R v Poole

[2006] NSWCCA 93

CITATION:

REGINA v POOLE [2006] NSWCCA 93

HEARING DATE(S):

14 November 2005

 
JUDGMENT DATE: 

3 April 2006

JUDGMENT OF:

Simpson J at 1; Adams J at 2; Hoeben J at 54

DECISION:

Appeal allowed; New trial ordered in respect of all convictions.

CATCHWORDS:

Appeal against conviction - fresh evidence - tests of admissibility - significance - Longman direction - necessary elements - change in Crown case during cross-examination of appellant - whether should have been permitted - dates of alleged offences - whether essence of charges - whether departure from particulars

LEGISLATION CITED:

Crimes Act 1900 s 78K

CASES CITED:

R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Johnston (1999) 45 NSWLR 362
R v NZ [2005] NSWCCA 278
R v RTGS [2005] NSWCCA 293

PARTIES:

Regina

v

Sean POOLE (Appellant)

FILE NUMBER(S):

CCA 2005/616

COUNSEL:

D Woodburne (Crown)
D Dalton (Appellant)

SOLICITORS:

S Kavanagh (Crown)
S E O'Connor (Appellant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/3272
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ

2005/616

SIMPSON J
ADAMS J
HOEBEN J

Monday 3 April 2006

REGINA v Sean POOLE

Judgment

1 SIMPSON J: I agree with Adams J.

2 ADAMS J: On 26 September 2003 the appellant was convicted after trial of seven counts of sexual assault. He was charged with three counts of homosexual intercourse with a male between ten and eighteen years (counts 1, 2 and 4 – s 78K of the Crimes Act 1900), three counts of aggravated indecent assault (counts 3, 5 and 6 – s 61M) and one count of sexual intercourse with a child aged between ten and eighteen years (count 7 – s 66C). The indictment alleged that all offences occurred between 25 September 1999 and 14 April 2000. The appellant was sentenced in respect of each of counts 1, 2 and 4 to imprisonment for three years four months with a non-parole period of one year eight months, to be served concurrently from 25 September 2003. In respect of counts 3, 5 and 6 he was sentenced to a fixed term of fifteen months commencing 25 September 2003 and, in respect of count 7, a fixed term of eighteen months commencing 25 September 2003.

3 The appellant appeals against all convictions and seeks leave to rely upon fresh evidence. Three of the grounds of appeal depend upon the significance which should be attributed to the dates upon which the alleged offences occurred and the sequence of those offences. The fourth ground of appeal concerns the tender of the complainant’s videoed record of interview with the police and the use in connection with that interview of a transcript.

The factual context

4 The Ellis DCJ summarised the Crown case in the course of his summing up as follows –

“…[In] relation to count 1, the allegation in count 1 is that the accused sucked the complainant’s penis, that these first three counts all were the first incident, all on the same night, all at the accused’s house on an occasion when the complainant was sleeping over and in circumstances where he alleged that a pornographic video had been shown to him and he had been taken into the bedroom. You will recall he said things about having his penis sucked and in turn sucking the accused’s penis, which is counts 1 and 2. He said that he vomited. And then you have the third count, which is the penis between his thighs with the accused moving up and down till he ejaculated. Counts 4, 5 and 6 are the second incident said - I am sorry, the first incident was said to be the first time it occurred, that it occurred in the Christmas holidays of ‘99/2000. The second series of counts, being the second incident, is said to have been the last time that it happened and that they happened in the factory, count 4 being the accused sucking the complainant’s penis, count 5 being again the penis between the thighs of the complainant with some lubricant and count 6 being the fondling of the testicles on the drive back. Now count 7 is the third incident, if you like, and it is an incident which took place between the first and the last, so it is somewhere – it took place somewhere between counts 4 and 5 if you like, theoretically it perhaps could have been slotted in…between counts 3 and 4. So 1, 2 and 3 took place, then at some later stage, 7 is said to have taken place and then the last series, 4, 5 and 6 are said to have taken place and count 7 is at the home of the accused and it was the accused placing his finger into the complainant’s anus and saying words to the effect of just testing to see if he was homosexual…”

5 The complainant was born on 17 December 1988 so that the offences allegedly occurred when he was ten and eleven years of age. His evidence in chief was given by the playing of his three video interviews with the police made on 23 and 26 March and 14 May 2001.

