R v JGW

[1999] NSWCCA 116

CITATION:	R v JGW [1999] NSWCCA 116
FILE NUMBER(S):	CCA 60036/98
HEARING DATE(S):	13/5/99
JUDGMENT DATE:	23 June 1999
PARTIES :	Crown JGW
JUDGMENT OF:	Wood CJ at CL; Barr J; Greg James J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Coleman DCJ

COUNSEL:	P.G. Berman (Crown) A. Haesler (Appellant)
SOLICITORS:	DPP Legal Aid
CATCHWORDS:	CRIMINAL LAW - offences - homosexual intercourse - attempted homosexual intercourse - indecent assault;; CRIMINAL LAW - directions to jury - directions as to delay in complaint - directions as to unreliability of complaint evidence;; CRIMINAL LAW - directions to jury - directions on lies;; CRIMINAL LAW - verdicts - "unsafe and unsatisfactory";; CRIMINAL LAW - sentencing - principle of totality;; CRIMINAL PRACTICE AND PROCEDURE - amendment of indictment - discretion of judge;; EVIDENCE - admissibility - tender of ERISP video interview;; EVIDENCE - credibility and weight
ACTS CITED:	Crimes Act 1900 (NSW) ss 78H, 78I, 78J, 78K, 61M(2), 61M(1), 365 Evidence Act 1995 ss 55, 56, 90, 102, 135, 136, 137
DECISION:	(1) Appeal in respect of count 4 allowed and conviction for that count quashed. In lieu, a conviction in respect of an offence of homosexual intercourse with a male person aged ten years or above but under the age of eighteen years substituted; ; (2) Leave granted to appeal against sentence; ; (3) Sentence in respect of count 4 quashed. In lieu, appellant sentenced in respect of that count to a fixed term of penal servitude of eighteen months; ; (4) Otherwise, appeal against conviction and sentence dismissed.;

IN THE COURT OF
CRIMINAL APPEAL

No. 60036 / 98

WOOD CJ at CL
BARR J
GREG JAMES J

WEDNESDAY 23 JUNE 1999

REGINA v JGW

The appellant was found guilty on three counts of homosexual intercourse with a male person under ten, one count of an attempt at that offence, one count of homosexual intercourse with a male person between ten and eighteen, and one count of indecent assault of a person under sixteen. He appealed the convictions.

HELD (allowing the appeal on one count; otherwise dismissing the appeal):

Ground 1 - amendment of indictment
(1) The trial judge did not err in allowing an amendment to counts 2 and 3 as to the times particularised and in directing verdicts of acquittal in relation to two counts for which an amendment was refused. With respect to the latter counts, there was objective evidence available to the defence to show that the offences could not have occurred within the period charged. The time of the offences was vital to the defence in respect of those two counts but it was not so in relation to the remaining counts.
Westerman (1991) 55 A Crim R 353; MacDonald (1995) 84 A Crim R 508; Pfizner (1976) 15 SASR 171; VHP (NSWCCA, 7 July 1997); S (1989) 168 CLR 267, considered.

(2) The inability of a complainant to be precise about dates does not necessarily lead to an unfair trial, although it may call for suitable directions to be given. The present case is typical of many cases involving allegations of sexual assault, where the details of the assault are clear in memory but the precise timing is not. The court was unable to conclude that vagueness as to precise dates resulted in unfairness to the appellant in allowing counts 2 and 3 to remain.
Kennedy (NSWCCA, 9 December 1998), considered.

Ground 2 - allowance of ERISP into evidence
(3) The Crown was not bound to accept the offer of bare admissions in lieu of the tender of the ERISP, where the latter contains relevant evidence, as was the case here. The fact that formal admissions were offered or made does not, of itself, preclude the Crown from adducing further evidence on the issues the subject of the admissions.
Smith (1981) 1 NSWLR 193; Popovic (NSWCCA, 25 March 1996), considered.

(4) There was no risk of prejudice or unfairness associated with tender of the ERISP in video form. The appellant appeared polite and cooperative; his denial of the actual offences alleged was explicit; and, contrary to his counsel’s submission, he did not appear inarticulate or unable to respond to questions.
Plevac (1995) 84 A Crim R 570; BFM (NSWCCA, 6 February 1996); Graham [1998] HC 56, considered.

(5) Nor was it sensible to edit out the questions and answers that amounted to denials of the specific incidents alleged. To have done so would have produced a distorted interview, and operated unfairly to the accused.

Grounds 3 & 3A - directions on complaint evidence
(6) Admissibility: it was clearly permissible for the Crown to seek and be given leave to prove the precise circumstances in which the complaint emerged, in the light of the cross-examination of the complainant which suggested that he had invented the complaint with the encouragement of his mother.
Graham (1998) 72 ALJR 1491; Papakosmos (NSWCCA, 10 December 1997), considered.

(7) So far as the direction, given in relation to the evidence of the complainant’s mother, under s 165 might be understood as suggesting that the evidence was available as hearsay proof of the fact asserted, it accorded with the law as stated in BD, at the time of trial, and as now awaits review by the Hight Court in Papakosmos. Until or unless this Court is held to have been in error in this approach, it is inappropriate to intervene in this situation.
BD (1997) 94 A Crim R 131, considered.

(8) Direction on delay in complaint: when read in light of the summing up as a whole, the balance was restored in accordance with Crofts, with the consequence that the jury were sufficiently instructed as to the manner in which delay may impact on the complainant’s credibility.
Crofts (1996) 186 CLR 427; DJK (NSWCCA, 8 October 1998); Davies (1985) 3 NSWLR 276; Lemura (NSWCCA, 18 December 1998), considered.

(9) While his Honour could usefully have referred, in a little more detail, to the effect of delay in complaint, in accordance with Longman, no specific difficulties were identified that may have affected the appellant’s ability to test the prosecution evidence. Nor did experienced trial Counsel make any request for a further warning.
Longman (1989) 168 CLR 79; Johnston (NSWCCA, 31 July 1998); PAH (NSWCCA, 18 December 1998); Murray (1987) 11 NSWLR 12, considered.

(10) His Honour’s warnings concerning inconsistency, and the standard direction given concerning the ability of the jury to accept part of the evidence and to reject part, were sufficient.

(11) Although the absence of a request pursuant to s 165(2) does not excuse the trial judge from bringing any matter which may affect reliability of evidence to the attention of the jury, proper regard must be given to the judgment of trial Counsel in not seeking the warning. Moreover s 165 was not overlooked, as his Honour gave an express warning based on it (see (7)).
Vawdrey (NSWCCA, 16 April 1998); BD (supra); Davis [1999] NSWCCA 15; Williams [1999] NSWCCA 9; PAH (supra); Murray (supra); Bromley (1986) 161 CLR 315, considered.

Ground 4 - lies
(12) His Honour gave the directions appropriate for a case, where the jury was invited to take a lie into account as indicating a consciousness of guilt, and as providing support for the complainant’s evidence.
Preval (1984) 3 NSWLR 647; Sutton (1986) 5 NSWLR 697; Edwards (1993) 178 CLR 193; Heyde (1990) 20 NSWLR 234; ST (1997) 92 A Crim R 390; Green [1999] HCA 13, considered.

Ground 5 - “unsafe and unsatisfactory” verdict
(13) This ground needs to be considered in the light of recent High Court observations concerning the expression “unsafe and unsatisfactory” being potentially misleading. It is imprecise and has no specific legislative basis.
Fleming (1998) 158 ALR 379, Johnston (supra); Giam [1999] NSWCCA 53, considered.

