R v WRW

[2001] NSWCCA 466

CITATION:	R v WRW [2001] NSWCCA 466
FILE NUMBER(S):	CCA 60080/00
HEARING DATE(S):	3 August 2001
JUDGMENT DATE:	26 November 2001
PARTIES :	Regina v WRW
JUDGMENT OF:	Heydon JA at 1; Simpson J at 80; Smart AJ at 81

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/51/0039
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	Mr M C Grogan (Crown) Mr C J Bruce (Appellant)
SOLICITORS:	S E O'Connor (Crown) Michael Dennis (Appellant)
CATCHWORDS:	Criminal Law - Sexual assault - Evidence - Complaint evidence - 'Credibility rule' - Whether trial judge erred in allowing and not striking out evidence of complainant regarding reason for delay in complaint - Whether trial judge erred in failing to exclude complainant's evidence regarding belief that appellant having affair with his sister-in-law - Evidence Act 1995, ss 55, 102, 108, 135 - Criminal Law - Sexual assault - Significance of factual error in Crown prosecutor's cross-examination of appellant - Whether factual error misleading - Whether caused miscarriage of justice - Criminal Law - Sexual assault - Multiple counts - Mixture of acquittals and convictions - Whether guilty verdicts unreasonable and not supported by evidence - Credibility of complainant - Whether necessity for direction that doubts about credibility re one or more counts must affect assessment of credibility generally - ND
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Carbone (2000) NSWCCA 387 Jones v R (1997) 191 CLR 439 R v Markuleski [2001] NSWCCA 290
DECISION:	Appeal against conviction dismissed.

60080/00

HEYDON JA

SIMPSON J

SMART AJ

26 November 2001

REGINA v WRW

Judgment

1 HEYDON JA

: The appellant appeals against his conviction by a jury after a trial presided over by Tupman DCJ of one count of rape (the fourth on the indictment) and one of indecent assault (the fifth on the indictment).

2 The indictment charged him with four counts of rape and one of indecent assault; in relation to each of the rape counts he was charged in the alternative with unlawful carnal knowledge. The alleged victim was his stepdaughter.

3 The indictment took the following form:

“On 8th of November 2000, the Director of Public Prosecutions on behalf of Her Majesty charges that
[the appellant]
1. between the 15 July 1972 and 15 October 1972 at Nulkaba in the State of New South Wales, did without her consent, ravish and carnally know [the complainant].
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES IN THE ALTERNATIVE THAT
[the appellant]
1. between the 15 July 1972 and 15 October 1972 at Nulkaba in the State of New South Wales, being the stepfather of [the complainant], did unlawfully and carnally know [the complainant] she being a girl above the age of 10 years and under 17 years, namely 10 or 11 years of age.
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES THAT
[the appellant]
2. between 15 September 1973 and 15 October 1973, at Nulkaba in the State of New South Wales, did without her consent, ravish and carnally know [the complainant].
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES IN THE ALTERNATIVE THAT
[the appellant]
2. between 15 September 1973 and 15 October 1973, at Nulkaba in the State of New south Wales, being the stepfather of [the complainant], did unlawfully and carnally know [the complainant] she being a girl above the age of 10 years and under 17 years, namely 11 or 12 years of age.
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES THAT
[the appellant]
3. on 28 September 1973, at Nulkaba in the State of New South Wales, did without her consent, ravish and carnally know [the complainant].
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES IN THE ALTERNATIVE THAT

3. on 28 September 1973, at Nulkaba in the State of New South Wales, being the stepfather of [the complainant], did unlawfully and carnally know [the complainant] she being a girl above the age of 10 years and under 17 years, namely 11 years of age.
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES THAT
[the appellant]
4. between 1 February 1974 and 14 March 1974, at Nulkaba in the State of New South Wales, did without her consent, ravish and carnally know [the complainant].
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES IN THE ALTERNATIVE THAT
[the appellant]
4. between 1 February 1974 and 14 March 1974, at Nulkaba in the State of New South Wales, being the stepfather of [the complainant], did unlawfully and carnally know [the complainant] she being a girl above the age of 10 years and under 17 years, namely 12 years of age.
AND THE DIRECTOR OF PUBLIC PROSECUTIONS FURTHER CHARGES THAT
[the appellant]
5. between 15 February 1973 and 15 March 1973, at Nulkaba in the State of New South Wales, did assault … [the complainant] and that [the appellant] at the time of such assault did commit an act of indecency upon … [the complainant] and she … [the complainant] being then under the age of sixteen years, namely eleven years.”

4 The jury failed to reach a verdict on count 1, found a verdict of not guilty on counts 2 and 3, and convicted the appellant on the fourth count of rape and the count of indecent assault.

5 The appellant was given leave to amend the Notice of Appeal at the hearing of the appeal on 3 August 2001. Ground 4 (relating to conviction) and Ground 6 (relating to sentence) were abandoned, and a new Ground 6 introduced. The amended Notice of Appeal was as follows:

“1. The trial judge erred in allowing the Crown Prosecutor to re-examine the complainant as to why she failed to complain to her mother … and aunty … ..
2. The trial judge erred in failing to exclude the evidence of the complainant in re-examination as to her belief that the appellant and [her aunt] were having ‘an affair’.
3. The trial miscarried as a result of the Crown Prosecutor misleading the appellant (in cross-examination) as to the date of birth of the child of [the aunt] as ‘about September 1973’.
4. …
5. The verdicts of guilty are unreasonable and cannot be supported having regard to the evidence.
6. The trial judge erred in failing to direct the jury that if they entertained a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.”

6 At the hearing of the appeal the appellant also sought, and was granted, leave to file and serve further written submissions within seven days in relation to various matters, including the decision in R v Markuleski [2001] NSWCCA 290, which had only been decided on 1 August 2001. In fact the written submissions were not filed and served within seven days because of some breakdown of communications between counsel for the appellant and his instructing solicitor. They were not filed and served until 12 November, and the Crown responded to them on 13 November.

