R v Slack - [2003] NSWCCA 93

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v SLACK [2003] NSWCCA 93

FILE NUMBER(S):
60486/02
60500/00

HEARING DATE(S): 21 March 2003

JUDGMENT DATE: 07/04/2003

PARTIES:
Shane Robert Slack - Appellant
Crown - Respondent

JUDGMENT OF: Sheller JA Wood CJ at CL Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1118

LOWER COURT JUDICIAL OFFICER: Viney QC DCJ

COUNSEL:
P J O'Donnell - Appellant
L M B Lamprati - Crown

SOLICITORS:
John Taylor - Appellant
S E O'Connor - Crown

CATCHWORDS:
Criminal law - Evidence - Cross-examination of accused - Matters collateral to facts in issue - Where beyond bounds of legitimate cross-examination to credit

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence (Children) Act 1997
Evidence Act 1995

DECISION:
1 Appeal allowed
2 Quash the convictions and direct a judgment and verdicts of acquittal to be entered
3 Crown appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60486/02
60500/02
SHELLER JA
WOOD CJ at CL
SMART AJ

Regina v Shane Robert SLACK

The appellant was convicted on two charges of aggravated sexual assault of a girl then aged eleven. At trial, the cross-examination of the appellant by the Crown Prosecution focussed extensively on the appropriateness of attempting to hypnotise young girls without the knowledge of their parents and the appropriateness of accepting the assurances of girls under the age of 15 that they were not permitted to watch 15+ movies. The hypnosis in question had taken place on a prior occasion and had allegedly formed part of a game. There had been significant in complaint.

HELD (Per Sheller JA, Wood CJ at CL and Smart AJ agreeing):

1.Cross-examination of a matter merely collateral to facts in issue is restricted to questions which legitimately go to credit: Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 cons; Harris v Tippet (1811) 2 Camp 637; (1811) 170 ER 1277 cons; Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 foll; Wentworth v Rogers(No 10) (1987) 8 NSWLR 398 foll.

2.The cross-examination was designed to prejudice the jury against the appellant and went beyond the bounds of legitimate cross-examination on credit.

3.The jury may have been diverted by this evidence from an objective consideration of the evidence and this led to a substantial miscarriage of justice.

Legislation:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence (Children) Act 1997
Evidence Act 1995
Cases cited:
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Harris v Tippett (1811) 2 Camp 637; (1811) 170 ER 1277
M v The Queen (1994) 181 CLR 487
R v Dent (unreported) CCA 14 March 1991
R v Evans (unreported) CCA 24 March 1988
R v Eyles (1963) 47 Cr App R 260
R v Johnston (1998) 45 NSWLR 362
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398
Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213
ORDERS
1. Appeal allowed;

2.Quash the convictions and direct a judgment and verdicts of acquittal to be entered;

