R v LTP

[2004] NSWCCA 109

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v LTP [2004]  NSWCCA 109

FILE NUMBER(S):
60477/03

HEARING DATE(S):               25 March  2004

JUDGMENT DATE: 01/07/2004

PARTIES:
Regina v LTP

JUDGMENT OF:       Dunford J Simpson J Howie J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          01/61/0176

LOWER COURT JUDICIAL OFFICER:     Woods DCJ

COUNSEL:
D C Frearson - Crown
P Segal - Appellant

SOLICITORS:
S E O'Connor - Crown
Quirk Davidson & Easdown - Appellant

CATCHWORDS:
CRIMINAL LAW - sexual assault - complainant daughter of appellant - delay in complaint - necessity for Kilby direction - Longman direction - sufficiency of - multiple counts - different verdicts - whether inconsistent - summing up - directions on onus of proof - whether misleading or confusing - proviso - CRIMINAL LAW - sexual assault - date of offence - legislative changes - offence not in existence at date of offence - fellatio not carnal knowledge - CRIMINAL LAW - sentencing - sexual assault - complainant daughter of appellant - EVIDENCE - limiting cross-examination of complainant - whether any miscarriage of justice

LEGISLATION CITED:
Crimes Act 1900 ss 66, 405
Crimes (Child Assault) Amendment Act, no 149 of 1985
Criminal Appeal Act 1912 ss 6, 7
Criminal Procedure Act 1986 ss 16, 294
Evidence Act 1995 s 41

DECISION:
Appeal allowed on count 4 - verdict of acquittal entered - appeal against conviction on count 5 dismissed -  sentence varied.

JUDGMENT:

- 28 -

IN THE COURT OF
CRIMINAL APPEAL

60477/03

DUNFORD J
SIMPSON J
HOWIE J

THURSDAY, 1 JULY 2004

REGINA  v  LTP

Judgment

1. DUNFORD J: The appellant has appealed against his conviction on two counts, one of sexual intercourse with a person under 10 years and one of sexual intercourse with a person under authority between the age of 10 and 16 years contrary to the provision of the ss 66A and 66C(2) respectively of the Crimes Act 1900 as they stood at the relevant times, following his trial before his Honour Acting Judge Sir Robert Woods and a jury in the District Court at Dubbo.  He has also applied for leave to appeal against the severity of the sentences imposed on him following such convictions.

2. The appellant was charged with the following counts-

   1) Sexual intercourse without consent with a person under the age of 16 years, namely 6 years of age; date of offence: between 31 January 1984 and 1 June 1984: s 61D;

   2) Sexual intercourse without consent with a person under the age of 16 years, namely, 6 years; date of offence: between 31 January and 1 June 1984: s 61D;

   3) Carnal knowledge of a girl under the age of 10 years, namely 6 years; date of offence: between 1 June 1984 and 31 July 1984: s 67;

   4) Sexual intercourse with a person under the age of 10 years, namely 9 years; date of offence: between 1 December 1986 and 25 December 1986: s 66A;

   5) Sexual intercourse with a person under authority between the ages of 10 and 16 years, namely 12 years; date of offence: between 1 July 1990 and 31 July 1990: s 66C(2);

   6) Sexual intercourse with a person under authority between the ages of 10 and 16 years, namely 15 years; date of offence: between 20 October 1993 and 20 November 1993: s 66C(2);

   7) Sexual intercourse with a person under authority between the ages of 10 and 16 years, namely 15 years; date of offence: between 20 October 1993 and 20 November 1993: s 66C(2);

   8) Sexual intercourse without consent; date of offence: between 20 June 1994 and 20 July 1994: s 61I.

3. The appellant pleaded not guilty to all counts.  Counts 6 and 7 were withdrawn by the Crown during the trial.  The appellant was convicted on counts 4 and 5 and acquitted on counts 1, 2, 3, and 8.

4. The complainant is the natural daughter of the appellant.  She was born on 21 December 1977 and lived at home with the appellant, his wife (her mother), her brother (about 11 months older than her), and her sister (about 3 years younger) in Stuart Town until November 1994 when she was nearly 17 years of age.

5. The brief facts alleged in respect of each of the charges were as follows:

   Count 1: sexual intercourse without consent with person under 16 years (6 years) between 31 January 1984 and 1 June 1984:  not guilty verdict

   The complainant’s sister attended Wellington pre-school when she (the sister) was three or four years of age.  On the sister’s first day of pre-school, which the complainant said she thought was in 1984, she (the sister) was taken there by her mother although she subsequently caught the bus.  The complainant’s brother was at school and the complainant remained at home alone with the appellant.

   The complainant gave evidence that the appellant asked her to suck his penis.  The complainant said “No daddy it was yukky” but the appellant said it would be their little secret.  The complainant went over to the accused and put his penis in her mouth.  When she tried to get up, the appellant had his hand on top of her head, pushing her head down.  This continued for “a little while”.

   Count 2: sexual intercourse without consent with person under 16 years (6 years) between 31 January 1984 and 1 June 1984:  not guilty verdict.

   The complainant said that when she stood up following the commission of count 1, the appellant put his hand inside her underwear under her nightie, and placed his fingers inside her vagina, moving them in and out.  The complainant told him that it hurt.  After stopping, the appellant said, “Don’t forget this is our secret; we can get into a lot of trouble”.

   Count 3: carnal knowledge of girl under 10 years (6 years) between 1 June 1984 and 31 July 1984:  not guilty verdict.

   The complainant said that she was alone with her father at about lunchtime on a date around his birthday in 1984.  The appellant took the complainant into his bedroom and laid her on the bed.  After placing his fingers inside the complainant’s vagina, the appellant indicated that he would insert his penis.

   After an unsuccessful attempt, the appellant rubbed some Vaseline on the end of the his penis and inside the complainant’s vagina, got on top of her and pulled her legs apart.  The complainant cried and screamed and told him that it hurt.  The appellant penetrated the complainant and ejaculated onto her stomach.  He warned the complainant not to tell anyone about what they had done.  The complainant was in pain and couldn’t walk properly afterwards.

   Count 4: sexual intercourse with a person under 10 years (9 years) between 1 December 1986 and 25 December 1986:  guilty verdict.

   The complainant turned 9 on 21 December 1986, and around that date celebrated her birthday with a slumber party at her home, which started at about 5:00pm.  The complainant’s school friends and two of her cousins attended the party and photographs were taken by the appellant.  Although it appeared that there were 8 candles on the cake which featured in one of the photographs, the complainant said that the slumber party was for her ninth birthday. 

   At one point the appellant called the complainant out of the party and took her behind the outdoor toilet.  He pulled his penis out of his trousers and asked the complainant for oral intercourse.  The complainant complied, then returned to the house. 

   Count 5: sexual intercourse with person under authority between the ages 10 and 16 years (12 years) between 1 July 1990 and 31 July 1990:  guilty verdict.

   The complainant attended Wellington High School and commenced there when she was 12 or 13 years old.  Her brother had a friend who lived up the road named ND, who was “sort of” the complainant’s boyfriend.  The complainant and her brother would on occasions sneak out of the house and visit ND.

   The complainant’s mother played Bingo on Thursday nights, but she went only on those Thursday nights when the appellant was home. 

   There was an occasion in July 1990 when the complainant and her brother snuck out the window to visit ND.  After they returned, the appellant approached the complainant and told her that he had seen her and her brother climb out the window.  He told her he would not tell her mother if the complainant had sex with him.  The complainant’s brother was not present during this conversation.

   The complainant complied and the appellant ejaculated inside her.  She said she complied because she liked ND and did not want to be prevented by her mother from seeing him.

   Count 6: sexual intercourse with person under authority between the ages of 10 and 16 years (15 years) between 20 October 1993 and 20 November 1993:  count withdrawn.

   There was an occasion when the complainant went to a dam with her boyfriend at the time, SP.   On her return home she went to sleep in the caravan in the back yard.  There was no internal locking mechanism on the caravan.

   The appellant entered the caravan and accused the complainant of having sex with SP.  They had an argument.  The appellant left the caravan but returned later the same night, and asked the complainant for sex.  She said that she wasn’t in the mood, but he said it would not take long.  The complainant had penile oral intercourse with the appellant.

