R v Lawson

[2000] NSWCCA 214

CITATION:	Regina v Leslie Harold Lawson [2000] NSWCCA 214
FILE NUMBER(S):	CCA 60021/99
HEARING DATE(S):	13 April 2000
JUDGMENT DATE:	14 June 2000
PARTIES :	Regina v Leslie Harold Lawson
JUDGMENT OF:	Stein JA at 1; Dunford J at 33; Sperling J at 40

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 97/21/1314
LOWER COURT JUDICIAL OFFICER :	Williams DCJ

COUNSEL :	G J L Scragg (Appellant) D C Frearson (Crown)
SOLICITORS:	Darryl Barlow & Company (Appellant) S E O'Connor (Crown)
CATCHWORDS:	Appeal against conviction - complaint evidence - sexual assault history taken by doctor - evidence as to truth of history - discussion of R v Welsh - restriction of cross-examination under s 409B(3)(c) Crimes Act - incompetence of counsel - miscarriage of justice
LEGISLATION CITED:	Crimes Act 1900, ss 66A, 409B(3)(c) Criminal Appeal Act 1912, s 6(1) Criminal Procedure Act 1986, s 105 Evidence Act 1995, ss 60, 66, 135, 136, 137
CASES CITED:	Eastman v The Queen (1997) 76 FCR 9 Graham v The Queen (1998) 195 CLR 606 Lee v The Queen (1998) 195 CLR 594 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1190 Papakosmas v The Queen (1999) 196 CLR 297 Quick v Stoland Pty Ltd (1998) 157 ALR 615 R v BD (1997) 94 A Crim R 131 R v Birks (1990) 19 NSWLR 677 R v H (1997) 92 A Crim R 168 R v Hilder (1997) 97 A Crim R 70 R v Hunter and Sara [1999] NSWCCA 5 R v Ignjatic (1993) 68 A Crim R 333 R v Sandford (1994) 33 NSWLR 172 R v Scott (1996) 137 ALR 347 R v Singh-Bal (1997) 92 A Crim R 397 R v Welsh (1996) 90 A Crim R 364
DECISION:	Appeal against conviction dismissed

IN THE COURT OF
CRIMINAL APPEAL
60021/99
STEIN JA
DUNFORD J
SPERLING J

Wednesday, 14 June 2000

Regina v Leslie Harold LAWSON
JUDGMENT

1    STEIN JA:

Introduction

2    I have had the benefit of reading the judgments in draft of Dunford J and Sperling J. I am indebted to Sperling J for setting out the facts which I am content to adopt save for one instance where I differ from his interpretation of the complainant’s evidence. I will refer to this below.

Grounds 1, 2 and 3

3    These grounds are as follows:

His Honour erred in not giving the jury any directions or any adequate directions on the use to be made of complaint evidence to Rhonda Fulton.
His Honour erred in not limiting the complaint evidence to Rhonda Fulton to credit only under section 136 of the Evidence Act 1995.

His Honour erred in admitting evidence of complaint to Rhonda Fulton.

4    I agree with Sperling J’s dismissal of grounds one to three, and his reasons for so concluding, subject to one reservation in relation to para 53. I agree with Dunford J that the complainant’s evidence was intended to and did convey that what she told Rhonda Fulton was in substance what the appellant had done to her.

Grounds 4 and 5

5    These grounds are as follows:

His Honour erred in directing the jury that the complaint evidence of Dr Norrie could be used as evidence of the facts stated in the complaint.

His Honour erred in not limiting the complaint evidence of Dr Norrie to evidence of history to base an opinion.

6 Section 60 of the Evidence Act 1995 renders an out-of-court statement evidence of the truth of the statement made, provided that the statement has been admitted for some purpose other than to prove the truth of the statement. The evidence of complaint given to Dr Norrie, on which she based her evidence, could be accepted by the jury as evidence of truth, Hunt CJ at CL in R v Welsh (1996) 90 A Crim R 364. The trial judge in his Summing-Up directed the jury ‘[y]ou are entitled to treat that evidence of complaint to Dr Norrie… as … truth of the matters complained of’.

7    The appellant did not raise any ground of appeal suggesting that Welsh was wrongly decided. Consequently the written submissions of the appellant and the Crown did not address Welsh. During argument, one member of the court raised the question of the correctness of Welsh. Counsel for the appellant then ‘formally’ made the submission that Welsh was wrongly decided. He was not however in a position to support his submission with detailed argument. Similarly, the Crown was not in a position to properly argue the question.

8    In addition, Welsh has been applied or considered on a number of occasions: see Lee v The Queen (1998) 195 CLR 594; Eastman v The Queen (1997) 76 FCR 9; R v Hilder (1997) 97 A Crim R 70; R v BD (1997) 94 A Crim R 131; R v H (1997) 92 A Crim R 168; R v Singh-Bal (1997) 92 A Crim R 397; Quick v Stoland Pty Ltd (1998) 157 ALR 615 and Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1120. Without determining the matter finally, I am not prepared to hold that Welsh was incorrectly decided. This is particularly since the Court has not had the benefit of comprehensive submissions. Accordingly, Welsh should be applied.

9 This leaves the question: should the evidence have been limited by s 136 of the Evidence Act? In Welsh Hunt J identified the possibility of s 136 being used to limit the use to be made of such evidence. See also Eastman v The Queen, R v H, R v Singh-Bal and Quick v Stoland. The appellant argues that Dr Norrie’s evidence was unfairly prejudicial to the appellant because the complaint was not fresh, not spontaneous (having been elicited by the doctor or in the course of a police investigation) and, to some extent, appeared to have been influenced by or contributed to by the complainant’s mother. Also, it was in some respects inconsistent with the complainant’s evidence in chief concerning the length of time of the history of abuse, and where the abuse occurred.

10 Early in the trial counsel for the accused indicated that he would object to Dr Norrie’s evidence of complaint. His Honour gave a ruling that the evidence would be admitted. Subsequently there was no application for discretionary exclusion and no application to limit the use of evidence under s 136. I agree with Dunford J that this is not a situation where the evidence would be unfairly prejudicial to the appellant. As Dunford J says, the evidence was consistent with the complainant’s complaint to Rhonda Fulton and with her evidence to the jury. In any event, should I be wrong on this ground, the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied since the appellant was not denied a fair trial or the real chance of being acquitted.

11 Accordingly, I would dismiss these grounds of appeal. 12 The question raised by the Crown of whether the evidence was nonetheless admissible under s 108(3)(b) of the Evidence Act, credibility re-establishment, regardless of leave not being sought at the time, does not need to be considered.

Ground 6

13    This ground claims that:

His Honour erred in his rulings restricting cross-examination under section 409B

14 The appellant submits that his Honour erred in his rulings restricting cross-examination under s 409B of the Crimes Act 1900. His Honour limited cross-examination of the complainant and her mother regarding men with whom the complainant had come into contact. Although no formal ruling was made, the effect was to limit cross-examination to the six months preceding 20 April 1997 (the date of the alleged offence).

15    On behalf of the appellant it is submitted that it was artificial to make such a limitation, especially in light of indications that defence counsel had instructions suggesting prior sexual assault of the complainant, by a person other than the appellant.