3. Crown appeal against sentence dismissed.

**********

IN THE COURT OF
CRIMINAL APPEAL

60486/02
60500/02
SHELLER JA
WOOD CJ at CL
SMART AJ
Monday, 7 April 2003

Regina v Shane Robert SLACK

Judgment

SHELLER JA:
Introduction
Shane Robert Slack was convicted on 5 September 2002 on two charges of aggravated sexual assault (s61J(1) of the Crimes Act 1900) both of which occurred on 1 September 2000. On each count he had pleaded not guilty. He appeals against conviction. The trial took place before his Honour Judge Viney QC and a jury of eleven beginning on 2 September 2002. On 25 October 2002 Judge Viney sentenced the appellant on each charge to a term of imprisonment of three years from the date of sentence with a non-parole period of two years, the non-parole period to be served by way of periodic detention. The Crown appeals against that sentence as inadequate.
Facts found
The sentencing Judge described the facts, which the jury must have found proved beyond reasonable doubt, in the following way. On the night of 1 September 2000 the appellant went to the bedroom of his house where the complainant, who was a girl then aged eleven, was in bed and inserted one finger into her vagina on two occasions some minutes apart. The sentencing Judge described the wider circumstances as follows. The appellant, who was born on 8 September 1960, is a divorced man. The two daughters of his marriage were in the custody of his former wife. For some time the appellant had had regular access. His daughters came to his home every two weeks for the weekend. At the date of sentencing they were aged fourteen and eleven years. The complainant was a friend of one of his daughters. She had been to his house with his daughters on a previous occasion for an overnight stay. That was some time, perhaps weeks, before the occasion in question. There was nothing untoward about that visit.
On Friday, 1 September 2000 an arrangement was made for the complainant to come to the appellant’s home for an overnight stay with his daughters. He and his daughters collected the complainant from her home and they went to his house where they had dinner. The children watched a video film which had been obtained from a nearby video store. Subsequently the suggestion was made that they engage in hypnotism games. This had happened on the previous visit. The complainant said she was too tired and that idea was abandoned. The children went to bed. The home has several bedrooms. The complainant elected to sleep in a double bed with the daughter who was her friend. After they had gone to bed and while the daughter was asleep, the appellant went to the room and, as his Honour said according to the facts found by the jury, knelt beside the bed and spoke to the complainant. He put his hand under the sheet and placed his finger into her genital area inserting it into her vagina.
The complainant took part in a video interview with a police officer as investigating officer. An edited version of the video tape was admitted (exhibit B) and played in the presence of the jury; Evidence (Children) Act 1997, s11. A copy of the transcript of the edited version of the video tape was made available to each member of the jury before the video tape was played to the jury. During the interview the complainant gave the following evidence:
“Q.402 Did his finger go inside your vagina? A. Yeah
Q.403 Yeah, okay. How did that feel when he did that? A. Like, well, he didn’t like, right, he was just, didn’t really go like up my vagina but just moving it around.”
The complainant said this went on for ten or twenty seconds and she fidgeted and he moved his hand away. She said she was lying on her tummy and that for him to do this he had lifted her leg up in some fashion and put his hand under her shorts. She said he was also asking her questions about sex scenes in movies and about the relationship her mother had with a man her mother was seeing at the time. Then he moved her leg up and, as she put it, fingered her again, in that he put his hand underneath her underpants and his finger went inside her vagina again and he moved it around for a bit longer. She moved again and he desisted. This was the second charge in the indictment.
The complainant said the appellant gave her a lolly and she tried to swallow it but it tasted bitter. He went outside and came back with a drink, possibly lemonade, and she drank it and swallowed the lolly or tablet. She then went to sleep.
The next morning breakfast was had and nothing was said of any consequence. The appellant and the children went off to a school fair and eventually the complainant went home.
The complainant did not say anything to her mother or to her schoolteacher. Twelve months later she made a statement about the matters complained of.
In cross-examination the complainant said that to her recollection when she got to the house videos films were already there. In his evidence the appellant said he did not have the video films at the house. He took the three children to the video store and let them select the video films they wanted to watch. There was evidence that the appellant had hired the video films at the video shop at about 6.41 pm that night. The appellant also said in evidence that while he and the children were at the video shop he asked the complainant whether her mother permitted her to watch PG films and such like. The complainant denied going to the video shop with the appellant and the other children. The Crown suggested to the jury that perhaps the appellant had slipped out himself alone to get the video films.
