.
Dr. S, a psychiatrist who had been the Complainant’s treating psychiatrist from 1989, was called to give evidence, in the course of which he gave evidence of an interview with SS, his wife and, in all probability, the Complainant, in July 1996, in the course of which SS told him certain things concerning the Appellant and the family background. Dr. S had a note to the effect that, in 1990, SS had confronted the Appellant which note was followed by the word “denial”. Although he had earlier thought that the note meant that the Appellant denied the behaviour of which he was accused, he later came to believe that the word “denial” was a reflection of the Appellant’s ability to rationalise his behaviour.
JP, a close school friend of the Complainant, gave evidence of a close physical relationship between the Appellant and the Complainant.
Ms. MH, a solicitor, first gave evidence of having been retained in January 1990 by the Complainant who, at that time, was accompanied by HS. Having done so, she then gave the following evidence in chief (T.500):
“CROWN PROSECUTOR: Q. In early 1990 did you meet (the Appellant)? A. Yes I did.
Q. Was that after the visits, the two visits of (the Complainant) and her mother? A. That’s correct.
Q. Did he come to your office? A. Yes.
Q. Do you know how long after (the Complainant) and her mother visited, (the Appellant) came to your office? A. It was within about two weeks of our second meeting.
Q. Please tell the circumstances under which you met him; where did it happened (sic), first of all? A. My office wasn’t located in the main office. It was at 170 Riley Street. I had a separate office, on the corner of Oxford Street and Riley Street and (the Appellant) just arrived in my office one day. The door of the office was always opened, except when I had clients, and he just appeared in my office one day.
Q. Did he come in with anyone, that you saw? A. No, he was completely alone.
Q. What did he say, to you? A. He said to me, words to the following effect: ‘I’m (the Complainant’s) father. I know she has been to see you about me sexually molesting her. I did sexually molest her’.
HIS HONOUR: What did he say? A. ‘I did sexually molest her’, words to that effect. I can’t remember whether it was assault, molest, abuse. It was words to that effect? ‘I’m sorry, I’m sick’ and he then burst out crying and he said, ‘I need help’.
CROWN PROSECUTOR: Q. What did you say to him? A. I said to him, ‘Well I can’t do anything for you. All I can do is tell (the Complainant) that you have been to see me and tell her what you said.’ Words to that effect.
Q. Why couldn’t you do anything for him at that point? A. Well, he wasn’t my client.”
In the course of her cross-examination Ms. MH denied that she had “invented” the conversation which she said she had had with the Appellant.
At the conclusion of the Crown case, the Appellant’s counsel applied to have Count 6 withdrawn from the jury on the ground that the evidence which had been given in respect of it was not sufficiently particular with respect to date to enable the count to go to the jury. Having considered the matter, McGuire DCJ later (T. 549) ruled that the evidence did identify the allegation with sufficient particularly and that Count 6 would be left to the jury.
In his case, the Appellant detailed the sleeping arrangements of the household both before and after renovations to the Rouse Hill house which were begun in 1979.
He then detailed the comings and goings of various people who lived in the house at Rouse Hill over the years. These included the Appellant’s parents, friends of the Complainant, MB – who, in 1981, when he was still a school student, had for one term stayed during the week at the house – HS’s sister, KSP, and a Korean student, YHP, who stayed for around 12-18 months over 1979-1980 and often slept in the Complainant’s bedroom.
The Appellant denied any sexual impropriety ever took place with the Complainant, at Rouse Hill, at the Bondi property, overseas, or anywhere else. The Appellant denied having ever taken the Complainant to an hotel in Sydney.
The Appellant said that he had a very close loving relationship with the Complainant, which relationship would be displayed publicly but not in a way which the Appellant considered inappropriate. This relationship included kissing on the lips but this became more rare as the Complainant grew older.
The notes and cards which the Appellant had written to the Complainant (Exhibits B-N) were described by him as showing the love and affection he felt for her and did not contain expressions of a sexual nature. As an example, the sentence “but I can’t live without our relationship and not be wanted by you, loved by you” in Exhibit D1 were explained by the Appellant in the following way (T.564):
“A. Yes, yes, should I explain that? Well at this stage, she had a couple of boy friends in that period of 1986 to 1989. I don’t know which boyfriend she had at this time. She had a gentleman who she was very fond of and there was a close bond between them. That’s fine. I’m telling her, I don’t expect you to be home just for your family. It is ridiculous. I accept the fact that she has grown up and these things happen when you grow up and I encourage that. But I still felt that she should have time for me and for her other family, family members but particularly me in this family.”
The Appellant said that these cards were not delivered to the Complainant in a secret way but were often left where other members of the family could see them.
When he came to deal with the confrontation which he had had with SS in January 1990, the Appellant said that he had denied that he had ever molested the Complainant. In addition, the Appellant said that at no time on that day did he have a conversation solely with Mrs. SS and that the conversation of which Mrs. SS had given evidence did not occur. Although the Appellant said that during the course of the confrontation with SS and Mrs. SS he did use words to the effect of “This is no concern of yours” it was in the context of how he raised his children. A little later, during the course of his cross-examination, the Appellant said that if he had, as SS had said, used words to the effect of “I never forced her to do anything” that would have been in the context of the Complainant’s academic achievements.
When he came to deal with the evidence given by MH, the Appellant said that he went to MH’s office in company with HS for the purpose of collecting documents which belonged to him and which had been left with MH by the Complainant. Those papers, so HS had said during the course of her cross-examination, had been taken by the Complainant from the Appellant’s bank safety deposit box and taken to MH to arrange a divorce for HS. The Appellant said that, when he went to collect the documents, he gave MH a cheque for the amount which she claimed was owed to her and he then took the documents and left. The Appellant said that the conversation of which MH gave evidence did not occur.
At the conclusion of his evidence-in-chief the Appellant gave evidence of an occasion when, so it was suggested, the Complainant was aged about five, six or seven when, so he said, the Complainant sustained an allergic reaction to a bubble bath, which reaction took the form of red dots and raised skin near the genital area and also on her chest. On that occasion, so the Appellant said, the Complainant was taken to the family’s general practitioner. The Appellant also denied that, at that time, there was any conversation between HS and himself as to any sexual conduct on his part directed towards the Complainant.
