R v PGM

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: PGM v Regina [2006] NSWCCA 310

FILE NUMBER(S):
2006/1392

HEARING DATE(S): 20 September 2006

DECISION DATE: 06/10/2006

PARTIES:
PGM, Regina

JUDGMENT OF: McClellan CJ at CL Barr J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1116

LOWER COURT JUDICIAL OFFICER: Marien SC, DCJ

COUNSEL:
D Baran
D Frearson SC

SOLICITORS:
Dorrough Smart Solicitors
S Kavanagh

CATCHWORDS:
Criminal law - sexual intercourse with a person under the age of ten years - indecent assault of a person under the age of ten years - whether open to jury to be satisfied beyond reasonable doubt of guilt of appellant; Criminal law - whether trial counsel incompetent; Criminal law - whether evidence correctly admitted; Criminal law - whether accused raised good character - whether discretion to allow Crown to adduce evidence in rebuttal of good character miscarried.

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995

DECISION:
Allow the appeal and set aside the convictions. Order a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1392
McCLELLAN CJ AT CL
BARR J
BUDDIN J
6 OCTOBER 2006

PGM v REGINA

Judgment

McCLELLAN CJ at CL: I agree with Barr J. As his Honour observes the trial judge rejected the tender of the many sexual images in the appellant’s computer confining the Crown to eliciting evidence of the one image relevant to count 5. This decision reflected a conclusion that evidence of the other images was so prejudicial that the trial would miscarry.
Accordingly, in circumstances where evidence of the existence of the many other images has been admitted in the erroneous belief that the appellant had raised his character, this Court is left with no alternative but to order a new trial. The appellant has not been fairly tried according to law.
BARR J: The appellant, to whom I shall refer as PGM, appeals against convictions entered up in the District Court and seeks leave to appeal against the resulting sentences. All the offences were said to have been sexual in nature and to have been committed between 1 October 2003 and 5 May 2004 on a child, whom I shall call C, at the appellant’s house in a suburb of Sydney. The counts may be summarised as follows -
Counts 1, 2 and 6: sexual intercourse with a person under the age of ten years;
Counts 4, 5 and 7: assault with an act of indecency on a person under the age of ten years.
Counts 1, 2 and 6 were laid under s66A Crimes Act, which provides for a maximum sentence of imprisonment for twenty-five years. The remaining counts were laid under s61M(2) Crimes Act, which provides for a maximum sentence of imprisonment for ten years.
The sentences were as follows -
Count 7: imprisonment for a fixed term of four years and six months commencing on 10 June 2005 and expiring on 9 December 2009;
Counts 4 and 5: imprisonment for a fixed term of five years commencing on 10 June 2006 and expiring on 9 June 2011;
Counts 1 and 2: imprisonment for a fixed term of ten years commencing on 10 June 2007 and expiring on 9 June 2017; and
Count 6: imprisonment for a non-parole period of fourteen years commencing on 10 June 2007 and expiring on 9 June 2021 with a balance of sentence of six years expiring on 9 June 2027.
The effective sentence was therefore a non-parole period of sixteen years and a balance of term, during which the appellant would be eligible for release on parole, of six years, twenty-two years altogether.
The complainant gave her evidence by videorecording, which was played to the jury. She lived with her parents and brothers and sisters in a house in the same street as the appellant. She used to visit the house from time to time. The first count was based upon a description she gave of events that took place after she went to the appellant’s house one afternoon. The appellant was there and asked her to help him with some gardening. The appellant’s wife was out shopping. They worked in the garden and then went inside the house. They watched a video of a popular musical show on videotape. The complainant was seated on the lounge. The appellant pulled down her pants and told her to open her legs. He licked her vagina and said that it felt really nice. The complainant pulled up her jeans and as she was leaving the house the appellant told her to keep it a secret. The appellant’s wife came home as she was leaving.
The second count was based upon the complainant’s account of a visit to the house on another afternoon. She knocked at the door and the appellant let her in. She played on the stairs. The appellant asked her if she would like to do some gardening and she said that she would. During that work she injured her foot and it bled. They went inside. She had ice cream. They went upstairs to the appellant’s bedroom and he laid her on the bed. He told her to open her legs. He pulled down her pants and sucked her vagina.
The fourth count concerned an occasion at the appellant’s house when the appellant put the complainant on the bed with her pants removed. He put cream on his penis and white stuff came squirting out. It hit her “thing”, which she explained was her vagina. On this evidence the Crown originally charged an attempt at sexual intercourse (the third count) but the jury were directed to acquit and the indecent assault charge remained.
The fifth count depended upon an occasion when the complainant and the appellant were in his computer room. On the screen was the image of a girl who looked about ten years old. She was naked and her legs were apart. The appellant said that it looked very nice. Things went on from there. The complainant was seated on a chair with her legs open and her pants down. The appellant moved his penis onto her vagina.
The sixth count was based on the complainant’s evidence that on an occasion she was seated somewhere in the appellant’s house. He pulled her legs open, pulled down her pants, put cream on his penis and placed his penis in her vagina.
The seventh count was based on an occasion when the appellant touched the complainant’s vagina with his hand, underneath her clothing.
It is convenient to deal first with the third and fourth grounds of appeal, which may be summarised as follows. The third ground complains that his Honour erred in admitting into evidence a description of a pornographic image found in or in association with the appellant’s computer. The fourth ground asserts that his Honour erred in finding that the appellant had raised good character and alternatively in exercising his discretion so as to permit the Crown to adduce evidence to rebut evidence of good character.
