R v Owen

[1999] NSWCCA 133

CITATION:	R v Owen [1999] NSWCCA 133
FILE NUMBER(S):	CCA 60524/98
HEARING DATE(S):	1 March 1999
JUDGMENT DATE:	4 June 1999
PARTIES :	Christopher William Owen (Appellant) Regina (Respondent)
JUDGMENT OF:	Grove J at 1; Dunford J at 2; Greg James J at 44

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0105
LOWER COURT JUDICIAL OFFICER:	Pain DCJ

COUNSEL:	GJL Scragg (Appellant) LMB Lamprati (Respondent/Crown)
SOLICITORS:	Leo & Morrison (Appellant) SE O'Connor (Respondent/Crown)
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - Whether verdicts unreasonable &/or not supported by the evidence - CRIMINAL LAW - Multiple counts - Whether verdicts inconsistent - Apparent error as to dates of count on which appellant acquitted - CRIMINAL LAW - Acts of indecency & sexual assault.
ACTS CITED:	Crimes Act 1900, ss 81A, 81 Criminal Appeal Act 1912, s 6(1)
CASES CITED:	Fleming v The Queen (1998) 158 ALR 379. R v Giam [1999] NSWCCA 53. M v The Queen (1994) 181 CLR 487. Penney v The Queen (1998) 155 ALR 605. R v Murray (1987) 11 NSWLR 12. Jones v Dunkel (1959) 101 CLR 298. R v Buckland [1977] 2 NSWLR 452. Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557.
DECISION:	Appeal dismissed, convictions affirmed.