CB, the father of MB, who had, for one term during 1981, stayed with the S family at the house in Rouse Hill, gave evidence that he, his wife and children were accustomed to visit the house at Rouse Hill on four or five occasions a year. His evidence was to the effect that on the occasions when they visited they found the Appellant to be an exemplary father, the affection he showed the Complainant being no greater than he showed to any of his children.
KSP, HS’s sister, came to Australia in November 1981 and, since that time, had lived with the S family. She slept in each of the children’s bedrooms at some stage or another until TS was born. When the Bondi property was purchased she would stay there for a number of nights each week. Her evidence was that she never saw the Appellant there except during the holidays when he came with the family. She said that she had never seen the Appellant touch the Complainant in a sexual way.
DS also gave evidence. He said that he had never seen the Appellant behave in a sexual way towards the Complainant. He detailed the confrontation in 1990 with SS and said that the Appellant immediately and forcefully denied the allegations that were made. He said that the Appellant may have used the words: “What is wrong with that” but that referred to pushing the children academically. He was present during the consultation with Dr CQ and said that at one stage the Appellant yelled out words to the effect of: “What do you think she was, my mistress?” DS also said that on occasions such as birthdays or when he had performed well at school, or even when there was no particular reason, the Appellant would give him cards using phrases such as: “To my special guy” or “I love you very much”.
DS was the last witness called in the Appellant’s case. There was no Crown case in reply.
In the course of her closing address to the jury, the Crown Prosecutor said (inter alia) (T 801-802):
“So the Crown case is the evidence of (the Complainant). The cards and letters that would lend some support in the various ways that I have described. The admissions made to these people the admissions in relation to (Dr A), (SS and Mrs SS), (MH), (Dr CQ), all of them have either misheard or their (sic) liars. You get this picture of like these people are following (the Complainant) like lemmings over the precipice into this pit of dishonesty that the accused and his sons would suggest.
Let’s not forget the evidence of (AS) and (DS) who says with respect to (Dr CQ) it happened in just exactly the same terms that their father has said. Well, their truthfulness is a matter for you to determine. But you might want to scrutinise their evidence very closely. I don’t propose to go into it in any great depth, but there was much, particularly in relation to what (DS) had to say yesterday that would cause you grave concern about his preparedness to be truthful. I propose you might consider that (HS) was one of these lemmings who saw how far down the precipice she might have been headed and has been back pedalling ever since in order to distance herself from the statement she made back in 1990.
The evidence of (AS) in regard to what happened in 1990 for example he says his dad, as does his dad and (DS), his dad flat out denied the allegations. This wasn’t true, it only lasted an hour and a half or something. But he proceeded to cross-examine his father and I’ll just find it. ‘How often did you ask him? Continuously usually there wouldn’t be an hour went past when I wouldn’t have put it to him.’ And it might be useful to remind you of what it was he got from his father in this cross-examination apart from flat out denials. But I think you have just got to ask him, why would someone keep questioning, why would the son keep questioning his father about something he says he knows not to be true, about something his father has flat out denied, and he continues for the rest of the time.
…………………………………………………………………………………….
It just doesn’t ring true at all what he has had to say about that. You might get the impression that he is trying to conceal this, “Do you think you have a mental problem?’ ‘I don’t know, maybe I do.’ ‘Why did you do all of those things to (the Complainant)?’ ‘I don’t know’. A patent admission. You might think that (AS) is going out of his way to conceal those words by saying well look, I just wore him down by questioning and he just got tired of this and just gave me those answers, that seems to be what he is saying”.
The transcript records the following after the conclusion of the Crown Prosecutor’s final address to the jury (p 810):
“BELLANTO:             May I raise a matter. The Crown Prosecutor, in relation to (AS’s) evidence made a number of criticisms and, doing the best we can, I think they amount to these two points: the jury should question his truthfulness and the jury should scrutinise carefully his evidence, particularly in the light of his devotion to his father. Secondly, his account of his cross-examination of his father did not ring true and he was trying to conceal the tacit admissions of his father. I am not suggesting that is entirely word for word but I think this is the gist of what has been suggested.
HIS HONOUR:           Truthfulness should be carefully scrutinised. His evidence in the light of his devotion to his father, his account of his cross-examination of the father didn’t ring true. What else did you say?
BELLANTO:               He was trying to conceal the tacit admissions of his father in the light of that cross-examination by him. I think that’s generally what the learned Crown was putting to the jury.
In our submission the Crown Prosecutor should tell the jury that (AS) was a Crown witness and the Crown had no obligation to call him, and that he was provided with no opportunity to respond to the criticisms made by the Crown”.
and, later (T 814-815):
“HIS HONOUR:          …
Because in this case the Crown, right from the outset made it plain that the Crown regarded (AS) as a hostile witness and wanted him treated as an unfavourable witness. And as I recall it you stop (sic) me in (sic) I am wrong, there was a voir dire examination of (AS) and it was following that that I refused the Crown’s application to treat him as unfavourable. You really can’t have it both ways. You have asked me not to declare him unfavourable not to give the Crown the opportunity to cross-examine him and now you say the Crown is to be averted from any criticism of (AS). You know that the rules of evidence don’t allow the Crown to cross-examine a witness he not having been declared unfavourable.
BELLANTO:               It is not that the Crown should not criticise him, it is that the Crown should balance that by saying to the jury he has told lies, he is been (sic) untruthful, he is protecting his dad, you don’t have to accept his denials that he wasn’t doing that but bear in mind he hasn’t had the opportunity to respond to that. Nor we seek is a balance. I suppose I do not say the Crown doesn’t have the right to criticise the Crown’s witnesses, but that addendum be added that he hasn’t had that opportunity, that is all.
HIS HONOUR:           Well, Mr Bellanto, you would concede I think that he was in your camp?
BELLANTO:               Yes.
HIS HONOUR:           Now, you had the opportunity to cross-examine him and you were in the position to be able to put to him matters which could have addressed this problem, weren’t you?
BELLANTO:               There are a number of reasons why one takes a view about how far one cross-examines a witness that might be seen to be favourable. There are questions which are often seen as inappropriate. But the bottom line I suppose for us was that we didn’t have to because he had already denied certain matters and his evidence, we would say, stood firm in the way he expressed himself in chief and that we were content with that.
HIS HONOUR:           As I say if any mistake was made it was my mistake in not declaring him unfavourable and giving the accused that advantage.
BELLANTO:               If your Honour pleases”.

