R v Lewis - [2003] NSWCCA 180

No judgment structure available for this case.

CITATION: R v Daryl Bruce Lewis [2003] NSWCCA 180

HEARING DATE(S): 10, 17 June 2003

JUDGMENT DATE:
4 July 2003

JUDGMENT OF: Santow JA at 1; Sully J at 57; Buddin J at 58

DECISION: 1. Convictions in respect of counts 2 to 9 be quashed and there be a new trial; 2. Conviction in respect of count 1 be quashed and in respect of that count there be a verdict of acquittal.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Review of conviction - Assault, rape and indecent assault - Offences as a juvenile - Offences against a juvenile - Offences committed a substantial time ago - Error in admitting evidence - Relationship evidence - Insufficient directions to jury - Need for a full and adequate 'Longman' direction with court's imprimatur - Miscarriage of justice - Proceedings fundamentally flawed - Prejudice to the defendant -- Rule 4 of Criminal Appeal Rules - Admitting evidence of indecent and other assaults as relationship evidence - Balance of unfair prejudice against its probative value - Failure of warnings to jury - Failure to give 'Murray' direction - Allowing of prejudicial cross-examination on relationship evidence - Failure of directions to jury - Statutory bars to proceedings (s78 Crimes Act).

LEGISLATION CITED: Crimes Act s76; s78
Criminal Appeal Rules rule 4

CASES CITED: R v A H (1997) 42 NSWLR 702
R v A N (2000) 117 ACrimR 176
R v Beserick (1993) 30 NSWLR 510
R v BWT (2002) 54 NSWLR 241
R v Clarke (2001) 123 ACrimR 506
R v Etherington (1982) 32 SASR 230
R v Fraser (CCA, 10 August 1998, unreported)
R v Fordham (CCA, 2 December 1997, unreported)
Gipp v The Queen (1998) 194 CLR106
R v H (NSWCCA, 24 October 1994, unreported)
R v M M (2000) 112 AcrimR 519
R v Meier (NSWCCA, 26 May 1996, unreported)
R v Murray (1987) 11 NSWLR 12
R v Pemble (1971) 134 CLR 107
Saraswati v The Queen (1990-91) 172 CLR 1
Wilde v the Queen [1987-1988] 164 CLR 350

PARTIES :
Regina
Daryl Bruce Lewis (Appellant)

FILE NUMBER(S): CCA 60036/01

COUNSEL: M C Ramage, QC (Appellant)
G E Smith (Crown)

SOLICITORS: Voros & Associates (Appellant)
S E O'Connor (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/21/1084

LOWER COURT
JUDICIAL OFFICER : Backhouse DCJ

CCA 60036/01
DC 99/21/1084

SANTOW JA
SULLY J
BUDDIN J
4 JULY 2003

Regina v Daryl Bruce LEWIS

Judgment

1 SANTOW JA:

The judgment which follows is subject to a non-publication order in respect of the names of the relevant complainants and the sister of the two complainants. I shall refer to them as follows. The eldest sister and first complainant is referred to as V. The youngest sister and second complainant I shall refer to as D. The third and middle sister, who was not a complainant but gave evidence in support of the Crown case, I shall refer to as M. N represents the maiden name, being the family name of the three sisters. The mother of the appellant is referred to as Mrs Md. DP represents the name of a boyhood friend of the appellant.

INTRODUCTION

2 Daryl Bruce Lewis (“appellant”) was tried on 21 February 2000 before Backhouse DCJ and a jury. He was charged with nine counts of assault, rape and indecent assault, as set out below, pleading not guilty to each count. The charges and maximum penalty were as follows; the actual sentence for each count is at [3] below:

Count 1:	Assault	(between 1.1.75 and 29.3.76) Section 61, Crimes Act 1900	Maximum Penalty: 2 years imprisonment
Count 2:	Rape	(between 1.1.75 and 29.3.76) Section 63, Crimes Act, 1900 (repealed)	Maximum Penalty: Penal servitude for life.
Count 3:	Rape	(between 1.1.75 and 29.3.76) Section 63, Crimes Act, 1900 (repealed)	Maximum Penalty; Penal servitude for life.
Count 4:	Rape	(between 1.1.76 and 29.3.77) Section 63, Crimes Act, 1900 (repealed)	Maximum Penalty: penal servitude for life.
Count 5:	Indecent assault (female under the age of 16 years namely between 11 and 12 years) (repealed)	(between 1.1.76 and 1.4.76) Section 76, Crimes Act 1900	Maximum Penalty: 6 years penal servitude.
Count 6: As amended T 24.2.00 p 226-227	Indecent assault (female under the age of 16 years namely between 11 and 12 years)	(between 1.1.76 and 30.6.76) Section 76, Crimes Act 1900 (repealed)	Maximum Penalty: 6 years penal servitude.
Count 7: As amended T 24.2.00 p 226-227	Rape	(between 1.1.76 and 30.6.76) Section 63, Crimes Act 1900 (repealed)	Maximum Penalty: Penal servitude for life.
Count 8:	Rape	(between 1.6.76 and 31.12.76) Section 63, Crimes Act 1900 (repealed)	Maximum Penalty: Penal Servitude for life.
Count 9:	Indecent Assault (female under the age of 16 years namely between 12 and 13 years)	(between 1.1.77 and 31.3.77) Section 63, Crimes Act 1900 (repealed)	Maximum Penalty: 6 years penal servitude.

3 The complainants were two sisters and the events in question were said to have occurred between January 1975 and 31 March 1977 when the appellant was aged between 14 and 16. On 7 March 2000 the jury convicted on all counts. On 14 December 2000 he was sentenced as set out below. There were imposed a number of sentences to be served concurrently, with the longest a head sentence of six years and a four and half years minimum term. These were to commence at the conclusion of the minimum term on another sentence from a previous conviction, namely from 27 November 2006. Set out below under each count is the actual sentence:

Count 1:	Fixed term of 9 months imprisonment to date from 27.11.06 and expire 26.8.07.
Count 2:	Imprisonment for 5 years to date from 27.11.06 and expire 26.11.11. Non parole period of 3 years and 9 months to date from 27.11.06 and expire 26.8.10.
Counts 3, 7, 8:	Imprisonment for 6 years to date from 27.11.06 and expire 26.11.12. Non parole period of 4 years and 6 months to date from 27.11.06 and expire 26.5.11.
Count 4:	Imprisonment for 4 years to date from 27.11.06 and expire 16.11.10. Non parole period of 3 yeas to date from 27.11.06 and expire 26.11.09.
Count 5:	Fixed term of 3 years imprisonment to date from 27.11.06 and expire 26.11.09.
Count 6:	Fixed term of 18 months imprisonment to date from 27.11.06 and expire 26.5.08.
Count 9:	Fixed term of 2 years imprisonment to date from 27.11.06 and expire 26.11.08.
A total effective sentence of 6 years to date from 27.11.06 and expire 26.11.12 with a non parole period of 4 years and 6 months to date from 27.11.06 and expire 26.5.11 was imposed.

4 The first four counts relate to the complainant V who was born on 30 March 1961. Depending on the time when the relevant charged offence occurred, she was either just under 14 or between 14 and 16.

5 The remaining five counts relate to the complainant D who was born on 4 February 1964. She was the youngest of the three N sisters, the middle sister being M born September 1962 who gave evidence for the Crown but was not a complainant. D is the complainant in respect of Counts 5, 6 and 9 relating to allegations of indecent assault and Counts 7 and 8 relating to allegations of rape. She was at, or just under, the age of 12 years in relation to the earliest possible date of these alleged offences and 13 years of age in respect of their latest possible date. The appellant emphasises that these offences, which he denies, were alleged to have taken place when he and the two girls were all juveniles.

6 The sentences were imposed following a trial some twenty-four or so years after the alleged events took place. By the time of trial the appellant was around 40 years old. The effect of the accumulation of his sentence with a sentence he was already serving represents a minimum period of 14 ½ years imprisonment.

7 The appellant appeals against conviction. He also seeks leave to appeal against sentence. The grounds of appeal on conviction are as follows:

(1) The trial miscarried.

(2) The trial judge erred in permitting the Crown Prosecutor to present an indictment which charged as the first count an assault between 1 March,1975 and 29 March,1976.

(3) The trial judge erred in admitting evidence of assaults by another person.

(4) The trial judge erred in admitting into evidence three statements by M.

(5) The trial judge erred in admitting evidence of indecent and other assaults as “relationship” evidence.

(6) The trial judge erred in giving inadequate and incorrect directions to the jury in respect to “relationship evidence”.

(7) The trial judge erred in permitting the Crown to lead as complaint evidence of a conversation between Mrs Md and V.

