R v Gust

[1999] NSWCCA 265

CITATION:	R v Gust [1999] NSWCCA 265
FILE NUMBER(S):	CCA 60651 of 1997
HEARING DATE(S):	29/07/1999
JUDGMENT DATE:	22 October 1999
PARTIES :	Colin Alfred Gust (appellant) Regina (respondent)
JUDGMENT OF:	Dunford J at 1; Hidden J at 25; Smart AJ at 62

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/31/0137
LOWER COURT JUDICIAL OFFICER:	Nader DCJ

COUNSEL:	C. Bruce (appellant) C.K. Maxwell (Crown)
SOLICITORS:	Legal Aid Commission (appellant) Director of Public Prosecutions (Crown)
CATCHWORDS:	CRIMINAL LAW - sexual assault - whether verdict unreasonable - directions on recklessness as to consent and complaint - whether warning about complainant's evidence required
ACTS CITED:	Crimes Act 1900 Evidence Act 1995
CASES CITED:	R v Hemsley (1988) 36 ACrim R 334 Pemble v The Queen (1971) 124 CLR 107 Gallagher v The Queen (1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 R v D (1996) 86 ACrim R 41 M v The Queen (1994) 181 CLR 487 R v Kitchener (1993) 29 NSWLR 696 Tolmie (1996) 84 ACrim R 293 Crofts v The Queen (1996) 186 CLR 427 R v Lemura (CCA unreported 18 December 1998) Papakosmas v The Queen [1999] HCA 37 R v Davis [1999] NSWCCA 15 R v Murray (1987) 11 NSWLR 12 R v Zafiris (CCA unreported 14 September 1998) R v Vawdrey (CCA unreported 16 April 1998)
DECISION:	Appeal dismissed (by majority)

IN THE COURT OF
CRIMINAL APPEAL

60651/97

DUNFORD J
HIDDEN J
SMART AJ

Friday 22 October 1999

R v Colin Alfred GUST
JUDGMENT

1 DUNFORD J: This is an appeal by Colin Alfred Gust against his conviction in the District Court at East Maitland, following his trial before his Honour Acting Judge Nader QC and a jury on a charge of sexual intercourse without consent contrary to s 61I Crimes Act 1900. The appellant also seeks leave to appeal against the sentence of a minimum term of 3 years penal servitude with an additional term of 3 years imposed on him following his conviction. The offence carries a maximum penalty of 14 years penal servitude. 2    The facts of the matter are sufficiently set out in the judgment of Hidden J, which I have had the advantage of reading in draft form. For the reasons given by his Honour, I am not satisfied that this is a case where the jury acting reasonably ought to have had a reasonable doubt and accordingly the ground of appeal that the conviction is unreasonable and cannot be supported by the evidence has not been made out. 3    However, I am not satisfied that there should be a new trial because of the direction given by the trial judge on recklessness in relation to consent.

Directions on Recklessness

4 Some time was spent by counsel on the hearing of the appeal discussing whether there was or was not any basis for the jury to conclude that the appellant was reckless as to whether the appellant was consenting. Not having seen the witnesses nor heard the addresses, but having only read the evidence and with no idea of what was said in the addresses, I would not be prepared to say that there was no basis on which recklessness may have become an issue. For all we know one or other counsel may have referred to the issue in their addresses (neither counsel on the appeal appeared at the trial). 5 Section 61R(1) sets out the effect of recklessness in relation to knowledge of lack of consent, and in my experience a direction as to recklessness is generally given whenever consent or knowledge of consent is an issue, unless both counsel agree that it is inappropriate: R v Hemsley (1988) 36 A Crim R 334 at 338 (although that was a case where recklessness could have loomed large in the jury's deliberations). Considering that a trial may miscarry for failure to give directions about issues which are open on the evidence, whether raised by either party or not: Pemble v The Queen (1971) 124 CLR 107 at 117-8, I would be reluctant to hold that an appellant was entitled to a new trial merely because the judge gave a direction (concurred in by both sides) which in the calmer, more remote and detached atmosphere of this Court, was considered unnecessary; and I know of no authority which compels me to hold otherwise. 6 Counsel for the appellant referred us to R v Kitchener (1993) 29 NSWLR 696 at 697, 703, and R v Tolmie (1996) 84 A Crim R 293 at 298, 309, but although the view was there expressed that the direction on recklessness were unnecessary, it was not held (nor even argued) that giving the direction itself constituted an error of law entitling the appellant to a new trial. 7 In any event, no objection was taken by trial counsel either to the giving of the direction nor to its form when originally given nor when repeated in answer to the jury's question, and indeed both counsel expressly concurred in it (SU 45). Accordingly Rule 4 applies, the point is without merit and I would refuse leave to argue it.