At the outset of his summing-up McGuire DCJ, when discussing the relative functions of himself and the jury, said (SU 19/01/01 p 3):
“As judges of the facts you are entitled to be selective, you are entitled to sift the evidence. You can look at a witness and say I believe all of his evidence or I believe none of it or I accept this part, however, I am a bit doubtful as to that. So, in short you place to one side that which you consider reliable, reject which you consider to be unreliable. The mere fact that you think a witness might be unreliable as to one facet of his or her evidence doesn’t mean you have to reject that witness. You may do so, but you do not have to”.
A little later (SU 19/01/01 pp 4-5) McGuire DCJ said:
“It is easy to be sympathetic towards a woman, a girl as she was, who says that she has been sexually molested. It is also easy to be sympathetic towards a man who sits in the dock in a criminal court. He sits there alone, obviously, facing serious charges. You put aside all sympathies, you put aside all biases.
As a matter of commonsense you know that people do molest their children. You know that teachers molest pupils, priests and ministers molest little children, their parishioners. Scout masters have molested cubs and little scouts. You see reports of such matters every second day. You see and hear what occurs on television, you view it every night. So, there is no question that this sort of crime does occur. You might have had experience within the range of your own families or friends. You must put aside what know (sic) or what you think know (sic) about some other matter.
This accused is entitled to be tried by you on the basis of the evidence in this Court. So no bias, no prejudice, no sympathy. Your oath or your affirmation requires you to be cold, hard and dispassionate. If the Crown has proved its case, you convict. If it has not, you acquit”.
Later (SU 19/01/01, pp 11-12) McGuire DCJ, after referring to the fact that there were seven counts in the indictment, said:
“Because there are seven crimes charged, seven counts on the indictment, you are obliged to consider each of the charges separately attributing to each charge the evidence which relates to that charge alone. The circumstances giving rise to each charge are somewhat different in relation to the time and the place and the sexual activity described. When considering each charge it is important for you to remember that you are entitled to return different verdicts, that is to say you do not have to automatically return seven guilty verdicts or seven not guilty verdicts. You might feel that in relation to one particular charge, two, three, more, whatever, that there is some doubt, some reasonable doubt. And if that were so you would acquit. At the same time you might find in relation to some other charges that there was no reasonable doubt. As I say to you, you look at each charge separately, it is not a case of one in, all in, or one out, all out.
What I suggest you do is that you consider the evidence in relation to the first count, arrive at your verdict and move to consider the material relating to the second count and arrive at your verdict and so on. Compartmentalise your evidence. Some of the evidence of course is common to all of the counts, but there is some evidence which is peculiar or specific to a particular count”.
and a little later (SU 19/01/01 p 13):
“Returning to this case, let me make it perfectly clear it is the law that you can convict on the basis of the unsupported evidence of the complainant alone, provided that you find her to be an essentially reliable and honest witness with regard to the sexual misconduct she described. So what you do is look at all of the evidence, including the complainant’s evidence, and determine the question of whether the accused’s guilt has been established beyond reasonable doubt in relation to each of the counts on the indictment”.
McGuire DCJ returned to the question of the Complainant’s evidence a little later (SU 19/01/01 p 14), where he said:
“It would be plain to you, ladies and gentlemen, that the Crown case stands or falls upon the evidence of the complainant. Her account is fundamental to the Crown case. It is therefore essential that you carefully scrutinise her evidence. Remember what she said and the manner in which she gave her account. It is for you the jury to say whether the complainant gave an honest and reliable account with regard to the essential features of her evidence as to the sexual misconduct she described. There may be inconsistencies with regard to matters of no real importance. However, carefully consider her account and pose the question; ‘Was she both honest and reliable when she told you what the accused, her father, did to her?’ If you find that she was, such a finding may be used as a basis for a guilty verdict. If you do not conclude that she was both honest and reliable as to the essential features of her account, then it would not be open to you to find the accused (sic) guilt proved beyond reasonable doubt”.
When he resumed his summing-up on the following Monday, McGuire DCJ said (inter alia) (SU 22/01/01 pp 2-3):
“As you are aware, the events complained of are said to have commenced in 1974 and to have concluded in 1988. You will appreciate that the accused in this case has lost the opportunity to have accounted for his movements to have accurately accounted for his movements at the times in question. He has lost the opportunity to have called witnesses as to what occurred in relation to sleeping arrangements in (the Complainant’s) room or in relation to the country trips, when he told you that (Mr R) travelled with he (sic) and (the Complainant).
The Korean lady has disappeared. (Mr R) has died, as have the accused’s parents. You must therefore carefully scrutinise her evidence in satisfying yourself as to whether she did or did not give you a truthful and accurate accounts (sic) of the sexual assaults complained of.
Unless you were completely satisfied as to the reliability of her evidence, it would be dangerous to convict on her evidence alone. What you must do is carefully scrutinise what she said. If you consider that she was both truthful and reliable, act upon her evidence. If you do not believe that she was both truthful and reliable you would reject her evidence in relation to such of her accounts where you found that she was or could have been unreliable.
To recapitulate, what you do is you look at the evidence in relation to each charge, as it were, in a separate compartment. Go to the next charge and look at the evidence which relates to it and so on”.
The transcript records (SU 22/01/01 pp 57-58) the following discussion which occurred in the absence of the jury at the conclusion of McGuire DCJ’s summing-up, but before he requested the jury to retire to consider their verdict:
“CROWN PROSECUTOR:       The other matter is in relation to what use the jury might make of the complaint evidence. As the law currently stands I understand that the Crown would be entitled subject to any exercise of discretion by the trial Judge, the Crown would be entitled to the jury use (sic) complaint evidence as the truth of what is asserted, I have had some discussion with Mr Bellanto about this during the course of the trial and ultimately in my address to the jury I stepped away from that proposition of her complaint or the complaint to (HS) should be used as the truth as what is asserted, rather I suppose to go to the old use for which it was put of consistency of conduct and so on. I believe the current position in relation to that is though, the jury needs to be told exactly what use they should make of that evidence.
HIS HONOUR:           Crown I think you are right, I think it is available to the jury to use complaint, the contents of complaint as truth of what was asserted but I have a discretion on that do I not?
CROWN PROSECUTOR:         You do your Honour.
HIS HONOUR:           The complaint to which she refers was made when she was six or thereabouts and I do not propose to put to the jury that they can use that as evidence of the truth of what was raised.