(14) There is a need to identify the ground of appeal relied upon with an appropriate degree of particularity, as well as a need to specify the nature of the order sought should the appeal succeed.

(15) The Court was not satisfied that the errors identified in the remaining grounds were established, so as to result in a miscarriage of justice. The tendency to identify as many grounds of appeal as possible, no matter how spurious, and then to suggest that cumulatively they establish a miscarriage of justice, is to be discouraged.
Clough (1992) 28 NSWLR 396; Wilde (1988) 164 CLR 365, considered.

(16) The Court was similarly unpersuaded that after an independent review of the evidence, the jury ought to have entertained a reasonable doubt as to the guilt of the appellant. The advantage of the jury in seeing and hearing the witnesses should in this case be respected.
M (1994) 181 CLR 487; Jones (1997) 72 ALJR 78; Chidiac (1991) 171 CLR 432, considered.

(17) In relation to count 4, the complainant could not remember the year in which the offence occurred other than it happened when he was “about ten”. The appellant was convicted on the basis that the offence occurred in the complainant’s ninth year. However, the evidence left open the possibility that it occurred after his tenth birthday. For this reason, a conviction for an offence requiring proof beyond reasonable doubt that the complainant was under ten, was unsafe and unsatisfactory.

(18) Where the jury is satisfied that the conduct charged did occur, but are uncertain whether the complainant was aged under or over ten years, they do not necessarily have to return a verdict of acquittal of any offence. The appellant could have been properly convicted of the alternative and lesser offence available under s 78K.

(19) The sentence for that offence is to be adjusted accordingly. Although the principle of totality requires that there be taken into account that for one offence, there lacked the factor of aggravation, nevertheless the difference in objective criminality was not sufficient to require any reduction in the overall sentencing order.

ORDERS PROPOSED

(1) Appeal in respect of count 4 allowed and conviction for that count quashed. In lieu, a conviction in respect of an offence of homosexual intercourse with a male person aged ten years or above but under the age of eighteen years substituted;

(2) Leave granted to appeal against sentence;

(3) Sentence in respect of count 4 quashed. In lieu, appellant sentenced in respect of that count to a fixed term of penal servitude of eighteen months;

(4) Otherwise, appeal against conviction and sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

No. 60036/98

WOOD CJ at CL
BARR J
GREG JAMES J

WEDNESDAY 23 JUNE 1999

Regina v JGW

JUDGMENT

1 WOOD CJ at CL: The appellant was arraigned before his Honour Judge Coleman QC in the District Court at Liverpool on 13 October 1997, on an indictment containing eight counts, of which four (Counts 1, 2, 3 and 5) alleged homosexual intercourse with a male person under the age of ten years (S 78H Crimes Act 1900); one (count 6) alleged an attempt at that offence ( S 78I Crimes Act); one (count 7) alleged homosexual intercourse with a male person aged between ten years and under eighteen years (S 78K Crimes Act); one (count 4) alleged indecent assault of a person under the age of sixteen years and under the authority of the appellant (S 61M(2) Crimes Act); and one (count 8) alleged an indecent assault of a person under the age of sixteen years (S 61M(1) Crimes Act). 2 During the trial his Honour directed that the jury return verdicts of not guilty in respect of counts 4 and 5 of the indictment since it had become apparent that the events charged could not have occurred within the time frame alleged. Leave was granted to the Crown to amend the dates in counts 2, 3 and 8 of the original indictment, and as a consequence an amended indictment was presented containing the remaining six counts. 3 On 22 October 1997, the jury returned verdicts of guilty in respect of each count in the amended indictment. The sentence imposed in respect of the third count was one comprising a minimum term of five years and three months penal servitude, to commence from the date of conviction, and an additional term of one year and nine months. In relation to all other counts, save the one count of indecent assault that was left, the appellant was sentenced to concurrent fixed terms of two years penal servitude. For the count of indecent assault the sentence was one of a fixed term for twelve months. The appellant now appeals against the convictions, but does not seek leave to appeal against the sentences, save in respect of one contingency that emerged during the closing stage of the submissions, to which I will return.

The Crown Case

4   The complainant NW was born on 31 October 1980, and was the natural son of the appellant. It was the Crown case that from about the age of seven years to fifteen years, he was subjected to sexual assault by his father.

Count 1 (homosexual intercourse under ten years)

5   It was the Crown case that this offence occurred when NW was aged about seven years, and living with his family at St Marys. One night he slept on a brown fold out sofa in the lounge in the family room, it having been planned that he would leave early the next morning with his father, who was working on a garbage run. He said that during the night the appellant woke him and asked him to scratch his stomach, and then placed his hand on his penis. The appellant, NW said, then placed him on his back and sucked his penis. This activity was interrupted by the arrival home of the mother of NW, who had been working night shift. The appellant told him to pretend to be asleep.

Count 2 (homosexual intercourse under ten years)

6   The next incident which NW said that he was able to remember occurred when he was about seven or eight years old, again at the family home in St Marys. NW said that the appellant joined him while he was in the shower, and instructed him to suck his penis. In the course of doing so, he noticed that the appellant’s penis, which was erect, had a tattoo on it which read “the baby maker”. He said that the word “the” was positioned above the other words, but was uncertain whether those words were side by side. He could not recall whether the words were in upper or lower case. He said that the skin on his father’s penis had to be stretched out to read the tattoo. At one stage the appellant left the bathroom and returned with a red plastic chair, upon which he sat. He indicated that he wanted NW to sit on him in this position. NW could not recall what had happened after that. He had an imperfect recollection of the incident, although he did remember the appellant playing with his, ie NW’s, penis in the bathroom at some stage.

Count 3 (homosexual intercourse under ten years)

7   NW said that when he was about nine years old, he and the appellant spent a night in a tent which the appellant had erected in the back yard. On his account, during a “muck around fight” the appellant grabbed his penis and then placed his, NW’s, hand on his own penis. The appellant sucked the penis of NW, and then sat on it, inserting in into his own anus. The appellant masturbated himself to ejaculation.

Count 4 (originally count 6) attempted homosexual intercourse under ten years

8   NW said that when he was about ten years old he was sleeping on the floor in the lounge room. He awoke to find that his pants had been pulled down, that there was oil in the region of his anus and that the appellant was attempting to enter him. He felt pain but did not know whether he had been penetrated or not.

Count 5 (originally count 7) homosexual intercourse with a person aged ten to eighteen years

9   NW said that when he was aged about thirteen years the family went on a holiday to the Dunleigh Caravan Park at The Entrance. While he was in the shower block at about 6pm, the appellant entered an adjoining cubicle. As he was about to leave the appellant called him into his cubicle, where he began to play with his penis, and then sucked it. NW’s penis became erect, whereupon the appellant bent over and drew him closer so as to introduce NW’s penis into his own anus.

Count 6 (formerly count 8) indecent assault under sixteen years

10   The last incident which NW recalled occurred, on his account, at Mary Beach during the 1995 Christmas holidays. NW, his younger brother, and a son of the appellant from a prior marriage, went camping with him. NW went to the tent to change after he had been swimming. The appellant touched him on the penis from outside his shorts. He said “no, don’t”, at which point the appellant desisted.