IN THE COURT OF
CRIMINAL APPEAL

60524/98

GROVE J
DUNFORD J
GREG JAMES J

4 JUNE 1999

REGINA v CHRISTOPHER WILLIAM OWEN

JUDGMENT

1 GROVE J: I agree with Dunford J.

IN THE COURT OF
CRIMINAL APPEAL

60524/98

GROVE J
DUNFORD J
GREG JAMES J

4 JUNE 1999

R v Christopher William OWEN

JUDGMENT

2 DUNFORD J. The appellant, Christopher William Owen, appeals against his conviction before Pain ADCJ in the District Court at Sydney on 22 June 1998 on one count of procuring the complainant to commit an act of indecency on him contrary to s 81A Crimes Act 1900 and two counts of assaulting the complainant and committing an act of indecency upon him contrary to s 81. He was at the same time acquitted of a further charge of assaulting the complainant and committing an act of indecency upon him. Following his conviction, he was on 21 August 1998 sentenced by his Honour to three concurrent terms of imprisonment for twelve months to be served by way of periodic detention.
3 The appellant is the uncle of the complainant, being married to the sister of the complainant's father. The complainant who was born on 23 June 1967 attended Primary School in Wollongong and High School in Sydney. Whilst at High School he resided in Sydney with his grandparents during the week and spent the weekends with his parents in Wollongong. He left school after completing Year 10 and obtaining his School Certificate in 1983.
4 He said that there was an occasion when he stayed overnight with the appellant at the latter's house at 20 Hillcrest Street, Wollongong at a time when the appellant's wife was in Wollongong Hospital for the birth of their second child, Lara. The complainant said he arrived there about 5 or 6 pm and remained until the following morning. He said the appellant indicated to him that he would be sleeping in the master bedroom with him and after the appellant had a shower and returned to the bedroom with a towel wrapped around his waist, he told the complainant (who was then twelve or thirteen) to get undressed, lie down and relax, which he did, after which the appellant produced a vibrator or massager which the complainant described as having a round rubbing part and a square body. The complainant was lying face down on the bed and the appellant used the vibrator on the complainant's back and then all over his body including his penis and scrotum. After a few minutes the complainant became erect and the appellant performed fellatio on him for about five to ten minutes until he climaxed (count 2). The appellant then began to masturbate and asked the complainant to use the vibrator on him, which he did (count 1), and soon afterwards the appellant ejaculated. He said the appellant performed fellatio on him three or four other times during the evening. The following morning the appellant told the complainant that if anybody asked, he was to say that he slept in another room, not the master bedroom.
5 The third count was based on the complainant's evidence of an occasion when he worked at the appellant's chemical factory known as Nitro Tech in Kenny Street, Wollongong for a week doing work experience whilst he was in either Year 7 or 8 at school, although he had visited these premises on about ten to twenty other occasions. He said the appellant had his office in the building and he the complainant had been in that office five or six times. He recalled the first occasion when he was in the appellant's office and the appellant said to him "show us your muscles, take your shirt off". The complainant complied and the appellant squeezed his muscles and said he was developing well. He then took out a blue sander without the sandpaper on it, it had a square pattern and an electrical cord, and he placed it on the complainant's genitals. The complainant said he did not see from where the appellant got the sander, but it was turned on and vibrating when placed on his genitals. At first the complainant had his pants on but later the pants were removed or pulled down. He said his penis became erect and the appellant knelt down or sat on a chair and performed fellatio on him until he climaxed. The appellant then put some eye drops in his own eyes and he told the complainant that they could not tell anyone about what they were doing as others would not understand. He later drove the complainant home in his motor vehicle and during the trip home spoke to the complainant about the "Hippocratic oath" that doctors and lawyers take. The complainant said that the appellant's office door at Nitro Tech was locked during this incident with a bolt and persons could not see in from outside the office as the windows to the street were tinted a bronze or gold colour. He said another similar incident (which is not the subject of a charge) took place on another occasion in the Nitro Tech office.
6 In relation to count 4, on which the appellant was acquitted, the complainant said that the appellant later rented a house at 21 Hillcrest Street opposite where he lived, to store chemicals and run the business, and whilst there invited the complainant to do some work for him at this house putting lids on bottles. He said this was in 1982 when he was in Year 9 at school. It took the complainant about half an hour to do this work with the bottles, during which time the appellant went away but later returned and performed fellatio on him for about five to ten minutes.
7 The complainant first told his mother about these incidents and then his father in mid 1991. His first statement to the police was dated 2 September 1991 and he made a later statement on 6 May 1996. In the September 1991 statement he said that the incident that gave rise to count 3 was the first incident, but in the May 1996 statement he said that the incident giving rise to counts 1 and 2 at the appellant's home was the first incident. In relation to count 3 he told the DPP in conference on 21 May 1998 that the sander had been used on only one occasion, but in evidence before the jury said that it had been used on two occasions and he agreed that his memory had changed during the course of his giving evidence. No explanation was offered for the delay in complaint.
8 Grant Farrawell (born 30 October 1967) gave evidence that during his mid teenage years he lived at 100 Kenny Street, Wollongong almost opposite Nitro Tech, and for about six to twelve months prior to leaving school in Year 10 he worked there on a part-time basis, mainly acid cleaning. He said he went into the appellant's office quite a few times, and on one occasion the appellant told him to sit down on the floor and relax and then produced a sander which was vibrating and began moving it over his body and then on to his groin area next to his testicles. The appellant asked Farrawell how he felt but the latter did not answer and immediately after the incident he ceased working at Nitro Tech. He said he did not know the complainant and had not heard his name used around the factory premises. In his first statement to police he did not make any reference to a sander applied to his person but later had a conference with the Crown's solicitor and made another statement in which he did refer to the sander being used. He could not remember the colour of the sander nor whether it was plugged into a power point.