CROWN PROSECUTOR:         I must say that’s precisely why I stepped away from the idea that the concept of it should be used as the truth of the contents but I believe there is a decision somewhere, I can’t think of it right now, that would indicate the jury should know what use they put the piece or to what you can say make of a piece of evidence.
HIS HONOUR:           By way of consistency or ?
CROWN PROSECUTOR:         Yes, I think that would be the only use to which they could put it.
HIS HONOUR:           Well no doubt when we come back you will be able to hand me a copy of that, won’t you. What do you say Mr Bellanto as to that matter?
BELLANTO:               On that. Well I agree with your Honour with respect that it’s only a matter of background material bearing on the evidence, not the truth of what is asserted.
HIS HONOUR:           Well do you suggest that I or do you want me to give any direction with regard, any further direction with regard to complaint?
BELLANTO:               Only that your Honour would tell them that it is not evidence of the truth.
HIS HONOUR:           Well no …
BELLANTO:               But I appreciate – I know what that may involve.
HIS HONOUR: It is only because of some interpretation of the Evidence Act, that that is the situation. If they are not told anything about it, it doesn’t enlighten them on the issue.
BELLANTO:               Yes.
HIS HONOUR:           Now I’m not going to tell them that they can’t use it as evidence of the truth because they would be entitled to use it as evidence of the truth. It’s just that I’m not going to as a matter of discretion instruct them to that effect. But I am not going to tell, I’m not going to go to the extent of putting it in the negative, that they can’t do so.
BELLANTO:               Well I think in those circumstances your Honour should leave it alone”.
In the event, the only further direction which McGuire DCJ gave to the jury before they retired to consider their verdict was one which had been sought by the Appellant’s counsel as to the motives which it had been suggested that the Complainant might have to lie, which direction was as follows (SU 22/01/01 pp 64-65):
“Ladies and gentlemen, the accused does not have to advance any motive, nor does he have to prove any motive. Even if you do not accept any motive advanced, that does not constitute any proof of guilt. It does not entitle you to confer that the complainant’s account was correct merely because you disbelieve the motive that has been suggested. You would still have to find the guilt of the accused on the whole of the evidence. So you simply do not say, well, I do not accept that that was a motive, therefore that establishes that what (the Complainant) said was correct and that constitutes some proof of his guilt. Even if you don’t accept the motive, you still have to look at all of the evidence and determine whether the guilt of the accused has been proved to the requisite onus”.
When the appeal was called on for hearing, Mr W G Dawe QC appeared for the Crown while Mr P L G Brereton SC appeared with Mr P Lowe for the Appellant.
Although, in accordance with the usual practice, written submissions had been filed on behalf of the Appellant prior to the appeal being called on for hearing, in the course of his opening the appeal, Mr Brereton said (T 2):
“May I outline the way in which I propose orally to develop the submissions for reasons which, I hope, are logical. They will not follow the sequence of the written submissions and I do not propose orally to develop all the grounds of my written submissions. If I can outline the course I do propose to embark upon: the first submission will be that the guilty verdicts on counts 1 and 3 to 7 are unreasonable and cannot be supported, having regard to the acquittal on count 2, and that encompasses grounds 9 and 10.
The second submission is that the trial Judge failed to give the jury a Markuleski (sic) direction when such a direction was called for. That encompasses ground 8 (a) and (b). The third is that the trial miscarried by reason of misuse of the permission afforded to the Crown to recall (Dr CQ); that is ground 4.
The fourth submission is that in his Honour’s summing-up, the trial Judge first failed to give appropriate directions in respect of the appellant’s son (AS) to the effect that he had been afforded no opportunity to answer the criticisms made of him by the Crown; that is ground 3. And secondly, to the appellant’s prejudice commented on prevalence of the type of offence in question in the community; that is ground 8 (d).
The fifth submission will be that the prosecution of counts 5, 6 and 7 was null and void by reason of the absence of a valid sanction of the Attorney General under section 78F of the Crimes Act. I do not propose to address orally grounds 2, 6, 7, 8 (c) and (b) and 11”.
In the circumstances it seems convenient to deal with the submissions in the order outlined by Mr Brereton.
Ground 9 The verdicts are inconsistent
Ground 10 The verdict cannot be supported having regard to the evidence
Reduced to its most simple form, the submission which was made on behalf of the Appellant in respect of these two grounds of appeal was that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, the basis for that submission being what was said to be the inconsistency between the verdicts found on counts 1, 3 and 4-7 on the one hand, and that found on ground 2 on the other. In the course of developing that submission, Mr Brereton referred to the recent decision of this Court in R v Markuleski ([2001] NSWCCA 290) which decision he accepted as having wrought a return to the primacy of MacKenzie v The Queen ((1996) 190 CLR 348) and which had disapproved of the approach which had earlier been taken by this Court in R v RAT ((2000) 111 A Crim R 360). As put by Mr Brereton (T 2):
“In my submission the test now is whether the verdicts are logically and reasonably irreconcilable, and that test is not satisfied where there is nothing to differentiate the evidence of the complainant on the count on which there is an acquittal, from those on which there are convictions”.
With respect, it seems to me that the judgment of Gaudron, Gummow and Kirby JJ, which judgment, in this respect, was concurred in by Dawson and Toohey JJ, in MacKenzie v The Queen (supra) does not, in my view, support so bald a submission. In the course of their judgment Gaudron, Gummow and Kirby JJ said (inter alia), (supra) at 366-368:
“From a review of the cases, a number of general propositions can be stated:
(1)                A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency.
……………………
(2)                Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting the co-accused or persons tried separately in relation to connected events.
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(3)                Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand’.
(4)                Nevertheless the respect for the function that the law assigns the juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.
………………………………………
(5)                Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.”
Let it be assumed, however, that Mr Brereton is correct when he asserts that the test of whether or not verdicts are logically and reasonably reconcilable is incapable of being satisfied where there is nothing to differentiate the evidence of the complainant on the account on which there is an acquittal from that on those counts on which there are convictions. The submission that the present is a case in which that test has not been satisfied appears to proceed upon the bases, first, that the current case stood or fell upon the evidence of the Complainant in the sense that hers was the only direct evidence as to any of the offences charged, and, second, that no – or, at least, no reliable – corroborative material had been tendered to support the Complainant’s evidence, it following – so it appeared to be submitted – that the jury could not, as a matter of logic, accept the Complainant’s evidence as to counts, 1, 3 and 4-7, while at the same time not accepting her evidence as to count 2.