When they learned what the complainant was saying about having seen the image on the appellant’s computer police obtained and executed a search warrant at his house. Under the power of the warrant they seized the appellant’s computer and associated equipment. On examination the computer or compact discs associated with it or both proved capable of displaying pornographic images. This Court was told that there were between five hundred and one thousand such images. The Crown served on the defence a tendency notice under the provisions of s97 Evidence Act, referring to the material as follows -
Images of pornographic material taken from Apple Mac computer and CD ROMs and Zip disks – seized during search of …
In his judgment rejecting the tender his Honour discussed the images in these words -
I have, for the purpose of this application, viewed two CD ROMs which I have marked as exhibit C on the voir dire. More correctly I should say that I have viewed a large proportion of that material although not all of it. There are contained on the two CD ROMs which comprise exhibit C (which I am told contains the images which were taken from the hard drive of the computer and the CD ROMs which were in the study in the accused’s home) being images of prepubescent girls either alone or with other prepubescent children either performing sexual acts upon themselves or on the other children. There are also images of prepubescent girls involved in sexual acts with adult males and females.
There is also other material which can be described as images of adolescent and adult females involved in various sexual activities. The Crown contends that that material is also sought to be tendered under the tendency notice.
It is an understatement to say that the material that I viewed is deeply disturbing including, as it does, adult women and adult men involved in sexual activities with young prepubescent girls and boys. The sexual activities include penetration of a child’s vagina by the penis of an adult male or a prepubescent boy and the involvement of, as I say, adult women in these activities. There is also depicted, for example, on a video an adult male performing cunnilingus on what appears to be a prepubescent girl.
His Honour drew attention to the complainant’s description of the image she had seen on the occasion giving rise to the fifth count and observed that there was “a large number” of images fitting her description but that, understandably, police had not asked the complainant to look at any image to see whether she could identify it. (She was only seven years old when spoken to by the police). Accordingly, it was impossible to point to any particular image as the one the complainant saw. His Honour continued -
In my view, in the circumstances of this case, and given those difficulties it would be appropriate for the Crown to lead evidence from a police officer involved in the seizure of the hard drive and the CD ROMs from the study at the accused’s home to give evidence that an image, and I emphasise an image, that is one image, was found on the hard drive or the CD ROMs found in the accused’s study matching the description of the girl described by the complainant.
In accordance with his Honour’s judgment, the Crown adduced this evidence from a police officer -
Q Now, following the obtaining of the hard drive and the CD ROMs from (the accused’s) study, was an image found on the hard drive or the CD ROMs in the accused’s study … of a ten year old girl, or apparently a ten year old girl, naked with her legs apart?
A Yes.
That was the evidence said on appeal to have been erroneously admitted.
The appellant gave evidence and there was this exchange in cross-examination -
Q … prior to your arrest in May 2004 did you have on your computer an image of a naked ten year old girl with her legs apart, either on your computer or, alternatively, on one of your CD ROMs?
A Yes sir.
Q And was there an occasion prior to your arrest when you were looking at that image?
A No sir.
…
Q Have you ever looked at that image?
A I have seen that image sir, yes.
Q On one occasion or more than one occasion?
A One occasion sir.
Q When was that?
A When the CD ROM opened with an automatic response on the hard drive.
Q And since that occasion have you looked at it?
A No sir.
Q Why not?
A I don’t like that sort of image on my computer.
Q What do you mean by that answer?
A Exactly what I said sir, I think I was very clear, I don’t like that sort of image on my computer sir.
At the close of that day the Crown Prosecutor stated his intention to seek leave to cross-examine the appellant on the last two answers I have recorded. After some discussion about what the appellant had actually said, defence counsel said this -
I am sure it wasn’t an intentional (response)…
On the following day the Crown Prosecutor sought leave to cross-examine on the answers. There was this exchange -
I make my application really on two bases, one, that I should be entitled to cross-examine as to character because I say that by reason of his answers he’s raised the issue of character and suggested that he’s a person of good character and would regard this sort of thing as absolutely abhorrent. Secondly I say that in any event I should be entitled to cross-examine him as to credit, and the basis that I say that is this, that on the evidence, the jury must have the impression that there was an image on the computer, an image, and the accused has not really raised the issue of credit, but by his answers he has reason for --
HIS HONOUR: Sorry you mean character?
CROWN PROSECUTOR: Character, I’m sorry your Honour, but by his answers he has reinforced the proposition that there was a single image. What he’s really done is gone beyond the proposition that there was this image on the computer. He has suggested by his answers that this was an only image, only. It’s a subtle, but very important distinction. Your Honour allowed evidence of an image. Evidence of an image doesn’t of itself suggest that there was – that’s the only image, but the accused’s evidence goes way beyond that. He suggests that this was the only image of this nature on the computer.
A tape recording of the appellant’s evidence was played. Defence counsel took objection, saying this -
…my starting point … is… that the accused himself hasn’t raised his character, his good character in a particular kind. The evidence that was adduced by (the appellant) was a result of the questioning by the Crown.
During the discussion that followed there was this exchange -
DEFENCE COUNSEL: The question was “Why not,” which invited the answer --
HIS HONOUR: Well sorry when you say “Why not,” the question is in other words “Why not haven’t you seen it since the one time you say you saw it when you tried to delete it? Why haven’t you seen it?”
