R v WJW
[2004] NSWCCA 360
•8 November 2004
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v WJW [2004] NSWCCA 360
FILE NUMBER(S):
2004/1774
HEARING DATE(S): 12/08/04
JUDGMENT DATE: 08/11/2004
PARTIES:
Regina v WJW
JUDGMENT OF: James J Adams J Bell J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/51/0042
LOWER COURT JUDICIAL OFFICER: Ducker DCJ
COUNSEL:
C Bruce - Applicant
E Wilkins - Respondent
SOLICITORS:
S M Ewer - Applicant
S Kavanagh - Respondent
CATCHWORDS:
LEGISLATION CITED:
DECISION:
Appeal against conviction dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2004/1774
JAMES J
ADAMS J
BELL JMonday 8 November 2004
REGINA v WJW
Judgment
1 JAMES J: WJW appealed against his convictions after a trial in the District Court before his Honour Judge Ducker and a jury on a charge of committing an act of indecency towards a child under the age of ten years (count 1 in the indictment), a charge of indecently assaulting a child under the age of ten years (count 2 in the indictment), a charge of common assault (count 3 in the indictment), and a charge of sexual intercourse with a child under the age of ten years (count 6 in the indictment). Apart from the four counts on which the jury returned verdicts of guilty, the appellant had also been indicted on two counts of sexual intercourse with a child under the age of ten years (counts 4 and 5 in the indictment), on which the jury returned verdicts of not guilty.
2 The victim of each of the offences charged was a boy, eight years old at the time the offences were allegedly committed and ten years old at the time of the trial, who I will refer to as “the complainant”.
3 The complainant was the natural son of the appellant. The appellant and the complainant’s mother had separated when the complainant was five months old and they had subsequently lived apart. After his parents separated, the complainant lived with his mother. The appellant had access to the complainant but there were disputes between the appellant and the complainant’s mother about access.
4 In addition to appealing against the convictions the appellant applied for leave to appeal against the sentences imposed on him by Judge Ducker. At the hearing before this Court counsel for the appellant informed the Court that he was appearing for the appellant only on his appeal against the convictions and was not appearing for the appellant on his application for leave to appeal against the sentences. The appellant himself then informed the Court that he was not pressing his application for leave to appeal against the sentences. There is, accordingly, no need to make any further reference to the sentences imposed on the appellant by Judge Ducker.
THE CROWN CASE AT THE TRIAL
5 The principal witness for the Crown was the complainant.
6 The various offences allegedly committed by the appellant against the complainant had not all been disclosed by the complainant at the same time but had been disclosed, progressively, in a number of interviews of the complainant by a police officer Detective Stoltenberg. The complainant was interviewed by Detective Stoltenberg on 5 July 2001, 2 August 2001, 7 August 2001 and 20 November 2001. In the interview on 5 July 2001 the complainant told Detective Stoltenberg about the offence which became the subject of the first count in the indictment. In the interview on 2 August 2001 the complainant told Detective Stoltenberg about certain conduct of the appellant but none of this conduct became the subject of any charge in the indictment. In the interview on 7 August 2001 the complainant told Detective Stoltenberg about the offences which became the subject of the second and third counts in the indictment. In the interview on 20 November 2001 the complainant told Detective Stoltenberg about the offences which became the subject of the fourth, fifth and sixth counts in the indictment.
7 The interviews of the complainant by Detective Stoltenberg were recorded on audio cassette tape but none of the interviews were video recorded. In his evidence Detective Stoltenberg gave an explanation that he had been subject to a direction from his superiors that video recording facilities were to be used only for interviewing persons suspected of having committed crimes and were not to be used for interviewing child sexual assault complainants.
8 At the trial the complainant was not present in the courtroom and gave evidence by means of closed circuit television.
9 The complainant’s evidence in chief was given largely by the playing to the jury of the audio tape recordings of the interviews of the complainant by Detective Stoltenberg. The tape recordings were marked for identification but did not become exhibits. Transcripts of what was recorded as having been said in the interviews were prepared by police but were not admitted into evidence at the trial. By consent these transcripts were made available to this Court on the hearing of the appeal. There was no issue that these transcripts were accurate transcriptions of what had been said in the recorded interviews.
10 In the first interview on 5 July 2001 the complainant told Detective Stoltenberg that on the last occasion on which the appellant had had access to the complainant, which was 8 June 2001, the appellant in the lounge room of his mother’s house had pulled to one side the shorts he was wearing and had exposed his erect penis to the complainant. Towards the end of this interview the complainant answered “no”, when asked by Detective Stoltenberg whether there was anything else he wanted to tell the Detective.
11 The second interview on 2 August 2001 took place after the complainant’s mother had informed Detective Stoltenberg that there were two things the complainant wished to tell Detective Stoltenberg, which the complainant had forgotten to tell him at the first interview. In the second interview the complainant said that at the appellant’s house he had been forced to watch “rude” videos showing naked boys and girls and that halfway through the showing of the videos the appellant had exposed his penis to the complainant and asked the complainant to touch his penis and, when the complainant refused, had punched the complainant “in the private”. Towards the end of the interview the complainant told Detective Stoltenberg that there was nothing else he wanted to say. As previously stated, none of the conduct alleged in the second interview was made the subject of any charge against the appellant.
12 The plaintiff’s mother was present during the third interview on 7 August 2001. She had not been present at either of the first two interviews. The complainant had told Detective Stoltenberg that he wanted his mother to be present. Detective Stoltenberg had already spoken to the complainant’s mother before the interview commenced.
13 In the third interview the complainant said that on an occasion after Easter 2001 (Easter Friday in 2001 was 13 April) but before he began playing soccer, which was fixed by evidence from various sources as having been on 5 May 2001, he had spent a night at the appellant’s mother’s (the complainant’s grandmother’s) house. He and the appellant had slept in the same bed in the same bedroom. At about 11 o’clock at night the appellant woke the complainant by shaking him, took off his own clothes and got into bed. The appellant demanded that the complainant touch him on the penis and, when the complainant refused, the appellant punched the complainant. The appellant made the complainant hold his penis until he ejaculated. In the interview the complainant drew pictures of the bed and what he said had been the positions in the bed of the appellant and himself.