The appellant’s children did not give evidence. Their mother said she had told the police she did not want them to give evidence. The complainant did not complain of this incident to anyone at the time. She said she hoped it would go away and she did not want to tell anyone about it.
Remarks on sentence
The sentencing Judge made these observations. In accordance with the verdict of the jury the case was an example of a mature male taking advantage of an eleven year old girl to exact some sort of satisfaction by touching her body and putting his finger in her vagina twice within a couple of minutes on a night when she was under his care and protection. The Crown pointed to pronouncements of the Court of Criminal Appeal about the principles of sentencing to be applied for crimes of this kind.
The Judge accepted the following of defence counsel’s submissions on the objective seriousness of the offences. The evidence did not admit of a conclusion beyond reasonable doubt that the case was one of premeditated violation of the rights of the complainant. There were no threats, cajoling, or subsequent attempts to bribe the complainant into silence. Nor did the selection of the videos the children watched admit of any suggestion that the appellant was seeking to inveigle the complainant into some sexually vulnerable state of mind. The appellant’s two daughters both watched the video at the same time and there was no evidence that the appellant was present. The actual penetration of the vagina was to the smallest degree. The complainant said there was no physical discomfort or any suggestion of any physical damage or physical trauma. It must have been penetration to only the slightest degree. The range of acts of sexual intercourse covered by the section was vast. The acts of the appellant must rank as the absolute minimum to qualify as sexual intercourse in the circumstances as found by the jury.
The sentencing Judge accepted counsel’s submission that but for the jury accepting that there was penetration to that slight degree, the acts alleged would be acts of indecent assault: R v Dent (unreported) CCA 14 March 1991 at page 5.
The sentencing Judge said:
“Accepting as I must the verdict of the jury I am satisfied that this was what might be described as an impulsive opportunistic offence of very short duration without additional trauma to the victim and in all the circumstances can be categorised as more or an aggravated indecent assault. Having said that though I do not consider it a trivial matter.”
His Honour quoted from the judgment of Street CJ in R v Evans (unreported) CCA 24 March 1988:
“Parliament has made clear beyond question that tampering with children of tender years is a matter of grave concern to the community. A child has a right to have its body intact and not defiled by sexual predators. That right is a precious right which must be protected by the parents, by the police and by the courts to the full extent of their powers.”
The sentencing Judge referred to the following subjective matters including the appellant’s age, then forty-two, and the fact that he had no prior convictions. He completed his school certificate and then worked as a bank clerk when he left school and after that with Telecom and in the hospitality industry. From 1986 to 1993 he had his own printing business. Thereafter for the previous nine years he had worked for State Rail as a training officer. He had achieved a number of certificates for courses connected with his employment. Testimonials were produced about his achievements in that field. Also there were several written statements from people who had known him for many years. These show he was well respected as a citizen, father and community worker. He was a member of the Rural Fire Service and testimonials confirmed his commitment to that service, particularly in emergencies of the previous summer. The material also confirmed his considerable community service activities. There was also written material from his daughter, Rebecca, and his former wife, Ms Helen Hogan.
In a letter of 17 October 2002 Ms Hogan wrote:
“This letter is to verify that Rebecca and Melanie stay with their father in his home each second Friday & Saturday & appear happy to do so at this stage of their lives.
Shane has made the girls a priority in his life.
Rebecca & Melanie have always been very actively involved in school activities & weekend sport.
Shane has always been supportive of these activities. Shane has always attended concerts, sporting events, fetes, and information evenings. Anything Rebecca & Melanie ask him to be a part of he gladly participates in.
Shane is very reliable & punctual when picking Rebecca & Melanie up. He rings them regularly and they know that they can call him any time, he always returns their calls.
Shane financially & emotionally contributes to Rebecca & Melanie’s needs.”
His daughter, Rebecca, reinforced this material in a letter.
The sentencing Judge continued as follows:
“The jury having found the prisoner guilty of both charges I have come to the following conclusions based on such of the objective facts as must have been found beyond reasonable doubt by the jury: On the night of 1 September 2000 the prisoner went to the bedroom and spoke to the victim; he put his hand under the sheet and put his hand under her shorts and placed his finger in and about her vagina on two occasions. He then left the room. The Crown accepts it was all one episode and any sentences should be concurrent. This girl was under the age of sixteen, namely eleven and that is the aggravating feature. She was under his protection as a guest in his house at the time.