6 The Crown prosecutor outlined the allegations concerning the offences in his opening address as follows –

“During the period covered by the indictment, September 1999 to the end of April 2000, the complainant lived with his family, his mother, his father and his two sisters at … Bankstown. As I said, the accused lived next door. He lived with his son … his wife and his young daughter. Over the years the two families became quite close…[and] the two boys would play together…They would play at each other’s houses…[The complainant] also stayed overnight [in the accused’s home] and it was on one of those overnight stays, the complainant will tell you through the video that’s played, that those first three incidents are said to have occurred. As I said to you, they all occurred on the same night. Likewise, 4, 5 and 6 happened on another night. That was at a time when, again, he was staying overnight at the accused’s house. The complainant will tell you at the house was received a phone call from the alarm company at the factory and the accused took [the complainant] along with him to turn off the alarm or to deal with the alarm and it was whilst at the factory that those three allegations were said to have occurred. The factory was a tapware business run by the accused – I understand he no longer has that business – but at the time of these allegations, all of them, he was the manager of that factory. As I said to you, counts 4 and 5 happened in that factory, count 6 happening on the way home from that alarm call and, finally, count 7 is said to have occurred on another occasion when the complainant was staying overnight. As I say, whilst there are seven counts, we are really dealing with three particular incidents.”

7 Importantly for present purposes, the Crown prosecutor opened in respect of the second incident involving counts 4, 5 and 6 as follows –

“Count 4: This is on the occasion when the complainant was sleeping over at the house of the accused. He will tell you that a phone call was received at the house regarding an alarm going off at the factory. The complainant will tell you that accused was drunk at that time and asked [the complainant] if he wanted to come to the factory whilst he dealt with the alarm. Whilst at the factory you will hear [the complainant] tell you that the accused sucked his penis. Count 5 is an allegation that, also whilst at the factory, the accused again grabbed some liquid soap or cream or something of that nature, put it between [the complainant’s] thighs and thrust up and down until he ejaculated. Count 6 is said to have occurred after leaving the factory on the way home. You will hear the complainant tell you the accused was driving with one hand, lent over with the other hand and grabbed and fondled [the complainant’s] testicles. [The complainant] will tell you that when he did that, as he was doing that, the accused lost control of the car, it mounted a gutter and hit a road sign. Again, in the investigation that the officer did [the complainant] pointed out that road sign and you will see a photo of that road sign bent over.”

8 The complaint to the police was made over twelve months after the alleged incidents and the Crown prosecutor opened to the jury upon the basis that there was a broad range of dates specified in the indictment because it was difficult for a young child of that age to nominate specific dates.

9 In respect of the allegations comprising counts 4, 5 and 6 (the second incident) the following questions and answers were given in the interview –

“Q 304 Yes. Okay. So can we talk about the last time it has happened? The most recent time? A. Yeah.
Q 305 Is that okay? A. Probably at the factory.
Q 306 That was the last time that you can remember it happening? A. Yeah.”

10 The complainant’s evidence was that at about 9 pm on a Saturday night during December 1999, January 2000 or the first two weeks or so of Term 1 2000, when the complainant was at the appellant’s house intending to stay overnight, the appellant, who was drunk, received a telephone call on the house telephone and said that the alarm had gone off at his factory (which was very close, said by the complainant to be one minute’s drive away) and that he had to go to check it and that, when his son refused to go, the appellant told the complainant to go with him. He said that he went with him to the factory in his white Jaguar motorcar and that, when they arrived, the “back” alarm was going and the appellant turned it off with his PIN. They went to the front part of the factory where the sexual conduct occurred. The complainant said that, when they returned to the appellant’s house, he collected his clothing and went home. It was about 10.30 or 11 pm, that he showered and went to bed. He did not at that time tell his parents what had happened.

11 It appears from the interviews that all of the alleged incidents were asserted by the complainant to have taken place in the period from December 1999 to January 2000, although they may have continued in the first two weeks or so after he returned to school in 2000. The complainant did not find it easy to specify the dates and was assisted to do so by (proper) questioning. In the result, though, the impression I have from the transcript with which the Court has been provided is that the resulting position is as I have summarised it above and that that period was expressed with a fair degree of certainty by the complainant. So far as sleeping over in the appellant’s home is concerned, the complainant made the point that he was not usually permitted to sleep over or at least could do so only infrequently during school term because of the need to do his homework.

12 In cross-examination, the complainant’s evidence was that the last time he slept over at the appellant’s house was about the time of the last event at the factory and that he slept over only in December 1999 and January 2000. That evidence was given as follows –

“Q You do tell the Court that between the first time anything of a sexual nature occurred between you and Mr Poole was the first night you slept over, that’s what you say, isn’t it? A Yes.
Q And you say the last time anything of that nature occurred was within the period of those school holidays and it was at the factory. That’s what you say, isn’t it? A Yes.
Q If the school holidays finished on 31 January 2000, and I suggest that is the case, you are saying that it is sometime on or before 31 January 2000. Do you accept that? A Yes.
Q It was only Fridays and Saturday nights that you slept over didn’t you? A It depends if it was holiday or just normal school days.
Q Well if it was a school day you never slept over anywhere on a school day did you? A No.
Q In fact during school term you didn’t sleep over on even weekends did you? A Sometimes I did.
Q Well, what you’ve told this court is that the first time you ever slept over was during the school holidays in December 1999, don’t you? A Yeah.
Q And don’t you tell the court that the last time you slept over was about the time of the last event at the factory? A Yes.
Q Is that true – it was only in December 1999 and January 2000 that you slept over. A Yes.”

