R v Rymer

[2005] NSWCCA 310

Reported Decision: 156 A Crim R 84

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Rymer [2005] NSWCCA 310
HEARING DATE(S):	20 April 2005
JUDGMENT DATE:	6 September 2005
JUDGMENT OF:	Grove J at 1; Barr J at 92; Latham J at 93
DECISION:	APPEAL AGAINST CONVICTION DISMISSED; SENTENCE APPEAL ALLOWED; APPELLANT RESENTENCED

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - EVIDENCE - DENIAL BY ACCUSED WHEN CONFRONTED BY POLICE WITH ALLEGATION - DENIAL MAINTAINED AT VIDEO RECORDED INTERVIEW HELD SHORTLY THEREAFTER - OBJECTION BY CROWN TO ADMISSION OF EXCULPATORY MATERIAL - HEARSAY - BASIS OF EXCEPTION TO HEARSAY RULE - MAINTENANCE OF COMMON PRACTICE - GENERAL DUTY OF CROWN TO TENDER SUBJECT TO OBJECTIONABILITY OF CONTRIVED MATERIAL - ACCUSED GIVES EVIDENCE FOLLOWING RULING REQUIRING HIM TO DO SO IN ORDER TO MAKE EARLIER DENIALS ADMISSIBLE - RULING ERRONEOUS BUT NO RESULTANT MISCARRIAGE - DISCUSSION OF VARIETY OF APPROACHES TO EVIDENCE OF EXCULPATORY STATEMENTS - SENTENCE - TRIAL JUDGE MISINFORMED AS TO APPLICABLE MAXIMUM PENALTY - IMPOSITIONS IN EXCESS OF MAXIMUM - APPEAL AGAINST SENTENCE ALLOWED AND APPELLANT RESENTENCED
LEGISLATION CITED:	s66A Crimes Act 1900 s135 Crimes (Administration of Sentences) Act 1999 s59 Evidence Act 1995
CASES CITED:	Adam v The Queen 2001 207 CLR 297 Graham v The Queen 1998 195 CLR 606 Ibbs v The Queen 1997 163 CLR 447 McCallum v Parole Board [2003] NSWCCA 294 R v Brooker NSWCCA, unrep 21 February 1996 R v Bryant NSWCCA, unrep 27 June 1994 R v Callaghan 1993 70 A Crim R 350 R v Coats 1932 51 NZLR 401 R v Crisologo 1997 99 A Crim R 178 R v Familic NSWCCA, unrep 4 November 1994 R v Higgins 1829 3 C & P 603 R v Keevers NSWCCA, unrep 26 July 1994 R v Latu NSWCCA, unrep 6 July 1993 R v Middleton 1998 100 A Crim R 244 R v Moystyn 2004 145 CLR 304 R v Pearce 1979 69 Cr App R 365 R v Reyes [2005] NSWCCA 218 R v Sharp 1988 86 Crim App R 274 R v Skinner NSWCCA, unrep 28 October 1993 R v Tooke 1990 90 Crim App R 417 R v Williamson 1972 1 NSWLR 291 R v Astill 1992 63 A Crim R 148 Ratten v The Queen (1972) AC 378 The Queen's Case 1820 2 Brod & Bing 286
PARTIES:	Regina v Patrick Wayne Rymer
FILE NUMBER(S):	CCA 2004/3220
COUNSEL:	P. Barrett (Crown) A. Haesler SC (Appellant)
SOLICITORS:	S. Kavanagh (DPP) S. O'Connor (Appellant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/51/0009
LOWER COURT JUDICIAL OFFICER:	Black DCJ

2004/3220

GROVE J
BARR J
LATHAM J

Tuesday 6 September 2005

REGINA v PATRICK WAYNE RYMER

Judgment

1 GROVE J: This is an appeal following conviction of the appellant on three counts of an indictment after trial before Black DCJ at the Lismore District Court. Count 1 charged sexual intercourse with a child under the age of ten years contrary to s 66A of the Crimes Act 1900 for which the applicable prescribed maximum penalty was twenty years imprisonment, counts 2 and 3 charged sexual intercourse with a child aged between ten and sixteen years contrary to s 66C(1) of that Act for which the applicable prescribed maximum penalty was eight years imprisonment.

2 The appellant was sentenced to imprisonment for nine years with a non parole period of six years on each count to be served concurrently. The sentences on counts 2 and 3 exceeded the prescribed maximum term. At first instance his Honour was incorrectly informed that the prescribed maximum terms were, as to count 1, twenty five years imprisonment and as to counts 2 and 3, sixteen years imprisonment. Those are later prescriptions but different prescriptions were in force at the date of the offences which ranged between May 1994 and January 1996. The applicable maximum terms were those first mentioned.

3 The complainant (NA) is in each case the daughter of a woman (SA) with whom the appellant was, at relevant times, living in a de facto relationship. The child was born on 14 September 1984. The family unit also consisted of another daughter (TA) born on 11 September 1988 and a son (PR), of whom the appellant was the father, born on 28 May 1992.