Complaint

8 It was also submitted that the trial judge erred in his directions relating to complaint in that, although he told the jury that prompt complaint may enhance a complainant's credibility, and went on to direct them (in accordance with s 405B(2)) that delay did not necessarily indicate that the complainant's allegation was false and there might be good reasons why she might hesitate before complaining, he failed to balance the statutory direction by a direction that the delay could adversely reflect upon her credibility and R v Lemura (CCA - 18 December 1998) was referred to. 9    Once again no objection was taken or re-direction sought at the trial and consequently Rule 4 applies, unless it can be shown that the misdirection has resulted in a miscarriage of justice. Moreover, the delay in this case was only three to four hours, during which the complainant said that she was shocked, locked the doors, had a beer and a number of showers; and as Hidden J has observed at [41] such delay can be considered "entirely understandable", whereas the delay in Lemura was (on the evidence) some four months, and in many other cases it has been considerably longer. In these circumstances it may be that delay in complaint did not loom large in defence counsel's address to the jury; for a woman who has just been raped by her cousin on Christmas Day, to lock herself in her house, feel shocked, have a beer and a number of showers before telephoning her sister may have been felt by defence counsel as more likely to provoke sympathy for the complainant rather than doubts about her credibility. Judges do not sum up in a vacuum but in the light of the evidence and the addresses, and once again it is unfortunate that a transcript of the addresses is not available to this Court. 10    Finally, it is important to have regard to the substance of what his Honour did actually say. He said (at SU 28):

"Now, members of the jury, with this and other evidence of complaint of the assault to other people you may use this, not as evidence of the fact of the assault but to show consistency between her present claim to have been assaulted in this way and the behaviour. It is consistent, as the Crown said to you, that if a woman attacked in this way complains about it shortly afterwards the complaint is consistent with the fact that the assault occurred.
And it may not be said in a court case, I have to tell you, but it may be thought by a person that if a person suffers a serious assault and does not mention it to an intimate friend or mother or aunty or something when the opportunity arises shortly after, that may in fact raise a question mark in your mind. This has the opposite effect. It can go to her credibility as a witness. I do not know whether that is clear."

and at SU 29:
"There was a three or four hour delay before any complaint was made. Now, my direction to you is this in accordance with the Section 405B of the Crimes Act. If there is evidence of a delay in making a complaint the judge shall warn the jury, and that is what I am doing now, to the effect that delay in complaining does not necessarily indicate that the allegation is false. And I should inform you, according to the Act, and I do so, that there may be good reasons why a victim of a sexual assault may hesitate in making a complaint about the assault."

11    The direction in my view made it plain:

(a) Evidence of complaint could be used to show consistency with the fact that she had been assaulted;
(b) If a person suffers a serious assault and does not complain when the opportunity arises shortly after, that may raise a doubt as to her credibility as a witness;

(c) In this case the delay before complaint was three to four hours;

(d) Delay in complaint does not necessarily indicate that the allegation is false; and

(e) There may be good reasons why the victim of a sexual assault may hesitate in making a complaint.

12    The jury could have been in no doubt that, whereas a prompt complaint tended to support the complainant's credibility, delay could diminish such credibility. The ground is without merit and I would refuse leave under Rule 4. 13    Actually, in relation to complaint, the appellant received directions more favourable than he was entitled to because his Honour directed the jury that they could only use the evidence of complaint to show consistency on her part and thus supporting her credibility but not as evidence of the fact of the sexual assault, whereas it has now been established in Papakosmas v The Queen [1999] HCA 37 that evidence of a complaint, at least if made promptly (and I would regard this complaint as made promptly) can be taken into account by the jury as evidence of the facts complained of.