9 Peter Yeaman (also born 1967) said that after he left school aged about fifteen he worked full-time as a trainee laboratory assistant for about three or four years at Nitro Tech, starting there about 1982 or 1983. He said some school boys worked there part-time and one of these was Grant Farrawell. Initially he said that he did not know the complainant and did not recall hearing his name around the company but later in his evidence he said he could recall seeing the complainant on a couple of occasions visiting the plant. He said he saw a blue Makita brand sander in the appellant's office on one occasion in a cupboard behind the desk, it was electrical with a cord attached, and he had seen it plugged in, and he used it once to sand the front doors leading into the building.
10 The complainant's father (Robert Cowin) gave evidence. He initially said that the complainant had stayed overnight at the appellant's house possibly on three occasions, but later said he could not remember when they were. He said that on 12 April 1980 he attended a chiropractic conference in Sydney and after the conference he and his wife remained in Sydney and went to the theatre whilst his children stayed with relatives in Wollongong overnight. He could not recall which relatives the children stayed with. He said that the High School that the complainant attended in Sydney in 1980 maintained school holidays in accordance with those applicable at State schools and in 1980 the holidays ran from 4 to 14 of April, but later in cross-examination he agreed that in 1980 a three term school system applied and the holidays for State schools were in May and not April. There was other evidence (exhibit 1) which established that in 1980 those holidays were from 2 to 19 May and the Easter long weekend was 4 to 7 April.
11 Detective Senior Constable Pearson said that on 19 April 1996 she went to the home of the appellant with Detective Beck. She put to him that there had been an allegation that he had assaulted his nephew. He replied that it was not true. She then said "Clague is alleging that you have sexually assaulted him at your business premises and that during the assault you have used a sander or a vibrator which you placed on his genitals." He said "No, that's not true". Detective Pearson said "Do you own a tool such as this?" He said "No". There was further conversation in which inter alia he denied any fellatio and after that the further statement dated 6 May 1996 was taken from the complainant, and the appellant was arrested and charged in relation to these matters on 24 March 1997. She was not cross-examined.
12 The appellant gave evidence denying each of the allegations. He said his first child Daniel was born on 11 August 1978 and his second child Lara on 10 April 1980. He said that about one week prior to Lara's birth, his wife was admitted to hospital, she remained there until ten days after the birth and that during this time he and Daniel lived with his mother-in-law. He visited his wife in hospital each day and can recall the complainant and his father visiting the hospital on one occasion. He said the complainant did not stay overnight at his home during this time and has never stayed overnight at any other time, that there were only two bedrooms in his house at Hillcrest Street, one containing a double bed and basinet, and the other room at the time contained Daniel's cot. He said that in 1980 neither he nor his wife owned a piece of equipment which could be described or used as a massager.
13 He said that in 1980 and 1981 Nitro Tech carried on its business at 107 Kenny Street, Wollongong and his office contained a desk and a credenza, a filing cabinet, a timber locker and a chair and that the only power point in the room was located behind the credenza. He said to access that power point in 1980 or 1981 it would have been necessary to move the extremely heavy credenza and he produced a photograph showing the office furniture at the relevant time (exhibit 4). He said that he did not keep any electrical equipment in his office such as a sander. He admitted that he had used eye drops on a regular basis since an industrial accident at the age of eighteen. He agreed that there were occasions in 1980 and 1981 when the complainant would come to the factory, Peter Yeaman worked at Nitro Tech, but did not sand the front doors as he had stated in his evidence, and the only person who had sanded the doors became very ill due to the type of wood used and consequently there was to be no further sanding of the wood at the factory. He said he had never owned a blue sander whilst at Nitro Tech. He said that Grant Farrawell was not a full-time employee of Nitro Tech and at no time had he put any type of sander on his person nor had he asked him to lie down in his office. He denied there was at any time any bolt type lock on the inside of the door to his office.
14 In 1982 the business ran into financial difficulties and in December 1983 it relocated to the appellant's house for a few weeks and then in January 1984 to 21 Hillcrest Street, virtually opposite his house for about twelve months, and then later moved to Corrimal. He denied assaulting the complainant at any time and said that on one occasion he had a disagreement with the complainant about the latter's way of life, saying that he was disappointed at the way he was conducting himself so far as living on the dole and not working and using the dole money to purchase drugs, to which the complainant had replied that if the Government was stupid enough to pay him the dole then he was stupid enough to buy drugs. In cross-examination he placed this conversation at about 1985 although he said he had similar disagreements with the complainant over a period of a couple of years.
15 Graham Riley was the owner of the premises at 21 Hillcrest Street and by reference to diary notes and other records he was able to say that Nitro Tech did not take up occupation of those premises until 9 January 1984, and that it remained there until the end of that year.
16 The appellant's wife, Janet Owen, gave evidence that when she went to hospital, Daniel and the appellant stayed at her mother's house. She could remember the complainant and his father Robert Cowin visiting her in hospital. She said the appellant did not have a massager / vibrator and neither she nor her husband used one during the course of their marriage. She said the complainant did visit their house but never stayed overnight in 1980 or 1981. She recalled there was only one power point in the appellant's office at Kenny Street and she did not see any electrical equipment in the office.
17 The written submissions made on behalf of the appellant, as refined in oral argument, may be summarised as follows: -