13 The Crown prosecutor objected either to this question or possibly the line of questioning upon the basis that counsel for the defence had not put the complainant’s evidence to him accurately. The trial judge noted that the witness answered the question and suggested that the Crown could raise the matter in re-examination if he wished. It is clear that his Honour did not accept the suggestion that the question was unfair. As it happened, the prosecutor did not raise the matter in re-examination.

14 The complainant said that he could not remember the time of night when he was taken to the factory after the alarm went off but, when invited to do the best he could, agreed that although he was not sure it was possibly between 9 and 10 pm. He agreed, incidentally, that walking from the appellant’s house to the factory would take no more than two minutes. He said that he was not sure that going into the factory occurred on a Saturday but that he thought that it was either a Friday or a Saturday. The complainant was reminded of his evidence in an earlier trial as to the weather on the night upon which he went to the factory and agreed that it was raining, although the rain was “not too heavy” but then agreed that it “raining a lot and it was heavy rain”. The following evidence was then given, upon which the appellant places considerable weight –

“Q On no Friday or Saturday night during the months of December 1999 and January 2000 did the alarm to the factory sound. What do you say to that? A What can I say? I have told you what I thought, what I’ve – what happened.
Q You say, don’t you, that you and Mr Poole gained entry to the factory about 9 o’clock or shortly after 9 o’clock. That’s what you say, don’t you? And you say you left the factory sometime in the region of 10.30, quarter to eleven. That’s what you say, don’t you? A Yep.”

The security system

15 In light of the complainant’s evidence, it is obvious that it was relevant to establish whether or not there had indeed been a call from the security operator in December 1999 or January 2000 or, possibly, in the first two weeks of school term 2000. The security was provided by Scantest Pty Limited and a Mr Hynes produced customer activity reports spanning the period from 30 October 1999 to 25 April 2000. Mr Hynes said if an alarm went off the client was contacted and informed that it had done so and, if required, a patrol was sent or the police would be called. Mr Hynes was taken to documents dealing with the school holiday period from December 1999 into 2000. A number of entries in that period were pointed to but it is uncontested that none of those entries could relate to the incident of attending at the factory as described by the complainant. The records show an entry on 12 February 2000 at just before 1 pm but the next entry on an otherwise apparently complete documentation occurred on 22 February. This not only raised the question whether there had been a telephone call to the appellant’s house telephone as asserted by the complainant but also, and more significantly, whether the alarm had gone off at all, since the complainant said that it was necessary for the appellant to use his PIN to turn off the alarm, which was still going in the “back”, when they got to the factory.

16 If the records were correct, there was cogent and objective evidence that at no time during the period specified by the complainant was the alarm triggered at the factory. This was an integral and inextricable part of his evidence. If the alarm did not go off as asserted by him, his credibility must have been adversely affected to a significant degree. As at the close of the Crown case, this indeed was the effect of the evidence. The Crown prosecutor did not attempt, in the course of the Crown case, to lead any evidence that might have qualified either the testimony of the complainant or the accuracy of the records. To the contrary, the records were tendered to the jury through Mr Hynes as both complete and reliable.

17 The first time in the trial that the ten-day period from 12 February was the subject of specific reference was when it was brought to the appellant’s attention in cross-examination and he was asked whether he recalled whether the factory was open at that time. He said that he could not recall that there were holidays at that time although the alarm records were consistent with closing on Saturday 12 February at about 1 pm and an opening on 22 February at just after 8.30 am. No objection was taken to these questions, although objection was taken to questions about the functioning of the recording system and, in effect, upheld.

18 Since the records showed the activity of opening and closing the relevant entrances as well as possibly suspicious events triggering the alarm, the records, if correct, did indeed appear to establish that the factory was closed at that time. The sense of the appellant’s evidence was that he could not recall whether the factory was then open or closed. The appellant could not think of any reason why the factory might be closed during this time and had no recollection that it had done so. The appellant said that he had never found the alarm to have been faulty before. He said that, if the alarm malfunctioned, there should be some note on the records explaining the event. There was extensive cross-examination by the prosecutor attempting to press the appellant into conceding that the factory was open and the records were faulty. The question was put in a number of ways but the substance of them was that the appellant was asked to agree that the record was wrong. The appellant did not make any such concession.

19 Although the prosecutor brought to the appellant’s attention that the weather records showed that it was raining on Saturday night, 12 February 2000 and that the complainant had said in his statement to the police, in effect, that the offences occurred in the period from December 1999 to January 2000 and into the first two weeks of school, which “would take us to 12 February [2000]”, he never put it squarely to the appellant that the factory offences occurred on 12 February 2000. The first time in the trial this date was put to the jury as being the rainy Saturday night on which the factory offences took were committed was in the course of the prosecutor’s final address to the jury. That date was identified by the Crown upon the basis that it was a Saturday night, that it was raining and “there’s a bit of a hole in the alarm records” which, as I have observed, the Crown had tendered as both complete and reliable. It may be worth pointing out that the alarm recording system was, even on the Crown case, working as at about 1pm on 12 February. Even if the factory was open during the ensuing week, as he invited the jury to accept, there is no reason to think that there would have been any entry until the following Monday. The Crown case as ultimately put therefore required the jury to infer that the recording system failed in the evening of the very day of the factory offences, although it had worked that afternoon.