DEFENCE COUNSEL: That’s right, and it was clearly open on the interpretation of the person sitting in the witness box he was being asked “Why haven’t you seen it on more than one occasion,” and the only answer he could give, confronted with that interpretation of it, was a tendency answer.
…
… was being led into the area by the Crown’s questions. He was trying to answer them as best as he could, but he certainly doesn’t have the skills of a lawyer to pick up the subtleties particularly the distinction between tendency and credit and what’s relevant in the circumstances.
Defence counsel asserted that the question which brought forth the answers upon which the Crown relied was designed to elicit the response which came forward and to undermine the judgment his Honour had given earlier in the trial of rejecting the tender of tendency evidence.
His Honour gave judgment, concluding that the intention of the appellant in responding to the two “why?” questions was -
To convey that he was in that particular respect a person of good character, that is that he would not look at such an image and that he is a person who would not look at such an image.
His Honour went on to consider the exercise of the discretion thus raised and decided to allow the Crown to put the questions it was proposing.
The Crown proceeded in accordance with leave granted and there were these questions and answers in further cross-examination -
Q The computer which you had purchased in perhaps April 2003 was downstairs?
A That’s correct in the study sir.
Q And that was the computer on which there was this image of this ten year old naked girl with her legs apart?
A Yes sir.
Q And downstairs in that study there were also a number of CD ROMs weren’t there?
A Yes sir.
Q And on one or more of those CD ROMs for instance there was an image of yourself on I think a motor bike?
A I wouldn’t know if there was more than one sir.
Q You don’t --
A More than one image sir or more than one CD ROM?
Q Well I will make myself clear. Do you agree that there is an image on a CD ROM of you on a motor bike?
A I know on the hard drive there is sir but I’m not sure about the CD ROM.
Q You see on your computer there were a large number of images of prepubescent girls engaged in sexual activity with adult males weren’t there?
A That’s correct sir.
Q What do you understand to be a prepubescent girl?
A Someone before the age of ten years of age sir.
Q Have you any explanation as to how there came to be a large number of such images on your computer?
A I have sir.
Q What explanation have you?
A The operating system that was running on the Apple Mac, on the G4, was – been used as a server sir and the fact that there was no firewall or password on that computer allowed other people to access that computer without my knowledge, and either place or take down or remove from for their use images on that hard drive sir.
…
Q You see you agree don’t you that these were not merely images of prepubescent girls, these images on your computer of such girls engaged in sexual activity with adult males? You agree with that don’t you?
A Sir I’ve not seen all the images on my computer that you’re relating to, so I cannot answer fully yes to that question.
Q Well how many of those images have you seen?
A Very few sir.
Q Well tell us the images you have seen?
A I have seen images of just the children ones, not the adult ones sir, just the children ones --
Q You can take it from me that any question I ask you is restricted to this, images of prepubescent girls, of naked prepubescent girls engaged in sexual activity with adult males, do you understand what I am saying?
A Yes sir.
Q I am restricting my questions only to images of prepubescent girls, naked girls, engaged in activity with adult males?
A Yes sir.
Q Now do you agree first of all that there are numerous such images on your computer?
A No sir.
Q On what basis do you give that last answer?
A I’ve seen no more than two images of what you have just described to me sir.
…
Q … are you suggesting, you maybe able to answer this yes or no, that there are on your computer only two images of naked prepubescent girls engaged in sexual activity with adult males?
A No sir.
Q What do you mean by that?
A One of the images you asked me to describe, which the judge had asked me not to tell you about, had about five to six photographs of that particular incident and I can recall that clearly sir, because I reported that to the authorities in America, because I reckoned they could recognise the person’s face on that photograph, the male that was in that photograph.
…
Q Well on your computer how many images approximately were there of adult males engaged in sexual activity with naked prepubescent girls?
A They’re the only two I can recall sir, that one series and there was another of a single one, I can’t recall the details of that one. There was only those two lots sir.
Q When you say two lots what do you mean by that?
A There was that one group of four or five and there was one on its own.
…
Q And on that compact disk, in one of the folders, there were between 500 and 1,000 child pornographic images and/or videos weren’t there?
A I have no idea sir.
…
Q Had you ever looked at that compact disk?
A Not to the best of my knowledge sir, no.
Q How did you come to acquire it?
A I didn’t acquire it sir.
Q Well it was in your house?
A Yes sir.
Q Well can you explain how it was in your house?
A Yes sir I can. I burnt a copy off my Fax program onto a blank CD ROM.
Q So do you say as at the time of your arrest you were quite unaware what was on that CD?
A I was sir, yes.
Q And it was only some time after your arrest that you became aware of what was on that CD?
A Mr Johnson did make me aware of it. To this day I still don’t know what’s on that CD ROM sir.
Q And are you shocked to think that you had, in your possession, a CD with between 500 and 1,000 child pornographic images, and/or videos?
A I’d be dismayed sir if that’s in fact true.
The Crown application made and granted was limited to the cross-examination of the appellant, though it was in law also an application to adduce evidence in reply. Even so, the Crown did not seek leave to call further evidence to prove the detailed contents of the records as put to and either denied or not admitted by the accused. The result was that although the jury knew exactly what the Crown was asserting, there was for the most part no evidence of it.
As to the third ground of appeal, counsel for the appellant submitted first that evidence of the existence of an image like that described by the complainant was irrelevant and therefore inadmissible. It was submitted that defence counsel ought to have objected to the tender. (Counsel went so far as to submit that the complainant’s evidence of what she saw ought to have been objected to, though I think that the submission was ultimately not pressed).

