Reed v R - [2006] NSWCCA 314

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Peter John REED v Regina [2006] NSWCCA 314

FILE NUMBER(S):
2006/958

HEARING DATE(S): 1 September 2006

DECISION DATE: 10/10/2006

PARTIES:
Peter John Reed (Appellant)
Regina (Respondent)

JUDGMENT OF: Spigelman CJ McClellan CJ at CL Sully J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/61/0008

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
A. Francis (Appellant)
P.G. Ingram (Respondent)

SOLICITORS:
J. Pearson, Solicitor for the Legal Aid Commission
S. Kavanagh, Solicitor for the Director of Public Prosecutions

CATCHWORDS:
CRIMINAL LAW – Jurisdiction, practice and procedure – Powers and duties of prosecution – Delay in disclosure to defence of evidence in possession of Crown.
CRIMINAL LAW – Appeal – Whether a miscarriage of justice – Material withheld not of “sufficient relevance”.
EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused – Cross-examination of sexual assault complainants – Significance of surrounding detail to reliability of memory of assault.

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW), s6(1)
Criminal Procedure Act 1986 (NSW), s294(2)

DECISION:
Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2006/958
SPIGELMAN CJ
McCLELLAN CJ at CL
SULLY J
Tuesday 10 October 2006

Peter John REED v REGINA

Judgment

SPIGELMAN CJ: The Appellant was convicted following a jury trial before Shadbolt DCJ of one count of sexual intercourse with a person over the age of 10 years and under the age of 16 years, being a person under the authority of the Appellant. This is an offence under s66C(2) of the Crimes Act 1900, as it then was.
The complainant (LK), who was 10 at the time of the offence and 14 at the time of the trial, gave evidence, which was clearly accepted by the jury, that the Appellant had committed digital penetration upon her. The circumstances of the offence were that she was friendly with the Appellant’s daughter (SF) and was sleeping over at her house. At the time the Appellant was separated from her friend’s mother (TF), but was present on the particular evening looking after the two girls.
The Appellant was charged with other offences of this character. With respect to a complainant MH, the half sister of SF, there were four trials and he was ultimately acquitted. Other proceedings involving a number of complainants were eventually the subject of a no bill.
Ground 1 was not pressed. There are three remaining grounds of appeal as follows:
Ground 2 – The trial miscarried as a consequence of the trial judge’s directions concerning the use that could be made of witness statements.
Ground 3 – The trial miscarried on account of the failure of the prosecution to disclose relevant material.
Ground 4 – The trial miscarried as a result of the unbalanced directions of the trial judge concerning the delay in complaint.
Ground 2 is concerned with the directions his Honour gave with respect to two questions asked by the jury shortly after they retired. Those questions were:
“Do we have access to witness statements referred to in the trial?”
and
“Can we ask why [SF]’s mother was not called as a witness?”
In response to these questions the trial judge said:
“The answer to the first one, ‘Do we have access to witness statements referred to in evidence in the trial?’. The answer to that is no. They are not in evidence. They are only in evidence so far as they have been quoted to a witness and there has been some answer made to whatever the question was. Only in so far as that question is concerned are they before you in evidence.”
“The second, ‘Can we ask why [SF]’s mother was not called as a witness?’. And again, the answer to that one is, no you cannot. I ask you not to speculate or to concern yourselves with why certain people were or were not called. Your task is to look to the evidence that you have before you and decide the case on that. And I cannot underline that more definitely. You are to remove from your mind anybody else that you might think had some connection, however vague, with this case. So please do not concern yourself with that, just look to the evidence that you have got.”
The Appellant submitted that the directions in relation to the first of the questions conveyed to the jury that the questions were evidence, insofar as a statement may have been quoted to a witness and “there has been some answer made”. The Appellant submitted that this direction was wrong and tended to suggest that a question adverting to a previous representation was admissible as proof of the assertion.
During the course of the Appellant’s cross-examination, the Crown Prosecutor asked two questions.
The first such question was as follows:
“Q. Now TF during 2001 asked you to come down while she went at [sic] night didn’t she?
A. Never.” (T 46 lines 37-39)
The second question was as follows:
“Q You see I suggest to you that you were looking after SF and LK at 2001... Street, because TF had asked you to because she wanted to go out for that evening?