16 His Honour permitted limited cross-examination under the s 409B(3)(c) exception (it has since been repealed) which provided that:

(3) In prescribed sexual offences proceedings, evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is inadmissible except:

…

(c) where:
(i) the accused person is alleged to have had sexual intercourse, as defined in section 61H (1), with the complainant and the accused person does not concede the sexual intercourse so alleged; and

(ii) it is evidence relevant to whether the presence of … injury is attributable to the sexual intercourse alleged to have been had by the accused person;
…

17    The appellant did not concede the offence (ss (i)) and the evidence of injury was attributable to the sexual intercourse alleged (ss (ii)), so his Honour was correct to permit the cross-examination.

18    The evidence of Dr Norrie that sexual abuse had caused the complainant’s scar was not challenged by defence counsel. Rather he claimed that if sexual abuse resulted in the scar, it was not caused by the appellant.

19    In her evidence Dr Norrie indicated that when she first examined the complainant on 18 June 1997 the scar was ‘[p]robably less than a year old’. In cross-examination she reduced the time frame in which the injury could have occurred to a maximum of six months, or even ‘only maybe a couple of months’.

20 Given the unchallenged medical evidence of Dr Norrie as to the scar, his Honour was entitled to limit the cross-examination to 6 months to November 1996, the time frame relevant to the injury. Counsel at trial informed the trial judge that he desired to cross-examine the complainant in relation to ‘any sexual assault or touching by her natural father approximately in 1994’. This was clearly well outside the time frame in which the injury was established to have occurred, and was not permissible under s 409B. This ground of appeal has not been made out.

Ground 7

21    This ground was formulated as follows:

Incompetence of counsel at the trial resulted in a miscarriage of justice

22    The ground of appeal was added by leave during the hearing, having been properly but reluctantly raised by the bench. Incompetence alone is not a sufficient ground to set aside a conviction. Appellate intervention is only warranted when incompetent legal representation has led to a miscarriage of justice. Miscarriage of justice must be considered in light of the way in which the system of criminal justice operates and, as a general rule, an accused person is bound by the way in which the trial is conducted on her or his behalf, (Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685).

23    Hunt CJ at CL in R v Ignjatic (1993) 68 A Crim R 333 said:

Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will intervene. (at 336)

24    Hunt J also indicated that the onus is on the appellant to establish that a miscarriage of justice occurred. There is no miscarriage of justice unless it can be shown that there was ‘at least a substantial chance’ of acquittal. The onus is on the appellant to provide evidence on which such a conclusion could be fairly based (at 338).

25    Sperling J has listed examples of conduct by the accused’s counsel at the trial which he concludes are errors amounting to a miscarriage of justice. Without the benefit of comprehensive submissions or argument or hearing from the trial counsel, it is difficult to determine whether the counsel was incompetent. What with hindsight may appear unwise or even negligent, may well have been thought to have had a legitimate forensic purpose at the time. In particular, we are not in a position to know the accused’s instructions to counsel in relation to the particular matters referred to by Sperling J.

26    Nonetheless the crucial question for the court is not the incompetence but whether a miscarriage of justice resulted at trial (R vScott (1996) 137 ALR 347 at 362).

27    If counsel’s incompetence led to the complainant or other witnesses putting material before the jury which was arguably inadmissible but which the jury could accept as the truth, then it does not necessarily follow that there was a miscarriage of justice that deprived the appellant of a substantial chance of succeeding (Ignjatic).

28    Given the circumstances of the case, referred to by Dunford J, I do not think that the examples enumerated by Sperling J lead to the conclusion that there was a miscarriage of justice.

29    For example, it is unclear that, if it had been sought, a Jones v Dunkel direction in relation to the absence from court of Rhonda Fulton would have necessarily been given or would have been favourable to the appellant. It was open to the jury to accept the explanation for Ms Fulton’s absence, put by the complainant’s mother, that there had been a ‘falling out’ with Ms Fulton. As well, there was police evidence that they were unable to obtain a written statement from Ms Fulton because she did not want to supply one.

30    In conclusion, if the representation at trial was indeed incompetent, I agree with Dunford J that it did not occasion any miscarriage of justice. It has not been shown that the appellant was denied a substantial chance of acquittal by reason of incompetent representation.

31    I would also dismiss this ground of appeal.

Orders:

32    I propose that the appeal against conviction be dismissed. 33    DUNFORD J: In this case I have had the advantage of reading in draft form the judgment of Sperling J, where the facts and relevant extracts of the evidence are conveniently set out and also the draft judgment of Stein JA. For the reasons given by Sperling J I am satisfied that grounds of appeal 1, 2 and 3 fail and that the evidence of the complaint made by the complainant to Rhonda Fulton (who did not give evidence at the trial) and relayed by Rhonda Fulton to the complainant's mother (who did give evidence) was properly admissible as evidence of the truth of the complaint and that there was no error in his Honour not limiting the evidence to the credit of the complainant. I would add that, notwithstanding Sperling J's apparent reservations, I have no doubt that the evidence of the complainant was intended to, and did, convey to the jury that what she told Rhonda Fulton was in substance what she told the jury the appellant had done to her. 34    In relation to grounds 4 and 5 relating to the evidence of Dr Norrie, I am satisfied that that part of the evidence wherein the complainant said that it was the appellant who had done it, was admissible as evidence of the fact in accordance with R v Welsh (1996) 90 A Crim R 346 and in the overall context of the trial it was not a situation where the use of the evidence should have been limited pursuant to s 136 Evidence Act 1995. In particular, I do not consider it was unfairly prejudicial to the appellant because it was consistent with the complaint she had previously made to Rhonda Fulton and was in accordance with her evidence. I am not persuaded that this Court ought to reconsider its decision in Welsh. Not only do I find the reasoning in Welsh persuasive, notwithstanding the difficulties it can raise in some cases as alluded to by Sperling J, but it has been followed and approved in a number of subsequent cases, including Lee v R [1998] HCA 60; (1998) 157 ALR 394; [1998] 16 LegRep C1; (1998) 74 ALJR 1484; (1998) 102 A Crim R; (1998) 195 CLR 594, R v Singh-Bal (1997) 92 A Crim R 397 at 405 and 407, R v Hilder (1997) A Crim R 70 at 82, Eastman v R (1997) 76 FCR 9, 158 ALR 107 at 17-71. 35 As to ground 6 I agree with Stein JA that there was no error in his Honour's ruling restricting cross-examination under s 409B. 36 In relation to ground 7 (alleged incompetency of counsel) the relevant authorities have been referred to in the judgment of Stein JA, to which may be added R v Hunter and Sara [1999] NSWCCA 5, and R v Sandford (1994) 72 A Crim R 160; but what emerges from those cases is that not only must the incompetence of counsel be demonstrated, but also it must be shown that such incompetency has been of such a nature in the circumstances of the case to have led to a miscarriage of justice: R v Igniatic (1993) 68 A Crim R 333 at 338. The few cases where appeals have succeeded on this ground have been cases where substantial issues, such as character have not been raised, or fundamental applications such as applications for separate trials have not been made, and usually there has been evidence from counsel who appeared at the trial. I am not aware of, and my research does not disclose, any cases where an appeal has succeeded on this ground merely because counsel asked a number of questions which in the long run proved damaging to the appellant's case at the trial. 37 In the present case there is no evidence from counsel who appeared at the trial and we do not know what instructions he was given by his client; and it may be that in the light of his instructions that some or all of the lines of questioning which he pursued may have had a legitimate forensic purpose. The fact that he received answers which with the benefit of hindsight appear would have been better not asked, does not of itself demonstrate incompetence, and particularly does not demonstrate the degree of incompetence that will justify the upholding of an appeal against a conviction. Advocates are of varying standards, particularly in relation to cross-examination, and I believe this Court should be reluctant, with the benefit of hindsight, to judge the standard and competency of cross-examinations, particularly without evidence as to the instructions that the cross-examiner had from the client. 38 Moreover, even if it be accepted, which I do not, that there was gross incompetence on the part of defence counsel in the present case, I am not satisfied that it led to a miscarriage of justice. This was a single issue trial, namely whether it was the appellant who had anal intercourse with the complainant. It was a question of word against word. The complainant was cross-examined at length, as was the accused (although not at such length), and apparently the jury accepted the evidence of the complainant after being warned in the summing up that as the case depended on her evidence they needed to examine it with particular scrutiny and to be satisfied of its truth beyond reasonable doubt. Accordingly I am satisfied that ground 7, added by amendment at the hearing, also fails.