   Count 7: sexual intercourse with person under authority between the ages of 10 and 16 years (15 years) between 20 October 1993 and 20 November 1993:  count withdrawn.

   The complainant said that, after engaging in penile oral intercourse as alleged in the previous count, the appellant had penile vaginal intercourse with her in the caravan.

   The reason why these counts were withdrawn was that as the evidence unfolded, it appeared that they occurred shortly before she left home in November 1994 and not in 1993, so that the complainant was 16 at the time.  An application to amend the dates in the indictment was refused because it would have necessitated laying different charges, i.e. under s 61I.  See transcript at 479-482.

   Count 8: sexual intercourse without consent between 20 June 1994 and 20 July 1994:  not guilty verdict.

   The appellant was working in Broken Hill and the rest of the family (other than her brother) went there to see him and the family stayed at a motel.  During the night, the appellant woke the complainant and asked her to go into the bathroom.  When she did so, he asked her to give him sex.  She said “no” and he then asked her to give him a “head job”, which she did.

   Relationship evidence

6. The complainant gave evidence that the accused “frequently” had sexual intercourse with her between the incident alleged in count 1 and the time she left home in 1994.  Often this occurred when her mother was at Bingo on Thursday nights, or when he took her out in her grandparent’s Land Rover to get wood and on other occasions.

   Videos

7. The complainant gave evidence that the accused had a video camera and tripod and that on one occasion when she was 15 years old, the accused filmed them having sex.  The complainant’s mother confirmed that the accused owned a video camera and tripod.

   Exhibit H

8. The complainant said that the appellant used a “big black rubber thing” to have sexual intercourse with her on “quite a few occasions”.  This was recovered by police when they executed a search warrant at the appellant’s home on 25 May 2001. 

9. While the appellant’s de facto wife claimed the object was hers, she did not advise the appellant or his legal advisers of this fact until after the trial commenced.  She said she was too embarrassed to admit to the police during the search that the object was hers, even though she admitted ownership of two vibrators which were also located.

   Letters

10. The complainant said that the appellant used to write “love letters” to her, one of which was identified by the complainant and tendered.  The appellant agreed he “could have” written it and that “some of it” was in his writing.  That document (Ex C) contained the following passages:

    “I don’t like you kissing (SP) in front of me because think that is my girl and that are my kisses”.

    “I don’t want (SP) get any closer to you then you are.  If I can(‘t) stop you been in the van down at the dam.  He won’t get that close.  I know what I would do if I hap you on my own at that place”.

    “Even when you go to Orange to stay for three nights its drive me crazy just thinking of you”.

    “I love you to much darling, I wish I could be like other fathers but I can’t”.

    “ I would like you to go on the pill but that mite give you the chance to play up on me”.

    SP was the complainant’s boyfriend at the time of the events alleged in counts 6, 7, and 8 and at the time she left home in November 1994.

    Delay in complaint

11. The complainant did not disclose the abuse to her sister, as she was “too scared to tell anyone”.  She did not tell her paternal grandmother, whom she was close to, “because Nan had gone through the same thing with her daughter and Pop”.  She was afraid to report the matter to police because the appellant had threatened to kill himself.

12. The complainant’s aunt on her mother’s side lived with the family when the complainant was 14-15 years old, but the complainant was not close to her and made no disclosure.  The appellant’s 3 sisters would sometimes visit the home, and the complainant would occasionally visit them, but the complainant said she was not on good terms with her aunts.

    Reporting of sexual assault allegations

13. The complainant was 16 years old, nearly 17, when she left home in November 1994.  On the same day, she attended Orange Hospital where she spoke with police and a counsellor.  That evening, whilst at a refuge, she had a telephone conversation with her mother and asked her mother to meet her in Orange.  Her mother asked, “Has he touched you?” the complainant said, “Yes, but don’t say anything to him because he’s got video evidence of him having sex with me and I don’t want him to destroy it”. 

14. The complainant’s mother also gave evidence of this telephone call and said the appellant was in the room during the conversation and kept saying “Am I in trouble, ask (the complainant) am I in trouble?” and he appeared very panicky and scared.  The mother asked the complainant if the appellant was in any trouble to which the latter replied that he was, and that he had done something to her. 

15. The appellant then got on the phone and asked the complainant if he was in trouble.  After the telephone call was terminated, the complainant’s mother said to the appellant “You’ve done something to my baby, haven’t you?” and the appellant admitted having sexual relations with the complainant and said he was sorry, that it was an accident. 

16. The mother then saw the appellant destroy some videotapes over a 44-gallon drum used as a garbage bin.  They then went for a drive, during which the appellant said he was going to kill himself.  His wife suggested that he go to Bloomfield Hospital in Orange and she took him there that night.

17. The appellant’s version of the telephone call (T 348) was that his wife answered the phone and at first would not tell him who the caller was.  Then he heard her say” “What has happened to you, exactly what’s happened to me”.  The appellant asked who it was and his wife replied that it was the complainant.  He heard raised voices from the mother and he asked, “What’s she (i.e. the complainant) saying?”  The mother replied, “Well, you’re in trouble”.  He asked what he was in trouble about and his wife said “She’s accusing you of having an affair with her”, to which he replied “No way in the world”.

18. He denied destroying any videos, but said that after the telephone call he was very confused and stressed out, and his wife took him to hospital to get some help, which she did.  His wife was talking about seeing Dr Hoskins, a psychiatrist at Bloomfield (T 355).  He denied admitting any sexual association with the complainant.

19. The complainant met her mother the following day and told her that she had been sexually assaulted by the appellant and her mother told her that she had taken the appellant to Bloomfield Hospital. 

20. Nothing further happened until the complainant spoke to a police officer (Const Glen Blain) at Wellington Police Station on 1 January 1996, disclosed allegations of sexual assault by the accused from the age of 7 years up until recently and applied for an Apprehended Violence Order.  She did not make a detailed statement at that time, as she “just wanted an AVO”.  He referred her to Constable Cook in relation to the AVO complaint and to Sergeant Greenwood of the Child Protection Investigation Team (CPIT) in relation to the sexual assault allegations.  CPIT had no record relating to the complaint although there was a COPS entry relating to the AVO complaint. 

1. The first time the complainant made a formal statement about the allegations was in 2001 when she spoke to Constable Kelly Levien.  She signed her statement on 30 April 2001, and her mother signed a statement on 10 May 2001.  On 25 May, a search warrant was executed at the appellant’s premises, at the conclusion of which he was arrested.  He declined to participate in a recorded interview at the police station.

   The appellant’s case at trial

2. The appellant gave evidence in the trial that he and his wife had married in 1976 and they separated permanently in 1995.  Since then he had been living in a de facto relationship with a former friend of the complainant’s for about six years and they had a four year old son.  He denied having any sexual contact with the complainant and also denied threatening to kill himself if the relationship was exposed.  He denied each of the charges in turn. 

3. In relation to count 4, he thought the photographs in exhibit A depicted the complainant’s ninth birthday, although there were only eight candles on the cake.  In relation to count 5, he denied having any sexual contact with the complainant at that time and denied saying anything to her about ND in relation to obtaining sex from her.  He said he would sometimes stay at home while his wife went to Bingo on Thursday nights and sometimes he would go to his parents’ house early with the children, whilst on other occasions, one of his sisters would babysit the children while he was out. 

4. He also denied having sexual contact with the complainant as alleged in counts 6, 7 and 8 although he agreed that the family were together at a motel in Broken Hill in 1994.  In relation to the letters, he said that he sometimes wrote to his wife and children whilst he was away working in the course of his employment with the Railways.  Sometimes he copied things from other sources and at other times made up the material himself.

   Complainant seeking to withdraw complaint

5. Late in 2001, the complainant attended Wellington Police Station with a view to withdrawing her complaint against the appellant.  She was accompanied to the police station by her brother and sister.  The complainant said that she wanted the complaint withdrawn, but not because it was false; she said that they asked her to withdraw the proceedings due to a fear that the appellant would kill himself.  She denied telling the police that she had been pressured into making the allegations and denied that she would have been relieved had the charges been withdrawn.  She told her sister that she couldn’t have the charges withdrawn in an attempt to get her off her back.

