R v King - [2000] NSWCCA 507

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v King [2000] NSWCCA 507

FILE NUMBER(S):
60120/00
60128/00

HEARING DATE(S): 27/11/00

JUDGMENT DATE: 06/12/2000

PARTIES:
Regina v Elliott Noel King

JUDGMENT OF: Fitzgerald JA Whealy J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/51/0205

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
P. G. Berman SC - Crown
S. J. Odgers SC - Appellant

SOLICITORS:
S. E. O'Connor - Crown
D. J. Humphreys - Appellant

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave refused pursuant to Rule 4; and appeal is dismissed

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL
60120/00
60128/00
FITZGERALD JA
WHEALY J
HOWIE J

WEDNESDAY 6 December 2000

REGINA v Elliott Noel KING
JUDGMENT

FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Whealy J. As his Honour’s judgment demonstrates, the prosecution case against the appellant was exceptionally strong.
If it had been possible to obtain forensic examples from the complainant and the appellant and obtain and compare DNA profiles from those samples, evidence of the result might have further inculpated the appellant or it might have exculpated him.
The trial judge did not direct the jury to take into account when deciding whether the appellant’s guilt had been proved beyond reasonable doubt that if the prosecution had obtained DNA evidence it might have exculpated the appellant or at least raised a reasonable doubt as to his guilt.
The appellant’s trial counsel had drawn the absence of DNA evidence which might have assisted the appellant to the jury’s attention in his address and did not ask that trial judge to add the weight of his authority to the point. Approximately a year after the appellant’s conviction, his trial counsel believes that his omission to ask the judge for such a direction must have been an oversight on his part because he is unable to think of any tactical reason for not doing so.
While counsel no doubt honestly holds the belief which he has stated, it is equally plausible that a redirection was not sought because there was not thought to be sufficient purpose in doing so, especially when such a step might again emphasise the exceptional strength of the case against the appellant. Commonly, when an appeal is argued by different counsel, a new significance is attached to a matter to which less importance was attached at the trial. Rule 4 of the Criminal Appeal Rules reflects this practical experience.
While Rule 4 should not be permitted to deprive an accused person of the fair trial to which he or she is entitled or otherwise produce injustice, I am comfortably satisfied that the appellant’s trial was fair, there has been no miscarriage and there is no significant possibility that an innocent person has been convicted.
I agree with Whealy J that the appeal should be dismissed.
WHEALY J: The appellant was indicted before his Honour Judge Ducker at the Lismore District Court on 8 November 1999. There were six charges. These related to the violent robbery of, and sexual assault upon, a heavily pregnant woman, Josephine Kapeen, in her home at Woodford Dale near Maclean on 27 November 1997. In addition to an armed robbery charge, there were five charges of aggravated sexual intercourse without consent. On 24 November 1999, the jury returned with verdicts of guilty on all counts. The appellant was sentenced on 11 February 2000. The sentencing judge imposed the following sentences: -
(i)In relation to counts 1, 2, 3 and 5 - a minimum term of six years imprisonment to expire on 15 November 2005, together with an additional term of four years.
(ii)In relation to counts 4 and 6 - a minimum term of seven years imprisonment to expire on 15 November 2006, together with an additional term of five years imprisonment.
His Honour ordered that all sentences be served concurrently.
The case against the appellant was essentially circumstantial. It is necessary for me to recite in more detail certain aspects of both the Crown and defence case.
On the afternoon of 26 November 1997, Mrs Kapeen received a telephone call from the appellant, the husband of Vicki Randall. She, in turn, was the cousin of Mrs Kapeen’s husband, Trevor. Both Vicki Randall and the appellant were well known to Mr & Mrs Kapeen. In the course of the telephone conversation, the appellant asked Mrs Kapeen whether Trevor intended to attend a school camp at Evans Head that day. Mrs Kapeen was aware that Vicki Randall and her child were already at the school camp. She told the appellant that Trevor would make up his mind after he had finished work that day. The appellant told her that he had some papers that Vicky Randall needed from the school at Maclean. He wanted to know whether Trevor could pick them up and deliver them to Evans Head if he were going. Mrs Kapeen said that she would give that message to her husband which she did. Mr Kapeen gave evidence that he telephoned the appellant’s house that afternoon but there was no answer. He called by about 7 pm on the way through to Evans Head. The appellant’s house however, was locked up. The appellant and Vicki Randall used a white Holden Commodore VP with mag wheels but it was not at the house. Mr Kapeen then drove on to Evans Head and arrived there to join the other families about 8 pm. Thus it was, that Mrs Kapeen was left alone in the house with her three year old son.
Mrs Kapeen and her child went to sleep in the double bed in the main bedroom normally occupied by her husband and herself. At about 1.45 am she was awakened by the telephoning ringing. When she answered the phone, she heard a male voice “faking” a woman’s voice asking to speak to Trevor. The caller asked several times for Trevor and, when asked who was speaking, gave no answer. Mrs Kapeen told the caller that Trevor was not home and the caller hung up. Mrs Kapeen then looked at the clock and checked that the sliding door in the kitchen was locked. She went back to bed leaving the bathroom light on for her son.