A. No.” (T 47 lines 45-49)
The Appellant submitted that the irresistible inference was that TF had made such a statement. I do not agree. When a mother goes out for the night leaving her daughter in the care of a third person, the most obvious inference is that that person is present at the mother’s request. That inference is so clear that no statement from the mother would be required.
There is no reason to believe that the jury inferred that there was any “witness statement” from TF. There was no reference during the course of the trial to any statement by TF. There were, however, references to such statements by the complainant and by other persons. (See T 17/3/05 pp26-27.)
The complainant was cross-examined about an alleged inconsistency between her statement to the police and her evidence. The statements of the other witness was put in her hands and she was asked whether it contained a particular reference.
This evidence fully explained the questions asked. There is no basis, in my opinion, for inferring that the jury was acting on the basis of a belief that TF had made the statement.
There was no relevant misdirection by his Honour.
With respect to the second question, as I have indicated above, the complainant gave evidence that TF was present when she arrived on the night in question. The Crown submitted to this Court that it was reasonable for the jury to infer that the mother may be able to give some relevant evidence about the complainant, particularly on the issues raised as to whether the complainant had ever come to the house and stayed over and whether or not the Appellant had ever looked after her. The complainant was cross-examined with the suggestion that she had never stayed over. The jury’s curiosity as to the absence of any evidence from the mother was quite natural in these circumstances and was properly dealt with by his Honour.
The third ground of appeal was originally directed to the circumstances in which the Crown did not disclose a statement of 18 March 2005, being the last day of the trial, by TF. The statement was only supplied after the defence case had been closed and the evidence in the trial had concluded. At the hearing of the appeal this ground was extended to encompass a statement by TF dated 13 November 2002, which was produced for the case involving the group of other complainants against the Appellant. Thirdly, reliance was placed on non-disclosure of an interview between MH and the Crown, which interview was not reduced to writing.
The first alleged non-disclosure upon which the Appellant relied was pars [7] and [8] of TF’s statement of 18 March 2005:
“7 I was aware that Peter REED only continued to work in Sydney for a short time and then he moved back to Cowra on a full-time basis. Peter REED moved into a two bedroom unit in Coolabah Crescent, Cowra. He would have access with the girls and their friends at this address almost every weekend. I recall in 2001 asking Peter REED to come to my house and look after the children for one night so I could go out with some friends for the night. Peter REED came to the house on this night and looked after my children. I also recall that [LK] was at the house and that she was going to stay the night. I asked Peter REED to come to the house as the unit that he was living in was too small to have the children and LK stay the night.
8 I did not return to the house on that night, I stayed at a friend’s house. I stayed at a friend’s house so that the children could have access with their father. I returned to the house the next day. On returning to the house I saw that [LK] was still at the house. She remained at the house for a short time until [TK] (LK’s mother) came to the house and picked her.”
It is possible, indeed probable, that this is the same occasion as that on which the assault of LK is said to have occurred. The possible presence of MH on the occasion was of significance to the case, not least to the credit of LK, who had said in her evidence:
“Q.         Who else was in the house when you arrived there?
A.           TF, SF’s mum, SF, Peter and myself.
Q.           Did SF’s mum, TF, did she go somewhere?
A.           Yeah, she went out for the night.
Q.           Who was in the home for the night.
Q.           Who was in the home for the rest of the night?
A.           Peter Reed, SF and myself.
Q.           What did you do during the evening?
A.           We went for the, to the park and for a walk and then we went back to SF’s house.”
The instructing solicitor for the Appellant at the trial said in an affidavit in this Court:
“I was supplied with a copy of TF’s statement after I had closed the defence case. I felt appalled. If it had been supplied before I had closed my case, I would have attempted to conference her, and her daughter MH. As it was I just thought it was too late. In retrospect I think I should have asked for the jury to be discharged, but at the time it did not even cross my mind. I considered it was too late to make any further enquiries of any prospective witnesses.”