6. The complainant told her mother that she was making a complaint in 2001 and asked for her mother’s support.  She denied that her mother asked for $10,000 in exchange for her support.  Her brother accused their mother of pressuring the complainant to pursue charges against the appellant.  The complainant’s brother gave evidence that he attended the police station with the complainant and their sister to have the charges withdrawn.  He denied pressuring the complainant to do so.

7. The complainant’s sister gave evidence that the complainant telephoned her in July 2001 about withdrawing the charges.  She and her brother accompanied the complainant to Wellington Police Station.  The complainant told the officer there (she thought his name was B J Edwards) that she didn’t want the case to proceed.  When the officer asked the complainant whether she had been pressured to seek a withdrawal, the complainant answered, “No, more like pressured into going through with it”.  The officer said the complainant would have to speak to the detective in charge of the matter and made a note.  The complainant’s sister denied placing pressure on the complainant to seek a withdrawal of the charges.

1. Her sister gave evidence that the complainant had spoken to her earlier in the year about having the charges withdrawn.  She said the complainant indicated she had lied in her statement but that the DPP said the proceedings could not be withdrawn.  She said that the complainant had made similar statements to her in 2002 and that she had accompanied the complainant to the DPP office in Dubbo on 19 July 2002.  At this time the complainant had told her that she wanted the charges dropped.

   Conferences with DPP staff in 2002

2. Brenda Craig, a Witness Assistance Officer with the Office of the Director of Public Prosecutions (DPP), gave evidence of meeting with the complainant on three occasions where DPP legal staff were also present and that the complainant had made enquiries to her about withdrawing her statement against the accused.

3. On 19 July 2002, the complainant met with Brenda Craig and a DPP solicitor, Steve Monaro.  The complainant said she was feeling pressured by her family and thought her relationship with her family would be revived if the proceedings were withdrawn.  The complainant also said she felt guilty as she had been told that her father would commit suicide if he went to gaol.  Brenda Craig gave evidence that at no time did the complainant suggest to her that her statement was false.

4. Christopher Bailey, a DPP solicitor, gave evidence of a conference on 29 May 2002 with the complainant in the presence of Steve Monaro, Constable Levien and Kathy Keene, a sexual assault counsellor.  As a result of that conference, Mr Bailey asked the complainant to make a further statement to the police.  This did not relate to any request to withdraw the complaint.

5. Mr Bailey had a further conference with the complainant on 14 June 2002.  The complainant did not indicate in that conference her desire for the proceedings to be withdrawn.  Mr Bailey spoke to the complainant again on 17 June 2002 and 28 June 2002 in relation to the stay application.  At no time did the complainant indicate that her allegations against the appellant were false.

6. Another DPP solicitor, Stephen Monaro, was present at the conference with the complainant on 29 May 2002.  He said that at one point (he was unsure whether it was at this conference or on some other date), the complainant expressed a reluctance to give evidence due to the pressure exerted on her by family members.  The complainant never suggested that she had lied in her statement.

   Ground 1: The learned trial judge did not give adequate direction as to effect of “delay in complaint” upon the credit of the complainant.

7. The offences alleged ranged in time from 1984 until 1994 and the counts on which the appellant was convicted were alleged to have occurred in December 1986 and July 1990, yet the complainant made no complaint about them until she spoke to her mother and, according to her and her mother, also to her father on the telephone the night she left home in November 1994, 8 and 4 years later respectively.  Then it was not until 2001, 15 and 11 years after the alleged events that she made detailed statements to police and the appellant was arrested and charged.

8. In the meantime, there was evidence that she had made some complaint to police, apparently about sexual assault, in 1996 when she was referred to the Child Protection Investigation Team (CPIT) but apparently that unit did not pursue investigations for reasons which were not satisfactorily explained by the police witnesses.

9. In his Summing Up, the learned trial judge, after pointing out that sexual assaults are almost invariably conducted in private and in the absence of witnesses, went on to say that as there is no one who can support the allegations of the complainant, likewise an accused is unable to call witnesses to support his denials.  His Honour directed the jury to carefully examine the complainant’s evidence and treat it with considerable caution, and then on the subject of delay said (at SU 26):

   “You may wonder as to why she did not complain about these matters earlier than when she was sixteen years of age.  There may be good reasons why a young person who has been sexually assaulted hesitates to make a complaint.  Courts have discovered and you yourselves may understand that there are many reasons why a young person does not complain about sexual matters within a family.  Some reasons may be because of shame, because of the worry about the effects upon the family.  As she herself has said, her father said to her early on that “It was our little secret” and another time said, “Not to tell anyone because I was daddy’s little girl and we could get into trouble”.  Also there was evidence that she did not tell her grandmother because she knew that her grandmother had gone through the same thing with her own daughter.  So absence of complaint at the time does not mean the allegation is false”.

10. Then, after briefly referring to the fact that the evidence of the complainant was hearsay evidence, he went on:

    “So you must be careful in assessing the evidence, being evidence which goes back many years and includes evidence of when she was very young because it may have been accidentally distorted by the passage of time or by the effects of trauma, or on the other hand it still may support the fact that the incidents happened”.

11. After giving what was apparently intended as a Longman warning, and which I consider in more detail in dealing with Ground 2, he said (at SU 28):

    “So considering matters like that it is a matter for you to determine what weight should be given to the complainant’s evidence in the case, because you see the passage of time over so many years, it would be dangerous to convict on the complainant’s evidence alone, unless you are satisfied of its truth and accuracy having scrutinised all the evidence with much care, and considered the circumstances relevant to its evaluation and paid heed to this warning”.

12. At the conclusion of the Summing Up, trial counsel specifically asked the Judge for a “Kilby” direction to the effect that delay in complaint is a matter that can be taken into account in assessing the credibility of the complainant, but his Honour declined to give the further direction.

13. The reference to “Kilby” was a reference to Kilby v The Queen (1973) 129 CLR 460 where Barwick CJ (with whom McTiernan, Stephen and Mason JJ agreed) said at 465:

    “…It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity.  Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given”.

14. That was a case of rape of an adult where the issue at the trial was consent, and counsel for the accused had sought a direction that the failure to make a “fresh” complaint (i.e. at the earliest opportunity) was evidence of consent.  After a review of the authorities his Honour concluded at 472:

    “In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent.  It does tell against the consistency of the woman’s account and accordingly is clearly relevant to her credibility in that respect”.

15. The first passage set out above was quoted in Crofts v The Queen (1996) 186 CLR 427 at 447 and the principle expressly applied to cases involving long delay in complaint in child sexual assault cases, and it was pointed out that the Victorian equivalent of what was then s 405B, Crimes Act 1900 (the forerunner of s 294, formerly s 107, Criminal Procedure Act 1986) was designed to balance the effect of the Kilby direction, but if it was given without the Kilby direction, it only presented one side of the picture and was unfair to the accused, following what this Court had previously said in R v Davies (1985) 3 NSWLR 276.

16. More recently in R v BWT [2002] NSWCCA 60, 54 NSWLR 241 Wood CJ at CL at [32] tabulated a list of the “multitude of directions which fall to be considered by a trial judge faced with the task of summing up to a jury in a sexual assault case”. They include:

    (c) The Crofts direction (Crofts v The Queen (1996) CLR 427), if a jury is to be informed, in accordance with s 107 of the Criminal Procedure Act 1986, that a delay in complaint does not necessarily indicate that the allegation is false, and that there may be good reasons why a victim of sexual assault may hesitate in complaining about it, then it should also be informed that the absence of a complaint or a delay in the making of it may be taken into account in evaluating the evidence of the complainant, and in determining whether to believe him or her (but not in terms reviving the stereotyped view that complainants in sexual assault cases are unreliable or that delay is invariably a sign of the falsity of the complaint: Crofts (at 451)).

17. See also R v DJK (1997) 96 A Crim R 443 at 448, R v JTS (CCA – 18 September 1998), R v Johnston (1998) 45 NSWLR 362 at 368, R v Markuleski [2001] NSWCCA 290, 52 NSWLR 82 at [175].

18. In the present case, the learned trial judge gave the direction required by s 107 (now s 294) but did not give that direction in the context that delay in, or absence of, complaint may be taken into account in evaluating the evidence of the complainant, and in determining whether to believe her. The passage last quoted above from SU 28 went close to satisfying the requirement, but it was a general warning and was not specifically directed to delay in complaint being, of itself, a matter which could be taken into account in assessing the complainant’s credibility.