4 The Crown case was that from about 1991 they resided at Kingscliff near the Queensland border. The appellant frequently took NA on crabbing and fishing excursions to a place described as Cudgen Creek. There were complaints of some sexual interference on those occasions, however count 1 charged a specific incident said to have occurred between 26 and 30 May 1994 when NA would have been aged nine years. The dates were established by reference to a visit by SA to her parents at Gin Gin, Queensland, during which PR’s second birthday was celebrated. The appellant, NA and TA were at Kingscliff and while the three of them were lying on a bed watching a movie on television the appellant placed his finger in NA’s vagina. Counts 2 and 3 were charged in connection with activity occurring on the one day identified as between 1 and 8 January 1996. The family, other than the appellant and NA, went out shopping. Following other actions the appellant, after removing his and her lower garments, inserted his penis into her vagina twice. NA struggled free after this and went to her room. However she responded to his call to come out because she feared he would use a bamboo cane, with which the appellant used to “discipline” the children. When she came to him, he forced her to fellate him.

5 One or two days later there was an angry exchange between them and NA said that she did not want to do “that” anymore. The appellant made some oral threats but there were no further sexual incidents. The date of offence was located by reference to the appellant being taken by ambulance to hospital after a collapse.

6 Two grounds of appeal against conviction are presented:

“1. There was a miscarriage of justice because:

(a) His Honour erred in ruling the exculpatory statements of the accused were inadmissible.

(b) His Honour erred in ruling the exculpatory statements of the accused were admissible only if the accused gave evidence.
(c) The Crown’s refusal to call evidence of the accused’s exculpatory statements in their case deprived the appellant of a fair trial.
(d) The appellant was effectively deprived of his right to elect not to give evidence.
2. The conviction on Count 1 was unreasonable and was not supported by the evidence.”

7 It is necessary to sketch some background to elaborate the complaints encompassed by ground 1.

8 Investigations into the allegations commenced after 10 March 2002 when the appellant left the family home (then at Eungella) after an argument with SA. NA then told her mother about the sexual abuse and Senior Constable Williams of Ballina had the matter reported to her. She conducted enquiries and interviews, after which on 6 April 2002, she approached the appellant who was, by that time, in Sydney. She told him that she was investigating allegations of sexual assault on NA between 1993 and 1997, to which the appellant responded “I didn’t do it”. Later that day at Penrith Police Station a video recorded interview between the appellant and Senior Constable Williams was held. Detailed allegations were put to him and, for present purposes, it suffices to record that he denied any wrongdoing.

9 At the outset of the trial, the Crown Prosecutor, in the absence of the jury, informed the Judge that “the Crown does not propose to lead those exculpatory conversations”. Acknowledging a defence protest that this was unfair, he stated that the position adopted by the Crown was that the exculpatory statements were hearsay (being made to police out of court) and that no exception to hearsay rules made them admissible, and, further therefore, counsel for the appellant should not be permitted to cross examine police witnesses to elicit the content of the conversations in which he made his denials.

10 It was not, nor could it be, disputed that the out of court statements to police were hearsay.

11 Section 59 of the Evidence Act 1995 (to the provisions of which section numbers, unless otherwise stated, refer) is unambiguous in declaring hearsay inadmissible:

“59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation”.

12 However, the statutory regime proceeds to specify various exceptions to that “hearsay rule”.

13 The learned trial judge approached the issue by accepting the hearsay quality of the material and examining whether there was an applicable exception.

14 Following extensive argument his Honour ruled:

“So on my assessment of the situation here, if the accused does give evidence it would then, in my judgment, bring him within subsection (2) of section 66 of the Evidence Act and therefore afford him an exception to the hearsay rule and entitle him to adduce evidence of what was said at the time in March (sic April) 2002 when he was initially accosted by the police and subsequently interviewed by them and that is my ruling on these matters”.

15 Earlier in his reasons for ruling he had said:

“One of the unusual aspects of this is that I think most people’s normal experience of a criminal trial on the whole includes details going before the jury unless there are legal grounds for excluding it of what happens at the first encounter with the police and, quite possibly, the contents of any subsequent interview as part of the whole picture or however else one may care to describe it. Until perhaps the passing of the Evidence Act it hasn’t been necessary to examine the effect of that Act upon what one for so long had regarded as the normal procedure”.

16 On the next day, counsel for the appellant informed his Honour that he had indicated to the Crown Prosecutor that his client, following upon the ruling, proposed to give evidence in the trial.

17 In the event, both the appellant’s response to her and the content of the interview at Penrith Station were led by the Crown from Senior Constable Williams in her evidence in chief.

18 In summary, his Honour’s view that what can conveniently be referred to as the exculpatory statements (including both the response to Senior Constable Williams on first approach and later video recorded interview) could only become admissible pursuant to s 66 and, in particular, in compliance with the condition that the appellant would give evidence. Section 66 provides:

“66. (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.”

19 Black DCJ considered that the exculpatory statements were classifiable as an asserted fact that the appellant was innocent of the allegations. Although the alleged misconduct was said to have been committed some years beforehand he regarded the appellant’s assertion of innocence as “fresh” in his memory at the time the allegations were put to him by Senior Constable Williams.