(8) The trial judge erred in directing the jury “ the fact that a person makes a complaint contemporaneously is evidence of the truth of its contents”.

(9) The trial judge erred in directing the jury “ you may well think that they had good reason for not making any further complaint”.

(10) The trial judge erred in failing to give the jury a proper or adequate “ Longman ” direction.

(11) The trial judge erred in failing to direct the jury that they must consider each count separately and only by the evidence that applied to it.

(12) The trial judge erred in directing the jury “ you should look for support from evidence of other witnesses, albeit they were not present at the time when the actual events are said to have occurred”.

(13) The trial judge erred in failing to direct the jury that where there is only one witness asserting the commission of a crime the evidence of that witness must be scrutinised with great care.

(14) The trial judge erred in failing to direct the jury that if the jury had a reasonable doubt concerning credibility of the evidence of the complainants on one or more counts they could take that into account when assessing her reliability on other counts.

(15) The trial judge erred in allowing impermissible cross-examination of the appellant.

(16) The trial judge erred in failing to sum up the evidence of DP.

(17) The trial judge erred in permitting questioning and herself questioning M in front of the jury.

(18) The trial judge erred in allowing evidence to be lead in re-examination.

(19) The trial judge erred in giving further directions critical of the submissions of counsel for the defence at the end of the summing up.

(20) The appellant was incompetently represented.

SUMMARY OF TRIAL

8 The following summary of trial is taken from the Crown’s submissions, which identify first the Crown case and then the appellant’s case. I shall quote the first part, being the summary of the Crown case, from the Crown submissions themselves. I then give a much shorter distillation of the appellant’s case.

Crown Case

The Crown case may be summarised as follows

The Appellant was born on 10 December 1960 Exhibit A – birth certificate..

V gave evidence that that her name was originally V N and that she was born on 30 March 1961. She was the eldest child and had two younger sisters, M born September 1962 and D born 4 February 1964 T 21.2.00 p 9. exhibit A – birth certificate, T 23.2.00 p 146 exhibit C – birth certificate.

Some time in 1972 while she was in her last year of primary school she, her parents and sisters went to live with the Md family at their small farm at Ebenezer near Windsor in New South Wales T 21.2.00 18.10. See also evidence of D 23.2.00 p 147.45. Her mother was then admitted to hospital Mrs N apparently suffered from a mental illness and epilepsy and was admitted to hospital (see evidence of D T 23.2.00 p 146 and the evidence in the case for the Appellant given by Ester Md at T 28.2.00 p 385). This was how the Ns met Mrs Md who had worked as a nurse. and her father An alcoholic according to D, see T 23.2.00 p 146 went looking for work leaving the three children with the Mds T 21.2.00 p 11..

The farm had an old house, old sheds and bush and a dam. The Mds had cows, a horse, goats, sheep, hens and ducks and a couple of dogs. There were also a number of sheds on the property T 21.2.00 p 11-17. Photographs of the property taken in 1997 by Detective Cox were tendered, exhibit B, T 25.2.00 p260.40..

The Appellant was the eldest son of the Mds and had two younger sisters Bronwyn and Leonie. The Appellant was the eldest of the six children. Bronwyn was about M’s age and Leonie was younger than D T 21.2.00 p 18.50 . When they first moved there her mother and father slept in one room and she, her sisters and foster sisters slept in another room. After her mother and father left, for a short while she slept in their room on her own T 21.2.00 p 12..

There were two caravans on the property. A small caravan under a verandah and a larger caravan out the back past the laundry. She moved from the bedroom previously occupied by her parents first to the small caravan and then into the big van. One of her sisters then moved into the small caravan T 21.2.00 p 13..

She and her sisters were under the authority of Mrs Md mainly: “She did the discipline”. They were given chores to do on the property T 21.2.00 p 17..

She went to Windsor Primary School and then started at Windsor High School in 1973 when she was 11 and ¾ years old T 21.2.00 p 18.15.

As children they played as a group and played games such as hide and seek and “karate chop” which involved them having to battle the Appellant.

The games were rough games and on occasion she would complain to Mrs Md:

“I used to tell Mrs Md that I would get hurt, that he would hurt me and yeah that they were rough. She would tell me “That’s what boys do”.

“ With the karate chop games Darryl would grab you between your legs and sometimes he’d squeeze your nipples to grab you and put you down to the ground so you’d you know you’d cry in pain so you end up being on the ground first”.

“Sometimes Darryl would grab me and drag me away and tell me he’d know places to hide and drag me off and we’d hide in places and he’d put his fingers inside my vagina”

They also went swimming. She could only remember one dam on the property. She could not swim. She had a one piece swimming costume that Mrs Md gave her. She was about 12 and ½ years old. The costume was too big for her; it had a padded bra like a lady would wear. The Appellant used to throw her in the water and as she could not swim she would struggle and he would think that was funny. At other times he would lead her into deep water and because she could not swim she would have to hold onto him otherwise she would go underneath. The Appellant “used to hold me up by sticking his fingers in my vagina and then push me up” T 21.2.00 p 20-22.

She did not like going into the water, she was scared of it and she hated her swimming costume. However Mrs Md would force her to go and on one occasion dragged her out of the toilets where she was hiding by her hair T 21.2.00 p 23.45. The complainant’s evidence on this point is supported by the evidence of D that they had never been taught to swim and that she observed that the complainant was petrified of the water and used to run off at times when they were told to go swimming. She also observed this incident between Mrs Md and the complainant T 23.2.00 p 152, 153.20..

Sometimes one of the animals on the farm would stray and they would have to go look for them. On some occasions just she and the Appellant would go. She could recall one occasion when she was nearly 13 when she and the Appellant were looking for the dogs. They were looking in the bush across the road from the house. The Appellant pushed her to the ground, climbed on top of her, pushed her dress up, pulled down her pants and forced his penis into her vagina T 21.2.00 p 25.15.

They were in a paddock a fair way from the road at the time. She ran away and hid in the bush until it got dark. She went back to the caravan. Mrs Md was waiting. She told her that the Appellant had hurt her but Mrs Md said that boys do that and then belted her with a piece of green siphon hose T 21.2.00 p 25.

About a month or so after this incident they were in the orchard. She was up the ladder picking fruit. The Appellant started shaking the ladder. She tried to jump off and stumbled as she fell. The Appellant dragged her to the ground, rolled her over and forced his penis into her vagina. It was a Saturday, it was auction day and some of the other kids had gone off to sell fruit with Mrs Md at McGrath’s Hill. She observed that she had white stuff all over her and she figured it came out of him. She got up, cleaned herself up then started to walk back up to the house. At the house she hid her underpants and put fresh ones on and went back to the orchard T 21.2.00 p 27..

A few days later the Appellant asked if they could go swimming in the dam. She panicked and said she didn’t want to go and that the Appellant hurt her. Mrs Md responded, “Don’t be stupid boys do things like that”. She was angered by this and said “He makes me have sex with him”. Both the Appellant and Mrs Md proceeded to physically and verbally abuse her.

“Darryl lunged at me and called me filthy slut, grabbed me and was shaking me and she was screaming and I was yelling and she was telling me I shouldn’t say things like that, that he was like a brother to me and I shouldn’t be saying those things, telling lies and she had hold of me and she grabbed the dog chain and she started to hit me with the dog chain…………and she started wailing into me with the dog chain and I tried to get away and she grabbed me by my shirt and she dragged me backwards and managed to drag my shirt off me and told me to get down on my hands and knees and beg for forgiveness for saying such terrible lies about him, so I…yeap, got down on my hands and knees and I said I was sorry to please forgive me…..I laid there for a minute or so. They’d walked away. Mrs Md kicked me a couple of times and threw my shirt at me and told me to get up and I waited a couple of minutes and I got up and I ran away into the bush again”. T 21.2.00 28.25. Her account is corroborated by the evidence of D who witnessed part of this incident. She described what she saw as follows:

Later the welfare officers came and asked why she ran away. She did not tell them the truth “…because I didn’t want to be taken away and leave my sisters behind. I was too scared” T 21.2.00 p 29..

A few days after that the Appellant confronted her while she was alone and told her that she could never tell any one again and threatened her sisters:

“….Darryl confronted me and told me that I was never to tell anyone ever again what he’d been doing and he started coming over the top of me and telling me that he was going to do something to me that I would never, ever forget and I begged him, told him to leave me alone, I’d do anything he wanted me to, so long as he didn’t hurt my sisters and he was ranting and raving and told me that he was going to have sex with the girls and he was going to tie them up and make the dogs do it to them as well, so I told him that I would do whatever he wanted…” T 21.2.00 p 29.55. See also T 22.2.00 p 84 for further evidence concerning her reasons for not complaining. .