The second alleged non-disclosure arose from evidence filed in this Court by the solicitor at trial from the ODPP. He annexed a statement of TF dated 13 November 2002, made in relation to proceedings against the Appellant for sexual offences against other complainants. In that statement TF said:
“8. When we were living together as a family in … Street MH and SF used to have a lot of friends who would come to our house and often stay the night. The ones I remember being there for ‘sleepovers’ were … may have stayed once or twice.
…
11. MH was always close to Peter and although she didn’t call him Dad their relationship was like father/daughter. After Peter left home in … Street both girls kept in close contact with him and used to stay with him most Friday nights in whichever place he was living. Sometimes they would also stay the Saturday night. I knew they would often take their friends with them to sleep over at Peter’s. I recall one occasion after Peter left, I had to go away for a couple of days and Peter came back to … Street to look after the girls while I was away.”
It is pertinent to note that the complainant LK is not included in the list of names in par [8] of this statement.
The third alleged non-disclosure arose from another paragraph by the instructing solicitor from the ODPP in his affidavit in this Court:
“8. I also attended a conference with MH, who had been a complainant in a previous matter against REED which ultimately resulted in an acquittal. (MH is the half-sister … SF, as both MH and SF share the same mother TF. SF was present in the room when the LK assault occurred, and gave evidence for the defence in the LK proceedings.) Although I did not make a note of it at the time I recall MH being asked if she remembered LK staying over at the ... Street address. I believe her response was that LK was SF’s friend, and she stayed over but MH was unable to specifically recall in detail the occasions when this occurred. No statement was sought from MH, and no disclosure of this response was made to the defence as it did not appear that MH could assist either the Crown or the defence case.”
Both the Crown Prosecutor and his instructing solicitor have given evidence as to the circumstances in which the 18 March 2005 statement of TF was obtained.
The complainant’s evidence, supported by the evidence of her mother, was that she stayed at TF’s home overnight at some stage in 2001. On this evidence, the Appellant looked after SF and LK that night because TF wished to go out, and committed the offence on that occasion. No statement was originally taken from TF with regard to this aspect of the Crown case.
The statement in issue was only produced on 18 March 2005, the day the two-day trial ended. It appears that the ODPP originally requested a statement at the committal stage but, for undisclosed reasons, it was not obtained and the matter was not followed up until the trial had commenced.
On the evidence before this Court, the ODPP did not believe that the accused’s presence at TF’s residence on the night in question would be contested and so believed that any evidence TF could offer would have been of peripheral relevance. For the same reason, no statement was sought from MH, who also stated, as noted above, that she remembered the complainant staying at the residence on occasions, although she could not confirm the timing of those stays.
The ODPP acted on the basis that the accused had not sought to deny being left alone with SF, MH and SF’s friends at previous trials for indecent and sexual assaults on minors. Indeed, in the context of records of interview conducted with respect to these other proceedings, the accused had acknowledged that he had “maintained contact with the girls”, although he did not acknowledge doing so at TF’s residence.
For these reasons, the evidence states, the Crown did not anticipate that the Appellant’s presence at TF’s residence would become an issue in the trial until the cross examination of the complainant. (See affidavit of Brian Costello at [15], [19] and [20]-[21].) It was only after this issue arose in cross-examination of LK, on 17 March 2005, that a statement was requested by the Crown.
A second matter influencing the decision not to seek a statement from TF, and then not to tender the statement obtained as evidence or to call her, was that it was the Crown’s belief that TF was prejudiced against the accused and was consequently not a truthful witness. Indeed, the Crown witnesses said they were concerned that TF would jeopardise the trial by revealing to the jury the other proceedings in which the accused had been involved. This assessment was formed on the basis of TF’s involvement in previous proceedings and a conference that was held with her on 18 March 2005. The evidence indicated strongly that TF had developed such a strong hostility to the Appellant that she had changed her version of events in such a way as to increase the prospects of a guilty verdict. (See affidavit of Brian Costello at [9(f)], [10]-[14] and [22] and affidavit of Norman Wilson at [13] and [16]-[17].)