In my view it was permissible for the Crown to show that the appellant had available to him at a relevant time an image corresponding to that described by the complainant because it made it more probable in that respect that the complainant was telling the truth. So the conditions of s55 Evidence Act were met. In my view defence counsel’s acknowledgement that the evidence was admissible was rightly made.
In this Court it was submitted in the alternative that if admissible, the evidence of an available image on the computer brought with it such a risk of unfair prejudice that it ought to have been excluded. Counsel described it as of an obscene and abhorrent nature, a description with which I agree. Counsel asserted that since the possession of pornographic material was not the subject matter of any of the charges and since the evidence was by nature inflammatory, the need for a fair trial for the appellant required its rejection.
It must be said that the need for a fair trial is not one that attaches itself exclusively to accused persons. It would in my view have been quite unjust if the Crown had been prevented from adducing evidence independent of the complainant proving the existence or probable existence of something she claimed to have seen at the time of one of the offences and apparently associated with it. No doubt the image would have been accepted by the jury as obscene and abhorrent, even though it was not shown to them, though scarcely more so than the description of the primary acts the accused was said to have committed. The evidence was not inflammatory. It was highly probative. It brought with it no great risk of unfair prejudice. It was rightly admitted, and in a manner which gave proper protection to the accused upon his Honour’s insistence that the reference be to a single image and that no actual image be shown to the jury. I would reject the third ground of appeal.
As to the fourth ground, the question for this Court is whether, by the answers pointed to, the appellant intended to raise his good character.
Sections 110 and 112 of the Evidence Act are as follows -
110   Evidence about character of accused persons
(1)    The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2)    If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3)    If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.
Note. The Commonwealth Act includes an additional subsection relating to unsworn statements.
…
112   Leave required to cross-examine about character of accused or co-accused
A defendant is not to be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave.
The raising of good character requires a conscious decision on the part of the accused. It has been held that such evidence must be intentionally and deliberately adduced for the purpose of raising character before the Crown may be granted leave to cross-examine: Gabriel v R (1997) 76 FCR 279. See also R v Bartle & Others [2003] NSWCCA 329. So good character is not raised, for example, where a witness volunteers the evidence: R v Redd [1923] 1 KB 104 at 106.
The field into which the Crown Prosecutor ventured when challenging the appellant’s evidence about the “image” was one which presented some difficulty. As the questioner and the witness knew, the jury had been told that there was at the time of search “an image” that could be derived from the computer and its equipment. As both also knew, although that statement was true, it was only part of the truth. There was, as his Honour said, a large number of images which fitted the relevant description. The Crown Prosecutor was asking about “an image” but could not be more precise. He must have meant the image the accused said that he had seen, but did not know which image that might have been. In responding to the questions, the appellant might have had in mind a particular image or might have been referring to any image matching the description given by the complainant or the Crown Prosecutor. The difficulty stemmed from the introductory questions -
Did you have on you computer an image of a ten year old girl with her legs apart?
…
Have you ever looked at that image? and
…
Since that occasion have you ever looked at it?
By the time he was asked these questions the appellant had been giving evidence for a whole day, almost exclusively in cross-examination. His answers had to be seen in context. The relevant part of each answer to the “why” question was the expression “that sort of image”. Did the appellant, by using that form of words, mean all images and any image answering the description, as his Honour took the appellant to mean, or did he mean the one image he said he had looked at which bore the description, which was “that sort of image”? His answers seem capable of bearing either meaning.
Secondly, the appellant was a witness sworn to tell the truth and obliged to answer the questions he was asked. If his answers were true, he could not properly be said to have given them deliberately, intending thereby to raise his good character. In giving judgment, his Honour observed that the appellant could have answered the questions in a way which would not suggest anything about his good character or whether he was the sort of person who would look at such an image or not, though his Honour did not postulate any answer. During the debate which followed the Crown’s application his Honour had asked counsel -
Well, why didn’t he just say “because I haven’t”. The answer could simply have been “why haven’t you look at that image?” “I haven’t”.