Background

7 A useful summary of the factual controversy appears in the appellant’s written submissions as follows:

“Count 1
The complainant alleged that the appellant (her step-father) while in the TV room of their house had penile/vaginal intercourse with her whilst she was seated on his lap (TT -77.55). The complainant alleged that the appellant was naked at the time and that he undressed her prior to intercourse taking place. The appellant directed her to sit on his lap. The appellant ejaculated into a handkerchief. The complainant went to the toilet noticing that her periods had just started. She told the appellant of this fact and he told her to put a pad on. On the issue of dating this incident she further said that she became aware that her mother was pregnant with [the complainant’s half sister] (born 21/2/73) ‘a few days or a week’ after this incident (TT – 81.35).
Count 2
The complainant alleged that she and the appellant were in the lounge room of their home when the appellant raised the topic of the pigs on the farm mating. The appellant told the complainant to undress and directed her onto the floor on her hands and knees where he penetrated her vagina from behind with his penis (TT – 78.48). Her evidence as to the timing of this incident was ‘probably been a few days before the birthday’ – ie her 12th birthday – ie the 28th September 1973 (TT – 82.13).
Count 3
The complainant alleged that on her 12th birthday (28/9/73) she spoke to her mother by phone who told her where her birthday present was. She located the present which was a brunch coat and nightie. The appellant asked the complainant to try the nightie and brunch coat on. The appellant then undressed the complainant and had penile vaginal intercourse with her on a fold out lounge in the lounge room of their house The appellant asked the complainant to sleep with him that night but she refused (TT – 79.18).
Count 4
The complainant alleged that at a time when her aunty … was staying at their house the complainant had penile-vaginal intercourse with her in the lounge room near the front door. During this incident the complainant’s mother and aunty returned to the farm by car. At that stage the appellant told the complainant to go and fix herself up (TT – 80.8). The complainant’s aunty gave evidence to the effect that she recalled staying at the appellant’s house for a period of two weeks around the time of her birthday on the 27th February 1974 as she suffered an injury to her eye whilst picking grapes in the area (TT 150.36).
Count 5
The complainant alleged that whilst her mother was in hospital giving birth to [the complainant’s half sister] (21/2/73) she approached the appellant who was in bed to sign a ‘permission note’ and whilst there the appellant placed his fingers in her vagina (TT 80.33). At this time the complainant’s grandmother and [her] de facto husband were assisting in looking after the complainant and the other children whilst her mother was in hospital.
It should be noted that the complainant gave evidence of uncharged acts of sexual assault – two having occurred prior to the first count in the indictment and the third after the last count in the indictment.
Defence Case
The appellant gave evidence denying that he ever sexually assaulted the complainant. The appellant’s wife gave evidence in relation to a number of matters directly opposed to the evidence of the complainant.”

Ground 1: re-examination of complainant

8 When the trial opened on 8 November 2000, the trial judge said that counsel had been discussing some issues with her in chambers. One related to complaint evidence. The trial judge said that the complainant said in her statement that she had complained to her aunt some time after the events in issue, and complained to her mother about ten years later. The trial judge asked the Crown prosecutor if he intended to call that complaint evidence. He said he would if it were to be suggested to the complainant in cross-examination that she had never complained, or that when she did complain she lied, but not otherwise. The trial judge said that if it were to be called, it should be called in chief.

9 On 9 November 2000, shortly before the complainant began to testify, the Crown prosecutor said that evidence of complaint would not be called if the only cross-examination of the complainant related to her failure to make immediate complaint. But if it were to be suggested that she had never made any complaint, immediately or otherwise, the Crown would call evidence of it.

10 In relation to each of the first three incidents the complainant was asked in cross-examination about whether she complained immediately to her mother, in relation to the fourth incident she was asked if she complained immediately to her aunt, and in relation to the fifth incident she was asked whether she complained immediately to her grandmother or her grandmother’s de facto spouse. In each case she said she did not.

11 At the end of the complainant’s cross-examination, the transcript records the following:

“(Crown Prosecutor advised her Honour that he intends raising with witness in re-examination why she did not complain to her mother, as Mr Johnston has asked questions relating to did she complain to her mother. Her Honour advised that this is a credit issue and Crown Prosecutor is entitled to re-examine on this issue. Mr Johnston has no objection to this course.)
SHORT ADJOURNMENT
(Crown Prosecutor advised her Honour that intends raising the with witness in re-examination why she did not tell her aunt in relation to the driveway incident, charge 4. Her Honour advised that the Crown Prosecutor that he is entitled to re-examine the witness in this regard.)”

12 This event was not a departure from what the Crown prosecutor had earlier foreshadowed. What was discussed earlier was whether the Crown prosecutor would call evidence of non-immediate complaint. What the Crown prosecutor now foreshadowed was evidence about why there had not been immediate complaint. This is no doubt why Mr Johnston, counsel for the appellant, said he had no objection.

13 After some preliminary questions in re-examination from the Crown prosecutor, the transcript records:

“Q. In relation to that incident was there a reason why you didn’t tell your mother at that time about it?
A. I didn’t have a good relationship with my mother, in fact we were all fairly fearful of my mother, she was the disciplinarian in the family, and we were raised to speak when spoken to.
Q. Did you speak to the accused about telling anybody?
A. Yes, I had threatened to tell, and he had said that no-one would believe me.
OBJECTION
HER HONOUR: What time period are you talking about?
CROWN PROSECUTOR: Q. I’m sorry, in relation to this first incident that you talked about, that happened at the time your mother was pregnant with [the complainant’s half sister]?
A. Yes.
Q. Did you speak to the accused --
OBJECTION. NOT ARISING FROM CROSS-EXAMINATION
IN THE ABSENCE OF THE JURY
WITNESS STOOD DOWN
WITNESS LEAVES THE COURT
(Crown Prosecutor submits that question goes to the reason why witness had not told her mother, and that that arises from cross-examination. Discussion ensued. Crown Prosecutor advised that certain information has been given in conference by witness which is not contained in her statements. Mr Johnston advised her Honour that this material, part of the Crown case, has never been served on defence and he had had prior knowledge of threats being made, he would not have asked questions relating to why witness did not complain at the time of incident. Mr Johnston foreshadows that if this line of questioning is allowed he may make an application to discharge jury. Discussion ensued. Her Honour proposes to counsel that evidence be called on voir dire.)”

14 Apparently, in some way which is not clear, an impression had arisen that the complainant might give evidence of having been threatened by the appellant.

15 A voir dire then took place. In the course of it the complainant said that she had been sexually assaulted by the de facto spouse of her grandmother. She also said that the appellant had had an affair with her aunt (i.e. his sister-in-law). Counsel for the appellant applied for a discharge of the jury, unsuccessfully. The Crown prosecutor then said he would not ask the complainant why she had not complained either to her grandmother or her “grandfather” (presumably meaning the grandmother’s de facto spouse).