20 The Scantest records went to two distinct but linked questions: the first is whether there had been an alarm leading to a telephone call as claimed by the complainant; the second is whether there had been an entry at all on the alleged occasion of the sexual assaults. If the system was working and these events occurred, there should have been generated an automatic record of the fact.

21 In his Honour’s summing up to the jury the Crown position was outlined as follows –

“The Crown says there was no issue that [the complainant] did in fact stay over and he took you to the factory incident and he took you to the records of the rain, the records for the security and you will recall that. I will not take you that but you will have those exhibits. You can see for yourself that on Saturday 12 February it did rain between 9.00 and 12.00 and it would appear that that day was within the period, it was that day through to the 26 [meaning, I think, the 22nd], that no one apparently entered the factory. So whether you make a conclusion one way or the other about that is a matter for you.”

22 As the cross-examination made clear, it was the Crown case as ultimately put that the records were, for some reason, incomplete and that they did not show that the appellant had not entered the factory nor, for the same reason, did they show the event that led to the telephone call which the complainant referred to as instigating the trip to the factory. Rather, the jury should infer that the factory was open during ordinary hours and that for some reason the entries and departures – including that made by the appellant with the complainant – were not recorded.

23 The appellant submits in this Court that it was unfair to permit cross-examination of the appellant about the so called “gap” in the records. The Crown case, as outlined above, was that the factory incident occurred during the school holiday period in December 1999 and January 2000. More importantly, the records established, if accurate, that the appellant did not enter the factory on 12 February or, for that matter, on any day up to and including 22 February 2000. It was unfair, it is submitted, that the Crown should, without any evidentiary support from Mr Hynes and, indeed, contrary to the sense of his evidence as adduced by the Crown, suggest for the first time in the case through cross-examination of the appellant that the records were otherwise than completely reliable. In short, Mr Hynes gave evidence upon the basis that the records for December 1999 and January 2000 (the months particularly brought to his attention) were accurate with no suggestion that they were otherwise inaccurate and, on their face, they also contradicted the possibility of an entry by the appellant between 12 and 22 February 2000. It is argued, furthermore, that this was doubly unfair when the evidence – tendered by the Crown – went to the jury in the Crown case upon the basis that the records were complete and reliable. It should be noted, however, as I mentioned above that counsel for the appellant did not object to the questions of the appellant about whether the factory was open or closed during the “gap”. It does not seem, therefore, that he perceived any unfairness in the change in the Crown case.

24 In my view it is incontestable that the Crown case at its close was that the jury should accept the Scantest records as both complete and reliable. There was no attempt by the Crown to recall Mr Hynes at any point to correct this evidence, if indeed, it was capable of correction. In my view, had counsel objected to the line of cross-examination directed to establishing that the records were mistaken, such an objection must have been upheld. Nor was any objection taken to the underlying assumption in the questions, namely that the factory offences had occurred on or after 12 February 2000, upon the ground that the defence was prejudiced by this expansion of the relevant period past the end of January 2000. No adjournment was sought and no submissions made as to directions concerning the dates of the alleged offences.

25 What transpired concerning the Scantest records was most unsatisfactory. It seems clear that their significance had not been appreciated (at least by the Crown prosecutor) until after the close of the Crown case. It was not appropriate that the first time that the possibility that they were incorrect was raised by the prosecution in cross-examination of the appellant.

Delay and the destruction of the appellant’s business records

26 It is obvious from the cross-examination concerning the so-called “gap” in the Scantest records that whether the factory was indeed closed from 12 to 22 February became an important, possibly crucial, issue. Whether the factory was closed or open was, of itself, immaterial to the cases of both sides. It only became important because the Crown prosecutor sought to qualify in a very significant way the evidence which he had tendered to the jury.

27 If the factory was indeed open during the “gap” then it seems to be inescapable that the Scantest records were incomplete or the security system was in some way malfunctioning during that period. This would explain why there was no record of the appellant’s entry as alleged by the complainant on the occasion of the factory incident. If, on the other hand, the factory were closed, that would strongly suggest that the Scantest records were indeed complete and effectively contradict the complainant’s evidence that the factory was entered as he alleged.

28 It should be noted that, although it is conceivable that the appellant had fabricated the telephone call described by the complainant (although there was no evidence that this might have happened) as an excuse to go to the factory with the complainant for the purpose of sexually assaulting him, that would not explain the fact that there was no record of the entry since the security set-up was such that all entries and exits were recorded by the security equipment. At least one obstacle in the way of the fabrication hypothesis is that the complainant said that the appellant’s initial response was to ask his son, and not the complainant, to accompany him to the factory.