I accept that the objective seriousness of these crimes is at the absolute lowest end of such an offence under s61J(1). There was no force, threat of violence, injury or threat of injury, nor attempt to silence the victim thereafter. It was, at most, an opportunistic offence with no sequelae. The prisoner is a man of prior excellent character with an impressive reputation as an employee, father and contributor to the community. It has been pointed out in the Crown’s submissions that there is no evidence of remorse. The prisoner pleaded not guilty and still maintains his innocence. Of course he is entitled to do that. All that means is that he would not get the advantage of any discount for pleas of guilty but it does not mean that he should receive a higher sentence because of that.
Taking all of these matters into account there has to be nevertheless a gaol sentence. The community will not tolerate the abuse of children in any sexual way.
Turning to the matter of special circumstances. This is the first time he will serve a gaol sentence. He will clearly require a significant period of post custody supervision to return to society with proper prospects of full rehabilitation. To that extent there are special circumstances which will alter the equation between head sentence and non-parole period.
Accordingly there will be a head sentence of three years imprisonment with a non-parole period of two years.
The subjective material indicates he is in employment, although whether his present job will remain open to him I cannot say. He contributes to the maintenance of his two children to whom he is clearly devoted. It would contribute to his prospects of his rehabilitation for him as well for him to be able to follow gainful employment. Accordingly, I propose to direct that the non-parole period be served by way of periodic detention for which he is eligible.”
Certificate under s5(1)(b) of the Criminal Appeal Act
After imposing sentence, at the request of the appellant’s counsel, his Honour granted a certificate under the Criminal Appeal Act 1912 that the case was one fit for appeal against conviction. Section 5(1)(b) enables a person convicted on indictment to appeal upon the certificate of the Judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal.
A trial Judge should not grant a certificate only because counsel has asked for it, if there is no sufficient ground for granting it; for example, if the trial Judge thinks there was sufficient evidence to justify a conviction and no point of law has arisen; R v Eyles (1963) 47 Cr App R 260.
Report from the trial Judge
The appeals came before this Court on 10 February 2003 when the Court adjourned them and set in train the process for a request by the Chief Justice for a report from the trial Judge; s11 of the Criminal Appeal Act. Judge Viney furnished a report dated 17 February 2003. After referring to the charges, trial and verdict and the granting of the certificate the report continued as follows:
“The complainant did not make any complaint to anybody after 1 September 2000. She first made a statement to the police in September 2001. I may have erred in not directing the jury adequately about the lack of complaint, especially where there is no other evidence supporting the complaint.
The evidence in chief of the complainant was in the form of a recorded video-interview, as provided by the Act now. I think I made an error in giving each of the jury a transcript of that interview before the video of her evidence was played and they had it thereafter. In the period of their deliberations they had this transcript (and, I think, the video interview itself – although after all this time I am not certain of that).
The jury were out from 1.07 pm to 4 pm on 4 September; then from around 9.30 am to 3.56 pm on 5 September when they returned with their verdicts. The number of questions the jury asked, and the nature of the questions seems to indicate that at least some of them had reservations about the guilt of the Appellant on this evidence.
It was a significant aspect of the complainant’s evidence that (1) the appellant spoke to her in the bedroom prior to/during the alleged offences about whether she was allowed to watch PG and X rated videos and (2) that when the children arrived at the house the video they watched that evening was already in the house. She denied that she and the other two girls went with the Appellant to hire videos. It was the evidence of the Appellant that he took the children to the video store for them to select the videos they wanted to watch, and it was at that time he asked the complainant whether she was permitted to watch PG and X rated videos. The records of the video store confirmed that he hired the videos that evening some time after 6 pm.
The accumulation of these factors led me to the opinion that the jury should have found the appellant not guilty and that their verdicts are unsafe and unsatisfactory. (trial Judge’s emphasis)”
Appellant’s appeal
The appellant appealed on the single ground that the jury’s verdicts were unreasonable and could not be supported on the evidence.
The appellant accepted that the complainant had stayed over on two occasions, the second of which was Friday, 1 September 2000. He gave evidence that he had studied hypnotism and had regularly played hypnotism games for the amusement of his daughters and friends. He testified that on the first occasion when the complainant stayed over he had played hypnotism games with her, his daughters and another friend of theirs. During the course of the games the complainant was given a jellybean, which the appellant had suggested would turn from tasting sweet to sour upon the uttering of a particular word. The appellant’s case was that the complainant had wrongly incorporated this event into her account of what allegedly happened in the bedroom on the evening of 1 September 2000.