Warning about Complainant's Evidence

14    I agree with Hidden J that in the light of the medical evidence this is a case where there was supportive evidence for the complainant and a direction in terms of, or similar to, R v Murray (1987) 11 NSWLR 12 at 19 was not essential. Once again the actual terms of the summing up bear close examination. At SU 18-19 his Honour said:

"Second element, am I satisfied beyond reasonable doubt that he did so without her consent? Now I am going to assume that that is the active or live issue in this case. That is where you are going to have to consider the evidence very seriously and in conjunction with one another. Am I satisfied beyond reasonable doubt that he did so without her consent? Ordinary English words, without her consent. Of course she testified that it was without her consent. He testified that it was with her consent, but your task is to decide whether you are satisfied beyond reasonable doubt that it was without her consent. It is not, if I may say so, a question of choosing between the most likely of two alternatives, it is a question only of saying, am I satisfied beyond reasonable doubt of the existence of the element?"

and at SU 38:
"Members of the Jury, the two cases are manifestly obvious in the sense that what each side contends is very clear to you. Both sides agree that there was intercourse. One side has it clearly as non-consensual intercourse. The other side has the opposite. The burden of proof is on the prosecution. It is not a question again of just saying which is the most likely version. In truth you have to be satisfied beyond reasonable doubt in relation to consent and the lack of consent and the knowledge of lack of consent of the version of the prosecution " (my italics).

15    In the light of these directions, the jury could have been in no doubt that it was essential that they be satisfied beyond reasonable doubt that what the complainant was saying was true. Once again no re-direction was sought, Rule 4 applies and I would refuse leave.

Failure to Call Character Evidence

16    Ground 4 of the Amended Grounds of Appeal was:

The trial miscarried by reason of the failure of trial counsel to adduce appropriate evidence of the appellant's good character.

17    In support of this ground, three affidavits were read, namely those of trial counsel, Wayne Glenn Warwick, the proposed character witness, Wayne Allen Dunstan and a formal affidavit of David Phillip Barrow, a solicitor employed by the Legal Aid Commission. 18    Mr Dunstan said in his affidavit that he had known the appellant since 1968, they had been working and taking holidays together, that he became aware of the allegations in this case, and early on in the proceedings provided the appellant with a written character reference. He said that, by arrangement with the appellant, he attended East Maitland Court on 15 September 1997 and was introduced to the appellant's counsel, Mr Warwick, but that they did not discuss the evidence he could give. When the case was adjourned he waited in Sydney until Thursday 18 September, by which time no date for the trial had been allocated and he returned to Cairns to attend to his business. He told the appellant that if the case was to be heard in the following week or two he would not be able to come down because of the expense. He received no further request to attend the proceedings, but would have been able to come down if the trial had been adjourned for a reasonable time. He also said that he would have given evidence that in his opinion the appellant is a man of good character, an honest person, not prone to lying and unlikely to have behaved in the manner described by the complainant in the proceedings. Mr Dunstan has no previous convictions and has been a Justice of the Peace since 1984. 19    In his affidavit, Mr Warwick said that in February 1997 in conference with the appellant, he had informed him of the significance of character evidence and suggested he should get character witnesses who knew him well and were able to be called at his trial. But the appellant then told him that he did not want people in his home town to know of the charges. At other times leading up to the trial he again raised with him the question of calling character witnesses. He agreed that the matter was listed for hearing on 15 September 1999 but on that day was adjourned (presumably not reached). He did not recall meeting Mr Dunstan at the court house on 15 September 1997, he told the appellant that his character witnesses should be at court on the adjourned date, but when the trial commenced on 22 September the appellant had no character witnesses present or available to his knowledge. He raised this with the appellant and was informed to proceed without them. He said to the appellant that if he raised character the Crown were going to raise the appellant's Victorian criminal history and he understood that his instructions were not to raise character. 20    It was submitted on behalf of the appellant that, not only was Mr Dunstan not called nor an adjournment sought so that he could be present, but no questions were asked of the detective in charge of the case, Detective Hogbin, to the effect that the appellant had no relevant prior convictions, his only prior convictions being in Victoria in 1972 for wilful damage and maliciously kill dog; and that as a result he was deprived of having the jury take into account his good character, not only on the question of guilt or innocence, but also on the question of his credibility when he denied the offences on oath. 21    This is not a case of new or fresh evidence: Gallagher v The Queen (1986) 160 CLR 392 or Mickelberg v The Queen (1989) 167 CLR 259, as the evidence was known and (subject to Mr Dunstan returning from Cairns) available at the time of the trial, but rather the argument is put on the basis of the incompetency of counsel in failing to raise a relevant issue or to advise his client to seek an adjournment so that Mr Dunstan could appear. Expressed more fully (and accurately), the appellant complains that his counsel's failure to call that evidence or seek an adjournment led to a miscarriage of justice. Unless the error made by counsel (by act or omission) was of such a nature to lead to a miscarriage, this Court will not interfere with the exercise by counsel of their discretion as to the manner in which criminal proceedings are conducted: R v D (1996) 86 A Crim R 41 at 42 and cases there cited. It is not enough to show that there was some evidence known to exist which was in fact not called: ibid at 45. 22 In my view, evidence of prior good character is of limited assistance in cases of sexual assault, because such offences are usually committed in private and one's friends and business associates are not aware of the conduct. This is a very different case to R vD where there was no corroboration of the complainant, the Crown case was much weaker than the present, the character evidence was far stronger and its effect in bolstering the accused's credibility would have been significant. Moreover, in this case the uncontradicted evidence of Mr Warwick is that his instructions were to proceed without character witnesses and not to raise the issue of character. I am not satisfied that the failure to raise character in this case led to any miscarriage of justice or that the position was not sufficiently explained to the appellant before he gave his instructions. The ground has not been made out.