39    For these reasons, I agree with Stein JA that the appeal against conviction should be dismissed.

40    SPERLING J: On 16 November 1998, the appellant was convicted of the offence of having sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900. 41    The offence was alleged to have been committed on or about 20 April 1997 when the complainant was 8 years of age. At that time, the complainant was living with her mother. Her natural father was not living in the household. She saw him from time to time. 42    The appellant, who was then 40 years of age, had been living in the household temporarily. Whether he was still living there as at April 1997 or had moved out during the previous month was in dispute. He was a friend of the complainant’s mother. There was no suggestion of a more intimate relationship between them. 43    Shortly before 20 April 1997, the complainant’s mother was admitted to hospital. The complainant was to stay overnight on 20-21 April 1997 with a friend of the family, Ms Rhonda Fulton, before going on to stay at an institution, Stewart House, for a time. 44    The appellant took the complainant to her home on the afternoon of 20 April 1997 to collect clothing. It is alleged that the offence was committed there on that occasion.

Preliminary ruling: relationship evidence and complaint evidence

45 After the jury was empanelled but before evidence was given, the trial judge gave two rulings. First, he ruled, over objection by the appellant, that evidence would be admitted of prior similar assaults, not as evidence that the appellant had a tendency to commit offences of the particular kind but as relationship evidence. Such evidence is relevant as tending to dispel the inherent unlikelihood of conduct such as is alleged in this case, by establishing sexual interest on the part of the accused (what used to be referred to - and is sometimes still referred to - as “guilty passion”). In a case such as this, evidence of prior sexual experience or activity is prima facie inadmissible by operation of s 105 of the Criminal Procedure Act 1986 (previously s 409B of the Crimes Act1900), but relationship evidence is saved by the exception in subs (4). 46 The basis of the objection was apparently that the evidence should be excluded in the exercise of the court’s discretion pursuant to s 135 or s 137 of the Evidence Act 1995. The detail of the proposed evidence would have been made known to the judge. There was a police statement by the complainant which is likely to have been placed before him. Precisely what the trial judge was told the proposed evidence would be, is not, however, apparent from the appeal papers. His Honour ruled that the evidence could be given. 47    The second ruling was that evidence by the complainant of complaint allegedly made by her to Ms Fulton on the day of the alleged offence would be admitted. It is apparent from his Honour’s judgment on the application that the objection was based on the consideration that the evidence of complaint would be given by the complainant herself rather than by the person to whom the complaint was made. It was known that the Crown would not be calling Ms Fulton. His Honour recorded his understanding that Ms Fulton had declined to attend court to give evidence. Again, the appeal papers do not reveal what his Honour was told that the complainant would say in this regard. It may be assumed, however, that he had reason to expect that it would be evidence by the complainant of telling Ms Fulton what had allegedly occurred that day. His Honour ruled that the evidence could be given.

Ms Fulton not called

48    I digress here to mention the evidence given at the trial concerning Ms Fulton not being called as a witness by the Crown. Const Jones said, in his evidence, that he had attempted to obtain a statement from her on two occasions but she had declined to provide one. The only other evidence on the matter is that it was put to the complainant’s mother in cross-examination that Ms Fulton was not coming to court to give evidence because she would not support what the mother was saying in her evidence. The mother denied this was so. She said that she and Ms Fulton had had a falling out. She said Ms Fulton had at first made a statement to the police “and then declined”. She may have meant an oral statement, or she was mistaken about a written statement having been provided. In re-examination, the mother said the falling out had been in September 1997. There was no explanation led by the Crown as to why Ms Fulton had not been subpoenaed to give evidence in the Crown case. Nor, on the other hand, is there anything to suggest that the Crown was asked to make Ms Fulton available to the appellant, whether to be called by the appellant or for cross-examination.

The course of the trial

49    I will review the complainant’s evidence insofar as it is now relevant. The complainant said that, on the occasion that the appellant took her to the house to obtain her clothes, the appellant took her into her mother’s bedroom, told her to lie on the bed on her stomach and had anal intercourse with her. The complainant’s description of the act, as given in her evidence, was not in those terms but was unmistakably to that effect. 50    The complainant said, in her evidence in chief, that, on that day, after her arrival at Ms Fulton’s house, she had a conversation with Ms Fulton in the following terms:

“Q. What did you say to her?
A. I said all the mean things what he had done to me.
Q. Can you remember now what you told Rhonda about the mean things that he done to you.
A. No.”


It is reasonable to suppose that this evidence fell short of what the trial judge anticipated the evidence would be when he made the ruling to which I have referred, allowing evidence of complaint to Ms Fulton to be given by the complainant.

51    The complainant then gave evidence of the “same thing” having been done by the appellant many times prior to that occasion, over a period of half a year. That was a reference to the episode of anal intercourse of which the complainant had spoken. 52    The complainant said that, on the last occasion (that is, the occasion which was the subject of the charge), she suffered a lesion in the region of the perineum (again, not so described in terms) and that it hurt her after that to pass motions. 53    In cross-examination, the complainant gave the following evidence:

“Q. (Y)esterday you said that on the same day as (the appellant), you said, had his dick in your bottom, you told Rhonda?
A. Hmn.
Q. I earlier asked you where you went or what you did after being at your mum’s house, does it assist you that you told Rhonda on the same day, Aunty Rhonda?
A. Well, you know, yes I did tell her that - I told her the same day as Les done it.”

Counsel was asking about other things that happened that day, where she went and what she did. He was particularly interested in a car trip later in the day when, according to evidence he would call, the complainant appeared to be in a carefree mood. What he got, however, was an unresponsive answer to his question. The response was ambiguous. Did the word “that” refer back to the previous question about anal intercourse, or did the witness break off the sentence after the word “that”, in which case she did not say anything at this point in her evidence about what she had told Ms Fulton? The answer could have been taken by the jury to mean that the complainant had told Ms Fulton what the appellant had allegedly done that day. Depending on what the jury made of it, this unresponsive answer by the complainant was potentially very damaging to the appellant. There was no application to strike out the answer or for a direction to the jury to disregard it.