With respect, such an answer would have been tantamount to a refusal to answer. Although it seems possible that the appellant might have given a responsive and truthful answer which did not appear to raise good character, it is not immediately apparent what it might have been.
I do not think that his Honour was entitled to conclude that by his answers the appellant intended to say that he was not the sort of person who looked at images generally meeting the relevant description. What the appellant said, considered in context, seems as consistent with a narrower intention, namely that he did not look again at whatever image he had seen, meeting the description, because he did not like it on his computer.
I would in any event have upheld the appellant’s alternative submission that his Honour erred in exercising the discretion so as to permit the Crown in cross-examining to adduce evidence of the other images. There are two reasons for this. First, the evidence of a large number of images of adults having sexual relations with prepubescent girls was likely to overwhelm the jury and divert them from their task, notwithstanding strong directions about the way in which the evidence could be used. The evidence had the capacity to shock, even though it had no direct relevance to the matters in issue. As his Honour observed in rejecting the evidence when it was tendered as tendency evidence, its probative value was not significant and it brought with it a risk of high prejudice which exceeded that value.
In my view a miscarriage of justice was occasioned by the events that followed. I note that the Crown Prosecutor asked a large number of questions postulating the detail of the contents of the tapes which never actually became evidence because the appellant either denied or did not admit the postulated particulars. That was material the jury were not entitled to use, but it must have been highly prejudicial to the appellant because it must have been apparent that the Crown Prosecutor was asking his questions based upon firm instructions from somebody who had looked at the images. Although the jury were appropriately told about the limited use they could make of evidence of any image and of any lie they considered the accused had told about any image, they were not told that the only images they could find existed were those conceded by the appellant to have existed. On the contrary, his Honour referred in summing-up to the Crown’s cross-examination of the appellant about “a large number of such images being found on the computer and on a CD ROM” (SU15) and to “the evidence of the other images and on the evidence conceded by the accused that there were a large number of such similar images …” (SU19).
I would uphold the fourth ground of appeal.
The first ground of appeal asserts that the verdicts were unreasonable and unsupportable by the evidence. The question for this Court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant: M v The Queen (1994) 181 CLR 487.
The evidence of the appellant’s commission of the offences came solely from the complainant. The appellant took the oath and denied committing them. The first submission in this Court was that the complainant’s evidence was “entirely uncorroborated in respect of each of the matters constituting the essential elements of each offence”. Save for evidence adduced to prove the complainant’s age, that submission may be accepted. There was no evidence independent of the complainant that the appellant had carried out any act constituting any element of any of the offences. That is not to say that the complainant was without support, however, for her description of the image she saw on the computer was rendered powerful by independent evidence of the existence at the time of just such an image.
The complainant gave her evidence by videotape recorded soon after she made her complaint and, at trial, by remote closed circuit television. I have viewed the videotape and have read the transcript of her evidence before the jury. She appears to be an intelligent child able readily to understand what she is asked. Although there is a limit to the weight that can be placed on demeanour, I am satisfied that the complainant showed no outward sign of having been coached. She was questioned on the videotape for more than two hours. She was not led. She was alert and responsive. I detected an occasional reluctance in the first place to recount the details of the appellant’s several criminal acts – on one or two occasions she began by saying that nothing had happened – but once she began to recount them she was lucid. Her evidence was sufficient, if accepted, to prove the elements of the offences, other than her age.
Counsel for the appellant drew this Court’s attention to a great many features of the complainant’s evidence, so many in fact that I do not propose to mention them all. It was pointed out that the complainant knew the names of the sexual parts of men and women, that she had participated in classroom activities for directions about the sexual molestation of children and knew what the term “sexual abuse” meant. The implication was that the complainant knew enough to be able to fabricate her allegations. Then patent or apparent inconsistencies in her account were pointed to – her varying accounts of how many times a particular thing happened or precisely where and when, and exactly how particular things happened. For example, a distinction was made between her description of the appellant’s licking and sucking. Although she had been taught to tell her mother if she was sexually abused, she did not do so. It was pointed out that although on the videotape the complainant said only that the appellant’s penis tickled her, she said for the first time at trial, during cross-examination, that it hurt. Sketches that she drew during her interview were criticised for their anatomical inaccuracy. All these matters were said to be indicators of unreliability.
