Regina v Mills

[2003] NSWCCA 145

CITATION:	Regina v Mills [2003] NSWCCA 145
HEARING DATE(S):	2 May 2003
JUDGMENT DATE:	28 May 2003
JUDGMENT OF:	Ipp JA at 1; Buddin J at 2; Smart AJ at 3
DECISION:	(a) Appeal against conviction dismissed (b) Leave to appeal against sentence refused
CATCHWORDS:	Sexual intercourse and indecent assault on child under 10 - aged 9 at hearing - unable to give sworn evidence - delay in complaint - not contemporaneous but measured in terms of months and 2 years - identifiable incidents - whether warning as to delay required - warnings needed as to age of child and frailty of childhood memories - Crown case depends on child's unsworn evidence - limited supporting evidence - summing-up adequate in circumstances
LEGISLATION CITED:	Nil
CASES CITED:	Crampton v The Queen (2000) 206 CLR Doggett v The Queen (2001) 208 CLR Longman v The Queen (1989) 168 CLR
PARTIES :	Regina v Lester Burnard Mills
FILE NUMBER(S):	CCA 60002/02
COUNSEL:	(A) D J Brezniak (C) R A Hulme SC
SOLICITORS:	(A) Andrews, Solicitors (C) S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/41/0089
LOWER COURT JUDICIAL OFFICER :	Phelan DCJ

IN THE COURT OF
CRIMINAL APPEAL

IPP JA

BUDDIN J

SMART AJ

Wednesday, 28 May 2003

Regina v LESTER BURNARD MILLS

JUDGMENT

1 IPP JA: I agree with Smart AJ

2 BUDDIN J: I agree with Smart AJ.

3 SMART AJ: Lester Burnard Mills was indicted on five counts of indecent assault upon a person under the age of 10 years and two counts of sexual intercourse (digital penetration of the vagina) with a person under the age of 10 years. He was acquitted of counts 1 and 3 (indecent assault) and count 2 (sexual intercourse), each offence alleged to have been committed between 21 January and 30 April 1998. He was convicted by the jury of counts 4, 5 6 and 7, being three counts of indecent assault and one count of sexual intercourse, all with a girl under 10 years of age. These offences were allegedly committed in December 1998, between 16 April 2000 and 1 May 2000, about 13 September 2000 and in early November 2000 respectively. He was sentenced to 5 years imprisonment on the charge of sexual intercourse with a person under the age of 10 years, with a non-parole period of 3 years (count 6). On the remaining charges he was sentenced to concurrent periods of imprisonment of fixed terms of 1 year (count 4) and 1½ years (on each of counts 5 and 7).

4 Initially he appealed against conviction and sought leave to appeal against sentence. The application for leave to appeal against sentence was not pressed and leave to appeal against sentence should therefore be refused. The appellant relied on one ground of appeal, namely, that the trial judge erred in his summing-up by giving an insufficient direction as to delay by the complainant in reporting her claims and allegations. The other grounds of appeal were abandoned.

5 The complainant was born on 21 January 1992. At the time of the trial in August 2001 she was aged nine years. She did not give sworn evidence. She was permitted to give unsworn evidence as a young person upon the judge being satisfied that she understood the difference between the truth and a lie. The judge was not satisfied that she fully understood the obligation to give truthful evidence. Her evidence was given via closed circuit television. This was explained to the jury (SU21-22). Her initial evidence consisted of the replay of an interview of her by a police officer.

6 The appellant moved into the home of the complainant's mother at Berkely in the Dapto area in December 1996. They became engaged in February 1997 and married on 28 November 1998. On 16 April 2000 the mother told the appellant to leave and he moved to a unit in Brownsville in the Dapto area.