54    That is the first of a number of instances which have to be mentioned concerning the way the appellant’s defence was conducted at the trial. Collectively, they are relied on as constituting incompetence on the part of counsel of such a degree as to give rise to a miscarriage of justice. 55    The appellant is represented by different counsel on the appeal. The court felt obliged to suggest an independent ground of appeal based on incompetence. I am sure I speak for other members of the court, as well as for myself, when I say that the court did so with considerable reluctance. When counsel representing the appellant on the appeal took up the court’s suggestion and relied on the assertion of incompetence as an independent ground of appeal, he did so with equal reluctance. There are good reasons for such reluctance which go much deeper than mere considerations of delicacy. First, we were informed from the bar table that counsel received the brief only the day before the trial. Secondly, counsel who appeared at the trial has not been heard. In the nature of things, that cannot be done because counsel’s interests in defending himself against criticism would conflict with the interests of his client in relying on alleged incompetence as a ground of appeal. In this situation, the court has no alternative but to evaluate what occurred on the face of the record without counsel having the opportunity to be heard against any finding critical of him. 56    In these circumstances, it is necessary to emphasise that any finding of incompetence on the part of counsel at the trial is made for the purpose only of this appeal and should not be taken as a finding or judgment against counsel personally. Indeed, it should be recognised that a different view altogether might be formed if counsel had the opportunity of making submissions and perhaps putting further evidence before the court. Counsel’s professional standing is therefore unaffected by what is said in this judgment concerning the conduct of the appellant’s defence at the trial. 57    Dr C A Norrie of the Child Protection Unit at Westmead Hospital was interposed. She gave evidence of examining the complainant on 18 June 1997. The complainant gave a history of the alleged instance of anal intercourse by the appellant. Again, the terminology was different but the meaning was communicated clearly. The complainant also described the appellant’s penis being rubbed across the vulva between the labia. There was a history of pain with urinating and with defecating after this episode, and of some bleeding. 58    According to the history taken by Dr Norrie, the complainant also said that abuse had occurred over a period commencing some time in 1994, more frequently between early 1996 and April 1997. The complainant said that, whenever the appellant saw her, he would tell her to go and lie on the bed and take her pants down, and he would then lie on her. 59    On 18 June 1997 and on further physical examination on 8 August 1997, Dr Norrie found scar tissue consistent with the complainant’s description of what had allegedly occurred. In chief, Dr Norrie said the scar tissue was probably less than a year old when first seen by her, that is, in June 1997. 60    In cross-examining Dr Norrie, counsel pressed the witness to be more precise about the likely age of the scar. The cross-examination was seriously disadvantageous to the appellant. The likely age of the scar was whittled down, until the point was reached where the lesion might have been caused only as much as two months prior to April 1997. This related the scar more closely in point of time to the alleged final act of anal intercourse, relied on as constituting the offence charged. The cross-examination embarrassed the case which counsel intended, on instructions, to mount that the complainant had been molested by her natural father in and possibly from 1994. It served no apparent purpose in the interests of the appellant. 61    Dr Norrie was not asked directly whether the scar might possibly have been caused by a lesion in 1994. There was nothing to be lost by such a question in view of the answers given in cross-examination. The witness might have said, consistently with her other evidence, that this was most unlikely but possible. That would have left the door open for assault by the complainant’s natural father being the explanation for the complainant implicating the appellant in her accusations. 62    The investigating police officer, Const Jones, was interposed. He gave evidence that the appellant was interviewed on 3 September 1997. The appellant had declined to answer questions, as was his right. He was arrested and charged.

Further ruling: limiting cross-examination as to prior sexual acts

63 There was then further discussion with counsel before cross-examination of the complainant was resumed. Counsel for the appellant said he wished to cross-examine the complainant about assault by her natural father in about 1994, and about males other than the appellant being in the house during the period 1994 to 1997. It is apparent from later transcript that, at some stage, the trial judge ruled that there was to be no cross-examination about sexual acts happening earlier than six months before the alleged offence committed by the appellant. The ruling is not recorded anywhere. It seems likely that the ruling was given at this stage and that it arose from consideration of s409B (as the section then was) and that the rationale for the six months limitation was the evidence given by Dr Norrie about the age of the scar.

The trial, continued

64    The cross-examination of the complainant was then resumed. She adhered to her evidence that the appellant had assaulted her over a period of about six months. She agreed that, at that time, her mother was keeping company with another man who was living in the house at the time. 65    Cross-examination then continued on a number of topics. The objective seems to have been, in each instance, to bring out some inconsistency or other in relation to the complainant’s assertion of molestation prior to the alleged assault which was the subject of the charge. The effect was quite the opposite. In each instance the complainant’s account of events was fortified, to the detriment of the appellant. 66    The complainant was cross-examined about where the alleged assaults had occurred. The form of the questions was unusual for a challenge to a complainant’s evidence:

“Q. Before this day was there a particular room that he would do it like you say?
A. What do you mean?
Q. This day was your Mum’s room you’ve said?
A. Yeah. We’ve never done it in my (?) room except that day and then - he usually does it in his room.
Q. How about your room?
A. His room.
Q. How about your room?
A. He’s never done - yes he has done it once in my room.
Q. Do you remember the details of what day that was or not?
A. No, I don’t remember anything about that day.
Q. So you say at least one day in Mum’s room?
A. Hmn.
Q. Mainly in his room?
A. Hmn.
Q. And once that you can remember in your room?
A. In my room, yep.
Q. And if I was to say to you that it happened mainly, more often than not, in your room, what would you say about that?
A. That was a big lie.”
These questions would have given the jury to understand that there was no dispute about the history of abuse, only about where it had happened. Later, it was put to the complainant that the alleged prior acts had not occurred, but the jury must have been left wondering whether the prior acts were seriously in dispute. Meanwhile, the complainant had been given the opportunity of reinforcing the history of alleged abuse with details of where and when.

67    The complainant had gone to the house with the complainant knowing that she would be alone with him there. This was arguably inconsistent with the complainant’s evidence of previous abuse when the appellant had the opportunity to take advantage of such a situation. The course taken by counsel in relation to this arguable inconsistency was to endeavour to extract from the complainant, by persistent cross- examination, a concession that she had no feelings of reluctance about going alone to the house with the appellant. This was hazardous in the extreme. It gave the complainant the opportunity of explaining how that came about and - more importantly - the opportunity of making her alleged feelings about the appellant known in a way that would not otherwise have been possible. Again, there were also questions asked at this stage in a form which suggested there was no challenge to the complainant’s story of prior abuse. Other questions disputed the story but, again, the jury would have wondered where the appellant really stood on this issue. The passage from the transcript is as follows:

