R v Kennedy

[2000] NSWCCA 487

Reported Decision: [2000] 118 A Crim R 34

New South Wales

Court of Criminal Appeal

CITATION:	R v Kennedy [2000] NSWCCA 487
FILE NUMBER(S):	CCA 60242/00
HEARING DATE(S):	23 November 2000
JUDGMENT DATE:	23 November 2000
PARTIES :	Regina v Robert Neil Kennedy
JUDGMENT OF:	Heydon JA at 94; Studdert J at 1; Greg James J at 95

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/61/0210
LOWER COURT JUDICIAL OFFICER :	Bell DCJ

COUNSEL :	R.A. Hulme (Crown) G.P. Craddock (Appellant)
SOLICITORS:	S.E. O'Connor (Crown) D.J. Humphreys (Appellant)
CATCHWORDS:	Criminal law - miscarriage of trial in consequence of conduct of Crown Prosecutor - summing up - inadequacy of instruction to jury as to lies and consciousness of guilt - sexual offences charged - delay in complaint and delay prior to trial - necessity for judge to warn jury as to effects of delay.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Graham v The Queen (1998) 195 CLR 606 R v VHP (unreported, NSWCCA, 7 July 1997) R v Kneebone 47 NSWLR 450 R v Walton [1999] NSWCCA 452 Papakosmas v The Queen (1999) 196 CLR 297 Jones v The Queen 191 CLR 417 R v Hemsley (1988) 36 A Crim R 334 R v Newham (unreported, NSWCCA, 26 November 1993) R v O'Meagher (unreported, NSWCCA, 10 February 1997)
DECISION:	Appeal allowed; convictions and sentences quashed; verdicts and judgments of acquittal entered.

IN THE COURT OF
CRIMINAL APPEAL

60242/00

HEYDON JA
STUDDERT J
GREG JAMES J

Thursday 23 November 2000

REGINA v ROBERT NEIL KENNEDY

JUDGMENT

1   STUDDERT J: The appellant, Robert Neil Kennedy, appeals against his conviction in relation to two sexual offences as to which the jury found him guilty following his trial in the Dubbo District Court in February of this year.

2   The indictment contained three counts: the first count as initially framed charged him with having sexual intercourse with LAM without her consent knowing that she was not consenting and charged that this offence occurred “on or about 29 July 1981”. The second count charged him in the alternative with carnal knowledge of LAM at that same time. The third count charged him with having sexual intercourse with LAM without her consent knowing that she was not consenting between 1 June 1986 and 30 June 1986.

3   The appellant was arraigned on 21 February 2000 but the trial was adjourned to 23 February 2000. On that date the Crown Prosecutor applied to amend Counts 1 and 2 by substituting for “on or about 29 July 1981” the words “between 29 July 1981 and 23 April 1983”. Counsel for the appellant did not object to the amendment and the trial judge allowed it. Upon arraignment on the amended indictment the appellant pleaded not guilty and the trial then began.

4   Following convictions on Counts 1 and 3, the appellant was, on 7 April 2000, sentenced on each count to imprisonment for two years eight months commencing on 7 April 2000. A non parole period of eighteen months was set to expire on 6 October 2001. The appellant does not seek leave to appeal against the sentence imposed but challenges his conviction upon ten grounds in the grounds of appeal filed and he seeks to rely upon an eleventh ground not expressed in the grounds filed.

5   Before addressing the various grounds of appeal it is necessary to review the evidence and the issues presented at the trial.

6   By way of background, the complainant was born on 20 March 1969. The appellant is her stepfather. The complainant lived with her mother, her siblings and the appellant at the time both offences were alleged to have been committed.

7   The appellant denied that the act of intercourse charged in the first count occurred. In relation to the third count, the act of intercourse was not denied by the appellant but the appellant’s case was that the complainant consented to the later act, or at least there was absent any knowledge that the complainant was not consenting.

8   The proof of the prosecution case depended upon the evidence of the complainant, whose credibility was very much in issue. According to the complainant, she never liked the appellant and he used to abuse her physically as a child, hitting her with objects such as a belt, a thong and a piece of plastic tubing. There was one time when she said she was stabbed with a fork.

9   The complainant’s account as to the commission of the two offences of which the appellant was found guilty was as follows.

Count 1

10   The complainant said that when she was approximately twelve years old she was watching television in the family home in Albury. The wedding of Prince Charles and Princess Diana was being televised. According to the complainant, the appellant and her two younger brothers were in the lounge room but the brothers were asleep on the floor. The appellant took her into her brothers’ bedroom, put her on the bed and then took her pants off. The appellant then had penile-vaginal intercourse with her. The complainant said that she bled following this and the following morning complained to her mother, pretending that she was menstruating. The complainant said that her mother gave her some pads. The complainant said that subsequently she pretended for years that she was having her periods, although this did not commence in fact until she was sixteen years of age.

11   The complainant gave evidence that when she went to school on the day following this incident (or, as conceded in cross examination, it could have been as long as two weeks later), her friend TS saw the pads in her bag and the complainant then told TS that she had been bleeding because her father was interfering with her.