Sentence

23    Although the appellant was a middle aged man of relevantly prior good character, this was a serious sexual assault on a woman in her own home in circumstances where she had befriended him as a relative for social contact on Christmas Day. The offence carries a maximum penalty of 14 years penal servitude. His Honour imposed a total sentence of 6 years, and in doing so took into account all relevant factors which could be put in favour of the appellant. He also found "special circumstances", and reduced the minimum term accordingly. In my opinion this sentence was well within the range of a proper exercise of the sentencing discretion.

Conclusion

24    For these reasons, on the appeal against conviction I would dismiss the appeal and confirm the conviction and on the application for leave to appeal against sentence, I would grant leave to appeal but would dismiss the appeal and confirm the sentence.

25    HIDDEN J: The appellant, Colin Alfred Gust, was found guilty of a charge of sexual intercourse without consent after a trial at the District Court at East Maitland. He was sentenced to penal servitude for six years, comprising a minimum term of three years and an additional term of three years. He has appealed against his conviction and seeks leave to appeal against his sentence.

The Crown case

26    At the relevant time, the complainant was a woman in her early thirties and the appellant was in his mid-forties. Although they were cousins, they had known each other for only a matter of months previously, having met on two occasions at the home of the appellant’s mother. 27    In the afternoon of Christmas Day, 1995 the appellant visited the complainant at her home at Paxton in the Hunter region. They spent some time together, conversing and drinking beer. According to the complainant, later in the afternoon he said something about her and her two sisters, the effect of which was that he found them attractive. He decided to leave in the early evening. At the front gate of the property he made a crude remark of a sexual nature about the complainant’s sister, Karen. She punched him, causing his nose to bleed. She returned inside the house and he followed her. He asked her for something to wipe his nose with and she gave him a towel. 28    She walked to her lounge room door, waiting for him to leave. He came towards her and pushed her into her bedroom, which adjoined the lounge room. He said, “It’s not you I want but you’ll do for now.” She remonstrated with him, calling him “a fucking jerk”. He pushed her onto the bed, and held her down with one hand while he undid his jeans with the other. He pushed her dress up to her stomach and removed her underwear. She said to him, “Stop it, get off”, in an hysterical tone. He slapped her to the left side of her head with an open hand. He penetrated her vaginally, causing her pain. She tried to remove him by pushing on his chest. He withdrew at the last minute and ejaculated on her stomach. 29    He left the house, and she remained on the bed for some time. She got up, locked the doors, wandered about the house and showered several times. She drank some more beer. She was aware that her immediate neighbours were out, visiting relatives. Eventually, some three to four hours after the appellant had left, she rang her other sister, Mrs Lindy Zarb, who lived at South Grafton. She was obviously upset and complained that the appellant had raped her. Her sister advised her to phone their aunt, Mrs Hilda Craft, who lived not far from the complainant’s home. She did so, again complaining that she had been raped by the appellant. Mrs Craft also could hear that she was distressed. In company with her grandson, she drove immediately to the complainant’s home. 30    Later that night, the complainant was interviewed by police and in the small hours of the following morning she was examined by a doctor. The doctor observed some red swelling, which she believed to be recent, at the side of her left eyebrow. She considered this injury to be consistent with the open handed slap by the appellant which the complainant had described. She also found the complainant’s stomach to be tender and observed a graze on the inner opening of her vagina. That also she considered to be a recent injury, suggesting forceful penetration when the genital area was not adequately lubricated. She agreed that it was not necessarily inconsistent with vigorous consensual intercourse with a woman who was not fully aroused. 31    The doctor also observed bruising on the back of the complainant’s legs and on her lower back which, from its appearance, may not have been recent. I shall turn shortly to the significance of that observation.