16 At this point the transcript records:

“HER HONOUR: Mr Johnston it seems to me that the voir dire evidence has indicated that the complainant will not give evidence of having been threatened by the accused. She will give evidence at most of the accused having said to her on some occasions, the only one of which she can recall specifically being an occasion in about 1974, after these events, that he said ‘Don’t tell anyone, they won’t believe you.’
(Mr Johnston submits that the nature of the evidence arising from voir dire is such that the only date that the complainant can fix is a date that post dates the charges that are before the Court, and that the Court could not be satisfied that the acts occurred at or around the time of other incidents, and it would be improper to put such information to the jury. Mr Johnston also submits that the defence should be entitled to cross-examine complainant on the point that information was not included in her statements and that the only date she can recall is a date post-dating incidents complained of. Crown Prosecutor does not object to this course. Discussion ensued. Her Honour advised that she will inform complainant that she is not allowed to say anything about complaints made in relation to [the grandmother’s de facto spouse].)
(Mr Johnston submits that evidence concerning complainant’s aunt would be unfairly prejudicial to defence case and that probative value in relation to that is not high, and refers to s 136, to limit the nature of evidence.)
HER HONOUR: No I will not do that Mr Johnston, it is not true. I will not do that. That is not what 136 is as about, in my view, in any event, 136 is not a mandate for altering the words of the evidence, it is simply a mandate for altering the extent to which the evidence can be used, to limit its use. 136 does not allow me to tell a witness that she cannot give the evidence in her own words but must give it in a way which is not consistent with what I know she is going to say. Just let me get this right – the jury would be unfairly prejudiced against the accused if they find out that it was common knowledge that he had an affair with his sister-in-law?
JOHNSTON: Yes your Honour.
HER HONOUR: In 1973?
JOHNSTON: Yes your Honour.
HER HONOUR: No, I am against you Mr Johnston. Now if that is the evidence that she gives, and that would seem to be because that is one of the reasons she gave on the voir dire, again I cannot help but observe that this sort of material should have been in the police statement in the first place, it finds its way into most other police statements for offences of this nature, but it wasn’t. But in any event Mr Johnston, you’re not saying that you wouldn’t cross-examine her about not telling the mother if you knew that was the reason are you?
JOHNSTON: Your Honour it’s the case that as the trial’s progressed I have deliberately refrained from asking those questions, and I did not pursue that line of questioning when I was cross-examining her about the incident with the aunty at all. I didn’t put to her that the reason it couldn’t have occurred in 1974 was because of the fact that there had been this affair with the aunty.
HER HONOUR: But you have got ambivalent evidence from her about that anyway. I mean I must say it occurred to me at the time I wasn’t sure why you didn’t, because she says clearly in her evidence in chief it happened in February 1974, she says that she knows that it’s February because her aunty told her, but apart from that she knows herself that it’s either December 73, January, February 74. But she also said something like ‘I’m not sure’, exactly what she meant by that I do not know. But that is the totality of her evidence. I mean the totality of her evidence is not just ‘I’m not sure’, she’s given much more evidence about it than that. You’ve made that decision not to raise it.
JOHNSTON: And that’s why I’m suggesting the fact that it wasn’t raised your Honour, to raise it now would unfairly prejudice the accused.
HER HONOUR: Well no, I am against you Mr Johnston. I propose to allow the evidence to be called along the lines of the voir dire about any other reasons that there were for not telling her mother as to 1, 2, 3, 4 and 5, and her aunty as to 4 as well, but not for there to be any questions about why she didn’t tell her grandfather [i.e. her grandmother’s de facto spouse], and for that matter her grandmother. There are no issues raised about the possibility of threats. If that had been the case my view might well have been different, but it doesn’t seem to me that the fact that it might come out that there was an affair between your client and his sister-in-law is such that it would be unfairly prejudicial to the accused, any inferences the jury might draw against him in relation to that.”

17 The re-examination then resumed. The complainant said the reason why she did not make immediate complaint to her mother was that her relationship with her was not good, that the appellant told her that no-one would believe her and that he would deny it, and that she was “in general frightened”. In particular, she was frightened of her mother. She said she did not complain to her aunt after the fourth incident because she believed the aunt was having sexual relations with the appellant. She said she did not complain to her mother about the fifth incident because her mother was in hospital. She said that the appellant said “No-one will believe you, I’ll deny it” a few times; she could not specifically relate these conversations to any of the charged incidents, but could relate it to another incident.

18 In further cross-examination the complainant said she related the words to the last uncharged incident, which took place in the shower, at a time after the five charged incidents. She admitted she had not recorded the words of the conversations in her statement to the police dated 11 January 1999. The Crown prosecutor admitted that she had not recorded those words in another statement to the police either.

19 The appellant put the following submission to this Court:

“Counsel for the appellant [below submitted] that as the complainant could not fix this comment by the appellant (in time) in relation to any specific count in the indictment the evidence should be excluded because it is only relevant as far as recent complaint is concerned and the evidence falls far short of establishing its recency in relation to any of the counts charged in the indictment. The trial judge referred to this comment by the appellant to the complainant in her directions to the jury (SU 36.7). The actual evidence she gave on this matter in the trial proper is found at page 124.15 which is even more remote as far as ‘recency’ to any of the five counts in the indictment.
This evidence was clearly inadmissible and prejudicial to the appellant’s case – particularly having regard to the fact that it came in re-examination. The Crown knew prior to the complainant giving evidence that on the issue of complaint the appellant was only going to the jury on the question of no recent complaint not that she had made no complaint at all.”

20 The evidence elicited by the cross-examiner of the complainant’s failure to complain immediately was relevant and admissible evidence going to the credit of the complainant. The “credibility rule” created by s 102 of the Evidence Act 1995 that evidence that is relevant only to a witness’s credibility is not admissible does not apply to evidence adduced in re-examination: s 108(1). The evidence in which the complainant gave explanations for her failure to complain immediately was evidence which the jury could treat as being capable of restoring her credibility, or at least qualifying any damaging impact on her credibility caused by her failure to complain. The explanation that the appellant told her not to tell anyone because they would not believe her was relevant in the same way as the evidence of the other explanations provided that it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue”: s 55(1). That depended on whether it was open to the jury to infer that the statements were made by the appellant soon after any of the five charged events. In the first passage of re-examination, the complainant said that the appellant told her that no-one would believe her about the first incident “at the time [her] mother was pregnant with [the complainant’s half sister]”. On the voir dire she said that that type of conversation took place a few times, though she could not link them in point of time with any incident other than the uncharged shower incident, which took place later than the five charged incidents. She also said that similar words had been said “before” that shower incident.

21 The admissibility of this material in the second stage of re-examination has two aspects. In the light of what the complainant said before and during the voir dire, should further questioning about what the appellant said have been allowed? Once it had been allowed, should the evidence have been struck out?

22 There was no error in the trial judge allowing the questions, because after the voir dire, assuming the complainant’s evidence before the jury were to correspond with that given on the voir dire, it was correct for the trial judge to assume that the evidence was capable of explaining her failure to complain. She said that she could remember the conversation after the shower incident; that she could remember other conversations; and that those other conversations occurred before it. The complainant in November 2000, as an adult, was trying to remember events in the early 1970’s over an eight month period. Statements made before the shower incident were capable of explaining a failure to complain about the earlier five charged incidents occurring over those eight months. It was for the jury to decide whether the complainant was to be accepted in testifying that the appellant had said what she alleged, and, if so, whether this had a causative influence on her failure to complain about the fifth or any earlier incident. The foreshadowed evidence was necessarily non-specific, but it was capable of amounting to an explanation.

23 The second issue is whether, when the actual evidence was given, it should have been struck out on the ground that it fell below that foreshadowed on the voir dire. It was given a little more vaguely before the jury than it had been on the voir dire. Before the jury the complainant did not in terms say that conversations of the relevant type had occurred “before” the shower incident. But in substance she said that, because she said that she remembered the conversations in relation to the shower incident, the shower incident was the only non-charged incident after the five charged incidents, it would be unlikely that the conversation would have occurred more than once after the shower incident, and hence some of the conversations occurred before the shower incident. The evidence was not so irrelevant or prejudicial as to merit it being removed from the jury’s consideration, and indeed defence counsel did not apply for this to be done.