19. Whilst one can appreciate a trial judge overlooking a particular one of the “multitude” of directions now required in sexual assault cases, it is unfortunate that his Honour did not give the further direction when it was specifically requested.

20. Judges in such trials would be well advised to use the list of Wood CJ at CL in R v BWT at [32] as a check list in such cases, bearing in mind that it is preferable to give the directions, even if the judge considers one or more of them unnecessary in the particular case, rather than have convictions upset on appeal because of the failure to give them. In my view, ground 1 has been established.

Ground 2: The learned trial judge did not give adequate direction in relation to the disadvantages faced by the appellant by reason of delay in complaint or prosecution.

1. In Longman v The Queen (1989) 168 CLR 79 at 91 Brennan, Dawson and Toohey JJ said

   “But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning to be given to them….That factor was the applicant’s loss of those means of testing the complainant’s allegations which would have been open to him had there been no delay in prosecution.  Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant’s story or confirming the applicant’s denial.  After more than 20 years, that opportunity was gone and the applicant’s recollection of them could not be adequately tested.  The fairness of the trial had necessarily been impaired by the long delay….and it was imperative that a warning be given to the jury.  The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning was satisfied of its truth and accuracy”.

2. The effect of that decision has since been discussed in a number of cases both in the High Court e.g. Crampton v The Queen [2000] HCA 60, 206 CLR 161; Doggett v The Queen [2001] HCA 46, 208 CLR 343, and in a number of cases in this Court culminating in R v BWT [2002] NSWCCA 60, 54 NSWLR 241 at [32](b) where Wood CJ at CL described the Longman direction (as reinforced in Crampton and Doggett) as being:

   “that by reason of delay, it would be ”unsafe or dangerous” to convict on the uncorroborated evidence of the complainant alone, unless the jury scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy”.

3. In the same case, Sully J carried out an extensive review of the authorities and, with the agreement of Wood CJ at CL at [4] and Dowd J at [119] set out at [95] a detailed summary of the requirements of a Longman direction, which requirements are re-produced in the head note of the case at 54 NSWLR 241 as follows:

   (a) “The direction must be cast in the form of warning.  Any form of expression which is thought to have the character of a comment, or even a caution will not comply sufficiently with what is required by law;

   (b) That which is to be warned against is first…, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be therefore dangerous to convict on that evidence alone; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant’s evidence; and sixthly, that every stage of carrying out of that scrutiny of the complainant’s evidence must take serious account of the warning as to the dangers of conviction;

   (c) The form of the warning must bear the imprint of the court’s authority based on the court’s accumulated experience in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences.  The warning ought not to be framed in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors”.

4. In the present case, the delay from the first alleged offence to prosecution was from 1984 to 2001 (when he was first charged).  He was put on notice of the allegations in a general sense in the telephone call of November 1994, but in practical terms, he had no reason to believe he would be charged until 2001. 

1. His Honour (at SU 26) directed the jury that it was important “that you carefully examine the complainant’s version of events and treat it with considerable caution”.  He referred to the delay and pointed out that she may have reasons for not complaining earlier and that the absence of complaints did not mean that the allegations were false.  He went on (at SU 27):

   “So you must be careful in assessing the evidence, being evidence which goes back many years and includes evidence of when she was very young, because it may have been accidentally distorted by the passage of time or by the effects of trauma, or on the other hand it may still support the fact that the incidents happened…It is up to you to judge because I have said many times you have to consider the evidence carefully, but then I must warn you that to appreciate fully the effects of delay in complaining in a case like this on the ability of an accused to defend himself by testing prosecution evidence or adducing evidence in his own case to establish a reasonable doubt about his guilt.

   An accused can have difficulties remembering back many years.  Suddenly he is asked to recall back to the ninth birthday party, to what he was doing in the middle of another year, to what he what he was doing on the evenings when his wife went to bingo, as to where he was at those occasions and you have heard that he did have to travel a bit with his work.  So he has difficulties in countering the allegations in a case like this, so you have to consider that as well”.

2. His Honour concluded on this aspect by again referring to the passage of time over so many years and saying (at SU 28):

   “…It would be dangerous to convict on the complainant’s evidence alone, unless you are satisfied of its truth and accuracy having scrutinised all the evidence with much care, and considered the circumstances relevant to its evaluation and paid heed to this warning”.

3. It was submitted that these directions were insufficient because they did not draw attention specifically to the difficulties in explaining why there were only 8 candles on the cake said to be for the ninth birthday, and his inability to obtain records from his employer, the Department of Railways, as to whether he was away from home at the time of the complainant’s ninth birthday.  Similarly, in relation to count 5 it was submitted specific reference should have been made to the possibility that if the prosecution had been brought earlier he may have been able to prove an alibi by showing he was working away from home or by checking on what nights in July 1990 his wife was at Bingo.  It was thus submitted that the warning given lacked sufficient particularity as to how the appellant was disadvantaged in attempting to defend himself.

4. In my view, what his Honour said was sufficient.  He set out, in the form of a warning, the difficulties that the accused could suffer as a result of the delay, referring in particular to the effects of delay on the ability of an accused to defend himself by testing prosecution evidence or producing evidence in his own case to establish a reasonable doubt.  He specifically referred to the accused being asked to recall back to the ninth birthday party, what he was doing in the middle of another year (a reference to July 1990) to what he was doing on the evenings when his wife went to Bingo, and, where he was on those occasions, and noted that he did have to travel in connection with his work, and concluded “So he has difficulties in countering the allegations in a case like this, so you have to consider that as well”.

5. In fact, in relation to count 4, the accused agreed that he was present at the relevant birthday party, and that he took the photograph (whether it was the eight or ninth is immaterial for this purpose), and the issue was whether the events as alleged by the complainant occurred during that party.  In relation to count 5, the offence was alleged to have happened when the complainant and her brother slipped out at night to visit ND and he could check with the brother whether he and the complainant did at times visit ND at night. 

6. It was submitted that the delay in prosecution deprived the appellant of possibly raising alibi evidence by reference to the fact that he was frequently working away from home and records of such absences may have been available from the Department of Railways, but his Honour made specific reference in this context to the fact that the appellant “did have to travel a bit in his work”, which in the light of the addresses (see T 505-6, 543) the jury would have related to the impossibility of checking employment records to see if he was away from home at the relevant time.

7. The sixth and seventh counts were withdrawn and in relation to the eighth count on which the appellant was acquitted, there was no dispute that the family went to Broken Hill and stayed in a motel at the relevant time.  Indeed a photo was produced by the appellant of the family at Broken Hill (Ex 1).

8. Whilst it was incumbent on the trial judge to give the warning and explain how it could be relevant in the context of the case, it was not necessary to put to the jury every argument of potential difficulty for the appellant which could be put by counsel.  Most of them had already been put by counsel in his final address.

1. In my view the directions given by his Honour were sufficient and ground 2 is not made out.

Ground 3: The verdicts of the jury are unreasonable or otherwise unsafe and unsatisfactorily as being inconsistent.

1. The appellant was acquitted on counts 1, 2, 3 and 8 and convicted on counts 4 and 5, counts 6 and 7 being withdrawn from the jury for the reasons given earlier in this judgment.

2. It was therefore submitted in accordance with the principles laid down in Jones v The Queen (1997) 191 CLR 439 as explained in R v Markuleski [2001] NSWCCA 290, 52 NSWLR 82, that as the case against the appellant depended on the uncorroborated word of the complainant, denied by the appellant, associated with delay in complaint and lack of apparent difference in the quality of the complainant’s evidence relating to the different counts, the verdicts were inconsistent; and accordingly those of guilty were unsafe and unsatisfactory, or to use the more recent description, could not be supported having regard to the whole of the evidence. It was submitted that the acquittal of the appellant on some of the charges indicates that the jury must have had a doubt about the credibility of the complainant’s evidence on those counts, and therefore logically should have had a similar doubt in relation to the other counts. The jury were given the direction recommended in Markuleski at [188] - see SU 11.