Count 3

12   The complainant then gave evidence about the later offence the subject of the third count. The complainant said that on an occasion in June 1986 when she was alone in the home where the family was then living at Broken Hill, the appellant called her into his bedroom, removed his singlet and asked her to squeeze pimples on his back. After this the complainant said that the appellant grabbed her by the shoulders, and placed her on the bed. The appellant removed his trousers and lay over her. The complainant’s evidence was that before doing so he had removed her clothing also, including her underwear but in cross examination the complainant said that she removed her own clothing because the appellant told her to do so. The appellant proceeded to have penile-vaginal intercourse. The complainant said that during this activity the bedroom door had been closed and a butter knife had been placed in the beam of the door to prevent it from being opened. After intercourse the complainant said she noticed “white stuff” on her leg and around her vagina. The complainant had told the appellant that she did not want the intercourse to occur but had made no physical movements to resist because she was scared. The complainant said she told the appellant her brother would be home from school soon and also that her mother would be home soon.

13   In the course of cross examination the complainant agreed that in her statement to the police she had made no reference to the appellant’s request to her to squeeze the pimples on his back, nor to her clothes being removed, nor to the appellant removing his clothing as in her evidence before the jury. In her statement to the police the complainant had asserted that the appellant had intercourse with her three times on this particular day but her evidence before the jury was that it had only happened once.

14   The complainant subsequently discovered she was pregnant and a child was born to her on 11 March 1987. Indeed, altogether the complainant had three children and the appellant acknowledged that he was the father of all three children. The child born on 11 March 1987 was the first of these.

15   The other witnesses called in the prosecution case were the complainant’s mother, TS and the police officer who ultimately conducted the interview of the appellant.

16   The complainant’s mother gave evidence that was inconsistent with the evidence given by the complainant in a number of respects. One point of inconsistency was that the mother said that the appellant had a very good relationship with the complainant and that he never hit any of the children. Another point of inconsistency was that, contrary to the complainant’s evidence, the mother said that she was at home when the royal wedding was televised and that she had watched this event with her children, including the complainant. Also present according to the mother, were her mother-in-law and the appellant who had his arm in plaster at that time. The mother said that it was definitely the first screening of the wedding that she recalled although she said the wedding was shown more than once. The mother denied that the complainant had told her that she was bleeding soon after the royal wedding was screened and she denied that she gave her daughter any sanitary pads shortly after the wedding was televised. She said that the complainant told her when she started her periods and that was when she was at high school when she was fourteen or fifteen.

17   The complainant’s mother also gave evidence relevant to the third count. The mother said that she observed a change in the relationship between the complainant and the appellant after they went to live at Broken Hill in 1985. She said that the appellant and the complainant started to go everywhere together and that a couple of months before her daughter’s state of pregnancy became apparent she said that she saw the complainant and the appellant in her bedroom and that the complainant was on top of the appellant and that they were having intercourse. The mother said that her daughter told her that she was “going with” the appellant who did not want the complainant’s mother any more. That conversation was denied by the complainant.

18   According to the mother, the family continued to live in the same house and although the appellant slept with the complainant most of the time, the mother continued to have a relationship with him.

19   TS gave evidence that she was at school with the complainant in 1983 but not 1981. TS could not recall the complainant ever saying anything to her about her father interfering with her and she did not support the complainant concerning the conversation which the complainant alleged she had had with her.

20   The appellant was arrested by police and interviewed on 2 March 1994, which it is to be observed was some thirteen years after the commencement of the period during which the offence charged in the first count is said to have occurred. In the course of the interview the appellant denied that he had ever had sexual relations with the complainant.

21   The appellant gave evidence. He described his relationship with the complainant as being a good one but that after they moved to Broken Hill she made advances to him and eventually he fell in love with her. The appellant admitted to commencing to have a sexual relationship with the complainant in Broken Hill and he said the complainant fell pregnant after the third or the fourth time that they had had sexual intercourse. The appellant said he had sexual intercourse with her many times over a period of five years but this was always consensual. He said he had lied to the police in the ERISP because he wanted to find out what was going on.

22   The appellant said that the complainant gave him a watch and a ring and the complainant admitted that she had given the appellant a ring. Her evidence was that the ring had the inscription “Dad, love [L]”. According to the defence case, the ring had engraved the words “Love forever [L]”. The appellant said that the relationship with the complainant had ended and he was once again in a very close relationship with the complainant’s mother.

23   The other evidence in the appellant’s case was introduced by way of affidavit. One of these affidavits was from a solicitor from the Aboriginal Legal Service who at one time had the conduct of the appellant’s case. He deposed that the appellant had provided him with a ring with a view to its use in evidence at the pending trial and that the ring had the words engraved upon it “Love forever Letitia”. This solicitor had resigned from the Aboriginal Legal Service and no longer had possession of the ring or the photographs of it which he had arranged to be taken. A second affidavit from a solicitor with the Western Aboriginal Legal Service said that no ring and no photographs could be located in the office of the Aboriginal Legal Service.

24   A statement was read to the jury from a woman who at one time had been going out with one of the complainant’s brothers in Broken Hill and who lived in a flat behind the complainant’s home in Broken Hill for three to four months. According to this witness, she observed the appellant and the complainant to have a close relationship and she said she would often see the complainant seated in the front seat of the car with the appellant whilst the complainant’s mother would sit in the back seat.

25   Evidence was also introduced in the appellant’s case that the royal wedding was screened live on 29 July 1981 between 6.44 pm on that date and 1.42 am on the following morning.