14 When asked by Detective Stoltenberg whether there was any reason why he had not told the Detective about this incident before, the complainant replied “no”. When asked by Detective Stoltenberg “has anyone told you that you should say any of this?” the complainant replied “no”. He had first told his mother about the incident the previous day. When asked by Detective Stoltenberg “is there anything else you want to tell me about?” the complainant replied “no”.
15 The conduct of the appellant in punching the complainant became the subject of the third count in the indictment and the conduct of the appellant in forcing the complainant to hold his penis became the subject of the second count in the indictment.
16 In the fourth interview on 20 November 2001, at which the complainant’s mother was not present, the complainant told Detective Stoltenberg that there were some things he wanted to tell Detective Stoltenberg about, which were different things from what he had previously told the Detective. He had not previously told the Detective about these things “because … it was a bit hard to talk about it”. Detective Stoltenberg asked what it was the complainant wanted to talk about and the complainant gave the following answer:-
“Well, there’s these needles he has and he puts ‘em in his arm and then he um, and then he goes all psycho and he, then he tries to um, and he put his rude part in my bum and then I had to go to the toilet and then another time he put it in my mouth after he had that needle and he, yeah, he and, he made, and this stuff came out and he made me swallow it and then I was yelling out when all happening because it was at night in bed and then the sheets um, the sheets got blood on them from me and then he’d take them into the um, laundry and leave them there and um, he’d, and then I don’t know what he do, whether he washed them or he just left them there and um, then another day my uncle he said don’t come back in here because (the appellant’s) not a nice person”.
17 Detective Stoltenberg told the complainant that it would be necessary to deal separately with the various allegations the complainant had made in this omnibus answer.
18 The complainant then said in a series of answers that on an occasion in the morning at his grandmother’s house, after soccer had started, while his grandmother was at work and his uncle was in his caravan, which was to the rear of the house, the appellant had put a needle into his arm, had dragged the complainant into his grandfather’s old bedroom, thrown the complainant on to the bed and “put his rude part in my bum”. Afterwards the complainant had to go to the toilet and, after using the toilet, he saw blood in the toilet. This alleged act of penile/anal sexual intercourse became the subject of the fifth count in the indictment.
19 In later answers in the interview the complainant said that on another occasion in the daytime at his grandmother’s house, after soccer started but before the act of anal intercourse he had already described, the appellant had used a needle and had then dragged the complainant into his grandfather’s old bedroom and “he put his penis in my mouth for heaps for about an hour, half an hour, and then stuff started coming out and he made me swallow that stuff”. This alleged act of fellatio became the subject of the fourth count in the indictment.
20 Later still in the interview the complainant said in a series of answers that there had been another time, after soccer started, “when he put his penis in my bum”. This act of penile/anal sexual intercourse had occurred at his grandmother’s house at night. The complainant had yelled out “really loud”. His grandmother was in bed in a bedroom next to the bedroom where the appellant and the complainant were. The appellant told the complainant to be quiet and put his hand over the complainant’s mouth. The appellant said “I’d better stop in case someone hears you”. The next morning the appellant told the complainant not to tell his grandmother and that he would punch the complainant, if he did tell his grandmother. This alleged act of penile/anal sexual intercourse became the subject of the sixth count in the indictment.
21 The complainant was cross-examined at considerable length. In cross-examination he accepted that his parents disliked each other but he denied that he had made the allegations against his father because his mother had wanted him to make the allegations.
22 The complainant was cross-examined about the evidence he had given in chief about the appellant having had anal sexual intercourse with him. The following questions and answers occurred in the cross-examination at trial transcript p 126:-
“Q. But in any case what you are saying is that after soccer started there were two occasions when the accused placed his penis in your bottom is that right?
A. I don’t know - one or two.Q. One or two?
A. Yeah – um they were either before or after soccer started.Q. Well, no, didn’t you tell Mick (Stoltenberg) it was after soccer started?
A. Yeah one of them – I don’t know – yes”.
23 A little later in the cross-examination the complainant said that he did not know how often, after soccer had started, anal intercourse had occurred.
24 Detective Stoltenberg gave evidence that on 5 July 2001 the complainant’s mother had spoken to him and he had taken a statement from her and he had then interviewed the complainant. On 17 July 2001 he had spoken to the appellant. The appellant had then declined to make any comment and had declined to be interviewed. Detective Stoltenberg agreed that it would have been good practice not to have had the complainant’s mother present at the interview of the complainant on 7 August. However, he had not noticed anything untoward happen during that interview. Police had not searched either the appellant’s house or the appellant’s mother’s house. A magistrate had refused to issue a warrant for a search of the appellant’s mother’s house.
25 The complainant’s mother gave quite extensive evidence about a number of matters. She said that for years the complainant had been withdrawn and had displayed other signs of stress, after he had made access visits to the appellant. In 1996 she had taken the complainant to see a counsellor, Mr Stephan Knoerles. In April and March 2000 she had again taken the complainant to see Mr Knoerles.
26 The complainant’s mother gave evidence that in early July 2001 she told the complainant that she was about to take him to a counsellor (not Mr Knoerles) and that he could tell the counsellor about any problem that he had. The complainant then said to his mother “can I tell him about (the appellant)? What about (the appellant) sitting on the lounge at Nanna’s with his willy out?…He always does it. He does rude things and he says rude things”. The complainant’s mother then telephoned her solicitor and arranged to speak to Detective Stoltenberg.
27 On the afternoon of 2 August 2001, while the complainant’s mother was driving the complainant home from school, the complainant told her that the appellant had taken him to the appellant’s house where they watched videos and the appellant “grabbed my hand and put it on his willy… He made me pull it”. Afterwards the complainant’s mother telephoned Detective Stoltenberg and the complainant was interviewed for the second time. The complainant’s mother arranged for the complainant to be interviewed again on 7 August 2001.