1. That the verdicts of guilty on counts 1 to 3 were inconsistent with the acquittal on count 4, as there was no reasonable basis on which the counts could have been distinguished, and doubts entertained by the jury about the complainant's credibility on count 4 damaged his credibility in relation to counts 1 to 3.
2. The verdicts of guilty on counts 1 to 3 were unreasonable and/or not supported by the evidence for a number of reasons, including:
(a) There was a substantial delay in the making of the first complaint.
(b) There was a substantial delay between the time the complaint was first made to police and the time when the prosecution was commenced.
(c) The evidence in relation to the first two counts was uncorroborated.
(d) There were very significant inconsistencies in the evidence of the complainant and the evidence of the witnesses called to support him to some extent.
(e) There was an incomplete investigation and the matter was not properly prosecuted.
3. His Honour's directions in relation to the failure to call a number of witnesses were deficient.

18 In my view the verdicts of guilty on counts 1, 2 and 3 should not be regarded as inconsistent with the verdict of acquittal on count 4 and do not indicate any compromise on the part of the jury, nor does the acquittal on count 4 indicate that the jury did not accept the complainant as a reliable and credible witness. The different verdicts are readily explicable on the basis of the dates. Counts 1, 2 and 3 were laid between 1 January 1980 and 31 December 1981, whilst count 4 was laid between 1 January 1982 and 31 December 1982. However, there was evidence, not only from the appellant but also from the landlord, Mr Riley, which established that it was not until about January 1994 that the appellant's business, Nitro Tech, relocated to the premises at 21 Hillcrest Street where the complainant alleged the offence the subject of count 4 took place. In his Summing Up the learned trial judge told the jury that they needed to be satisfied in respect of each of the counts in the indictment that it "took place within the period delineated by the count" and later, following a request by counsel for the appellant, his Honour reminded the jury that "the time and place founding each count is of course one of the elements of which you have to be satisfied beyond reasonable doubt". The appellant's acquittal on count 4 is therefore readily explicable on the basis that, although the jury believed that the event had happened as described by the complainant, they were not satisfied that it occurred within the period laid in the indictment. To put it another way, the fact that the jury had a reasonable doubt as to the relevant time period would not necessarily lead to the conclusion that they must have doubted the complainant's word about what happened to him at that address, and so it does not follow that the acquittal in respect of count 4 necessitates the conclusion that the jury was not satisfied that the complainant was otherwise telling the truth, even if he got the date and time period wrong. The first submission accordingly fails.
19 The High Court has now made it clear that the correct ground for challenging the verdict of a jury is not that it is "unsafe and unsatisfactory" but that it is "unreasonable and/or not supported by the evidence: Fleming v The Queen (1998) 158 ALR 379. This ground may also be considered in conjunction with the other grounds in s 6(1) Criminal Appeal Act 1912 for their cumulative effect, including whether "on any other ground whatsoever there has been a miscarriage of justice:" R v Giam [1999] NSWCCA 53 at [31]-[43]. The test for determining whether a verdict is unreasonable and/or cannot be supported by the evidence remains as set out in M v The Queen (1994) 181 CLR 487 at 492-3, namely whether on this Court's own independent assessment of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant, bearing in mind that the jury is the primary tribunal charged with the determination of issues of fact and has had the advantage of seeing and hearing the evidence being given, but that if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead this Court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted then the verdict should be set aside.
20 In relation to the various matters specified by the appellant's counsel in his oral submissions, I have already indicated why I consider the verdict of not guilty on count 4 explicable by reference to the date and as not necessarily indicating a general rejection of the complainant as a credible witness
21 The matter of the failure of the complainant to complain for many years, the way the jury were entitled to take that into account in assessing his credit and the difficulties which the delay in complaining and in the subsequent prosecution could produce for the appellant in defending the charges were all explained to the jury in the Summing Up and presumably also in Counsel's final address, and no doubt the jury took them into account.
