R v KNP

[2006] NSWCCA 213

Reported Decision: 67 NSWLR 227

New South Wales

Court of Criminal Appeal

CITATION:	KNP v Regina [2006] NSWCCA 213 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Tuesday 30 May 2006
JUDGMENT DATE:	20 July 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 79; Hall J at 80
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - EVIDENCE ACT - sexual assault - appeal against conviction - indecent assault - homosexual intercourse - act of gross indecency - offences committed 18 years ago occurring over a period of two years - whether evidence of contemporaneous complaint admissible as prior consistent statement - evidence admitted as a response to prior inconstant statement damaging to complainant’s credit - inconsistency inferred from conduct - Crown Prosecutor’s address - whether inappropriate comments caused a miscarriage of justice - comments seeking to confine the impact of warnings given to jury in summing up - invitations to speculate in absence of evidence - personal opinion - breach of obligations to present Crown case in impartial and fair manner - impact of closing address by defence counsel and trial judge’s summing up - whether directions on caution regarding complainant’s evidence because of delay and lack of corroboration - whether trial judge’s words diminished significance of warnings given
LEGISLATION CITED:	Evidence Act (NSW) 1995 Criminal Procedure Act 1986
CASES CITED:	Graham v The Queen (1998) 195 CLR 606 Papakosmas v The Queen (1999) 196 CLR 297 R v Ali (2000) NSWCCA 177 R v Joseph Attallah [2005] NSWCCA 277 R v Liristis (2004) 146 A Crim R 547 R v McCullough (1982) 6 A Crim R 274 R v MM (2004) 145 A Crim R 148 R v Roddom [2001] NSWCCA 168 R v Rugari (2001) 122 A Crim R 1 R v Selsby [2004] NSWCCA 381 R v WSP (2005) NSWCCA 427 Stewart 52 NSWLR 301
PARTIES:	KNP (Appl) The Crown
FILE NUMBER(S):	CCA 2006/414
COUNSEL:	A P Cook (Appl) P M Miller (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0187
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ

2006/414

McCLELLAN CJ at CL
JAMES J
HALL J

THURSDAY 20 JULY 2006

KNP v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant appeals against his conviction on four counts of indecent assault, three counts of homosexual intercourse and two counts of an act of gross indecency committed on his brother’s stepson DP. He was sentenced on each count, the sentencing providing a total non-parole period of four years and six months with a balance of the total sentence of two years and six months.

2 The complainant was born on 30 January 1975. The offences were allegedly committed between 30 January 1988 and 31 December 1990. The charges relate to events on five separate occasions within that time period.

The Crown case

3 The first count allegedly occurred when the complainant was nine and the appellant took him to a national park at Walcha for an overnight stay for the purpose of riding motorcycles. The complainant was lying in his sleeping bag in a tent the two were to share. The appellant is then alleged to have unzipped the sleeping bag and fondled the complainant’s penis. He told him it was all right and was something he should keep between themselves.

4 The second count related to an incident in Laurieton on another weekend trip away a couple of weeks later. On this occasion the appellant allegedly masturbated the complainant. He then put the complainant’s penis into his mouth giving rise to count 3. He then placed his own penis into the complainant’s mouth. This was the basis of count 4.

5 In 1987 when the complainant was 12 years old the appellant allegedly caused him to give him fellatio. The event allegedly occurred at South West Rocks. This was count 5.

6 Counts 6 and 7 were based on conduct alleged to have occurred in 1990. The complainant allegedly performed fellatio on the appellant when the complainant and the appellant were in Coffs Harbour for a super-cross motorcycle race meeting. Following the act referred to in count 6 the appellant was masturbated by the complainant. This was the basis of an offence of committing an act of gross indecency with the complainant.

7 Later in 1990 the two went to Inverell for a motor cross meeting. The complainant said that he had been injured in a fall whilst practising on a Saturday. Whilst he was lying in bed the appellant was alleged to have masturbated him (count 8 an act of gross indecency) and afterwards fellated him. The latter act was the basis of the last count.

8 There was evidence that the events which were the subject of the charges were not isolated incidents but were merely the events that the complainant remembered most clearly amongst a broader pattern of similar conduct.

9 There are three grounds of appeal.

Ground One – It is submitted that the learned trial judge erred in granting the prosecution leave to adduce the evidence of complaint to PS.

10 The Crown case relied wholly upon the evidence of the complainant. The Crown was also permitted to call evidence of complaint made by the complainant to his friend PS. PS accompanied the complainant and the appellant on a trip to the Gold Coast to watch the first “Indy” motorcar race. PS gave evidence that he was “fairly certain” that following that trip he had a conversation with the complainant in which the complainant said to him:

“What should I do, what should I do?”