On one occasion the Appellant told her that he was going to come to the caravan that night T 21.2.00 p 30.55-31.5. She did not know what to do. He turned up and told her to take her clothes off, she begged him not to do anything but “he knocked me around and told me to get my clothes off. She then laid on the bed. He laid on top of her and put his penis in her vagina. After sexual intercourse had occurred “he wanted to have a look at what he’d done so he made me spread my legs and looked at me with the torch. And then told me not to tell anyone and he left” T 21.2.00 p 31.45.

A couple of weeks after this incident the Appellant again came over to the van at night. She asked him not to do anything as she had her periods however he said it did not matter:

“…he told me to get undressed and forced me onto the bed. And I was begging him not to. And he said “open your legs” and stuck his fingers inside my vagina and said “Don’t worry about it, it won’t make that much mess” and after he did that he hopped on top and had sex with me” T 21.2.00 p 32.20 .

In 1975, when she was nearly 14 and in third year at high school there was an occasion when the Appellant came out to the caravan and told her he “..had heard about something different that women did to men, sucking their penises and he told me we were going to do it”. She told him that she did not want to do it she tried to get out of the caravan but he beat her around the head and she fell hitting her head on something which made her dizzy. He forced her down to her knees and made her suck his penis “… and I was gagging and he was yelling at, yelling or talking at me saying not to bite him, that you just do it and he was pushing my head up and down”. He told her he would belt her if she bit him and when he ejaculated and she gagged he told her she had to swallow it. When she spat it out he forced her head down onto the ground and rubbed her face in it” T 21.2.00 p 33. The beating inflicted prior to the forced fellatio is the subject of Count 1 on the Indictment, Assault, section 61 Crimes Act 1900..

Another incident occurred when she was 14 and sleeping in the van. The Appellant came out to the caravan and forced penile vaginal intercourse upon her. She described what occurred as follows:

“He come out to the caravan and told me we were going to have sex. And after an initial struggle like we would normally do and I’d ask him not to do it and he would. He climb on the bed and he started to have sex with me….and then he got off”.

He had a long black torch with him. After he had finished intercourse he got off her “… and all of a sudden it got dark, darker”. Previously the torch had been on but the light disappeared. She could still see the Appellant sitting beside her “So I knew there was something inside me but I knew it wasn’t him…and it was hard and it was fairly big. And he was pushing it and then I realised it was the torch”.

When the Appellant was trying to put the torch in he was pulling at her vagina “pulling it apart trying to make it fit” T 21.2.00 p 34. The penile-vaginal intercourse is the subject of Count 2 on the Indictment, Rape, section 63 Crimes Act 1900. A sketch by V of the circumference of the torch was tendered during cross-examination, exhibit 3, T 23.2.00 p 135.15..

On another occasion he inserted a stick into her vagina. This occurred when she was between 14 and 15 years old one night when the Appellant came to the caravan. The Appellant inserted a stick into her vagina causing her terrible pain and then had penile vaginal intercourse with her. She described what occurred as follows:

I begged him to pull the stick out and he did. He said to me “You’ve got your periods”. “No I haven’t” and he said, “You have, you’re a wimp” and he dragged the stick out. I was in terrible pain and I think he had sex with me after that”.

Crimes Act

She did not tell anyone about this incident because she was too scared. She bled from her vagina for weeks after “…I was in terrible pain” T 21.2.00 p 36.35. .

A further incident occurred when she was 15 and they were playing hide and seek. The Appellant dragged her off and said, “Lets go hide in the trailer. They hid in the trailer and covered themselves with a tarpaulin. The Appellant pulled her trousers down and despite her protests forced penile-vaginal intercourse upon her.

She described what occurred as follows:

“…we got in the trailer and covered with a tarp and he decided he wanted to have sex there. I said to him “Not here someone will catch us, that’s what they’re doing, they’re looking for us” and he was just laughing saying they wouldn’t find us, it was okay. He started to pull my trousers down and I was saying to him “Look don’t do it, please don’t do it here”. And he wouldn’t listen and he started to put his penis in my vagina and started doing that.”

Crimes Act

She left the Md family in 1977. She ran away after an incident in which Mrs Md abused her for something while she was in the kitchen and belted her with a horse bridle and then, picking up a knife which was at hand lunged at her with it and held the knife against her throat and threatened “to cut my neck from ear to ear if I ever spoke to her like it again”. She decided to leave after this incident, as she believed that if she stayed any longer Mrs Md would kill her T 21.2.00 p 38.20-38.40..

D was born D on 4 February 1964.

When she was about 8 years old T 23.2.00 p 146 she met Mrs Md for the first time and when she was about 8 and a ½ she and her sisters moved in with the Md family T 23.2.00 p 147.45.

She slept at the front of the house and shared a room with her sister M T 23.2.00 p 148.5. They all had chores to perform such as feeding the chickens and collecting their eggs, milking the cows, picking oranges. One of her jobs was helping the Appellant by holding a light for him when he worked on his machinery in the sheds at night and get tools for him T 23.2.00 p 148.45-149.15. He would work on the machinery in a shed that was about 100 metres away from the house She thought this shed was depicted in photograph 11, exhibit B but could not be positive - T 23.2.00 p 149, 150.5. She would usually help him at night after dinner T 23.2.00 p 153.

When she was 12 and starting high school there was an occasion during March or April of that year when she was helping the Appellant in the shed. It was late at night T 23.2.00 p 154.20. The Appellant asked her to come with him to get a part. She carried the torch and they walked to the back of the shed where there was a lot of old cars. The Appellant was in front of her and he could not see properly so she put the torch in front of him and he turned around and said, “You have to do this”. She did not understand what he meant and he had his penis out of his dark blue overalls that he wore. He told her to shut up and put it in her mouth and suck it and move it back and forth. He had hold of her hair and she did it. It only last a few minutes. When he had finished he told her not to tell anybody. She was crying, she was hysterical and she was gagging as he had ejaculated into her mouth T 23.2.00 p 154-155.15. This incident is the subject of Count 5 on the Indictment, Indecent Assault, section 76 Crimes Act 1900..

She was too scared to tell anyone about it and they went back to working on the car again T 23.2.00 p 155.

When she was about 12 she could recall an incident where the Appellant inserted his fingers into her vagina while they were swimming in the dam:

Crimes Act

On Saturdays Mrs Md used to go to the auctions. One Saturday while she was away and Mr Md was down in the orchard the Appellant came into the caravan while she was there. The Appellant forced penile-vaginal intercourse upon her. She described the incident as follows:

Crimes Act

A further incident occurred again when she was helping him one evening while he was working on a motor. She described what occurred as follows:

Crimes Act

On one occasion a group of them were playing hide and seek. A boy, DP, who was their neighbour, was also playing with them. The Appellant told her that she was hiding with him. At the front of the house there were these great big bushes. In the middle of the bushes was a type of shelter. There was grass there and they all used to hide underneath. The Appellant pulled her into this sheltered section of the bush. The boy DP was with them as well. The Appellant pulled her dress up and pulled her pants down, inserted his fingers into her vagina and told DP:

Crimes Act

She left the Md property in about August September 1977. M had run away some time before and V had left about a month before T 23.2.00 p 164.25 – 164.40.

The Crown called a number of other witnesses.

M was called to give evidence. She initially was reluctant to give evidence and the trial was adjourned for a short time. She did not eventually give her evidence in chief viva voce. Rather three statements made by her were tendered T 24.2.00 p 229, exhibit D. This comprised her evidence in chief and she was then cross-examined.

In those statements, exhibit D, she stated that on one occasion while she was on the Md property she heard V yelling. She ran across a road to some bushland that was still part of the property where she could hear the yelling. She saw the Appellant lying on top of her sister V and holding her down. V was screaming and both she and the Appellant were naked. This happened not long after she had arrived to live with the Mds.

She hated living with the Mds. They were beaten numerous times; Mrs Md would fly into rages without warning. Once she was injured while playing with the Appellant and even though her head was bleeding Mrs Md dismissed her complaint.

Once some dogs got loose and then Mr Md dragged a sheep into the yard, made her and D stand next to it, then shot the sheep right next to them and they were splattered with its blood. Later that night at dinner Mrs Md slammed her head and D’s head together.

On another occasion some birds got out and Mrs Md repeatedly beat all of them until D said she was responsible.

She and her sisters could not swim but the Appellant would hold her head under water and would throw her and her sisters in the dam. She was now petrified of water because of this.

She also described an incident in which the Appellant ordered she and her sisters to strip off their clothes, put them in a trailer and drove up and down Tizzana Road Ebenezer.

She ran away frequently and was beaten for it. The last occasion she was beaten Mrs Md told her “I am going to kill you this time” and choked her. When Mrs Md let her up she ran away and hid in the bush. She was chased by the Appellant and Mrs Md and they had guns. The Appellant was shot by Mrs Md during the search. She hid in a cave for days until she eventually went to a nearby shop. She was taken back to the Mds but only stayed there for a short time until police arrived.