“Q. How did you feel about Leslie on this day when he’s driving you to your house?
A. That he’s a disgusting .. (not transcribable).
Q. Could you say that again, I didn’t hear you.
A. He’s disgusting.
Q. I know you were only eight at the time but you knew that the house you were going to was empty?
A. Yeah.
Q. And I’ve said all along that Leslie was out on the front porch having a smoke?
A. Yeah, he was and then he came back in the house or he went in the house.
Q. I’m saying he never went in the house that day, he was on the front porch. His foot didn’t even make it --
A. He went in the house.
Q. Weren’t you scared to go into the house with him alone knowing what he’d done to you?
A. Yes.
Q. Did you try and hesitate, did you do something, did --
A. I said ‘No, I don’t want to’.
Q. When did you say that?
A. When he said ‘Go in Mum’s room’ I said ‘No, I don’t want to’.
Q. Those words, when were they said?
A. Well when you (as said) said “ (naming the complainant) go in your Mum’s room’, I said ‘No, I don’t want to’.
Q. But I’m talking about when either you were driving in the car with him or when you were about to walk into the house with him, didn’t you say you were scared, you didn’t want to go in? Did you say or do something to suggest you didn’t want to be there with him?
A. I even told Rhonda that I don’t want to go with him, I’d like someone to go with me.
Q. When did you say that?
A. When I was at Rhonda’s house.
Q. Was that when Leslie was there or not?
A. Cause I knew he was coming to pick me up.
Q. I’m suggesting to you that you went to get into Leslie’s car and there was no problems, do you agree with that?
A. Yes, because I had to go get my stuff and whether (?) I liked it or not.
Q. Were you scared of this man?
A. Yes.
Q. And he disgusted you?
A. What?
Q. He disgusted you, didn’t he?
A. Hmn.
Q. I’m saying from Rhonda’s house alone you weren’t scared of him and you didn’t tell Rhonda ‘Look I don’t want to go with him’?
A. Yes, I did and you see Rhonda said that ‘You have to go because you need to get your stuff’.
Q. Did you tell the policeman or policewoman?
A. What do you mean?
Q. ‘Look I told Rhonda I didn’t want to go either’?
A. No, cause she never asked about it.
Q. But what I’m saying is you weren’t scared of him, that’s why you went in the car with him?
A. I was scared of him. He’s done it for, like that was the last night (?) he’s done it, he’s done it almost for - almost half a year.
Q. See I’m also saying you weren’t scared of him because you knew the house was empty cause you’d stayed there the night before and you walked straight into the house you say with him?
A. You’re getting me very muddled up.
Q. When you went to the house to get the clothes, you were with this man who you were scared of, Leslie?
A. Hmn.
Q. And he disgusted you?
A. Hmn.
Q. But you still walked straight into the house, you didn’t --
A. Well I really never had much of a choice, what would you want me to do? Run away cause I never had much of a choice did I? I just had to go or - go and there wasn’t really much of choice unless she was going to go with him and I don’t reckon she would really like that, she’s got three kids - actually four kids, a baby and three big children. I don’t reckon she would really want to go.
Q. Had Rhonda been to your house before this from time to time?
A. Yes.
Q. I know you said she’s got some children but did you say to Rhonda ‘Look I’d like you to come with me’?
A. Well I asked Rhonda ‘Can one of the other kids go with me?’
Q. What happened there?
A. She said ‘No, it’s okay. He won’t do anything’.
Q. Did you push that any further?
A. No.
Q. Did you say --
A. No, why would I?
Q. Did it scare you when you went into that house - when you were in your room, did you feel scared?
A. Yes but like I said, what would you want me to do, jump out of the window and die?
Q. And when you left the house, how did you feel?
A. Well very disgusted that he even done it for starters.
Q. You’ve said that he --
A. If he wants a girlfriend try and get the ‘Hot Line’ there.
Q. I didn’t hear that, I’m sorry.
(No verbal reply)
HIS HONOUR: Q. What did you say (complainant)?
A. Don’t worry.

68    This was very damaging evidence for the appellant. It provided an explanation, which the jury was entitled to accept, for how the complainant came to be going to the house with the appellant despite alleged earlier abuse. It took the steam out of that point. More importantly, if the jury thought the complainant’s feelings concerning the appellant appeared to be genuine, the cross-examination produced very strong evidence in support of her story of abuse by the appellant. 69    The cross-examination continued to reinforce the complainant’s account of events. For example:

“Q. Were you feeling painful when you got back in the car with --
A. Only except my bottom.
Q. It was feeling painful was it?
A. Yes.”

And:
“Q. Where did you go from home after - you two got back in the car, where did you go then?
A. I don’t know.
Q. Well you would’ve been feeling pretty bad, is that right?
A. Hmn.”

70    It was at this point in the cross-examination of the complainant that the ambiguous evidence was led concerning what the complainant had said to Ms Fulton on the day of the alleged assault. Again, the cross-examination reinforced the complainant’s account of events:

“Q. See I’m trying to establish what happened after you were at your Mum’s house with Leslie?
A. I don’t recall, all I recall is that I told Rhonda at her house when the sun was going down.”

And:
“Q. So you told her that Leslie had done things to you that afternoon at Mum’s house, that’s right?
A. What?

Q. You told Aunty Rhonda as the sun’s going down about what Leslie had done to you in Mum’s empty house?

A. Hmn.
Q. When you told this to Rhonda did she appear to get angry or change?
A. Yes.

71    Next came cross-examination on a comment the complainant had made earlier in her evidence to the effect that the appellant had timed the alleged sexual episodes. Counsel’s objective was apparently to make that assertion look ridiculous. Again - predicably, so far as the trial record reveals - the result was the opposite. The harder the complainant was pressed, the more this bizarre element in the narrative sounded to be factually correct. The real issue in this case, as counsel acknowledged at one stage to the judge, was whether the complainant had been assaulted by the appellant or by someone else. Dr Norrie’s evidence virtually mandated that approach. The assertion that the assailant timed the episodes was neutral evidence so far as that issue was concerned. But counsel did not leave the assertion alone. The following is the relevant extract from the transcript:

“Q. And you’ve also said that Leslie usually timed it?
A. Pardon?

Q. Leslie usually timed it?
A. Yes.

Q. What do you mean by that?
A. Well he used to look at the clock and he used to time it by that.

Q. Did he say words to you or was he silent?
A. He was usually silent.

Q. How did you know he was timing something if?
A. Because he was watching the clock.

Q. But didn’t you --
A. What?

Q. You’ve told us that you had your head into the pillow or the bed?
A. Yeah but like he told me that - like before he said - before he done it he said ‘I will time it’.

Q. He would say that ‘I will time it’?
A. Hmn cause he used to count and like I started to time it, like he said ‘Ten seconds more’ and as soon as it was ten seconds and I said ‘Stop’ because I timed it and that’s how he started to time it.
Q. So you’re saying this timing, he used a clock on the wall?
A. Hmn. He had a clock in his bedroom.

Q. And it was that clock that was being used, you think?
A. Hmn.

Q. Just on that point, I would suggest to you that’s just not true, he wasn’t timing anything?
A. He was.”

And:
“Q. You said he timed it?
A. Hmn, he timed it cause I started to time it first.

Q. Time what?
A. He used to say how many minutes he would do, five minutes, ten minutes, five minutes, twenty five minutes.

Q. Are you suggesting --
A. No, he never said twenty five minutes but I’m just saying, five minutes, two minutes, one minute, ten minutes, fifteen minutes. He used to just say things like that. How many minutes he’d time it for.
Q. This timing is the touching, his putting his dick in your bottom. That’s what you’re talking about isn’t it or something different?
A. He’s just timing it. All I said, he was timing it when he was doing it.
Q. (Naming the complainant) it’s important that you --
A. I didn’t even understand what you’re talking about.
Q. When you say he’s timing it, it’s the times when he’s been touching you, is that right?
A. .. (not transcribable) ..
Q. You’ve said he’s been --
A. Yeah, he was laying down on me, he was doing what he’s doing and then he timed it to stop and then when the five minutes was stopped he hopped up cause he looked at the clock and he said ‘Okay I’ll time you for five minutes’ and then he done it for five minutes and then he stopped from the clock.
Q. I’m saying that’s not true.
A. It’s true.”

Re-affirmed ruling, limiting cross-examination

72    Counsel renewed his application to be permitted to cross-examine concerning the sexual abuse by the complainant’s natural father prior to the period of six months specified by the complainant as the period during which she said she had been molested by the appellant. His Honour re-affirmed his earlier ruling.