29 The complainant brought the alleged offences to the attention of police in March 2001 and the appellant was charged about that time. The factory was still operating then although it was closed down in early 2002 because of the appellant’s health problems. The appellant said in evidence that he and his wife attempted to reconstruct events that occurred over the periods relevant to the allegations made by the complainant. That calendar was tendered. The entry for Wednesday 22 December 1999 is “factory Christmas BBQ – closed until 11th Jan”. The entry for 23 December shows “Factory holidays start. Factory holidays finish 9.1.2000”. The entry for Tuesday 11 January 2000 is “Factory reopens”. The calendar does not cover February. Mrs Poole was asked in cross-examination whether, in the February immediately following the opening of the factory in January 2000, the factory closed down for two weeks. She said –

“A No, because we wouldn’t close – not for – not for a two week period. A week, yes, but not for a two week – not at one time, no. Apart from the Christmas, because the whole industry shuts down, so a week in February maybe. February is normally a quiet time, so could be.”

This evidence, accordingly, was inconclusive as to whether the factory was open or closed in the “gap”.

30 In examination in chief, the accused said that, during the time of the Sydney Olympic Games, the business did not really trade and that there were times other than the Christmas holidays when the business closed during slack times. The appellant said that the records were destroyed because when he became sick and the business was not trading, the rent was unpaid, the stock was sold off and, when the landlord re-entered the premises, all the records of the business were destroyed by her. He said this occurred towards the end of 2001. The appellant did not say, however, that those records would have been able to establish whether or not the factory was open during the “gap” period.

31 Defence counsel sought a direction concerning the delay in complaint that brought to the jury’s attention the difficulty facing the appellant because his records had been destroyed. The learned trial judge pointed out, quite rightly to my mind, that this was not really a result of the delay in complaint but arose from the inevitable delay in bringing the matter on for trial as a consequence of which, through no fault of any person, the records were not available and a difficulty thus created for the accused in relation to the so-called gap. Defence counsel said that he was “happy” with a direction in these terms. His Honour’s directions included the following –

“Delay clearly impacts upon recollections. That is particularly so when there has been a significant delay between the time when the events are alleged to have taken place and the date when the child is called upon to recall them. So in this case, around twelve to sixteen months.
Another effect of evidence not being fresh is that the accused has lost the opportunity to investigate the circumstances of the allegations contemporaneously. What I mean by that is that if the complainant or if a complainant complains today about being sexually assaulted today then an accused is at that point in time able to have literally a perfect recollection as to what he was doing, with whom he was and he therefore is better able to properly address or investigate the allegations. So in this situation he has lost that opportunity of contemporaneous examination of the allegations.
Small matters of detail that might have influenced you could well be lost by reason of the delay. In a sense, when the accused’s response is a general denial, that is, it simply did not happen, which is the situation here, then that poses additional problems. From his perspective, it may have been an ordinary day. What we do during our days as ordinary parts of our lives is something that, except for some exceptional individuals, we do not commit to our long-term memory. You can consider precisely what you were doing last night at 7 o’clock, you would probably have a fair chance of recalling that. Considering what you were doing at 7 pm years later is a much different proposition. Even if you now cast your mind back and try and consider what you were doing every day through August [it now being almost the end of September], I doubt any of you could actually do that.
The fine detail, as I said, may well be important and if it is lost then that is a significant disadvantage. I draw all these matters to your attention so you can give them due consideration when scrutinising the evidence of the complainant. Nothing I have said means that you cannot find, after considering the warnings that I have given, that the complainant’s evidence was both truthful and unreliable [sic, typographical error, I think, for reliable ]. You can accept it beyond reasonable doubt if that is what you wish to do providing, you have done what I suggested and that is you examine it closely.”

32 Ellis DCJ dealt with the missing business records in the course of summarising the appellant’s case as put by his counsel, telling the jury –

Where the evidence In a case rests, as it does here, on the evidence of one witness alone and there has been a delay in bringing the matter forward to the attention of the authorities as is the case here, the law requires that I give you another series of directions in relation to the evidence in this case. The relevant delay I have told you about. I tell you this, that before you can convict the accused on the evidence of one witness you must carefully scrutinise and evaluate that evidence in the light of the criticisms made of it by counsel for the accused in regard to the separate charges. It is only after such careful scrutiny and evaluation and if you are satisfied that the evidence is truthful, reliable and accurate, that you can use the evidence as the basis of a conviction on each of the charges alleged in the indictment. You will of course bear in mind the whole of Mr Pullinger’s address to you on behalf of the accused, that he does indicate, for instance, that there are a number of factors that you should take into account and that the delay certainly impacted on them. The business records were lost. You will hear that the people who moved in destroyed the business records so that they were no longer available to the accused to go back and try and work out what he was doing and what the business was doing and when. You heard that he was also struck by ill-health. Obviously had there been an immediate complaint, then some of these factors would not have been as significant. In his ability you may notice to complete the calendar that they prepared, he and his wife, as to activities, partly because they were unable to recall events so long ago and you have the general impact of delay in the ability of a witness to recall events.”