The Crown called the witnesses Douglas Wormald and Ruth Firth. They gave no evidence in chief but were cross-examined by counsel for the Appellant and were then re-examined by the Crown.

Douglas Wormald stated that he worked for the Department of Community Services between 1971 and 1988 and within that period he had contact with the N sisters. Two other officers were responsible for them before him, a Mrs West and a Mr Bradfield 25.2.00 p 252

None of the children complained of any sexual abuse. However he thought V was maliciously treated prior to her leaving. Mrs Md had persuaded the owner of the café where V worked to dismiss her and prevented V from undertaking nursing training at Hawkesbury hospital 25.2.00 p 253.

Ruth Firth was a teacher at Windsor High School in 1975. She taught V English and personal development. The students could speak about their problems and social issues in these classes T 25.2.00 p 255.

She took a special interest in V. V spent a lot of time in the library and she was often on library duty. She made enquiries about fostering V but was told she would have to take all three children. She stated that it also concerned her that V’s foster parents were insisting she leave school but V wanted to stay on and she was a very bright little girl T 25.2.00 p 258.25. She stated that she met Mrs Md on one occasion. She thought she was very eccentric as on this occasion she came into the library, still wearing slippers and complained that “V is totally uncontrollable, she kicked the goat this morning” T 25.2.00 p 257.35.

Detective Richard Cox gave evidence that on 23 October 1996 he spoke to the Appellant put the allegations to him and then subsequently charged him T 25.2.00 p 260.30.. He gave evidence that he spoke to Mrs Md quite regularly, made appointments for her to come and speak to him but that she and the Appellant’s sister Bronwyn did not keep these appointments. The Appellant’s sister Leonie indicated to him that she did not wish to be involved T 25.2.00 p 261”

Appellant’s case

9 Essentially the case for the appellant was that the two complainants and their sister, M, had concocted their evidence. The appellant gave sworn evidence in his defence and was cross-examined. Four other witnesses also gave evidence in his defence. Reliance was also placed on the cross-examination of the complainants and the witnesses M, Douglas Wormald and Ruth Firth. This was in order to establish:

(b) Absence of complaint to, or observations of sign of abuse by, adults other than Mrs Md, for example welfare officers and teachers, despite opportunity.

10 The appellant stated that he was about 10 years old when the N girls moved in with the Mds; T, 25.2.00, p266. He thought he was in primary school in the grade below V when the events were said to have occurred, but he did not have a clear memory about this; T, 25.2.00, p267.

11 He denied ever sexually or indecently assaulting or assaulting at all either of the complainants. He stated that DP was his neighbour and had been his friend and he denied that he ever invited him to sexually assault D. He denied that V had ever complained to his mother in his presence that he had sexually assaulted her and he denied the incident described by V and D, stating that it had never occurred; T, 25.2.00 p368. His evidence was that his mother had very strict views about sexual relations between children; she had stated “there is no sex between children”; T, 25.2.00, p316-7.

12 In addition, he denied most of the claims made by V, D and M about the circumstances in which they lived with the Md family.

13 Those denials included that he had never physically assaulted the girls, none of the girls were blamed for the sheep being attacked by dogs, the girls were never ordered by him to strip off their clothes and then driven round by him in a trailer and the camping trailer was so full there was no room for anyone to hide inside. Trailers were “a bit of a taboo”; T, 25.2.00 p356.25, 358.55. His picture was of a generally happy household with no obvious signs of discontent until the end. That was when M ran away when there was a lot of tension, dramas and upsets.

14 Mrs Md, the mother of the appellant, also gave sworn evidence and was cross-examined. She stated that none of the children ever made an allegation of a sexual nature against the appellant. She gave evidence denying a number of the claims made by V, D and M about the circumstances in which they lived with the Md family and about the appellant’s habits as a youth.

15 Thus she said that the children slept in rooms at the bottom part of the house until the top half of the house was built by her husband. The latter was done about three years after the three girls had joined the household and the girls all changed rooms but none of them ever slept outside. She could not recall the exact date but the appellant had moved into the larger caravan when he started High School whilst V stayed in the larger caravan for about a month only at the end of her schooling, T, 28.2.00, 29.2.00 p397, 406.

16 She conceded that she physically chastised the children at times, but stated that she never punched, kicked or threatened anyone with a knife or indicated that she was prepared to use a firearm against them. While there were two trailers and there were tarpaulins that could go over those trailers, she stated that no sexual activities were ever undertaken in them by the appellants and V; T, 29.2.00 p436.35.

17 Finally, DP, now an adult, but being the boy referred to by D, was called and gave evidence concerning the incident D said occurred, when the appellant and then himself had, according to D, inserted their fingers into her vagina. He stated that his date of birth was 4 September 1963. He denied that this incident had ever occurred. He also stated that he had no recollection of the complainants.

GROUNDS OF APPEAL ON CONVICTION

18 I have concluded that there were a number of features of the trial which rendered the proceedings fundamentally flawed. This was to the degree that the appellant’s trial “so far miscarried as hardly to be a trial at all” so as to result in a miscarriage of justice, requiring a re-trial; compare Brennan, Dawson and Toohey JJ in Wilde v the Queen [1987-1988] 164 CLR 350 at 373.

19 The reasons for that conclusion can be encapsulated in a series of connected propositions. They are derived from what I consider in the context of this trial to be the most serious of the appeal grounds. These are best considered in the first instance collectively. For it is their cumulative effect in the context of this trial that augmented prejudice to the appellant to the extent that the trial “so far miscarried as hardly to be a trial at all”. That no objection was taken to these matters at trial renders rule 4 of the Criminal Appeal Rules applicable, requiring leave to raise them on appeal. But the discretion under rule 4 must I am satisfied be exercised in favour of permitting these grounds to be raised, given their fundamental impact on the fairness of the trial. The summary elaboration which follows sets out to explain that impact.

(1) Throughout the Crown case, the trial judge admitted evidence of assaults by Mrs Md against V and D of a most violent kind (appeal ground 3). This gave rise to the likelihood of prejudice against the appellant by his being unfairly associated with such assaults in the jury’s mind. It forced him, when giving evidence, to deny or minimise these accounts of assaults through family loyalty and in order to endeavour to overcome that prejudice. This was exacerbated by his cross-examination, when the Crown devoted a large part of it to an attack on Mrs Md who had been called as a defence witness (appeal ground 15). Thus at T, 275-284 (where he was asked about a violent incident said to involve two large German shepherd dogs attacking a sheep, and the father possibly having shot some of the sheep and then about Mrs Md’s attitude and reactions), T, 316-8 (her attitude to sex and children and her reasons) T, 320 (cross-examined about Mrs Md chastising the girls) T, 322-4 (cross-examined on Mrs Md’s reaction when the sheep got out and had to be destroyed), at T, 324-6 (when he was asked to comment on D throwing Leonie in the well, her motives and Mrs Md’s reaction), at T, 367-8 (further cross-examination regarding Mrs Md’s possible reaction). That led to a real possibility that the jury would proceed to convict if they took an adverse view of Mrs Md and notwithstanding that the allegations of assault by Mrs Md had no direct relevance to the case against the appellant save as a possible explanation for failure to complain. To allow it as relationship evidence (as the Crown submitted in relation to the dogs) creates the prejudice set out in (2) below, with its atmosphere of household violence.

to place the evidence of particular acts in a …

true and realistic

context

R v H

R v Fraser

R v Fordham

R v A N

R v M M

R v Etherington

Gipp v The Queen

R v A H

R v Clarke

Thus it may be used to rebut an innocent sexual relationship between the appellant and the complainants in regard to the allegations of rape, sometimes described as evidence of guilty passion. That would have allowed, with appropriate warning, M’s evidence alleging she saw the appellant in the bushland lying on top of V who was screaming, both being naked with the appellant holding her down and the aftermath. This is so long as it was emphasised by the trial judge that this allegation was denied and not the subject of any charge (statement of 8 June 1996 referred to below).

Relationship evidence may be admitted to place the evidence of the Crown witness into context and to enable the jury to understand the evidence of the complainant in a sexual assault case. The objection lies in the extent to which it was allowed, surpassing any legitimate purpose and where much of that evidence was of peripheral relevance at best. Repeated as it was, it was insufficiently probative and highly prejudicial.