The trial, continued

73    The complainant’s mother was the next witness. She said that she first met the appellant in 1994. That coincided with the year when abuse by the appellant began, according to the history given by the complainant to Dr Norrie. She said that the appellant had lived in her house from January 1997 to 22 April 1997 when she asked him to leave. She confirmed that she was in hospital at the time of the alleged assault. She said that she spoke to Ms Fulton on the telephone from the hospital on 21 April 1997. She was not asked in chief about any conversation with Ms Fulton concerning anything said to Ms Fulton by the complainant. However, in cross-examination, the following evidence was obtained from her:

“Q. Now when you returned from the hospital, when was that?
A. It was about a - I stayed in hospital for seven days so it would’ve been about the 25th, 26th that I came out.
Q. Of April?
A. Hmn.
Q. Was it only then that you became aware of what had been alleged or --
A. No.
Q. --had you became aware whilst you were in hospital?
A. Rhonda had told me on the Monday.
Q. I don’t have a calendar, do you remember, you --
A. The 21st.
Q. The 21st Rhonda told you?
A. Yeah.
Q. Did she come in and visit you personally and tell you?
A. No - well I rang her to see whether (the complainant) had got off to Stewart House okay and she said - well she explained over the phone that (the complainant) had told her and I rang Stewart House just to let them know what I’d been told and to ask them if they could check on (the complainant) and just to see how she was.
Q. What did Rhonda on the phone say to you?
A. She said that (the complainant) had come in on the Saturday from being taken back to my place and she just broke down and she said that Les had touched her and it hurt and - she just broke down.
Q. I just have to put a time frame on this, you say she said that conversation was on a Saturday, is that right? Not a school day?
A. No, it was on a Saturday.
Q. Did she say that this allegation took place on a school day, that is did Rhonda say that or not?
A. No, she said that it happened on the Saturday when Les took her home to get clothes.
Q. Did she also indicate that Les had called at her house to pick (the complainant) up?
A. Yep.
Q. To go to the house?
A. And she was upset by that because it was supposed to be his sister doing it. She didn’t want to let (the complainant) go because she didn’t really know who Leslie was. Rhonda, so she said ‘I didn’t want to let her go in the first place but he said - explained to her that Kerry had told him to come over and take (the complainant) back home and take her over to my grandma’s’.
Q. But the reality is that (the complainant) went on her own with Les, is that right?
A. She didn’t have much choice, yeah.
Q. And then of course it unfolded by what Rhonda told you that your daughter had allegedly been, shall we say, molested?
A. Yep, hmn.”

74    The effect of this cross-examination was to bring out evidence corroborating the complainant’s evidence of complaint to Ms Fulton, and in graphic terms. The complainant’s evidence in chief had included little, if anything, that could be relied on by the Crown as evidence of early complaint. There was only the complainant’s own evidence of telling Ms Fulton about “all the mean things” the appellant had allegedly done. That was scant evidence of a complaint about anal intercourse having occurred that very day. As I have pointed out, this was improved in the course of cross-examination of the complainant to the point where there was evidence which the jury could construe to mean that the complaint had been about anal intercourse by the appellant having occurred that day. Now, in the course of cross-examining the mother, further evidence was adduced that, on the day of the alleged assault, the complainant was upset and told Ms Fulton of a sexual assault by the appellant having occurred that day. This was even more important evidence against the appellant because it came from a witness other than the complainant herself. 75    I have referred to the mother’s evidence concerning Ms Fulton’s absence from court. 76    I now need to mention, in relation to her evidence, yet another instance of evidence being led from a witness in cross examination by the appellant’s counsel to the appellant’s disadvantage:

“Q. Did it concern you then, you said that you felt he was genuine and you had trust in Leslie, how did you feel then being armed with this information, if from no one else from Rhonda and others as time passes, about Leslie?
A. What, after the fact, after the matter come out?
Q. Yes.
A. I wanted to kill him.
Q. I’m sorry?
A. I wanted to kill him.
Q. And of course you had extreme disgust, would that be fair to say?
A. Oh to the max, to the max, it’s just, you’ve got no idea”

What purpose this cross-examination was intended to serve is not apparent. The evidence was highly prejudicial to the appellant.

77    The appellant gave evidence. He denied the offence and all sexual contact with the complainant as alleged. He had come to know the complainant’s mother when she was living with his cousin. When that relationship ended, the cousin was causing difficulties. The appellant moved into the house at the request of the complainant’s mother to be on hand to witness any further disturbances. The appellant described a happy relationship with the complainant. He said he took her on outings with his own nephews and nieces. According to the appellant, he moved out of the house at the end of March, that is, some weeks before the complainant’s mother went to hospital. That was contrary to the mother’s evidence that he did not go until 22 April. 78    The appellant said that, while he was living at the house, a man called Benny slept there with the complainant’s mother. 79    The appellant’s account of events on the day of the alleged offence was that his sister, Ms Herd, asked him to pick up the complainant from Ms Fulton’s house and take her home to collect some clothes. He said he did as he was asked, waiting outside the house on the verandah while the complainant got together what she needed. He said he did not enter the house. The appellant said he then took the complainant to his sister’s house. His sister left with the complainant. 80    A Mr J Werner gave evidence corroborating the appellant’s evidence that the appellant had left the complainant’s mother’s house in March 1997 rather than on 22 April 1997 (as the complainant’s mother had said). He also corroborated the appellant’s evidence that the complainant’s mother had a boyfriend who slept at the house at the relevant time. 81    Ms Herd gave evidence. She also said that the appellant had left the complainant’s mother’s house in March 1997. She also confirmed that it was she who asked the appellant to pick up the complainant from Ms Fulton’s place and take her home to collect some clothes. She said the appellant returned with the complainant, and that she (Ms Herd) then drove the complainant to her grandmother’s place. (The complainant went on to Ms Fulton’s place later that day.) Ms Herd said that the complainant appeared to be happy on the trip to her grandmother’s place and was singing along with the music in the car. 82    At the conclusion of the evidence, the Crown prosecutor submitted that the trial judge would give directions in relation to the evidence of complaint. The following note appears in the transcript:

“(The) Crown Prosecutor …. submitted that in relation to the complaint itself and the direction that his Honour give as to the use of the jury may make of the complaint, whether it goes in for the purpose under s 66 as going in for the truth or whether it is to be limited. Discussion ensued.”

It is not apparent whether the discussion at that stage related to the evidence of complaint to Ms Fulton or the history to Dr Norrie or both, nor what position was taken, at that stage, by either side in relation to that evidence.

83    In his summing-up, the trial judge referred to the complainant’s evidence as to what she allegedly told Ms Fulton. It was an oblique reference in the course of summarising a Crown submission. The trial judge said:

“(T)he Crown says ….. she eventually told Rhonda on the day that the last event happened because things happened on that occasion that were, she says, worse than before.”

The trial judge said nothing about how the jury could use the history obtained by Dr Norrie.

84    In the summing-up, the trial judge also referred to the history given by the complainant to Dr Norrie. He said only the following in relation to that evidence:

“You have heard the history that Dr Norrie obtained from (the complainant) as to the things that were done to her and also who did it to her. So that is her evidence. Dr Norrie cannot say who did it, all she can say is ‘I have examined a child here who has given me a history of things happening to her. Having looked at the child I am satisfied that what I saw is consistent with what she told me.’”

The trial judge said nothing about how the jury could use the history obtained by Dr Norrie.