28 In November 2001 the complainant’s mother contacted a solicitor from the Office of the Director of Public Prosecutions who was acting in the prosecution of the appellant. On 15 November 2001 the complainant’s mother told the complainant that the solicitor would be speaking to him and that the solicitor would like the complainant to remember everything he could. The complainant then said that the appellant had put his “willy” in the complainant’s mouth and had put his fingers “in my bottom”. On 16 November 2001 the complainant’s mother asked the complainant if the appellant had ever put his “willy” in the complainant’s bottom and the complainant said “yes”. The complainant’s mother then contacted the solicitor and Detective Stoltenberg and the complainant was interviewed for the fourth time.
29 In cross-examination the complainant’s mother agreed that the first time the complainant had mentioned anal intercourse to her was in November 2001.
30 The complainant’s mother was cross-examined about entries she had made in a diary she kept in 2001. The complainant’s mother said that it had not been her purpose in keeping the diary to make a record of days on which the appellant had access to the complainant. Two entries the complainant’s mother had made in the diary were as follows:-
“15 May ‘(the complainant)’ went to (the appellant’s mother’s house) whilst I worked, 6.30, 10.30, I took him to McDonalds after work”
25 May ‘(the complainant)’ slept at (the appellant’s mother’s house) tonight”.
31 In cross-examination the complainant’s mother denied that before 8 June 2001 she had opposed the appellant having access to the complainant. She had seen her solicitor about threats she said the appellant had made to her on the last access day on 8 June 2001 and she had made an appointment to apply for an apprehended domestic violence order against the appellant. Her solicitor had received a letter from the appellant’s solicitors dated 22 June 2001, saying that the complainant’s mother had failed to comply with existing access orders and that the appellant wanted the access orders to be “revisited”. The complainant’s mother denied that it was the receiving of this letter which had prompted the making of the allegations of sexual assault against the appellant.
32 Stephan Knoerles gave evidence that he was a senior psychologist in the Department of Health. Some of his evidence was favourable to the appellant and the Crown was granted leave to cross-examine him.
33 Mr Knoerles gave evidence that on 6 November 1996, when the complainant was about three and a half years old, the complainant’s mother attended Mr Knoerles’ clinic with the complainant. The complainant’s mother was concerned about certain aspects of the complainant’s behaviour, including his behaviour after returning from access visits to the appellant. Mr Knoerles discussed with the complainant’s mother various strategies for assisting the complainant.
34 In March 2000 the complainant’s mother telephoned Mr Knoerles and told him that she had been advised by her solicitor to contact him, because the complainant was refusing to go on access visits to the appellant. On 28 March 2000 and again on 7 April 2000 the complainant’s mother and the complainant attended at Mr Knoerles’ office. Mr Knoerles gave a considerable amount of evidence about what was said at these consultations. In his evidence Mr Knoerles expressed the opinion that on 28 March 2000 and 7 April 2000 the complainant had not exhibited any signs of having been sexually abused. Mr Knoerles said that he would have observed different behaviour in the complainant, if the complainant had been sexually abused. Mr Knoerles also expressed the opinion that sentences spoken by the complainant about the appellant in the consultations “appeared to have adult content” and what Mr Knoerles considered to be similarities in the language used by the complainant and the language used by the complainant’s mother raised a concern that what the complainant was saying about the appellant was simply a repetition of what he had heard his mother say about the appellant.
35 Dr Donnelly gave evidence that he had examined the complainant on 6 December 2001, that is about six months after the last of the offences had allegedly been committed. Dr Donnelly conducted a visual examination of the complainant’s anus and saw no abnormality. The result of Dr Donnelly’s examination was inconclusive, neither showing, nor excluding, that anal intercourse had taken place.
36 Dr Hall gave evidence that he had been the complainant’s general practitioner. On 14 July 1997, when the complainant was about four and a half years old, the complainant had complained of rectal bleeding. On an examination of the complainant Dr Hall found some minor anal fissuring. In Dr Hall’s opinion this condition could have had any one of a number of causes, including causes other than penile penetration of the anus.
37 Dr Hall gave evidence that on 26 July 2001 the complainant’s mother attended Dr Hall’s surgery. She said to Dr Hall, “remember problems with his anus that you examined earlier, could that have been associated with anal intercourse?” In a report made to police on 11 February 2002 Dr Hall said, “she alleged anal intercourse of the child had taken place over a period of time during the parental visits”.
38 The appellant’s brother Robert gave evidence that in 2001 he lived in a caravan to the rear of his mother’s house. The appellant’s brother gave evidence that the appellant appeared to have a good relationship with the complainant. He denied telling the complainant not to come into the house because the appellant was not a nice person.
39 The appellant’s mother gave quite extensive evidence. Her evidence was generally more favourable to the defence than to the Crown and the Crown Prosecutor was granted leave to cross-examine her.
40 The appellant’s mother gave evidence that she had never noticed any reluctance on the part of the complainant to visit his father. She said that the complainant had not come to her house on an access visit for five weeks before 8 June 2001. On 8 June 2001 she had a conversation with the complainant, after the complainant’s step-father had dropped the complainant off at her house. She asked the complainant, “where have you been?” and the complainant replied “nowhere”. She said to the complainant “you haven’t been in for five weeks… you know your mother can get into trouble. It’s a court order that you come every fortnight”. The appellant’s mother denied, or said that she did not remember, that the complainant had been at her house on 15 May 2001 and 25 May 2001. The appellant’s mother had not kept any record of the complainant’s visits to her house.
41 The appellant’s mother gave evidence that she had never heard the complainant scream out in pain during the night. She used to wash the sheets of the bed in which the appellant and the complainant slept and she had never seen any blood on the sheets. She had never seen a syringe in the house.
THE DEFENCE CASE AT THE TRIAL
42 The appellant gave evidence. He said that he had never been convicted of any offence relating to improper sexual conduct or the use of drugs. He denied that he had ever injected himself with drugs.
43 The appellant gave evidence that the last time before 8 June 2001 that the complainant had stayed with him was at Easter 2001. He had not seen the complainant in May 2001, otherwise than at soccer matches on Saturdays.