A third matter advanced to explain the failure to obtain a statement, following the original request by the ODPP at the committal stage, and then the delay in obtaining the statement at trial stage, was that TF had previously made it clear that she did not wish to assist authorities in further matters involving the accused. Moreover, during March 2005 TF was unavailable due to medical problems relating to a pregnancy which saw her hospitalised. (See affidavit of Brian Costello at [9(c), (d)] and affidavit of Norman Wilson at [12].)
The Crown decided not to call TF to give the evidence in her statement of 18 March 2005. The affidavits from the Crown Prosecutor and instructing solicitor explain this decision in terms of their assessment of the witness as untruthful and as likely to jeopardise the trial then underway.
The Crown’s witnesses, being the Crown Prosecutor and his instructing solicitor, were not cross-examined in this Court.
The reasons proffered by the Crown for not obtaining a statement by TF until after the suggestion was made in cross-examination of the complainant that she had never been present at the house are, in my opinion, convincing and should be accepted. The issue is whether the Crown breached its duty of disclosure. On any view the time within which the alleged failure occurred was short.
The Crown Prosecutor said that he was handed the statement “shortly before 10.30am” (Wilson affidavit par [15]). At that time the Crown case had not closed. The Appellant commenced to give his evidence at 10.36am (T 128/3/05 p39). I do not see that in so short a time there was any breach of the Crown’s duty of disclosure.
The Appellant’s solicitor and counsel at trial have given evidence about the failure thereafter of the Crown to supply a copy. The request was made more than once during the course of the Appellant’s evidence. This refusal was maintained while SF, the other defence witness, gave her evidence. The statement was not made available until after the short adjournment, that morning, being after all the evidence had been given.
I can see no good reason for the Crown to have withheld the statement during this period. However, this omission does not appear to have been of any materiality for the course of the trial as it then stood. It was not suggested in the evidence or in the submissions that this unexplained and, so far as I can see, unjustified delay – short as it was – had any relevance for the decision to call any defence witness or any evidence that could have been given. Notably, in the cross-examination of LK, the essence of the defence case that LK had never slept over had been put to her the day before.
In his evidence in this Court, the Appellant’s solicitor at trial, said of TF’s statement:
“The effect of that evidence placed a third person in the house where the alleged offence occurred. It was likely that this witness was not a witness of truth given the history between her and Reed. However, with the third person placed at the scene it was prima facie evidence adverse to the prosecution case. If she were not believed by the jury it may well have served as evidence corroborative of the accused’s account.”
Trial counsel for the Appellant said that he did not consider at the trial what he now regards to have been the proper application, namely to seek to have the jury discharged. I agree that this was the only practical course.
The issue before this Court is whether, in the circumstances, there has been a “miscarriage of justice” within s6(1) of the Criminal Appeal Act 1912 (NSW) and, even if so, the issue may arise whether any such miscarriage was “substantial”, for purposes of the proviso to that subsection.
It appears from the evidence before this Court that the legal representatives of the Appellant were aware as the trial proceeded that efforts were being made to obtain a statement from TF. Although the statement was supplied after the defence case had closed, the Crown Prosecutor then invited defence counsel to indicate whether he wanted TF called, but that invitation was not taken up. Trial counsel for the accused does not recall, but does not deny, this conversation. No doubt, if requested, the Crown would have called TF for purposes of cross-examination by the defence.
Both trial counsel and his solicitor were cross-examined in this Court. I am satisfied that there was no tactical decision not to have TF called. They were both surprised by a new line of inquiry arising at a very late stage. The failure to make an application for the only practical course – the discharge of the jury – is also entirely understandable in the circumstances.