Verdicts by Direction

11   The counts in respect of which there were verdicts by direction comprised allegations that the appellant touched NW on the penis between 1October 1988 and 31 January 1989, in the swimming pool at their St Marys home (original count 4); and that the appellant sucked the penis of NW and made NW suck his penis in the granny flat at those premises, between 1 October 1988 and 15 February 1989 (original count 5). Directed verdicts were returned in relation to these counts after it was established that the swimming pool, in which it was alleged that the conduct charged in the original count 4, occurred, had been constructed, at earliest, one year nine months after the last of the dates particularised. A similar problem arose in relation to count 5 since the conduct charged in that count was alleged to have occurred on the same day as that for count 4, ie after the appellant and the complainant had walked from the pool to the granny flat, yet the period particularised similarly preceded the earliest date on which that could have occurred by about one year nine months.

Uncharged incident

12   NW also gave evidence of an incident, not the subject of any charge, which he said occurred in the family home when he was about nine or ten years of age. He was sitting on a lounge watching television when the appellant asked if he wanted to see a movie. The appellant then inserted a cassette into the video recorder. It began as a video of him playing soccer but then moved on to a pornographic video. The appellant watched it for a while and then began to rub NW’s penis. The appellant turned off the video when NW’s mother entered the room.

Other evidence in the prosecution case

13   NW’s mother, SW, gave evidence. She said that on more than one occasion she had seen the appellant sleeping with NW on the brown couch in the family room. She also said that there had never been an occasion when the subject of the tattoo on the appellant’s penis was discussed with the children. She said that the tattoo could not be read unless the appellant’s penis was erect, and then only when the viewer was very close and at groin level. When flaccid the writing was obscured by skin folds, and could not be seen unless the skin was pulled down. She confirmed, as NW had suggested, that the word “the” was a little bit above the other words. 14   She recalled an occasion when she was lying in bed reading a book, and became aware of the appellant going to the bathroom on three occasions within a short time, and of the light being switched off in the family room. When she ran into that room she saw the appellant, who was very close to NW, moving away from him. The television was off. She asked the appellant what was going on. He called her “a fucking goose” and said that “all men muck around with their kids”. 15   During his cross examination, NW agreed that, on 26 August 1996 when he was fifteen years old, his mother had asked him whether he had been sexually molested by his father. He replied in the affirmative. In the course of this cross examination, it was put to NW, that he had concocted the allegations in order to assist his mother because he knew that she wanted the appellant to leave the St Marys premises. 16   In her evidence (which was given after NW had been cross examined on this topic) SW said that, on that date, NW had said something to her to suggest that the appellant had been abusing him for eight years. She asked him some questions about what had happened. He replied that “his father made him suck his dick and he had to do the same and that he’d put it in his bum”. A few weeks later, she said, she had found a pornographic magazine and a video cassette labelled “Nathan’s Soccer”, in a cooler bag located in an entertainment unit in the dining room. SW and a friend watched this video and saw that it included a pornographic movie. 17   After the appellant was arrested, he participated in an electronically recorded interview, an edited version of which was received into evidence, over the objection of the defence. In the course of the interview, the appellant denied the allegations of sexual assault which were put to him. He admitted to having a tattoo “the baby maker”, on his penis, in letters about 2and a half inches long. He said, “You can’t miss it, its just written in big letters, in big print”. He thought that the letters could be read when his penis was flaccid, and that they got bigger when it was erect. He said that he had spoken to NW about the tattoo. 18   He also admitted going to the caravan park at The Entrance at the end of 1993, and to Mary Beach over the 1996/1997 Christmas school holidays, but denied having any pornographic videos at his home, or having shown any such video to NW. He thought he had brought one such video home from the garbage once, but as it was not a good copy he had thrown it out.

The appellant’s case

19   The appellant gave evidence and was cross examined. He denied the allegations of sexual misconduct, and said that he had spoken to NW about the tattoo on a couple of occasions, once when he was about nine or ten years old, and once when he was about thirteen or fourteen years old. It had also been discussed generally within the family from time to time. During his cross examination, he said that the words on his penis could not be read, even when it was erect. The tattoo had been done by him while he was in prison, using a device which he had rigged up involving an alarm clock. The tattoo had become infected, and the ink had spread. The words he said were in three lines, one above the other on an angle, but they could not be read because they became dotted. One half of the letters he said “went” once the infection set in. 20   His evidence concerning this topic and the video recorder bordered on the flippant. Even allowing for some degree of naivety and natural embarrassment, he must have left a very poor impression with the jury as to his credibility - a matter which I consider of some significance in relation to ground 5. The following extracts from his cross examination illustrate this:

“Q. Why did you have it done?
A. Because - why did I have it done? Because I was bored one night when I was in gaol and I had an alarm clock and I used that for a tattoo gun and put it on my penis, something to do.
Q. So you did it yourself?
A. Yeah, it was a home job.”
…
“Q. Did you tell the police that you weren’t able to read those words?
A. No, I said you could read it because I haven’t paid much attention to it really. There was no way at the police station I could have a look at me dick to see whether you could read it or not, I just didn’t pay any attention to it. I just thought you could read it but you can’t because when I got home from the police station I put me glasses and I couldn’t even read it.
Q. Mr. Wells do you say to this jury that before the police asked you that question or asked you a question in the ERISP “Can you read the words when your penis is not erect?’
A. yeah.
Q. That you hadn’t looked at your penis for some time, is what you’re saying?
A. I’ve never taken any notice of it.
Q. Is that a serious answer sir?
A. Yeah I’ve never take much notice of the tattoo, I’ve had it all me life I’ve got no - it doesn’t bother me I never look at it.”
…
“Well didn’t you think that was an important matter that you were being asked about when the police asked you questions about that tattoo?
A. Not really.
Q. Not really, is that your answer?
A. Yeah I just don’t think it was that important.
Q. Did you think to say to the police, could you have a look at your penis before you answered the question if you were unsure about it?
A. l I suppose I could have done, I never thought - never come across me mind, what am I going to pull it out in front of the police woman or something.
Q. See Mr Wells I suggest to you that these answers you’re giving are just nonsense?
A. Are they, I don’t think so.
…
But you’d told the police in more than one question that you were able to read this tattoo on your penis?
A. Well I thought you could but you can’t you know, you just can’t read it, I don’t know, you know. You can’t read it at all.
Q. When you answered these questions that were put to you by the police you thought you could read it. Is that what you’re saying.
A. I thought you might have been, yeah. Just an honest mistake. If you don’t believe me, I’ll flop it out now and you can have a look.
…
Can I then ask you on that piece of paper that I gave you with the pen, to indicate on that piece of paper the shaft and what was tattooed on your penis?
A. While its hard or soft, huh?
A. Could you do it when the penis is erect?
A. I need a bigger piece of paper. Bloody hell.
Q. Mr. Wells, why did you say that?
A. (not transcribable)
Q. Mr. Wells?
A. What?
Q. Why did you say --
A. Wishful thinking. Do you want it like so you can’t read it or do you just want it in writing that you can read?
…
Q. Didn’t you say that you had a lock on the video?
A. Yeah, there was a lock on the video so the kids couldn’t use the video.
Q. Why did you want to stop the kids using the video?
A. Because they might bloody put a piece of toast in there or something, heavens knows. Jut never, because we had other movies at home that kids shouldn’t see. They weren’t pornographic ones but they were R-rated ones. I used to bring them home from the Colyton and watch them sometimes.”