Somewhere between 2.30 and 3 am, Mrs Kapeen was awakened by the presence of a man in her bedroom. She looked towards him and then looked away. Because it was dark she saw that the man was shorter than her husband and of a medium build but she did not recognise him. The man forced her head away from him and threatened to kill her son if he were woken up.
Mrs Kapeen asked the man “What do you want?”. The intruder replied “Money”. He then told her to get up. He placed his arm over her right shoulder and placed a knife or sharp instrument against the left side of her neck. He assisted her out of the bed but stayed behind her all the time. He asked where the money was and she told him it was in the kitchen. He then guided her to the kitchen with the knife still pressed against her neck. She handed her purse, which contained $150.00 over her shoulder to him. She was then guided back to the bedroom where the intruder tied her up and blind folded her with a pair of her husband’s football socks.
There then followed a frightening ordeal. The intruder forced the blindfolded woman to perform oral sex on him twice. He penetrated her vaginally and anally and performed oral sex on her. He continually threatened to kill her, her son or her unborn child. The unfortunate victim was in considerable pain and distress throughout the ordeal. The intruder only ceased his attacks upon her when she pretended she was going into labour. He then left the house and Mrs Kapeen heard him run away noting the sound of his footsteps was that of someone wearing joggers. At no time did Mrs Kapeen recognise her attacker although she had obtained a general impression of his height and size and certain other physical characteristics.
She managed to free herself and attempted to ring her husband on his mobile phone, but it was switched off. She rang the “000” emergency number and reported a break and enter and theft. She was still in a state of panic and distress. She did not report the sexual assaults over the phone. She stayed on the phone until, sometime later Senior Constable Szlicht arrived. He described her as being in a traumatised state, like an accident victim. She did not tell this police officer about the sexual assaults. At the trial she explained she was ashamed and embarrassed and did not want to deal with it. She did not want anyone to know what had happened to her.
Her husband, who by now had spoken to her after receiving her messages on his mobile phone message bank, arrived home from Evans Head later in the morning. She did not at first tell him of the sexual assaults. At 10.03 am when she and her husband were in the house the telephone rang. When Mrs Kapeen answered it she heard the same whispering voice the caller had used the night before. He asked her “did she enjoy last night”. He then said words to the effect that he would come back again that night. She beckoned to her husband who came and took the phone. Mr Kapeen heard the man say, apparently thinking that he was still speaking to Mrs Kapeen, “if you tell anyone your dead”. Mr Kapeen swore angrily at the man who hung up without saying anything further.
The victim told her husband about the sexual assaults later that afternoon, prior to attending the local police station to make a statement. She made him promise he would not tell anyone. In her first statement dated 27 November 1997, she did not make any complaint of sexual assault.
On 23 December 1997, Mrs Kapeen made a second statement to the police in which she set out her complaints of sexual assaults. Prior to this time on 3 December, the police had ascertained that four calls had been made on 26 and 27 November to the Kapeen’s house which were believed to be relevant. These had all emanated from the service leased to and operated from Vicki Randall’s house. There was a call on 26 November at 5.08 pm for 49 seconds; a call at 1.43 am on 27 November for 3 seconds and another at 1.44 am for 26 seconds. There was a further call on the morning of 27 November for 26 seconds. This last call occurred at precisely 10.03 am on that morning.
On 3 December 1997 Detective Weir and Sergeant Magann interviewed the appellant by way of electronic recording (ERISP). At this stage they did not know about the sexual assaults although Detective Weir was suspicious that more might have occurred than the police had been told. The appellant denied making any phone calls to Mrs Kapeen’s house during the early hours of 27 November or later that morning. On 20 January 1998 police officers conducted a search at the appellant’s home pursuant to a search warrant. A pair of joggers was located in the house. The prints on one of the two shoes were found, broadly speaking, to match a shoe impression which had been taken from an Esky which was underneath the window whose screen had been slashed at the Kapeen’s house on the night in question to enable the intruder to enter. The markings on the sole of the shoe also matched a “latent” impression which was taken from inside the victim’s home not far from the same window. This impression was only obtained by dusting, as otherwise it was not visible on the floor surface.
On 22 January 1998 the appellant was arrested at his home. He participated in a second ERISP and denied having committed the theft and sexual assaults. He was later charged with all offences.