(3) The trial judge on the third day of the trial admitted into evidence three statements by M (appeal ground 3). These concerned numerous alleged incidents of intimidating violence by not only the appellant but Mrs Md, none the subject of any charge. Then (appeal ground 17) in the presence of the jury she was allowed to explain her evident reluctance to give evidence, so reinforcing its impact to the jury when later given. Counsel for the appellant nonetheless consented to these statements being admitted into evidence and did not object to the jury hearing her statements of reluctance (T, 24.2.00 p220 to 223 and in particular p222.55 to .57).

(4) The three statements admitted into evidence contained extensive reference to assaults by Mrs Md and not just the appellant, of an excessively violent kind. She gave evidence of assaults by the appellant that in some cases did not include the complainants but did include M. The effect of that evidence was to associate the appellant as the perpetrator of violence, in a household of violent propensity. Her evidence even included an entirely irrelevant and gratuitous paragraph 10 in the statement of 2 October 1996 of the appellant killing puppies and kittens in the most violent and horrific way. So was admitted into evidence a large body of irrelevant material or material which went far beyond explaining the absence of complaint. This was when there was already evidence of that nature which did not require further gratuitous amplification.

(5) The directions set out below were given by the trial judge to the jury. But they were not sufficient to redress the unfair prejudice to the appellant from this admission of prejudicial evidence, much of it of peripheral relevance at best and of a kind that would have the tendency to raise bad character, suggesting propensity to commit the acts charged. Indeed the admission of so much of such evidence rendered any direction incapable of redressing that unfair prejudice.

some wider sexual history

to place the evidence of particular sexual acts in a

true and realistic

context

substitute those other acts or occasions for those charged

“The Crown as I have said, must identify specific acts and occasions for each count that is in the indictment and must prove those particular acts and not some other acts on other occasions, that is fundamental to this case. That does not however mean that you may not take into account some wider sexual history if it is proved, that is the evidence of acts of a sexual nature between the accused and the complainant. You do not do that in order to substitute those other acts or occasions for those charged. The history of a wider series of sexual acts is led for a different purpose altogether and it is important for you to understand what that purpose is, it is to place the evidence of the particular sexual acts into a true and realistic context. Otherwise you see a jury, such as yourselves, may wonder as to the likelihood of apparently isolated acts occurring suddenly without any apparent reason, without being repeated”. (SU 25)

Her Honour later stated at SU 26:

“It is for that reason that the law permits a wider sexual history to be proved”.

At SU 30, Her Honour gave further directions and warnings as to how relationship evidence was not to be misused, as follows:

“So that is what is called relationship evidence and that is the evidence of V and as I have said to you in the course of that direction I gave you a few moments ago is that you- I emphasise to you again that you must not substitute evidence of those other acts for the specific ones that are charged. And you must not reason along the lines well this accused may have done some wrong things on other occasions relating to this girl and therefore we will convict him on these specific acts in the indictment. The Crown must prove those particular acts, that is the ones in the indictment, beyond reasonable doubt. You have the wider history merely to place her evidence into context.”

to place the particular sexual acts into a

true and realistic

context

to substitute those other acts or occasions for those charged

you must not reason … this accused may have done some wrong things on other occasions relating to this girl and therefore we will convict him …

only

(c) failed to tell the jury at all that they could not use the relationship evidence of V to place into context the evidence of D or vice versa, and

true and realistic

context

(8) The trial judge (SU 66-7) failed to give the jury a fully adequate “ Longman ” direction (appeal ground 10), though in circumstances where the appellant’s counsel did not seek a better direction. This was particularly in failing to refer to it being based on the accumulated experience of the courts in dealing with cases characterised by substantial delay in making complaints about alleged offences. Rather it was couched in terms of it being “ a matter of common sense ”. The result was to weaken its effect as bearing the imprint of the court’s authority. Were that the only ground of appeal, that shortcoming might leave its sufficiency on the borderline; compare Sully J in R v BWT (2002) 54 NSWLR 241 at [95]. But it must be viewed in the context of this trial with its other serious flaws.

(9) Importantly against this background, the trial judge then failed to direct the jury that they must consider each count separately and only by reference to the evidence that applied to it (appeal ground 11). That failure was exacerbated (appeal ground 12) by the direction to the jury that “ you should look for support from evidence of other witnesses, albeit they were not present at the time when the actual events are said to have occurred ” (SU 68). Furthermore, the judge referred with apparent approval to a submission of the Crown Prosecutor in final address that the jury “ can aggregate the evidence ” (SU 32), giving examples of how to go about “aggregating” at SU 35-6. Counsel’s submission for the defence, that there was no such principle or rule of law as “aggregating”, was referred to by the trial judge (SU 51), but not endorsed as correct.

(10) The trial judge (appeal ground 13) should have warned the jury that where there is only one witness asserting the commission of a crime, the evidence of that witness must be scrutinised with great care, the so-called “ Murray direction” (appeal ground 13); see R v Murray (1987) 11 NSWLR 12. In SU 60-68 particularly at SU 67 the warning is rather of a Longman kind couched in terms of delay. The need for a proper Murray direction is of course emphasised by the factor of 24 years delay in complaint. Also by the question from the jury “ what constitutes proof when there are only two people involved? Can you give directions on this as there is some confusion as to what can be accepted without other witnesses that are independent? ” (SU 30, and see also SU 42-5).

(11) The trial judge erred in failing to direct the jury that if the jury had a reasonable doubt concerning credibility of the evidence of the complainants on one or more counts they could take that into account when assessing her reliability on other counts (appeal ground 14).

20 For the reasons earlier stated summarily, I am satisfied, first, that notwithstanding failure of counsel at the time to object, or even counsel’s acquiescence, leave of the court should be given pursuant to rule 4 of the Criminal Appeal Rules, to raise these grounds on appeal. This is on the basis that the irregularity which has occurred is such a departure from the essential requirements of the law that it goes to the root of the proceedings (R v Wilde (supra) at 369). The ultimate question is whether the totality of the departures from the requirements of a fair trial so permitted to be raised are so gross that “the proceedings before the primary court have so far miscarried as hardly to be a trial at all” (Wilde at 373). That requirement operates, where necessary, even in the face of deliberate decisions taken at trial. This Gleeson CJ explains in R v Meier (NSWCCA, 26 May 1996, unreported) at 19-20 adopting what was said by Barwick CJ in R v Pemble (1971) 134 CLR 107 and 117: “Whatever course counsel may see fit to take, no doubt bona fide but for technical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law.” That was not done in the present case, in the respects earlier broadly outlined. However, some additional elaboration is called for as to the evidence so permitted to be adduced.

21 I start with the admission of evidence of assaults by Mrs Md, because it was from that initial admission that much else flowed, which on the appellant’s case was of such a prejudicial character as to preclude a fair trial.

22 Thus V gave evidence of assault by Mrs Md by her being dragged out of the toilet by her hair, being dragged along cement and pushed into water when she could not swim (T, 23.45). That occurred early in the Crown case on 21 February 2000. Further such evidence was given of an assault by Mrs Md upon V where allegedly she was belted with a siphon hose for running away (T, 25.48-.56). Then there was an alleged assault by Mrs Md upon V where she was grabbed, hit with a dog chain, dragged backwards, her shirt dragged off, kicked a couple of times (T, 28.30-50). M’s evidence was foreshadowed by her protestation before the jury about being unwilling to give evidence. The evidence M actually gave about Mrs Md is fairly summarised by the appellant as follows:

(ii) beaten by Mrs Md when picking fruit;

(iii) slamming of her head with her sister D’s head, causing her a bad headache;

(iv) grabbed by hair, dragged to room, punched repeatedly;

(v) bruised all the time;

(vi) dragged into lounge room, tied to pole, punched and screamed at for hours;

(vii) hit with a poker in the left leg;

(viii) whipping V across the breasts with a hose;

(ix) Bronwyn and Leonie being beaten;

(x) dragged around the sandstone verandah for hours; picked up with both hands by the hair and dropped;

(xi) punched in the face, knocked down, dragged outside by the hair, dragged around the verandah, banging her head on the sandstone, kneeled on chest and started to choke her, saying “I am going to kill you this time” and Mr Md saying “get off her, and bring her in here Elaine, we’ll finish her off in the kitchen”;

(xii) chased by the accused and Mrs Md- they all had guns and wanted to kill her

(xiii) made to stand in lime by the accused which caused a huge amount of pain ( statement 8/6/96)

(xiii) Picked up, put in well, held under water by Mrs Md (statement 2/10/96).”

23 Then there were frequent references to assault by Mrs Md on D in the latter’s evidence.

24 That in turn led the Crown to devote a large part of its cross-examination and submissions to an attack on Mrs Md whom the defence decided to call as a defence witness. That decision was one which the appellant’s then counsel, in giving evidence in this appeal frankly acknowledged in hindsight was a mistake. This was because Mrs Md “basically became an adverse witness – not an adverse witness, but a witness contrary to our case …” (Appeal T, 34.24).