With respect, it seems to me that, so put, the submission overstates the position, and that there are several answers to it:
(1)The statement made by HS to Constable McGrath in February 1990 did contain material supportive of the evidence given by the Complainant as to the events which were the subject of counts 1 and 3, albeit that, as I have earlier recorded, in the course of her oral evidence at trial, HS asserted that what was contained in the statement was only what she had been told by the Complainant in 1990, before which she had no suspicions, and that the Complainant’s account of the events the subject of counts 1 and 3 had never occurred;
(2)As is apparent from what I have earlier recorded, the first 3 counts in the indictment charged the appellant with indecent assault. In the course of his summing-up, McGuire DCJ gave the jury the following direction (S/U 19/01/01, pp 9-10):
“If you go to the indictment you will see that the first three counts involve allegations of what we call indecent assault. The matters which the Crown must prove beyond a reasonable doubt in relation to those first three counts are as follows.
(1) Within the periods mentioned in those first three counts the accused assaulted (the complainant). That is the first thing.
(2) The second is at that time he committed an act of indecency.
Assault, in this context does not mean punching somebody in the nose or hitting them with a stick. It simply means the intentional unlawful touching of another person without that person’s consent and without lawful excuse. The assaults and the acts of indecency alleged are one and the same thing. If there was a touching of somebody in an indecent fashion that constitutes an indecent assault.
There is no definition within the law as to what constitutes indecency. It simply means conduct which is contrary to the ordinary standards of decency of people in the community. As jurors you represent the community and it is for you to judge whether any conduct which you find proved against the accused offends against the ordinary standards of decency of people in your community. So if you find that the matters charged, that is to say the actions charged: the touching, the various acts covered by those counts, if you find those actions occurred, you then ask yourself, ‘well, do those actions constitute indecency?’ If you find both of those matters proved then there is to be a guilty verdict. If you don’t find both of those matters proved beyond a reasonable doubt then you acquit.”
There is, as it seems to me, a different quality in relation to the conduct of which the Complainant gave evidence in relation to counts 1 and 3 and that of which she gave in relation to count 2 and it may be that the jury took the view that the conduct of which the Complainant gave evidence in relation to count 2 did not constitute an assault or did not involve the Appellant committing an act of indecency upon the Complainant.
(3)Other evidence which could have been regarded as supportive of the evidence given by the Complainant, particularly in regard to counts 4-7, was that given by Mrs A as to her conversation with HS, the evidence of SS and Mrs SS as to their confrontation with the Appellant in January 1990, the evidence of Dr CQ on what occurred at the family consultation in 1991, the evidence of MH as to her conversation with the Appellant when he came to her office in 1990, and the various cards and letters which were tendered as exhibits B-N.
(4)Finally, there is the fact that, as I have earlier recorded, in the course of his summing-up, McGuire DCJ directed the jury that they were obliged to consider each of the charges separately, attributing to that charge the evidence which related to it alone, it following that, in the present case, the jury simply followed his Honour’s instruction to consider separately the case presented by the Crown in respect of each count and to apply to each count the requirement that all the ingredients must be proved beyond reasonable doubt.

These matters lead me to the conclusion that this Court should not interfere on these grounds as the verdicts on several counts do not themselves render the convictions for the appellant unsafe or unsatisfactory.
Ground 8
The trial Judge erred in his directions to the jury by:
(a)failing to adequately and/or properly direct the jury in that, in directing the jury to look at each count on the indictment separately, he failed to direct the jury that they were entitled to take into account any reasonable doubt in respect of one count when considering the other counts;
(b)by failing to warn the jury that in the circumstances of this case should they have a reasonable doubt in respect to the complainant’s evidence on any count, such ought to be taken into account on the complainant’s credibility and truthfulness generally.
It is to be observed that, notwithstanding that, at trial, the Appellant was represented by a very senior and experienced member of the inner Bar, no such directions as are now suggested should have been given were sought from McGuire DCJ even though, as is the practice, at the end of McGuire DCJ’s summing-up counsel were invited to indicate whether, and if so what, further directions were required. This notwithstanding, it seems to me appropriate to consider the merits of the submissions before finally determining whether or not leave to raise questions ought to be granted.
In the developing the submission Mr Brereton prayed in aid some of the observations made by Spigelman CJ and others made by Wood CJ at CL in their respective judgments in R v Markuleski (supra).
In the course of his judgment in R v Markuleski (supra) Spigelman CJ wrote (inter alia):
“173            The appellant made two distinct criticisms of the directions with respect to the jury’s assessment of the credibility of the complainant.
174               The first criticism was the failure of the trial judge to expressly inform the jury that the delay in the making of the complaint was itself a matter to be taken into account in assessment of the credibility of the complainant. The second criticism was the failure of the trial Judge to direct the jury as to the assessment of the complainant’s credibility if the jury were minded to acquit on any count.
………………………………
176               In this case the central significance of the credibility of the complainant must have been obvious to the jury. His Honour informed them that they needed to be satisfied beyond reasonable doubt ‘as to the truth and reliability of the evidence that she gives’. His other directions reinforced the proposition.
177               It may be reasonably obvious to most persons that delay in coming forward in the making of a complaint is required to be taken into account in assessing credibility. Nevertheless in a case such as the present, where delays are a lengthy period, in my opinion, a direction of this character should have been given to ensure a fair trial.
178               In view of the clear direction that the Crown did depend on the complainant’s evidence and the strong Longman warning I may have been minded to reach the same conclusion as in Davies that the complainant’s credibility had been adequately left to the jury. However, when this omission is combined with the next matter complained of, a different conclusion is appropriate.
………………………………………
181               The appellant eventually relied on alternative formulations of a direction requiring the jury to take into account the failure of the complainant’s evidence to satisfy it beyond reasonable doubt in one or more respects on any count, when assessing her evidence on other counts. In this respect the appellant relied on the observations of Fitzgerald JA in R v Robinson (2000) 111 A Crim R 388 at [9]:
‘The circumstances might be such that the jury should also be instructed that if they hold a reasonable doubt concerning the reliability of a complainant’s evidence on one or more counts, whether by reference to the complainant’s demeanour or for any other reason, they must take that into account in assessing the reliability of his or her evidence in relation to other counts’.