The appellant gave evidence at the trial. He maintained the denials he had made to the police on 3 December 1997 and 22 January 1998. It was his case that he had been out drinking with friends on 26 and 27 November and he did not return to his home until between 2.30 am and 3 am on the latter morning. He could not have made the early morning phone calls in those circumstances. The next morning he left home at 8.30 am and did not return there until the mid-afternoon. He could not have made the call at 10.03 am for that reason. It was common ground the appellant did arrive at the Evans Head Holiday Camp that day. The location of this camp was about thirty five minutes drive from the appellant’s home. There were various estimates put on his time of arrival by people at the Evans Head Camp. The appellant himself said he arrived there at about midday. When he came back to his home later that afternoon, he said his house had been broken into and clothes and papers were strewn around the floor. It appears to be the suggestion that somebody may have broken into his house and used his phone both the night before and at mid-morning. The unknown person, it was suggested, may have borrowed (and returned) the joggers in his absence. In other words, he had been deliberately set up so that it would appear that he was the attacker in Mrs Kapeen’s home.
There were two witnesses whose evidence, if accepted, posed problems for the appellant in relation to the case he sought to make at the trial. First, Mr Purcell who had driven him home from the drinking session the evening before was able indirectly to establish the drop off time. This was so because when he had returned home, he rang his girlfriend in the early hours of the morning in Newcastle. This evidence put the appellant in his home before the calls were made at about 1.44 am. It was also the case, despite the appellant’s claim that he had been out drinking until after 2.30 am on the morning of 27 November that he did not have a watch available to him and he was unable to explain how he estimated this time.
Secondly, a Mrs Byrnes claimed to have identified the appellant and his car leaving from the direction of his home and travelling fast on the road into Maclean shortly after ten minutes past ten on the morning of 27 November.
In his case, the appellant also relied on his previous good character; the fact that there were, it is said, disparities between Mrs Kapeen’s description of her attacker and the physical features of the appellant, and his general good standing in the local community.
This then was a broad outline of the respective cases advanced by the Crown and the defence at the trial. I have not endeavoured to summarise every issue which arose but have sought in this brief summary to place subject matter of the present appeal in context.
The Appeal
The appellant appeals on the ground that the trial judge failed properly to warn the jury regarding the delay in complaining about the sexual assaults. As the submission developed the ground was stated to be, more precisely articulated, that the judge should have drawn the jury’s attention to the fact that the appellant, through no fault of his own, was not able to point to scientific evidence which may have demonstrated his innocence.
In particular it was argued that a warning was needed regarding the fact that the police did not follow the normal procedures relating to sexual assaults, that is to say obtaining forensic evidence in relation to those assaults. The jury should have been warned that the appellant, as a result of that situation, lost the chance that material would have been found, such as the offender’s DNA, which would have exculpated him, if, as he claimed, he were not the offender.
Mr Odgers SC for the appellant argued that the following direction should have been given by the learned trial judge: -
“I direct you that, in considering whether you can exclude as a reasonable possibility the hypothesis that someone other than the accused committed these offences and made it appear that they were committed by the accused, you should take into account the delay of the complainant in informing the authorities that she had been sexually assaulted.
As you heard from Detective Weir, that delay of almost a month meant that no forensic samples were taken from the complainant and the accused was thereby deprived of the possibility that those samples might have pointed to some person other than him as the offender.
Contrary to the testimony of the complainant and perhaps your own assumptions, it is not necessary that there be ejaculation on the part of the offender in order that some items for DNA testing may be found. Sometimes even a hair from the body of the offender can be sufficient to allow a DNA profile to be obtained.
I direct you to take into account the fact that the accused was deprived of the possibility of this kind of evidence being obtained when considering whether you are satisfied beyond reasonable doubt on the circumstantial evidence relied upon by the Crown that the accused is guilty of these offences. Let me now summarise that evidence relied upon by the Crown ….”
Arguments in support of the obligation for a Direction
Senior Counsel for the appellant argued that the above direction was required in accordance with the principles stated in Longman v The Queen (1989) 168 CLR 79. Longman has most recently been considered in Crampton v The Queen (2000) HCA 60 a decision given on 23 November 2000. In that case, the complainants made allegations of sexual misbehaviour against Mr Crampton who had been their teacher many years earlier. The complaints were in fact made nineteen years later. The New South Wales Court of Criminal Appeal had taken the view that the directions given by the trial judge were adequate. The High Court disagreed. In the course of the joint sitting of Justices Gaudron, Gummow and Callinan at para 39 their Honours recited the well known passage in the joint judgment of Brennan, Dawson & Deane JJ at 91: -
“There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant’s mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant’s failure to complain should include (as indeed s 36BD requires) that there may be ‘good reasons why a victim of an offence such as the alleged may hesitate in making or may refrain from making a complaint of that offence’. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see R v Spencer [32]. That factor was the applicant’s loss of means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) [33] and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.”