33 The appellant complains in this Court that the learned trial judge erred in failing to specifically mention the inability of the appellant to address the gap in the Scantest records by reference to his business records which had since been destroyed, in the context of his Honour’s warning about the consequences of delay in complaint, although his Honour reminded the jury of the matter elsewhere (as set out above), in context of counsel’s address. It is fair to say, I think, that this matter was not the subject of precise analysis in the course of the trial. The destruction of the business records would not have been significant, it is clear, had it not been for the Crown prosecutor raising in cross-examination with the appellant the possibility that the Scantest records were mistaken because the factory was, during the gap, in fact open rather than closed as the Scantest records indicated.

34 The effect of the discussion between Mr Pullinger and Ellis DCJ about the appropriate direction as to the issue of delay and the destruction of the business records is not entirely clear. His Honour ruled, as it seems to me, that what was referred to as the Longman warning should not contain a reference to the missing records, as the fact that they were destroyed was not really due to the delay in the complaint. His Honour agreed, nevertheless, that the jury should be directed as to the problems caused to the defence by the loss of those records. To this, Mr Pullinger said, “I think your Honour is right”.

Fresh evidence

35 The appellant has sought leave to adduce evidence of the Scantest telephone records (as distinct from the security alarm activation records) to demonstrate that no call at any relevant time was made to the appellant in response to an alarm being activated at the factory for the entire period, including what I have called the gap period from 12 February to 22 February 2000.

36 The proposed new evidence is contained in an affidavit of Stephen Hynes, the director of Scantest Pty Limited, who had given evidence during the trial to which I have already referred. So far as is presently material, that affidavit states –

“5 I have seen and am familiar with the document entitled Customer Activity Report…which was produced by Scantest back in June 2001. The gap that exists between 12 February and 22 February 2000 could be a result of the alarm panel being unable to communicate with Scantest. This could be for a variety of reasons including but not limited to the alarm system being unplugged from the phone line or a Telstra problem. I believe that Mr Paul Pisaini [the technician employed by the security firm who installed the alarm system] would have been contacted by [the appellant] in the event that there was a problem requiring servicing.
6 On 2 February 2005, I gave authority for the Legal Aid Commission to access a copy of Scantest’s telephone records from Telstra Pty Limited for the period November 1999 to April 2000…I note that on the dates referred to in Customer Activity Report where alarms are activated, namely 5 and 25 February 2000, the number reflected in the Telstra records as being called mere minutes later is 0412390500.”

37 I note that there is no suggestion that there was a call to or a repair by Mr Pisaini and there are other reasons internal to the records that justify the inference that the possible explanation proffered by the Mr Hynes is unlikely. Before moving to the significance of the telephone records, I should point out that, at all events, Mr Hynes’ suggested explanations for the gap provide no answer to the argument that, as at the close of the Crown case, the records had been tendered as complete and accurate. The possibility that they might not have been complete for the reasons given by Mr Hynes in his affidavit was not suggested at trial and should not be considered here. The fresh evidence relied on concerns the telephone records.

38 The appellant has also filed an affidavit. In substance the appellant’s affidavit specifies his home telephone number, his mobile number and that of his wife. These numbers are not 0412390500. The appellant said that such a number did not belong to him and never has. He infers that the number was that of Beyond Technology Patrol, a mobile patrol company, which would attend the premises if informed by Scantest that an alarm was triggered. The telephone records attached to Mr Hynes’ affidavit show that the appellant’s mobile telephone was called on 5 February and 25 February 2000 close to the times when alarms sounded on those dates, on 5 February these occurred at 11.14 pm and 11.51 pm and on 25 February at 9.10 pm. These records show that Scantest did not telephone the appellant as alleged by the complainant.

39 The Crown submits that the evidence of the records was available to the appellant, actually or constructively at his trial. In one sense, of course, this was true. However, the Crown case on the period when the alleged offences occurred rested entirely on the evidence of the complainant. The Scantest records, if accepted, showed that the offences that allegedly occurred at the factory could not have occurred in the “gap”. The evidence concerning the telephone calls made to the appellant’s home during that period was, if relevant, unnecessary. It was the change of the Crown case from an allegation that the factory offences occurred before the “gap” to the allegation that they must have occurred during the “gap” that made the telephone records for that period important. It is not necessary for the defence to anticipate every possible variation in the Crown case. Although the dates in the indictment were very wide and covered the gap, there can be little doubt that the real case that the appellant was called on to answer was that which alleged the relevant period was as asserted by the complainant in his interviews and on cross-examination. In respect of the “gap”, the appellant had a powerful answer, namely that the records showed no alarm and, by implication, no call about the alarm.