7 The offences alleged in counts 1 to 3 were said to have been committed on the same day at the home of the complainant's mother between 21 January 1998 and 30 April 1998 when she was aged six. The complainant told the police officer that she was asleep in her room and that when she awoke she saw the appellant in her room. It was about 7 am. She told him to get out but he refused. He pulled the blankets off and touched her on her undies over her "rude part" or "fanny". She also gave unsworn evidence to this effect. This was count 1 – indecent assault.

8 The complainant told the police officer that later that morning the appellant came into the dining room while she was eating and reading a book. She told him to go away and leave her alone. He replied, "Are you going to make me?" She said, "Yep, I'll tell Mum." As she was about to do so he grabbed the top of her arm, pulled her really hard and said, "If you ever tell your Mum you'll want to watch out for me." She tried to scream but could not do so. He grabbed her as she was about to run, touched her inside her undies and pushed his fingers inside her "rude part". He pushed hard and she felt scared. When he ceased, her vagina felt sore. She locked herself in the bathroom and saw that her vagina was bleeding. She wiped it and it stopped bleeding. This was the subject of count 2.

9 Later the same day while she was sitting in her room the appellant came in and dragged her out of the room. He said, "Come with me" and dragged her into the shed in the back yard. He put his hand inside her undies and touched her on her "rude part". This was the subject of count 3.

10 The complainant said that two weeks after her mother married (28 November 1998) while she (the complainant) was in the bathroom having a bath the appellant came in. She said, "Get out" but he wouldn't leave. She said, "Get out or I'll tell Mum", but he still would not leave. He touched her on her "fanny" with his hand for a long time (30 seconds) "in a hard way". He said, "Don't tell Mum or else." She felt scared. This was the subject of count 4.

11 After the appellant moved out to his own unit (and thus after 16 April 2000) the complainant slept at his unit. She said that she was asleep on the lounge, that she woke up and then saw that he was touching her on her "fanny" on the skin, underneath her nightie. He had pulled her pants down. He then went back into his bed. In the morning she telephoned her mother straightaway and she came and picked her up.

12 The complainant said that her feelings were hurt and that he knew that "I did not like the stuff like (sexual misconduct), that he knew perfectly well that we were just doing Child Protection (at school)." He had told her, "Don't let anybody do that to you." Nevertheless he went ahead and did that (See Q and A 332 et seq). This was the subject of count 5.

13 About 13 September 2000 when the complainant was aged eight years, she slept over at the appellant's unit. She ate a peanut butter sandwich for dinner and then got into her pyjamas. She had a nap on the lounge and when she woke up she was bleeding and saw three of the appellant's fingers with blood on them. The appellant had put his three fingers in her vagina in a very hard way. She yelled because it hurt. The appellant told her to "Hush" in a grumpy voice. She saw blood on her undies. She said "Why did you do that for, that's not very nice." He said, "If you ever tell anyone, somebody's going to get really badly hurt." She said that she sat there for a time, shaking. She was scared. She changed her undies and threw away the undies on which she observed blood because she was scared and because of his threat. She telephoned her mother who asked why her voice was shaking. The complainant replied, "Because I fell over." Her mother came and picked her up. This was the subject of count 6.

14 The complainant said that when she arrived home she rushed into the bathroom because blood was starting to come out again and she did not want her Mum to see. She washed her legs with a face washer and threw her undies and the face washer away. She went to play at the home of a friend.

15 About November 2000 the complainant was reading a book at home in Berkeley. She was wearing a black dress. She was feeling sick. The appellant entered her room and touched her over the top of her pants but under her dress in the area of the vagina for about five seconds, in a hard way. He then just walked out. This was the subject of count 7.

16 The complainant described the appellant's hands and fingers as large. Her mother described his hands as very large and his fingers as fairly big and quite long.

17 The complainant and her mother both testified that the complainant had first told her mother on 16 January 2001 during a holiday in New Zealand of being touched by the appellant in the vaginal area. The complainant said that she had been touched "lots of times" and she confirmed that the appellant put his fingers inside her when her mother asked if that had happened as well. The complainant said to her mother that she felt better now that she had told her, but now she was really scared. The complainant asked her mother not to tell the appellant she (the complainant) had told her.