25 I should interpolate here that the reason the appellant’s then counsel gave evidence in the appeal was that one of the grounds of appeal is that the appellant was incompetently represented (appeal ground 20). It was conceded that any privilege was thereby waived. The appellant’s then counsel thus gave candid and helpful evidence as to his reasons for certain forensic decisions that were the subject of, or necessarily involved in, the grounds of appeal. The defence strategy, as the appellant’s then counsel explained it, was first to try to show in the context of the Md family household that there was no sexual activity between the appellant and the complainants. That, he said, called for evidence without artificial exclusion on the household situation in which sexual activity was generally denied (Appeal T, 34). Second, that by opening up the day to day functioning of the family on the farm, it would show that much of what was said in the police statement of the three girls was implausible (Appeal T, 37.7). Third, he made these decisions upon instructions and the appellant expressed anger at Mrs Md’s evidence only after she gave that evidence (Appeal T, 39.22). Fourth, the appellant’s then counsel, even after opportunity to refresh his recollection, had no recollection of the circumstances surrounding M’s giving evidence at the trial (Appeal T, 42-3). Fifth, he attempted to explain his not objecting to what is described compendiously as relationship evidence, being sexual and other assaults by the appellant outside the specific matters of complaint. It was that if he had objected, this would have made the whole strategy of displaying the whole background look lopsided before the jury and possibly unbelievable (Appeal T, 48.35). All this was in a context where counsel gave as his original understanding from the appellant that, “if his father knew about these things he would have flogged him and that his mother was a woman of considerable rectitude”. In the event, as he acknowledged, she turned out to be a disastrous witness; T, 50-1. Finally, he did not object to the material in Miss N’s statements on the basis that he had the anticipation that the parts that he considered outrageous would be demonstrably proven to be untrue when Mrs Md gave evidence (Appeal T, 52 ). That did not happen.

26 In setting out, as I have done, the tactical reasons which underlay the appellant’s counsel’s decisions, a matter not normally before an appellate court, one starts with what Gleeson CJ described in Meier (supra) as “one of the assumptions which underlies the adversary system”. It is “that counsel, in representing their clients, will make clear to the court or tribunal the points they wish to argue, and those they do not desire to press, and the procedural applications upon which they seek a decision” and “it is understandable that there may be, on occasions, a reluctance to be seen by a jury to be taking objections to evidence”.

27 Gleeson CJ then pointed to the overriding obligation upon a trial judge which is nonetheless to intervene, even if counsel remains inactive, should a fair trial according to law, be otherwise evidently at risk. I adopt here what is said by Buddin J on that matter.

28 The Crown in this appeal attempted to justify the evidence of the Crown witnesses being admitted upon allegations of assault committed upon those witnesses by Mrs Md, as also allegations of assault by the appellant though not the subject of any charge. I have earlier made brief reference to the contents of the three statements of M. Insofar as her statements related to alleged assaults or violence by the appellant which were not the subject of the relevant charges, they require some elaboration to demonstrate their prejudicial character.

29 The first such allegation is contained in the statement of 8 June 1996, paras 4-5 (AB Vol. 1 at 20) to which I have earlier made brief reference:

5. I saw Daryl lying on top of V and V was screaming. Daryl was holding her down. Both V and Daryl were naked. I ran right up to them, and Daryl screamed at me “Go away.” I got scared and ran away. At the time I didn’t know what was going on, but I now know that Daryl was having sex with V.”

30 Then in her longer statement of the same date, at para 7 (AB Vol. 2 at 23) is the following which I quote verbatim:

they are Darryl’s games, he is just playing. He will play the games the way Darryl wants to play them. Go back out and play.

31 In the same statement there is a reference to Mr Md shooting a sheep causing the sheep’s blood to spatter all over D and M (para 13).

32 In the same statement at 15 there is a reference to “Darryl had beaten me at the school, and another boy at the school came up and hit him”. She then ran away and was caught by Mrs Md and beaten severely according to the statement.

33 In her final statement of 2 October 1996 she asserts that all three sisters had been made to strip naked and put in the back of a trailer and paraded up and down a public road nearby by the appellant.

34 A particularly gratuitous, highly prejudicial piece of evidence which on no view could be said to be relevant is para 10 quoted below (to which I have earlier made brief reference):

“To show the type of person Darryl was, I remember seeing him put a lot of puppies in an old hessian bag and tie the top. He then tied this bag to the back of the dune buggy and dragged it along until the puppies were dead. He also made me watch him beat kittens to death with a shovel.”

35 The statement concludes with a reference to when she ran away from the Mds for the last time when “Mrs Md shot Darryl. I don’t know where she shot him. At the time this happened I knew that the bullet was meant for me because they were hunting for me. I was scared.”

36 The impact of this evidence on the jury must have been heightened by the jury being permitted to be present when M was questioned about her unwillingness to give any evidence. That would have emphasised its importance in the jury’s minds; see T, 218-222.

37 The Crown attempted to justify these related matters in the following way. First, the evidence of violence in the household was to explain the fear leading to absence of complaint by the two girls D and V for nearly 24 years.

38 This was also the basis relied upon by the Crown for the trial judge having “correctly admitted relationship evidence which dealt with a number of acts of violence and sexual and indecent assaults by the appellant towards one or other of the complainants”. It was submitted that “the evidence of Mrs Md’s violence and anger which created terror in the complainants and a wish to run away, was also admissible as relationship evidence so that the jury could see the context of the allegations made in the indictment”; Crown’s written submissions on appeal, para 10.

39 It was also submitted that, “the evidence of violence at the home where the complainants and their sister were being fostered is relevant to the credibility of the complainants, particularly as their evidence as to the complaint has been disputed”; see para 9 of Crown’s written submissions.

40 The Crown relied particularly upon the decision in R v H (supra) as dealing with a case with, it was said, “some similarities”. That case dealt with evidence as to violence and sexual acts by the then appellant only; this was as here directed towards the complainants and other members of the household. But there was no equivalent evidence in R v H of the violence and sexual acts by other members in the household that featured in the present case, a matter which reduced its probative weight without diminishing its prejudicial impact.

41 The Crown specifically relied upon the following passage by Dunford J at 15:

the appellant

his

42 The Crown also relied upon the following comments on the evidence by Dunford J at 18-19:

“The mothers of each of the complainants also gave evidence in the defence case denying any sexual impropriety or any violence on the part of the appellant. By his denials, the appellant put the credibility of the complainants forward as the main issue in the trial; and in these circumstances, I cannot see that the Crown should have withheld part or all of the evidence which it had available, and which tended to make the complainants’ evidence more credible. If the whole or part of the evidence relating to other sexual activity or violence in the household had been excluded in the exercise of discretion, the jury would have had only part of the picture, and therefore a distorted picture, and may have regarded the complainants’ evidence as less credible than they considered it in the light of the whole story”.

43 The context in which these observations are made does however distinguish R v H from the present case. That context is clearly stated by Gleeson CJ at [3]-[4] as follows:

Most of the evidence the subject of the grounds of appeal was not objected to by trial counsel. It may be remarked that, where complainants and their supporting witnesses are alleged to be concocting a story, in some respects it suits the defence for that story to be as extreme and apparently outlandish as possible.

If objection had been taken to some of the evidence now in issue, such as evidence of violence by the appellant to members of the household other than the complainants, it may have been necessary to explore in more detail such matters as the knowledge by the complainants of the incidents in question; although, as Dunford J has observed, it is hardly likely that they could have failed to know about them. Moreover, there was a real issue as to why other members of the household did not report the appellant's conduct to the authorities, and the evidence had a bearing on that matter.

None of the evidence went merely to show the appellant's criminal propensity. It went further than that in its relevance.”

44 There is however an entirely apposite warning by Dunford J on the need for the trial judge to give consideration to when the point is reached where the probative value of the additional evidence is outweighed by its prejudicial effect. That is, with respect, something that the trial judge in the present case simply failed to do. This is when there was already ample evidence from V of the intimidatory violence in the household without need for all of the detailed evidence from M, such as the entirely gratuitous passages concerning torturing of puppies and kittens. Especially relevant here is the following passage cited in R v H from the decision of Hunt CJ in CL in R v Beserick (1993) 30 NSWLR 510 at 522 as follows:

“So far as concerns the second of the balancing operations (the discretion to reject the evidence upon the basis that its probative weight is outweighed by its prejudicial effect), the stage will inevitably be reached where the evidence of other sexual activity between the complainant and the accused will no longer reasonably be required either to establish the guilty passion (or the sexual desire or feelings) of the accused for the complainant or to place the evidence of the offence charged into a true and realistic context, and it does little or no more than emphasise that the accused has a propensity for committing crimes of the nature charged or crimes of a similar nature. When that stage has been reached, trial judges should be firm in excluding the evidence tendered ...”