……………………………………
183               Fitzgerald JA’s observations in Robinson were made in a context in which his Honour had identified the usual practice of directing a jury to consider each count separately and tell it that it was entitled to accept part of what a witness said and reject other parts. His Honour indicated that directions of this character may not always be sufficient.
184               As with many aspects of the process of weighing evidence, a judge may be able to assist the jury by drawing its attention to certain matters, even matters which would be regarded by many to be obvious. I express considerable reluctance to add to the number of directions and warnings which trial judges are already required to give. McHugh J noted in KRM v The Queen (2000) 75 ALJR 550; [2000] HCA 11 at [37]:
‘The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings’.
185               Nevertheless, the case law of inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters. However, there have been a significant number of cases in which Courts of Criminal Appeal have acted on the basis that the jury may have failed to do so.
186               In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count”.
Not dissimilar passages may be found in the judgment of Wood CJ at CL. Thus, after a reference to the observations of Fitzgerald JA in R v Robinson (supra), his Honour wrote:
“261            I see no reason to confine the direction to reliability. It is equally, if not more, applicable in relation to credibility or truthfulness. Moreover, I see no reason to do more than bring to the attention of the jury the circumstance that, depending upon the nature of, and the degree of, any question which arises in relation to the evidence going to the count in respect of which they have a reasonable doubt, it is both permissible and proper for them to take that into account when considering the evidence of the complainant or central witness upon the remaining counts.
262               This should, however, be kept in context in that the jury should be reminded that it is but one of the circumstances that they can properly take into account, when evaluating the overall credibility and reliability of the complainant, as it impacts upon the remaining counts, including any other fact or circumstance which may provide an explanation for any question which may arise. It is, in my view, inappropriate for any direction, or comment, in this regard to become elevated by reason of the mandatory terms in which it is expressed, to a principle of law or to operate as a straightjacket for the jury.
263               In some cases, where it is obvious that the witness’s reliability or credibility has been seriously undermined in relation to one count, a strong comment may be appropriate. In other cases it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness’s evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to other counts. In other cases a more neutral reminder of the entitlement of the jury to take such a matter into account may suffice. In yet other cases, it may not be necessary to say anything”.
In the light of the submission advanced on behalf of the Appellant, the following matters should be noted:
(1)As I have pointed out, in the course of his summing-up McGuire DCJ directed the jury that in the light of the fact that there were 7 counts in the indictment they were required to consider each of the charges separately, attributing to each charge the evidence which related to it alone;
(2)In the course of his summing-up, McGuire DCJ directed the jury that the Complainant’s account was fundamental to the Crown case and that it was therefore essential that they carefully scrutinise her evidence and, if they did not conclude that the Complainant was both honest and reliable as to the essential features of her account, then it would not be open to them to find the accused’s guilt proved beyond a reasonable doubt;
(3)In the course of his summing-up, McGuire DCJ gave the jury a strong Longman direction and pointed out that, unless they were completely satisfied as to the reliability of the Complainant’s evidence, it would be dangerous to convict on her evidence alone;
(4)While, as I have earlier noted, it was true that the only witnesses to give direct evidence as to the matters the subject of the several counts in the indictment were the Complainant and the Appellant it was not, in my view, a “word against word case”; on the contrary, as I have earlier recorded, there was evidence to which the Crown Prosecutor, in the course of her final address, and McGuire DCJ, in the course of his summing-up, drew attention which was supportive of the evidence given by the Complainant.
These matters, in my view, make it appropriate to refer to what was said by Hunt J (as he then was), with whom Slattery CJ at CL and Carruthers J concurred, in R v Davies ((1985) 3 NSWLR 276), to which Spigelman CJ referred in the course of his judgment in R v Markuleski (supra), which passage was as follows (supra) at 279:
“The trial judge did give detailed directions to the jury concerning the credit of the complainant, and concerning the conflicts between her evidence and the evidence of the witnesses for the accused. The jury could not have been under any misapprehension as to the relevance to her credit of the conflict between the complainant and Wilson as to making the complaint. But that circumstance does not meet the appellants’ argument. It was never put specifically to the jury that the failure to complain was itself relevant to the complainant’s credit. Mr Hidden on behalf of the appellants said that this was the very sort of case which cried out for such a direction to be given. If this was so, it is surprising that not one of the four experienced counsel who appeared on behalf of the accused thought it necessary to ask the trial judge to give such a direction. Quite apart from the requirement of the Criminal Appeal Rules r 4, that circumstance is eloquent evidence that the impression conveyed by his Honour’s summing-up at the time was that the issue of the complainant’s credibility had been adequately put before the jury. It may well be relevant also to the issue under the Criminal Appeal Act 1912 s 6, as to whether a substantial miscarriage of justice has occurred, but it is unnecessary for me to explore that issue in this case.
In my judgment, leave to rely as a ground of appeal upon the omission to give any direction in accordance with Kilby’s case should be refused and the ground of appeal itself should be rejected”.
In this case I am of the view that leave to rely on these grounds of appeal should be refused, and these grounds of appeal themselves should be rejected.
Ground 4
The trial Judge erred in permitting the Crown to recall (Dr CQ), a Crown witness following the appellant giving evidence in his defence
It will be seen that, as framed, this ground differs from the ground – that the trial miscarried by reason of the misuse of the permission afforded to the Crown to recall (Dr CQ) – sought to be advanced by Mr Brereton.
Given the facts, first, that, as I have earlier recorded, it was Mr Bellanto who indicated to McGuire DCJ his view that Dr CQ should be recalled if that were the Crown Prosecutor’s wish, and, second, that when Dr CQ was recalled no objection was taken by Mr Bellanto to the evidence which she gave in chief, and no application was made by him to have that evidence struck out, it is my view that this ground of appeal as originally taken should be rejected and the ground of appeal now sought to be advanced by Mr Brereton should not be entertained.
Ground 3
The trial judge failed to adequately and/or properly direct the jury in relation to the Crown Prosecutor’s criticism of (AS), a Crown witness, by failing to direct the jury that the witness had not been given the opportunity to respond to the assertions made by the Crown
I have recorded above (para 59) that part of the Crown Prosecutor’s final address to the jury which forms the basis for this ground of appeal, as also have I recorded above (para 60) the application which was later made by the Appellant’s counsel and part of the discussion which followed the making of that application.