26   Against this review of the evidence, I turn to consider the various grounds of appeal.

Ground 1: A miscarriage of justice was occasioned by the granting of leave to the Crown to amend the indictment by enlarging the period during which it was alleged that the offence charged in Count 1 was committed

Ground 2: A miscarriage of justice was occasioned by the Crown putting to the jury a case not based upon the evidence admitted in the trial

27   It is convenient to consider these two grounds together.

28   The trial judge allowed the Crown to amend the indictment after having been informed that there was no objection to this course by the accused. However, in discussion which followed and before the appellant pleaded to the charges as amended, it became apparent that the reason why the Crown wanted to move from alleging a specific date for the commission of the offence charged in the first count to a lengthy period within which it was to be alleged the offence occurred, was because of evidence which it was anticipated would emerge in the prosecution case:

(a) From the complainant’s mother that she was at home watching the royal wedding on television at a time when the complainant’s evidence placed her as absent from the house playing bingo. The royal wedding was on a Wednesday and it was anticipated that the mother’s evidence would be that bingo was on a Saturday.

(b) From TS that she was not in Albury in July 1981 or indeed until 1982. (As the evidence at the trial emerged, TS was not at the same school as the complainant until 1983.)

29   It is submitted on the appellant’s behalf that the failure of trial counsel to object to the amendment demonstrated incompetence but whether this be so or not, it is the responsibility of this Court to determine whether, having regard to the way in which the evidence emerged and to the way in which the trial was conducted, the amendment of the indictment resulted in a miscarriage of justice. In my opinion it did.

30   Both the complainant and her mother gave evidence that they saw the live telecast of the royal wedding. The complainant said her mother was not at home; her mother said she was, and this was on the night of the alleged commission of the offence charged in Count 1 before that count was amended. The Crown sought to avoid the difficulty with which it was confronted by making the amendment and then advancing as a submission to the jury that what was seen could have been a replay (even though the mother said that what she saw was definitely a live telecast).

31 The evidence of TS to the effect that she did not know the complainant before 1983 created a further difficulty for the Crown because it placed her evidence in direct conflict with that of the complainant that the complainant spoke of the appellant’s misconduct when she saw TS at school at a time just after having seen the royal wedding on television. If what the complainant saw was a live telecast, her evidence could not stand with that of TS. If the offence occurred on 29 July 1981, but no complaint was made until 1983, such complaint might well not then have been regarded as recent, and evidence of it would not have been properly admissible under s 66 of the Evidence Act: Graham v The Queen (1998) 195 CLR 606. If what was seen was, contrary to the complainant’s evidence, a replay, there was room for avoidance of conflict and much better prospects for admitting evidence of recent complaint. The jury was invited by the Crown to conclude that what the complainant had seen was a replay and the trial judge reminded the jury of the Crown’s submission on p 18 of the summing up:

“The Crown says in relation to the wedding ceremony, well because it does not sit with some other evidence you might conclude that it came at a later date, it was a replay…”

32   That reference in the summing-up accords with the passage of the transcript of the Crown Prosecutor’s address to the jury to which the Court’s attention has been drawn in the course of oral submissions today.

33   There are cases where time has been made of the essence of the offence. This was such a case, because the complainant, was insistent that the offence occurred on the same day as the royal wedding, and she was also insistent - she said she was 100% sure - that she witnessed a live broadcast of that royal wedding just before the commission of the offence. The complainant’s evidence as to the commission of the first offence made the time of such commission essential to the acceptance of her evidence and was crucial in the sense referred to by Gleeson CJ in R v VHP (unreported, NSWCCA, 7 July 1997) where the Chief Justice said at 15:

“As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable."

34   It does not seem to me that it was possible to treat the complainant’s evidence as reliable as to the commission of the offence if it was not reliable as to the date upon which she said it occurred. Yet the effect of the amendment was to obscure this difficulty and the amendment resulted in the jury being left to consider a Crown submission contradicted by the evidence of the complainant that what she was watching on the night of the offence was a replay of the royal wedding rather than a live telecast. It seems to me that the amendment resulted in unfairly depriving the appellant of the possibility of an acquittal which the indictment prior to amendment would have presented.

Ground 3: The trial of the appellant miscarried by reason of the conduct of the presentation of the case by the Crown Prosecutor

35   This Court has today been taken to passages of the transcript of the address of the Crown Prosecutor to the jury. The appellant complains that in his address the Crown Prosecutor asserted, in commenting on the evidence of the complainant’s mother, that this witness endeavoured in her evidence to protect the appellant, and was doing her best to look after his interests. The Crown, in its written submissions placed before this Court, has conceded that the Crown Prosecutor did address the jury in the manner as to which the appellant complains. The reference in the transcript to which the Court has been taken today revealed that this complaint made by counsel for the appellant was soundly based.

36 This witness was called in the Crown case. The Crown Prosecutor did not put any questions to the witness such as would have afforded her the opportunity to answer the suggestions that she was trying to protect the appellant and that she was doing her best to look after his interests. Nor did the Crown seek to lay any ground work for questioning on such matters by making an application pursuant to s 38 of the Evidence Act. The result was that the witness was given no opportunity to respond to the Crown assertions.

37   There can be no question but that the Crown Prosecutor had a responsibility to present the Crown case properly and fairly. Unfortunately what the Crown Prosecutor did in relation to this witness departed from proper and fair presentation. Fairness not only to the witness but to the appellant required that the witness should have been afforded the opportunity to address the substance of the critical submissions later made to the jury. Since the Crown Prosecutor did not afford the witness the opportunity to meet these assertions later put to the jury, there was no justification for their being made.