18 The complainant's mother explained that the complainant visited the appellant at his unit on occasions after the break up, which was not bitter. The mother was studying and the complainant liked to see the appellant's grandchildren.

19 The complainant's mother finally split with the appellant while she was in New Zealand. She learnt that he was seeing another lady. Both the mother and the appellant were supposed to be considering a reconciliation. She asked him to leave her house which he was minding for her while she was away. She agreed that she was angry and hurt, but insisted that she was not vindictive.

20 On their return to Australia the mother took her daughter to a local doctor and made enquiries as to what authorities she should contact. On 7 February 2001 the mother took the complainant to the Joint Investigation Team's Wollongong office, where she was interviewed by Det Warren. After this interview arrangements were made for a medical examination at Urunga House about a week later. About that time the complainant approached her mother at home and told her that she (the complainant) needed to tell her some more things about what happened; it was horrible. The mother told the complainant that if it was easier for her she could write it down. They sat down at the dining room table and the mother gave the complainant pen and paper. The complainant said that she did not want to tell Det Warren what she wanted to tell her mother; it was too embarrassing and uncomfortable. The complainant started to write down what she was saying but she was crying and upset and found it hard to talk about the subject matter. Eventually she started to relate the details of what had happened. The complainant could not write anything further down, so the mother wrote down what the complainant was saying and placed it in an envelope which was sealed.

21 The complainant had a second interview with Det Warren about 16 February 2001.

22 The complainant agreed that her mother “hated” the appellant and “wanted to hurt him”. The complainant admitted that she too hated the appellant because he was unfaithful to her mother during their marriage.

23 Dr J. Timbs from Urunga House Sexual Assault Centre at Wollongong examined the complainant on 16 February and gave this evidence.

"[the complainant] stated that her step father put his finger in her 'rude bits' which hurt and on at least two occasions caused her to bleed. She alleged this happened many times over a period of four years, December 1996 to December 2000.

She stated she could not tell anyone because her stepfather threatened to kill the family and push a spike through the back of her head and hang her up. [The complainant] believed he would do this if she told anyone. She told her mother when they were on holiday in New Zealand, away from her stepfather.
…
On examination she was a tall, slim girl, in good general health. She was very alert and talkative, related well and showed well developed verbal skills. She was tense during genital examination and unable to relax fully. Examination of the external genitals revealed remnants of a crescentic hymen. There were thin remnants between 2 and 4 o'clock and 7 and 10 o'clock. The area between 4 and 7 o'clock was eroded with no hymen in part and a thin rim in part. There was no uniformity of thickness of the hymen in total. The anal and peri-anal areas were normal.

The changes seen in the hymen represent damage from the hymenal tissue being rubbed or worn away by chronic abuse. The physical findings correlate with the history given by [the complainant]. On the basis of the history and physical findings chronic sexual assault had definitely occurred."

24 In cross-examination Dr Timbs agreed that what she had seen had to be caused by chronic rubbing and that touching could not achieve the wearing away of the complainant's hymen.

25 The appellant's case

He gave evidence that he had a very good relationship with the complainant from the time he met her up until the time he was charged. He stated that he had never touched her on the vagina or inserted his fingers into her vagina. He said, "… when the marriage broke up I think maybe [the complainant's] mother put her up to it to get some money out of me …". During cross-examination he said that the complainant's mother came to his house and "she wanted $10,000, the Porsche, the Harley or she'd have me charged." The appellant testified that he owned a 1980 model Porsche and an old Harley Davidson motor cycle, neither of which were now of great value but they would probably have been of some value to the complainant's mother.