21   He said that he had never slept on the lounge with NW before going to work. He had brought a video cassette home from the tip once because cassettes were dear. He knew there was a pornographic movie on the tape, and that it had been there when he brought it home. Some friends had taped the soccer over it. He denied having watched it with NW, but had done so with his wife. In relation to the incident when she had run into the lounge room, he said that he and NW had been about to watch a Jackie Chan movie on SBS. 22   He admitted that he had been to the Dunleigh Caravan Park with his family on two occasions. He said that the showers were always busy between about 5pm. and 8pm, and that during those hours there were always fathers queuing with their children, and that anything that happened could be heard.

Ground 1

23   It was submitted that his Honour erred in allowing an amendment of counts 2 and 3, so as to substitute the period “between 31 October 1987 and 30 October 1989” for the period originally charged, (ie “between 31 December 1987 and 31 March 1988”) in count 2; and “between 31 October 1989 and 30 October 1990” for the period originally charged, (ie “between 1 February 1988 and 31 May 1988”) in count 3. The amendment to the original count 8 (now count 6), it was acknowledged, was of no moment, the commencing date having been enlarged from 31 December 1995 as originally charged, to 1 December 1995. 24   In allowing the amendment, and in drawing a distinction between the original counts 4 and 5, which went, and the remaining counts which were preserved, either with or without amendment, his Honour had regard to Westerman (1991) 55 A Crim R 353, where Lee CJ at CL noted that the power to amend an indictment under S 365 of the Crimes Act is a very wide power, but one that:

“ought not to be exercised when it gives rise to a real prejudice to the accused”.

25   His Honour concluded that, having regard to the way that the case had been fought, to permit the amendment in relation to counts 4 and 5, where objective evidence was available as to the time that the pool had been constructed, would have unfairly watered down the defence case. As in Westerman, the clash had been one between the Crown and the defence as to whether the events had happened at all; after the amendment sought (to postdate the charge until after the pool had been built, and at a time after the complainant had attained the age of ten years) would have left the jury with the obligation of considering whether NW had been mistaken as to the time of the offences, but not in regard to the fact of them having been committed. 26   As was the case in MacDonald (1995) 84 A Crim R 508, the accused had come to trial to answer the charges as particularised, and the particulars concerning the time of those two alleged offences was vital to the defence as it was to be presented. In those circumstances, his Honour thought it unfair to exercise the discretion he possessed, (since the date of the offences was not an essential element of the charges), to allow the amendment. To do so would have required the appellant to meet a new case which had not been raised until the close of the evidence. 27 His Honour in fact followed MacDonald which had applied Pfizner (1976) 15 SASR 171, where Bray CJ had said (at 185):

“Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it: cf Page v Butcher (1957) SASR 165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson (1979) q WLR 142; (1970) All ER 12; (1970) Cr App R 38”.

28   His Honour was, in my view, correct in the way in which he approached counts 4 and 5, and in drawing a distinction between these counts and the remaining counts, where no similar defence or evidentiary issue arose, save for a general denial of the conduct alleged. Time is generally not of the essence for offences of this kind: VHP (Court of Criminal Appeal New South Wales 7 July 1997) although it has a relevance in a different way to which I will return, in the case of count 4. 29   The defence did not pursue the line, in relation to any of the preserved counts, that they did not occur because it could be shown objectively or independently that the complainant’s evidence concerning some detail associated with them, such as the time of a holiday, or a visit to a certain location, could not have been true, or that the appellant had an alibi for the period charged. In summary, the kind of problem identified in Pfizner, MacDonald and Westerman, did not arise for these counts. 30   As an associated submission it was asserted that the evidence given, in relation to these counts, fell into the difficulty identified in S, (1989) 168 CLR 267. The problem there identified was however very different, the complainant being unable in that case to do more than say that there were

“further acts (of intercourse) but I cannot recall all the details of them or when they were. I have blanked them out”.

31   The point of that decision was that, in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence the legal nature of which is described in the charge, and invite the jury to convict on any one of them. 32   The present case is very different in that specific acts were identified in relation to each count, with accompanying detail that related them to a particular circumstance or place such as a holiday, a night in a tent, an incident in a shower, or a plan to join the appellant on his garbage run, as well as to the age of the complainant. 33   The inability of a complainant to be precise as to dates, leaving an accused with little more than a blanket denial, does not necessarily mean that the trial is unfair, although it may call for suitable directions to be given to the jury of the kind discussed later in these reasons: Kennedy (Court of Criminal Appeal New South Wales 9 December 1998). It may also require a critical review of the complainant’s evidence where the “unsafe and unsatisfactory” ground of appeal is raised. 34   The present case is in fact little different from very many, if not the majority of cases involving allegations of sexual assault where, although the details of the assault are clear and explicit in memory, the precise timing of them is not. I am unable to conclude that any vagueness concerning the precise dates of incidents alleged, resulted in an unfairness for the appellant in allowing counts 2 and 3 to remain, or otherwise. In this regard it is not irrelevant that, whether amended or unamended, the only defence that the appellant raised in relation to these counts was one of a blanket denial. 35   I am accordingly of the view that his Honour’s discretion to allow the amendment to counts 2 and 3, and to count 6 (formerly count 8), in the fresh indictment, did not miscarry. This ground has not been made good on this point, or on the more general S point.

Ground 2

36 It was submitted that his Honour erred in allowing the ERISP into evidence over the appellant’s objection. It was the case that in lieu of the tender, Counsel for the appellant offered to make admissions as to the matters which the Crown wished to establish from it. That having been offered, the submission went, the ERISP had no evidentiary relevance, and its probative value was outweighed by the danger of unfair prejudice to the appellant since it depicted an accused, a relatively inarticulate man, being questioned by two police officers in a small room. Upon that basis, the argument proceeded, it should have been excluded, either under S 102 of the Evidence Act, since it only went to the credibility of the appellant, or under S 137 of the Act. For completeness, although reference was not made to these provisions, I would add that, if regard was properly to be had to a discretionary exclusion of the evidence, then S 90, as well as SS 135 and 136, would also arise for consideration. Again, although not adverted to in argument, if the evidence was not “relevant”, as defined in S 55 of the Evidence Act, then its admission would be precluded by S 56 of the Act. I propose accordingly to consider this ground in the light of all of these provisions. 37 In Plevac (1995) 84 A Crim R 570, the Court (Badgery-Parker, Dunford and Simpson JJ) set out (at 579-580) eleven propositions relevant to the admissibility of questions put to an accused, and of the answers given, in the course of a formal interview. Although this judgment was delivered before the Evidence Act, and is now subject to some additional considerations (eg those contained in part 3.4,) the propositions enunciated remain of general application. Those of immediate relevance are the following:

“4. The answers given by the suspect are admissible in evidence (and hence, so are the questions) if they are relevant; but not otherwise: Grills at 413, 419; Taylor at 9.
5. An answer (and the question to which it is given) is relevant if it is an admission, or is capable of being regarded as an admission, of guilt or of a fact relevant to the proof of guilt: Astill (unreported, Court of Criminal Appeal New South Wales, 17 July 1992) at pp 8 -13.
6. If an answer is not unequivocally an admission but is capable of being regarded as such, it is a question for the jury whether it is such. Subject to the exercise of the judge’s discretion, the question and answer are admissible but it is necessary that the jury be clearly and fully directed that it is a question for them as to whether the answer does or does not amount to a relevant admission: Astill at pp.11-15.
7. An answer which is not capable of being regarded as an admission is on the face of it irrelevant and therefore inadmissible Grills at 413; Taylor at p9.
8. However, answers of that sort may yet be admissible if they form part of an interrogation in the course of which some answers do amount to admissions or are capable of being so regarded, where the question and answers which do not themselves contain admissions are relevant to set the other questions and answers in context, and/or to show that there was no impropriety on the part of the police in the conduct of their interrogation: Taylor at pp9-10; Barca (1975) 133 CLR 82 at 107’ Grills at 418-419; Towers (unreported, Court of Criminal Appeal New South Wales 7 June 1993) at pp 10-11.
9. In such circumstances, the trial judge must always carefully consider whether questions and answers which are not capable of amounting to relevant admissions, should be excluded because they are prejudicial” Grills at 419-420; Ireland at 332; Taylor ; Astill .”