Their Honours commented: -
“The passage distinguishes between two different sets of circumstances: those which might well invite, and, we would interpolate, will generally require, comment; and those in respect of which a warning is imperative.”
Their Honours then referred to and quoted short passages from the judgments of Deane J at 95-96; and McHugh J at 108-109 in Longman. Their Honours found it unnecessary to explore the significance (if any) of differences between the respective reasons for their Honour’s unanimous decision in the result. In relation to their conclusion that the trial judge had not adequately warned the jury, their Honours said: -
“In our opinion, the appellant’s appeal should succeed on the ground on which special leave had been granted.
As the appellant submits, the first reference by the trial judge to delay was followed by an observation which could have diminished the effect of the caution - it did fall short of a warning - against acting on the evidence of the complainant of a complaint so long delayed. To say what her Honour did in the first passage from her summing up that we have quoted was to say too little, too unemphatically, and less than what Longman required to be said in the circumstances of this case. The redirection, which we have also quoted, suffered from some of the same or similar deficiencies.
The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused’s defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant’s evidence alone without the closest scrutiny of the complainant’s evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman : the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.”
The trial judge’s direction in Crampton were also found wanting by the other members of the Court. In particular, Kirby J said at paras 125 and 126: -
“The law on this subject is stated in Longman [182]. It has been repeated in a number of decisions involving delays very much shorter than that in the present case [183]. It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometimes should give to ensure the fairness of the trial) and a warning (which in circumstances of “long delay” it is “imperative”, in the sense of obligatory, that the trial judge must give to the jury).
Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked.
Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.”
Again at para 132 his Honour said: -
“The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected [188]. That idea is contrary to the repeated authority of this Court in and since Longman. The jury need the assistance of the trial judge to warn, from the law’s long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons [189]. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.”
In the light of these principles, senior counsel for the appellant argued that the jury may not have been aware of the consequences of the failure of the police to carry out the usual scientific tests following upon a prompt reporting of sexual assault. In essence, it was argued, the appellant’s only chance of acquittal lay with the jury hearing him and being satisfied he was innocent on the basis that the Crown had not excluded all reasonable hypotheses consistent with the innocence of the accused. His case was that he had in effect, been “set up”. In that context, there was a need for the judge to give the direction outlined in the submissions before this Court. The failure to do so, it was suggested, resulted in a miscarriage of justice. The absence of the appropriate direction meant that there was a possibility of real injustice to the appellant.
A Direction was not sought
It was common ground that counsel appearing for the appellant at the trial made no application to the trial judge seeking a redirection warning the jury of the disadvantages suffered by the appellant as a result of the complainant’s delay in making complaint about the sexual assaults. An affidavit was filed and placed before the Court on the hearing of this appeal. It was sworn by Peter O’Connor, the barrister who appeared for the appellant at the trial. Mr O’Connor said: -
“3.I have not had access to a transcript of my address to the jury but from my handwritten notes, it appears that I addressed the jury to the effect that had a complaint been made immediately, material may have been discovered as a result of the normal forensic investigation procedures which could have exculpated the accused.
4.I can think of no tactical reason why such a redirection was not sought from the trial judge. I therefore believe this omission was the result of an oversight on my part.”
The Course of the Trial
There is no doubt that the victim Mrs Kapeen did delay in complaining about the sexual assaults. The delay between reporting the robbery and the assaults was a relatively short time. It was in the order of twenty six days. There is no similarity between the delays in Longman and Crampton and the present case. In Longman the delay was over twenty years; in Crampton over nineteen years. Moreover, in those two decisions, the essential force of the delay resided in the inherent lack of credibility on the part of the complainant in each case based upon the sheer passage of time and the difficulty confronting the accused in collecting material necessary to expose the lack of credibility.
By way of contrast, there is little if any attack upon the credibility of Mrs Kapeen in this case. The learned judge did, in the course of his summing up, refer to the delay question as it might have affected the issue of the complainant’s credibility. I set out below the two passages in the summing up where this question was raised: -
Summing up page 13
“The accused’s case is that he was simply not on the Kapeen’s premises at all and that consequently he has no better idea of what happened than anybody else and thus no knowledge if an armed robbery occurred or did not occur. It has been suggested, perhaps somewhat obliquely on his behalf by counsel, that you could not be satisfied beyond reasonable doubt that this offence did take place because of Mrs Kapeen’s admitted lack of frankness with the police concerning the question of sexual assault for nearly a month. The suggestion, as I understand it, is that it could raise a suspicion that her claim of being robbed may not be true and was invented as a cover story to avoid having to disclose that she had been sexually assaulted by the intruder. No such direct proposition was ever put to Mrs Kapeen, nor could it have been because the accused’s counsel was bound by his instructions coming from the accused. … The Crown suggests to you however, that Mrs Kapeen has been demonstrated to be a credible witness because her evidence has been shown to be correct by other completely independent evidence in the case in a number of material particulars. The defence has suggested that her credibility has been adversely affected by her admitted cover up and the delay in making any complaint about the sexual offences. So far as that is concerned, you will be entitled to have regard to those matters but you should also have regard to the explanation made by Mrs Kapeen as to why she had withheld anything to do with having been sexually assaulted on the occasion in question.”
The second passage appears at page 17 and 18 of the summing up: -
“His counsel has pointed to the delay in Mrs Kapeen coming forward to report the alleged six sexual offences with which the last five charges are concerned. I must direct you that in this respect the law is that the failure by a person to complain at the first reasonable opportunity of having been sexually assaulted is a relevant fact for a jury to take into account when deciding whether an alleged offence did take place. Making a complaint does not, of itself, prove that an alleged offence did take place. Some complaints may be false. The failure to make a complaint or delay in making a complaint does not of itself prove that an offence did not take place but, as I have said, is a factor which a jury must consider, along with the other evidence, when determining whether an alleged offence did occur. The jury in so doing must however, also take into account the fact that there may be reasons why no immediate complaint or no complaint at all may be made.”
The learned trial judge then went on to give a summary of the evidence as to the state the victim was in when the police first came to the home on the morning of 27 November and of her reasons for why she kept the sexual assaults to herself for a period of time. His Honour concluded on the point as follows: -