20 He came to that conclusion in response to his own rhetorical question whether “a perception of your innocence in such a matter ever cease(s) to be fresh?”

21 The construction of “fresh” in the context of s 66 has been given authoritative construction as meaning “recent” or “immediate” and although a connotation of quality may be carried, the core of meaning is to describe a temporal relationship between the asserted fact and the time of making the representation: Graham v The Queen 1998 195 CLR 606.

22 The asserted fact that the appellant was innocent of offences said to have occurred in 1994 and 1996 was not fresh in the memory, in the sense of being temporally related, when the representations were made to police in 2002.

23 In adopting the construction to “fresh” in Graham, Gaudron, Gummow and Hayne JJ in their joint judgment gave as one of their reasons for adopting the construction that, as the person who made the representation necessarily has to give evidence “to permit leading of evidence of out of court statements made by that person based upon some assessment of the vividness or quality of the recollection (as opposed to its being made very soon after the events) would be to distract attention from the quality of the evidence that the witness gives in court”. The rhetorical question which his Honour set for himself focused upon vividness and quality rather than recency.

24 It is instructive to contrast the “temporal gap” in the present case with the circumstances in R v Crisologo 1997 99 A Crim R 178 where, in a sexual assault trial, the accused was permitted to call family members to give evidence of exculpatory statements made to them on a Saturday about events alleged to have occurred on the previous Thursday. What is proposed in the present case is evidence of what was said in 2002 about events in 1994 and 1996.

25 Having regard to the construction which must be given to “fresh in the memory”, I conclude that s 66 did not provide a vehicle whereby hearsay statements became admissible as an exception to the blanket prohibition in s 59.

26 The hearsay evidence was not rendered admissible by the calling or the intended calling of the appellant.

27 The question then arises whether the evidence was admissible as an exception to the hearsay rule for any other reason. It was contended on behalf of the appellant that the evidence of the exculpatory statement was admissible without recourse to s 66. It was submitted that the statements were relevant for a purpose other than proof of the asserted fact (that the appellant did not sexually assault the complainant) namely, his credibility.

28 In the consideration of this submission it must be borne in mind that it is the hypothesis of the appellant that he was deprived of his option of remaining silent at trial and this leads to enquiry as to in what regard the evidence was germane to the credibility of the appellant. It was submitted that the issue was the credibility of “the denial of guilt implicit in the plea of not guilty”, but credibility might be thought ordinarily to attach to what someone says at some time or another and not to implications which might be drawn from pleading. I will return to this issue.

29 A passage was cited from Adam v The Queen 2001 207 CLR 297 but its context was a witness who was in fact called and whose prior inconsistent statement to police was left by the trial judge to the jury to consider as evidence of the truth of its content. In the joint judgment (Gleeson CJ, McHugh, Kirby and Hayne JJ) it was observed:

“Because, however, the evidence would be relevant both for the purpose of considering the witness’s credibility and the proof of the facts which he intended to assert in the out of court statements, the hearsay rule would not apply (s 60)”.

30 Section 60 provides:

“60 The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representations”.

31 If the appellant’s submission is correct, then self serving hearsay emanating from an accused will be admissible because it has the dual purposes of assertion of the fact of innocence and the credibility of that assertion implicit in the denial of guilt conveyed by the plea.

32 Such a consequence would be consistent with long standing practice in this State prior to the Evidence Act and, it would appear, to a significant extent since its passage. I have noted the expression of surprise by Black DCJ at the challenge to what he perceived had been “for so long … regarded as the normal procedure.”

33 The practice at common law, and, I note, said to have long been common practice was described by Hunt CJ at CL (Carruthers and Bruce JJ agreeing) in R v Keevers NSWCCA, unreported 26 July 1994:

“The fact that the investigating police officers had put the prosecution’s versions of the facts to the accused, and had given him the opportunity to answer them and to give his own account of the events in question, was relevant to the fairness of their conduct, provided that a direction was given to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty. As was said by this Court in an earlier case, it has long been common practice to adduce evidence of such conversations because, if it were not given, the jury would be left to speculate as to whether the accused had given any account of his actions when first challenged by police: R v Astill NSWCCA, unreported 17 July 1992”.

34 The hearsay, if clearly a denial of guilt, was said to be admissible and “ordinarily” should be given in evidence in R v Familic NSWCCA, unreported 4 November 1994 where Badgery-Parker J (Hunt CJ at CL and Smart J agreeing) said:

“The relevant principle is established in the decisions of this Court in Astill (unreported, Court of Criminal Appeal, 17 July 1992) and Reeves (1992) 29 NSWLR 109 at 114-115. See also Keevers (unreported, Court of Criminal Appeal, 26 July 1994). It is that where an accused person replies to a question put by police officers or responds to an invitation to comment on some matter put to him or her, what he or she says is in general admissible in evidence. If what is said amounts to no more than an assertion of the right to silence, it may be admitted but the jury should be immediately directed about the right to silence and that no inference adverse to the accused may be drawn by reason of the exercise of it: Astill (at pp8-9). Where what is said is clearly an admission then, subject of course to the question of voluntariness and the possible existence in the particular circumstances of discretionary reasons for exclusion, it is admissible. Where it is clearly a denial of guilt, it is admissible and ordinarily should be given in evidence”.