11 Following which he said to the complainant:

“About what?”

12 The complainant then said to PS that “his uncle [the appellant] was sexually molesting him.” The complainant again said “what should I do?”

13 In cross-examination PS said that the conversation could have been as much as six or seven months after the “Indy” car race. The car race was fixed as being in March 1991.

14 The admissibility of this evidence was originally debated at the trial having regard to either or both para (a) or (b) of s 108(3) of the Evidence Act (NSW). However, the prosecutor ultimately submitted that the evidence was admissible under s 108(3)(a) being a prior consistent statement. The prior inconsistent statement identified was the complainant’s conduct when the family had gone on a trip to the Copeton Dam and the complainant, when other options may have been available, travelled in the appellant’s motor vehicle without other passengers. It was argued that there would have been room for him to travel in his father’s vehicle, although the evidence remains unclear as to whether this was possible. The other vehicle was a utility and the complainant was not sure whether it had a rear seat.

15 Consideration of the admissibility of PS’ evidence occurred on two occasions. On the first occasion his Honour ruled:

“Now, as to the other limb upon which the Crown seeks to reduce this evidence 108(3)(a), I do not myself see that a complaint made in 1990 or 1991 answers the proposition that the complainant behaved in a manner inconsistent with the occurrence of the allegations or the events alleged between 1984 and 1990. So the application is at this stage refused.”

16 Evidence was then given by the complainant in the following terms:

“What I’d like to do now is take your mind to the long weekend in October 1991. Do you know when I’m talking about?
A. Yes.
Q. On that long weekend did you and other members of your family go somewhere?
A. Yes.
Q. Where did you go?
A. Copeton Dam.
Q. How did you get there?
A. With [the appellant].
Q. With [the appellant] how?
A. In his car. He took his boat as well.
Q. Was there anybody else travelling with you and the accused?
A. I don’t think so.
Q. What other members of your family went to the Copeton Dam?
A. My mum, dad and brother, aunt Marie and Uncle Paul. That’s all my family.”

17 This evidence was the subject of cross-examination when the following evidence was given:

“Q. And what you’re trying to infer (sic) from what you’re saying to the jury today is that during 1991 you had taken steps to ensure that you weren’t in his company is that right?
A. I was trying yes.
Q. Well why did you get in the car with him alone?
A. I don’t know.
Q. You could’ve gone in another car couldn’t you? Could’ve gone in your parents’ car?
A. Yes.
Q. Your parents’ car had your mother, your father and your brother so there was a spare seat at the very least wasn’t there?
A. I think so.
Q. Well there was no one else in it was there?
A. Well I don’t remember the car they owned at the time.
Q. And the reason I’m suggesting that you drove up with [the appellant] was because there was no attempt by you to stay away from him in 1991?
A. I did.”

18 After further argument his Honour ruled:

“Thus the complaint to [P] would be available to restore the credit of the accused [sic] after the attack on his behaviour in choosing to go alone with the accused to the Copeton Dam gathering as being inconsistent with there being anything to complain about. This is on the authority of The Queen v Selsby (2004) NSWCCA 381 on the operation of s 108(3)(a).”

19 His Honour gave the following direction to the jury in relation to the evidence:

“It was admitted for the purpose of restoring [the complainant’s] credit or believability, about his actions in going to Copeton Dam in the same car as the accused.
That evidence is not available to you as evidence supporting the truth of the allegation that the accused was molesting him. Nor is it available to you as evidence of a complaint being consistent with offences having been committed by the accused and so on. It is available, as I said, only for the very limited purpose of seeing whether, if it took place before the trip to Copeton Dam, that that assists you in restoring some believability to [the complainant] in relation to the attack which was made on his credit in cross-examination to the effect that if these things had happened you would not have chosen to go with the accused to Copeton Dam in his car, just the two of you.”

20 The essence of the submission which was now advanced in the appeal was that, although the evidence may have had the effect of bolstering the credibility of the complainant in a general way, its admissibility was dependent on it being a response to particular prior inconsistent statements which may be damaging to his credit: R v Ali (2000) NSWCCA 177.

21 The appellant submitted that the evidence of the complainant’s comments to PS did not explain or throw any light upon why the complainant was prepared to accompany the appellant alone in his motor vehicle.