“That is a matter for you, how much weight you give to that, whether you consider that is quite understandable, that it is an attitude that might well be adopted in such circumstances by many women or whether you think it is extraordinary and provides no explanation or excuse for failing to complain. It is a matter for you to make you judgment about that.”
There is no quarrel on behalf of the appellant in this appeal that the directions given by the learned trial judge relating to the issue of delay in relation to its impact on the credibility of the victim were anything other than entirely adequate. It is further conceded that, for the purposes of this appeal, the general credibility of Mrs Kapeen is not in doubt.
It is important also to bear in mind another reason why the present appeal differs from the situation encountered in Longman and Crampton. This is not a case in which the complainant said that the appellant was her attacker. She was unable to identify the person who attacked her. The allegation of the appellant’s involvement in the attacks arose from the powerful circumstantial case against him. There was evidence to show that the attacker knew the complainant, her husband and child; as well the appellant had admittedly phoned her the afternoon before the attack and made an oblique inquiry as to whether her husband would be away or at home that night. The phone calls in the early morning and on the following day came from the appellant’s home. The caller used a “disguised” or “faked” voice; the attacker smelt strongly of alcohol and it was conceded that the appellant had been drinking that evening; the physical characteristics of the attacker were, in general, not dissimilar from those of the appellant; the shoe impressions both latent and patent, taken at the crime scene matched one of the appellant’s joggers. His behaviour towards the victim’s husband the following day was strange to say the least. All of his endeavours to explain the phone calls from his house, the presence of his shoe impressions at the Kapeen household and his partial alibi were powerfully confounded by a relentless body of credible evidence. Against this background the absence of a DNA test shortly after the assault understandably assumed a very minor role in the issues dealt with at the trial.
The manner in which the DNA Question was raised at the Trial
It is true that the complainant’s relatively brief delay in reporting the sexual assaults to the police resulted in a situation where the usual police scientific procedures were unable to be undertaken. Counsel for the appellant at the trial was well aware of this. At T 83 the appellant’s counsel asked Mrs Kapeen the following question: -
“Q.Did you yourself consider that by not undergoing a forensic examination that day in relation to the alleged sexual assaults that you may be losing the benefit of potentially available forensic evidence.
A. He didn’t ejaculate; they couldn’t have got his DNA.”
Later at T 181 the following exchange took place between trial counsel and Detective Weir: -
“Q.From your experience in criminal investigations, when there is a timely complaint of sexual assault that involves penetration, it is normal, is it not, for the complainant to be taken to a hospital and for a specially trained doctor to undertake an examination and complete what’s called a Sexual Assault Kit?
A.           That’s true.
Q.As part of that examination, samples are taken and then what happens is there is an attempt to obtain forensic evidence that can support the allegation and, if possible, identify an offender?
A.           Correct.
Q.           That was not done in this case, was it?
A.           No, it was not.
Q.And it was not done because the allegation of sexual assault was not made at a time proximate to the alleged event?
A.           That’s correct, yes.”
The fact is that the attacker, according to Mrs Kapeen’s evidence did not ejaculate at any time during the repeated sexual assaults. This is not to say there could not have been some physical material which may have provided a sample from which a DNA profile could have been obtained. The most that can be said is that there was no evidence given in the trial as to the likelihood of DNA testing being successful in circumstances where the attacker had not ejaculated. The jury had before it the evidence of both Mrs Kapeen and Detective Weir which would have clearly alerted it to the fact that an early examination of the victim, had she complained about sexual assault immediately, may have revealed some evidence to identify her attacker. The jury would also have realised that the delay, albeit brief, may have placed the appellant in a position where he did not have access to that material, if it in fact existed. Although Mr O’Connor’s recollection appears uncertain, it seems he addressed the jury to the effect that had a complaint been made immediately, material may have been discovered as a result of the normal forensic investigation procedures which could have exculpated the appellant. That this was not a large issue in the case is clear from the very brief way in which it was raised in cross-examination and the very brief submission apparently made in the final submissions of counsel for the appellant. That this was the situation may also be discerned from the fact that the trial judge who gave an otherwise impeccable summing up did not raise the issue; and the fact that experienced trial counsel, did not seek any Longman type direction or redirection on the topic at the conclusion of the summing up.
The Refinement of the Issues in this Appeal
At the conclusion of the submissions it became apparent that the principal issues for determination in this appeal required to be stated with some precision. These were: -
1.As the suggested need for a direction arose, strictly speaking, not from any question of delay but from the fact that a forensic scientific procedure, ordinarily carried out in a sexual assault case, had not occurred, the question arose as to whether this was a situation covered by the principles stated in Longman.
2.In a circumstantial case such as the present where the onus lay on the Crown to exclude as a reasonable possibility the hypothesis that someone other than the appellant committed these offences (and made it appear they were committed by the appellant) was it obligatory for the trial judge to direct the jury that the fact that the appellant was deprived of the possibility of this kind of evidence being obtained should be taken into account when determining whether the appellant was guilty of the offences?
3.If it were obligatory to give the suggested direction (or one which was similar to it) should this Court grant leave pursuant to Rule 4 in the admitted circumstances where no redirection was sought?
4.In relation to the question posed in 3, has the appellant demonstrated to the satisfaction of this Court that a miscarriage of justice has occurred?
In my opinion it is necessary to take great care in this appeal to ensure that only the precise issues raised in the circumstances of the case are dealt with.
The starting point is to consider the fact that no redirection was sought at the trial; nor was it put to the learned trial judge that he had failed or omitted to give a relevant direction. It was certainly not submitted that he had failed to give an essential or obligatory direction. Although trial counsel has stated in his affidavit that he believes his “omission” to seek a direction must have been an oversight on his part, I am not satisfied it was. It is clear that Mr O’Connor has reasoned his conclusion from the fact that he is unable to think of any tactical reason why such a redirection was not sought from the trial judge.
It is important to bear in mind the principles which underline Rule 4. It is also important to restate that a number of judicial pronouncements have been made over the past twenty years in relation to these principles. They are as significant now, perhaps even more so, than when they were originally made. In Tripodina and Morabito (1987-1988) 35 A Crim R 183 at 191, Yeldham J referred to the fact that the Court of Criminal Appeal had become increasingly burdened in recent times with complaints by counsel who had not appeared at the trial of alleged errors by a trial judge which had never been brought to the judge’s attention by counsel who appeared in the court below. His Honour said: -
“… Although it is true, as the High Court said in Pemble (1971 124 CLR 107, that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, none the less, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no justice or error in what was done.”