40 If it be important, I would conclude that the evidence of the telephone calls is indeed fresh evidence, in the sense that it was not evidence that the defence in the exercise of due diligence should have had available to it at the trial. Mr Pullinger has sworn an affidavit that was read without objection in this Court dealing with this evidence. He deposed, in substance, that he understood the factory offences were alleged to have occurred in the school holiday period 1999-2000, an understanding that was confirmed by the evidence of the complainant and during the evidence of Mr Hynes. He said that, as he recalled it, it was not until the cross-examination of the appellant that it was suggested that the offences occurred on a day in February 2000. He said that, with the benefit of hindsight, it may have been appropriate to apply for an adjournment to enable enquiries to be made for telephone and alarm records for 12 February 2000.

41 I would add the observation that the Crown was aware at all times that there was little or no evidence that supported that of the complainant. It is somewhat surprising that the Crown had not obtained the telephone records for the purpose of tendering them. Of course, it would have had the duty to do so whether they supported the Crown case or not. It is difficult to be sympathetic with a contention in this Court that the relevance of the records was so obvious that the defence should have procured them, when the Crown – having the burden of proof – had not bothered to do so.

The significance of the fresh evidence

42 If I may respectfully say so, the relevant law on this subject has been helpfully summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at 427ff. His Honour said –

“[63] The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66; see also R v Sleiman [2003] NSWCCA 231. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 at 674-675 by Mason J (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:

• First, a distinction is made between ‘new evidence’ and ‘fresh evidence’. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.

• Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial ( Ratten v The Queen per Barwick CJ).

• Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial ( Mickelberg v The Queen (1989) 167 CLR 259 at 301, 43 ACrimR 182 at 210 per Toohey and Gaudron JJ).
• Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
• Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new ( Ratten v The Queen per Barwick CJ; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398-399, 20 ACrimR 244 at 248-249).
• Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
• Is the evidence fresh?
• If it is, is it ‘credible’ or at least capable of belief (Gallagher v The Queen per Gibbs CJ), or ‘plausible’ ( Mickelberg v The Queen (1989) 167 CLR 259 at 301, 43 ACrimR 182 at 210 per Toohey and Gaudron JJ)?
• If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused ( Gallagher v The Queen per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused ( Gallagher v The Queen per Mason and Deane JJ)? See Mickelberg v The Queen per Toohey and Gaudron JJ.
• Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better ( Ratten v The Queen ).”

43 In this case, for the reasons that I have given, I consider that the evidence of the telephone records for the “gap” period was, as a matter of practicality, fresh evidence. It is not contended that the records are unreliable. Was its absence such as to lead to a miscarriage of justice? The evidence that no telephone call was made as alleged by the complainant must be considered in light of the significance of the alarm records. It was not suggested at trial that the appellant had fabricated the story about the telephone call. Moreover, the telephone call concerned the alarm which, the complainant said in effect, was still operating when he and the appellant entered the factory. It is difficult to accept that the appellant fabricated a telephone call about an alarm being triggered when the alarm was in fact triggered. If the alarm had not been triggered, then the phone call might not be so important: the adverse consequence for the complainant’s credibility must be substantial. The fact that there was no phone call to the appellant’s home as described by the complainant together with the absence of any record of the alarm being triggered – even if there might be a speculative explanation for this latter being the case even if the alarm was in fact triggered – could well be regarded by a jury as significantly qualifying the complainant’s credibility.

44 It is, I think, important to consider that it is very often the relatively small surrounding details that add significantly to the verisimilitude of a narrative of events. This is especially important where there is little or no supporting evidence, as is the case here. The phone call (and the alarm, for that matter) could not be regarded as a small surrounding detail but, even if it were not thought to be crucial, its contribution to the picture of reliability presented by the Crown case was not insignificant.

45 Mr Dalton, who appeared for the appellant in the Court, points to other weaknesses in the complainant’s evidence concerning the factory offences. The complainant had said that he attended two named doctors about his sore testicles as a result of the offences. However, he had in fact consulted those doctors almost a year before about sore testicles. He said that he must have been mistaken and consulted another doctor but was unable to name him and no evidence supporting his assertion was called by the Crown. The complainant alleged that, on the return trip from the factory, the car mounted the kerb and struck a telegraph pole but there was evidence that the pole had no paint on it or damage consistent with having been struck by the appellant’s car. The appellant’s wife gave evidence in effect contradicting the relationship evidence given by the complainant and directly contradicting the effect of the complainant’s evidence concerning count 7 (that he was in the bath fondling the complainant, both being naked). The defence also called evidence from a friend, Mr Harris, who said in substance that he stayed almost every weekend during the critical period, that he saw the complainant outdoors quite often, playing with the bikes brought there by Mr Harris but that he was not in the house “very much” and never saw him sleeping over.