35 The qualification “ordinarily” may refer to perception of possible circumstances such as were contemplated in the third paragraph of this extract of the judgment of the Court of Appeal (Criminal Division) in R v Pearce 1979 69 Cr App R 365 (The Lord Chief Justice, Waller LJ and Lloyd J):

“(1) A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted. With this exception a statement made by an accused is never evidence of the facts in the statement.
(2)(a) A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it. This, however, is not to be limited to a statement made on the first encounter with the police. The reference in R v Storey to the reaction of the accused ‘when first taxed’ should not be read as circumscribing the limits of admissibility. The longer the time that has elapsed after the first encounter the less the weight which will be attached to the denial. The judge is able to direct the jury about the value of such statements. (b) A statement that is not in itself an admission is admissible if it is made in the same context as an admission, whether in the course of an interview, or in the form of a voluntary statement. It would be unfair to admit only the statements against interest while excluding part of the same interview or series of interviews. It is the duty of the prosecution to present the case fairly to the jury; to exclude answers which are favourable to the accused while admitting those unfavourable would be misleading. (c) The prosecution may wish to draw attention to inconsistent denials. A denial does not become an admission because it is inconsistent with another denial. There must be many cases, however, where convictions have resulted from such inconsistencies between two denials.

(3) Although in practice, most statements are given in evidence even when they are largely self serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to its being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible”.

36 The present case deals with statements which can be classified as wholly exculpatory. Such relevant doctrine as can be discerned can be traced to origins in the divorce proceedings of Queen Caroline (The Queen’s Case 1820 2 Brod & Bing 286) where the advice of the House of Lords was that a statement of mixed matters, some self serving and some against interest, must be placed in whole before the tribunal of fact.

37 The Crown Prosecutor accepted this rule in the case of “mixed” material but contended that, while admissions as statements against interest are admissible at common law (and s 81) based upon the rationale that such are generally truthful, the converse does not apply to self serving statements.

38 That contention should be viewed in the light of the opinion of Kirby P in R v Astill 1992 63 A Crim R 148 @ 156 who, after citing Lord Wilberforce in Ratten v The Queen (1972) AC 378 when his Lordship referred to the distinction between the fact of words spoken and the question of hearsay arising if such fact is to be used “testimonially”, said:

“There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self-serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: ‘… reliance on the greater trustworthiness of statements made at once and without reflection …’ The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten at 389f:
‘The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded…’
And later (at 391):
‘These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused’. ”

39 It has been postulated that such assertedly inadmissible material may be put before a court at the election of the prosecution (although it may be supposed that there is implied consent of the accused to tender of material in his or her favour). In R v Higgins 1829 3 C & P 603 Parke B said:

“What a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as part of his case against the prisoner; however, if the prosecutor makes the prisoner’s declaration evidence, it then becomes evidence for the prisoner, as well as against him”.

40 That passage was cited with approval by Lee J in R v Williamson 1972 1 NSWLR 291 @ 295-6. I comment that in 1829 it certainly would not have been contemplated that the response of an accused to police assertion and interrogation could be viewed at trial on a screen and the conversation heard in the broadcast from a sound track. It is unlikely that in 1972, the availability of video recording facilities in police stations throughout the state would have been anticipated when the over a century old observation was cited.

41 Judges in various jurisdictions have not spoken with one voice on the question of admissibility of exculpatory statements made by an accused when confronted by allegation.

42 In Queensland in R v Callaghan 1993 70 A Crim R 350 the accused made exculpatory statements in response to police questioning some six hours after what had apparently been a citizen’s arrest. Evidence was permitted of what he had said at the time of apprehension in order to rebut any inference of guilty mind from flight but the content of the police interview was rejected when counsel sought to cross examine the officers as to what was said to them. However, in a summary of argument it was recorded that the appellant’s submission in that case was “such evidence ought to be received ….. (to) show that the appellant gave a similar version on a prior occasion, and this would show consistency; it would go in as evidence of his reaction to the police investigation, and would support his credit”.

43 Fitzgerald P observed that “in my opinion, the exculpatory record of interview upon which the appellant sought to rely did not meet the tests upon which he based his argument”. However, Pincus JA and Thomas J expressly rejected the submission that the evidence was admissible on any of those bases and specifically rejected the proposition that what is said by an accused to a police officer was admissible. Their Honours understood the appellant’s argument to be based upon what they described as the perplexing decision of the Court of Appeal (England) in R v Tooke 1990 90 Crim App R 417. They noted that that case suggested that there is a principle that a statement which is not an admission is admissible to show the reaction of the accused at the time he made it. It suggests that such statements are admissible where the accused is taxed either by the police or by somebody else and that the test of admissibility is a threefold one – whether the statement was spontaneous, relevant and added weight to other testimony in the case.