3. There was corroboration of the complainant’s evidence in the letter written to the complainant by the appellant (Ex C) which clearly demonstrated a “guilty passion” by him for her; but having regard to the references in the letter to her association with SD, the letter could strictly only be regarded as corroboration for her evidence in relation to counts 6, 7 and 8 which were alleged to have occurred during 1994 whilst she was friendly with SD, whereas count 5 related to July 1990.

1. In relation to counts 1, 2, and 3, as I understand it, the appellant concedes that the not guilty verdicts on those counts can be explained on the basis that the events alleged therein allegedly took place when the complainant was only 6 years old and the jury may have taken the view that her evidence of childhood recollections may not have been sufficiently reliable to sustain findings of proof beyond reasonable doubt: R v DJK (1997) 96 A Crim R 443.

2. There is however, a further possible explanation for the acquittals on those counts unrelated to the complainant’s credibility as to the actual events alleged as opposed to the dates.  The complainant, in her evidence in chief said the events occurred in 1984, her younger sister’s first year at pre-school but conceded in cross-examination that in her statement to police, she indicated the sister was 3 or 4 years at the time.  In addition, the records of the pre-school for 1984 and 1985 were in evidence (Ex J).  It was therefore submitted in Defence Counsel’s final address that these matters could have occurred in 1985: T 517-520.

3. The jury were directed, erroneously: R v Stringer (2000) 116 A Crim R 198, Criminal Procedure Act 1986, s 16(1)(g) that the dates were material (SU 7.5, 9.5) and they may have had a doubt about the dates when the events alleged occurred without having any doubt concerning the complainant’s evidence of their occurrence.

4. It was further submitted that the verdict on count 4 must be regarded as unsafe and unsatisfactory because it was alleged to have occurred on the occasion of the slumber party held in December to celebrate her ninth birthday, when there were only eight candles on the cake shown in the photo  (Ex C) and that if she had the year wrong that affected her credibility generally.

5. However, subject to the legislative changes discussed in relation to ground 5, the date was immaterial, and both the complainant (at T 52) and the appellant (at T 372) accepted that the photo taken at the slumber party by the appellant was taken at her ninth birthday party, notwithstanding that there were only eight candles on the cake.  Even if she was mistaken as to the year, it did not, in my opinion, affect her credibility as to what occurred on that occasion. 

1. In relation to count 8, unlike the other counts, lack of consent by the complainant was an essential ingredient of the charge.  The evidence of the incident was very brief and was as follows (T59):

   Q. And did he say anything to you when you were in the bathroom?
   A. He asked me to give him sex.
   Q. And did you say anything in reply to him?
   A. I said “No”.
   Q. Did he then say anything to you?
   A. He said to give him a head job.
   Q. Did you then do anything?
   A. Yes I gave him a head job.
   Q. Now just again I’m sorry to have to do this to you, just explain what you mean by a head job?
   A. I put his penis in my mouth.
   Q. And can you remember how long that went on for?
   A. It went on for a little while and then he let me go back to bed.

2. She was not cross-examined on these details, and the evidence was consistent with, and indeed went no further than, the proposition that the appellant asked for full or conventional sex, the complainant said no, he then asked for oral sex and she gave it to him.  She did not say, and the evidence did not support an inference, that she did not consent to the oral sex.  The jury was given appropriate directions on consent and their attention was directed to this issue in relation to this count (at SU 10).

3. The jury’s verdict on count 8 was consistent with them not being satisfied of lack of consent without rejecting the credibility of the complainant.  The inconsistency between the acquittals on counts 1, 2, 3, and 8 and the conviction on counts 4 and 5 can therefore be explained without reference to the complainant’s credibility and in my view, they are not inconsistent, nor are they unsafe and unsatisfactorily on that or, in the case of count 5, any other ground.  Ground 3 is not made out.

Ground 4: The learned trial judge misdirected the jury as to the standard of proof.

1. At the conclusion of his Summing Up, his Honour said (SU 29):

   “Finally, at the end of your analysis of the evidence, is the only reasonable or credible explanation the guilt of the accused, or can there be another explanation, because if so, then you must have a doubt and the accused must be acquitted”.

2. It was submitted that this passage introduced an erroneous direction as to the standard of proof and indeed, suggested a standard of proof lower than “beyond reasonable doubt”.

3. It has been established for many years that, other than in exceptional circumstances, the phrase “beyond reasonable doubt” should not be embellished or explained: Green v The Queen (1971) 126 CLR 28 at 33; R v Reeves (1992) 29 NSWLR 109 at 116-117; R v Ho [2002] NSWCCA 147, 130 A Crim R 545; R v Li [2003] NSWCCA 386 at [71], although a direction as to how that standard of proof is to be applied is necessary, for example, in cases where the Crown case depends substantially on circumstantial evidence: Peacock v The King (1911) 13 CLR 619; Shepherd v The Queen (1991) 170 CLR 573 at 578.

4. His Honour gave appropriate directions as to the onus and standard of proof early in the Summing Up (SU 5).  He again referred to the necessity for the Crown to prove the elements of the charges beyond reasonable doubt (at SU 26), and almost immediately before the passage complained of, he said:

   “Your task is to determine whether the Crown has proved the essential elements of the charge against the accused beyond reasonable doubt”.

5. In my view, the jury could not have been in any way confused by the passage objected to.  That passage would have been an appropriate direction in a case substantially dependent on circumstantial evidence, which this was not; but its effect was to invite the jury to consider whether there was any view of the evidence which did not point to the guilt of the accused, and directed them that if there was, then they must have a doubt and the accused must be acquitted.  The direction was not unfavourable to the accused and could not have led the jury into error.

6. It was also submitted that the reference to a “doubt” rather than to a “reasonable doubt” introduced an erroneous concept unfavourable to the accused.  I disagree.  To tell the jury that if they had “a doubt” that is, any kind of doubt, instead of “a reasonable doubt” the accused must be acquitted was to give a direction more favourable to the accused than he was entitled to.

7. The Summing Up must be read as a whole and in the context of this Summing Up, I can see no basis on which the jury could have been misled as to the onus and standard of proof.  This ground is not made out.

   Ground 5: There is fresh evidence which gives rise to a miscarriage of justice.

8. The events giving rise to count 4 were alleged to have taken place on the occasion of the complainant’s ninth birthday party in December 1986 (T19).  I have already noted that in his evidence (at T 372) the appellant apparently accepted that the occasion when he took the photographs at the slumber party was the complainant’s ninth birthday although he denied that the sexual misconduct alleged by the complainant occurred.

9. On the hearing of the appeal, an application was made to admit fresh evidence in the form of an affidavit from the current de facto wife of the appellant to the effect that following the trial, she located other photos of another birthday party, which showed a cake containing nine candles, and the photos were produced.  The complainant also swore an affidavit saying in effect that the number of candles on the cake did not always coincide with the birthday being celebrated and she claimed that, notwithstanding the discovery of these additional photos which were obviously of a different birthday, that the events alleged in count 4 nevertheless occurred on the occasion of her ninth birthday. 

10. It was objected on behalf of the Crown that this evidence was not fresh evidence and that it could with reasonable diligence have been discovered prior to the trial.  The Court admitted the evidence conditionally with the view to ruling on it in due course, and both deponents were cross-examined.

11. It has now been established by cases such as R vBikic [2002] NSWCCA 227 and R v Sleiman [2003] NSWCCA 231 that, where the “fresh” evidence goes to a fundamental issue in the trial that is capable of indicating that there has been a miscarriage of justice or that the jury should have had a reasonable doubt, it will be admitted, notwithstanding that it could have been made available earlier with reasonable diligence. For the reasons which follow, I am satisfied that this evidence does go to a fundamental issue in the trial and should therefore be admitted.

12. The fresh photograph does show nine candles on the cake while Exhibit A at the trial only shows eight, and notwithstanding the explanation advanced by the complainant, I am satisfied that if the fresh evidence had been before the jury, it would not have been open to them that jury be satisfied beyond reasonable doubt that the offence alleged took place on the occasion of the complainant’s ninth birthday party in December 1986, as opposed to the occasion of her eight birthday party in December 1985. 