38   Reference was also made to BFM (Court of Criminal Appeal New South Wales 6 February 1996) where the Court said:

“His Honour seems to have been of the view that the response and the manner of the response of an accused person when confronted with the allegations against him is always relevant…..Such evidence is commonly led by the Crown and commonly not objected to by the accused, particularly where there has been a straight forward denial of the allegations from the start. However, where objection is taken, such evidence should not be admitted unless it is shown to be relevant and otherwise satisfies the law of evidence including the discretionary power of the trial judge to exclude unfairly prejudicial evidence.”

and to Graham (1998) HC 56, where Callinan J said:

“The denials of the appellant were not capable of being regarded by the jury as admissions. They were otherwise irrelevant. The record of interview, once it was admitted, became the source of material for a cross examination of the appellant on peripheral or irrelevant issues and caused the introduction into evidence of matters which had a real potential for prejudice to him.
The challenge to the admissibility of the record of interview was correctly made. It should certainly not have been admitted in its entirety, if at all. Even if it had been otherwise admissible this would have been an appropriate case for its discretionary exclusion pursuant to s137 of the Evidence Act.”….

39   The ERISP has been viewed by this Court in order to determine whether the demeanour, or manner in which the appellant answered the questions asked of him, risked presenting him in an unfavourable light. I am unequivocally of the view that it did not. The interview was conducted quietly and professionally. There were no signs of irritation or hesitation by the appellant. There was no conduct on his part that could be viewed other than as polite and co-operative. Nor did he present as inarticulate or as unable to respond to the questions as he chose. Moreover, his denial of the actual offences alleged was explicit, unhesitating and unqualified. It follows that there was no risk of prejudice or unfairness associated with the tender of the ERISP in video form. A discretionary exclusion was not warranted on this account. 40   The submission as to relevance falls into the difficulty that a number of answers given were relevant, and of advantage to the Crown in presenting its case. They include the following:

50: (residence at St Marys with NW, at the time of the relevant counts)

62 - 68; 149-161; 166/167; and 171-175: (the appearance and legibility of the tattoo on his penis when erect and when flaccid)

98 - 103: (whether he had a pornographic movie of the kind mentioned by NW and his mother)

113 - 123; 202-204: (whether the family holidayed at Dunleigh Caravan Park at the end of 1993, and whether it had a shower block with cubicles of the kind NW described)

130 -136; 217-219: (whether the family went camping at Marys Beach in the 1996/1997 Christmas holidays);

185-199: (his ownership of a tent while at St Marys at the relevant time and its erection from time to time in the garden).

41 Each of these matters was capable of rationally affecting the assessment of the probability of the existence of the facts asserted by NW, in relation to the offences charged. As such the answers were relevant and admissible under the Evidence Act. 42 The Crown was entitled to prove its case as it wished. It was not bound to accept the offer of bare admissions from the appellant in lieu of the tender of the record of interview, nor would it have been sensible to edit out the questions and answers that amounted to denials of the specific incidents of misconduct alleged. The questions and answers identified above drew their significance from the content in which they were put, and to have edited the ERISP further would have produced a very distorted interview. Moreover, upon my assessment, it would have been more likely to have led to a charge of unfairness, since the appellant would have been entitled to have the balance restored by the denials. The present case is very different from those cited in argument where material that was truly irrelevant, or became the source for cross examination on peripheral matters, or was otherwise prejudicial, was admitted. 43 Moreover, the Crown was unable to determine in advance what case the defence would call, or whether succinct admissions without relevant detail, would have been sufficient for its purposes. In fact, as events transpired, it can be seen that a bare admission, for example, that the appellant had a tattoo “the baby maker” on his penis, would have fallen short of the proof that the Crown required. Whether it would or would not have been allowed to call a case in reply, or to reopen its case, is problematic. 44 I do not consider that, as a matter of principle, the Crown should be required to accept admissions in lieu of a record of interview, where the latter can be seen to contain evidence that qualifies as relevant, and where there is no occasion, otherwise, for a discretionary exclusion under SS 90, or 135 to 137 of the Act. It is well settled that the fact that formal admissions have been made does not, of itself, preclude the Crown from adducing further evidence on the issues which are the subject of the admissions: Smith (1981) 1 NSWLR 193. There is no reason for assuming that enactment of the Evidence Act has altered that principle: Popovic (Court of Criminal Appeal New South Wales 25 March 1996 (per McInerney and Abadee JJ; Hulme J not deciding). This ground has accordingly not been made good.

Grounds 3 and 3A

45   These grounds related to the directions given concerning the evidence of complaint. In substance it was submitted:

(a) that the complaint evidence should not have been admitted;

(b) that the complaint evidence having been admitted, his Honour failed adequately to direct the jury in accordance with Crofts (1996) 186 CLR 427;

(c) that, his Honour failed to give a sufficient warning to the jury concerning the delay in complaint, as required by Longman (1989) 168 CLR 79, and Johnston (Court of Criminal Appeal New South Wales 31 July 1998 unreported); and

(d) that his Honour failed to give a sufficient warning to the jury concerning the reliability of the complainant’s evidence, arising from his vagueness as to the dates of the alleged offences, and from the fact that two counts had been withdrawn.

46   I will deal with each of these points in turn:

(a) Admissibility of the complaint evidence .

The trial took place before Graham (1998) 72 ALJR 1491, where it was held that unless the complaint was recent or immediate, and possibly made within days of the offence, it was not “fresh” within the meaning of S 66 of the Evidence Act, and hence not admissible. It was also held that unless the making of the complaint could be said to assist the resolution of the question whether the complainant had fabricated his or her evidence of the offence, the fact of complaint was not relevant, and evidence of it should be excluded. The question whether evidence of complaint stands as evidence of the fact was not decided, and remains reserved for decision in Papakosmos (special leave having been granted from the decision of this Court, Court of Criminal Appeal New South Wales 10 December 1997, unreported).