The appellant’s case was that he had hired the video film, Deuce Bigalow Male Gigolo, that evening from a local video shop in the presence of the complainant and his daughters. On the box containing the video film was this description:
“A professional fish tank cleaner Deuce (Schneider) finds himself in desperate need of cash to quickly repair the damage he has done to a client’s luxurious Malibu apartment! Then the fun really takes off when Deuce decides the only way out of this jam is to switch to the world’s oldest profession – and offer his services to ladies everywhere as a lover for hire! A wildly irreverent comedy that always aims to please – you won’t be able to resist the charms of this light hearted laugh riot!”
The package was marked “M15+ Recommended for Mature Audiences 15 years and over - Sexual references”.
The appellant testified that the girls wanted to rent this particular movie and that he was concerned both as to its rating and as to the parental warnings about sexual references that were on the video cover. He thereupon briefly quizzed the complainant as to what ratings she was allowed to watch because of his concerns as to what her mother would allow and testified that he may have, in that conversation, referred to exposure to sex scenes in the video to determine whether the video was appropriate for her. Having satisfied himself on this topic he rented the video. There was uncontested evidence before the jury that the video film was one of three rented at 6.41 pm on 1 September 2000. The appellant’s case was that the complainant wrongly incorporated the conversation at the video shop into her account of the conversation as alleged in the bedroom around the time that the offence charged in the second count was allegedly committed.
Of the allegations of sexual assault, the appellant conceded he had gone into the bedroom after the girls had gone to bed to make sure they were all right. He denied any sexual contact with the complainant, denied any conversation in the bedroom with the complainant and denied giving the complainant a lolly/tablet or a drink.
Cross-examination of the appellant
A significant part of the Crown prosecutor’s cross-examination of the appellant was directed to the appropriateness of attempting to hypnotise young girls without the knowledge of their parents and the appropriateness of accepting the assurances of girls under the age of 15 that they were permitted to watch 15+ movies. It was put to the appellant that he did not tell the complainant’s mother that he was going to hypnotise her daughter. He was asked about his training in hypnosis which he described and asked whether hypnosis reduced the subject’s inhibitions. He was asked why he had taken a course in hypnotherapy. He was asked about the ethical aspects of using hypnosis. He was asked whether he had obtained the consent to hypnotise another girl who had been a guest at his house on the previous occasion when the complainant stayed overnight. He was asked why he called it a game. He was asked about a subsequent occasion when he had hypnotised someone and said that he had not done it since. The appellant said that this was at the request of his ex-wife: “sometime round September/October that year, she said that she’d prefer the girls, because the girls were going home and telling her and I was telling her what was going on, she said that she’d prefer it not to happen.” According to the appellant he said “fine it won’t happen anymore” and it didn’t. The cross-examination continued:
“Q.         So you stopped only – you stopped because of the request of your ex-wife Helen? A. Yes.
Q.           Because she became aware of what you were doing? A. No she knew what I was doing, but she said that it probably wasn’t appropriate all of the time and I – and looking, as I said, hindsight at the time I agreed and said ‘Yes, okay, it won’t continue.’
Q.           Do you also say that you told [the complainant’s mother] the next day that you had hypnotised? A. Yes I believe I give an account when I drop any child back as to what they’ve been doing the previous day. Foods they’ve eaten either in case there’s any problems with food poisoning or something like that or maybe I’ve given them something that they shouldn’t have had.
Q.           Did you tell her that she’d been given a jellybean under hypnosis? A. I don’t believe I was specific no, I did say that we had played hypnotic games and they barked like dogs or spoke like an alien or whatever, as some examples.
Q.           Do I take it [the complainant’s mother] said ‘That’s fine, hypnotise my daughter all you like.’ Words to that effect? A.   I don’t recall, but at the time she didn’t seem concerned. I don’t recall her words.
Q.           You didn’t ask her at that time is it okay if I continue to hypnotise her? A. I don’t recall at that time she told me not to either.
Q.           That’s what they teach in the course when you get consent is it, that you just don’t have to make sure whether you’ve got consent or not? A. No, I didn’t say that either.
Q.           Because you certainly were prepared to do it again on the second occasion weren’t you? A. If it had of been at the request of the children, yes.”
A little later the Crown prosecutor questioned the appellant about hiring the video films on the night in question. The appellant was asked whether he vetted Deuce Bigalow before agreeing to hire it and why he did not insist that the children watch another video film instead of the 15+ video film. He said he did so because his children on request said they had seen it before, that their mother had allowed them to see it and that even though it said sexual references there was not really anything that was wrong with it. It was put to him that simply because the children told him that they had seen it before he was prepared to let them see the movie again. The appellant said his children told him that their mother had let them see it so he took his ex-wife’s judgment as being correct. He was then asked about the complainant and his concerns about whether she should be watching the film. The cross-examination continued:
“Q.         Did you have a mobile phone on you at the time? A. September, yes I probably would have.
Q.           All right, why didn’t you ring up her mother and ask her? A. Because it was M rated and the children had said that they had already seen it under the consent of their mother I didn’t believe it was a big issue.