22 The complainant said he told his parents about these incidents in August 1991 and he made his first statement to police on 2 September 1991. The police apparently did not speak to the appellant about the matter until 19 April 1996, following which a second statement was taken from the complainant on 6 May 1996, and the appellant was subsequently arrested and charged on 24 March 1997. These delays, particularly from September 1991 until April 1996 were totally unexplained, but the appellant was represented at the trial, as on appeal, by able and experienced counsel who, presumably for good reason, chose not to explore the reasons for such delay. Indeed he did not ask Detective Pearson any questions in cross-examination and did not require the other police officer (Detective Beck) to be called at all. This delay or any suggested incomplete or incompetent police investigation was simply not an issue at all at the trial. There may have been a good reason for the delay from 1991 to 1996; the police were never invited to say what it was. Moreover, there is no general proposition that a complete and unexceptional investigation of an alleged crime is a necessary element of the trial process or of a fair trial: Penney v The Queen (1998) 155 ALR 605 at 609.
23 It is correct to say that the evidence of the complainant in relation to the first two counts was not corroborated, but the jury was warned by the trial judge in accordance with R v Murray (1987) 11 NSWLR 12 at 19 of the necessity for them to scrutinise his evidence with great care, and that they could only convict if satisfied beyond reasonable doubt of his truthfulness.
24 I turn now to consider what were suggested to be inconsistencies and deficiencies in the complainant's evidence of the type identified in M v The Queen, which it was alleged render the verdicts of guilty on the first three counts "unreasonable"; but before doing so I would point out that most of such alleged inconsistencies and deficiencies arise not from the complainant's evidence alone, but from that evidence when compared with the evidence of the appellant and his wife.
25 Moreover, a reading of the complainant's evidence, without the jury's advantage of seeing and hearing it being given, conveys to me a firm impression of an apparently honest witness endeavouring to tell the truth about events occurring some seventeen to eighteen years earlier. For example, there were a number of details on which he was not sure, whereas if the evidence was fabricated, one would have expected a definite answer; eg who pulled his pants down during the incident the subject of count 2, and whether the appellant was sitting on a chair or kneeling down when performing fellatio, and he said he believed the office door was locked but did not remember seeing the appellant lock it.
26 As to counts 1 and 2, the complainant said that the incident occurred one evening whilst the appellant's wife was in hospital for the birth of Lara when he stayed overnight at the appellant's home. This placed the period between about 3 and 20 April 1980, but the appellant said that whilst his wife was in hospital he stayed each night with his son Daniel at the home of his mother-in-law (since deceased) at 2 Robinson Street, Wollongong and not at his own home. Both he and his wife denied that the complainant had ever spent a night at their home, although, of course, the wife could have no direct knowledge of who stayed where on any particular night whilst she was in hospital. Other evidence established that this was not a school holiday period so it could only have been at a weekend, but photographs were produced (exhibits 2 and 3) said to be taken on Sunday 13 April 1980 showing in one photo the complainant at the hospital with Lara and her mother, and in the other the complainant's father and another family member likewise at the hospital. It was submitted this evidence indicated that the complainant could not have stayed with the appellant that weekend because he and his father were both at the hospital on the Sunday.
27 However, the complainant's father gave evidence that on Saturday 12 April 1980 he attended a chiropractic conference in Sydney and he and his wife stayed that evening in Sydney after attending a show, and that the complainant was not with them, but stayed overnight with relatives in Wollongong (he could not recall with whom). In my view this evidence can easily be reconciled and does not indicate any inconsistency in the complainant's evidence. It is consistent with the complainant staying at the appellant's house overnight on 12-13 April whilst his mother and father spent the evening in Sydney and then being at the hospital and having his photo taken the following day, probably taken there either by his parents after they returned from Sydney, or possibly by the appellant, on the Sunday morning.
28 Although the complainant claimed in examination-in-chief that the incidents referred to in counts 1 and 2 took place following the birth of Lara and repeated this in cross-examination it was submitted that later in cross-examination he accepted that he was confused as to whether it occurred then or following the birth of Daniel (11 August 1978), thereby placing the incident outside the time laid in the indictment, and thus entitling him to an acquittal on this ground alone. But this later evidence was in response to a number of leading questions and only amounted, at most, to a suggestion that he was confused. The jury was entitled, in my view, to accept his evidence that it was following the birth of Lara consistent as it was with his father's evidence of the latter staying in Sydney with his wife over the relevant Saturday night.