38   The responsibilities of a Crown Prosecutor were considered by the Court of Criminal Appeal in two recent decisions in cases, unhappily involving this same Crown Prosecutor: see R v Kneebone 47 NSWLR 450 and R v Walton [1999] NSWCCA 452. In Kneebone the court had occasion to consider the duty of the Crown Prosecutor in determining what witnesses should be called. In that case the principle that the Crown Prosecutor is responsible for ensuring that the case is presented with fairness to the accused and to the court was emphasised. In the later case of Walton that principle was given added emphasis in a judgment of Greg James J with which the other members of the court agreed. In Walton a witness was called in the case for the Crown and the Crown Prosecutor asked her nothing more than her name, address and occupation but in the subsequent address to the jury the Crown Prosecutor impugned the credit of the witness in circumstances in which, as the Crown conceded on appeal, the prosecutor had not put the matter about which criticism was to be made to the witness. This conduct on the part of the Crown Prosecutor resulted in stern criticism in the Court of Criminal Appeal: see in particular the judgment of Greg James J at paras 38-49.

39   It may be that the Crown Prosecutor was not aware of what had been said in Kneebone and Walton when the present trial was being conducted but whether he was or not, it seems to me that the conclusion is inescapable that the conduct under consideration on this ground led to a miscarriage of justice. I reach that conclusion notwithstanding the Crown’s submissions to the contrary. The Crown has today submitted that what was put to the jury by the Crown Prosecutor did not invite the jury to do something that they may not have been going to do or may not have done anyway. It cannot be assumed that the jury would have done what the Crown invited them to do about this witness. The jury may well have been influenced by the submissions complained of to reject evidence that the witness gave which was favourable to the appellant’s case and which impacted on the credibility of the complainant. I have in mind in particular evidence which the witness gave on the following matters:

(i) the appellant’s treatment of the complainant when she was a young child;

(ii) the evidence of the witness as to being present with the complainant when the live telecast of the royal wedding was seen;

(iii) her evidence that the complainant did not complain to her following that telecast that she was bleeding and associated with the absence of such a complaint that the witness did not provide the complainant with sanitary pads;

(iv) the evidence that the witness gave of discovering the complainant and the appellant together in circumstances tending to indicate the complainant’s consent to sexual intercourse at a time relevant to the offence charged in the third count.

40   Counsel appearing for the appellant at the trial did not seek any direction from the trial judge about the offending submissions and the trial judge gave no direction which addressed the matter. However, as I see it, notwithstanding a failure by counsel to take the point at the trial, this Court should, for the reasons I have indicated, grant leave for the ground now taken to be relied upon. What happened amounted to a serious irregularity and I consider that Ground 3 has been established.

Ground 4: A miscarriage of justice was occasioned by reason of the failure of the learned trial judge to limit, pursuant to s 136 of the Evidence Act 1995, use to which the jury could put the evidence of complaint given by [TS]

41   The direction which the trial judge gave to the jury was in these terms (SU 26-27):

“There is also another direction I should give you about the conversation between [the complainant] and [TS]… This direction relates to what is called evidence of complaint and [the complainant] has said that she made a complaint of sexual interference to [TS]. What do you make of that evidence? You know, what value does it have in your deliberations?
Again, if you are satisfied, and I stress, if you are satisfied that [the complainant] did in fact say to [TS] the words that [the complainant] says at the time that [the complainant] said she said them, then you are entitled to use that evidence also as some evidence of the guilt of Mr Kennedy. If you are satisfied that she made a complaint as she said she did, and [TS] says she doesn’t remember anything, but if you are not satisfied that it was actually made at the time then you cannot use that evidence against Mr Kennedy…
If you are satisfied [the complainant] told [TS] in the way she says she did, and frankly I think that is a little bit hard because there is a conflict, and the Crown acknowledges that by making the time frame extended, but if you are satisfied that that was made then you are entitled also to use that as evidence of the Crown case against Mr Kennedy.”

42 I adverted earlier when considering Grounds 1 and 2 to the difficulty that the amendment of Count 1 created in determining whether any complaint made was then recent. It is further submitted here that the judge should have directed under s 136 of the Evidence Act that the evidence of complaint be given a limited effect, restricting its use by the jury to considering its consistency with the complainant’s conduct. The complaint is thus that the above direction was too broad. Reference was made to Papakosmas v The Queen (1999) 196 CLR 297 where the potential application of the section to evidence of complaint was considered.

43 The appellant complains that the absence of a limiting direction was compounded by the absence of any warning under s 165 of the Evidence Act.

44 At the trial counsel for the appellant sought neither a direction under s 136 nor a warning under s 165. Rule 4 therefore applies. I have concluded for other reasons that these convictions ought to be quashed but if this ground was to be considered in isolation I would not have been disposed to grant leave to rely upon it. The judge drew the jury’s attention to the conflict between the complainant and TS and the problem that this presented for the jury in making any use of the complaint evidence. If there was no other difficulty with this trial, it would not seem to me that the direction that his Honour gave would have involved any risk of a miscarriage of justice.