44 The appellant gave detailed evidence about the events which he said had happened on 8 June 2001. After 8 June 2001 the appellant consulted a solicitor, who sent the letter of 22 June 2001 concerning access.
45 The appellant said that the allegations made by the complainant against him were all lies.
46 Two other witnesses, a friend of the appellant and a sister of the appellant, gave fairly brief evidence in the defence case.
THE GROUNDS OF APPEAL
47 The first ground of appeal against conviction was:-
The trial miscarried in that the summing-up was unbalanced and the trial unfair
48 In support of this ground of appeal counsel for the appellant relied on (1) four passages in the trial judge’s summing-up (2) further passages in the summing-up in which, it was contended, the trial judge had undermined the credibility of witnesses whose evidence supported the defence case, including the appellant’s brother Robert and the psychologist Mr Knoerles (3) a comment made by the trial judge in the trial, by which, it was contended, the trial judge had demonstrated to the jury an attitude of hostility towards the appellant.
49 The first four passages in the summing-up relied on by counsel for the appellant were as follows:-
50 (i) At p 13 of the summing-up the trial judge said:-
“I am not in saying that, expressing any view about the present matter, but it is important that you should understand that such behaviour (sexual assaults on children) is not mythical. It unfortunately, is all too common”.
51 (ii) At pp 41-42 of the summing-up the trial judge said:-
“…it is certainly true that lawyers are trained to think and to speak precisely. Eight year old boys are not. Their power of speech is much more limited. Any witness can only speak according to their power, own powers, of expression. Also, you are entitled to consider what depth of understanding a child of eight would have if these offences were being committed so far as any older recollections may be concerned when the child is younger, but the critical thing here is the time when these offences are alleged to have been committed; what was the age and stage of development, mentally and physically, of the child. What is your experience as to children? Do they have the depth of understanding of things? Do they understand always what is normal and what is not? Do they always understand the real implications of what is being done? The law recognises that children are different in that way. Children under a certain age cannot be charged even if they do something which, if done by an older person, would amount to a crime. I think the age is seven”.
52 (iii) At pp 67-68 of the summing-up the trial judge said:-
“While it is in my mind, I will just say this to you, for an eight year old boy do you think that the words ‘sad’ and ‘annoyed’ mean angry? A suggestion is that he should have said ‘angry’, but is that somewhat semantic? The boy said ‘sad’, ‘annoyed’. For a lay person, what would you gather from those two words? What do you think the child meant by those two words?”
53 (iv) At pp 87-88 of the summing-up the trial judge said:-
“He was reminded about what he had said during the previous hearing, remember that this boy has given accounts of what happened now on three separate occasions, to the police officer, to the Local Court, and to this Court. And what is it that may happen when somebody gives lengthy evidence about a large number of matters on more than one occasion, it creates a situation where the witness can be said to have made inconsistent answers on different occasions.
Of course it is always possible to say something about such matters. If a witness comes along and gives an unblemished account of the happenings which ties in with any other accounts that he has given, then he is possibly going to have suggested to him, that he has learned it all off by heart, and therefore he did that because he did not have any real experience, since these things were only inventions, and that was why he was making mistakes.
On the other hand, if he makes a number – says some things a little differently or is out on times or some details on things from previous statements he has made, then it can be said and probably will be put to him, that he is inaccurate, and therefore that means that he is not relying on recollection at all and that means that what he is saying is not true.
So in other words, no matter what the witness does, how well or how poorly he is able to give a consistent version of events, he is susceptible to the suggestion that he is not telling the truth”.
54 The two passages in the summing-up in which it was submitted the trial judge had undermined the credibility of witnesses were as follows:-
55 (a) At pp 102-103 of the summing-up the trial judge said in relation to the appellant’s brother Robert:-
“The next witness called was Mr Robert W, or ‘Bobby’ as he was known to the boy and apparently others. It is a matter for you about these matters. Sometimes people find themselves in terrible dilemmas, and this sort of case is one of them. There is a tendency when something of this nature happens, you might think, for there to be two camps, two rival camps, and that may require people who would rather be neutral or rather not participate; it may, if there is going to be a question of them having to give evidence to make some very painful decisions. And that may apply to both sides. You saw Mr W.
. . .
Or, in the case of Mr W, whether he finds himself in an awkward position, if he had made the remark of that kind, never dreaming it would end up in Court. He would be in a very difficult situation”.
. . .
56 It was submitted that the trial judge’s direction to the jury that they should ignore what the trial judge had earlier said would not have removed the prejudice caused by what the trial judge had earlier said. It was also submitted that the prejudice would have flowed over to the jury’s assessment of the evidence of the appellant’s mother (the complainant’s grandmother), to whom the jury would have applied the trial judge’s remarks about some witnesses being in both camps and having divided loyalties and being subject to dilemmas about what evidence they should give.
57 (b) At pp 114-122 of the summing-up the trial judge reviewed the evidence of the psychologist Mr Knoerles. Counsel for the appellant complained about passages in this review of Mr Knoerles’ evidence, including the following:-
58 At p 121 of the summing-up the trial judge said of Mr Knoerles:-
“You must bear in mind that he is a person with expert qualifications and the views that he expressed came from a background of his experience. He was a teacher, a tutor, a lecturer, whatever, before he took this present job”
59 Counsel complained that the use by the trial judge of the word “whatever” in this passage had unfairly diminished Mr Knoerles’ qualifications.
60 At pp 118-119 of the summing-up the trial judge said:-
“Well he (Mr Knoerles) has been dealing with those sort of questions for a very long time and dealing with children but he believed that, on the occasion that he saw (the complainant’s mother) and her son, the complainant, that there had been some contamination of the boy’s evidence by the influence of his mother. This was partly, or largely based on the fact that they used similar words. That is a matter for you to consider. If you look at the background of the child spending more of his life – as with many other children – in the company of his mother, certainly until he went to school, than anybody else. Where does a child get its early vocabulary from, if not in the home?