Q.           I’m talking about [the complainant] not Rebecca? A. Yes, I believe because two children, my two daughters had already seen it I didn’t believe it was a large enough issue to ring a parent to say ‘Can they see this video?’
Q.           Like the hypnosis, you didn’t feel the need to directly get [the complainant’s mother’s] consent for [the complainant] to see an M movie, a 15+ movie? A. No.
Q.           Could have been easily done? A. I suppose looking back, yes.
Q.           You were concerned enough to ask her those questions weren’t you? A. Yes.
Q.           Isn’t it the situation that you’re just making up this version about taking the girls down to the video store and asking those questions and saying [the complainant] asked you or you asked [the complainant] questions about what sort of movie you want, to cover for the questions you asked her in the bedroom that night? A. No.
Q.           You asked an eleven year old whether she saw R rated films is that right? A. Correct.
Q.           Was that with a view to seeing if she was going to watch, if you were going to hire an R rate film for them? A. No with Total Recall there’s actually two movies that you can hire out on that, one’s an MA and one’s an R rated and I wanted to make sure that if the girls did happen to put that movie in to watch they weren’t going to watch something that wasn’t adequate or that they hadn’t been exposed to before.
Q.           You seriously tell the Court that you felt that you had to ask an eleven year old whether it was – her Mum said it was okay to watch R rated movies, is that right? A. I believe the discussions came up about what type of ratings that she was allowed to watch. I don’t recall the question exactly, but it came up in conversation as to the ratings that she was allowed to watch.
Q.           So if she had said ‘Yes, Mum lets me watch R rated movies’ you would have happily let her watch an R rated movie is that right? A. Again it would have been a concern as to which movie that was chosen, if it was a movie with just violence or shooting or something like that, I don’t believe I would have had a major concern. But I wouldn’t have allowed a movie of any sexual, explicit scenes or anything like that to be shown or hired.
Q.           Sorry, I’m not quite sure if that answers the question. Were you prepared, if [the complainant] had said ‘Yes, Mum let’s me watch R rated movies.’ to let her see an R rated movie? A. I don’t believe I would have let her watch one, no.
Q.           Well why ask her? A. Just see what level that she was allowed to watch and whether or not an MA was okay.
Q.           But you still didn’t think it was necessary, even though you’re talking about R films, R videos to ring up her mother and confirm what she was allowed to watch? A. No because we never hired any R rated videos on that particular night, so therefore there was no chance for her to see one anyway.
Q.           Now you said that you didn’t watch any video in its entirety, is that right? A. That’s correct.
Q.           I assume you watched some of the video at some stage? A. Yes I did.
Q.           Which video was that? A. Deuce Bigalow.
Q.           And what time did they start watching that do you remember? A. No I don’t, it was late in the evening.
Q.           Well did they watch the whole thing? A. I believe they did. I was again busy in the kitchen cooking and whatever else.
Q.           Well did they have dinner before they started watching the video? A. I believe they ate their tea in the lounge room, so they could have actually had tea while they were watching the video.”
The cross-examination to which I have referred was directed to credit. The complainant’s account that the video films had been at the appellant’s home when she arrived there was inconsistent with the appellant’s account that he had gone with the girls to obtain the video films. The appellant’s evidence included the discussion about whether or not she was allowed to see “MA or R rated video films” and his concerns about what her mother would allow her to watch. It was, of course, entirely appropriate for the appellant to be cross-examined about these matters.
There was also a factual issue about what happened during the hypnotism games on the first occasion the complainant went to the appellant’s house and in particular whether she had been given a lolly or a jellybean. Again, the Crown prosecutor could test the appellant’s account of this occasion.
The purpose of cross-examination as to credit is to show that a witness ought not to be believed on his or her oath. In Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 at 220-221 Windeyer J discussed the nature of questions which go only to credit. His Honour said at 221:
“Questions asked of a witness about his conduct in some matter merely collateral to facts in issue are permitted if they go to his credit. That is not because conduct on which he is thus questioned is alleged not to redound to his credit. It is because, if what is insinuated is admitted by him, that may suggest that he is not a man to be believed upon his oath. It is not that he is said to be a discreditable person: it is that, because of this, his testimony may be incredible. When lawyers speak of conduct or character as going to the credit of a witness, they use the word ‘credit’ in relation to credibility, his veracity, not in the sense of his worthiness.”
After referring to what was said by Lawrence J in Harris v Tippett (1811) 2 Camp 637; (1811) 170 ER 1277 about the modern doctrine which permits questions to be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of trying his credit, Windeyer J continued:
“It is important to remember the limitations of this doctrine today. As Ferguson J said in Mutch v Sleeman (1928) 29 SR (NSW) 125, at p 135, a party to an action ‘if he goes into the witness box, is liable, in common with every other witness, to be asked in cross-examination questions tending to discredit him as a witness. But this cross-examination to credit is subject in his case, as in the case of every other witness, to the discretion of the judge under s3 of the Evidence (Amendment) Act 1922. Its justification is that it may elicit facts tending to show that his evidence is not worthy of belief. Except in so far as it can be so justified, it may properly be disallowed. The nature of the questions that may be asked is not affected either by the nature of the action or by the fact that the witness is a party to it.’ (Section 3 of the New South Wales Evidence (Amendment) Act, to which Ferguson J there referred, is now ss 56 and 57 of the consolidated Evidence Act, 1929-1957 (NSW)…).”