Ground 5: A miscarriage of justice occurred by reason of his Honour’s directions as to the matter being a “competition” between the complainant and the appellant

45   In the course of his summing up his Honour referred to the competing evidence of the complainant and the appellant concerning each of the offences charged. His Honour went on to say (SU 14):

“So you could say ‘well there is competition, a conflict between the two’. As long as you keep in mind, you can say that, you can say indeed to yourself ‘do I believe this, do I believe that’, you are entitled to do that. You are entitled to do that. That can produce this sort of result. ‘I am satisfied Mr Kennedy has told me the truth’, end of case, verdicts not guilty. If you do not say that - and that is not necessarily the first question but if you do say that - the question that you put after that is ‘If I accept Mr Kennedy, am I satisfied beyond reasonable doubt that [the complainant’s] told me the truth’, is a conclusion that cannot be, so end of case. All right, next question, ‘I believe [the complainant]. I do not believe Mr Kennedy, I believe [the complainant]’. That is not the end of it because the test is beyond reasonable doubt. The Crown may have proved the charge but it has got to be proved beyond reasonable doubt so you have to believe [the complainant] beyond reasonable doubt. Keep that as your last question, you do not go wrong.”

46   Complaint is made that this direction was erroneous because it may have distracted the jury and may have led them to believe that it was appropriate to analyse the case by asking whether they believed the appellant. The danger, it was submitted, was that this might mislead the jury as to the onus of proof.

47   When one looks at the above passage of the summing up as a whole, I do not perceive there to have been a risk that the jury would have been led astray in the manner for which the appellant here contends. Whilst I consider it is unfortunate that the jury was directed that it was appropriate to start by considering whether it believed the appellant, viewed as a whole it seems to me that the jury was adequately instructed that it was for the Crown to prove beyond reasonable doubt the guilt of the appellant and that this in turn involved proving beyond reasonable doubt that the complainant was telling the truth.

48   Moreover, earlier in the summing up (at pp 6-7), the jury had been given these further directions in point:

“Now, it is important that you understand [the accused] does not have to convince you of anything. You are entitled to look at his evidence because it is part of the whole of the evidence, all the material that there is in the trial, but he does not have to convince you of anything. The Crown has the task to convince you essentially that [the complainant’s] told you the truth and the whole truth and nothing but the truth, that is really what the trial is about and that you are satisfied on that point beyond reasonable doubt, so I want to get that point clear in your minds. I am sure the Crown had not meant to suggest that Mr Kennedy had to prove his innocence or had to prove that he did not do anything wrong by that comment but in case it is reacted with you in the thinking ‘well you know, has Mr Kennedy satisfied me that he didn’t do it?’, that is totally wrong. The shoe is on the other foot as it were. The Crown has to prove the case as the Crown brings the case.
Well now I have told you that is the first principle, is the presumption of innocence. The second one is the burden of proof and I have said it to you, that the Crown has to prove the guilt of the accused.
Now the trial is not conducted as if it is a competition, like a sporting event such as a race or a tug-of-war where you have got opposing sides and one side has to draw the other side across the winning line or one side has to run across the winning line. Sometimes it may appear to you in the trial that it is very much like that, you have got competing sides. One putting forward something, one challenging it, the other one putting forward something, it being challenged and so it is backwards and forwards, it is a competition between these two people. That is quite all right for the trial to proceed on that basis in that manner as the case is tested but the end of the process is not which side has convinced you, the question is only has the Crown satisfied you, convinced you beyond reasonable doubt. I used the word ‘convince’, but the words that are written large in the law are ‘satisfied beyond reasonable doubt’ and that is the final question that you put yourselves when you have thought about the evidence and you have thought about the arguments. You put to yourselves the question ‘Am I satisfied beyond reasonable doubt that [the complainant’s] told me the truth and that the legal elements (which I will come to) have all been satisfied beyond reasonable doubt in my mind’.”

49   In my view the above directions made it clear to the jury where the onus lay, that the appellant did not have to prove anything and that ultimately proof of the Crown case depended upon satisfaction beyond reasonable doubt that the complainant had told the truth.

50   This grounds fails.

Ground 6: His Honour erred in his directions as to lies and consciousness of guilt

51   The directions which the jury was given concerning lies appears at pp 25-26 of the summing up. His Honour referred to the record of interview and said of it:

“…I must give you a legal direction now about the record of interview that Mr Kennedy participated in with the police. There is no doubt that it, it is lies, he has accepted that it is lies.”

52   Nowhere in the direction which followed did his Honour identify those lies to which he was referring (SU 26):

“Well now in terms of the evidence of a lie your initial reaction might be ‘oh you know he’s got something wrong’ but the law says people lie for lots of reasons. They can lie because they are nervous. They can lie to protect other people. They can lie because they do not want to commit themselves to anything at the time and that you should be aware that people lie for various reasons. If you are satisfied that this is a deliberate lie told by Mr Kennedy because if he told the truth in the record of interview then it would have revealed his wrongdoing in relation to the matters that have brought him before the Court - the word that the law uses is consciousness of guilt. He is hiding his guilt about these matters - if you are satisfied that that is the case then you are entitled to use his lie as evidence in his guilt, but unless you are satisfied that he told a deliberate lie to cover up the truth because it would involve him in this wrongdoing you cannot use that lie against him. And as Mr Shaw has pointed to you in the evidence, Mr Kennedy said he lied because he wanted to find out what was going on. Look at the time frame Mr Shaw said, 1989, 1992, birth of child, interviewed 1994. So there was a time period of a couple of years, at least after the birth of the child.”