I should note that the Appellant’s solicitor at trial had also represented him in the earlier proceedings, involving MH as complainant. Accordingly, he had received a copy of the statement of 13 November 2002 in that context. It had not, however, been served as part of the Crown brief in the case concerning LK as complainant. He cannot be said to have relevantly been on notice of its contents.
I refer first to the conversation between the Crown and MH in which she said that LK had stayed over but she could not recall any detail of such an occasion. In my opinion, this evidence would not have assisted the defence case. The Crown’s evidence in this Court, not subject to cross-examination, indicated that, for good reason, the possibility that the Appellant would contend that LK had never slept over, was not realised by the Crown until LK’s cross-examination.
It was suggested that this unrecorded statement could be characterised as MH saying that she could not recall an occasion when the Appellant had stayed at the premises with LK. There is no reference to the Appellant in this paragraph. Nor can any such inference arise by implication.
There was no breach of the Crown’s duty of disclosure or any other miscarriage of justice arising from either the failure to reduce the interview with MH to writing or otherwise to make its content known to the defence.
The statement by TF of 13 November 2002 was relied upon as containing an early indication that TF’s recollection was that MH was present when TF left SF and LK in the care of the Appellant. I do not believe that the statement could have put anyone on notice of this possibility.
The last sentence of par [11] of the statement goes no further than saying that there was “one occasion” when TF left “for a couple of days” when the Appellant looked after “the girls”. In its context the reference to “the girls” was a reference to SF and MH. However, there was no reason to infer that the deponent was saying that this was the only occasion on which the Appellant was present overnight.
Of some but, in my opinion, low significance, is the failure to list LK in par [8] of the statement as one of the girls who had stayed for a “sleepover”. It would have been preferable for the Crown to serve all of the statements in the other proceedings in the Crown brief. However, the Crown had good reason, as noted above, not to call TF in the trial. I do not believe it was under an obligation to check all other previous statements particularly not statements available to the Appellant’s lawyers in any event.
I do not regard the failure to serve the 13 November 2002 statement to constitute a contravention of the Crown’s duty of disclosure or as otherwise giving rise to a miscarriage of justice.
The third matter relied upon has given me more cause for concern. Notwithstanding the understandable, indeed very well based, doubts expressed by the prosecutor and solicitor about the credit of TF, clearly shared by the Appellant’s counsel and solicitor, the statement did suggest a line of inquiry about the presence of MH on the night. As noted above, LK had not identified MH as present in her evidence.
The principal case advanced by the Appellant was that he had never stayed at the premises with LK. He gave evidence to that effect (T 18/3/05 line 55). SF gave evidence for the defence that LK had never slept over at all. No doubt on this basis, it had already been put to LK in cross-examination that she had never stayed at the residence overnight (T 17/3/05 p18 line 25). It was also put to her that she may have mixed up the Appellant with TF’s new boyfriend.
It was not suggested that anything in TF’s statement would assist this central aspect of the defence case. Indeed, the statement affirmed that LK had slept over. Other than to raise a possible line of inquiry, which may or may not have led somewhere, the submissions in this Court did not suggest that any defence decision to call evidence or to cross-examine or to make submissions, was affected.
The issue is whether the Appellant lost an opportunity to have the jury discharged and, whether this constituted a miscarriage of justice.
Although Ground 3 is expressed in terms of a failure of the Crown to disclose material, as the submissions developed it should be understood as encompassing a proposition that a miscarriage of justice occurred by reason of the fact that certain information had not been made available to the defence.
In her judgment in R v Grey [2000] 111 A Crim R 314, in a passage quoted in the High Court (Grey v The Queen [2001] 75 ALJR 1078 at [6]), Simpson J said with respect to the Crown duty of disclosure at [35]:
“The fundamental question which emerges from all the guidelines and rules, and, independently, from ordinary notions of fairness, is whether the undisclosed document could be said to have had sufficient relevance to a material issue in the proceedings. The material issue was Reynolds’ credibility. As I have said his evidence was important, if not critical, to the prosecution case, given the issues as they emerged. The fact that he gave to the police information about the very matters with which the appellant was charged, resulting in a reduction in his own sentence, was highly relevant to his credibility. Having given the information in 1993, he was obliged at the risk of himself being resentenced, to maintain his position when the appellant was tried: Criminal Appeal Act 1912 (NSW), s 5DA. I am of the view that the unavailability to the defence of the evidence might have caused the appellant to lose a fair chance of acquittal.”
The joint judgment in the High Court similarly concluded:
“[27] Because of the over-arching importance of Mr Reynolds’ evidence at the trial and the weight that the prosecution placed upon his reliability, we are unable to say that, had the letter been made available to the appellant so that he could cross-examine on it and introduce it into evidence, he would inevitably have been convicted. He has lost thereby a fair chance of acquittal.”
I apply the same test in the present case. I adopt Simpson J’s characterisation that the undisclosed material has to have “sufficient relevance to a material issue”. I do not find, unlike Grey, that there was an actual failure of the Crown to discharge its duty of disclosure. Nevertheless, the new material that came to light, very nearly at the last minute, was at least theoretically capable of being deployed to cause inquiries to be made and for purposes of cross-examination.
However, the new material was nothing like that which had been withheld in Grey. Any impact it may have had on the credit of LK was at best tangential. Any suggestion that TF or MH could have given relevant information or evidence was entirely speculative.
The critical issue in the trial was whether a sexual assault had occurred in SF’s bedroom. SF had a separate bedroom in which there was a single bed. Both LK and SF gave evidence to that effect (T 17/3/05 pp13-14 and see T 18/3/05 p51). According to LK on the night of the assault, the bed was occupied by SF and LK. LK testified that the Appellant asked SF whether she was asleep and received no answer. It was after that that the assault was said to have taken place.
In these circumstances, even if MH was present on the night, she could not have given any evidence about the assault itself. MH who, contrary to SF, said LK had slept over, had also said that she could give no detail of any such occasion. It was entirely speculative to suggest that an adjournment to make inquiries of MH could have assisted the defence.
The only significance that I can see of the new information, is for the purpose of cross-examination of LK on credit because she had suggested that MH was not present on the occasion. In a word against word case, such as this, any information capable of being deployed in cross-examination on credit is potentially of significance. Nevertheless, questions of fact and degree are involved in order to determine the statutory question: Has there been a miscarriage of justice? That question must be understood in the sense suggested by Simpson J In Grey: Was the material of “sufficient relevance”?
In my opinion, in the circumstances the new material was not of sufficient relevance. Even in a word against word case, it is not the case that anything capable of impinging upon the credibility of the sole Crown witness must be permitted to be investigated in full. Credibility issues involve questions of reliability and of veracity. It is sometimes important to distinguish between them.
Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See e.g. Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp. at pp48–62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness.