13. In normal circumstances, the date would be immaterial and it would not matter whether it was in December 1985 or December 1986. However, this charge was laid pursuant to s 66A of the Crimes Act 1900, which section was introduced by the Crimes (Child Assault) Amendment Act, no 149 of 1985 and commenced on 23 March 1986: Government Gazette 14 March 1986.  The court accordingly received Written Submissions from both parties on the effect of this discrepancy. 

14. If the offence occurred in December 1985, the offence charged did not exist in that form and there was no corresponding offence. As at December 1985, s 67 provided for carnal knowledge of a girl under 10 years but, although the definition of carnal knowledge was expanded as from June 1984: (See Act no 7 of 1984), it did not include oral intercourse, which was the misconduct alleged in count 4. It follows that as the jury could not be satisfied beyond reasonable doubt that the incident occurred in December 1986, they could not be satisfied that the offence charged under s 66A of the Crimes Act had been committed. 

15. We have been informed by the Crown that prior to March 1986, oral intercourse with a child under 10 years was charged as indecent assault of a child under 16 years: s 61E(1) as it then stood. There is power under s 7 of the Criminal Appeal Act 1912 for this Court to substitute the conviction on another charge, but that only applies to a charge on which the appellant could have been convicted on the indictment presented: Spies v The Queen [2000] HCA 43, 201 CLR 603. I am not satisfied that he could have been convicted of an indecent assault on this indictment, and the Crown did not submit otherwise. I am therefore satisfied that this ground has been established and the conviction on count 4 must be set aside.

    Ground 6a: The Defence was unduly restricted in cross-examining the complainant in relation to her statements to persons about not wanting to proceed with the prosecution.

16. I have already referred (at paragraphs 25 to 28 above) to the complainant’s enquiries to police and the Office of the Director of Public Prosecutions about having the charges against her father withdrawn.  She said that this was on account of pressure from other family members (particularly her brother and sister) and threats by the appellant reported to her by them that he would kill himself if the case proceeded.

17. It was put to the complainant (T 80) that she wanted to withdraw her complaint because the allegations were false, to which she replied “No”.

18. Defence Counsel then sought to question her on what she had allegedly said to her sister.  This line of questions was objected to on the ground that they were hearsay (T 82), which they were not; and his Honour indicated that if the questions were put as to what the complainant had said to other persons, the jury might take the questions as the answers, even if the proposition was denied (T 84).  This was also wrong and it only required a clear direction from the trial judge that propositions put to a witness and denied are no evidence of anything.

19. Ultimately (T 85), his Honour ruled that Defence Counsel could not put questions in the form of what was alleged to have been said by the complainant to specific third parties, although his Honour did indicate that if he wanted to call those other persons in the defence case to say what the complainant had told them, that would be allowed, but without first putting the allegations to the complainant.  His Honour indicated that if this happened, he may allow the complainant to be recalled, but that it was not automatic.  Various other questions along similar lines, such as whether she had told the police that she had been pressured to make the charges in the first place (T 92), were likewise rejected because they referred to what she had allegedly told specific third parties.

20. Thereafter, a series of questions were put to the complainant concerning what “her attitude was” in respect of dropping the case, rather than in the form of what she had said to other specific persons on that issue.

1. Various other questions along similar lines, such as whether she had told the police that she had been pressured to make the charges in the first place (T 92), were likewise rejected because they referred to what she had allegedly told specific third parties.

1. These rulings were wrong. The credibility of the complainant was in issue and any questions which could be relevant to her credit were therefore permissible, provided they did not offend s 41(b) of the Evidence Act 1995 as being oppressive, insulting etc.

2. Ultimately in the defence case, the sister gave evidence that the complainant indicated to her that she lied in her statement to police (T 455) and her brother gave evidence in which he denied exerting pressure on the complainant to withdraw the charges, and suggested that the police had advised the complainant that she could receive $180,000 if she proceeded with the charges (T 414, 425-6).  The appellant’s de facto wife gave evidence that the complainant had admitted lying about the allegations (T 434). 

3. What was not put to the complainant were the specific allegations that she had told her sister that she had lied in her statement to police, and that she had made a similar statement to the appellant’s de facto wife.  It appears that such questions, if asked, would in accordance with his other rulings have been disallowed by the trial judge, but the questions in that form, were never asked, and it was never put to the judge that it was desired to ask questions in that form, that is, not as to whether she wanted to withdraw the charges or why, but whether she had made a specific admission to particular third persons that her allegations or what she had told the police were lies.  Such questions would have gone not to credit but directly to the facts in issue, and would have been clearly admissible. 

4. The questions to which objection was taken, and which were wrongly rejected, were questions relating to the complainant’s desire to have the charges dropped and whether she was pressured into seeking to do so.  She agreed that she attempted to have the charges dropped but said it was because of the pressure put on her by her brother and sister, and because her father had apparently threatened to kill himself “and she did not want to live with the guilt”.  It was directly put to her that she wanted to drop the charges because the allegations were false, which she denied.  It seems to me that, notwithstanding the erroneous rulings, her desire to have the charges withdrawn was sufficiently and adequately ventilated.

5. In the end, the only effect of his Honour’s rulings was to deny to the complainant the opportunity to respond to the claim that she had admitted to her sister and the de facto partner that the allegations were lies.  This omission did not in any way disadvantage the appellant and the erroneous rulings did not lead to any miscarriage of justice.  Ground 6a is not made out.

Ground 6b: The Defence was entitled to a Jones and Dunkel type direction concerning the absence of Crown evidence as to statements by the complainant in March 2003 on the subject of not wanting to proceed with the prosecution.

1. The Defence cross-examined the complainant about conversations dealing with her not wanting to proceed with the prosecution, including conversations with persons in the Director’s office in the week prior to the trial (T 95-96) and submits that the absence of evidence in respect of those meetings entitled the appellant to a direction in accordance with Jones v Dunkel (1959) 101 CLR 298. I have already summarised the evidence relating to the meetings in the Director’s office. As I understand the submissions, they amount to the proposition that because Kathy Keene, a sexual assault counsellor, was present at one of the meetings and was not called, the jury should have been directed that it could draw the inference that her evidence would not have assisted the accused.

2. But a Jones v Dunkel direction should generally not be given in a criminal trial, not only against the accused, but also against the Crown: Dyers v The Queen [2002] HCA 45, 210 CLR 285 at [16], and it is apparent that the calling of the suggested witness would not have made any difference. The Crown had called the officers of the Director’s office who had been present at each of the meetings, and when it was put to them, each denied that the complainant had made any concession that the allegations were false. To call another witness from the same meetings in those circumstances would have been a complete waste of time. There was no justification for the direction sought, and ground 6b is not made out.

   Conclusions re conviction appeal

3. It follows that apart from the fresh evidence as to the date of the birthday party relating to count 4, the only ground that has been made good is ground 1, the failure to give the Kilby direction.  The conviction on count 4 must be set aside but it is necessary to consider whether the failure to give the Kilby direction has affected the outcome of the trial in respect of count 5.

1. Apart from the first 3 counts where there was in any event a dispute as to the dates, and the eighth count where the Crown, even on the complainant’s evidence, failed to negative consent, the jury by its verdicts on counts 4 and 5 indicated that it accepted the complainant’s evidence and, to the extent that it is possible, a reading of the transcript confirms that this would be so.  The fact that she may have had her eighth and ninth birthdays confused did not affect her overall credibility.  That the appellant had a guilty passion for the complainant and that he had acted improperly towards her, although not specifically related to count 5, was confirmed by his letter to her (Ex C) and by the complainant’s and her mother’s version of the telephone call by the complainant to her mother the night after she left home, the mother having him admitted to Bloomfield Hospital that night and the mother’s entries in her diary shortly afterwards (Ex F).

2. Notwithstanding the trial judge’s failure to give the Kilby direction, he gave a number of other warnings to the jury concerning the complainant’s evidence and there were a number of references to the delay in the complaint and the institution of the prosecution.  In particular, he directed them (SU 26) to carefully examine the complainant’s version of events and treat it with considerable caution, pointed out (SU 27) that evidence of complaint some time after the event was hearsay, and that they must be careful in assessing evidence which went back many years and included evidence of when she was very young.  He then warned them to appreciate fully the effects of delay on the ability of the appellant to defend himself and (SU 28) that it would be dangerous to convict on the complainant’s evidence alone, unless satisfied of its truth, having scrutinised all the evidence with much care.