At p 194 his Honour referred to Aziz (1982) 2 NSWLR 322 at 331 where Nagle CJ at CL had referred to a passage in Haeney (unreported, CCA 13 June 1978) in these terms: -
“What is important to be borne in mind is that the absence of objection by counsel, in particular to matters involving criticism of the form, content or balance of the summing up, furnishes a basis for concluding that, in the context of the atmosphere as it existed at the trial, and in the contemporary awareness of the manner in which the summing up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing up. The Court of Criminal Appeal, no matter how experienced its members, and no matter how comprehensive the written record may be, can never hope to recapture the full texture of the atmosphere in which the question of the accused’s guilt was submitted to the jury in the concluding stages of the trial. It is for this reason that, at an appellate level, there is a well recognised hesitance in entertaining grounds of appeal challenging the form, content or balance of a summing up when those matters have not been adverted to by counsel at the proper time during the trial. This it is that r 4 enshrines.”
Yeldham J, having recited this passage said at p 195: -
“Furthermore, the fact that no objection was taken at the trial is in many cases cogent evidence of the fact that, having regard to the atmosphere at the trial and the manner in which it was conducted, the matter later complained of was not regarded as being of significance, or likely to give rise to any miscarriage of justice. The authorities to which I have referred emphasise that the leave required by r 4 is not to be lightly granted. Generally speaking such leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings: see Wilde (1988) 164 CLR 365 at 369.”
The passage from the unreported judgment of the Court of Criminal Appeal in Haeney (supra) quoted by Nagle CJ at CL in Aziz (supra) was also cited with approval by Hope JA in Regina v Saffron (1989) 7 NSWLR 395 at 435.
This matter was also considered up by Hunt J (as he then was) in the judgment of the Court of Criminal Appeal in Regina v Abusafiah (1991) 24 NSWLR 531 at 536. His Honour said: -
“The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge’s attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge’s attention to that error (R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial.
There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice. The scope of r 4 was discussed by this Court in R v Tripodina (1988) 35 A Crim R 183 at 191-195
The final authority to which I will refer is the R v Jeffery (Court of Criminal Appeal 16 December 1993, unreported). At p 6, Mahoney JA in dealing with the principle embodied in Rule 4 said: -
“In my opinion, this principle plays an important part in the criminal trial process. It is important that any objection to the summing up or that any defect or omission at the trial which can be cured or mitigated by steps taken at the trial be raised at the time of the trial. The judge should be asked to, and have the opportunity to, correct any error deficiency of this kind. …Errors will occur and rule 4 provides for them. But unless there be a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done by or for him at trial level.”
Applying these principles to the situation of this trial, I am not satisfied that this was a mere “oversight” on the part of trial counsel. In my opinion, Mr O’Connor, who is an experienced counsel, did not see the point for seeking a redirection of the kind now sought because, in the circumstances of the trial, it was not seen to have such impact as required a redirection. Clearly, trial counsel had raised in cross-examination the fact that the failure to follow ordinary procedures (consequent upon the victim’s delay in complaining about the sexual assaults) had deprived both prosecution and defence of forensic evidence that may have possibly identified the offender. According to Mr O’Connor’s affidavit, he had in fact made a brief mention of the topic in his final address. Further, as the transcript shows, at the completion of his Honour’s summing up, trial counsel sought a number of carefully articulated redirections. No Longman type direction or comment was sought. There is nothing to suggest that had a redirection been sought in the substantial terms of the draft direction submitted by counsel in this appeal that his Honour would not have been quite prepared to provide that direction (or something reasonably similar to it) to the jury.
It may well be however, that had the judge been asked to give a direction along the lines of the draft direction, he would have been required to recite, at least in general outline, the strength of the circumstantial case against the appellant, and the weakness of the appellant’s own evidence in endeavouring to answer the circumstantial case. On the other hand, it is quite clear that, by the end of trial, the appellant’s counsel was obliged to place greater reliance on the appellant’s good character, his lack of motive and his good standing in the local community. I do not accept that trial counsel would have been unaware, in the atmosphere of the trial, that a further recital of the circumstantial case against the appellant would not necessarily have been of assistance to the appellant’s case, and may in fact have been of considerable disadvantage to it.
The larger issue is, however, whether the appellant has demonstrated to the satisfaction of this Court that a miscarriage of justice has occurred. I am not satisfied that he has. The circumstantial case against the appellant was so powerful that I do not consider that a direction or redirection of the kind outlined in the draft direction would have made, or would have been likely to make, any real difference to the outcome. The jury were carefully and appropriately directed in relation to the circumstantial case and the onus of proof; the jury found verdicts against the appellant on all counts. Having regard to the strength of the case against the appellant, this was in my opinion an almost inevitable outcome.