Defence case

32    The appellant gave evidence, adhering to the account which he had given to police when he was interviewed on the day after the alleged offence. He said that during the afternoon at the complainant’s home the conversation turned to their fathers, both of whom are deceased, and they held hands. She kissed and hugged him, and they both became aroused. They went to the bedroom and engaged in foreplay. She asked him to use a condom but he expressed reluctance to do so. In evidence, he said that he asked her if she had a condom as he did not, and she became angry. To the police he said that the cause of her anger was the fact that he mistakenly addressed her by the name of one of her sisters. Whatever the reason, she struck him and it was on this occasion that she caused his nose to bleed. He left, but as he walked out the front gate she apologised and invited him back inside. 33    After he returned to the house the conversation turned to the complainant’s boyfriend, from whom she was estranged at the time. She complained that he was violent to her, and lifted her dress to show the appellant bruising which he had caused. His description of where those bruises were was imprecise, but it was not inconsistent with the older looking bruising which the doctor described. In her evidence, the complainant agreed that she had talked about her boyfriend’s violence but denied that she had lifted her dress to show the appellant the bruises. 34    Eventually, the complainant led the appellant back to her bedroom, where they engaged in foreplay and consensual intercourse. She allowed him to penetrate her without a condom after he assured her that he was “clean” and that he would ejaculate outside her. This he did.

Unreasonable verdict?

35    In this Court the appellant was represented by Mr Bruce of counsel, who did not appear at the trial. It is appropriate to deal first with a ground of appeal that the verdict is unreasonable in the sense that, on the whole of the evidence, the jury ought to have entertained a reasonable doubt about the appellant’s guilt. The familiar principles governing the Court’s approach to such a ground of appeal were explained by the High Court in M v The Queen (1994) 181 CLR 487. 36 Mr Bruce relied on a number of matters in support of this ground. Firstly, the history provided by the complainant to the doctor was inconsistent with her evidence in several respects. She told the doctor that the appellant had “forced the doors back” before pushing her into the bedroom, that he had “ripped her clothes off”, and that he had forced his knees into her body while she was on the bed. She had said none of these things in evidence, although it may be that her reference to his having ripped her clothes off was simply a dramatic way of describing his pushing up her dress and removing her underwear. 37 I do not consider that these inconsistencies are of any importance. What is more significant is that she told the doctor that the appellant had tried to put his penis into her mouth. She made no such allegation in evidence nor, apparently, in her statement to the police. 38 Secondly, Mr Bruce relied upon the appellant’s evidence, which the complainant denied, that she had lifted her dress to show him bruising caused by her boyfriend. Clearly, there was such bruising. The argument was that the appellant could not have seen it otherwise than in the circumstances as he described them, because it was most unlikely that he would have seen it in the course of the alleged sexual assault. 39 Thirdly, Mr Bruce referred to the fact that the appellant gave a thorough, exculpatory account to police when first spoken to, before any detail of the complainant’s allegations had been put to him. His description of a number of the surrounding circumstances was consistent with the complainant’s own account. 40 Finally, Mr Bruce argued that the evidence of complaint did not advance the Crown case, given the lapse of some hours before any complaint was made. He referred to her age and the fact that, on any view of the evidence, she did not shrink from striking the appellant when he offended her, demonstrating that she had no difficulty in asserting herself. In the circumstances, it was argued, one would have expected her to complain more promptly. 41 These are significant matters favouring the defence case, but they do not persuade me that the verdict is unreasonable. In evidence, the complainant did not recall what she had told the doctor. She added that she had been drinking before she saw her, although she was not drunk. She could not explain the delay in complaining after the appellant had left other than to say that she was shocked. Nevertheless, as a matter of ordinary human experience, I consider that delay to be entirely understandable. More importantly, there was significant confirmation of her account in the doctor’s observation of injuries to her face and her genital area. 42 Whilst it is the duty of this Court to make its own assessment of the evidence, due respect must be afforded to the jury’s function as the tribunal of fact and the undoubted advantage the jurors had of hearing and observing the witnesses. Credibility, particularly of the complainant and the appellant, loomed large. In all the circumstances, it cannot be said that the jury, acting reasonably, ought to have had a reasonable doubt. Let me turn, then, to the other grounds of appeal.