24 Ground 1 fails.

Ground 2: the affair between the appellant and his sister-in-law

25 The appellant submitted:

“Objection to this evidence was taken by the appellant’s counsel (TT 119.58) pursuant to section 136 of the Evidence Act 1995 (119.58). The objection should have been taken pursuant to section 135(a) of that Act. The relevance of this evidence from the Crown’s point of view was that it was one of a number of explanations given by the complainant as to why she did not complain at the time of the sexual assaults to her mother or aunty. The evidence was highly prejudicial from the appellant’s point of view – having an affair with his wife’s sister in this general period when he was allegedly sexually assaulting his stepdaughter. The jury had before it sufficient reason as to why the complainant did not complain immediately – ie her poor relationship with her mother and the appellant telling her no one would believe her. Once the issue of the affair was put before the jury it took on a life of its own taking on undue significance in the context of the trial.”

26 There is no doubt that if the complainant’s evidence of suspecting the affair was accepted, it would be a powerful reason why the complainant would not have complained to her aunt. To have complained would no doubt have led to a series of most unpleasant scenes which a twelve or thirteen year old girl would be anxious to avoid.

27 The prejudicial effect of the evidence was slight. For a man to have an affair with his wife’s sister is not to be regarded as admirable conduct, but it does not of itself suggest that he was the type of man who would have sexual relations with a young girl who was his stepdaughter.

28 Though the trial judge was not in terms asked to exercise her discretion under s 135, she appeared to take that into consideration of her own motion. She did not err in the conclusion to which she came.

29 Ground 2 fails.

Ground 3: misleading the appellant as to the date of birth of the appellant’s sister-in-law’s child

30 Ground 3 relates to count 4. The Crown case on count 4 was that the offence was committed between 1 February and 14 March 1974.

31 On the second last day of the evidence, 13 November 2000, the Crown prosecutor suggested to the appellant in cross-examination that his sister-in-law had a child in about September 1973. Initially the appellant said he did not know when she had the child. Then the following evidence was given:

Q. I suggest to you that she was born in about September 1973, about the same time as [the complainant] turned 12?
A. Well if – yeah she must’ve done.
Q. You’ve told the Court that [the complainant’s half sister], well not just you telling the Court, I think it’s established evidence, that [the complainant’s half sister] was born in February 1973?
A. Correct.
Q. If you accept that [the complainant’s half sister] was born in September 1973 and that you say the visit to your house occurred when [the complainant’s half sister] was a few months old, that would put it about what May/June 1973?
A. About then, yeah.
Q. That is some three to four months before [the sister-in-law] had her child?
A. Yeah that’d be right.
Q. I’d suggest to you that your affair with her was in February 1974, not June/July or May/June 1973?
A. No.
Q. You say you had an affair with her when she was six or seven months pregnant do you?
A. That’s correct.
…
Q. What you distinctly remember your sister-in-law being quite pregnant at the time you had the affair with her, do you?
A. Yes.
…
Q. When did it occur to you that your sister-in-law was quite pregnant at the time you had the affair with her?
A. I don’t follow what you mean.
Q. Your evidence is that your sister-in-law was pregnant at the time you had the affair with her?
A. Right.
Q. When did it occur to you that that was her condition at the time you had the affair?
A. Well I knew she was pregnant.”

32 The next witness, the appellant’s wife, gave evidence that in fact the child in question was not born in about September 1973, but November 1972.

33 At the start of 14 November 2000, the day after the evidence of the appellant and the appellant’s wife was given, which was also the day on which the parties addressed and the trial judge summed up, the Crown prosecutor informed the trial judge in the absence of the jury of the mistaken factual assumption on which he had cross-examined the appellant. Various possible courses could have been adopted to deal with the Crown prosecutor’s error. One was to discharge the jury and recommence the trial. The appellant did not request this and it would have been an extreme outcome. Another was to say nothing about the error. However, the appellant did not oppose the error being identified and corrected. The trial judge decided that the matter required correction in the presence of the jury. She said this was important for various reasons.

“I think it has to be raised because, first of all it’s important as far as the complainant’s evidence is concerned because there are two counts on the indictment that she claims happened either on or around her 12th birthday and she claims that she remembers her mother wasn’t there and she thinks her mother wasn’t there because she was in Sydney helping her sister who was giving birth to a child. If her recollection that her mother wasn’t there is capable of being tested possibly by the reason why she thinks she wasn’t there and she’s obviously got that wrong. So that’s important for that reason. It’s also important in terms of assessing the accused’s evidence so far as the jury is concerned. If what he was doing was simply accepting what you were putting to him as a positive proposition and that is that his niece by marriage was born in around about September October 73, which was what you thought was the case at the time, then what he’s obviously done is to think, oh, she must’ve been pregnant, I suppose I’d better agree with that. If that’s the way the jury sees it that’s significant in terms of assessing him as a credible witness.”

34 The following debate then took place between counsel for the appellant and the trial judge:

“JOHNSTON: Your Honour, the difficulty I have with that --
HER HONOUR: Even if I don’t tell them, the Crown can say so in his address to the jury.
JOHNSTON: But if the Crown capitalises on that, your Honour, the Crown’s capitalising on a false proposition that was put to [the appellant] yesterday.
HER HONOUR: But your client didn’t have to agree that his lover was six months pregnant if it weren’t true – he did. It clearly wasn’t true, or if it was true it wasn’t around about the time that [the ccomplainant’s half sister] was born. He’s agreed with it. One might’ve thought it something that he might’ve noticed.
JOHNSTON: Except in relation to the pregnancy, your Honour.
HER HONOUR: Yes.
JOHNSTON: That point that in relation to the dates themselves [the appellant’s] evidence was not that he agreed with the dates, [the appellant’s] evidence was that if the Crown was telling him that that’s the dates, he accepts those dates.
HER HONOUR: Yes, but then having agreed with that – that’s not so, Mr Johnston, because he went on then and said in response to the proposition which had not been raised before that therefore that must’ve meant that the person with whom he was having an affair was about five or six months pregnant, he said, ‘Oh yes, she was.’
JOHNSTON: I accept the second part of what your Honour’s saying but the first part still is that --
HER HONOUR: Yes, he was led into it and presumably what you’re saying is that he didn’t really know what dates and he was accepting that what he was being told was correct. Now, it turns out it’s not correct.
JOHNSTON: And in effect he was misled in relation to those dates. It’d be my submission that it would be unfair to capitalise on the fact that the propositions that proceeded it misled him.”