22 It was further submitted that by granting leave for the prosecution to tender the evidence the trial judge’s discretion under s 192 miscarried. It was submitted that because the prosecution first raised the subject of the complainant travelling alone with the appellant to Copeton Dam, laying the ground work for PS’s evidence, “a proper consideration of the fairness of allowing the appellant’s elaboration of that evidence to trigger the admission of the complaint evidence should have led to a refusal of leave under s 192 of the Evidence Act.” It was further submitted that s 108(3) was confined to re-establishing credit when an issue was raised for the first time in cross-examination and was not relevant where the subject matter was raised in evidence-in-chief.

23 It was inevitable that counsel for the appellant would make a significant attack on the complainant’s credit at the trial. A central theme of that attack was that although the complainant claimed to have been sexually abused by the appellant when they went away together, the complainant continued to go away with him, although he could have declined or invited a friend to accompany them. It was suggested that his behaviour could be explained by the fact that there was nothing of a sexual nature happening between them.

24 The evidence elicited from the complainant in cross-examination indicated that during 1991 the complainant and the appellant had had little contact. This was consistent with the complainant’s assertion that as he grew older he sought to distance himself from the appellant. Voluntarily travelling with the appellant on the trip to Copeton Dam could be construed as inconsistent with a desire by the complainant to avoid the appellant and “get away” from him.

25 Section 108(3) was authoritatively considered in the context of sexual assault in Graham v The Queen (1998) 195 CLR 606 where Gaudron, Gummow and Hayne JJ pointed out (at 609) that “the exercise of the discretion under s 108 depends upon the effect of the evidence on the witness’s credibility.”

26 The suggestion in Graham was that the witness’s evidence was fabricated. It is, of course, the same in the present case. The evidence was rejected in Graham because the complaint was made some years after the events in question and led to the start of the police investigations. Accordingly, not being a contemporaneous complaint, it was of no assistance in determining whether the allegations of earlier misconduct were fabricated. It was neither a statement nor conduct by the witness which could assist in resolving the veracity of the complainant’s evidence.

27 The evidence in the present case is of quite a different character. Because the complaint to PS was contemporaneous, its admission could tend to reinstate the complainant’s credibility in relation to his evidence that he was troubled by the sexual advances of the appellant.

28 A representation can be implied or inferred from conduct: see R v Selsby [2004] NSWCCA 381. Accordingly, by travelling with the appellant it could be inferred, as was suggested by the defence, that in truth the complainant had no reason to be concerned about the appellant’s conduct and his allegations of sexual misconduct were not true. Evidence of complaint, being evidence of a statement, contrary to this representation and consistent with his complaint, could accordingly be adduced, provided leave was granted.

29 In Selsby Hodgson JA rejected the proposition that s 108(3) would not respond to evidence led by the Crown which is damaging to the Crown case [55]. I respectfully agree with his Honour. However, the fact that the evidence has been led by the Crown may be relevant to the question of whether leave should be granted.

30 In the present case the fact that the sequence of events relating to Copeton Dam was first introduced by the Crown was the inevitable consequence of the Crown fulfilling its obligation to put evidence of all relevant events before the jury. Defence counsel then challenged the complainant as to why he got into the car alone with the appellant. At one point the complainant accepted that he could have gone in his parent’s car rather than travel with the appellant.

31 In these circumstances I am satisfied that it was appropriate for his Honour to allow the prosecution to adduce the evidence of PS to relevantly re-establish the complainant’s credit. It was not unfair to the appellant within the meaning of s 192(2)(b).

Ground Two – The trial miscarried as a result of comments made by the Crown Prosecutor in his final address to the jury.

32 In accordance with the statute the Crown Prosecutor’s address preceded that of defence counsel and the final summation by the trial judge (see s 159 Criminal Procedure Act 1986). When making his address prosecuting counsel was confined by the duties and obligations which the law imposes on a prosecutor, which are different to the duties and obligations of defence counsel. In R v Joseph Attallah [2005] NSWCCA 277 James J quoted from the decision of the Tasmanian Court of Appeal in R v McCullough (1982) 6 A Crim R 274 at 285 where the obligations of prosecuting counsel were described in the following terms:

“On this appeal both counsel for the appellant and counsel for the Crown referred to the judgment of the Tasmanian Court of Appeal in McCullough , where the court said at pp 285-286:-


‘The proper role of prosecuting counsel was described by the editor of the 19th edition of Kenny's Outlines of Criminal Law at pp. 611 and 612:

‘A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents a plaintiff or defendant in a civil litigation. For this latter advocate has a private duty -- that of doing everything that he honourably can to protect the interests of his client. He is entitled to 'fight for a verdict'. But the Crown counsel is a representative of the State, 'a minister of justice', his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. 'It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts.' 'It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done.’