53   The complaint is made that these directions invited the jury to consider that the whole of the appellant’s answers in the record of interview could be treated as lies and, indeed, the direction was so broad as to encompass the appellant’s denial of the 1981 offence. Question 60 prompted a denial:

“60.Q. Right. I am now going to ask you some questions about an allegation that, about the 27th July 1981 at Albury in New South Wales, you had sexual intercourse with [the complainant] by placing your penis in her vagina. Before I do, I want you to understand you are not obliged to say anything unless you wish to do so, but whatever you say will be recorded and may be used in evidence. Do you understand that?
Q. Yeah. No. Never.”

54   There followed questioning in closer detail at questions 98-101 on the complainant’s version of that first sexual offence:

“98. Q. All right. It is further alleged that on that particular evening you took [the complainant] into Robert Kennedy’s room. What can you tell me about that?
A. No. Nothing.
99. Q. All right. It is further alleged that, after taking [the complainant] into Robert Kennedy’s room, you removed [the complainant’s] pants.
A. No. No.
100.Q And it is further alleged that you then placed your penis in [the complainant’s] vagina.
A. No. No, I don’t remember anything like that, no.
101.Q. And it is further alleged that you then said ‘Go straight to the toilet’. What can you tell me about that?
A. No. That’s all, all lies, that.”

55   Then a more general question and answer followed:

“103.Q Did you have sexual intercourse with [the complainant] on any occasion whilst you were living in Albury, New South Wales?
A. No. No, she was only a little girl.”

56   Rule 4 applies to this ground because no objection was taken to the directions given to the jury about lies.

57   The Crown submitted that it would have been obvious to the jury that the reference to lies in the interview was a reference to the appellant telling the jury that he had never had sexual intercourse with the complainant. In his evidence at the trial the appellant admitted that he had had intercourse with her more than 100 times in a period of five years and that the complainant had three children by him. So it is, the Crown argued, that it would have been obvious to the jury that his Honour was not referring to anything that the appellant told the police concerning events prior to the admitted period of sexual relationship which began in about June 1986. Unfortunately, the jury was not told this, and plainly the jury should have been assisted by being informed precisely what it was to which the directions related. It seems to me that absent more precise definition of the “lies” the subject of the directions given, it was open to the jury to wander into inappropriate areas of the record of interview and to consider inappropriately responses to be found there as evidence of the appellant’s guilt.

58   Leave to rely upon this ground should be granted and, in my opinion, the ground has been established.

Ground 7: A miscarriage of justice was occasioned by the failure of his Honour to direct the jury as to the manner in which the delay in the making of the complaint and the prosecution of the alleged offences impacted upon the appellant’s defence

59   The delay between the alleged commission of these offences and in particular the offence the subject of the first count, was very significant. The complainant did not approach the police until 1991 and the interview which prompted the directions to the jury as to lies did not occur until 1994. The trial took place six years after that. The appellant was criticised by the Crown for his lack of detailed recollection as compared with that of the complainant. In the course of submissions today, the learned Crown Prosecutor has properly drawn the attention of this Court to passages of cross examination of the appellant where he was cross examined at the trial about his lack of recall.

60   In the summing up (at 16), the jury was reminded of a Crown submission that by way of contrast with the complainant’s detailed evidence the appellant’s answers were “very general”, “you cannot tie him down”. The Crown case on the first count gave rise to issues not only as to the time of the telecast but as to who was present at it. There was the issue as to whether there had been a contemporaneous complaint made, and there was the further matter as to what was the nature of the relationship between the appellant and the complainant that preceded the period in which sexual intercourse admittedly took place in 1986 and later, and in particular in the period when the complainant was a twelve year old school girl.

61   The delay of thirteen years prior to the police interview and the delay of nineteen years prior to the trial must have impacted upon the appellant’s capacity to give a comprehensive account to the police in 1994 and to refute the Crown case at trial.

62   The jury was given no instruction as to the possible significance of delay in this case; it was not alerted to the disadvantages which the appellant faced as a consequence of the lapse of time. It seems to me that the circumstances gave rise to a need to give the jury a suitable warning.

63   In R v Johnston (1998) 45 NSWLR 362 at 375 Spigelman CJ said:

“(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).”

64   The jury in the present case should have been given a warning in accordance with the second of the propositions set out above.

65   This is another ground of appeal to which r 4 applies because there was no application made for a suitable direction. There can have been no conceivable advantage for the appellant to decide not to apply for a suitable direction. The absence of any warning as to the danger of convicting after such delay, particularly in relation to the first count, resulted in the jury considering these charges without the benefit of instruction to which the appellant was entitled. In my opinion, the appellant should have leave to rely upon this ground and the ground has been established.

Ground 8: A miscarriage of justice was occasioned by the failure of his Honour to direct the jury as to the appellant’s case

66   This ground was abandoned.

Ground 9: A miscarriage of justice was occasioned by reason of the incompetence of the appellant’s counsel

67   What the appellant relies upon in relation to this ground is elsewhere addressed in other grounds of appeal. The matters referred to have been identified as the failure to oppose the amendment of the indictment, the failure to object to the Crown putting a case to the jury not based on evidence, the failure to seek a direction limiting the use to which complaint evidence could be put, the failure to seek proper directions as to the elements of the offences, the failure to seek proper directions as to lies and the failure to seek proper directions as to the effect of delay.

68   Since these complaints are elsewhere addressed it does not become necessary to deal with Ground 9 as a discrete ground of appeal.