Does that mean that some resemblance could be expected between what a child of the home would say and what his parents might say when describing the same things. Do children pick up phrases and expressions from their parents or other adults and then take them into their own vocabulary. Do adults sometimes, if they think- parents for instance, if they think that what the child said is cute or has a funny name for something, do they not adopt it; does it not become a name or expression, possibly quite unique, within that household. Is there anything necessarily sinister about that?
That was the line of cross-examination, as I understand it; the suggestion that Mr Knoerles was very quick to jump to that conclusion. He only saw and spoke to the boy on his own for ten minutes on the first occasion; I think he said twenty-five minutes on the second and thirty minutes on the third. Well that is a matter for you. Also on the question of access he could not see any reason why a father who allegedly had done the things which had been referred to should not have access.
Well members of the jury, I have clearly expressed a view on questions of fact and remember, if you do not agree with the views expressed then you must reject it and if it is not the view that you have then you must give effect to the view that you do have, not what I have just said to you. This is an important aspect in this case because it is the only evidence suggesting any improper or even accidental influences being placed upon the child by his mother”.
61 A complaint was also made by counsel for the appellant about a question the trial judge asked Mr Knoerles in the presence of the jury when Mr Knoerles was giving evidence, “that’s what you believe?”.
62 It was further submitted by counsel for the appellant that the trial judge, by comments made at the trial in the absence of the jury, had made it clear that he himself, if he had been the tribunal of fact, would not have accepted Mr Knoerles’ evidence.
63 The comment by which, it was contended, the trial judge had demonstrated in front of the jury his hostility towards the appellant was made during the cross-examination of Mr Knoerles. Mr Knoerles had been giving evidence that the complainant’s mother had reported to Mr Knoerles that she had been told by the complainant that the appellant, after exposing his penis to the complainant, had said “that is where you come from, that’s why you belong to me”. The trial judge commented “taking a lot of credit for a lot of work done by somebody else, if that’s how babies were born”.
64 The principles to be applied in determining whether the Court of Criminal Appeal should allow an appeal against conviction on the grounds that the trial judge’s summing-up was unbalanced and unfair were stated by the Court in R v Courtney-Smith (1990) 48 A Crim R 49 where the bench included Gleeson CJ and Kirby P. The Court said at pp 55-58:-
“The duty of a judge to act with manifest fairness in proceedings before him is not in doubt… If a summing-up can be described as ‘unfair, lacking judicial balance and so partaking in partiality as to render the trial a miscarriage of justice’, this Court must intervene… However, before doing so the following considerations must be kept in mind:
1. The summing-up must not be considered in isolation…
2. The trial judge is entitled to express opinions on the facts, provided he or she makes it clear to the jury that it is exclusively their function to decide factual disputes… The mere incantation of the jury’s role in resolving factual disputes will not repair an unfair, unbalanced intrusion by the judge into discussion of the facts. But it is not the law that the judge can make no observation on the facts.
3. In default of standard formulae for charging juries and new statutory rules confining judges, wholly or substantially to instruction on the law, summing-up to a jury in a criminal trial will necessarily be an individualistic endeavour. It is impossible in those circumstances to stamp upon judicial performance a monotonous uniformity. What must be uniform, however, is the overall fairness and balance.
4. The assessment of the overall balance requires a consideration of the whole of the summing-up. Isolated phrases taken from here and there are no substitute for a consideration of the entire charge, looked at as a whole and in its context in the trial… It is the fairness, balance and impartiality of the summing-up which the appellate court must review and safeguard”.
65 In the present case, if the summing-up is considered as a whole, the parts of the summing-up complained of are only a few passages in a very lengthy summing-up, the transcript of which covers 141 pages. Furthermore, at the trial no complaint was made by counsel then appearing for the appellant, who would seem to have represented his client competently and, indeed, more than merely competently, about any of the passages in the summing-up which have been impugned on this appeal. On the hearing of this appeal no complaint was made that the trial judge failed to give any direction which it would have been necessary or proper for him to have given and no complaint was made that the trial judge failed to put any aspect of the defence case.
66 As against the parts of the summing-up sought to be relied on by counsel for the appellant, there were other parts of the summing-up in which the trial judge made comments favourable to the appellant. To take one example, the trial judge at page 69 of the summing-up told the jury that it had been a “blunder” by the police to permit the complainant ’s mother to be present at the third interview and the trial judge told the jury that the answer “no” given by the complainant to the question asked in that interview:- “Has anybody told you that you should say any of this?” “lost a lot of its value because of the circumstances, because if the real answer was “yes”, was the boy going to say it when his mother was there”.
67 Apart from these general considerations, when the impugned passages are placed in their context in the summing-up, the criticisms by counsel for the appellant of a number of the passages lose much, if not all, of their force. I will refer to each of the impugned passages in turn.
68 (i) Immediately before making these remarks the trial judge had said:-
“What this case involves, really are questions of the credibility of a child and matters of sexuality. Now you will have to place entirely to one side, any natural modesty or reticence you may feel, in discussing matters of an intimate sexual nature. In so far as it is necessary for you to do so, in order for you to fulfil your duty as a juror and as a judge of the facts. You may have different degrees of sophistication, knowledge and experience about such matters. It can be safely said, that there are people who prey upon children but it does happen on occasions, within families and sometimes it is in the nature of homosexual behaviour. That of course is not to say that it happens in a great many families nor that, still less, that every family has had that experience, but it does happen. That’s why these charges are in the criminal law. That is why these acts of parliament were legislated because those things do happen”.
69 Immediately after making the remarks which have been impugned the trial judge said:-
“It is a serious thing for a child to be sexually abused and it is a serious thing for somebody to be accused of being responsible for sexual abuse and both of those things are, particularly the latter, are envisaged by the requirement that cases be dealt with in a court where there is an onus of proof resting on the prosecution to prove the accused guilty and that’s what I want to give you the directions about now”.