That passage was cited with approval by W. B. Campbell J. sitting as a member of the Court of Criminal Appeal in Hay and Lindsay [1968] Qd R 459. However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate's role. Counsel for the Crown is obliged to put the Crown case to the jury and, when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions. As the New Zealand Court of Appeal said in Roulston [1976] 2 NZLR 644 at 654:

‘... it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in 10 Halsbury's Laws of England (3rd edition) para 761 that prosecuting counsel 'should regard themselves as ministers of justice assisting in its administration' ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin's remarks in Trial by Jury (1966), pp. 122-123:

' ... in some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution's case is not adequately presented, and counsel, frightened of being accused of an excess of fervour, tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge'.

The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial."

(See also R v Liristis (2004) 146 A Crim R 547 at 563 ff and R v Rugari (2001) 122 A Crim R 1).

33 As was emphasised in Rugari provision is made in the Director of Public Prosecutions NSW Prosecution Policy Guidelines, which incorporate the Bar Rules, for the obligations required of the prosecutor when conducting the Crown case, which extend to the submissions made to the jury in final address.

34 In the present case the appellant complained that the prosecutor’s address transgressed the boundaries within which it should have been confined. Regrettably, many of the criticisms are justified. The question is whether they have caused a miscarriage of justice requiring a new trial.

35 At the commencement of his final address to the jury the prosecutor said:

“His Honour, at the conclusion of this trial, will give you directions of law, which you must follow. Those directions of law will include warnings and they will be expressed as ‘warnings’. The warnings his Honour will give you are very important and you must listen carefully to his Honour’s warnings and directions and apply them to the evidence. That’s how you do your job. There are a couple of things the Crown invites you to keep in mind and they are these: The warnings his Honour will give you are not comments by his Honour. It’s not a nod and a wink by his Honour telling you what to do. They’re legal warnings based on the experience of the courts and they’re serious and you must apply them, but it’s certainly not a nod and a wink by his Honour. It would be, the Crown suggests to you, a terrible injustice to the community, whom I represent and whom you are part of, if you went into the jury room with the idea that his Honour had taken over your job and had in affect told you what to do. His Honour’s not going to be doing that. By the way, his Honour’s perfectly entitled to tell you what he thinks if he wants to, but it’s tradition, and I know his Honour follows it, that if the trial Judge wants to tell you what he thinks, he’ll tell you if he’s telling you what he or she thinks, but I don’t anticipate his Honour will comment to you about the evidence. The warnings his Honour will give you, mean what they say, not something else .
The age of these allegations have the potential to have caused difficulty for the accused in preparing a defence, as they would. Some of them are 21 years old. That creates dangers, because it creates a difficulty to defend yourself. In telling you that it’s dangerous to convict for the reasons his Honour will give you, his Honour is certainly not doing any of the following, because the words mean what they say and his Honour will tell you what the consequence of the danger is when he gives you the direction. But he’s not telling you what his own view is. His Honour is not telling you that you’re not allowed to convict in giving you that warning, and his Honour’s certainly not telling you that there’s not enough evidence to convict. His Honour is giving you a warning that you’re meant to listen to and apply in your deliberations. ” (emphasis added)

36 The prosecutor later returned to this subject matter saying:

“as I’ve already foreshadowed, I anticipate his Honour will give you two warnings. They’re different and they’re given for different reasons, but the answer to both is effectively the same. The answer to both is that you must carefully scrutinise [the complainant’s] evidence before you can rely on it. The Crown says it stands up to that close scrutiny and you can rely on it. The Crown says you will take into account his Honour’s rulings, you’ll carefully scrutinise [the complainant’s] evidence, but you can rely on it and you will find the accused guilty.”

37 These observations were entirely inappropriate. It was not for the Crown Prosecutor to second-guess the trial judge or, as he was plainly seeking to do, confine the impact of any warning which the trial judge would give to the jury in relation to the approach to the complainant’s evidence. The remarks had the tendency to derogate from the judge’s authority and should never have been made: see R v MM (2004) 145 A Crim R 148.

38 The prosecutor was correct in anticipating that this was a case where clear warnings as to the care with which the jury would consider the evidence were required. However, his duty was to listen to his Honour’s directions and, if he believed it to be necessary, seek any further direction or redirection which he believed to be required. It was entirely impermissible to seek to confine the impact of those directions and the warnings which the trial judge was obliged to give.

39 Similar problems were addressed by Howie J in MM where his Honour said at [176]:

“The Prosecutor addressed the jury at some length about the warnings to be given by the trial judge about the effect of delay. This, in my opinion, had no place in the Crown Prosecutor’s address, especially where, as here, the Crown sought to explain to the jury why these warnings were required and how the jury were to use them. The Crown was at pains to point out to the jury that the trial judge was not going to indicate his personal opinion about the evidence of the complainant, nor was he going to invite the jury to acquit the accused, but rather that these warnings were always given in criminal trials and were in effect, ‘just common sense.’”