26 The appellant relied on a series of other matters:

(a) The complainant had not told her mother in New Zealand or the police in the first recorded interview all the details or indeed of all the offences.
(b) The complainant conceded in cross-examination that it was her mother who "decided" what to put in the second police interview. While this shows the dominant role of the mother, the second interview was not admitted into evidence. With an 8 to 9 year old girl it would be expected that she would rely heavily on her mother.
(c) Despite being taught about child protection at school the complainant said that she disposed of the evidence of the bloodstained panties by throwing them away in a bin or burying them in a paddock near her cubby house..
(d) Dr Timbs agreed that it was not impossible for a girl of 6-8 years to masturbate and thereby affect the hymen. The condition of the hymen had been caused by chronic rubbing. Touching could not achieve the condition which existed.
(e) The complainant’s mother had made a previous claim for victim’s compensation. It was suggested that she wished to make another claim involving victim’s compensation and had had her daughter concoct false allegations.
(f) The mother had suggested to her daughter that the appellant had placed his fingers inside her vagina. It is a common experience that girls who have had sexual experiences of the type here in question are reluctant or are unable to talk about them or give details and need to be asked questions so it can be ascertained what happened.

27 It was for the jury to evaluate these factors, none of which could be described as decisive.

28 In his summing-up the judge reminded the jury that memory tends to become fragile after time, except possibly in cases of a particularly important event in a person’s life.

29 The judge gave the following directions as to complaint and delay: (SU22-25)

“I have to now talk to you briefly about the evidence that she gave whilst she was in New Zealand with her mother on holidays when she informed her mother, in general terms anyway, of what she said the accused had been doing to her. I think she said that he had been touching her, and so that amounts in law to what is called a complaint. Now, normally a complaint will only be received in evidence if it is comparatively fresh complaint.(sic) In other words, it is evidence if somebody is sexually attacked they may be expected to say to somebody close to them, their parent or friend or a neighbour or a person in authority like a school teacher or police officer that somebody has sexually attacked them, and that evidence is admissible as proof of the fact, even though it comes from the same person who is said to have been attacked.

But if it is not the subject of a fresh complaint then it may not be admissible. In this case no objection was taken to it and it could have been but was not, and it is important to remember that it may throw some doubt on whether the complaint was true or not because it was made belatedly. But I also have to stress to you what Parliament directs me to stress to you, that in a particular case there may be very good reason why a victim of a sexual attack does not make a complaint. In this particular case the age of the child may be a part of the explanation. Secondly, a child of that age may not have a particularly good understanding of what has occurred, may not immediately recognise, particularly a very young child, that anything necessarily untoward has happened. Furthermore, as is asserted in this case, there may be an explanation insofar as [the complainant] has said that on occasions she was threatened that she must not tell her mother or otherwise there would be consequences. So all of those matters may be material to you to understand why she did not complain in the first instance, and indeed she stressed in her evidence that she waited till she got to New Zealand because it was far away from where the accused was and she felt safer then in making the assertion.

On the other hand it can be an important consideration from the accused’s point of view, and I must say this, that in giving you this warning about delay in making a complaint it is not motivated by reason of her being an alleged victim of a sexual offence, but only by reason of the whole of the circumstances of the case, and it is a warning that I am required to give to you by the High Court in a number of decisions, at the same time stressing, as I already have, that Parliament requires me to say that there may be an explanation for the failure to complain.

Now, one of the matters that you should also take into account in a case of this nature is that at the time that these offences were committed on [the complainant] she was at a comparatively young age and she may not have had full understanding of all of what was happening to her. Also on two of the occasions she had awakened from being asleep, and in relation to one of them, I think it was the fifth charge. She said, ‘When I woke up he stopped’, so that her understanding of what was taking place might have been affected by her state of recent sleep.