Counsel relied on three features in particular. The first was that whereas the complainant’s evidence was that the appellant had ejaculated onto a certain piece of furniture, the evidence was that swabs taken later on failed to reveal the presence of DNA. That circumstance was said to render “untenable” the complainant’s account of the ejaculation. This submission should be rejected. The negative result of a test made some indeterminable time, perhaps months, after the event seems unsurprising and equally consistent with the event’s having happened and not having happened.
The second of these features was medical evidence of the condition of the complainant’s hymen. Dr Johnson gave evidence. He had examined the complainant. There were these questions and answers -
Q And on the physical examination you noted the hymen was normal?
A Yes.
Q And you noted that it was a crescentic hymen. What’s the significance of any of that?
A Yep. What we mean by that is that a hymen is not a perfect barrier. If you imagine a clock-face. Then it may be incomplete between say the 10 o’clock and the 2 o’clock position or the 9 o’clock and the 3 o’clock position, so it becomes a crescentic shape, that of a half-moon to an upside half-moon, so and that’s – that was indeed how the hymen looked with (the complainant).
Q So what’s the significance of all that?
A That means it’s a normal looking hymen. I mean there’s many shapes that a hymen can take but the crescentic hymen as I’ve just got there is the most common description that you would find. Really what I suppose I am saying is that hymen’s vary in their shape and they vary in their elasticity according to age. As you enter puberty, the effects of oestrogen allow a hymen to become more elastic. But even in younger girls, particularly the age of seven, you would have increasing amounts of oestrogen, so the hymen becomes more elastic. So in essence, it means that you can’t just, just by looking at somebody, by inspecting that area, you can’t tell whether or not there’s been sexual contact or not or any sort of contact.
Q Is a normal hymen, in particular a crescentic hymen consistent with penetration?
A It can be, because after penetration, usually in the first seventy-two hours is the best time, the optimal time to perform an examination. You’d be looking for redness or laceration or even semen but after that time, these changes will have gone and very rarely you may see a scar but the hymen can just look as it always, the normal shape.
It seems to me that these findings, like the absence of DNA, were not inconsistent with penetration.
The third matter relied on is of more substance. During the videotaped interview the complainant was describing the appellant’s use of cream and there were these questions and answers –
Q933 Have you, how do you know that? Have you seen kids using that type of cream?
A Yeah.
Q934 Yeah. When or ---
A Um, well, grownups, I’ve seen the boy, well, (the appellant) used to have this child.
Q935 Ah hmm.
A He was um, 18.
Q936 Yeah.
A And he would put it on his son.
Q937 Sorry, he’d put it on?
A His son.
Q938 Whereabouts on his body?
A Um, here’s the boy.
Q939 Yeah. Where are we, the boy.
A There.
Q940 There.
A It, he’d put it, like um, there.
Q941 What part of the body’s that?
A Um, penis.
Q942 So ---
A He’d put it on his penis and it would squirt out on (the appellant), ‘cause he would, he wouldn’t know that this was happening.
Q943 Who?
A He would, he would come up to him and squirt it there.
Q944 And you’re, what part of the body is that?
A Um, the bum.
Q945 Right.
A So (the appellant) ---
Q946 So did you see this happen?
A Um, I was, I was in the um, kitchen and I just saw um, his son running along, like with his pants zipper, zipper down and I saw all this cream on, on (the appellant).
Q947 O.K.
A Oh, I mean on the son, ‘cause (the appellant) did it.
Q948 How do you know (the appellant) did it?
A Um, ‘cause I saw the boy have some on his, still on his bum.
Q949 Ah hmm.
A Yeah, and ---
Q950 Who, what’s his name?
A Um, I don’t know, he never told me. And then he got in a car crash and died.
Q951 O.K. So this boy died, did he?
A Yeah. He died when he was 26, 26.
Q952 How long ago was that?
A That was, he was 18 when this happened, and that was pretty long ago, 15 years ago.
Q953 What, when he died?
A Yeah. About then.
Q954 O.K. So sorry, I’m just getting a little confused. Did you see this boy with cream on his bottom?
A Yes.
Q955 You saw it?
A Yes.
Q956 You were in, in the kitchen when you saw it?
A Yes.
Q957 How long ago was that when you saw it?
A Twelve years ago.
Q958 Twelve years ago.
A Oh, no.
Q959 No. Because how old are you?
A 7.
Q960 Yeah.
A About two.
Q961 About two years ago?
A Two, three.
Q962 Yeah.
A I think it might have been three.
Q963 Did that really happen, (the complainant)?
A Yes.
Q964 Yeah. Because remember we talked about ---
A Yeah.
Q964 --- we’d only talk about things that really happened?
A Yeah, it happened.
Q965 O.K.
A I remember.