In a case such as the present it is important that the cross-examination focuses on the issues and is restricted to questions which legitimately go to credit; see Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 at 494. In Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 408 the Court of Appeal (Kirby P, Hope and Glass JJA) said after referring to Windeyer J’s judgment in Wren v Emmett Contractors:
“The conduct of a witness cannot be used to attack his credit unless it is of such a nature as to tend rationally and logically to weaken confidence in his veracity: Bickel v John Fairfax & Sons Ltd at 494.”
In that case the plaintiff’s conduct was that she had accused a witness of perjury and asked the Attorney General to do something about it.
Their Honours held that questions put to the plaintiff were wholly inadmissible since they plainly went to no issue in the case and could only be justified as going to the plaintiff’s credit. But the conduct used to attack the plaintiff’s credit did not reflect upon her trustworthiness as a witness of truth and she should not have been questioned about it before the jury:
“its effect on the jury may well have been crucial since it was the last evidence given before them and the disparagement by the cross-examiner of her behaviour might seem to them to gain added force when the trial judge told them that any intervention by the Attorney General was unprecedented in his experience.”
The position is summarised on Cross on Evidence, 3rd Australian ed at 17510 as follows:
“Cross-examination purporting to go to credit is impermissible unless an acceptance of the truth of the matter suggested would in truth affect credibility. The conduct of a witness cannot be used to attack the witness’s credit unless it is of such a nature as to tend rationally and logically to weaken confidence in the witness’s veracity or trustworthiness as a witness of truth.”
In his remarks on sentence, the sentencing Judge said that the selection of the video films the children watched did not admit of any suggestion that the appellant was seeking to inveigle the complainant into some sexually vulnerable state of mind. The Crown did not seek to rely on any exception to the tendency rule: s97 of the Evidence Act 1995.
In my opinion, the cross-examination of the appellant soon became one designed to prejudice the jury against the appellant. The cross-examiner sought to extract concessions about whether it was appropriate for the appellant to hypnotise young girls without their parents’ permission, whether hypnotism could lower inhibitions, whether the appellant should have refused to allow the children to view an M15+ video and whether he could have telephoned the complainant’s mother to put his concerns to her. This cross-examination set out to portray the appellant as a person who engaged in what some members of the jury might regard as undesirable behaviour when caring for young girls. In the language of Windeyer J it was directed not to whether the appellant was a person to be believed on his oath but to whether he was simply a discreditable person.
No direction was sought or given on the summing up that all this material should be ignored when the jury came to consider whether the appellant was guilty of the offences charged. The appellant’s counsel took no objection to the cross-examination to which I have referred and no point has been raised about it in the arguments in this Court. It is difficult for defence counsel to object to such cross-examination. That in itself may be seen to suggest a lack of confidence in the accused’s ability to deal with the cross-examination. In my opinion, the cross-examination should have been restrained by the trial Judge without objection being taken. “[The judge] has a right on all occasions to exercise the power … of stopping examinations which are not necessary for any legitimate purpose”; Stephen, History of the Criminal Law of England Vol 1 at 436 cited in Cross, 3rd Australian edition at 17510. To my mind, the cross-examination here went beyond the bounds of legitimate cross-examination on credit.
Conclusion
Section 6(1) of the Criminal Appeal Act provides that this Court on any appeal under s5(1) against conviction shall allow the appeal if it is of the opinion amongst other things that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence or that on any other ground whatsoever there was a miscarriage of justice. In any other case the Court shall dismiss the appeal. The allowance of the appeal is subject to a proviso that the Court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
A question posed for this Court was whether it thought, upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations; M v The Queen (1994) 181 CLR 487 at 493.
This case was, in essence, one of word against word with the jury knowing that the onus was on the Crown. The complainant’s evidence was uncorroborated. The appellant’s daughter, who was in the bed apparently asleep next to the complainant at the time, was not called by either side. Her mother refused to allow police to interview her. The case depended upon careful scrutiny of the complainant’s evidence. That included the video recording of the complainant’s interview admitted under the Evidence (Children) Act. In answer to question 183 the complainant said as part of her answer “it was just me and Rebecca, Melanie and Shane and we hired out a movie”. This was, it was said, consistent with the appellant’s case and the document produced from the video shop. It was inconsistent with the answer to question 221 in the interview where the complainant asserted that she did not know where the video film was hired because “they had it there before”. In her evidence at trial on 3 September 2002 the complainant denied that she had accompanied the appellant to the video store and maintained her assertion that the video films were already at the house before her arrival on the Friday afternoon. The complainant had arrived at the house well before 6.41 pm when the video films were hired out. The appellant submitted that the contradictions in the evidence of the hiring of the video film provided a vital yardstick by which to assess the truthfulness and reliability of the complainant. It was submitted accordingly that it was more likely that the conversation between the appellant and the complainant about sexual scenes in movies occurred at the video store and not when the complainant said it did.