The following observations might be made in relation to that part of the Crown Prosecutor’s final address:
(1)As is apparent, the criticism is not limited to the evidence of AS but relates also to the evidence of DS and that of HS;
(2)As, in the course of that discussion (T 811) McGuire DCJ was to observe, in the circumstances the Crown was obliged to call AS as a witness;
(3)As I have earlier recorded (para 39), on two occasions the Crown Prosecutor sought leave pursuant to s 38 of the Evidence Act 1995 to cross-examine AS because of what were said to be inconsistencies between his oral evidence and certain parts of the written statement which had been given to the police. At the time when the Crown Prosecutor made the first of those applications, an examination of AS on the voir dire was conducted, during the course of which that statement was put to AS and, at a number of points, he appeared to suggest, either, that words attributed to him had not been spoken by him, or alternatively, that, although he had perused the statement before signing it, he had not read it carefully. At the conclusion of that examination and after the jury had been recalled the Crown Prosecutor at McGuire DCJ’s suggestion (T 455) directed AS’s attention to various passages in the statement and asked whether he had adhered to the words recorded in those passages. It was the answers he then gave which led to the second application by the Crown Prosecutor;
(4)As, in the course of the discussion on the application made by Mr Bellanto, McGuire DCJ observed, Mr Bellanto had opposed the Crown Prosecutor’s application for leave to cross-examine (T 449) and, further, exercised the right to cross-examine AS (T 460-471);
(5)Finally, as, in the course of that discussion Mr Bellanto had conceded, AS was clearly in the Appellant’s camp.
In seeking to develop this ground of appeal Mr Brereton submitted that, where it is to be submitted that the evidence of a witness may be unreliable, and it has never been suggested to that witness that he or she was unreliable, he or she should be given the opportunity to answer the attack on his or her evidence, in default of which it is incumbent on a trial judge to a give a clear direction in the summing-up as to how the jury should approach the evidence of that witness - a submission to support which reference was made to the judgment of this Court in R v ATM ([2000] NSWCCA 475) - and that, in the absence of such a direction the Accused would have had an unfair trial a submission to support which reference was made to the decision of this Court in MRW ((1995) 113 A Crim R 308).
With respect, it seems to me that this was not a case calling for a direction such as was contended for by Mr Brereton. The situation in this case was far from that under consideration in R v ATM, albeit that what was there involved was an appeal against conviction on two charges of child sexual assault. The particular question considered in R v ATM was the apparent contradiction between the evidence of two medical practitioners called during the Crown case, a Dr Amin, a General Practitioner who had examined the Complainant following a complaint and who found no evidence of bruising and found that the hymen was intact, and a Dr Marks, a Medical Practitioner with a Post Graduate degree in Paediatrics employed in the Child Protection Unit at the Children’s Hospital at Westmead, who had not spoken to Dr Amin but had examined her, who gave evidence (inter alia) of cases where there had been a mistaken interpretation made of the state of a child’s hymen and explained how that might occur.
In the course of his judgment, Howie J, with whom Sully and Whealy JJ agreed, wrote (inter alia):
“54               One of the difficulties with this area of the evidence was that because Dr Amin was called by the Crown and as the defence did not wish to undermine her evidence, her expertise and the reliability of her examination were never called into question except indirectly by the evidence of Dr Marks. Yet Dr Marks had never spoken to Dr Amin about her examination of the Complainant or the course she normally followed when examining the genitalia of a young child. Nor was it ever suggested to Dr Amin during her evidence that she was inexperienced in examining the sexual organs of young children or that she may have been mistaken in what she thought was the Complainant’s hymen, or that there may have been damage which she did not observe or note.
55                 At the very least it seems to me to have been unfair to Dr Amin that the jury might have been left to consider her evidence on the basis that it may have been unreliable when this was never suggested to Dr Amin and she was never given the opportunity to answer the attack upon her evidence, which at least must have been implied by the Crown calling Dr Marks. There were no directions in the summing-up as to how the jury should approach this evidence except by the judge summarising the submissions made by both counsel.
56                 Perhaps the answer to what I consider to have been the unsatisfactory nature of this part of the evidence was for the Crown to have sought leave to treat Dr Amin as an unfavourable witness and tested her evidence under Section 38 of the Evidence Act. In R v Milat (SC (NSW)) Hunt CJ at CL, unreported, 23 April 1996) it was held that the section could be applied where a witness was called by the Crown to permit cross-examination by the defence. Here the Crown was calling the evidence under its duty to put all relevant material before the jury. I note that the operation of the section is under consideration by the High Court which granted Special Leave to Appeal from the decision of this Court in R v Adam (1999) 47 NSWLR 267.
57                 By itself the evidence of Dr Amin was not decisive. It was open to the jury to consider the evidence of the findings of Dr Amin in the light of the evidence of Dr Marks and conclude that the results of Dr Amin’s examination of the Complainant were not so inconsistent with the Complainant’s version that the Complainant could not be telling the truth. But in light of the Complainant’s evidence of repeated acts of penetration over a number of years leading up to the medical examination in September 1992, the evidence of Dr Amin hardly inspires confidence in the reliability of the Complainant’s evidence”.
In the present case, it seems to me that AS could not have been under any misapprehension about the fact that the Crown was seeking to suggest that the oral evidence he had given was inconsistent with what was contained in the statement which he had earlier given to the police and that it was for that reason unreliable. This being so, it does not seem to me that the comment made by the Crown Prosecutor in the course of her final address to the jury was unfair.

Further, it is to be noted that, at an early stage in his summing-up (SU 19/01/01 p 8), McGuire DCJ observed:
“You will have observed that some witnesses called by the Crown gave evidence that suited the Prosecutor’s case and some of the evidence given by those witnesses suited the Accused. In a prosecution such as this, the Crown is under an obligation to place witnesses before you, as a matter of fairness, if those witnesses can give relevant evidence, regardless of whether their account suited the Prosecution or suited the Accused.
Snippets of evidence from the previous trials have been quoted. Quite rightly, witnesses were taken to what they said in some proceedings in this trial in this Court some 10 or 11 months ago. You have also been referred to extracts and affidavits. Ladies and gentlemen, do not guess or speculate as to what other evidence was produced in that trial or what other information is contained in those affidavits. It is a perfectly valid exercise to refer a witness to previous evidence or to an affidavit. May I suggest to you that you concentrate on what you have seen and heard in this Court because here you saw all of the witnesses, heard all of the questions and all of the answers and here you saw the way witnesses answered. You saw their demeanour and you had an opportunity here to assess them”.