40 Howie J continued:

“In my opinion it is no business of the Crown to seek to explain the reasons for the giving of directions or warnings by the trial judge or what they mean or how the jury is to use them. This is matter for the trial judge; not the Crown prosecutor. Counsel should understand that their principal function is to address on the facts and not to anticipate directions and warnings to be given by the trial judge and to put a gloss on them to assist the case they are presenting to the jury.”

41 I respectfully agree with his Honour’s remarks.

42 Complaint was also made about the Crown Prosecutor’s discussion of the credibility of the complainant. Two vices were suggested. Firstly, it was submitted that the prosecutor invited the jury to speculate about the thought processes of the complainant in the absence of any evidence to support his argument. The particular parts of the prosecutor’s address about which complaint is made began with the following:

“Children believe in Santa Claus. When I’ve had to call very young children, I’ve seen them criticised for that, but it’s a good example because children don’t invent Santa, the adults do … But because of their faith in adults who care for them, and as I’ve already said, who it turns out are lying to them very convincingly, children tend to believe in Santa Claus until they get enough information to realise they’ve been tricked, it’s a con. About 9 or 10, ‘I don’t know if I believe in Santa anymore.’ Of course I still do, but normal people don’t. About 9 or 10” [9]).

43 The prosecutor then went on to make remarks about “a good kid” and said:

“So, a good kid is a kid who does what they’re told and doesn’t back-answer. In a sexual context, are you beginning to recognise that this is a problem? They’re being set up. Systematically, being good is being vulnerable to being a victim of this type of thing. The things that make a very nice little boy, a nice sweet kid, are exactly right if you have the inclination to exploit them, to set them up for exploitation, aren’t they? Because a well-trained, good kid, does what they’re told, is not unduly questioning, they’re respectful of adults. So if it’s somebody who pays them a bit of attention, who gives them gifts, who talks to them as a more or less equal, who they like, who they respect, then if you have the inclination, you’re laughing.

44 Further, the prosecutor said:

“So, the Crown ask you, rhetorically, knowing what we do about children, is it within the realms of possibility for the accused to have preyed on [the complainant’s] willingness to obey the demands of a trusted adult? A no doubt loved adult? Of course, it is. Of course it is. What could be more natural? Is it likely that a nine year old, knowing nothing at all about sex and sexuality could be encouraged into the type of conduct or game that’s alleged? … So is this new game that tickles his penis such a big ask to put up with? Because it’s alright, it’s fun. [The appellant] said it’s alright, it’s fun, and [the appellant’s] pretty damn cool. 9 years old (p 10).”

45 It was submitted that there was no evidence to support the comments made by the Crown Prosecutor. There was no evidence as to whether the complainant could be categorised as a “good kid.” There was no evidence that he had a particularly high regard for his uncle. It was submitted that the prosecutor made further assertions, unfounded in the evidence, regarding why the complainant may not have informed other family members as to what he said was going on between him and his uncle. He said:

“Well, this why. I think I’m going to come back to that. Was it that obvious to a nine year old, what they should do? Even if it was, even if you thought it was really obvious to a nine year old, that if [the appellant], who you like a real lot and who takes you on all this stuff and buys you things, touches you, you should tell on him. Even if it was obvious to a nine year old, the Crown suggests that wouldn’t be easy. And it probably wouldn’t be natural. Because you have wonderful uncle, a friend, a benefactor to [the complainant], who’s spending time with him and doing all this excellent stuff in terms of riding and fishing and camping and so on. So that wouldn’t make it easy to tell on him, but that’s not all is it? Because do children sometimes lie to protect people they love? Do they? You’ve probably done it as a child. Can any of you recall ever getting a gift at Christmas, or your birthday, or whatever, and it just totally wasn’t what you wanted and you were just disappointed. But I suggest, most of you, if that happened to you, I’m sorry if it did. Most of you, if that happened to you, would have tried to hide that disappointment, and would have even pretended, if necessary, to like the gift, to protect the loved one that gave it to you … So, the Crown suggests to you, it isn’t beyond the realms of your knowledge and experience that children will lie to protect their loved ones.”