47   In the present case, the Crown did not seek to tender proof of the complaint during the evidence in chief of NW. Counsel for the appellant introduced the issue during his cross examination of NW, in the course of which he invited his agreement to the proposition that he had fabricated the evidence of the offence in order to assist his mother, because she wanted the appellant out of the home. 48   It was put to NW unequivocally and repeatedly that he had first complained in response to a leading question from his mother:

“Do you remember that in August of 1996 your mother coming to you and saying these words to you “Have you been sexually molested?” ? A. No.
Q. At about 3pm. on Monday 26 August did your mother say to you ‘Have you been sexually molested by your father?’? A. Yep that’s when I told her.
Q. You didn’t say anything to her until she asked you that question did you? A. I was just crying and I was upset and I just couldn’t hold it in and it all just built up in here.
Q. On that date 26 August 1996 your mother and the accused were separated? A. yeah.
Q. And they were arguing a lot, weren’t they? A. yeah.
…
Q. You knew that your mother wanted to move the accused out didn’t you? A. Don’t know - no not really. I knew that they were fighting and that.”
Q. Didn’t you just give evidence that you knew that she wanted him out of there? A. she wanted him out of there because he left. She must have if he moved in the granny flat.
Q. Then your mother wanted him out of the granny flat, didn’t she? A. yeah.
Q. And she came to you on 26 August 1996, and said “have you been sexually molested by your father?, do you agree with that? A. Yeah.
Q. And you said “Yes”? That was a false allegation wasn’t it? A. It wasn’t.”
…
Q. When you mother asked you whether you had been sexually molested by your father did you think you were helping her by saying yes? A. No.
Q. Did you think you were helping her to get rid of the accused out of the granny flat and out of your lives? A. No, I didn’t think that at all. I was crying and …”
…
“Q. You told your mother - you answered your mother’s question “have you been sexually molested by your father?” “Yes” not because that was true but because you thought that would help her and you? A. It’s true.
Q. And your difficulty in recollection arises out of the fact that these allegations are not true? A. Yes they are.
Q. They’re made up by you and you have difficulty remembering your statement? A. No, not at all.
“Q. You knew on 26 August 12996 your mother put a proposition to you , have you been sexually molested by your father, she said that didn’t she? A. yes.
Q. And she said that without you first saying anything to her? A. I don’t understand that question.
Q. I’ll withdraw it. That was what led to you making a complaint to her? A. I don’t understand.
Q. In response to that question you said ‘yes’? A. Not straight away, I didn’t want to tell her. She started crying and I couldn’t hold it in.
Q. At the time that you said ‘yes’ to that proposition you were angry and the accused because he’d moved out of the family home and moved into the room that had been set up for you? A. Yeah.
Q. And he moved out of the family home in November 1995 didn’t he? A. I’m not sure of the date but he did move out because he had to.
Q. Your mother didn’t want him around any more did she? A. No.
…
“You said “yes” to that proposition put by your mother because you thought she wanted you to say “yes”? A. No.
Q. you made a false allegation because you thought it would help-- A. No I didn’t.
Q. -- Both you and your mother? A. No.”

The Crown Prosecutor thereafter sought and obtained leave under S 108 of the Evidence Act, without objection, to lead evidence from NW’s mother of the complaint.

49   Clearly, it became permissible in the light of the cross examination of NW, for the Crown to prove the precise circumstances in which, and the time at which, the complaint emerged. That went to the very heart of the issue that had been raised by the defence, namely whether, with the encouragement of his mother, NW had invented a complaint to her of sexual abuse by his father, which then matured into the account that he gave to the police, and later to the jury. 50   In these circumstances the complainant’s mother was in my view properly permitted to give evidence on this topic, as follows:

“CROWN PROSECUTOR Q: On that day did Nathan say something to you at home? A. Are we referring to 26 August?
Q. Yes? A. Yes he did.
Q. What did he say to you? A. He said to me - there were other things that he said, but what he actually said to me that his father had been abusing him for eight --
Q. Now - I’m sorry, for? A. Eight years.
Q. Did you ask him some questions about what had happened? A. yes.”
…
“CROWN PROSECUTOR: Q. On that day did Nathan say something to you at home? A. Are we referring to 26 August?
Q. Yes. A. Yes he did.
Q. What did he say to you? A. He said to me - there were other things that he said, but what he actually said to me that his father had been abusing him for eight --
Q. Now - I’m sorry, for? A. Eight years.
Q. Did you ask him some questions about what had happened? A. Yes.,
Q. What did he say? A. He told me that his father had made him - will I say it? I don’t know --
Q. Well if you could--
HIS HONOUR: Q. You may use the words that he told you, don’t be embarrassed about it, just as best you can recall it tell us what was said. Please go on? A. He told me that his father made him suck his dick and he had to do the same and that he’d put it in his bum.”

This was followed by cross examination:

“BABB: Q: In relation to 26 August 1996, I put to you that the details given to you by NW weren’t given spontaneously, they were given as a result of a question from you and that question was, “have you been sexually molested by your father”? A. I believe I said to him, “NW, do you want to talk to me” first, that’s what I believe and then I said “Has anything happened to you?. I may have used those words, I’m not sure, it was very traumatic.
…
Q. I put to you that the conversation started as a result of you saying “Have you been sexually molested by your father?” A. He told me, he told me, I said, “Do you want to talk to me son”
Q. You didn’t say those words I put to you before he came out with these allegations? A. He said “Would I believe the big person or the little person” and I said “NW, big people, or I guess parents are supposed to love and protect their children”, that’s what I said and possibly I may not have the right words for you, but he told me that it was his father - it’s in my statement and I don’t believe I can say any more.”

51 Prior to the summing up, Counsel for the appellant asked his Honour to limit the use of this evidence under S136 Evidence Act, although without stating in clear terms how it was to be restricted. It is evident from the argument, and the way in which the matter was left, that all his Honour was prepared to do was to give a caution under S165 of the Evidence Act concerning its reliability as hearsay evidence. 52 So it was that his Honour said of this evidence, when summing up:

“I must caution you, ladies and gentlemen, that the evidence that you heard concerning complaint from his mother was hearsay evidence and that it may be unreliable. That is, it is not evidence of what she heard or saw directly herself but of evidence of what she remembers her son having told you, and you should take that into account when you come to assess that evidence. The evidence can be used, ladies and gentlemen, when you come to consider the truth of the subject matter of the complaints, that is, the truth of the allegations that on one occasion his father attempted to put his penis into his anus and on another occasion had touched him on the outside of his shorts.”

53   So far as this direction might have been understood as suggesting that the evidence was available as hearsay proof of the facts asserted, it accorded with the law as stated by this Court in BD (1997) 94 A Crim R 131, at the time of the trial, and as now awaits review by the High Court in Papakosmos. Until or unless this Court is held to have been in error in the approach which it has adopted, I am not persuaded that it would be appropriate to intervene in this appeal, either upon the basis that the evidence ought not to have been admitted, or upon the basis that his Honour was in error in the direction that was given, as to the use to which it could be put. The direction as to its hearsay nature, however, was in the circumstances appropriate. 54   (b) Crofts direction

The direction that was given was as follows:
“I am bound to tell you, ladies and gentlemen, that delay in complaining is something which you must take into account against the context of the fact that there may be very good reasons for delay, but of course that argument must be considered on both sides. The other side was put to you by Mr. Babb, there was never any complaint about any of these matters because they had not taken place.
But I must warn you, ladies and gentlemen, there may be good reason for failure to complain. It may be as NW said when he was cross-examined about his failure to mention the incident in the lounge room to his mother, that he was scared. It may be that one of the people you could expect him to complain to was the person whom he says was committing these acts against him. The fact that he did complain, ladies and gentlemen, is something that you can take into account when you come to assess his reliability as a witness. Mr. Babb says that you will l not accept it because it was not something which came spontaneously, but on his evidence it was something that arose only after his mother had asked him questions. It is a matter for you, ladies and gentlemen, however, the evidence is admitted to assist you in deciding whether his conduct was consistent with what he says happened and to answer any argument that the absence of complaint would suggest that the offence did not take place.”