35 Shortly after the jury returned the Crown prosecutor made the correction and the trial judge repeated it.

36 The appellant submitted to this Court:

“Counsel for the appellant objected to the Crown attacking the appellant’s credit on the basis that the accused agreed that [his sister-in-law] was six or seven months pregnant when he had an affair with her when this was obviously wrong – the Crown having misled the accused as to the date of birth of her child. The trial judge refused to restrict the use the Crown could make of this evidence on addressing the jury (TT 198-40).
This evidence plus the admission of the evidence that the appellant was having an affair with his sister in law would have caused irreparable damage to the credit of the appellant in the eyes of the jury.”

37 The mere fact that the appellant was having an affair with his sister-in-law, which was a proposition advanced by the appellant in his evidence in chief and not a proposition thrust on him by the cross-examiner, would not have caused irreparable damage to his credit. The sister-in-law, for one, denied it. In any event the proposition was not one which had an inherent tendency to damage the appellant as a witness of truth. The error, so far as it was adopted by the appellant, and it was not clear whether he did adopt it as anything more than an assumption he was asked to work with, was speedily corrected – first by the testimony of the appellant’s wife, then by the Crown prosecutor and then by the trial judge.

38 A new point was advanced in the oral submissions put to this Court on behalf of the appellant. Those submissions contended that in the Crown’s address to the jury it “did rely on the point that the appellant in fact lied in relation to him having a relationship with [his sister-in-law] at a time when she was notably pregnant”. What the Crown address said, in the course of an attack on the credibility of the appellant and his wife, was:

“You remember yesterday I put to him about the time frame at which [his sister-in-law’s] daughter was born. Now the date put was wrong. But on the evidence, I withdraw that. On the proposition I was advancing she would have been very pregnant at that time, noticeably pregnant at the time. Now you might think to yourself that if you were having an affair with somebody who was pregnant that would probably stick in your mind. And when it was put to him, ‘Oh yeah, yeah, that’s right, she was pregnant’. Not ‘I don’t think that was the case’ or ‘I didn’t know’ or ‘I don’t remember’ but ‘Oh no, she must have been pregnant. She was pregnant.’ What I’d suggest to you, that indicates fairly strongly that he’s making it up as he went along.”

39 The Crown put the following submission to this Court:

“What happened on one construction was that the accused advanced before the jury a case whereby he had an independent recollection that this woman was pregnant at the time of the affair. It’s an arguable point as to whether, on the one hand, he was misled. It’s a matter where even on the Crown’s closing, it’s not a case where what the accused actually said, necessarily resulted from him having been misled about the date when certain things occurred.”

40 The issue of whether the appellant’s evidence about his perception of his sister-in-law’s pregnancy was dishonest was not dependent on the mistake about the birth date of her child. The revelation of any dishonesty on that topic was occasioned by that mistake, but not contributed to by it. The Crown prosecutor’s point was a fair one. The proposition that the appellant was having an affair with his sister-in-law whilst she was pregnant rested on the proposition that the child was born in September 1973, not November 1972. The proposition that his sister-in-law was pregnant in the course of the affair was accepted by the appellant on three occasions. He could have said he did not remember. He could have denied that she was pregnant. Instead he said she was pregnant. His acceptance of the proposition, which, once the Crown prosecutor’s error was corrected, can be seen to have been incorrect, was capable of casting great doubt on his veracity. The Crown prosecutor capitalised on the evidence which the appellant gave, but it was not unfair to do so. The line of reasoning which the Crown advanced to the jury is one which the jurors were capable of adopting for themselves, and so the reasoning would not have been illegitimate or invalid. If there was any method by which that line of reasoning could be weakened, it was open to counsel for the appellant to deploy it in his address, which followed the Crown prosecutor’s address.

41 Ground 3 is rejected.

Ground 5: unreasonable verdicts

42 The appellant submitted that the failure of the jury to agree on count 1 and their verdicts of not guilty on counts 2 and 3 suggested that they felt unable to accept the complainant’s evidence as “truthful and reliable” on those counts, and that in consequence her credibility generally was “greatly diminished”. The appellant submitted that nothing in her evidence or the surrounding circumstances “offered any comfort that [the convictions on counts 4 and 5] were reasonable”. The appellant relied on R v Carbone (2000) NSWCCA 387 at [56]-[57] per Wood CJ at CL.

43 In R v Markuleski [2001] NSWCCA 290 Spigelman CJ said that the reasoning in cases like R v Carbone suggests that Jones v R (1997) 191 CLR 439 established the proposition that in a pure word against word case a mixture of acquittals and convictions cannot be sustained unless the Court can detect a relevant difference in the quality of the complainant’s evidence. He continued (at [65]-[66] and [69]-[74]):

“In my opinion that is not what the High Court intended. Whether or not the failure of the jury to accept the complainant’s version in one respect ought to have led to [sic] the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant’s evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, that conclusion does not, in my opinion, follow in every such case unless the Court is positively satisfied that there is some relevant difference in the quality of the complainant’s evidence.
I repeat, with my emphasis, a sentence from the joint judgment in Jones at 453:
‘There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.’
The reference to ‘the surrounding circumstances’ requires an appellate court to consider all the facts of the case.
…
The absence of any relevant difference in the complainant’s evidence was emphasised in Jones … . It is not, however, in my opinion, the case that the reasoning in Jones requires a court of criminal appeal to quash a conviction in a pure word against word case, unless the differences between or amongst the verdicts can be explained in this way.
Indeed, the court’s respect for the constitutional role of the jury, affirmed in Jones itself, is such that a court of criminal appeal could conclude that subtle differences in the way evidence was presented – differences not apparent from the transcript available on appeal – may explain what appear to be, at first sight, inconsistent verdicts.
In R v J (1994) 75 A Crim R 522 at 540, Brooking J referred to ‘the inability of the transcript to record pauses or other indications of indecision’. In R v Robinson (2000) 111 A Crim R 388 at [61] Barr J referred to the possibility that the jury may make an assessment of reliability ‘… by the way he gave his evidence rather than by what he said’. Adams J made similar observations in ARD [[2000] NSWCCA 443] at [201] [203]. See also Spiteri v The Queen [2001] WASCA 82 at [34].
Furthermore, in a number of cases a court of criminal appeal has expressed its conclusion in terms of what a jury ‘may’ have done, which suggests that some form of differentiation about the character of the complainant’s evidence was accepted by the jury, although it was not apparent to the appellate court. …
The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant’s evidence on one count, ought to have had such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case.
It is not, however, easy to formulate principles as to when a jury should conclude that a reasonable doubt on one count, notwithstanding the complainant’s evidence on that matter, means that the jury ought to have a reasonable doubt about other counts, about which the only evidence is from the complainant.”
Grove J and Carruthers AJ agreed. Wood CJ at CL said that his analysis in R v Carbone required qualification in view of Spigelman CJ’s analysis.

44 The trial judge directed the jury that the time periods or dates referred to in the indictment were essential elements, and if the jury experienced reasonable doubt about any one of them, they had to acquit in relation to it. That direction was repeated for each specific count as the trial judge came to each of them.