Ground 10: The convictions constitute miscarriages of justice in that the jury ought to have experienced a reasonable doubt as to the guilt of the appellant with respect to the offences charged as Counts 1 and 3

69   Although I consider the conviction must be disturbed for reasons already expressed, it remains appropriate to consider Ground 10 because if this ground is established the appellant would be entitled not merely to a new trial but to an acquittal.

70   The complainant’s evidence formed the basis of the Crown case. That case depended entirely upon the jury’s acceptance of the reliability of her evidence. The fact that there was no complaint to any person in authority for approximately ten years after the time of the alleged commission of the earlier offence is a circumstance which alone requires that the complainant’s evidence be closely scrutinised: see Jones v The Queen 191 CLR 417 at 453. The complainant’s evidence cannot be reconciled with the evidence of her mother in critical respects that bear upon the commission of these offences, particularly the earlier one. The complainant’s evidence of complaint to her school friend did not receive support from that witness where support would have been expected. So far as the second offence is concerned, the issue of consent was critical and the complainant’s mother gave evidence which, if believed, proves an act of consenting intercourse which she observed between the appellant and the complainant close to the time that the offence charged was committed. Indeed, the mother’s evidence, if believed, established the development of a close relationship between the complainant and the appellant by the time the complainant was seventeen.

71   The appellant gave sworn evidence denying the act of intercourse first charged and asserting that the second act was consensual.

72   There was the unusual circumstance that the complainant had three children by the appellant but said that she never had consensual intercourse with him. Yet she continued to live in the same house with him.

73   This ground of appeal requires attention to all the evidence which was placed before the jury including those features which I have identified. Doubtless all those features of the case which required the complainant’s evidence to be so closely scrutinised were considered by the jury. The jury was instructed in the summing up to subject the complainant’s evidence to close scrutiny (SU 18). This Court must, of course, recognise the position of advantage of the jury in seeing and assessing the witnesses as they gave their evidence. Recognising that advantage, not here shared, I am not persuaded that the jury ought to have had a reasonable doubt about the guilt of the appellant on either the first or the third count. It was open to the jury to accept the complainant as a reliable witness.

Ground 11: That the jury was misdirected as to the elements of the offences charged

74   This ground was not expressed in the notice of grounds of appeal filed but the Crown does not object to leave being granted to add this ground and such leave should be granted.

75   The directions which the learned trial judge gave to the jury on the elements of the offences charged in the first and the third counts were as follows (SU 9):

“Now the legal elements in the first and third counts - but remember they are separate and that the first has an alternative - involve, if you can think of it three things, the act, focus on the woman, focus on the man.
The act is sexual intercourse. The law says that the entrance or the penetration by the penis into a vagina is sexual intercourse. There has to be some degree of penetration. You do not have to be satisfied by how much, as long as there is some. You do not have to be satisfied whether the penis is erect or not. You do not have to be satisfied that there is a climax or not. You do not have to be satisfied that the man is enjoying it or not. It is the basic act, the penis penetrating the vagina. Now that applies indeed to all three of the charges, the act.”

76   His Honour then went on to remind the jury that the appellant denied the act of intercourse charged in the first count. His Honour then proceeded (SU 10):

“The second aspect is the focus on the woman. She was not consenting. [The complainant] has told you after a history of physical abuse, in effect her will was overborne by Mr Kennedy and that if he required something of her against her will she gave it to him. She did not stand in opposition to him but she was not consenting.
Now if it stopped there it would be very unfair because the man would not know whether the woman’s consenting or not and the mere fact that a woman says that she was not consenting would be the end of the matter so the law now focuses upon the man.
Now in some circumstances it is glaringly obvious on the woman’s version, that she is not consenting. Indeed in the first charge here [the complainant] says she was screaming out. She was indicating she was not consenting.”

77   His Honour then went on to remind the jury (SU 11):

“All right, how does the Crown indicate in the evidence that the man Mr Kennedy knew that [the complainant] was not consenting. Well there is the direct evidence that she was making her protest audible by screaming, that she was in that way rejecting the advance by Mr Kennedy.
Now the law goes a little further than directly seeing the woman objecting to the event and says that if a man in fact does not care whether the woman is consenting or not but he has his way with her, to use the old words, he is reckless. Reckless meaning that he does not care but he goes ahead and does it anyway.
So the Crown says in the first charge, even if you are not satisfied that Mr Kennedy directly appreciated from [the complainant] her opposition he went ahead in circumstances where he did not care whether she was consenting or not and he had sex with her.”

78   His Honour then went on to give directions about the third count (SU 13):

“Count number 3, same set of ingredients, act, focus on woman, state of mind, not consenting. Focus on man, state of mind, he believed, well he knew that she was not consenting.
Here the defence is it was a consensual act. She was consenting, Mr Kennedy believed she was consenting and that the circumstances were such that he was, in effect, entitled to believe that . When you look at it there was not something that was occurring that would indicate to him that he was acting recklessly, that he was going to have sex whether she wanted it or not, so they are really different scenarios as it were, even though the sexual intercourse incident runs between all of them, but you do have to approach them on a different basis. First one you are determining did the act occur. The third one you do not have to determine did the act occur because it is agreed that it occurred . What you have got to concern yourself with on the third one, standing as I remind you, as a separate trial as it were, is was there consent, or has the Crown proved that there was no consent and has the Crown proved that Mr Kennedy knew that [the complainant] was not consenting .
So basically the first charge is are you satisfied the act occurred. The third charge is are you satisfied there was no consent and that Mr Kennedy knew that no consent . That is it to contrast number 1 and number 3 because they are basically, not basically, they are the same set of legal ingredients.”
(Emphasis added)

79   The complaint is made that the trial judge failed to direct the jury that if the jury considered it to be a reasonable possibility that the appellant believed the complainant was consenting he should be acquitted. In instructing the jury in the words “Mr Kennedy believed she was consenting and that the circumstances were such that he was in effect entitled to believe that” introduced an objective test and that the jury should have been instructed that the test was a subjective one.