44 Their Honours went on to examine what they discerned as a change in attitude in English authority which originally accepted that self serving statements, even when forming part of a mixed statement, were received to show the “attitude of the accused at the time when he made it” as distinct from the trend of Australian authority which was that, once the evidence was admitted, it was available to be deliberated upon by the jury as evidence of fact. They noted that since the decision of the House of Lords in R v Sharp 1988 86 Crim App R 274 the English position has come into line with that which they perceived in Australia.

45 However, they expressly declined to follow Tooke and further rejected an approach which had been taken in New Zealand.

46 In New Zealand in R v Coats 1932 51 NZLR 401 Ostler J observed:

“Exculpatory statements made to the police when making enquiries about a crime or suspected crime, if properly obtained, are always admissible both for and against the person who made them if he is subsequently charged with a crime”.

47 In the same case Smith J thought that such statements were admissible as part of the “rules of practice”.

48 In Western Australia in R v Middleton 1998 100 A Crim R 244 an accused gave an exculpatory explanation of how his wife was killed but, as it was not video recorded, it was argued to be inadmissible in accordance with s 570D of the Criminal Code. Pigeon J (in dissent) expressed the opinion that it would not be permissible to bring in exculpatory material by way of cross examination as that would be hearsay and such evidence could only be admitted by direct evidence from the appellant in the witness box. Ipp and Heenan JJ held that there were exceptional circumstances within the statutory provision which, in the interests of justice, led to a conclusion that the content of the interview should be admitted. The basis of their Honours’ finding was, however, that it should be admitted as capable of being relevant to the state of mind of the accused at the time of that and subsequent interviews which did not face the same admissibility barrier.

49 Ipp J, referring to Sharp observed that the rationale for admitting exculpatory parts of one whole statement is that as such were uttered on the same occasion as admissions were made, reliability might be thought to be greater. He noted that where exculpatory utterances are part of a separate statement, that consideration would not apply and he concluded then that if admitted they could not be relied upon as evidence of the truth of the content.

50 His Honour also observed:

“There is a line of English authority to the effect that a self serving statement is admissible to show the reaction of the accused at the time he made it: R v Pearce 1979 69 Crim App R 365; R v McCarthy 1980 71 Crim App R 142; R v Tooke 1990 90 Crim App R 417. In R v Callaghan , the Court of Appeal of Queensland declined to follow these authorities. I shall, for the purposes of these reasons, without expressing an opinion on the matter, accept that this rule is not part of the law in Australia”.

51 As indicated in the extracts from Keevers and Familic (and the references therein to Astill and Reeves) there has been an acceptance of the admissibility of the response of an accused to allegation at common law in New South Wales.

52 Irrespective of the differences that can be noted in the above it is clear from the unequivocal terms of s 59 that the common law has been subordinated to the statute. The express language of s 59 removes the potential for preservation of any different common law rule such as contemplated by s 9 which provides:

“9(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.”

53 As the exception offered by s 66 was inapplicable, the sole perceptible basis of admissibility of the exculpatory statements was the exception created by s 60. Whilst it is apt to speak of the credibility of a witness (including an accused who testifies) in connection with what he or she says, the credibility of an accused is put in issue in a unique sense at a trial as a consequence of the plea of not guilty. Thus preceding exculpatory statements have, in a case such as the present, the dual relevance of denial of facts alleged and credibility of the accused.

54 However, as I have already mentioned, once the appellant indicated his intention to testify, the material was in fact tendered by the Crown. A complaint of the appellant is that, as it was necessary for him to take that course in the light of his Honour’s ruling, he had thereby lost the option of remaining silent at the trial and inviting the jury to at least doubt his guilt by according some weight to the denials made to Senior Constable Williams.

55 This raises the question of whether the Crown ought to have tendered the exculpatory statements. In harmony somewhat with the observation of Parke B in Higgins, the Crown Prosecutor in a written submission to the Court contended:

“Sometimes prosecutors tender police interviews of accused persons even though they contain no admission. This tender is done not because of any obligation to tender the material but as a benefit tendered by the prosecution and accepted by the defence. Because it has happened with some frequency notwithstanding its inadmissibility, there (sic) has become an expectation on the part of some defence lawyers that prosecutors always tender exculpatory statements by an accused. Insofar as the appellant may have been deprived of a tactical advantage, from the tender of inadmissible denials, such a tactical advantage is not based on any legal entitlement.”

56 Since the abolition of the entitlement of an accused at trial to make an unsworn statement to the jury, it was acknowledged (and confirmed by observation of cases which pass through this Court) that it is a not infrequent occurrence for an accused person, after tender by the Crown of the content of exculpatory material usually in the form now of a video taped interview, to invite the jury through counsel to consider that material as response to the Crown case and a basis for a verdict of not guilty.

57 It would be, to say the least, unsatisfactory for that course to be open to some accused but not to others as a matter of mere happenstance. I am not implying that prosecutors do not behave responsibly but if the tender of such material is done as a matter of unfettered discretion it would be expected that some prosecutors would tender it and others would not.

58 A danger which would need to be guarded against would be that contemplated in Pearce that an accused may bring forward a contrived “hearsay case”.