Since the matter was not raised at the trial and as the appellant has not satisfied me as to the possibility of any real injustice, I am not satisfied that leave should be given pursuant to rule 4. In these circumstances it is, strictly speaking unnecessary to answer the first and second of the questions set out above in the “refined “issues in this appeal.
Because, however, considerable attention has been devoted to these matters in the submissions, I will address each of them briefly.
As to the first question, I do not consider that the situation which arose at the appellant’s trial relating to the absence of DNA testing was one which directly attracted the principles in Longman as explained in Crampton. True it is there was what was described by the trial judge as an “oblique” credibility issue arising out of the relatively brief delay in the reporting of the sexual assaults. This was the subject of appropriate comment and directions. There was no issue, however, as to the fact that the appellant had been the subject of the most degrading of sexual assaults. The issue in relation to the absence of DNA testing was not, in truth, a delay issue. More significantly the “imperative warning” required in Longman arose in a very different environment where “the fairness of the trial had necessarily been impaired by the long delay”. It was not necessary in the present case to suggest it might be “dangerous” to convict on the evidence of the complainant since the complainant had not asserted the appellant was her attacker, nor was there any gross delay in reporting the assaults. All this is not to say that in a particular case, depending on the issues at the trial and the manner in which those issues develop at trial, that a direction of the kind suggested, albeit modified to meet the particular circumstances, may not be appropriate, particularly if it is asked for. It may well be, in appropriate circumstances, an entirely proper direction. Its provenance however does not, strictly speaking, derive from Longman.
The remaining question is whether the trial judge was obliged to give the suggested direction. It is important to stress that it is quite inappropriate to answer this question in any generalised way. Where no specific direction or redirection is sought, it is a matter for the trial judge to fashion his summing up according to the evidence, the submissions and issues arising in the particular trial. There is no obligation on the trial judge to set out in his charge to the jury every piece of evidence or every submission which may be made. This is particularly so when the particular evidence or the particular submission is not, in the way the trial has unfolded, perceived to be of significance. This is not to say that such matters may not, in a particular situation, possess a greater significance that the parties have attributed to them. In the end, it is a matter of balance where the trial judge is in the best position to make an informed decision.
Although dealing with a Longman direction, the approach to the manner in which a trial judge should assess whether any comment or warning is required in a summing up is well illustrated by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362 at 375 where His Honour made it clear that the need for, and content of, any comment will depend on the circumstances of the case. His Honour said at pp 24-25: -
“(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 far.
(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, the content of, any comment will depend in 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 of 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).”
In my opinion, in the particular circumstances of the appellant’s trial, where the case against him was essentially circumstantial and where the complainant herself had not asserted the appellant was her attacker; and where there was no direction or redirection sought, the trial judge was not under an obligation to give the suggested direction. Indeed, for reasons I will explain the direction may have operated to his disadvantage.
The essence of the draft direction is the charge to the jury “to take into account” the “possibility of this kind of evidence being obtained” when considering whether it was satisfied beyond reasonable doubt as to the circumstantial case against the appellant. Such a direction in the circumstances of this particular trial appears to me to invite the jury to speculate about the possibilities which might arise in the absence of any evidence one way or the other. It is of course often necessary for a jury to consider possibilities when the Crown relies upon a circumstantial case (R v McIntyre (2000) 111 A Crim R 211). This direction does not tell them how they may take the possibility into account. It is likely or at least possible a jury might consider for itself the possibility that the DNA evidence, if any had been found to exist, might possibly have shown the appellant was the offender. Even the process of considering the possibility of whether there was likely to have been any physical material to yield DNA is itself speculative. There was no evidence to suggest this might be so. It would be quite unfair to an accused for a jury to reason in this way, yet the direction must or at least may, lead to that kind of speculation.