Q966 So this happened ---
A Yeah.
Q966 --- but we’re not sure how long ago.
A Yeah.
Q967 If you’re not sure, O.K., just tell me.
A O.K.
Q968 And that’s fine.
A O.K.
Q969 O.K. That’s not a problem.
A O.K.
Q970 O.K. So, and you know this boy was (the appellant’s) son.
A Yeah.
Q971 Yeah. O.K. Had you met him before?
A Yeah, I’ve seen him pretty much ---
Q972 Ah hmm.
A --- but then he lost, went out to, went somewhere and got in a car crash.
Q973 O.K. And you know he died?
A Yeah.
…
Q1235 O.K. One question I needed to ask you about was remember you told me about the little boy, or not the little boy but (the appellant’s) son?
A (No audible reply)
Q1236 Yeah. And I got a little bit confused when you were talking about him because you told me you saw him in the kitchen.
A Yeah.
Q1237 And you saw him with cream on his bottom.
A Yeah, he was still wearing his shirt.
Q1238 Right. Still wearing a shirt.
A Yeah.
Q1239 And you think he was about 18 years old.
A Yes.
Q1240 O.K. So you think he was older than (complainant’s sister)?
A Yes.
Q1241 Yes. O.K. I believe that he died a few years ago, so I’m wondering how you could have seen him.
A I was 4 when he died, when (the appellant) told me about him dying.
Q1242 You think you were about 4.
A Yeah.
Q1243 Right.
A I think it was three years.
Q1244 O.K. And you saw him before he died?
A Yes.
Q1245 And you were in the kitchen.
A Yes.
Q1246 O.K. Had (the appellant) touched your vagina at that time?
A No.
Q1247 O.K. So that was way, that was before (the appellant) touched your vagina ---
A Yes.
Q1247 --- that you saw him in, this boy in the kitchen.
A Yes.
Q1248 You don’t know his name?
A No.
Q1249 Do you remember what he looked like?
A He had brown hair.
Q1250 Brown. This boy, about 18 years old.
A Brown hair.
Q1251 Brown hair. What else can you remember about him?
A He was … I don’t know.
Q1252 How tall are you?
A I’m three feet, one or two inches or….
Q1253 So he’s taller than you.
A Yeah.
Q1254 Was he taller than (complainant’s sister), ‘cause (complainant’s sister) ---
A He was about (complainant’s sister’s) size.
Q1255 Ah hmm. O.K. O.K. What colour was his skin?
A Um, he was white.
Q1256 White O.K. And he had brown hair. What was his hair like?
A It was, like, it’s like (complainant’s brother’s).
Q 1257 Like (complainant’s brother’s) hair. Was it long or short?
A Short.
A1258 Short. Was it straight or curly?
A Curly.
The complainant was cross-examined about the account she had given. It was common ground that the appellant’s son had died in 1999, when the complainant was two years old. There were these questions and answers –
Q You talked about, in the video, you talked about seeing a boy in (the appellant’s) home, is that right?
A Yes.
Q And you said that the boy was (the appellant’s) son, is that right?
A I don’t know if he’s his son.
Q Well you said he was his son, is that right?
A Yes.
Q And when did you see this take place (complainant), when did you see the boy?
A I don’t remember.
Q Was it last year?
A I don’t know.
Q Was it the year before?
A I don’t know.
Q You’d met this boy, had you?
A Yes.
Q Where did you meet him?
A In the house.
Q In (the appellant) and (appellant’s wife’s) house?
A Yes.
Q Did you know what his name was?
A No
Q How many times did you meet him?
Once.
Q How old was the boy?
I don’t remember.
Q Was he your age or older?
A I think he was older.
Q Was he with anybody else when you met him?
A Pardon me?
Q Was the boy with anybody else when you met him?
A No.
So he’s in (the appellant’s) and (appellant’s wife’s) house by himself?
A Yes.
Q And the day that you met him was that the same day as you saw him in the kitchen with his pants off and cream on his bum or was it another day?
A I don’t remember.
Q You said you saw him with cream on his bottom or his bum and you were in the kitchen, is that right?
A Yes.
Q Were you supposed to be in the house that day?
A I don’t know.
Q Well think about it, that day that you were in the kitchen and you saw the boy with the cream on his bum did you come over from your house that day after school or some other time?
A After school.
Q Did you knock on the front door?
A Yes.
Q And did (the appellant) let you in?
A Yes.
Q And was (complainant’s wife) home?
A I don’t remember.
Q Was the boy there when you knocked on the door?
A (no verbal reply)
Q HIS HONOUR: Mr Johnston, perhaps the form of that question is causing the witness a problem. Don’t you mean did she see him when she first went in?
JOHNSTON: Yes, I will ask that question again.
Q (Complainant), I’ll ask you the question in a different way, okay? When you knocked on the door and you walked in did you see the boy inside the house?
A No.
Q Did you see him at some later time in the house on that day?
A Yes.
Q Where was that?
A I don’t remember.
Q What do you remember about that date, (complainant), the day that you saw the boy at (the appellant’s) house?
A Not that much.
Q Tell us what little bit you do remember?
A (No verbal reply)
JOHNSTON: Your Honour, perhaps another question should be asked a bit more specific.
HIS HONOUR: Mr Johnston, the question is, what do you remember about the boy?
CROWN PROSECUTOR: The boy on that day.
JOHNSTON: I’ll ask that question again if your Honour pleases.
Q (Complainant), tell us what you do remember about the boy on that day?
A (No verbal reply)
Q (Complainant), are you having difficulties answering my question?
A Yes.
Q Is that because you made it up about the boy?
A Yes.
Q Why did you make it up about the boy, (complainant)?
A I don’t know.