70 The trial judge then proceeded to give the jury directions about the onus and standard of proof.
71 The remark by the trial judge that behaviour of the kind alleged against the appellant was “all too common” should not have been made. However, I consider that the trial judge could quite properly point out to the jury that behaviour of the kind alleged against the appellant does sometimes happen, in case any member of the jury might think that it could not happen that a father would sexually assault his child. The trial judge eschewed any suggestion that such conduct occurs in “a great many families”. The trial judge pointed out that, while it is a serious thing for a child to be sexually abused, it is also a serious thing for someone to be accused of sexually abusing a child and that the onus of proof on whether a child has been sexually abused is on the prosecution.
72 (ii) The trial judge made these remarks after telling the jury, accurately, that the critical evidence for the prosecution was the evidence of the complainant and that, although the complainant was ten years old when he gave evidence at the trial, the complainant was only eight years old at the times when the offences were allegedly committed. The comment by the trial judge that children under a certain age, which the trial judge told the jury was less that the age of the complainant when any of the offences were allegedly committed, could not be charged with a crime was irrelevant and should not have been made. However, the trial judge could properly tell the jury that in assessing the complainant as a witness they should take into account that he was only eight years old when the offences were allegedly committed, with the level of understanding and the powers of expression of an eight year old child.
73 (iii) The trial judge made these remarks after reading out to the jury a question and answer in the third interview:-
“Q. How did that make you feel when he punched you in the private?
A. Sad, annoyed”.
74 Counsel for the appellant at the trial had made a submission to the jury about the use by the complainant in this answer of the words “sad” and “annoyed”. In my opinion, there was nothing improper about the trial judge suggesting to the jury that the criticism might be “somewhat semantic” and asking the jury to consider what they thought the child complainant meant by the words “sad” and “annoyed”.
75 (iv) The trial judge made these remarks in the course of reviewing the evidence of the complainant. The trial judge could properly tell the jury that, when a witness has had to give an account of the same events on more than one occasion, one criticism may be made of the witness, if the accounts given on the different occasions are consistent, and another criticism may be made of the witness, if the accounts given on the different occasions are inconsistent. However, the trial judge should have made a balancing comment in favour of the appellant, that, if the jury found that the complainant had on different occasions given accounts of the same events which were inconsistent, the jury could consider that the giving of the inconsistent accounts adversely affected the complainant’s reliability as a witness.
76 (a) As the extract from the summing-up which has already been quoted shows, the suggestion that the witness Robert W might have had a problem of clashing loyalties was expressly withdrawn by the trial judge. The Crown Prosecutor confirmed in the presence of the jury that no such suggestion had been made by the Crown. There is no reason to suppose the jury failed to comply with the trial judge’s direction to disregard what the trial judge had earlier said.
77 I do not accept that the jury would have applied remarks made by the trial judge about the witness Robert W, which the trial judge had withdrawn, to another witness, the appellant’s mother. The trial judge did not in any part of the summing-up make any remarks about the appellant’s mother as a witness, similar to the remarks he made at pp 102-103 of the transcript about the appellant’s brother.
78 (b) It is difficult for this Court, not having heard the trial judge deliver the summing-up, to decide how much importance should be attached to the use of the word “whatever” in the description of Mr Knoerles’ qualifications. However, it is significant that counsel for the appellant at the trial, who heard the trial judge say the word “whatever”, made no complaint.
79 At pp 118-119 of the summing-up the trial judge recognised that he had expressed a view of his own on a matter of fact, namely whether the jury should accept evidence by Mr Knoerles, that, in his opinion, evidence given by the complainant had been contaminated or influenced by his mother, this opinion being largely based on what Mr Knoerles considered to have been the use by the complainant and his mother of similar words. The trial judge had suggested to the jury that any such similarities between the language of the complainant and the language of his mother might be explicable on the basis that children learn words and expressions from their parents. The trial judge then told the jury that they must give effect to their own view of the facts and must reject any view of the facts which the trial judge had expressed, if they did not agree with it.
80 As previously noted, a trial judge is not prohibited from commenting on the facts. I do not regard what the trial judge said to the jury at p 119 of the summing-up about the jury giving effect to their own view of the facts as being a mere incantation of the jury’s role in resolving factual disputes.
81 I do not accept that the making by the trial judge of the remark “taking a lot of credit for a lot of work done by somebody else, if that’s how babies were born”, which was clearly intended to be facetious or light hearted, caused the appellant any real prejudice. When the trial judge referred to the same evidence in the summing-up, he did not repeat this remark.
82 Although I have found that some fairly minor criticisms could be made of the trial judge’s summing-up, I do not consider that the summing-up was so lacking in balance as to give rise to a miscarriage of justice or that the trial was unfair and I would accordingly reject the first ground of appeal.
83 The second ground of appeal against conviction was:-
The verdicts of guilty on counts 1, 2, 3 and 6 are unreasonable and cannot be supported having regard to the evidence and the verdicts of not guilty in relation to counts 4 and 5
84 As it was argued, this ground of appeal contained two distinguishable, although interrelated, grounds of appeal, namely that the verdicts of guilty on counts 1, 2, 3 and particularly 6 were inconsistent with the verdicts of not guilty on counts 4 and 5 and that the verdicts of guilty on counts 1, 2, 3 and 6 were unreasonable and could not be supported, having regard to the evidence. The contention that the verdicts of guilty on counts 1, 2, 3 and 6 were inconsistent with the verdicts of not guilty on counts 4 and 5 was, apart from being an independent ground of appeal, relied on by counsel for the appellant in support of the ground of appeal that the verdicts of guilty were unreasonable and could not be supported.
85 It is convenient to deal first with the question of whether the verdicts of guilty on counts 1, 2, 3 and 6 were inconsistent with the verdicts of not guilty on counts 4 and 5.
86 The principles to be applied by an appeal court in deciding whether two or more jury verdicts are inconsistent were authoritatively stated by Gaudron J, Gummow J and Kirby J in their joint judgment in MacKenzie v The Queen (1996) 190 CLR 348 especially at 365-368. At p 367 their Honours said with reference to the fourth general proposition stated by their Honours:-
“Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense…. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted…. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury…. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”.