80   In R v Hemsley (1988) 36 A Crim R 334 the Court of Criminal Appeal considered the following directions of the trial judge to be correct (set out at 336):

“You should remember we are considering the situation where the girl in fact did not consent. In such a situation the man's state of mind at the time of the act of intercourse might be that he actually knew that she was not consenting. That is a guilty state of mind and if the evidence satisfies you that that was the state of mind of the accused at the time of the act of intercourse then the third element of the charge has been made out.
On the other hand, the man's state of mind might be that he honestly, though wrongly, believed the girl was consenting to intercourse. That is not a guilty state of mind. It is for the Crown to prove that the accused had a guilty mind and so if as to either charge the Crown has failed to prove that at the time of intercourse the accused did not honestly believe that the girl was consenting, then in respect of that charge you would have to say that this third element of the defence is not made out and return in respect of that charge a verdict of not guilty.
Between those two situations, on the one hand, the knowledge that the girl did not consent, and on the other hand, an honest though mistaken belief that she does, there lies the third possible situation where the man does not actually know either way, but is reckless as to whether the girl is consenting or not. That is to say, his state of mind is such that he realises the possibility that she is not consenting, but chooses to proceed to have intercourse notwithstanding. The law says that is a guilty state of mind. The law says that a man who is reckless as to whether the woman consents or not is deemed to know she is not consenting. That is to say, he is to be treated as if he knows in fact that she does not consent."

81   Later, in R v Newham (unreported, NSWCCA, 26 November 1993) Clarke JA, having referred to the direction in Hemsley said:

"The importance of the passage I quoted is that it directs attention wholly and solely to the subjective state of mind of the accused person. The court is not concerned with an objective test, but whether on the facts proved the accused person had the requisite knowledge or, alternatively, acted recklessly in the way there described."

82   It is plain from a consideration of the above authorities that on the issue of knowledge, it is the subjective state of mind of the accused person which is to be considered. See also O’Meagher (unreported, NSWCCA, 10 February 1997). I now return to the direction in the present case which has attracted this ground of appeal.

83   Referring to the first of the passages emphasised in the extract from the summing up, it was submitted that this introduced an objective test contrary to the authorities reviewed.

84   It was submitted that this was a significant error because the complainant had given evidence that she made no physical movements to resist as she was scared and the complainant said only that her mother and her brother would be home soon. Since their verdict indicates that the jury must have believed the complainant was not consenting, the appellant’s belief or the lack of it assumed critical significance.

85   The Crown has submitted that the first of the passages emphasised in the direction under consideration was not a direction of law at all but a review of the way the appellant put his case. The directions of law are to be found, the Crown submits, in the second and the third of the passages emphasised. Here the jury was told that the Crown had to prove lack of consent and knowledge in the appellant that there was lack of consent and this involved no misdirection.

86   It seems to me that the Crown’s analysis of the first of the emphasised passages is correct. This being so, the charge to the jury only addressed two of the three situations considered in Hemsley. The jury should also have been directed as to recklessness as the jury was charged in Hemsley. However, the lack of any direction about this third consideration did not operate against the appellant. As charged, the jury had to be satisfied, absent consent, that the appellant knew the complainant was not consenting. The appellant lost no chance of acquittal on the third count because the jury was not told that if he realised the possibility that the complainant was not consenting but chose to proceed to have intercourse notwithstanding, this constituted recklessness.

87   In my opinion Ground 11 has not been established.

Proposed orders

88   I would propose that this appeal be allowed, for the reasons stated, and that the convictions and the sentences of the appellant on both the first and the third counts be quashed.

89   The question arises as to whether a new trial should be ordered. In Walton (supra) one of the features which influenced the court not to order a new trial was that the first trial had miscarried because of the Crown Prosecutor’s conduct at trial. One of the reasons for this trial having miscarried is the conduct of the Crown Prosecutor.

90   Another matter of significance, as I see it, is that this is now a very old case. There has been a lengthy delay between the alleged commission of the offences and the time of the first trial. There would be further delay if the appellant was required to stand trial again.

91   It does not seem to me, for the reasons I have indicated, that it would be appropriate for there to be a new trial on the indictment as amended in any event.

92   I have concluded that in all the circumstances of this case, a new trial ought not to be ordered and that verdicts and judgments of acquittal should be entered.

93   I would therefore propose the following orders:

1. That the appeal be allowed;

2. That the convictions and the sentences be quashed;

3. That verdicts and judgments of acquittal be entered.

94   HEYDON JA: I wish to make favourable reference to the responsible and honourable approach of counsel, who appeared for the Crown on appeal, to the issues in this appeal. He did not appear at trial. Apart from that, I agree with Studdert J.

95   GREG JAMES J: I agree with the orders proposed by Studdert J and his reasons therefor. I specifically wish to associate myself with the remarks made by the presiding judge.

96   HEYDON JA: Accordingly, the Court will make the orders proposed by Studdert J.

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