46 The prosecutor then went onto discuss why the complainant may have delayed in complaining to his father. It was submitted that he asserted, without evidence, that:

“If I tell Dad, how can I be sure that he won’t take his own brother’s side? Even if I can be sure he’ll take my side, won’t that hurt Dad’s feelings, because doesn’t Dad love his brother? Well [the complainant] mentioned one of the reasons he didn’t complain was fear of not being believed. Is that reasonable? Don’t adults always, especially when it’s difficult and it’s going to involve trouble, don’t adults always believe what kids tell them? If you think the answer to that’s yes, you’re from a different planet to me.”

47 It was submitted that these remarks were inflammatory and inappropriate and that the prosecutor invited the jury to speculate as to what might be the consequences of [the complainant] complaining to his father although there was no evidence for any of the matters referred to. The prosecutor further submitted to the jury:

“So the Crown suggests it would be a reasonable expectation for [the complainant] to entertain the possibility that Dad might prefer his brother’s denial to [the complainant’s] assertion.”

48 He referred to the possibility that the complainant could have informed his grandparents and asserted:

“If [the complainant] likes his grandparents and he tells on the accused, isn’t that going to hurt Dad? Isn’t that going to hurt Grandma? Isn’t that going to hurt Grandpa? I mean kids are short, but they’re not stupid. They’re not completely dumb to the relationships around them and how people relate to each other. In fact they’re pretty much attuned to it, you might accept.”

49 The prosecutor then went on to deal with the subject of [the complainant] not telling his friends and said:

“The Crown suggests to you that even the possibility that if he told, his friends might find out, would stop a lot of young men, in fact most I suggest, from telling anybody. Because you wouldn’t want anybody, certainly not your mates, to find out about this. In fact, imagine what they’d call him. No don’t. The Crown suggests to you that it is easy to understand how it could be that [the complainant] would remain silent rather than run the risks involved in rocking the boat.”

50 It was submitted that the prosecutor then, effectively, invited the jury to speculate as to the motivation of the complainant in making his allegations. The prosecutor said:

“Look at just how complicated [the complainant's] allegations are. [The complainant] was alone with the accused, on many, many occasions. If he’s not telling you the truth, once again he’s been fantastically, mind-bogglingly clever, hasn’t he? … If all he wanted to do was get [the appellant] into trouble, it’s just not necessary to be that complicated. Have you ever met a liar who will deliberately sit down and tell you a fantastically complex lie? … Have you ever met a liar who tells lies to make themselves look bad? Because much of what [the complainant] says is extremely demeaning to [the complainant] and you can see how much it upsets him talking about this stuff. When was the last time you told somebody a lie to demean yourself?”
…
The Crown suggests that if [the complainant] is not telling you the truth there must be a very specific amount of trouble that he wants to get [the appellant] in… .”

51 Further complaint is made that the prosecutor twice gave the jury his personal opinion when he said:

“One of the ways [the complainant] will be criticised, and I think it’s strange but it’s a matter for you – I shouldn’t say ‘I think’. On behalf of the Crown I suggest that it’s strange that the accused chose the time … But it will be said that you wouldn’t believe that happened because of the time and place ….

52 The repetition was submitted to be contained in the following paragraph:

“But it’s going to be suggested you wouldn’t believe [the complainant] because he’s told you the truth, because he’s told you in the course of a relationship that had gone on for years, in the course of a sexual relationship with the accused was using him to relieve himself, that on a weekend when there are a bunch of people around, on a weekend when there isn’t going to be much of an opportunity for any of his usual sexual exploits, that in a moment when they were alone together, probably the only moment when they’re going to be alone together all weekend the accused did what the accused does and it’s going to be suggested that that’s somehow not believable. What I find difficult to believe is the suggestion.”

53 To my mind there is no question but that the Crown Prosecutor’s address was inappropriate and breached the obligations which fell upon him. The introduction of his own personal thoughts were a gross breach of his duty to present the Crown case in an impartial and fair manner. By imposing his own view on the jury there was a risk that they might believe that they were required to decide whether the prosecutor was correct in his personal views rather than assessing for themselves whether the evidence proved the Crown case: see R v Rugari (2001) 122 A Crim R 1 at 11.

54 Some of the prosecutor’s remarks had a more benign impact. His reference to Santa Claus was a clumsy effort, as were the remarks which followed, when he urged the jury to bear in mind their ordinary experience of the naïve and trusting nature of young children. That was not a matter which required evidence and that particular criticism by the appellant cannot be accepted. A jury can of course be invited, without the need for any evidence, to apply their common sense and their understanding of human nature, including their understanding of children, and some of the Crown Prosecutor’s submissions can be justified on this basis.

55 I am also of the opinion that the submission made to the jury that the complexity of the complainant’s account made it more credible does not warrant criticism. The jury were being asked by the defence to reject the complainant’s account. One legitimate means of evaluating its believability was to consider the complexity of the events related over time and whether this made his account more or less credible.