85 In the absence of any such direction in relation to the evidence of complaint to Ms Fulton or in relation to the history given to Dr Norrie, it was to be assumed that the jury would take both of pieces of evidence to be evidence like any other evidence, that is, as evidence of the fact. 86 So far as the evidence of complaint to Ms Fulton is concerned, there was no request for any further direction at the end of the summing-up, either by the Crown prosecutor or by counsel for the appellant. 87 So far as the history given by the complainant to Dr Norrie is concerned, the Crown prosecutor sought a direction at the conclusion of the summing-up. He submitted that the jury should be directed that the history to Dr Norrie could be used as evidence of the truth of what was said by the complainant, pursuant to s 66 of the Evidence Act. Counsel for the appellant did not oppose such a direction being given. He said he left the decision to his Honour. The trial judge then proceeded to supplement his summing-up, directing the jury that they were entitled to treat the history given to Dr Norrie as evidence of the “truth of the matters complained of”.

The grounds of appeal

88    The appellant appealed against the conviction on the following grounds.

“1. His Honour erred in not giving the jury any directions or any adequate directions on the use to be made of complaint evidence to Rhonda Fulton.
2. His Honour erred in not limiting the complaint evidence to Rhonda Fulton to credit only under section 136 of the Evidence Act 1995 .
3. His Honour erred in admitting evidence of complaint to Rhonda Fulton.
4. His Honour erred in directing the jury that the complaint evidence of Dr Norrie could be used as evidence of the facts stated in the complaint.
5. His Honour erred in not limiting the complaint evidence of Dr Norrie to evidence of history to base an opinion.
6. His Honour erred in his rulings restricting cross-examination under section 409B.”

To these grounds of appeal there is now to be added the following further ground of appeal:

7. Incompetence of counsel at the trial resulted in a miscarriage of justice.
The law in relation to complaint

89    The following principles apply in relation to the application of the Evidence Act 1995 to evidence of complaint in a sexual assault case. They are extracted from BD (1997) 94 A Crim R 131, Graham [1998] HCA 61, (1998) 157 ALR 404 and Papakosmas [1999] HCA 37, (1999) 164 ALR 548.

(1) Depending on the case, evidence of complaint may be evidence of the facts asserted and/or evidence which enhances the credibility of the complainant in relation to the complainant’s evidence in court as to the facts. In either such case, the evidence is relevant evidence within the meaning of ss 55 and 56 and is prima facie admissible.

(2) The admissibility of such evidence is subject to the exclusionary rules in the act. These include s 59, the hearsay rule, and s 102, the credibility rule.

(3) Evidence of complaint, insofar as it is evidence of the facts stated, is hearsay evidence and is prima facie inadmissible by operation of s 59. If covered by an exception to the hearsay rule, the evidence is admissible as evidence of the fact.

(4) Section 66 provides an exception the hearsay rule. The conditions for its operation include that the occurrence was “fresh in the memory” when the statement was made. The meaning of that phrase has a temporal quality, ordinarily measured in hours or days rather than in years. Quality and vividness of recollection are generally relevant, but contemporaneity or near contemporaniety are almost always the most important consideration. For an event relatively remote to qualify will be rare, and will require some special circumstance or feature.

(5) Evidence of complaint, not otherwise admissible, is prima facie not admissible in relation to the credit of the complainant, by operation of s 102. If covered by an exception to the credibility rule, the evidence is admissible as going to the credit of the complainant.

(6) Section 108 provides an exception to the credibility rule. The conditions for its operation include that the court has given leave to adduce evidence of the prior statement.

(7) Evidence so admitted as relevant to the complainant’s credibility also becomes evidence of the fact, notwithstanding its hearsay quality by operation of s 60, which creates an exception to the hearsay rule in relation to such evidence.

(8) All such evidence is subject to exclusion pursuant to s 135 or s 137 or limitation in its use pursuant to s 136, in the discretion of the court.
(9) A court is not bound in the exercise of its discretion to limit the use of evidence of complaint to the question of the credibility of the complainant.

Ground 1: His Honour erred in not giving the jury any directions or any adequate directions on the use to be made of complaint evidence to Rhonda Fulton. Ground 2: His Honour erred in not limiting the complaint evidence to Rhonda Fulton to credit only under section 136 of the Evidence Act 1995. Ground 3: His Honour erred in admitting evidence of complaint to Rhonda Fulton. 90 As I have mentioned, before evidence was given in the trial, counsel for the appellant sought a ruling that the evidence of complaint to Ms Fulton should be disallowed. The trial judge ruled that the evidence would be allowed. As I indicated earlier, there is no reason to hold that the ruling was erroneous on whatever was before his Honour at that time. The way the submission was put in the oral argument on appeal is that his Honour should have disallowed the evidence given in cross-examination in view of the way it was led. I have recounted how that happened. 91 The submission is that the evidence was led on the erroneous assumption that the complainant had said, in her evidence on the previous day, that she had told Ms Fulton of anal intercourse by the appellant, whereas she had not. The gist of the submission was that the appellant’s counsel had inadvertently misled the complainant concerning what she said on the previous day. It was argued that the trial judge ought to have disallowed the evidence, in the exercise of his discretion, because the evidence was unfairly prejudicial and had virtually no probative value (being evidence put into the mouth of a nine year old witness on a false premise). 92 As will appear from my earlier review of the relevant part of the cross-examination, I do not agree that this is what happened. Rather, a potentially damaging, unresponsive answer was given by the complainant in cross-examination, and that is all. No application having been made to have the answer struck out or for a direction to the jury to disregard it on the spot, there was no error on the part of the trial judge in not intruding to disallow the evidence. The significant feature of what occurred in relation to this evidence was the failure by the appellant’s counsel to deal appropriately with the situation that arose, by asking for the evidence to be struck out or for the jury to be instructed to disregard it. 93 It was also argued that the evidence as given in cross-examination was not admissible. How the jury construed the answer was a matter for them. Construed as evidence of a complaint of anal intercourse made to someone on the same day, the evidence was squarely within the ambit of s 66, and accordingly stood as evidence of the fact subject only to the discretion of the court to exclude it or limit its use pursuant to sections 135 to 137 of the Evidence Act. 94    If the trial judge’s discretion had been invoked, he would not have been bound to disallow the evidence. In any event, the trial judge was not bound, in the circumstances of this case, to exercise his discretion without it being invoked. If that is wrong, the point not having been taken at the trial, Rule 4 applies. I would not give leave to argue the point under Rule 4.

95    Ground 3 therefore fails.

96    The same considerations apply to Ground 2. It also fails. 97    As to Ground 1, unless the use of the evidence was limited to credit (which it was not) there was nothing the trial judge needed to say to the jury concerning the use to be made of the evidence. Ground 1 fails. Ground 4: His Honour erred in directing the jury that the complaint evidence of Dr Norrie could be used as evidence of the facts stated in the complaint. Ground 5: His Honour erred in not limiting the complaint evidence of Dr Norrie to evidence of history to base an opinion. 98 His Honour accepted the Crown’s submission made at the end of the summing up that the history given to Dr Norrie was admissible as evidence of the fact pursuant to s 66. He supplemented his summing-up accordingly. That was an error. The alleged event relied on as constituting the offence was not “fresh in the memory” of the complainant two months afterwards, as the phrase has been construed in Graham (above). 99 It is also to be borne in mind that the history given to Dr Norrie included molestation by the appellant of the same kind dating back to 1994. That was even more plainly inadmissible as evidence of the fact pursuant to s 66. 100 I would not regard the history to Dr Norrie as having been admissible in any other way. There are only two other routes by which the hearsay rule could arguably have been avoided. The first is the combined effect of s 108 and s 60. The difficulty about that approach is that leave was not granted under s 108, and leave was by no means mandated as an exercise of discretion in this case. So that route is not available: Graham (above). 101    The other possible route is by application of the decision of this court in Welsh (1996) 90 A Crim R 364. It was held, in that case, that a history given to a medical practitioner is admissible to establish the assumptions upon which the expert’s opinion is based, and that s 60 then operates to make the history so communicated an exception to the hearsay rule and hence evidence of the fact. 102 Section 60 provides as follows:

“60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”

Section 55 provides as follows:

“55.(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.”