46 In weighing up the significance of the fresh evidence, it is necessary of course to do so in light of the circumstance that there was no supporting evidence for the complainant’s account of the offences – in particular, the factory offences – and that the loss of the appellant’s business records made it difficult for him to contest the possibility that the factory was indeed open during the “gap”. I bear in mind that there is no evidence before this Court to the effect that the records would have been useful for that purpose but the Crown has not suggested that we should not consider the absence of the records as other than potentially prejudicial to the defence case (as, indeed, the jury were invited to do). It is also important to bear in mind the difficulties facing an accused in testing evidence adequately following a significant delay between the alleged offences and the occasion when they are communicated to an accused and the scope and character of the surrounding circumstances is made clear. The danger of convicting when the opportunity of adequate testing of crucial evidence is limited is manifest.

Conclusion

47 I have formed the opinion, following a consideration of all of the evidence, including in particular the fresh evidence, that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before them. I am also of the view that the very significant change in the Crown case, signalled for the first time in cross-examination of the appellant, that the Scantest records were unreliable, was fundamentally unfair. In my view, that cross-examination should not have been permitted and the Crown should not have been allowed to put to the jury that the records were unreliable in respect of the “gap” period.

48 The Crown has submitted in this Court that it should not follow from allowing the appeal in respect of the factory offences that the convictions on the other counts should also be quashed. It is submitted that the Crown case was strong and the jury was well entitled to accept beyond reasonable doubt the evidence of the complainant. In my view, the complainant’s evidence would, as a matter of practical matter, have been considered by the jury as a whole and that any substantial doubt about his reliability as to a significant matter would have been likely or, at least, not unlikely, to have adversely affected his credibility upon other significant matters. Of course, this would depend on the character of the particular facts thought to be significant. Given the connection between all the offences, the consequence of a finding that the complainant should not be believed beyond reasonable doubt in respect of the factory offences would, in all likelihood, have affected the view that the jury took in relation to the other offences. Accordingly, I propose that the appeal should be allowed, the convictions quashed and a new trial ordered upon all counts.

Other grounds of appeal

49 It was contended by the appellant that the Crown case was limited to the school holiday period of December 1999 to January 2000. As I have pointed out, the possibility that the period in which the offences occurred included also the first two weeks of February was clear from the complainant’s statements to police. In my view the period from December 1999 to January 2000 was never so particularised as to make these dates of the essence of any of the charges. That conclusion is sufficient to require dismissal of this ground of appeal.

50 The appellant also submits that the learned trial judge’s directions to the jury erred in failing to adequately warn the jury as to the significance of delay in communicating the details of the offences to the appellant. The Crown did not argue that the delay in this case, not markedly long, did not warrant a warning. Having regard to my conclusion on the effect of the fresh evidence, it is unnecessary for me to deal with this ground. It is worth referring, however, to the point made by the Chief Justice in R v Johnston (1999) 45 NSWLR 362 at 371 –

“There are two features of the Longman warning which should be emphasised. First the jury is to be told why it is “dangerous to convict” namely, the delay meant that the evidence of the complainant could not be “adequately tested”. Secondly, the jury is to be told how they should go about their task because of the identified danger, namely, “scrutinise the evidence with great care”.

With respect, I consider that the directions of Ellis DCJ did not provide the jury with the first of these requirements: his Honour did not direct the jury’s attention to the danger of convicting the appellant in face of the difficulty in the ability of the defence adequately to test the complainant’s evidence. The jury may have been left with the wrong impression that the only problem was the difficulty facing the defence in presenting a positive case.

51 I have already mentioned the significance in assessing the reliability of evidence that will often – and frequently unconsciously – be given by the tribunal of fact to the surrounding and often relatively trivial details given by a witness in the course of describing particular events. These details will often be likely to create an impression of verisimilitude. Of course, in many cases, this impression is entirely justified. These are details, however, which it is often very difficult to test. Human experience suggests that some might well be confabulated. A defendant or his or her witnesses faced with attempting to give an account a significant time after the events in question will often, of course, have difficulty in recalling surrounding details, either those he or she might once independently have had or details that might contradict or qualify the evidence of prosecution witnesses whose recollections have been recorded at an earlier stage. This kind of problem is evident to me in the present case from a reading of the evidence of the appellant’s wife and Mr Francis. I simply point these matters out to underline how important it is that both elements of the warning as identified in brief by Spigelman CJ in the passage quoted above should be given to the jury.

52 Leave is sought to add a ground of appeal that the learned trial judge erred in permitting the videotaped interviews of the complainant to go into the jury room. This ground was not argued, counsel accepting that, in the circumstances, the majority judgment in R v NZ [2005] NSWCCA 278 and the unanimous decision in R v RTGS [2005] NSWCCA 293 posed insurmountable barriers to success.

Proposed orders

53 I propose that the appeal be allowed and new a trial ordered in respect of all convictions.

54 HOEBEN J: I agree with Adams J.

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