59 Nevertheless, it is submitted on behalf of the appellant that the Crown should have called the exculpatory evidence as “a rule of fair play essential to the proper administration of justice”. It would certainly lead to unfairness if evidence of this type were tendered or not as a result of arbitrary selection on the part of a prosecutor. I consider that, absent some particular reason for refraining from doing so, such evidence should be put before the Court by the prosecution.

60 On the basis that an exculpatory statement is admissible as within what is conceived by s 60, a mechanism to inhibit abuse is provided by s 137 which, inter alia, vests a presiding judge with a wider discretion to reject evidence than possessed pursuant to common law. Specifically, where probative value is outweighed by danger that the evidence may be unfairly prejudicial to a party, (in such an instance, the party being the Crown), there is power to reject it.

61 It was submitted on behalf of the Crown that the appellant’s argument involved restoration by “a back door” of the abolished entitlement of an accused to make an unsworn statement to the jury. That is not the case. The evidence would only be available to persons who responded to confrontation by denial. As I have just observed, there is mechanism for rejection of contrived denial.

62 I am conscious that the concept that the statement in response to allegation is germane to the credibility of an implied assertion of innocence in a plea of not guilty involves a very liberal construction of the scope of s 60. I consider that construction should be so extended in congruity with principles applicable where criminal liability is sought to be affixed. There should be a recognition of the attributes of modern technology and, in particular, a video record provides a rational resource from which credibility assessment might be made. Further, I would be reluctant to determine that the statutory construct had extinguished the availability of a common practice in the conduct of criminal trials in this State in the absence of express statutory indication that that was the intention of the legislature.

63 It can incidentally be observed that a determination of whether the evidence of a witness is credible from viewing that witness testifying by means of video screening is an acknowledgment of the available technology and a necessary concomitant of a variety of legislation providing for witnesses to give evidence by that method. It is consistent with the implication of such provisions that, in similar fashion, statements by an accused presented on video display be assessed by a tribunal of fact.

64 In summary:

(a) the exculpatory statements were not admissible pursuant to the exception to the hearsay rule created by s 66 and it was irrelevant to require the appellant to establish that he was going to be called to give evidence for the purposes of bringing that provision into play;
(b) the exculpatory statements were admissible as an exception to the hearsay rule by reason of the dual purposes of the evidence seeking to demonstrate the asserted fact (that the appellant did not commit the sexual assaults alleged) and credibility deriving from his proclamation by plea that he was not guilty. By reason of the dual purposes (s 60) the evidence would not be excluded by the credibility rule (s 103);
(c) subject to the exercise by the presiding judge of power, in particular but not limited to, that vested by s 137 to reject evidence, the evidence ought to have been tendered by the Crown. That view does not exclude the possible situation that it might be rejected pursuant to objection by an accused. For example, the content of questions asked in an interview may be considered so prejudicial that an accused would not seek to put before the jury even self serving responses to such questions.

65 Applying those conclusions to the present case, his Honour should have ruled the evidence admissible without recourse to s 66 and without requiring the appellant to place himself in the position that he was to be called to give evidence.

66 However, in the event, the evidence was in fact called by the Crown and the only actual difference in the course of trial was that the appellant may have elected not to give evidence. On the other hand, he may have elected to give evidence in which case the course of the trial would be no different from what it in fact was. It is difficult to accord weight to the complaint that he was denied a fair trial because he might have elected not to give evidence. It is not submitted that he resiled from his denial of wrongdoing in his testimony. It is true, of course, that the jury may have disbelieved him as a witness but they were given clear directions that the onus of proof of the offences lay upon the Crown and they would have understood that conviction would not follow simple disbelief of the appellant.

67 The ground propounded by the appellant did not assert that the trial miscarried because the appellant gave evidence, but that it was unfair because he was deprived of the right not to give evidence.

68 Insofar as the learned trial judge admitted the evidence of the exculpatory statements by reference to an inappropriate statutory exception to the hearsay rule, there was an error of law. Given that the evidence was in fact tendered by the Crown as sought and that no complaint is made that the appellant suffered prejudice by actually giving evidence, I am persuaded that no substantial miscarriage of justice occurred and I would not set aside the convictions on this ground.

69 I turn to ground 2. It was an essential element of proof of the charge in count 1 that when the assault took place the complainant was aged less than ten years. The indictment pleaded that the offence occurred between 26 and 30 May 1994. The complainant’s tenth birthday was 14 September 1994.

70 The evidence to establish the occurrence during the stated time frame was a description of the assault when the appellant and the complainant together with her sister TA were lying on a bed in the residence at Valiant Street, Kingscliff. This residence was distinguished from another where they had lived at Seaview Street. The complainant’s mother gave evidence that she was at Gin Gin accompanied only by the child PR and it was a few days before his second birthday (28 May 1994). The complainant said that the offence took place while her mother was at Gin Gin and it was the linkage of these items of information which was relied upon as establishing the complainant’s age as less than ten years at the relevant time.