45 The appellant submitted that the differences in the jury’s approach to the five counts could not be explained by failure to be satisfied as to the timing of the first three incidents but not the fourth and fifth. The appellant submitted:

“In relation to count 1 the time frame was the 15th July 1972 to the 15th October 1972. The evidence the Crown relied on to prove that the offence occurred during this period was the evidence of the complainant commencing at page 81.34 -
‘Q. Can you recall in relation to [the complainant’s half sister] being born how long before that happened that this particular event you’ve described in the television room happened?
A. I do remember my mother and [the appellant] telling us that she was pregnant and going to have a baby around the time that incident had happened.
Q. Do you recall whether you were told that before or after?
A. It was after – it was – it was only a matter of a few days or a week after.
Q. Do you have any recollection of your mother appearing to look pregnant at that stage?
A. No I don’t. I – I wasn’t aware that she was pregnant – I overheard a conversation.’
[The] complainant’s [half] sister, was born on the 21st February 1973. If the time frame was the jury’s concern in relation to count 1 the only proper verdict was that of not guilty – an opinion advanced by the trial judge (TT 15/11/00 – 3.22).
In relation to count 2 the time frame was set as a result of the complainant’s evidence to the effect that the offence occurred a ‘few days’ before her 12th birthday – 28th September 1973 (TT – 82.12). Count 3 is dated as a result of the alleged offence occurring on the evening of the complainant’s 12th birthday (TT – 79.22). The time frame for count 4 is set in the context that the complainant’s aunty … was visiting the farm at the time of the alleged offence which [the aunt] confirmed (in her evidence) was for two weeks on or about the 27th February 1974 (TT – 151.4). Count 5 is set in the time frame that the complainant’s mother was in hospital giving birth to [the complainant’s half sister] (ie 21/2/73) on or about the time of the alleged offence – a fact not disputed by the appellant at his trial.
The different verdicts cannot be explained by the fact that the jury had a reasonable doubt that the alleged offences occurred on the date or within the time frame alleged as they would have returned a not guilty verdict in relation to count 1. One would have expected that, if this was the problem, of all the charges the jury would have convicted on would have been counts 2 and 3 – those allegedly occurring just prior to and on the complainant’s 12th birthday.”

46 The appellant submitted orally that the complainant’s mother would have learned of her pregnancy in late May 1972 and the complainant would have learned of it more than one week before 15 July 1972. Hence, “the jury unequivocally should have had a reasonable doubt in relation to that count and thus found the accused not guilty.” The appellant then submitted that since, if the jury were concerned about timing, they would have acquitted on count 1, and since they did not acquit, one or more of them must have been concerned about something else. The appellant submitted that this suggested that the jury’s concern was a concern about the complainant’s general credibility, perhaps stimulated by the conflict between her evidence that there was a television room distinct from the lounge room and that of her mother that there was not. If the jury were concerned about the complainant’s general credibility on matters other than timing, the difference in the outcome on the five counts is not explained by the fact that at the time of the events alleged in the fourth count the complainant’s aunt was staying with the complainant, and at the time of the events alleged in the fifth count the complainant’s mother was in hospital: these matters did not increase the reliability of the complainant’s evidence that the offences had been committed.

47 The Crown submitted:

“It was logically possible, in conformity with the directions, for the jury to have accepted the complainant as a witness of truth but unreliable in her recollection of precisely when the offence occurred. This was not a case in which it could be concluded that a verdict of not guilty was indicative of the jury’s rejection of the complainant as a witness of truth.
Some insight into the effect of the directions about the need for specificity in the jury’s findings is recorded at SU 43 (15 November 2000). It is apparent that at least one juror was concerned whether the Crown had to prove beyond reasonable doubt the very room in which the offence had occurred.
The jury was unable to return a verdict on the first count. It is apparent that the evidence of the time of the offence was difficult to establish. Her Honour summarised the Crown’s position at SU 21.7:
… the Crown relies upon the evidence of the complainant that she remembers this happening a week either side of her mother telling her that she was pregnant with what turned out to be her sister … born on 21 February 1973. There is evidence that [her mother] fell pregnant in May 1972. The Crown argues that [her mother] would have been able to confirm that pregnancy about four weeks after falling pregnant, and then within a reasonable time frame would have told her children about it, not before July 1972, and by 15 October 1972 she would have been obviously pregnant and they could have worked it out for themselves.
There was no request for re-direction or suggestion that her Honour’s perception was incorrect. That being the position it is not difficult to accept that the jury may have found itself speculating about a number of possible scenarios of when and how the pregnancy was disclosed. It is not difficult to understand why there may have been a schism on the timing among the jurors.
The time frame alleged in the second count was dictated by the complainant’s recollection that the offence occurred two weeks either side of her 12th birthday, which was on 28 September 1973. She said that her mother was not at home but had told the complainant, in a telephone conversation, where her present was (T 79.40). She believed that her mother had telephoned her from Sydney (T 101.6). The mother … denied being absent from the house on the complainant’s birthday (T 208.25).
In directing the jury her Honour again made it quite clear that there was a dispute about the time. She reminded the jury that [the complainant’s mother] had said that she might have been visiting her sister, as asserted by the complainant, but that it was in November 1972 (SU 23.2). Her Honour also warned the jury that if a reasonable doubt existed about when the incident occurred, they were obliged to acquit (SU 23.5).
There was evidence independent of the complainant that there may have been an occasion upon which [the complainant’s mother] was in Sydney visiting her sister. The acquittal is consistent with the jury not being satisfied when the offence occurred although not having any doubt that it did. It cannot be [inferred] from the verdict that the jury found the complainant to be unreliable other than in relation to the time of the offence.
The third count alleged an offence on the date of the complainant’s twelfth birthday on 28 September 1973. The competing evidence of the surrounding circumstances is virtually the same as in count 2. The area of dispute was whether [the complainant’s mother] was at home on the occasion or, as claimed by the complainant, she was in Sydney. Her Honour directed the jury that if they had a reasonable doubt about the event having occurred on 28 September 1973 they should acquit. It is open to conclude that the jury did have a doubt about the time and, consistent with the directions, entered a verdict of not guilty.
The Appellant was found guilty of counts 4 and 5. In relation to the former the significant memory was the unusual occurrence of the complainant’s aunt … staying at the family home. The offence was alleged to have occurred between 1 February and 14 March 1974. [The aunt’s] evidence was significant in that she confirmed that she was at the house in 1974 because she was working in a nearby vineyard. She said that on 27 February 1974, her birthday, she was injured by a vine twig entering her ear (T 150.45). She said she stayed at the [appellant’s] home for two weeks (T 151.7). Under cross-examination she rejected the suggestion that she was not staying there at that time (T 152.5).
It was open to the jury to accept that there was independent evidence of the time at which the offence was said to have occurred. If the jury was satisfied that the complainant’s evidence on this point was confirmed and accepted that the offence did occur there was a proper basis for a guilty verdict.
Count 5 alleged an indecent assault between 15 February and 15 March 1973. One of the reference points relied upon by the complainant was that her mother was in hospital for the birth of her child … . There did not appear to be any dispute that the child was born on 21 February 1973. The complainant also recalled that her grandparents were staying at her home and that an occasion arose when she needed to have a permission note signed (T109.47).
It was open to the jury to accept that on this occasion the complainant’s recollection of time was accurate and that there was independent evidence supporting her on that point. The jury then had to decide whether to accept that the offence occurred. They clearly did.
This was a case in which there was considerable dispute about the time at which various things occurred. This aspect occupied a significant part of the trial. The jury was left with no doubt that the occurrence of the acts constituting the offences alone was not sufficient to support a guilty verdict. The jury had to be satisfied that the events occurred within the specific time frame alleged in the indictment.
The jury received clear warnings about accepting the complainant’s evidence and it must be assumed that it proceeded in accordance with those directions. The verdicts can be interpreted as reflecting a situation in which the complainant’s veracity was accepted, but there were reasonable doubts about the timing. The benefit of that doubt was properly extended to the Appellant. There is however no basis for concluding that the findings of guilt were other than indicative of the jury’s thorough consideration of the evidence and an acceptance that the Crown had proved beyond reasonable doubt each element of the offences.”