87 In the remarks he made in sentencing the appellant the trial judge offered an explanation of the jury’s verdicts of not guilty on counts 4 and 5. His Honour said:-
“For my part I am firmly of the belief that those acquittals almost certainly resulted, not from any doubt that the jury may have had about the honesty of the complainant, but because of the rigid time scale to which the prosecution adhered which led to the jury not being satisfied beyond reasonable doubt that the offences occurred within that time period”.
88 On the hearing of the appeal the Crown Prosecutor submitted that the verdicts of not guilty on counts 4 and 5 could properly be reconciled with the verdicts of guilty on counts 1, 2, 3 and particularly 6, on the basis suggested by the trial judge in his remarks on sentence, that is that the jury, while generally accepting the complainant’s evidence, were not satisfied that the offences charged in counts 4 and 5 occurred within the period of time alleged by the Crown.
89 In my opinion, the verdicts of the jury can properly be reconciled in this way.
90 In the indictment the Crown alleged that all of the offences charged in counts 4, 5 and 6 were committed between 1 April 2001 and 9 June 2001. However, the complainant, in the interview by Detective Stoltenberg on 20 November 2001 and hence in his evidence in chief, said that the three offences had been committed at the appellant’s mother’s house on access visits, on separate occasions between when the complainant started to play soccer that year, that is 5 May 2001, and when the appellant last had access to the complainant, which was 8 June 2001. In the Crown Prosecutor’s closing address to the jury he told the jury that they could not find the appellant guilty on any of counts 4, 5 and 6, unless they were satisfied that the offence charged in the count they were considering had been committed “after soccer started and before the last access visit”.
91 As I have already indicated, there were issues at the trial about whether the appellant had had any access to the complainant at the appellant’s mother’s house between soccer starting on 5 May 2001 and the access visit on 8 June 2001 and, if so, on how many occasions during this period the appellant had had access to the complainant.
92 The appellant and the appellant’s mother gave evidence that the appellant had not had any access to the complainant at the appellant’s mother’s house during this period.
93 In the interview on 20 November 2001 the complainant said, in effect, that there had been at three access visits between 5 May and 8 June, on which the three offences charged in counts 4, 5 and 6 had been committed, that is two offences of anal intercourse and one offence of fellatio. However, in cross-examination the complainant gave the evidence to which I have already referred, that he did not know whether there were two occasions, or only one occasion, after soccer started, when the appellant had anal intercourse with him.
94 The complainant’s mother gave oral evidence that the appellant had had access to the complainant at the appellant’s mother’s house on occasions between soccer starting on 5 May and the last access visit on 8 June but she did not give any precise evidence about the number of such occasions. However, the complainant’s mother had made the entries in her diary for 15 May and 25 May, which I have already quoted. The complainant’s mother said in her evidence that she had not made an entry in the diary every time the complainant had been to the appellant’s mother’s house.
95 In this state of the evidence and having regard to what the Crown Prosecutor had said in his closing address, the jury, consistently with generally accepting the complainant’s evidence, could have reasoned as follows. On the basis of the entries made in the complainant’s mother’s diary the jury could have been satisfied beyond reasonable doubt that the appellant had had access to the complainant at the appellant’s mother’s house, at least on the morning of 15 May and on the night of 25 May. However, the jury could have considered that they could not be satisfied beyond reasonable doubt that the appellant had had access to the complainant on any other occasion between 5 May and 8 June. The jury could have been satisfied beyond reasonable doubt that on the night of 25 May the appellant had committed the act of anal intercourse charged in the sixth count, which the complainant said had been committed at night. Both of the acts charged in the fourth and fifth counts had, on the complainant’s evidence, been committed, not at night, but in the morning. However, the jury, even while generally accepting the complainant’s evidence, might not have been satisfied beyond reasonable doubt that the appellant had between 5 May and 8 June committed the act of anal intercourse charged in the fifth count, because of the complainant’s concession in cross-examination that after soccer started there might have been only one act of anal intercourse and because the jury might have been in doubt whether it was the act of anal intercourse charged in the fifth count or the act of fellatio charged in the fourth count which had occurred on the morning of 15 May. Furthermore, although the jury were not satisfied beyond reasonable doubt that an act of anal intercourse had been committed on 15 May, they could have reasoned that it was reasonably possible that an act of anal intercourse, and not an act of fellatio, had been committed on 15 May and, accordingly, the jury could not be satisfied beyond reasonable doubt that on that date the appellant had committed the act of fellatio charged in the fourth count.
96 In this way the verdicts of not guilty on the fourth and fifth counts can properly be reconciled with the verdicts of guilty on the other counts and particularly the verdict of guilty on the sixth count.
97 I turn to the part of the second ground of appeal in which it was contended that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence.
98 A number of submissions were made by counsel for the appellant in support of this ground, including the following.
99 (i) The Crown case depended on the evidence of the complainant and there was no corroboration of the complainant’s evidence.
100 (ii) A matter casting serious doubt on the reliability of the complainant’s evidence was the way in which the allegations of the various offences had been made by the complainant, not all at once, but piecemeal in stages, even though at the end of each of the interviews Detective Stoltenberg had asked the complainant whether there was anything else the complainant wanted to tell him. The allegations of the most serious of the offences, that is the offences of anal intercourse, were first made only after the complainant’s mother on 16 November 2001 had directly asked the complainant “has he (the appellant) ever put his willy in your bottom?’ A further matter casting doubt on the reliability of the complainant’s evidence was the jury’s verdicts of not guilty on counts 4 and 5.
101 (iii) The complainant’s mother was antagonistic to the appellant and there had been a bitter continuing dispute between the complainant’s mother and the appellant concerning access to the complainant. There had been a hostile confrontation between the complainant’s mother and the appellant on 8 June and the complainant’s mother had not subsequently permitted the appellant to have access to the complainant. The complainant’s mother had received the appellant’s solicitor’s letter of 22 June concerning access. In these circumstances it was reasonably possible that the complainant’s evidence had been instigated or influenced by his mother.
102 It was particularly significant that the witness Dr Hall in the report he made to police said that the complainant’s mother, when she saw Dr Hall on 16 July 2001, that is before the complainant had made any allegation to the police of anal intercourse, “alleged anal intercourse of the child had taken place over a period of time during the parental visits”.