With regard to issues of veracity, surrounding detail can be of greater significance. In the present case, the credibility of TF, whose statement raised a possible inconsistency with LK’s version, was so low, and MH’s stated inability to recall detail was such, that the suggestion that further inquiry could lead anywhere was entirely speculative.
The requirements of a fair trial do not require perfection. If an application had been made to discharge the jury on the basis of the late service of TF's statement containing the new material, it should have been rejected. In my opinion, the Appellant has not lost a fair chance of acquittal. There was no miscarriage of justice and this ground of appeal should be rejected.
The fourth ground of appeal turns on an alleged lack of balance in his Honour’s directions with respect to delay in the complaint. The passage relied upon is as follows:
“It has always been thought that complaint evidence would be made promptly and as I have said to you the late complaint of a complainant can be regarded as something adverse to the complainant’s credit. It could cast a shadow over the credit of the person complaining. This complaint was made several years after the event. However, with young children you have to take this into consideration. Firstly, a young child may not know the true nature of what is being done to her nor that she ought to complain about it. She might not know that she does not have to suffer that kind of conduct. Even if she does know that what has happened to her was wrong and that she did not have to suffer it, she might not know to whom she should complain. But even if she knows what has happened to her and she knows it is wrong and she should complain to somebody and she has somebody to complain to, she might yet not know how to go about it, how to formulate complaint, what words to use. And she might well hesitate if the person who has committed these acts has been otherwise kind to her or is known to her or known to her parents. And of course, the longer she hesitates the more difficult it is to make the complaint.
You should bear these matters in mind when you come to consider whether or not it was reasonable and understandable that no complaint was made until much later. If you form a view that the complaint was indeed very late and there was no reasonable explanation for it being so late, then of course it would cast a shadow over the evidence of [the complainant]. On the other hand, if you come to a view that it is quite understandable in all of the circumstances then it would not cast any shadow across her credit.”
This passage of the summing-up, about which complaint is made, must be understood in the context of the summing-up as a whole and, specifically, in the context of the other directions as to complaint. Indeed, the opening sentence of the passage, of which complaint is made, itself refers back to the earlier directions in this respect.
The summing-up immediately before that set out above is as follows:
“There has been complaint evidence. That complaint evidence was made to the school counsellor and it was also made to Mrs Kennedy. That complaint evidence is brought for this reason. Historically, it is always been thought that if a person has been sexually assaulted in some way or another, that person would bring a prompt complaint. Absence of that complaint would reflect very badly on the evidence of the person who has been said to have been assaulted. That complaint evidence goes not only to the credit of the complainant but also can be treated by you as evidence of the truth of the matter.
However, it is hearsay evidence, that is that it is evidence made outside this Court at a time when the accused was not present and it has to be treated with great caution because the accused was not there to say, ‘Well wait a minute, hang on, that did not happen’. So when you come to the view the complaint evidence, you should remember that it is hearsay and should be treated with some caution.”
Furthermore, the submission about lack of balance requires the Court to also have regard to the passage immediately after that of which complaint was made, which was:
“But I now want to turn the coin the other way because there are, after all, always two sides to any argument and as there are two sides to any coin. Late complaint coming as it did in this case, some years after the event, disadvantages an accused person and places that person in a very difficult situation. For an accused to recall with precision, events which happened so long ago, may very well present a real problem. You will recall also that this event was said to have happened at any time within ten months of one year. That in itself is a great difficulty. Evidentiary material which might have assisted an accused in regard to alibi or the like, may now very well have been destroyed. Witnesses who may have been available to give evidence on his behalf, may now be scattered. And evidence which may have assisted the accused may not now, even by him, be recollected.
Complaints made by children years after the event often suffer from vagueness in regard to dates and times so that it becomes impossible to marshal any evidence to rebut such an allegation. You must take into consideration these matters when dealing with both the complainant’s account and the evidence of the accused to make a sensible and realistic allowance having regard to the difficulties in which the accused has been placed.