On the other hand, it is equally possible that the jury might have considered for itself, as the direction directly required it to do, that the DNA evidence, if any had been found to exist, may possibly have excluded the appellant as the offender. This again would be mere speculation in the absence of any evidence whatsoever to lead the jury one way or the other. Such a possibility based on the unknown nature of non-existent evidence would have been quite irrelevant to the strength or weakness of the circumstantial case, and capable of leading to an unfair assessment of the Crown case.
But whether I be right or wrong about the terms of this particular direction, the important point is this: Since the trial judge had given a thorough and fair summing up in relation to the circumstantial case, and to all the evidence on both sides in relation to it, and since he had accurately and carefully directed the jury in relation to the onus of proof in relation to the circumstantial case there was no imperative requirement, in my opinion, for a direction of this type to be given. He might have, had he been asked, reminded the jury there was in fact no DNA evidence one way or the other and certainly no scientific evidence inculpating the appellant, but such a reminder would have led the trial judge inevitably, to remind the jury of the very matters he had so carefully outlined in his general and specific directions in relation to the circumstantial case. It could not be said in the light of this circumstantial case, that by failing to tender a DNA profile (where none was available) the Crown had failed to exclude the reasonable possibility that someone other than the appellant was the offender.
In the particular circumstances of this trial, there was in my opinion, no obligation on the trial judge to give the suggested direction.
For the reasons stated I propose that leave be refused pursuant to Rule 4; and that the appeal be dismissed.
Howie J: It is not infrequent that in a criminal trial defence counsel, in a legitimate tactical exercise to raise a doubt about the guilt of the accused in the minds of the jury, will question an investigating official as to why a particular forensic procedure or line of inquiry was not undertaken in the course of investigating the offence for which the accused stands trial. This issue may be raised simply to provide defence counsel with material to be used in his or her address in an endeavour to show that the evidence produced by the Crown is insufficient to prove the guilt of the accused beyond reasonable doubt. It may have some other significance such as to raise an issue touching the credibility of the witness.
Very often that line of questioning will not call for any response by the trial judge by way of direction to the jury. The trial judge is not required to refer to every matter raised by the defence in evidence or address. It may be that in a particular case the appropriate response is merely to caution the jury against speculating on material which is not before them and to exhort the jury to concentrate on the evidence in the trial when determining whether the Crown has proved its case.
On the other end of the spectrum, there will be trials where the matter will have such significance, either by itself or when considered with other evidence, that the trial judge will be obliged, in fairness to the accused, to raise the issue with the jury and direct them to take the matter into consideration when determining whether the Crown has proved its case.
Such a situation may arise where delay in raising a complaint of sexual assault has disadvantaged the accused in his ability to defend himself. The inability of the police or the defence to pursue a particular forensic trail may be a matter relevant to the jury’s appraisal of the complainant’s credibility and reliability where his or her evidence is central to the Crown’s case. That is the situation with which the courts were concerned in Longman v The Queen (1989) 168 CLR 79, Crampton v The Queen (2000) HCA 60 and R v Johnston (1998) 45 NSWLR 362. That is not the present case.
However, not all trials will fall at either end of the spectrum and there will arise occasions when a trial judge will need to consider whether it is appropriate, in light of the issues raised in the trial, to fashion a direction to the jury to bring the matter to their attention and to assist them to understand its relevance to the determination of the issues before them. In deciding whether to give a direction on the matter and the content of that direction, the trial judge will be guided by what he or she considers necessary to ensure the fair trial of the accused.
Defence counsel has a particularly important function to fulfil in a case falling within this last mentioned category. Counsel for the accused will generally be in the best position to appreciate the significance of this line of questioning and the relevance of the failure or inability of the investigating official to do what might have been done during the course of the investigation. It is defence counsel’s duty to ensure that the court is assisted in its endeavours to ensure a fair trial for the accused. It is, therefore, defence counsel’s duty to seek a direction from the trial judge where he or she believes that the failure to give such a direction may deprive the accused of the opportunity to be acquitted by the jury.

I consider that in the present case the absence of any request for a direction on the inability to obtain a sample for DNA testing was because counsel appearing at the trial did not believe the matter had the particular significance which is now being attributed to it.
I agree with the Presiding Judge and Whealy J that the appeal should be dismissed. For the reasons given by their Honours I am not persuaded that leave should be granted for the appellant to rely upon the point not taken at trial.

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LAST UPDATED: 14/12/2000