71 The thrust of the appellant’s argument is based upon a combination of matters namely:

(a) at one point the complainant when asked about her age when her mother and PR went to Gin Gin said “I was probably eleven or twelve, maybe”.

(b) In cross examination she agreed that she had once held a memory that the event occurred whilst her mother was away in Sydney.
(c) When the complainant spoke to police she did not at that time remember that the offence complained of in count 1 happened whilst her mother was in Gin Gin.
(d) The complainant’s mother agreed that she had made other trips to Gin Gin apart from the one during which PR turned two, and also made trips to Sydney, and
(e) The complainant and her mother had discussed dates and the complainant had been reminded about the trip to Gin Gin.

72 The submission is that the evidence was insufficient to support the necessary proof of age. Clearly, if the jury accepted the evidence that connected the event with the trip to Gin Gin during which PR turned two, it was sufficient. I am unpersuaded that it was unreasonable in the circumstances. The fact that the complainant was reminded of the trip would give rise to a need for careful scrutiny, but the critical detail was to attach the behaviour complained of to PR’s second birthday which was an inflexibly located date.

73 On that date the complainant was indisputably less than ten years of age.

74 It was open to the jury to conclude that the complainant was truthful when she associated the assault with a trip away by her mother and brother whilst she, her sister and the appellant were left at Valiant Street, Kingscliff. It is true that there was evidence of other trips by the complainant’s mother to Gin Gin but the critical circumstance was the separation into the mother and brother at Gin Gin on the one hand and the sisters and the appellant at Kingscliff on the other. It was not suggested that there were other occasions when the family unit was divided in that particular fashion.

75 I would not sustain this ground.

76 I would dismiss the appeal against conviction.

77 Given the erroneous information as to maximum available penalty given to his Honour and the impositions in excess of available maximum on counts 2 and 3, leave to appeal against sentence must be granted.

78 The grounds advanced on behalf of the appellant were expressed:

Ground 1 – the sentences imposed on counts 2 and 3 exceed the maximum penalty then available.
Ground 2 – his Honour erred in imposing the sentence on count 1 by relying on a maximum penalty that exceeded that then available.
Ground 3 – the sentences imposed were manifestly excessive.

79 In their terms, grounds 1 and 2 are made out. It will be necessary to resentence and there is no need to examine ground 3 separately as issues surrounding it can be attended to when considering resentence.

80 A supplementary argument was advanced with which it is convenient to deal with first. An affidavit of Mr Hutchins affirmed 5 April 2005 sets out his knowledge of the practice of the Parole Board concerning persons who do not undergo Custody Based Intensive Treatment (CUBIT) programmes for sex offenders. Such programmes are not made available to convicts who deny their offences. It might be mentioned that an affidavit by the appellant affirmed 15 April 2005 was also filed but it makes no reference to whether he now accepts or continues to deny his offences although, of course, he has pursued his appeal against conviction. The submissions on his behalf assume that he continues to deny the offences. On that assumption the point raised is identical to that (also based on evidence by Mr Hutchins) which was dealt with in R v Reyes [2005] NSWCCA 218.

81 It suffices to repeat what was said about that issue then:

“The respondent seeks to rely upon information presented to the Court in the affidavit of Mr Hutchins, the solicitor in charge of the Prisoners Legal Service of the Legal Aid Commission of New South Wales. In summary, Mr Hutchins testifies that the Parole Board exercising its function with regard in particular to s 135 of the Crimes (Administration of Sentences) Act 1999 takes the view that it is not in the public interest to grant parole to an untreated sex offender and that the risk of reoffending is high. Alternatively the Parole Board may grant parole only towards the end of sentence (six months is suggested) so that there is only a brief period of parole supervision and monitoring before the sentence expires.
He claimed that this means in practical terms that an offender must undergo therapy programmes of various sorts which are available under the umbrella title CUBIT (Custody Based Intensive Treatment). An offender who wishes to participate in such programmes, but denies offences, is not accepted into the programmes.
The submission that this should be taken into account as a reduction factor in the assessment of sentence should be rejected. The core of jurisdiction to impose any sentence is guilt of the offender. It is an election of the offender not to accept guilt but it would be inconsistent with the task of the sentencer to make an assessment other than on the basis that guilt has been proved beyond reasonable doubt.
Counsel referred to no authority for the proposition that this particular risk of service of full sentence could be a factor in assessment. The absence of authority is not surprising. It requires little imagination to postulate a situation that, if a persistent claim of innocence after conviction were maintained and this attracted a reduction in sentence, an offender could adopt that position but, after receiving the discounted sentence, alter his stance, undertake a CUBIT programme and earn release from the shortened sentence. Once sentence is passed (absent express legislation such as applies to persons who renege on offers to assist law enforcement authority) there is no facility for cancelling a discount received by a manipulative offender.”

82 I note the additional references to what was said about conditions of custody in R v Moystyn 2004 145 CLR 304 and about obstacles to parole where an offender maintains denial in McCallum v Parole Board [2003] NSWCCA 294. Nothing in those cases would operate to alter the opinion expressed in Reyes.