3. In the light of these warnings and directions, I am satisfied that a further direction to the effect that they could take the delay in complaint into account in assessing the complainant’s credibility would have made no difference whatsoever.  On my own independent assessment of the evidence, I am satisfied that in respect of count 5, it was a strong Crown case, that the absence of the Kilby direction has not caused the appellant to lose a real chance of acquittal fairly open to him, and that there has been no substantial miscarriage of justice: Festa v The Queen [2001] HCA 72, 208 CLR 593. It follows that in accordance with the proviso to s 6(1) of the Criminal Appeal Act 1912, the appeal against the conviction on count 5 should be dismissed.

   Sentence

4. The appellant has also applied for leave to appeal against the sentences imposed on him following his conviction. The only relevant sentence now is the sentence of imprisonment for 8 years with a non-parole period of 6 years imposed on count 5, an offence against s 66C (2) of the Crimes Act, which at the time of the offence, carried a maximum penalty of 10 years imprisonment.  At the time of sentencing, this sentence was wholly subsumed in the sentence of 12 years imprisonment with a non-parole period of 9 years imposed on count 4. 

5. In sentencing the appellant, his Honour noted that he was aged 52 years, had been married with 3 children, one being the complainant in this case, that he worked with the Railways for 28 years until his retirement in about 1999 on compensation for work-related injuries.  He had separated with his wife in about 1996 after the complainant first raised the matters giving rise to the trial, had since formed new relationship, and had a young child aged four years.  He noted that he had a long period of stable of employment and there was evidence that he was a man of good character and a reliable employee who retired from his employment with back and leg problems.  He also noted that he had no criminal history but, consistently with his pleas of not guilty, there was no evidence of any contrition. 

6. It has been submitted that the sentence imposed on count 5 was outside the range of a proper sentencing discretion and that his Honour failed to have regard to the delay that had been occasioned in sentencing, the appellant’s otherwise good character and that the sentence would be served on protection.

7. On the question of delay in sentencing, we were referred to R v PLV [2001] NSWCCA 282, 51 NSWLR 736. In that case at [115] Smart AJ quoted from R v Dennis (CCA – 14 December 1992) to the effect that in sexual assault cases, the mere passage of time between the committing of the offences and the disclosure of the offences and apprehension of the offender is of little weight as a factor in mitigation of penalty.  Moreover otherwise good character is not as significant in cases of child sexual assault as in other cases because of the delay which often occurs before such offences are disclosed which enables the conduct to continue. 

8. His Honour did not specifically refer to the applicant serving his sentence although it had been drawn to his attention in submissions, but the fact that child sexual assault offenders normally serve their sentences on protection is well known and that this fact has already been built into the range of such offences: R v Durocher-Yvon [2003] NSWCCA 299 at [23].

9. His Honour regarded the offence as not necessarily an isolated incident, but confirmed that he was not punishing for offences not the subject of the jury’s verdict.  He properly referred to the seriousness of sexual assaults on young children, especially by those who stand in the position of trust, to the need for those who commit such offences to be punished and the need for general deterrence.  He described the offence encompassed in count 5 as “a blatant exploitation of the father…at the age of 12 blackmailing her into having penile/vaginal intercourse” and correctly referred to the appellant’s conduct as “a gross breach of trust”. 

10. Our attention was drawn to the statistics kept by the Judicial Commission of New South Wales which show that a sentence of 8 years for an offence under s 66C(2) was within, but very near the top of, the range of sentences imposed for such offence, but it must be borne in mind that his Honour was imposing this sentence concurrently with another longer sentence in respect of count 4. Having regard to all the circumstances, and notwithstanding the seriousness and abhorrence with which I view the appellant’s conduct, it seems to me that for a single offence from a person with no previous convictions, a sentence of 80 percent of the maximum penalty for the offence was excessive and in my view, should be reduced to imprisonment for a term of 6 years with a non-parole period of 4 ½ years.

Conclusion

1. I therefore propose the following orders:

   1) As to count 4

   a) Appeal allowed.
   b) Conviction and sentence quashed.
   c) Verdict of acquittal entered.

   2) As to count 5

   a) Appeal against conviction dismissed and conviction confirmed.
   b) Grant leave to appeal against sentence.
   c) Allow the appeal and quash the sentence.
   d) In lieu thereof, sentence the appellant to imprisonment for a term of 6 years to date from 3 April 2003.
   e) Fix a non-parole period of 4 ½ years.
   f) Note the earliest date on which the appellant will be eligible for release on parole is 2 October 2007.

2. Since writing the above, I have had the opportunity of reading in draft form the judgment of Howie J.  I respectfully agree with what he has written concerning the reasoning behind the Kilby direction in cases of child sexual assault, particularly where the alleged offender is a close family member.  However, like him, I regard myself bound by authority in this regard and like him, I have found the relevant ground of appeal established.  Our only point of difference in this regard is on the application of the proviso.

3. SIMPSON J: I have read in draft the judgments of Dunford J and Howie J. The sole point of difference – and it is of substance – between their Honours concerns the application of the proviso to s 6(1) of Criminal Appeal Act 1912 to the applicant’s conviction on the fifth count, ground 1 of the appeal having been sustained.

4. In relation to all other matters it is sufficient to note my agreement with the judgment of Dunford J.  I turn then to the application of the proviso.

5. Howie J would not apply the proviso, drawing a distinction between the direction given by the trial judge in relation to credibility (of the appellant) and reliability (of the complainant).  I appreciate the distinction, but have come to the view that, in the circumstances of this case, too much is read into what was said.  It is of some significance that, in the passage in Kilby v The Queen (1973) 129 CLR 460, from which the direction now in contention is drawn, Barwick CJ recognised that there may be “particular circumstances of the case” that would diminish or eliminate the requirement of the “general rule” that such a direction be given. To acknowledge (as I do) that, in this case, the direction ought to have been given is not inconsistent with applying the proviso where the direction was not given. The jury were not left uninstructed as to, or un-reminded of, the fact of lengthy delay in the making of complaints. They had heard the complainant cross-examined closely on her account of all events she alleged, resulting in only two convictions. They had heard the addresses of defence and Crown counsel, bringing home to them the issues of the complainant’s reliability and credibility.

6. To hold that, in the absence of a direction formulated precisely in accordance with Kilby, a miscarriage of justice has occurred is, in my opinion, to underestimate the intelligence and common sense of the jury.  Having regard to the evidence and the arguments they had heard, and the directions they had been given, the jury could safely be relied upon to appreciate that the failure earlier to complain was being put to them as a factor relevant to their assessment of whether or not to accept the evidence of the complainant.  The very fact that they then returned differential verdicts, explained in the judgment of Dunford J, highlights the careful and close attention they gave to the task with which they were entrusted.

7. I agree with Dunford J that no miscarriage of justice has been demonstrated, that the proviso should be applied, and the appeal in relation to count 5 dismissed.  I agree with the orders proposed by Dunford J.

8. HOWIE J:  I have had the very real benefit of considering in draft the judgment of the presiding judge.  It is unnecessary for me to repeat the facts, the grounds of appeal or the arguments relied upon by the applicant in support of the appeal. It is enough to indicate that I respectfully agree with all that Dunford J has written except as to the consequence of upholding Ground 1.  Unfortunately, I cannot agree that the proviso should be applied and I would allow the appeal and quash the convictions.

9. In this case the trial judge had the considerable advantage of a defence counsel who undertook his duty to assist the court conscientiously and appropriately raised at the conclusion of the summing up a number of matters that in his submission called for revised or further directions to the jury.  Unfortunately those requests were given what appears to me, with respect, to have been the most cursory consideration.

10. One of the requests made was that his Honour direct the jury in accordance with Kilby v The Queen (1973) 129 CLR 460 as to the adverse effect of delay in complaint on the credibility of the complainant. Notwithstanding that counsel referred to precisely what direction he sought and why, and even offered his Honour authority in support of the request, the trial judge expressed the view that he had adequately addressed the issue of the effect of delay on the fairness of the trial. With respect that was not the issue being raised by counsel.