Directions on recklessness

43 The trial judge directed the jury about the elements of the crime of sexual intercourse without consent, including knowledge on the part of the appellant that the complainant was not consenting. His Honour went on to give a direction about recklessness as to consent in accordance with s61R(1) of the Crimes Act. In the course of explaining that concept, his Honour said: “… it puts you at your peril if you are going to have sexual intercourse with someone to take the trouble to know whether they are consenting or not…” His Honour concluded:

So when I speak about the third element and when I say that you must be satisfied beyond a reasonable doubt that the accused knew you must give it that extended meaning, either knew, actually knew, or was reckless about it whether she was consenting or not.

44    After they had retired to consider their verdict, the jury sought his Honour’s further explanation of the notion of “reckless consent”. His Honour gave a further direction, which included the following:

Now you can either find affirmatively that the accused knew that the victim was not consenting, that of course is the end of the matter. Or you may find that you cannot answer that question, but that you can be satisfied that the accused was reckless as to whether the person was consenting or not, just did not care whether the person was consenting or not.

45    Counsel for the appellant at the trial did not complain about the fact that a direction on recklessness was given or about the terms of it. Nevertheless, Mr Bruce submitted that his Honour fell into error in two respects. Firstly, no direction about recklessness should have been given as the issue did not arise on the evidence. Secondly, even if the issue did arise, his Honour failed to explain to the jury how it did, so as to relate his directions of law to the evidence. 46    In sexual assault cases a direction about recklessness should not be given as a matter of course, and should be confined to cases where the evidence raises that issue. So much was recognised by this Court in R v Kitchener (1993) 29 NSWLR 696, per Kirby P at 697 and Carruthers J at 703, and Tolmie (1996) 84 A Crim R 293, per Kirby P at 298 and Newman J at 309. In both those cases the court considered that no miscarriage of justice had occurred because the direction was given when it was not called for, but it appears that in neither was that proposition argued. In each case the submission was that the direction was erroneous, not that it should not have been given at all. 47 In the present case it is difficult to see how a question of recklessness arose. On the complainant’s evidence, she clearly did not consent to sexual intercourse. On the appellant’s account, she clearly did. Significantly, at the end of his summing-up his Honour encapsulated the issue in this way:

Members of the Jury, the two cases were manifestly obvious in the sense that what each side contends is very clear to you. Both sides agree that there was intercourse. One side has it clearly as non-consensual intercourse. The other side has the opposite.