55   Earlier his Honour had said:

“Consistency of account, ladies and gentlemen, may well be an indication of reliability, and inconsistency of account may be an indication of unreliability. If a witness has given an account at different times you might perhaps regard some inconsistency or variation in those accounts as being relevant to the reliability of the witness. It is a matter for you as the judges of the facts. Whilst on one hand a consistent story might indicate truthfulness, it might also possibly be a product of a conscious desire to maintain an untruthfulness. Some inconsistency might indicate unreliability. On the other hand some inconsistency might be consistent with an overall reliability and be no than an honest and inconsequential error or recollection.”

56   No redirection was sought, but prior to the commencement of the summing up, counsel for the appellant had sought a Crofts direction. In these circumstances, I would give leave to argue this ground, but find that the ground was not made out. In my view, when read in the light of the summing up as a whole, the balance was restored, as is required by Crofts; DJK Court of Criminal Appeal, New South Wales, 8 October 1998; Davies (1985) 3 NSWLR 276, and Lemura (Court of Criminal Appeal New South Wales 18 December 1998) with the consequence that the jury were sufficiently instructed as to the manner in which the delay in complaint might adversely impact upon NW’s credibility.

(c) Longman Direction

57   It was submitted that his Honour failed sufficiently to underline, and explain, to the jury the significance of the delay in complaint, in accordance with the principles outlined in Longman (1989) 168 CLR 79 at 91, as more recently summarised in Johnston (Court of Criminal Appeal New South Wales 31 July 1998) where Spigelman CJ, after reviewing the authorities concerning the aspect of delay, said, at 24 to 25:

“(i) Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.
(ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt.
(iii) The need for, and content of, any comment will depend on the circumstances of the case.
(iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case.
(v) Where it appears from the course of evidence, including cross examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties.
(vi) Where the summing-up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate.
(vii) In some cases a warning which uses terminology such as “dangerous” or “unsafe” to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).”

58   It is true that his Honour did not specifically deal with the potential adverse effects for the defence, in relation to the delay in complaint. The case was not one, however, where any specific difficulties were identified that may have affected the ability of the appellant to test the evidence of the prosecution, or to adduce evidence in relation to the counts that were preserved. The defence case was one of deliberate concoction to assist NW’s mother in securing a separation. It was on that basis that the trial was fought, and nothing was identified then, or on appeal, to suggest that the appellant might have been prejudiced through delay: cf PAH (Court of Criminal Appeal New South Wales 18 December 1998).
59   Although it would have been desirable for his Honour to have adverted, in a little more detail to the aspect of delay, no request for any further warning was made by experienced trial Counsel.
60   In these circumstances I am ofthe view that sufficient instruction was given to the jury by way of a Murray direction concerning the general need to scrutinise the evidence of the complainant with care (at pp. 7 to 8 of the summing up), and by the Crofts direction concerning the consistency or inconsistency of conduct associated with the complaint previously mentioned.

(d) S 165 Evidence Act submission

61 Next it was submitted that his Honour failed sufficiently to identify the matters that may have impacted on the reliability of the complainant’s evidence, eg in not reminding the jury that two counts had been withdrawn because the evidence of the complainant could not fit with known facts, that the time frame for three counts had necessarily been amended because of the variations in his evidence when compared with the account he had given to police, and that his evidence lacked precision and was vague as to times. 62 No request was made under S165(2) of the Evidence Act for any warning that the evidence of the complainant may be unreliable for any of the reasons specified in S165(1). While that does not mean that his Honour was excused from bringing to attention any matter, whether referred to in S165(1) or otherwise (Vawdrey Court of Criminal Appeal New South Wales 16 April 1998) that may have affected its reliability where it was necessary in the interest of fairness to do so, (BD (1997) 94 A Crim R 131; Davis [1999] NSWCCA 15 and Williams [1999] NSWCCA 9, proper regard still needs to be given to the judgment of trial Counsel, who is best placed to gauge the effect and adequacy of the summing up, and upon whom a responsibility exists to request any relevant direction or warning: PAH (Court of Criminal Appeal New South Wales 18 December 1998).] 63 It is clear that S165 was not overlooked at the trial, as his Honour gave an express warning based upon it, in relation to so much of the evidence of SW as was of a hearsay nature. Otherwise, the jury were given a Murray warning, and were reminded of several matters of inconsistency or uncertainty that had been pressed by the appellant. This followed a direction to the effect that inconsistency in the evidence of a witness may affect his credibility. 64   There is no reason to suppose that the jury had overlooked the fact that directed verdicts had been returned for two counts, or that amendments were allowed in relation to three other counts. The warnings given concerning inconsistency, and the standard direction given concerning the ability of the jury to accept part of the evidence of a witness and to reject part, were in my view sufficient. Moreover, it remains the fact that where a danger, such as unreliability is obvious to the lay mind, the lack of any specific reference to it is diminished in its significance: Bromley (1986) 161 CLR 315 at 325. 65 For these reasons grounds 3 and 3A have not been made good.

Ground 4 Lies

66   This ground relates to the directions given by his Honour concerning answers given by the appellant that were relied upon as lies. 67   Two matters were relied on as lies by the Crown. They related to the evidence he gave at the trial:

(a) that he had never slept with NW on the couch in the loungeroom, evidence to the contrary having been given by SW; and

(b) that the tattoo on his penis was legible, evidence that was directly contradicted by his own answers in the ERISP, and by the evidence of SW.

68   The evidence of SW concerning these two matters was not challenged in cross examination, and it was well open to the jury to conclude that the appellant had lied. 69   In the directions that were given, his Honour dealt clearly and appropriately with each of the elements required in a case where a jury is invited to take a lie into account as indicating a consciousness of guilt, and as providing support for the evidence of a complainant, ie in accordance with the principles established in Preval (1984) 3 NSWLR 647, Sutton (1986) 5 NSWLR 697, Edwards (1993) 178 CLR 193, Heyde (1990) 20 NSWLR 234, ST (1997) 92 A Crim R 390 and Green [1999] HCA 13. 70 The complaint went primarily to their use for this purpose, it being submitted that his Honour should have confined the evidence to the issue of the credibility of the appellant as a witness. It does seem that, at one stage, his Honour was minded to confine the use of lies in this fashion, but was ultimately persuaded to leave them on the broader basis. 71 I am quite unpersuaded that his Honour fell into error in taking this course. The matters relied upon were directly relevant to the occurrence of the offences - the first because it was the occasion of sleeping together on the couch that provided the opportunity for the offence charged in count 1; the second because the fact that NW was able to read the tattoo on his father’s penis meant that his face was close to it, at groin height, as he described in particular for the offence charged in count 2. 72 It was submitted somewhat faintly that his Honour failed to provide sufficient guidance as to the way in which either lie might indicate a consciousness of guilt. I am unable to agree with that submission. His Honour appropriately reminded the jury that the mere fact that the appellant told a lie was not enough, and went on to say:

“But I should tell you that there may be reasons for telling a lie quite apart from any realisation of guilt. It can sometimes arise, as we all know, ladies and gentlemen, out of a situation of panic. If you find that it arose out of panic or for some other reason, and if you accept that that is an explanation for the lie, then you cannot regard the lie as an admission so far as the accused is concerned.”