103 (iv) The appellant had given evidence denying that he had committed any of the alleged offences.
104 (v) The appellant’s mother had given what was described by counsel for the appellant as “cogent countervailing evidence”. This evidence included the appellant’s mother’s evidence that she slept in a bedroom next to the bedroom in which the complainant and the appellant slept when the complainant spent the night at her home and that she had never heard the complainant screaming in pain at night; that it was she who changed and washed the sheets on the bed in which the appellant and the complainant slept and she had never seen blood on the sheets; and that she had never found syringes at the house.
105 (vi) The appellant’s brother Robert had given evidence denying that he had said to the complainant “don’t come back in, (the appellant)’s not a nice person”.
106 (vii) The psychologist Mr Knoerles had given evidence that when he saw the complainant on 28 March 2000 and 7 April 2000 the complainant had not, in his opinion, displayed signs of having been sexually abused by the appellant and that in Mr Knoerles’ opinion, there were similarities between the language used by the complainant and the language used by the complainant’s mother, such that Mr Knoerles was concerned that what the complainant said about the appellant might be a repetition of what the complainant had heard his mother say about the appellant.
107 The principles to be applied by a Court of Criminal Appeal in deciding whether verdicts of guilty are unreasonable and cannot be supported having regard to the evidence have been stated in such cases as M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606 at 622-624 (52-59). The test to be applied is whether the Court of Criminal Appeal, after making its own independent assessment of the evidence, considers it was open to the jury to be satisfied of the accused’s guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict upon the whole of the evidence. “But 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 per Mason CJ, Deane J, Dawson J and Toohey J at 493).
108 There is some force in the submissions made by counsel for the appellant. However, I have come to the conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on counts 1, 2, 3 and 6.
109 The jury’s decision rested, very largely, on their assessment of the reliability of the evidence of the complainant, the complainant’s mother, the appellant and the appellant’s mother. The jury had the advantage, denied to this Court, of having seen and heard those witnesses give their evidence. It is true that much of the complainant’s evidence in chief was given by the playing of the audio tapes of the interviews. However, the jury saw and heard the complainant being cross-examined at length.
110 The trial judge also had the advantage of having seen and heard those witnesses give their evidence. In his remarks on sentence the trial judge described the complainant as “one of the most convincing child witnesses that I have encountered”. The trial judge also said
“…the child was cross-examined and, in my view, apart from the question relating to dates and times, his evidence, including his description of the actual offences and the readiness with which he was able to answer most of the questions that were put to him, was very impressive and satisfied me and, I would suggest, the jury that he was speaking from actual knowledge and not fabricating evidence”.
111 On an appeal on this kind of ground a Court of Criminal Appeal is bound to make its own examination of the evidence. However, the Court can have some regard to any opinion expressed by the trial judge about the jury’s verdict or verdicts. In R v Carbone [2000] NSWCCA 387 Wood CJ at CL, with the concurrence of the other members of the Court, said at par 47:-
…This Court is not bound to act in accordance with opinions expressed by trial judges as to whether they would or would not have found an accused person guilty, upon the evidence led in the trial, since that would be to risk compromising the system of trial by jury. Nevertheless, the Court should give careful attention to such views, particularly when they are expressed by a trial judge having the depth of experience which his Honour, in the present case, possessed”.
112 As regards the matters which it was submitted cast doubt on the reliability of the complainant’s evidence, I have already endeavoured to explain how, in my opinion, the verdicts of guilty can properly be reconciled with the verdicts of not guilty, consistently with the jury having generally accepted the complainant’s evidence. It is true that the complainant first alleged that penile/anal intercourse had happened, after his mother has directly asked him a question to that effect. However, before the complainant’s mother asked this question, the complainant had, according to the complainant’s mother’s evidence, told her that the appellant had put his penis in the complainant’s mouth and had put his fingers in the complainant’s anus. It was open to the jury to consider that the piecemeal disclosure of the offences by the complainant should be attributed to threats made by the appellant to the complainant, the complainant’s fear of being punched or otherwise assaulted by the appellant and the complainant’s embarrassment in talking about the offences.
113 As regards the conversation between the complainant’s mother and Dr Hall on 26 July 2001, Dr Hall said in evidence that he could not remember exactly what the complainant’s mother had said. His report to the police was made several months afterwards. Dr Hall accepted that the complainant’s mother had said “Remember problems with his anus that you examined early, could that have been associated with anal intercourse?” On 14 July 1997 the complainant’s mother had taken the complainant to see Dr Hall, after the complainant had complained of rectal bleeding, and Dr Hall had examined the complainant’s anus.
114 It would have been open to the jury to consider that the appellant’s mother had not heard the complainant yelling on the night when the appellant committed the act of anal intercourse with the complainant which was charged in the sixth count, because the appellant had put his hand over the complainant’s mouth and the appellant had desisted from further assaulting the complainant for fear that someone might hear the complainant.
115 It would, in any event, have been open to the jury to form an adverse view of the reliability of the appellant’s mother’s evidence. On the basis of the entries made in the complainant’s mother’s diary, the jury could have rejected the appellant’s mother’s evidence that the complainant had not been to her house for five weeks prior to the 8 June. If the jury rejected this evidence, they could have regarded the appellant’s mother’s evidence about the conversation she said she had had with the complainant on 8 June, about his not having been at her house for five weeks, as an invention on her part, seriously affecting her credibility as a witness.
116 It would have been open to the jury to have discounted Mr Knoerles’ evidence. Mr Knoerles said that, in forming his opinion that the language used by the complainant was similar to the language used by his mother, he had made a careful comparison of what had been said by each of them. However, in his notes of the consultations which had been produced on subpoena, he had not made any notes of any such comparison.
117 In my opinion the second ground of appeal should be rejected.
118 As I consider that both grounds of appeal should be rejected, I consider that the appeal against conviction should be dismissed.
119 ADAMS J: I agree with James J.
120 BELL J: I also agree with James J.
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