45 Here, there was no exercise of the discretion under s137 of the Evidence Act to exclude evidence outside the matters charged, where its probative value is outweighed by the danger of unfair prejudice to the defendant. I refer here to the acts of violence of Mrs Md and to the violent behaviour of the appellant, accepting that evidence of M of a sexual assault on V outside that charged by the appellant may be relevant to show guilty passion. However, it is then of even greater importance that the judge give proper explanation to the jury as to the strictly limited purpose for which the evidence is admitted with an appropriate warning as to its use. This Hunt CJ in CL emphasises in R v Beserick (supra) at 516 again cited by Dunford J in R v H:

“If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged.”

46 That was not done at the time the first of that evidence was given when its impact was likely to be greatest. While the summing up did include those necessary elements of that explanation, it fell short in the respects earlier mentioned (see [19 (7)] above).

Summing Up

47 Thus I consider that the failure to direct the jury that they must consider each count separately and only by the evidence that applied to it, coupled with the weaker Longman direction invoking common sense rather than the court’s experience (Su66-7), along with the failure to direct the jury that where there was only one witness asserting the commission of a crime the evidence of that witness must be scrutinised with great care, all augmented the prejudice to the appellant from the admission of the evidence in question. I refer here to the evidence of violence by Mrs Md, assaults by the appellant outside the subject of the charge, and concerning his alleged violent and cruel nature generally. It amounted to a virtual invitation to attribute guilt derived from not only the supposed propensity of the appellant towards violence (mitigated but not removed by the warning at SU 25 and 30) but the propensity of the household itself towards violence centring around Mrs Md. All this renders R v H, with its careful exposition of the need for early warning and where the evidence was in relation only to the appellant, entirely distinguishable from the situation of this trial and this evidence. The position for the appellant was, as I have said, made worse by permitting his cross-examination at great length over two days (T, 275-371) about the actions and motives of others, mainly Mrs Md. This was where his defence of Mrs Md’s actions could well have created the risk of yet further prejudice in the eyes of the jury.

Appeal Ground 2

48 I should conclude by dealing briefly with appeal ground 2, for the guidance of a future trial judge. Complaint is made concerning the first ground, assault on V, alleged to have occurred sometime between 1 March 1975 and 29 March 1976. Born as she was on 30 March 1961, because of her age no issue of consent arose, though it was clearly the Crown’s case that she was not consenting. The Defence argued that the act relied on to constitute the offence was in fact one which amounted to an indecent assault and, subject to the statutory bar after 12 months, should have been charged as such pursuant to the law in force at the time, namely under s76 of the Crimes Act. However s78 of the said Act prevented any prosecution for such an offence, where the complainant was over the age of 14 and under 16 years, after the expiration of 12 months from the time of the alleged commission of the offence.

49 The Defence argued that where, as here, the conduct relied on was in fact an indecent assault, the charge of committing a mere assault was not open to the Crown as a way of avoiding the statutory bar, citing Saraswati v The Queen (1990-91) 172 CLR 1.

50 It is apparent from the Crown prosecutor’s remarks at T, 123/124 on 23 February 2000 that the Prosecutor was well aware of the statutory bar and was of the view that it could not appropriately charge an indecent assault.

51 It is also apparent that the Prosecutor avoided the restrictions by calling evidence of a number of other indecent assaults as “relationship evidence”.

52 The Crown attempted to distinguish Saraswati on the basis that it only applied to preclude the substitution of a more serious offence for that which is statute barred. Here assault, a less serious offence, was being substituted for indecent assault, so it was said that there was no statutory constraint on that. Saraswati, on its facts, involved substituting a charge of indecency with a person under the age of 16, when the conduct relied on overlapped with that for the 12 month statute barred charges of indecent assault and unlawful carnal knowledge. No suggestion is made in the reasoning of the High Court that any gradation of seriousness of the substituted offence was either determinative or even relevant. The offences were, however, sufficiently related, for the High Court to reject any attempt to avoid the 12 months bar, by bringing a charge so close to the statute barred offences.

53 The present case involved, in any event, a serious assault. The conduct which was common to both offences was an assault. It would be wholly unreal to deal with that assault charge without reference to the sexual aspects of the alleged events. It would in those circumstances be a contrivance to circumvent the specific 12 month’s bar, to allow the general provision of a charge of assault to be brought, when the charge of indecent assault is statute barred. The gravamen of the reasoning of McHugh J (at 30) concurred in by Toohey J, was to apply the context rule of statutory construction. It “holds that a general provision of a statute [here that dealing with assault generally] is not to be construed so as to avoid the conditions or limitations contained in a specific provision of a statute, namely the 12 month’s time bar”. This is so, though the actual charge brought, assault, while covering the common assault elements does not include those sexual elements peculiar to an indecent assault. I would accordingly uphold the second appeal ground, quash the conviction for the first count on the indictment and in respect of that count enter a verdict of acquittal.

CONCLUSION

54 Without need to refer to the other matters in the grounds of appeal, and making no adverse judgment as to the competence of the appellant’s representation, I am satisfied that the combination of matters set out in the earlier propositions rendered this not a fair trial. I consider that it so far miscarried as hardly to be a trial at all. That must mean that the convictions must be quashed in respect also of counts 2 to 9 inclusive and a new trial ordered in respect of those counts. I would so order. And in those circumstances, it is unnecessary for me to deal with the submissions on behalf of the appellant in relation to sentence.

55 Finally, since preparing a draft of these reasons, I have had the advantage of reading in draft form the judgment of Buddin J and agree with his additional observations.

ORDERS

56 Accordingly I would order as follows:

2. Conviction in respect of count 1 be quashed and in respect of that count there be a verdict of acquittal.

57 SULLY J: I agree with Santow JA.

58 BUDDIN J: I have had the advantage of reading in draft form the judgment of Santow JA. I agree with the orders which his Honour proposes. I am in substantial agreement with his Honour’s reasons for proposing those orders and wish to add only the following observations.

59 With the exception of Ground 20, which asserts that the appellant was incompetently represented, every other Ground complains of error on the part of the trial judge. As Santow JA has made clear, a large number of those complaints have been made out. That conclusion however masks the real problems that emerged in this trial. Having said that, the trial of the appellant was always going to be a difficult one and in that respect one can have some sympathy for the trial judge. First, the allegations which gave rise to the various counts in the indictment occurred, as Santow JA has observed, about 25 years before the matters came on for trial. Secondly, not only were the complainants themselves quite young at the time the alleged offences occurred, but the appellant was himself then only aged between about 14 and 16. Thirdly, the circumstances in which the alleged offences occurred were themselves highly unusual.

60 As Santow JA has pointed out, a quite bewildering array of inadmissible material found its way into evidence. True it is that it was not objected to by counsel who appeared on behalf of the appellant at trial. Counsel gave evidence in this Court and sought to provide an explanation as to why he had taken the forensic decision not to object to any of this material. He gave evidence that he formed the view that many of the allegations made by the complainants and their sister were highly implausible, and would be clearly seen as such by the jury. More importantly, the allegations were capable of being refuted by Mrs Md, who was to be called in the appellant’s case. As it happened, Mrs Md turned out to be an unsatisfactory witness. In those circumstances it is apparent that the decision which was taken was an unfortunate one. More fundamentally however, the strategy was bound to fail from the outset because there was a considerable body of material which Mrs Md was simply not in a position to contradict. That made the failure to object to it all the more surprising.

61 It is, as Santow JA has observed, quite unnecessary to determine whether the appellant has succeeded in relation to Ground 20. It is apparent from what his Honour has said that the appellant has plainly demonstrated that there has been a miscarriage of justice such as to entitle him to a new trial in respect of counts 2 - 9.

62 The original source of the problems that were created lay in the fact that the Crown led a great deal of inadmissible material. Santow JA has referred at some length to that material. It is unnecessary for me to repeat it. His Honour has also pointed out the limited extent to which the evidence of M could have been admissible. His Honour has also referred to parts of her evidence. In order however to emphasise the real sting which her evidence carried, it is necessary only to set out (omitting formal parts) the contents of her statement dated 2 October 1996, which was tendered without objection. It was in the following terms:

On the 8 June, 1996, I gave a statement to Detective Rogan at the Windsor Police Station. This statement outlines a number of assaults which were committed upon me my (sic) Mr and Mrs Md along with the appellant. The statement further outlines that I have witnessed a number of assaults committed upon both my sisters V and D.

Further to that statement I would like to add that in paragraph 33 that I started to drink at 18 years old. I became a very heavy drinker on a regular basis until I was 24 years of age. I believe that if I drank it helped me block out the memories I have of my childhood.