73   Later in the summing up, at the request of the Crown Prosecutor, his Honour emphasised that the jury had to be satisfied that any lie told by the appellant had been deliberate, and was shown by evidence independent of the complainant to have been a lie. There was little more that his Honour could have done in this regard. This ground accordingly fails.

Ground 5

74   It was submitted, finally, that the verdict was “unsafe and unsatisfactory”. 75   This ground needs to be considered in the light of the observations of the High Court in Fleming (1998) 158 ALR 379, concerning the expression “unsafe and unsatisfactory”. There it was said, at 382 to 383:

“The fundamental point is that close attention must be paid to the language of s6(1) of the Criminal Appeal Act . Use of the potentially confusing phrase ‘unsafe and unsatisfactory’ to cover the several different elements in the subsection is liable to mislead. There is no substitute for giving attention to the precise terms in which s6(1) is expressed.”

76 The legislative framework under which this ground is available is contained in the following provisions of the Criminal Appeal Act:

“Section 5(1) A person convicted on indictment may appeal under this Act to the Court:
(a) against the person’s conviction on any ground which involves a question of law alone, and
(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and
(c) …
…

Section 6 (1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion 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, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
…
Section 8(1): On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.”

77   In Johnston, Spigelman CJ said:

“Considering what order should be made the Court must have in mind the interconnection between s6 and s8 of the Criminal Appeal Act 1912. Subsection 6(2) states that the Court ‘shall’ direct a judgment and verdict of acquittal, but this is ‘subject to the special provision’s of the Act’. Section 8 is a ‘special provision’ and provides that a new trial may be ordered if the miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order, relevantly, a verdict of acquittal.”

As his Honour also observed in Giam [1999] NSW CCA 53:

“Much of what has hitherto been identified under the ‘unsafe and unsatisfactory’ ground of appeal is encompassed within the formulation in s6(1) of ‘on any other ground whatsoever there was a miscarriage of justice.”

78   It has been convenient to use the ‘unsafe and unsatisfactory’ formulation in the past, for the purposes of separately identifying a ground of appeal that depends upon the verdict being unsupported on the evidence, or that depends upon drawing on the other grounds of appeal in a cumulative way, in either case so as to justify a verdict of acquittal or an order for a new trial. (see Giam [1999] NSW CCA 53).
79   It was because of the imprecision involved in the expression “unsafe and unsatisfactory”, and the lack of any specific legislative basis for it, that Spigelman CJ in Giam adverted to the need to identify the ground of appeal relied upon with an appropriate degree of particularity, as well as the need to specify the nature of the order sought should the appeal succeed. 80   In this case, two aspects of the ground were relied upon. The first depended upon an accumulation of the matters catalogued in the other grounds, which it was said together resulted in a miscarriage of justice, in the sense referred to in Clough (1992) 28 NSWLR 396. If established it would lead to an order for a new trial. The second basis which, if made good, would entitle the appellant to an acquittal, turned upon the test, settled in M (1994) 181 CLR 487 and Jones (1997) 72 ALJR 78, namely whether, after making its own independent review of the evidence, this Court concluded that the jury ought to have entertained a reasonable doubt as to the guilt of the appellant. 81 As to the first basis, I am not satisfied, for the reasons already mentioned, that the errors identified in the remaining grounds were established, or that as a consequence there was a miscarriage of justice. 82 I observe, in this regard, that grounds of appeal found to be lacking in substance do not acquire any greater significance or worth when added to other grounds. The tendency which appears to have emerged of identifying as many grounds of appeal as possible, no matter how spurious, and then suggesting that in accumulation they establish a miscarriage of justice, needs to be firmly discouraged. Before an appeal will be upheld upon this basis, the appellant must positively demonstrate that there were errors in the conduct of the trial, relating to the admission (or rejection of) evidence or in the sufficiency or correctness of the summing up, or otherwise leading to a miscarriage of justice of such a kind and degree that it would be inappropriate to apply the proviso: Wilde (1988) 164 CLR 365. 83 I am similarly unpersuaded as to the second basis upon which this ground was advanced. Although somewhat imprecise as to times, as might have been expected, the complainant did not move from the central aspects of his evidence. Where he had no memory, he was frankly prepared to say so. On the other hand the appellant’s evidence was not without its problems. The advantage of the jury in seeing and hearing the witnesses, and in particular in assessing the credibility of the complainant and the appellant, should in this case, be respected: Chidiac (1991) 171 CLR 432 at 432-434 and Jones at 94. With this in mind, and noting that such inconsistency or vagueness as were present did not affect the central elements of the events described, I am unable to conclude, subject to the matter next mentioned, that the jury ought to have entertained a reasonable doubt as to the appellant’s guilt. 84 In relation to count 4, a problem does arise from the circumstance that the complainant could not remember the year in which the incident occurred. The best that he could do was to say that he “was about ten” at the time. In the reasons for sentence, his Honour said that he was “satisfied that this offence occurred during the victim’s ninth year”. By their verdict the jury must similarly be taken to have reached the same conclusion. However, the evidence of the complainant left open the possibility that it occurred after his tenth birthday. In those circumstances, I am of the view that a conviction for an offence requiring proof, beyond reasonable doubt, that the complainant was under the age of ten years, was unsafe and unsatisfactory. 85 However, since the jury were satisfied that the conduct charged did occur, the appellant would properly have been convicted of the alternative and lesser offence available under s 78K Crimes Act, ie homosexual intercourse with a male person aged ten years or over but less than eighteen years. A conviction for this alternative is permissible under S 78J Crimes Act 1900. Although raised peripherally in argument, and not subject to any considered submission, I am not persuaded by the proposition that where the jury are satisfied that the conduct charged did occur, but are left uncertain whether the complainant was aged under or over ten years, they must return a verdict of acquittal of any offence. 86 The age is a matter of aggravation, attracting additional consequences by way of penalty. Where the jury is in doubt only as to whether the complainant was of an age that would attract an aggravation of penalty, then I am of the view that they could convict of the lesser offence, i.e. without the factor of aggravation. 87 For these reasons, I would uphold the appeal against conviction in respect of count four, and substitute therefore a conviction for homosexual intercourse with a male aged between ten years and under eighteen years. 88 This requires a review of the sentence imposed. I would substitute for the sentence imposed a fixed term of penal servitude for eighteen months. I would not, however, alter any of the remaining sentences. The principle of totality does require that there be taken into account the circumstance that, for one offence, there was lacking the factor of aggravation mentioned. I am, however, of the view that the difference in objective criminality involved is not sufficient to require any reduction in the overall sentencing order. It was, in my view, one that was appropriate to reflect the overall objective and subjective criminality of the appellant, who, I observe, had been previously convicted of a similar offence involving another child. 89 Accordingly, I would propose the following orders:

1) Appeal in respect of Count four, be allowed and conviction for that count be quashed. In lieu conviction in respect of an offence of homosexual intercourse with a male person aged ten years or above but under the age of eighteen years be substituted;


2) Leave be granted to appeal in respect of sentence;

3) Sentence in respect of Count 4 be quashed. In lieu appellant be sentenced in respect of that count to a fixed term of penal servitude of eighteen months to date from 22 October 1997, and to expire on 21 April1999.

Otherwise, appeal against conviction and sentence be dismissed.

90   BARR J: I agree with Wood CJ at CL. 91   GREG JAMES J: I have had the opportunity to see the draft judgment of the Chief Judge. I agree with him.

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