You are aware, of course, that in reality there is only one witness for the prosecution. There is no medical or scientific evidence to support that witness. That does not mean that the witness’ evidence cannot satisfy you to the requisite high standard but in order for it to do this, that evidence should be scrutinised with very great care and any evidence in the nature of corroboration must also be put into the balance. And the Crown here would point to the telling of ghost stories to support Lisa Kennedy’s contention that she was there at that house in the presence of the accused as he has confirmed he was in the habit of occasionally telling his daughter’s friends ghost stories.
But overall, you must have regard to the fact that it was a very late complaint and because of that delay it would be unsafe or dangerous to convict on that evidence alone unless you scrutinise the evidence with very great care considering the circumstances relevant to its evaluation and paying heed to these warnings that I have given you. Then of course, if you are satisfied as to its truth and accuracy, then if it satisfied you beyond reasonable doubt, you can convict.”
Furthermore, when summing-up the case of the Crown and the prosecution, his Honour said:
“The Crown says as far as the late complaint was concerned, considering her age at this time, it was not unreasonable and when some unfortunate circumstance happened when she was at school and she became upset, these memories came flooding back; she went to see the school counsellor in the full knowledge that formal complaint would have to be made if her complaint was of a sexual nature. Nonetheless she complained. She complained again to her mother and this, the Crown would say, was consistent behaviour for a child who had been assaulted when she was only 10 years old.”
In addition, his Honour said:
The defence case is that this is essentially a case of word against word and it is not reasonable that complaint should have been made as late as this. Lisa had a mother and father, both of whom she trusted, both with whom she was on presumably good and sensible terms, that there was no possible reason why she should not have told her mother or father of what had occurred and in consequence of that, her credit is badly injured and you should not believe her.”
The Appellant submits that in the passage complained of the examples given as to why a child may complain late were speculative and were not based on the particular evidence in this case. Reliance is placed on the fact that the complainant’s explanation for the delay was that she was scared to tell anyone and did not know who to trust and in particular could not bring herself, at the age of 10 years, to tell her mother.
It is frequently the case that a trial judge will give examples of particular matters to the jury, which examples are not based upon actual evidence in the case. I do not see any reason why a jury should not be trusted to distinguish between examples used for the purpose of illustration and references to the evidence in the case.
By force of s294(2) of the Criminal Procedure Act 1986 (NSW) a judge is obliged to warn the jury that delay in complaining does not necessarily indicate that the allegations are false and is also obliged to inform the jury that there may be good reasons why the victim may delay in making a complaint. I see nothing wrong with a trial judge giving examples of what those reasons may be, so long as there is no suggestion that those reasons were present in the actual case in the absence of any evidence to that effect.
The Applicant draws particular attention to the last paragraph of the passage complained of with its reference to “you should bear these matters in mind when you come to consider whether or not it was reasonable and understandable that no complaint was made until much later”. His Honour also indicated that, if they formed a view that “there was no reasonable explanation for delay”, then “it would cast a shadow over the evidence (of the complainant)”. The Appellant submitted that this warning, in its context, meant that the direction in accordance with Kilby v The Queen (1973) 129 CLR 46 was significantly attenuated. Furthermore, in reliance on the helpful summary by Wood CJ at CL in R v BWT (2002) 54 NSWLR 241 at [32] of the range of directions that must be contained in a summing-up in a sexual assault case, the Appellant submitted that the direction that delay may be taken into account when evaluating the evidence of the complainant was not given in a balanced manner.
As his Honour indicated elsewhere in his summing-up, this was a short trial and he did not summarise the evidence, which the jury had just heard. The complainant’s evidence was given the day before the summing-up. When his Honour said to the jury that if there was “no reasonable explanation” for the complaint being so late then “it would cast a shadow over the evidence” of the complainant, the jury can have been in no doubt as to the explanation the complainant had only just given.