56 Notwithstanding the serious transgressions by the Crown Prosecutor I do not believe, either individually, or together, they caused the trial to miscarry. In this respect the summing up by the trial judge is of particular importance. His Honour, of course, gave the jury directions after defence counsel had an opportunity to address the jury and respond to the prosecutor’s address.

57 His Honour was careful in his summing up to reinforce the purpose for which his directions and, in particular, the warnings which he gave, were required. His Honour’s remarks were balanced and, to my mind, left the appellant without legitimate complaint.

58 At one stage his Honour said:

“Now that is the warning I am obliged to give you. The Crown indicated to you you should not construe that as some hidden code from me that in this particular case you should not acquit the accused. That is true. Equally in telling you that, I have not given you any coded message that you should acquit the accused. I am simply telling you the warning I am obliged to give. For me to give you any indication of whether you should or should not reach a certain verdict in this would be an impermissible intrusion by me into your function as judges of the fact.”

59 It is significant that the portion of the prosecutor’s address directed to the jury’s knowledge of the behaviour of young children was not the subject of complaint by defence counsel at the trial. In fact, counsel described the relevant portion of the prosecutor’s address as a “dissertation on child psychology” and argued that the jury should rely on their own knowledge of the way children think and behave. To my mind any difficulty which could have arisen was adequately addressed by his Honour’s remarks when he said:

“They are not, as Ms Davenport correctly remarked, grounded in the evidence, but they are appeals to your commonsense and experience, all of you having been children, most of you having had children or perhaps grandchildren.”

60 With respect to the inference that the Crown Prosecutor’s address raised the impermissible question “why would the complainant lie” I entertain more significant reservations. However, the issue must be considered having regard to the trial judge’s remarks which directly addressed the matters raised by the prosecutor.

61 In the course of his summing up his Honour said:

“Now the Crown did say in the course of his address, things like, if [the complainant] wanted to lie then he could have made it easier for himself by telling better lies. I did not understand him to be inviting you to speculate about why [the complainant] would lie but in case any of you got the impression that you were indeed being asked to speculate, to ask yourselves, ‘Well why would the boy or the young man, lie?’ I must tell you that is a totally impermissible line of reasoning for you to adopt for this reason. If you think about it for a moment, if you asked yourself, ‘Well why would the boy lie?’ you are in a sense asking yourself, ‘Well why has not the accused proved why the boy was lying?’ and in doing that you are placing an onus on the accused to prove something and that is something which you must not do. An accused had no onus to prove anything at all. So by asking yourself why would the boy lie, you are in fact subtly changing the proper dynamics of a trial. You are putting an onus on an accused and no onus must ever be placed on an accused. The Crown carries the onus of proving an accused’s guilt beyond reasonable doubt. The accused does not carry any onus at all. So put out of your mind any consideration of the question, ‘Why would [the complainant] lie?’ and that indeed was amongst the first points that Ms Davenport made in the course of her arguments. She told you you must not ask yourself that and I echo that with the force of my office. That is not something you should ask yourself or contemplate.”

62 This direction was clear and directly addressed the difficulties raised by the prosecutor’s remarks. His Honour made plain that to speculate about any reason why the complainant might lie was an impermissible line of reasoning. Both that explanation and his Honour’s reminders that an accused has no onus to “prove anything at all” and “does not carry any onus at all” were adequate to redress any difficulties which the prosecutor’s submission created.

63 Notwithstanding the difficulties caused by the prosecutor’s remarks I would reject this ground of appeal.

Ground three – the trial miscarried as a result of the learned trial judge failing to adequately direct the jury as to the caution they should approach the evidence of the complainant with given the lack of corroboration for his account and the delay between the alleged offences and his complaining to the police.

64 Both the obligation to give a Longman direction and its essential content have caused difficulties from time to time: see R v WSP (2005) NSWCCA 427.

65 In the present case the trial judge gave the following directions:

“As the Crown observed in his opening, he relies on the evidence of [the complainant]. There is only one witness to these alleged crimes, a situation which you would understand is by no means uncommon. Sexual assaults, particularly involving children, are seldom events which take place in the presence of witnesses. But whenever there is only one witness to an alleged crime and the Crown has to rely on that witness to persuade a jury beyond reasonable doubt, the judge has to tell the jury, as I do now that before you can convict you must examine the evidence of that witness with particular care in order to make sure that the witness’ evidence does satisfy you beyond reasonable doubt.”