Similarly it was submitted that the complainant had incorporated other events into a composite and either imagined them as part of her account of what happened in the bedroom. An example of this was the sour lolly/tablet allegation. The appellant could point to this being part of the earlier hypnotism games on the first occasion the complainant came to the house when a jellybean was used. The complainant conceded that some hypnotism games were played during her first visit though she denied that a lolly was given.
The complainant was unsure about other matters such as:

whether the appellant’s daughters were present when he collected her on the afternoon of 1 September 2000;
the events around dinner time on 1 September 2000;
whether the appellant’s hand was over or under the sheet when he moved her leg prior to the first sexual assault;
whether her eyes were open or shut during the sexual assaults.

The Crown case was that the appellant returned after about ten minutes. The complainant gave evidence that she spoke to Rebecca for about ten minutes after the appellant left the room having said goodnight. It was said that if these estimates by the complainant were accurate, the Crown case would have to be that Rebecca was able to fall asleep almost instantaneously. In addition, she would have to be in a sufficiently deep sleep not to be awoken by several significant events:

her father coming into the room;
on two occasions moving the legs of the complainant who was in a double bed with Rebecca;
speaking with the complainant about a number of matters;
leaving to get a lolly/tablet;
returning and giving a lolly/tablet to the complainant;
the complainant having a coughing attack;
the appellant going out of the room and returning to give the complainant a drink.

There were also inconsistencies in the complainant’s account of how she observed the appellant when he came into the room and about the number of sexual assaults.
The trial Judge was concerned in his report that the complainant did not make any complaint to anybody after 1 September 2000 until she made a statement to her mother and then to the police in September 2001. His Honour was concerned he may have erred in not directing the jury adequately about the lack of complaint, especially where there was no other evidence supporting the complaint. In R v Johnston (1998) 45 NSWLR 362 at 474 Spigelman CJ said that whenever it appears to a trial Judge that delay, whether occasioned by the delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. A comment or warning is required if it appears to the trial Judge that the jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt. In this case, as the Crown pointed out, the trial Judge did not direct the jury in accordance with s107 of the Criminal Procedure Act that “there may be good reasons why a complainant of a sexual assault may hesitate in making or refraining from making a complaint ….” (s107(2)(b)). In this sense, the appellant received a bonus. However, the complainant did not suggest that the appellant had made any threat to do anything if she did complain. It is, I think, a factor to be taken into account that although her friend was in the bedroom when the assaults were said to have occurred and although no threats or warnings were made or given by the appellant, she did and said nothing for twelve months.
Part of the questioning of the complainant revealed an unwillingness by her to flesh out circumstances surrounding these events. This part of her evidence does not read as the evidence of someone giving a true account of what she recalled. But the jury saw her and heard her evidence. On the other hand, the jury may not have been impressed by the appellant’s account of hypnotising young girls, including his daughters, without any parental permission, or allowing them to view M15+ videos.
Some of the evidence is difficult to explain. However, the onus was on the Crown. The Crown had to satisfy the jury beyond reasonable doubt that the appellant committed the offences charged.
I have read the evidence, watched the edited videoed interview and paid careful attention to the summing up. To my mind, it was open to the jury to accept the complainant’s account of the assault upon her by the appellant and on that basis be satisfied beyond reasonable doubt that the appellant committed the offences charged. Equally, it was open to the jury to accept the appellant’s evidence denying the charges. What concerns me is that the jury almost certainly would have weighed in the balance matters which did not detract from the veracity of the appellant’s evidence about what happened but invited the jury, encouraged by the cross-examination, to consider whether the appellant’s behaviour in engaging in hypnotism and allowing young girls to watch M15+ videos was discreditable and for that reason not to believe him. I am satisfied that the jury may have been diverted by this evidence from an objective consideration of the evidence. In my opinion, the admission of this evidence led to a substantial miscarriage of justice. The conviction should be quashed. Because the appellant has regularly and without default from the date of his sentence attended to serve his sentence of periodic detention and the hearing of a new trial would necessarily be delayed, I would not in the circumstances of the case order a new trial.
It is unnecessary to consider the Crown’s appeal against the adequacy of the sentence imposed.
Orders
I propose the following orders:
1. Appeal allowed;
2.Quash the convictions and direct a judgment and verdicts of acquittal to be entered;
3. Crown appeal against sentence dismissed.
WOOD CJ at CL: I have read in draft form the judgment of Sheller JA. I agree with the orders proposed, and with the reasons of his Honour.
SMART AJ: I agree with Sheller JA.

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LAST UPDATED: 07/04/2003