48    His Honour sentenced the appellant on the basis that he had been reckless about the complainant’s consent. He appears to have been influenced in that approach by the jury’s question to which I have referred, adding that it was possibly a “case of recklessness”, although he thought it “quite unlikely”. With respect, it is difficult to see how his Honour could properly have approached the question of sentence on that basis. Prior to passing sentence he placed on record the facts of the offence as he found them. They were consistent with the complainant’s evidence and, on her account, no question of recklessness could have arisen. 49    In this Court, the Crown prosecutor submitted that the issue was raised by the appellant’s own version of events. According to him, the first episode of intimacy in the bedroom ended with the complainant becoming angry, either because he had used the name of one of her sisters or because of their exchange about a condom. When intercourse did occur later, it was without a condom. Is it likely, asked the Crown prosecutor, that the complainant would have consented to unprotected intercourse at that stage when she was not prepared to engage in it earlier? It was open to the jury, he argued, to give the appellant the benefit of the doubt about much of his account and yet to be satisfied that, in all the circumstances, he penetrated the complainant indifferent to her consent. 50    I consider this to be a very strained view of the evidence, and one which would not reasonably have been available to the jury. On the appellant’s version, it was the complainant who initiated the second intimate episode during which intercourse took place. Even if the view propounded by the Crown prosecutor were open, his Honour did not refer to it at any stage of the summing-up. Indeed, it does not appear to have been any part of the Crown case at the trial. I think there is force in Mr Bruce’s submission that the passages in the summing-up which I have extracted in par19 of these reasons could have led the jury to the erroneous view that there was some positive duty on the part of the appellant to enquire of the complainant whether she consented to intercourse. 51    The jury were left with a direction in law about recklessness, but were given no guidance about its possible bearing on the evidence in the case. Their question, I suspect, was the result of understandable bewilderment about a matter which they were not prepared to dismiss as insignificant. In my view, leave should be granted to argue this ground and it has been made out. These directions could well have given rise to a miscarriage of justice, and there must be a new trial. 52    Mr Bruce submitted that the Court should enter verdict and judgment of acquittal, because the event giving rise to the charge is now almost four years old and the appellant has served more than half of the minimum term imposed upon him. However, given the seriousness of the charge, I am satisfied that a new trial should be ordered. Should the appellant be found guilty upon the re-trial, the period he has spent in custody would be taken into account in determining the appropriate sentence. 53    Strictly speaking, that is sufficient to dispose of the appeal. However, it is necessary to comment on two other grounds of appeal, as the issues raised by them will need to be considered in the re-trial.

Complaint

54 One of the grounds of appeal is that the trial judge erred in his directions to the jury about the evidence of complaint. Although I find it unnecessary to decide this ground, what I am about to say fortifies me in my view that the interests of justice would be served by a new trial. 55 His Honour gave the jury the conventional common law direction about complaint, that is, that it was evidence bearing upon the complainant’s credibility. In the light of the delay of some hours before complaint was made, his Honour went on to direct the jury, in accordance with s405B(2) of the Crimes Act, that that delay did not necessarily indicate that the complainant’s allegation was false and that there might be good reasons why she might hesitate before complaining. Mr Bruce argued that his Honour failed to balance that statutory direction by a direction that the delay could reflect adversely upon her credibility: cf Crofts v The Queen (1996) 186 CLR 427, Reg v Lemura (CCA, unreported 18 December 1998). 56    Since this appeal was argued the High Court has handed down its decision in Papakosmas v The Queen [1999] HCA37. In the light of that decision, it is now clear that in the present case the evidence of complaint, being made at a time when the event must have been fresh in the complainant’s memory, is admissible as an exception to the hearsay rule under s66(2) of the Evidence Act. Accordingly, it is admissible as evidence of the fact complained of, not merely as material bearing upon the complainant’s credibility. That being so, however, it would be the subject of an appropriate warning to the jury: s165(1)(a) of the Evidence Act. 57 This does not alter the fact that the delay in complaint requires a direction under s405B of the Crimes Act. That section was inserted into the Act at a time when evidence of complaint was still governed by the common law and, no doubt, was drafted upon the assumption that complaint evidence went to credibility only. Nevertheless, evidence of complaint sufficiently recent to be admissible under s66 of the Evidence Act may still have a bearing on credit: cf Reg v Davis [1999] NSWCCA 15, per Wood CJ at CL at par 35. No doubt, at a re-trial the appellant would submit to the jury that the delay in complaint reflects adversely upon the complainant’s credibility. Fairness would require that a direction under s405B should be balanced by the observation that the delay may do just that.