29 The complainant said that the appellant told him to say, if asked where he slept, that he slept in the other room and both the appellant and his wife gave evidence that there was at the time of Lara's birth no bed in the other room but only a cot for Daniel; and it was submitted that the appellant knowing this would not have made the comment attributed to him, and so for the complainant to say he did, indicates fabrication, or at least must give rise to a reasonable doubt about him staying at the appellant's property at the relevant time. I do not agree. The alleged comment was somewhat peripheral, the only evidence there was no bed in the other room came from the appellant and his wife, and it was for the jury to assess; and the absence of another bed would not necessarily mean that the complainant could not have slept on a spare mattress or cushions in the other room.
30 Reference was also made to the fact that in his September 1991 statement the complainant described this incident at the appellant's home as the "third" incident, whereas in his later statement in May 1996 and in his evidence he described it as the "first" incident, and in cross-examination readily conceded that he had got them mixed up; this does not indicate dishonesty or unreliability, but is consistent with an honest witness getting the order of events mixed up many years later.
31 Finally, in relation to counts 1 and 2, both the appellant and his wife gave evidence that they had never owned or used a vibrator, but this conflicted with the complainant's evidence that the appellant used one on the occasion in question, and it was ultimately a question for the jury to resolve.
32 These various matters identified by counsel for the appellant, either individually or together, do not lead me to the conclusion that the verdicts of guilty on counts 1 and 2 were unreasonable or cannot be supported.
33 In relation to count 3, the Crown case was considerably stronger because it was supported by the tendency / coincidence evidence of Grant Farrawell and Peter Yeaman. The former described a similar incident where the appellant had applied a sander (minus the sanding attachment) to his body, moving it to his groin area and touching his testicles with it. He was unable to say whether the sander was battery operated or connected by line to an electricity power point and said that he never actually saw it being plugged in. He was unable to say what colour it was and he said that that was because he was too scared to look. He ceased the part-time work he was doing at Nitro Tech immediately after the incident.
34 Mr Yeaman said that from about 1982 or 1983 he had been working at Nitro Tech for about three to four years and whilst he had been there he had seen a blue "Makita" brand sander in a cupboard behind the desk in the appellant's office, that it had a cord and he had seen it plugged in, although he couldn't say where the power point in the office was. He said he himself had used it once to sand the front doors leading into the building. Not only did Mr Farrawell's evidence provide tendency evidence, but the evidence of both of them contradicted the evidence of the appellant that he had never had a sander in the office.
35 The appellant and his wife also said there was only one power point in the office and that it was behind the credenza which was difficult to move to obtain access. This was a matter ventilated before the jury and was in my view entirely a matter for the jury. He also denied that Mr Yeaman had ever sanded the front doors with a sander supplied by the office but it was open to the jury to accept Mr Yeaman who apparently had no interest in the case, and this involved rejecting the evidence of the appellant on that point at least.
36 The appellant also relied on evidence given by himself and his wife that there was no bolt on the door of the office but this once again was a conflict in the evidence to be resolved by the jury. I can see no inconsistencies or inadequacies in the evidence relating to count 3 which would render the verdict on that count unreasonable or not supported by the evidence.
37 Finally complaint is made about the judge's directions in relation to witnesses which the appellant claims ought to have been called by the Crown and it was submitted that such directions were not in accordance with the principles laid down in Jones v Dunkel (1959) 101 CLR 298. In the course of summarising the defendant's counsel's submissions the learned trial judge said:
"In relation to the overall Crown case he submitted to you that there was some matters on which other family members might have commented but that no other family members other than the complainant and his father had been called and that you were therefore entitled to infer that they would not have assisted the Crown case."