My childhood I endured I know really affected me greatly that was the reason why I turned to alcohol. I constantly had to witness beatings, by beatings I mean physical assaults on my sisters, along [sic] enduring the same treatment dished out by Mrs Md, the appellant and Mr Md.

I remember at one stage in my childhood Mr Md hit me with the butt of a shotgun. He hit me across the back of the legs. I don’t remember exactly when this happened as we all used to get assaulted regularly.

At one stage of my childhood Mrs Md held my head under water in the underground well that was on the property. I am sure that this was done for something to do, there never used to be a real reason why we would be assaulted.

During the same time the appellant would also hold my head under water and he would throw us into the dam which was also on the property. He repeatedly did this to V, D and I, at that stage none of us could swim and the appellant knew this. I remember feeling petrified as I thought that one day one of us would drown. We just had no control over what the appellant and Mrs Md did to us, the appellant was so much bigger that (sic) us. To this day I am still scared of water.

At one stage I remember being told to strip naked by the appellant. I was with Vi and D at the time. He made all of us strip and made us get on the back of a trailer which was attached to a home made dune buggy. I don’t remember why he did this but he drove use (sic) naked up and down Tizzana Road Ebenezer.

To show the type of person the appellant was, I remember seeing him put a lot of puppies into a (sic) old hessian bag and tie the top. He then tied this bag to the back of the dune buggy and dragged it along until the puppies were dead. He also made me watch him beat kittens to death with a shovel.

I remember that during our childhood after tea, the appellant would always have D with him he would say, ‘She’s my helper”. I believed that D was helping the appellant with some welding that he used to do in one of the sheds on the property.

When I ran away from the Mds for the last time, Mrs Md shot the appellant. I don’t know where she shot him. At the time this happened I knew that the bullet was meant for me because they were hunting for me. I was scared.

When I was eventually found I remember Mrs Md said, “If you ever try to run away again I will kill you.” To this day I believe that Mrs Md, the appellant or Mr Md would have carried out that threat.

I feel that during my childhood I have suffered extreme hardship at the hands of the Md family. Myself along with my sisters were tortured, beat (sic), abused, intimidated, humiliated and they stole our childhood from us. We were used as slaves for work, we just had no rights at all.

63 To my mind it is difficult to credit that that material was placed before the jury without anyone apparently giving consideration to the following questions. First, how it was said to be relevant to the issues in the trial. Secondly, if it was relevant whether or not it was only peripherally so and thirdly, whether it should be excluded pursuant to ss 135 and/or 137 of the Evidence Act. Much the same may be said about those parts of the complainants’ evidence in which they made allegations of gratuitous violence on the part of Mrs Md and of the appellant. Assuming that it was legitimate for the Crown to introduce evidence of that kind in order to explain the absence of complaint, it was quite unnecessary for it to lead the volume of material that it did especially as the details of the incident (referred to by Santow JA in the summary of the Crown case), in which V, having sought to complain to Mrs Md about the appellant’s conduct of a sexual nature towards her, was physically chastised and humiliated for having done so, was already in evidence.

64 The obligations of a Crown Prosecutor in relation to the calling of evidence has been the subject of much judicial comment. In Whitehorn v The Queen (1983) 152 CLR 657, Deane J said:

…In performing his function of presenting the case against an accused, [a Crown prosecutor] will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one. (at 663-4)

65 Dawson J said the general obligation cast upon the Crown Prosecutor is “to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused.” (at 675)

66 It is axiomatic that the Crown should only call evidence that is relevant and admissible in support of the charges which it brings. Generally speaking it cannot, simply because no objection is raised on behalf of the accused, tender evidence that does not meet the relevant tests for admissibility. That is particularly so when the material sought to be tendered is of the nature which was led in the present case. On occasions, a Crown Prosecutor may be confronted with a situation in which an accused person wants material introduced which is either plainly inadmissible or, is reasonably believed to be so, by the Crown Prosecutor. In those circumstances the prudent course will often be for the Crown Prosecutor to draw the material in question to the attention of the trial judge. Such an approach will provide the trial judge with advance warning of the difficulties which may lie ahead. A trial judge can then make some assessment of the situation in order to ensure that only properly admissible material finds its way into evidence. Nothing of that kind occurred in the present case.

67 In my view, once the highly prejudicial and inadmissible material was admitted into evidence, the trial was almost bound to miscarry. Furthermore once the evidence was led, the trial inevitably was diverted into an examination of entirely collateral issues, including an extensive inquiry into the activities of Mrs Md and the appellant and the apparently dysfunctional household in which they lived. Santow JA has highlighted many of the problems that thus arose. It resulted, for example, in the appellant being placed in the invidious position of not only having to defend the charges brought against him but also having to defend his mother from the attacks which were made upon her. Findings made by the jury against her (which were very likely to have been made in view of the nature, scope and sheer volume of the evidence introduced about her conduct) were inevitably going to reflect adversely upon the appellant.

68 Whilst a trial judge has an overall obligation to ensure that an accused person obtains a fair trial, he or she is of course constrained to a greater or lesser extent, depending on the circumstances, by the way in which counsel conduct the proceedings. A trial judge is also entitled, and is indeed required, to be somewhat circumspect before questioning the way in which counsel is or are conducting a trial. Nevertheless, where evidence which is clearly prejudicial to the accused is being led, there comes a point in time at which he or she must make due enquiry in order to ascertain the basis upon which the material is said to be admissible. A trial judge is not absolved from responsibility in that regard by simply relying upon the way in which the parties are conducting the matter. It is impossible of course to lay down rules of universal application which will enable a decision to be made as to when it is appropriate to intervene in a particular case. Nevertheless the material introduced in this case, and its sheer volume, was of such an extraordinary and unfairly prejudicial kind that it plainly called for some form of appropriate intervention at an early point in the proceedings.

69 Furthermore, given the nature and scope of that material it is difficult to conceive how suitable directions could have cured the impermissible prejudice which had been thus occasioned, more especially given M’s initial appearance in front of the jury in which she expressed her reluctance to give evidence at all. Accordingly the inadequacies and errors which have been identified in the summing-up, need to be viewed against that background.

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Last Modified: 07/23/2003

Citations

R v Lewis [2003] NSWCCA 180

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CITATION:	R v Daryl Bruce Lewis [2003] NSWCCA 180
HEARING DATE(S):	10, 17 June 2003
JUDGMENT DATE:	4 July 2003
JUDGMENT OF:	Santow JA at 1; Sully J at 57; Buddin J at 58
DECISION:	1. Convictions in respect of counts 2 to 9 be quashed and there be a new trial; 2. Conviction in respect of count 1 be quashed and in respect of that count there be a verdict of acquittal.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Review of conviction - Assault, rape and indecent assault - Offences as a juvenile - Offences against a juvenile - Offences committed a substantial time ago - Error in admitting evidence - Relationship evidence - Insufficient directions to jury - Need for a full and adequate 'Longman' direction with court's imprimatur - Miscarriage of justice - Proceedings fundamentally flawed - Prejudice to the defendant -- Rule 4 of Criminal Appeal Rules - Admitting evidence of indecent and other assaults as relationship evidence - Balance of unfair prejudice against its probative value - Failure of warnings to jury - Failure to give 'Murray' direction - Allowing of prejudicial cross-examination on relationship evidence - Failure of directions to jury - Statutory bars to proceedings (s78 Crimes Act).
LEGISLATION CITED:	Crimes Act s76; s78 Criminal Appeal Rules rule 4
CASES CITED:	R v A H (1997) 42 NSWLR 702 R v A N (2000) 117 ACrimR 176 R v Beserick (1993) 30 NSWLR 510 R v BWT (2002) 54 NSWLR 241 R v Clarke (2001) 123 ACrimR 506 R v Etherington (1982) 32 SASR 230 R v Fraser (CCA, 10 August 1998, unreported) R v Fordham (CCA, 2 December 1997, unreported) Gipp v The Queen (1998) 194 CLR106 R v H (NSWCCA, 24 October 1994, unreported) R v M M (2000) 112 AcrimR 519 R v Meier (NSWCCA, 26 May 1996, unreported) R v Murray (1987) 11 NSWLR 12 R v Pemble (1971) 134 CLR 107 Saraswati v The Queen (1990-91) 172 CLR 1 Wilde v the Queen [1987-1988] 164 CLR 350
PARTIES :	Regina Daryl Bruce Lewis (Appellant)
FILE NUMBER(S):	CCA 60036/01
COUNSEL:	M C Ramage, QC (Appellant) G E Smith (Crown)
SOLICITORS:	Voros & Associates (Appellant) S E O'Connor (Crown)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	99/21/1084
LOWER COURT JUDICIAL OFFICER :	Backhouse DCJ