83 I turn to resentence. The appellant has some minor prior convictions dealt with by fine and/or recognizance. Prior record was not referred to in Black DCJ’s remarks on sentence and I do not regard the prior matters as of any significance. None related to a sexual crime. I should also make some other reference to his Honour’s remarks. The sexual assaults were of different character in each of the counts charged. Count 1 (when the victim was aged less than ten) involved digital penetration of the vagina, count 2 involved penile penetration and count 3 involved fellatio. It was accepted by counsel that the appellant could not assert that these were isolated offences and claim leniency on that basis, but, of course, he was not to be sentenced for uncharged offences.

84 With particular reference to counts 2 and 3, his Honour said that he appreciated that there was “no distinction in the Act of Parliament about it” and, while that is accurate, it needs to be remembered that the heinousness of the conduct is to be judged on the facts even though different conduct is within the scope of the statutory definition: Ibbs v The Queen 1997 163 CLR 447.

85 There was evidence before the sentencing court of physical and mental illness affecting the appellant. His Honour found that the extent of the latter was not a reason for reducing the reflection of general deterrence and that finding was not challenged. He found, however, that the appellant was a high suicide risk and had both thyroid and cardiac problems which “will cause considerable restriction on the time spent in custody by (the appellant)”. He used these matters as a basis for finding special circumstances justifying a departure from the statutory proportion between total sentence and non parole period but not, apparently, in his assessment of the overall term.

86 For the purpose of resentence, this Court has supplementary information in the affidavit of the appellant which I have mentioned. On initial commitment to custody he was the subject of a “suicide watch” at Grafton. Since imprisonment on 27 February 2004 he has been moved to various units at Grafton, Cooma, Junee and Goulburn. He anticipates further moving.

87 His affidavit contains this information relating to his health up to the present time:

“I have a number of health problems I have been diagnosed with schizophrenia and depression and have some brain damage. I also had heart surgery in 2003, a triple bypass. I also suffer with asthma and thyroid problems. Just before I came into custody and when I first came to gaol I was told that I had diabetes but more recently, after further tests here, I was told I did not have diabetes. I am on a number of prescribed medications and my health is usually looked after at the gaol clinic.
Until recently I had only seen a psychiatrist once since I came to gaol and that was at Grafton Correctional Centre. Early this year I asked to see a psychiatrist because I began to get some symptoms. I was starting to hear voices again. I was sent to see the psychologist who referred me to the psychiatrist straight away. I have seen the visiting psychiatrist here twice now. The psychiatrist took me off Cipramil which wasn’t working and placed me on new medication. I do not remember the name of the new drug. I was initially placed on 125 mg per day but the psychiatrist has increased it to 225 mg per day. I don’t know why I started to hear voices again and to get worse but think it is at least partly because of anxiety and stress.
Currently I am on Zyprexa for schizophrenia. Until recently I was on Cipramil for depression, but I was taken off that and put on other medication as I mentioned above. I am also taking 100 mg Aspirin for my heart, Noton for migraine and Thyrax for my thyroid. I have a puffer for Asthma.
I gave up smoking after my bypass but took it up again when I went into custody. About 5 weeks ago I gave up smoking again. I was told that I had to give it up as my lungs were in a really bad state and that I had the lungs of an 84 year old man. I have given up smoking and feel a little bit healthier but it is very difficult to give up particularly in custody.
Generally I do not feel very well. I feel tired and unwell all the time and don’t have any energy. I am also having trouble sleeping at night”.

88 The material in this affidavit was not challenged.

89 Like Black DCJ I would find special circumstances but it is necessary to have regard to the appropriate prescribed maximum terms rather than those erroneously conveyed to his Honour. Counsel also drew attention to some unreported cases decided in this Court for the purposes of guidance. It will suffice simply to identify these and note that they have been considered: R v Latu 6 July 1993; R v Skinner 28 October 1993; R v Bryant 27 June 1994; R v Brooker 21 February 1996.

90 The conduct charged in counts 2 and 3 took place on the same day and although it was different, it is appropriate that those sentences be served concurrently as arising from the single manifestation of criminality. The conduct in count 1 occurred a considerable time earlier, was more serious in terms of available prescribed maximum penalty and involved a victim of very tender years. Having regard to the separateness between the commission of the offence in count 1 and those in counts 2 and 3 there should be a measure of accumulation.

91 I propose the following orders:

(1) Appeal against conviction dismissed.
(2) Leave to appeal against sentence granted. Appeal allowed.
(3) Sentences imposed in the District Court quashed and in lieu thereof the appellant sentenced as follows:
(a) On count 1 to a non parole period of three years commencing on 27 February 2004 and expiring on 26 February 2007 and a total term of six years imprisonment commencing on 27 February 2004.
(b) On each of counts 2 and 3 to a non parole period of two years six months commencing on 27 August 2005 and expiring on 26 February 2008 and a total term of five years imprisonment commencing on 27 August 2005. The sentences on counts 2 and 3 to be served concurrently with each other.
(c) The earliest date for eligibility to parole specified as 26 February 2008.

92 BARR J: I agree with Grove J.

93 LATHAM J: I agree with the judgment of Grove J.

**********