Warning about complainant’s evidence

58    Mr Bruce also submitted that, as the Crown case depended almost entirely upon the complainant’s evidence, the jury should have been directed to scrutinise that evidence with great care. He relied upon the familiar passage from the judgement of Lee J (as his Honour then was) in R v Murray (1987) 11 NSWLR 12 at 19:

In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in…

59    Lee J’s observation was directed to trials in which the Crown case was dependent upon the evidence of one witness, unsupported by any other evidence in the case. It has been held that such a direction was not called for in cases where there was such supportive evidence (even though it might not have amounted to corroboration in the strict sense): R v Zafiris (CCA, unreported 14 September 1998) per Powell JA at pp31-5; R v Davis (supra) per Wood CJ at CL at paras 19-21. In the light of the medical evidence, this is such a case and it is not immediately apparent that a Murray direction was called for. 60    This is not to deny that there may be cases in which such a direction should be given even though there is evidence providing some support for the account of the principal witness. Such a case was R v Vawdrey (CCA, unreported 16 April 1998): see the judgment of Smart J at pp8-9, 17-18. The matter should not be approached with rigid preconceptions about when a direction might be required. The evidence in each case must be assessed with an eye to ensuring a fair trial. Whether a direction is called for at the appellant’s re-trial would need to be determined in the light of the evidence as it unfolded.

Orders

61    I would propose that the appeal be allowed, the conviction quashed and a new trial ordered.
62    SMART AJ: The facts and contentions are sufficiently set out in the reasons of my colleagues. For the reasons given by Hidden J, I too am not persuaded that this is a case where the jury acting reasonably ought to have had a reasonable doubt. The ground of appeal that the conviction is unreasonable and cannot be supported by the evidence has not been established. 63    I agree with the reasons of Dunford J on the other grounds of appeal but I wish to add a few comments. 64    On reading the transcript, my initial reaction was that this was a case where recklessness about consent was either not a real issue or one on the periphery of the case. The facts seemed to raise an issue of whether the complainant did not consent and the appellant knew that she was not consenting. However, it was a case where events unfolded over a period of time. She received him into her home but they were related. 65    In the absence of the addresses, this Court does not know what, if anything, was said about recklessness by counsel. Perhaps it was touched upon in passing and mentioned for the sake of completeness. More could have been said. Nor does this Court know what impressions the witnesses made or how they gave their evidence. Despite my considerable reservations, it is hard to rule out recklessness completely because of the limited materials which are available. 66    The jury did ask for an explanation of recklessness and in his remarks upon sentence the judge stated that he thought that it was really possible that this was a case of recklessness although he thought it was quite unlikely. In expressing this view the judge took into account the question the jury asked during its deliberations. The judge then said that he thought it was proper to sentence the appellant on the basis that there was no actual knowledge of lack of consent but deemed knowledge within the section that deals with recklessness. He regarded recklessness as very serious but slightly less serious than having actual knowledge of lack of consent. The judge thus sentenced on a basis favourable to the appellant. 67    It seems that both parties were content for the judge to leave the issue of recklessness to the jury. The judge furnished counsel with draft directions prior to their addresses (Tr 25 September 1997 at pp 4 and 30). There was no objection. This was followed by discussion between counsel and the judge as to the use to be made of the complainant's evidence. The judge restricted its use and also indicated the direction he was going to give as to the assessment of the witnesses. 68    It was submitted that on the recklessness point the judge did not sufficiently relate the law to the facts. At SU15-16, the judge explained what was meant by "recklessness". He explained the matter further in answer to the jury's question at SU44-45. The Crown prosecutor and counsel for the appellant expressed themselves as satisfied with the direction given. I think that the directions given were, in the circumstances, sufficient. 69    The force of the views expressed by Hidden J is appreciated. However, even if recklessness was incorrectly left to the jury, this did not cause a miscarriage of justice. 70    There is no substance in the submissions as to delay. A mature woman was forced to have intercourse with a male relative in her own home. She was on her own and it was in the evening. She felt the need to take a number of showers, to allow for the shock, to gather her forces and to endeavour to gather some composure. No point can be made that her taking three to four hours to telephone her sister and her aunt adversely affected the reliability of her complaint and her credibility. 71    The appeal should be dismissed.

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