66 Later, his Honour said:

“There is in this case, because there is only the evidence of [the complainant], and no supporting or corroborative evidence, and these events took place a very long time ago, a further area upon which I need to give you directions. In any case where there is only one witness and no corroboration and there has been a delay between the occurrence of the alleged crime and its reporting, these directions are necessary …”

67 His Honour then outlined some examples of potential forensic disadvantages to the appellant by virtue of the time delay. His Honour went onto state:

“So the accused has lost those opportunities and they are not small matters for you to take into account. Indeed, as both counsel intimated to you, in those circumstances where there is such a long delay and the accused has been disadvantaged in the ways that I have spelt out for you and in other ways that you can understand, it is necessary for the judge to tell the jury that it would be unsafe and dangerous to convict an accused in those circumstances, with such delay, on the unsupported evidence of the complainant, [the complainant], unless you are satisfied that having examined his evidence in detail with particular care and having bourne this warning in mind, unless you are satisfied beyond reasonable doubt that he was telling you the truth, that these things did happen in a way in which he said they happened.
Now that is the warning I am obliged to give you. The Crown indicated to you you should not construe that as some hint or code from me that in this particular case you should not convict the accused. That is true. Equally in telling you that, I have not given you any coded message that you should convict the accused. I am simply telling you the warning I am obliged to give (p 21).”

68 His Honour then turned his attention to other directions and said:

“Now, some other directions which I am required to give you, I might as well get those out of the way now … .”

69 Following those further directions, his Honour said:

“Alright, I think that is about all the warnings and cautions I am required to give you.”

70 The appellant submitted that the effect of his Honour’s repeated statements that he was required to give cautions and warnings were likely to have the effect of reducing the emphasis the jury would place on such warnings. It was submitted that the result was that the warnings and cautions had a perfunctory flavour diminishing their significance.

71 It was submitted that his Honour’s approach was likely to have conveyed to the jury that the giving of these warnings was a routine exercise which the judge was required to engage in and were matters to be “got out of the way” rather than being taken seriously. It was submitted that it was essential in this case that the jury should have been in no doubt about the caution they should apply to the evidence of the complainant and the regard they had to have for the prejudice to the appellant by virtue of the delay. It was emphasised that Spigelman CJ had said in R v WSP [2005] NSWCCA 427 at [22]:

“There remains the element in the Longman direction that the jury should pay heed to the warning.”

72 It was submitted that in R v Roddom [2001] NSWCCA 168, Howie J was critical of a summing up which included warnings which were attended by an observation that such warnings were required in all such cases.

73 The appellant accepted that no complaint was made at the trial about the directions which his Honour gave. Nevertheless, it was submitted that the failure to give appropriate directions, but, more importantly the inclusion of directions which diminished the force of the warning, has resulted in a miscarriage which requires this Court to intervene: see Papakosmas v The Queen (1999) 196 CLR 297 at 319.

74 I do not accept the appellant’s submission. To my mind the indication which the trial judge gave to the jury that he was obliged to give certain warnings and directions did not diminish the force of the warning or direction given.

75 An introduction in the terms which his Honour used is commonly utilised by trial judges and is recommended by the Supreme Court Bench Book. Because the judge was indicating that the law requires the particular direction to be given the impact was likely to be to emphasise the serious nature of the matter, reinforcing in the minds of the jurors the necessity to follow the judge’s instruction. Unless the manner of delivering the introductory words conveys a perfunctory or dismissive attitude to the direction, which would be possible irrespective of the choice of language, an introduction which emphasises that the law requires the direction to be given by the trial judge is not inappropriate.

76 As I have indicated the appellant emphasised Howie J’s remarks in Roddom. Howie J also commented upon this issue in Stewart 52 NSWLR 301 at 222 [139-140] where his Honour emphasised that a trial judge when summing up should avoid language which runs the risk that the jury will treat a warning as a matter of routine and give it less weight than the law requires. However, whether the directions in any particular case are such that the jury has not been effectively instructed in relation to the significance of the warning will depend on the particular remarks of the trial judge in the context of the complete summing up. Reinforcing in the minds of the jury that the law requires a particular warning or direction to be given, even by repetition of that statement, may not without some inappropriate intonation, gesture or other indication arising from the context be likely to cause the trial to miscarry.

77 No complaint was made by trial counsel. I would decline leave to raise this issue.

ORDERS:

78 In my opinion the appeal should be dismissed.

79 JAMES J: I agree with McClellan CJ at CL.

80 HALL J: I agree with McClellan CJ at CL.

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14/08/2006 - The word "not" inserted after the word "does" on second line.The complainant's name was used in [48] and [50]. Has now been changed to "the complainant". - Paragraph(s) [48][50][55]