48 The first issue to be dealt with relates to the first count. The Crown’s submission that it was possible for some jurors to be satisfied of the time beyond a reasonable doubt while others were not appears to be correct. There is nothing suspicious in the jury’s failure to find a verdict of not guilty. The vagueness about the time when the complainant overheard a conversation about her mother’s pregnancy, and the indeterminate nature of the Crown argument put to the jury on this point, explained why some jurors could experience a reasonable doubt.

49 The second issue relates to the period concerning the second count and the date of the third count. These were defined by reference to the complainant’s birthday, 28 September 1973. In view of the sharp conflict between the complainant and her mother on whether the mother was away, and on whether the complainant was confusing another period when the mother was visiting her sister in November 1972, it was open to the jury to experience a reasonable doubt about the timing of the alleged incident.

50 The third issue relates to the timing of the incident charged in count 4. The key event said by the complainant to affect the timing was the visit of the complainant’s aunt to the family home. This aspect of the complainant’s evidence, unlike the evidence relating to counts 1-3, was confirmed by the aunt. The aunt was called by the Crown, but, not surprisingly, was a reluctant witness. She refused to answer some questions on the voir dire, she showed a strong animus against the complainant, and she said she would refuse to answer various questions before the jury. When the jury came in, she initially refused to be sworn in front of them. However, apart from the last event, the aunt’s conduct took place in the jury’s absence. Her evidence that she was in the complainant’s house for two weeks around 27 February 1974 was given precisely: she admitted having once thought the year was 1973, but explained to the jury both how she came to date the year correctly and how, by reference to her birthday and her injury, she fixed on the day correctly. The evidence before the jury was capable of being accepted by them, and must have been accepted by them. The jury’s acceptance of her evidence is rendered the safer because of what the jury did not know – her hostility to the complainant. In short, the point of distinction between counts 1-3 and count 4 is that in relation to timing there was a lack of evidence confirming the complainant’s evidence on counts 1-3, but there was confirmatory evidence on count 4.

51 Fourthly, the complainant fixed the time frame for count 5 by reference to the fact that her mother was in hospital giving birth to the complainant’s half sister. The appellant’s written submissions said that that fact was not disputed by the appellant at the trial; nor is it disputed now. That makes it more probable that the complainant’s evidence that her grandmother’s de facto spouse was staying with her was correct. That in turn gives credibility to the complainant’s contention that when she needed a permission note to be signed and her grandmother would not do it, she went into her stepfather’s bedroom for him to sign it. Again, like count 4, count 5 is distinguishable from counts 1-3 by reason of the fact that the complainant’s evidence about the timing of it, unlike her evidence in relation to counts 1-3, is confirmed by independent evidence.

52 Hence, contrary to the appellant’s submissions, it can be concluded that the surrounding circumstances relating to counts 4 and 5, which were absent in relation to counts 1-3, offered a reasonable basis for comfort in their soundness. The fact that the jury acted as it did on counts 1-3 does not suggest that it should have experienced reasonable doubt on counts 4 and 5.

53 Ground 5 is rejected.

Ground 6: reasonable doubt on complainant’s evidence on one count to be considered in assessing her general credibility

54 In R v Markuleski [2001] NSWCCA 290 at [185]-[191] Spigelman CJ said:

“Nevertheless, the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect. It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.
In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.
Some form of direction assisting the jury in this respect should be given … ‘as a general rule’. Its absence is not necessarily fatal … . Furthermore, as the joint judgment in Crofts [v R (1996) 186 CLR 427] affirmed, the ‘general rule’ does not apply ‘where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness’ (at 451).
It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case. It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally

On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count.
Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.
The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.”

55 The appellant submitted that the trial judge did not give any relevant direction and that there was nothing to suggest that the jury followed that course of its own volition. He submitted that the direction was imperative because of the extent to which the complainant’s evidence was contradicted.

56 The contradictions contended for were as follows.

57 First, in her evidence in chief about the first of the uncharged acts, the complainant said that the incident took place after the elastic failed in her underwear and she asked the appellant for a safety pin. In cross-examination she conceded that this detail had not been mentioned in her statements to the police dated 11 January 1999 and 21 October 1999.

58 Secondly, in her evidence in chief about the second of the uncharged acts, the complainant said that the appellant used paraffin oil to assist penetration. The complainant’s mother denied that paraffin oil was ever used in the house or around the farm, and denied that there were oils of any kind in the kitchen area.

59 Thirdly, in her evidence in chief about the second of the uncharged acts, the complainant said that the appellant was wearing pyjamas and a winter dressing gown with a tartan pattern. The complainant’s mother said it was not the appellant’s practice to wear pyjamas and a dressing gown around the house, and that he did not own a dressing gown at the relevant time.

60 Fourthly, the complainant said that the events charged in relation to the first count took place in a room opposite the bathroom in which there was a small portable television set. The complainant’s mother said that at that time the family had only one television set, that it was kept in the corner of the lounge room, and that there was no television in the nursery.

61 Fifthly, in relation to the third count, the complainant said that she had been given a matching nightie and brunch coat by her mother, who was away at the time, for her birthday, and the incident happened after the appellant asked her to try it on. The complainant’s mother denied the proposition that the complainant was ever given “a nightie and dressing gown as a birthday present”, said she could not afford such a present, and said she was not away for the relevant birthday.

62 Sixthly, the complainant said that the incident relating to the third count took place on a fold down lounge in the lounge room. The complainant’s mother denied that the lounge folded down.

63 These contradictions were said to have made the direction in question “imperative”. However, the mere fact that there were conflicts between the complainant and her mother does not establish that the complainant’s evidence was wrong or that it made the direction imperative. The complainant’s mother had a strong material interest in supporting the appellant, and probably a strong emotional interest as well. The jury might well have formed the view that it was easy for the mother to advance a series of denials, most of which were bare in their nature.