I would reject this ground of appeal.
Ground 8
The Trial Judge Erred in his Directions to the Jury by:
…………………………
(d)by commenting in an impermissible manner in relation to the nature of the charges preferred against the Appellant
In para 62 I have set out that part of McGuire DCJ’s summing-up which is the subject of this ground of appeal.
Quite apart from the fact that it seems to me that, in its context, there is nothing objectionable in what his Honour there said, it is to be noted that neither at the conclusion of the first part of McGuire DCJ’s summing-up, nor at the conclusion of the whole of his Honour’s summing-up, was any application made on behalf of the Appellant to have that part of the summing-up withdrawn, or to have any further direction in relation to it given to the jury. This being so, I would reject this ground of appeal.
Ground 1
Pursuant to s 78G (sic) of the Crimes Act 1900, the “sanction” relied upon by the Respondent in prosecuting the Appellant in respect of the s 78A offences (being counts 5 to 7 on the indictment) is null and void and/or otherwise invalid
In paras 3 to 5 I have set out the statutory provisions relevant to this ground of appeal and in paras 6 and 7 I have set out the Order upon which the Director of Public Prosecutions relied, and the form of the sanction which he executed prior to the commencement of these proceedings.
Although in the written submissions which were filed on the Appellant’s behalf two alternative submissions were advanced to support this ground of appeal they being:
(1)that an authorisation given to the Director of Public Prosecutions relating to the sanction to commence proceedings under s 78F of the Crimes Act 1900 does not continue in force after the Attorney-General who gave it has ceased to hold office; and
(2)that the form of sanction executed by the Director of Public Prosecutions in this case is defective in that it lacks the necessary particularity to constitute a valid consent;
in the course of his oral submissions, Mr Brereton sought to develop only the first of those alternative grounds.
In seeking to develop his submissions on this ground, Mr Brereton relied upon the decision of the Full Court of the Supreme Court of Victoria in Wood v Pfeiffer ([1925] VLR 167), which decision concerned an application to review the decision of a Police Magistrate convicting the then Defendant of an offence under the Vermin and Noxious Weeds Act 1922 (Vic). Section 43(1) of that Act provided:
“All penalties imposed by or under this Act shall be recoverable upon the information of the Superintendent if authorised on that behalf by the Minister in writing either generally or in any particular case or upon the information of any other person so authorised”.
In that case the informant possessed and tendered a General Authority to Prosecute dated 14 March 1924, signed by the Minister for Lands at that date who, however, had, by the time the information was laid, ceased to hold office as such. In what can only have been described as an extraordinarily brief judgment, Irvine CJ said ((supra) at 169):
“Mr Lewers, for the Crown, argued that the form of the Authority given to the Inspector, being general, the Authority continued after Mr Allen ceased to be Minister for Lands. We think that argument cannot be upheld. It would be against the proper construction to be given to sec. 43 to assume that any such Authority would continue after the Minister resigned”.
The decision in Wood v Pfeiffer was distinguished by the Full Court of the Supreme Court of Victoria in Benwell v Gottwald ([1978] VR 253) a decision concerned, not with an authority to prosecute, but with an authority to operate a breath analysing instrument. In the judgment (Crockett J, with whom Starke and Gray JJ agreed) the following appears ((supra) at 254-256):
“Before us it has correctly been pointed out that the only feasibly possible construction that can be placed upon the words ‘authorised in that behalf by the Chief Commissioner of Police’ are, either that the words mean the Chief Commissioner at the time of the test having been taken by the person purportedly authorised (a construction for which the defendant contended in the Court below), or that ‘Chief Commissioner’ means the Chief Commissioner at the time that the authority was given. Of course it is the latter construction for which counsel appearing on behalf of the informant before us contended.
In my view the latter construction is the only reasonable and sensible one which the words used can permissibly bear. There are a number of indications as to why this is so.
……………………………………………………………………………………
The authorities that bear on a similar question appear with one exception to support that construction of the legislation. In Seaton v Chen Fong Yan, [1908] QSR 195 the Full Court adopted a construction of a section where a similar point arose for consideration that is confirmatory of the view which I have expressed. And in Dore v Gormley, [1963] QWN 38 Gibbs J, who was then a member of the Supreme Court of Queensland, expressed himself as concurring in that view. Then again, in Larcher v Dunleavy (No 2) (1938), AR (NSW) 548 the Full Industrial Court in upholding a decision of Ferguson J expressed a like view for reasons not dissimilar from those which commend themselves to me. The only authority (the existence of which was responsible for the order nisi’s being returnable before this Court) to which we have been referred and which would suggest that the view which prevailed in the Court below might be correct is a decision of this Court in Wood v Pfeiffer, [1925] VLR 167. However, having examined the report of the case, I am persuaded that the Court was there dealing with a different section and a different Act, and, in consequence, it can afford no binding authority as to the correct interpretation of the section which now falls for construction. In any event, it appears that the view which was expressed by the Court in this connection was clearly obiter and apparently expressed without argument having been heard upon the matter.
In consequence I should not be disposed to accept the opinion referred to in that case as governing the decision that is for determination in the present motion”.
To the authorities referred to by Crockett J in his judgment in Benwell v Gottwald might be added the decision of Neaves J in Kelly v Watson ((1985) 10 FCR 305) and of the Full Court of the Federal Court (Morling, Jenkinson and Heerey JJ) in Aban v Minister for Immigration, Local Government and Ethnic Affairs ((1991) 31 FCR 93) – a decision relating to an instrument of delegation by a Minister who had thereafter ceased to hold office – each of which decisions was to the effect that an instrument of delegation would continue to have a valid operation after the delegator ceased to hold office.
I would therefore reject this ground of appeal.
Grounds 2, 5, 6, 7, 8(c) (e), 11
Given that Mr Brereton did not seek to develop these grounds of appeal, I do not consider that anything more is called for than for me to indicate that I would reject each one of them.
Orders
For the reasons which I have recorded above, I would propose that the appeal be dismissed.
SULLY J: I agree with Powell JA.
BELL JA: I agree with Powell JA.

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LAST UPDATED: 05/02/2002