11. I agree with Dunford J that the trial judge was in error in not giving the direction sought.

12. Although the Kilby direction was concerned with the inference that arose from the failure of a adult female to complain at the first reasonable opportunity, the direction has been applied to child complainants in Crofts v The Queen (1996) 186 CLR 427. With respect I share the misgivings expressed by Wood CJ at CL in R v Markuleski (2001) 52 NSWLR 82 at [244] as to the applicability of the Kilby direction to cases involved alleged sexual assault of young children, particularly by a parent.

13. I do not understand how any inference can legitimately be drawn about the veracity of a young child simply from the fact that the child does not complain about sexual misconduct at the first reasonable opportunity especially where that conduct is perpetrated by a close family member.  Certainly courts should not be encouraging such a line of reasoning on the basis of some supposed collective experience or understanding of the behaviour of children in such a situation.  Further, I believe that there is very good reason to doubt that the Kilby direction accords with a more modern, if not more enlightened, understanding of the impact of sexual assaults upon adult victims. In any event, there is in my view absolutely no justification for applying such a highly questionable view of the reasonable conduct of traumatised adult females to young children.  However, like the Chief Judge, I must respect the line of authority that holds that such a direction should generally be given regardless of the age of the complainant or his or her relationship with the accused.

14. In Crofts there were two errors identified in relation to the directions given by the trial judge with respect to the delay in complaint: firstly, the judge erred in directing the jury that it could not infer from the failure to complain that the offences “did not happen or that she was not bothered by them or that she consented”; secondly, as a result of that error and in the absence of a Kilby direction, there was a lack of balance in warning the jury that delay in complaint did not necessarily mean that the allegations were false.

15. However, it has been held that, where, as here, a warning is given under what is now s 294 of the Criminal Procedure Act (formerly s 107 of the Act and previously s 405B of the Crimes Act), a direction which tells the jury that it is entitled to take into account delay in complaint in assessing the complainant’s credibility should be given by way of balance; Markuleski at [175].

16. It seems to me to be somewhat ironic that a Kilby direction is required in order to redress the balance of a warning given in accordance with a statutory requirement such as is now found in s 294 of the Criminal Procedure Act.  The provision was no doubt enacted to moderate, or give balance to, the effect of the Kilby direction in favour of the Crown. See R v Davies (1985) 3 NSWLR 276 at 278A. Now the Kilby direction is seen as necessary to moderate, or give balance, to the effect of the warning.

17. Be that as it may, it is established as a general rule that both a Kilby direction and the statutory warning should be given in a case where there is a significant delay in complaint.  The request by defence counsel in the present case for a Kilby direction was completely justified and it is unfortunate that the Crown did not support it.  However, the failure to give such a direction is not fatal to a conviction where it did not result in an unfair trial; Markuleski at [178]. Generally speaking, the conviction will be sustained where the issue of the credibility of the complainant’s account has been adequately placed before the jury such that it must have been obvious that the delay in complaint was a relevant matter to that issue notwithstanding the failure to give the direction.

18. It should be noted that the statutory warning itself suggests that the failure to complain can, and generally will, adversely affect the complainant’s credibility.  The jury are to be given a warning that “the absence of complaint or delay in complaint does not necessarily indicate that the allegation that the offence committed is false”.  In other words the warning is premised upon the fact that absence of complaint, or delay in complaint, does suggest that the complaint is untrue and hence the warning is necessary to caution the jury against coming to such a conclusion as a matter of course and without considering possible explanations for the delay.  The problem in Crofts was that the trial judge in effect directed the jury that they could not infer anything about the credibility of the complaint from the fact of delay in complaint.

19. As the Chief Justice pointed out in Markuleski at [177], “[i]t may be reasonably obvious to most persons that delay in coming forward in the making of a complaint is required to be taken into account in assessing credibility”. Yet his Honour concluded that, in a case where there was long delay before complaint, a Kilby direction should be given.  But at the end of the day, the issue on appeal is whether the jury was sufficiently assisted in relation to the issue of the complainant’s credibility with respect to the specific allegations giving rise to the charges before the jury.

20. In Markuleski the Chief Justice and Wood CJ at CL were of the view that the trial miscarried because of the combined impact of the failure to give a Kilby direction taken in conjunction with an erroneous direction as to the jury’s approach to the issue of credibility in a case of multiple counts arising from the evidence of a single complainant.  Grove J found there was no error or defect in the summing up.  Simpson J was of the view that the summing up failed to adequately warn the jury of the consequences of long delay upon the defence in accordance with Crampton v The Queen (2000) 75 ALJR 133. The remaining member of the bench, Carruthers AJ agreed with the judgment of the Chief Justice.

21. It should be noted also that in both Davies and Markuleski counsel did not seek a Kilby direction at the conclusion of the summing up. Rule 4 was applied in Davies but not in Markuleski.

22. In the present case the relevant passage is set out in the judgment of Dunford J at [36]. I will not repeat it. It did not in fact replicate the statutory warning. His Honour gave examples of why a complainant may not complain about sexual matters within a family. Two of those examples had no evidentiary basis: shame and worry about the effects on the family. The complainant never expressed those as reason for her failure to complain. Trial judges should not volunteer explanations, particularly where the complainant has actually given reasons for not complaining: R v Williams (1999) 104 A Crim R 260 per Wood CJ at CL at [26]. This criticism is not a ground of appeal but it is one of the relevant matters in considering whether the directions on the failure to complain rendered the trial unfair.

23. Of more substance, in my view, is that at the end of his directions on the effect of the failure to complain, His Honour said to the jury, “So absence of complaint at the time does not mean that the allegation is false”.  That is not the same thing as telling the jury that “delay in complaining does not necessarily indicate that the allegation that the offence was committed is false”.  As I have already noted, the statutory warning assumes that delay in complaint may indicate that the allegation is false.  On one view at least, the direction given by the trial judge suggests that absence of complaint does not indicate that the allegation is false.  In context, the jury might well have understood that, because there may be reasons for the delay in complaint, examples of which were given, it could not be inferred from the delay that the allegation was untrue.

24. From my reading of the summing up, its tenor is not that the jury had to consider whether the complainant might have been untruthful, the real issue before the jury, but rather whether she might have been unreliable.  Directly after the passage in relation to the impact of delay in complaint to which I have referred above, his Honour gave a Longman warning. That passage is set out in the judgment of Dunford J at [52]. That warning was concerned with the unreliability of the evidence of the complainant because “it may have been accidentally distorted by the passage of time or by the effects of trauma or on the other hand it may still support the fact that the incidents happened”.

1. The only reference that I can find in the summing up to credibility, as distinct from reliability, is the following passage during his Honour’s directions as to separate verdicts (my emphasis):

   You must look at each charge independently and decide accordingly. Just because you may find the accused guilty of one charge it does not necessarily follow that he is guilty of any of the other charges unless you are satisfied of those other charges beyond reasonable doubt, but then if you find the accused not guilty of one charge, and it may be because of a consideration of credibility, then having found him credible on the evidence of one charge, you must consider that credibility on the other charges.

   That passage is not the subject of any complainant, although it is hardly likely to have helped the jury understand the onus of proof, but the point is that it refers to the credibility of the appellant and not the complainant.  That passage is followed immediately with this:

   Further if you have a reasonable doubt concerning the reliability of a complainant’s evidence on one or more counts, whether by reference to the complainant’s demeanour or for any other reason, then you must take that into account in assessing the reliability of her evidence in relation to the other counts.

2. The point I am seeking to make is that the whole of the summing up may be taken to have been concerned with the complainant’s reliability, yet the distinction between credibility and reliability is made in the passage quoted above by reference to the accused’s evidence, on the one hand, and the complainant’s evidence on the other.  In many cases the distinction would not be significant and reliability would be taken as encompassing credibility.  But in considering the effect of the failure to give a Kilby direction, which is concerned wholly with credibility, I believe that the distinction drawn, perhaps inadvertently, between the reliability of the complainant and the credibility of the applicant is of importance.

3. There was only one reference to the jury being satisfied as to the truth of the complaint which was in the recitation of the Longman warning as set out in paragraph 53 of the judgment of Dunford J.

4. I do not believe that the issue of the credibility of the complainant, as distinct from her reliability, was adequately left to the jury.  The trial was therefore unfair, and the appeal should be allowed.  I would quash the convictions but order a new trial in respect of the fifth count on the indictment.

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LAST UPDATED:               01/07/2004