64 The warning suggested by the Chief Justice in R v Markuleski was not said by him to be mandatory. In particular he said that it need not be given where the particular facts of the case and the conduct of the trial do not suggest that it is needed to restore a balance of fairness.

65 It would have been obvious to the jury that at all material points the appellant contradicted the complainant, and that on several points of detail the complainant’s mother contradicted the complainant.

66 The trial judge said that she did not propose to refer to all the evidence, and that the mere fact that she referred to some parts and not others did not mean that the jury were not entitled to give weight to any evidence not referred to which they thought significant.

67 The trial judge told the jury that they did not have to accept the whole of a particular witness’s evidence or reject the whole of it. (It followed that she was telling them that they could accept the complainant’s evidence on counts 4 and 5 but not the others.) She gave directions about factors bearing on the honesty and accuracy of witnesses, one of which was “whether or not a witness has some axe to grind, or someone to protect”. (Thus she was telling them they might give no weight to the evidence of the complainant’s mother, which, in the respects now relied on by the appellant, went either to uncharged incidents or counts 1-3.)

68 The trial judge reminded the jury of the burden and standard of proof.

69 The trial judge said that it was open to the jury to convict on some counts but not others, if, in relation to the latter, they had a reasonable doubt about the timing.

70 The conflict in the evidence about where the complainant’s mother was at the time of her twelfth birthday was specifically put to the jury.

71 The trial judge said:

“There is also one other very important direction that I want to give you now. To prove this case the Crown relies entirely on the evidence of [the complainant]. Without her there is no Crown case against the accused. There is no independent evidence capable of supporting the evidence which has been given to you by [the complainant]. For example, there is no evidence of witnesses to the events – although that is not unusual in allegations of sexual assault. There is no medical evidence, for example, in relation to [the complainant], which might be capable of supporting her allegation that she had been penetrated by the accused. There is no evidence of her telling anybody about these events at the time they occurred. This sort of material was referred to by Mr Johnston as ‘corroborating evidence’, although I would rather use the term ‘supporting evidence’, and I must tell you that as a matter of law there is no requirement that the complainant’s evidence be corroborated by any other evidence.
However, I do give you this direction and warning, that where the whole of a Crown case depends on the evidence of one witness alone, you must scrutinise that witness’ evidence with great care and caution, for it may be dangerous to convict on the evidence of one witness alone. This is more so in this trial because of the length of time that has elapsed between the events complained of and the time [the complainant] made her statements to the police and gave her evidence to you, somewhere between twenty-five and twenty-eight years, depending on which charge you are looking at. The consequences of such a delay are, no doubt, obvious to you. But one of them is that it renders it very difficult for the accused to be able to defend such an allegation by putting evidence before you which might cause you to have a reasonable doubt about the truth of the allegations, or to have any specific memory of particular surrounding events at the time. For example, the length of time would have made it difficult, if not impossible, for the accused to call any evidence which might, for example, have suggested that he was elsewhere on a particular day, or during a particular period, and thus he either had an alibi or a reduced opportunity to commit the offences alleged.
Further, I warn you that because the evidence is being given by the complainant of events which occurred such a long time ago, on the basis of her memory of these events, and that she is giving evidence as an adult of events which she said happened to her as a child, that this may well make her evidence unreliable.
For these reasons you would need to scrutinise the evidence of [the complainant] with great caution before you would be prepared to convict, because, as a result of those matters which I have just raised, and for other more specific matters in relation to her evidence, which I will come to very briefly soon, it may be dangerous to convict on the basis of that evidence alone.
I am not saying, in giving you that warning, that you are not entitled to convict a person, or that a person is not entitled to be convicted on the basis of one witness’ evidence alone. That is not so. I am simply reminding you of the heavy onus which the Crown bears throughout the whole of the trial to prove the guilt of the accused beyond reasonable doubt, and where to do so it relies on the evidence of one witness alone, given in relation to events that occurred such a long time ago, that witness’ evidence must be scrutinised with great caution before you would be prepared to convict the accused.”

72 The trial judge then summarised various aspects of the complainant’s evidence on which the appellant relied, among them the failure to mention the elastic and the safety pin to the police, the controversy as to whether there was a second television set or a television room, and the controversy about whether the lounge could be folded out.

73 Throughout the trial judge made it plain that it was open to the jury to convict or acquit on all or any combination of the counts.

74 While the trial judge did not in terms tell the jury that if they experienced a reasonable doubt about one aspect of the complainant’s evidence that could be taken into account in assessing her evidence on other matters, the circumstances did not call for it. The directions were sufficient to make it plain that the complainant’s evidence could be accepted in part. They were also, and very strongly, warned of the need for all of it to be scrutinised with care. The difficulties arising from the lateness and incompleteness of complaint, the antiquity of the events in issue, and the conflicts with the complainant’s mother were all explored. These directions sufficiently averted any danger that the jury would approach their task by dividing the five counts and the other issues into watertight compartments. If the complainant’s evidence was, as the trial judge suggested, to be scrutinised with great care, it was inevitable that a failure to accept the complainant on some points would have to be considered in relation to others.

75 A reading of the summing up suggests that it approaches a model for this kind of case. On appeal no complaint was made about any particular part of it. Nor was any complaint about any particular part of it made at the trial. More specifically, at the trial counsel for the appellant did not ask for the direction now contended for before the summing up began; and he did not ask for it to be given either when it concluded on 14 November or before the jury began their deliberations at 9am on 15 November 2000. It may be inferred that the silence of counsel is to be attributed to a consciousness on his part that it was as fair a summing up as possible from the appellant’s point of view.

76 Wood CJ at CL’s observations about the suggested direction in R v Markuleski at [263] should be noted:

“In some cases, where it is obvious that the witness’s reliability or credibility has been seriously undermined, in relation to one count, a strong comment may be appropriate. In other cases, it may be appropriate to indicate to the jury that they may have a difficulty in accepting the witness’s evidence on some counts, or on particular counts, if they have a reasonable doubt about his or her reliability in relation to the other counts. In other cases a more neutral reminder of the entitlement of the jury to take such matter into account may suffice. In yet other cases, it may not be necessary to say anything.”

77 In this case it cannot be said that the complainant’s evidence was seriously undermined on one particular count. Her evidence on timing was more capable of rational acceptance on counts 4 and 5 than it was on counts 1, 2 or 3 because it was supported by other witnesses or circumstances, but it does not follow that her evidence on counts 1, 2 or 3 whether in relation to timing or otherwise was “seriously undermined” as distinct from being such as to create a reasonable doubt in the minds of some of the jury on count 1 and in the minds of all of them on counts 2 and 3. Nor was this a case where a difficulty in accepting the complainant on one matter might arise if a reasonable doubt was experienced about her reliability on another. This case falls into the last category identified by the Chief Judge – the category of cases where it was not necessary to say anything.

78 Ground 6 is rejected.

Orders

79 The following order is proposed: that the appeal against conviction be dismissed.

80 SIMPSON J: I agree with Heydon JA.

I agree with Heydon JA.

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