It was submitted that on all the matters relied on, but particularly on this evidence, the jury were bound to entertain a reasonable doubt about the reliability of the complainant. It seems to me that defence counsel was entitled to make a strong submission about the consequences of the complainant’s evidence about the appellant’s son, which was very important for the jury’s assessment of the complainant. Obviously, it was a matter the jury had to consider very carefully. But there is no rule that a witness, even a child, who has admitted making up a story on one occasion must as a consequence be held unreliable when giving evidence about another. In giving consideration to the matter the jury were entitled to use the impression they had received of the complainant from all her evidence. One matter of crucial importance to their assessment was no doubt the support the complainant received from the evidence that just such a computer image as she described actually existed. The jury were entitled to reason that the complainant could not have known about the image unless the accused had shown it to her. Speculation aside, the only conclusion one could reasonably reach about that evidence was that the complainant must have been telling the truth about it, notwithstanding that she had told an untruth about the appellant’s son.
Moreover, the jury saw and heard the manner in which the complainant gave her evidence during cross-examination, an advantage this Court does not have. An assessment of the meaning of the last few answers I have extracted might well have depended in part in the way the answers were given. This Court has only the cold word on the page.
In my opinion it was open to the jury to be satisfied on the whole of the evidence that the complainant was giving a reliable version of what the appellant did on the several occasions the subject of the charges. It follows that they were entitled to be satisfied about the guilt of the appellant. This ground of appeal has not been made good.
In view of the conclusion I have reached about the fourth ground of appeal I can deal with the remaining ground, the second, in short form. The ground is as follows -
The appellant asserts that he instructed his lawyers that a significant part of the child’s evidence was capable of being discredited based on a physical impossibility to be able to ejaculate.
This ground was approached in two ways. First it was asserted that trial counsel, who did not appear on the appeal, incompetently failed to adduce evidence capable of raising a reasonable doubt about the capacity of the appellant to ejaculate. Reference was made to Nudd v The Queen (2006) 80 ALJR 614. In addition or alternatively, evidence was offered to this Court, partly to explain the events at trial and partly, I think, as allegedly fresh evidence.
It appears that the appellant’s wife instructed the appellant’s solicitor at trial that he was unable to ejaculate. This came as a surprise to the solicitor and counsel. Counsel took the view, wisely I think, that if the issue was to be raised there would need to be medical evidence to support the assertion. Accordingly, the solicitor wrote to an urologist, Dr Alexander, who wrote a report on 19 May 2005. In the report Dr Alexander said that he had seen the appellant in his rooms but had not examined him. He was expressing his opinion solely on what the appellant had told him, which was that he had been fully potent until 2002, when he had suffered a head injury in a motor vehicle accident. He had been in hospital for three days. His potency was “never the same” after the accident. He continued to have difficulty getting and maintaining an erection. When having sexual intercourse he would “on occasions lose his erection without orgasm”. He had been married for about three years and required considerable help from his wife to gain and maintain an erection. He did not know whether he ejaculated or not. His wife had told him that she suspected that he did not.
Dr Alexander expressed the view that if the appellant was telling the truth he had substantially reduced potency and that the cause might be related to a head injury or could be associated with depression. Dr Alexander found it difficult to comprehend the appellant’s statement that he did not know whether he ejaculated or not.
Defence counsel told the appellant that he was concerned that Dr Alexander’s report did not come up to the standard he had hoped. The report provided no support for the appellant’s assertion. Counsel advised the appellant that without medical evidence to support the assertion that he could not ejaculate there was a real risk that the appellant’s inability might be seen as psychological or psycho-sexual. The appellant would be left open to the suggestion that he could gain an erection and ejaculate in the presence of girls but not of grown women. Counsel’s advice was that it would be unwise to raise the issue without supporting expert evidence. The appellant accepted the advice.
In my view the advice tendered by defence counsel was both competent and sound. The complaint about counsel should be rejected.
I need not canvass the evidence put before this Court going to the question whether the appellant could maintain an erection or ejaculate except to say that there must be considerable doubt whether if used it would take the matter any further. Since I propose to order a fresh trial, it can be left to the appellant and his advisers to decide whether to rely on it. I would not have received it as fresh evidence on appeal, first because it is not fresh and secondly because it lacks the cogency necessary for admission.
This ground of appeal has not been made good.
I would make the following orders -
1. Allow the appeal and set aside the convictions;
2. Order a new trial.
BUDDIN J: I agree with Barr J.

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LAST UPDATED: 06/10/2006

[2006] NSWCCA 310

6 October 2006