It is also of significance that, shortly before the passage complained of, his Honour indicated that complaint evidence of this character had to be treated with “caution” and he said, on two occasions, that “it has always been thought” that a complaint would be made “promptly”. He had also said, in terms, that late complaint “could cast a shadow over the credit of the person complaining”. These matters were favourable to the Appellant and must be taken into account in determining whether the summing-up on delay was balanced.
Furthermore, his Honour does not appear to have given a direction in accordance with s294(2)(a) of the Criminal Procedure Act, being a warning that absence of delay does not necessarily indicate that the allegation is false. Again this indicates an aspect of the summing-up favourable to the Appellant and must be taken into account.
In my opinion, I can see no basis on which it can be concluded that his Honour’s directions in this respect lacked balance. This ground of appeal should be rejected.
The appeal should be dismissed.
McCLELLAN CJ at CL: I agree with the Chief Justice.
SULLY J: I agree with the Chief Justice. I should like, however, to append a brief note of my own.
I respectfully agree in general terms with what the Chief Justice says in para 64 of his Honour's reasons; and I certainly agree with his Honour that there was no miscarriage in the present particular case.
It seems to me, however, that it would be appropriate to allow for the undoubted fact that every criminal trial is individual, with facts and circumstances and with forensic exigencies particular to it. This is, I apprehend, what Mahoney ACJ had in mind when his Honour observed in Lattouf (unreported, NSWCCA 12 December 1996), that if justice is not individual then it is nothing. There is, I believe, nothing novel about the proposition that there are, in the very nature of things, some sexual assault trials in which the only practical means by which the accused person can exercise his right to test the evidence of his accuser is, precisely, by testing in some proper fashion matters of detail that could be fitted easily enough within the description: "surrounding tangential detail". The landmark decision of the High Court of Australia in M v the Queen (1994) 181 CLR 487, indeed, seems to me to recognise that matters of detail, when properly and adequately tested, might establish that the evidence in the particular Crown case "... ... contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force ... ... ".

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LAST UPDATED: 11/10/2006