and after completing his summary of counsel's arguments, he went on:
"In so far as Mr Scragg made reference to the absence of any other family members who, he suggested, might have been called to provide information about the relevant periods, well members of the jury, in so far as those witnesses you find that further witnesses should have been called and, having regard to the passage of time it may be difficult to envisage how such witnesses recollections might have assisted, but in any event, in so far you might find that - and there has been no such witnesses identified, save of course the deceased grandmother - in so far as they were absent then you would be entitled to, in so far as you found there were any, to assume that their evidence would not have assisted the Crown. That perhaps is only another roundabout way of saying, members of the jury, the onus lies on the Crown and if there are deficiencies in the Crown evidence, however it arises, then they are deficiencies which affect the Crown case."

38 Later, in the absence of the jury, Mr Scragg, said that he had identified another witness, namely the sister of the appellant, (apparently named Maria) who lived next door to the grandmother in Robinson Street, and it was suggested that she might have been able to give evidence as to whether the complainant had ever stayed at the appellant's house whilst the appellant's wife was in hospital for the birth of Lara. He did not seek to identify any other witnesses who might have been called. His Honour declined to "revisit" the issue.
39 Mr Scragg then sought a further direction based on Jones v Dunkel that in the absence of this other evidence which the jury might have expected from other witnesses to be called, they could more readily accept the appellant's evidence that the complainant was never over at his home. Once again his Honour declined to give any further direction.
40 On the hearing of the appeal it was submitted that other witnesses who should have been called in the Crown case were the persons who took the photographs (exhibits A and B) purporting to show a bed in the second room of the complainant's house to prove when the photographs were taken, and in relation to count 3 a person named William Brass, because in cross-examination it was put to the appellant that in 1984 he had lent a sander to such person and it was submitted that Mr Brass (whom it is said was in court at the time) should have been called on this point, and also on the number of power points there were in the appellant's office.
41 In my view it was not appropriate for his Honour to identify any further witnesses who should have been called by the Crown. Although the appellant's wife said that her sister who lived next door to her mother gave her mother support when looking after her grandchildren, there was no basis for believing that eighteen years later she would remember, if she was ever aware, that one of the grandchildren had stayed with her brother-in-law at his house on a particular occasion or on any occasion, the photographs (exhibits A and B) were admitted by consent when they were tendered at the trial and no questions were asked about their authenticity or when or by whom they had been taken, and likewise the suggestion that Mr Brass should have been called was raised for the first time on the appeal. Finally, if anyone was to call the sister living next door to the grandmother, and she did have any recollection one way or another as to whether the complainant had ever stayed at the appellant's house overnight, one might reasonably have expected it to have been the defence to whom she was more closely related. In my opinion she came within the second of the categories of expected witnesses referred to by Street CJ in R v Buckland [1977] 2 NSWLR 452 at 457, i.e. a witness whom the accused would normally have been expected to call in his defence against the Crown case.
42 The final submission was that the direction given was incomplete and should have gone on to say that in the unexplained absence of these expected witnesses the jury could more readily accept the appellant's evidence that the complainant never stayed overnight at his home. As I am not satisfied that it could reasonably be inferred that the sister next door would have had any recollection, and that it was for the appellant, if anyone, rather than the Crown to call her, the point is rather academic, but I note that the further direction sought is based on the judgment of Menzies J in Jones v Dunkel at 312, and not on the more commonly referred to judgment of Windeyer J in that case at 321, as explained by Street J, as he then was, in Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 581-2. That does not mean it may not be appropriate in some cases to give the further direction about more readily accepting the evidence of the other party; but in R v Buckland at 458-9, Street CJ in the context of criminal trials quoted extensively from what he had said in Dilosa including:
"The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to call that witness."

This, on my understanding, is the standard direction given to juries (both civil and criminal) in this state and it is not necessary generally for the trial judge to go any further, although he did go further in this case by saying that:
"If there are deficiencies in the Crown evidence, however it arises, then they are deficiencies which affect the Crown case."
In my opinion it was not necessary for his Honour to say any more on this point than he did, and this last submission accordingly fails.

43 For these reasons I would dismiss the appeal and affirm the convictions.

IN THE COURT OF
CRIMINAL APPEAL

No. 60524 of 1998

GROVE, J.
DUNFORD, J.
GREG JAMES, J.

4 JUNE 1999

REGINA v. CHRISTOPHER WILLIAM OWEN

JUDGMENT

44 GREG JAMES J. I agree with Dunford, J.