Section 56 provides as follows:

“56.(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceedings.
(2) Evidence that is not relevant in the proceeding is not admissible.”

103 The history obtained by an expert is evidence of a special kind. It is admitted to enable the court to know the assumptions on which the expert’s opinion is based. The source of the assumptions might be a party to the litigation, the solicitor for a party, a family member, another expert, a witness, or anyone at all who tells the expert what happened. The source of the assumptions is immaterial. The communication is, in itself, immaterial. All that matters is that, one way or another, the court learns the assumptions on which the expert’s opinion is based so that it may be decided whether the opinion is a relevant opinion. If the assumptions prove to accord materially with the facts of the case as found, the opinion will be a relevant opinion and may be acted upon for what the tribunal of fact thinks it is worth. If the assumptions do not accord materially with the facts as found, the opinion will be irrelevant and must be ignored. 104 I am not concerned here with ways in which a history given to an expert may be admissible for reasons other than to inform the court of the assumptions on which an expert’s opinion is based. These include an admission against interest made by a party or a prior consistent or inconsistent representation made by a witness within the rules relating to the admissibility of such representations. I am speaking of history communicated to an expert when evidence of the communication is led purely as a convenient means of informing the court of the assumptions on which an expert’s opinion is based. 105 Evidence of the representation by which the history is communicated to the expert in such a case is not a representation that is “relevant for a purpose other than proof of the fact intended to be asserted” within the meaning of s 60. The fact of the representation is not relevant at all. The point may be tested this way. Assume an expert witness is asked what assumptions were made and specifies them. The witness is then asked how he or she came by the assumptions with a view to adducing evidence of the communication by which the assumptions to be made were conveyed to the expert. The question would have to be rejected, if objected to, because the evidence would not be relevant. 106 I am aware that the Law Reform Commission intended s 60 to have the effect of making medical histories evidence of the fact, but I do not ascribe such an intention to the parliament. The result is so patently contrary to sound fact finding that it cannot have been intended as a matter of legislative policy. Under Welsh, unsworn, untested histories go into evidence in criminal trials as evidence of the fact, to support cases of diminished responsibility and defences of mental illness. It does not matter who gives the history to the medical practitioner. It is admissible. The same goes for personal injury cases. A carefully presented history will substitute for sworn, tested evidence. It can be communicated to an expert witness directly by the plaintiff or in a carefully prepared letter by the solicitor. The plaintiff does not have to give evidence of the accident or its effects. It can all be done by history. The limited discretionary powers in sections 135 to 137 are not a complete answer. The results of the decision in Welsh cannot have been intended. 107    In my respectful opinion, Welsh was incorrectly decided and clearly so. A passage in Lee [1998] HCA 60, (1998) 195 CLR 594, at [39] and [40] could be read as supporting the decision in Welsh (although Welsh was not cited) but the passage is obiter dicta. There is no decision binding on this Court which requires us to continue to follow Welsh. I would not do so. 108    I would like to see a practice in jury trials - civil and criminal - whereby history is established in relation to expert opinion evidence by asking, as a leading question, whether the witness has made certain specified assumptions for the purpose of forming an opinion (or asking the witness to make the assumptions on the spot, if the opinion evidence is being led cold). The witness would then be asked what opinion the witness has formed (or forms on the spot), based on those assumptions, in relation to the issue in question (specifying the issue). The witness would only be asked when, how and by whom the history was communicated to the witness if the communication was relevant and admissible as such. Then the evidence of the communication would be led with the same care as evidence of any other relevant communication is led, rather than the witness simply reading from a report in whatever form the communication may be recorded there, as is mostly done now. In either case, the trial judge would then tell the jury what status the evidence had as proof of facts in issue. In the first case, the status would be nil and the jury would be told why the evidence was led and that there was, therefore, no need, in that case, to be concerned about where the assumptions put to the witness had come from. In the second case, the jury would be told precisely what issue the evidence goes to and how it might bear on that issue. All that could be achieved without ever saying to a jury that the history on which the opinion is based is or is not “evidence of the fact”, a formulation understood by lawyers but which must send juries reeling. 109    Rule 4 applies. The error was, however, fundamental. Leave to rely on this ground of appeal should be given. 110    For these reasons, Ground 4 should be upheld. 111    Ground 5 need not be considered. Ground 6: His Honour erred in his rulings restricting cross-examination under section 409B.” 112    I have read, in draft, the judgment which Stein JA proposes to publish. I agree that this ground of appeal fails for the reasons he gives. Ground 7: Incompetence of counsel at the trial resulted in a miscarriage of justice. 113    In a draft of this judgment, I concluded that incompetence displayed by counsel representing the appellant at the trial was of such a nature and consequence that there was a miscarriage of justice. I emphasised that this was not a finding against counsel. He had not been heard. Particulars were, I said, as follows:

(1) The cross-examination of Dr Norrie which resulted in a closer relationship in point of time between the lesion causing the scar and the alleged offence in April 1997.
(2) The failure to ask Dr Norrie squarely whether the scar could possibly have been caused in 1994.

(3) The cross-examination of the complainant as to where prior episodes had occurred.

(4) The cross-examination of the complainant as to her reasons for having gone to the house alone with the appellant.

(5) Further cross-examination reinforcing the complainant’s account of events.

(6) The failure to ask for the answer, given by the complainant in cross-examination, concerning what she had told Ms Fulton, to be struck out or for an immediate direction to be given to the jury to disregard the answer.

(7) The cross-examination of the complainant concerning the appellant timing the alleged episodes.

(8) The cross-examination of the complainant’s mother concerning what Ms Fulton said about complaint by the complainant.

(9) The cross-examination of the mother concerning her feelings towards the appellant after the alleged event.

(10) Failing to object to the trial judge directing the jury that the history to Dr Norrie be used as evidence of the fact, and failing to submit that a direction be given to the contrary.

(11) Failing to seek a Jones v Dunkel direction in relation to the absence from court of Ms Fulton.

(12) Failing to object to the trial judge’s endorsement of the Crown’s explanation for not calling Ms Fulton as being that the complainant and her mother were not challenged on their evidence of complaint to Ms Fulton, that not being the true explanation.

114    I did not include a failure to object to Dr Norrie giving the history of molestation as dating from 1994 on the basis that this may have been a legitimate tactical decision by counsel, in the hope of using the possibility of sexual abuse by the complainant’s natural father as an explanation for the complainant’s accusation of the appellant. 115    It is the earlier draft of this judgment to which Stein JA refers in the judgment which he proposes to publish. 116    Having read what Stein JA has written in relation to this ground of appeal, I am persuaded that the conclusion in my draft was not correct. I am now of the view that this ground of appeal fails because there was not a miscarriage of justice. I respectfully agree with the reasons for that conclusion given by Stein JA.

Conclusion

117    Ground 4 should be upheld. I propose the following orders:

(1) Appeal allowed.

(2) Conviction quashed.

(3) Order a new trial.

oOo