So that I pass on now to put to you another side of it, that a delay in making a complaint in a case of this nature may cause grave disadvantage to the accused. In other words, the sooner complaints are made in cases of this nature, the sooner they are investigated and they give an opportunity to an accused to prepare his defence. For example, if they have occurred some time afterwards, the accused may be at a disadvantage because on the particular date or dates in question he might have an alibi, but such is the lapse of time he may not have the resources to establish what the alibi was. So that the High Court is keen to stress that juries should approach the task of the evidence in cases such as these with care, and I will enlarge upon that shortly, by reason of the fact that the accused might be at a disadvantage, and indeed Mr Spencer says to you that it is easy to make an allegation of this nature, it may be very hard to disprove. Now, when he said that he does not have to disprove anything as I have stressed to you. But you see the point, if he had witnesses who could say that he was in another place at the time but because of the effluxion of time he could not remember where he was specifically, it might ruin the opportunity for him of getting a fair trial and presenting his case properly.

Now, these thoughts are all the more reinforced where you have an allegation made by a child of tender years, not under oath but by way of unsworn evidence tending to confirm that the offences have taken place.”

30 The judge proceeded to deal with the medical evidence and referred to the Crown’s contention that such evidence was independent evidence supporting that of the complainant and the appellant’s riposte that while the medical evidence may be of assistance it did not establish that it was the appellant who was responsible for the condition observed by Dr Timbs.

31 Particular objection was taken to the use of the words “may” and “might” in the penultimate paragraph of the passage quoted.

32 The directions given missed the point to some extent and did not go far enough. Delay almost always produces disadvantage and, usually, the greater delay, the greater the disadvantage. One of the problems with delay is that it is often impossible to say what opportunities to obtain material for cross-examination and to collect evidence in rebuttal of the prosecution case have been missed. This is particularly so where the prosecution cannot pinpoint the date of the offence within a short period. On the other hand, there may be cases where no opportunity has been lost because of guilt. Another but different instance of no lost opportunity is where airline and passport records are available to establish that at the time of the alleged offence the accused was out of the country. The direction as to delay has to be fashioned in the light of the facts of the particular case but bearing in mind that delay almost always disadvantages an accused and that frequently he will not be able to specify that disadvantage or prejudice. In such a situation any comment that the accused has not been able to point to any disadvantage or prejudice must be balanced with a comment that, with delay, it is often unknown what disadvantage or prejudice has been suffered. There is also the problem of delay impairing the complainant’s memory and her not being able to supply sufficient detail of an incident to permit useful cross-examination.

33 At SU 27-28 the judge instructed the jury:

“…where there is no independent evidence, the High Court requires me to give you a warning that you must, if it is dependent upon the complainant’s evidence alone, … you must scrutinise her evidence with great care before arriving at a verdict of guilty. Now that means to say you are entitled to accept what she says. It is not part of my role to persuade you that you cannot. All I am obliged to say to you is that you may accept her evidence being her word against the denial of the accused, and the accused does not have to prove anything. But you have to be satisfied beyond a reasonable doubt that she is telling the truth, and if you have a doubt about that then you must give the benefit of it to the accused who has denied that he did anything to her. And put another way, the High Court has said there may be a danger in acting on the evidence of, in this case [the complainant] alone, and great caution should be exercised before you return a verdict of guilty.”

34 At SU 29-30 the judge continued:

“If the case turns on the evidence of the complainant you must be satisfied beyond reasonable doubt that she has told the truth, and it is your duty to decide whether you accept the evidence of the witness in whole or in part, and the evidence of [the complainant] is no exception to that. It would be wrong to conclude that she is telling the truth because there is no apparent reason in your view for her to lie. This is what I stress to you, people lie for all sorts of reasons, sometimes it is apparent, sometimes it is not, sometimes the reason is discovered and sometimes it is not. You cannot be satisfied that she is telling the truth merely because there is no apparent reason for her to have made up the allegations or has, as has been suggested here, had them planted in her mind by her mother. There might be a reason for her to be untruthful that nobody knows about, and so that is a matter again which I stress for you to consider in these circumstances.”

35 The judge next summarised in some detail the arguments of the Crown and the defence.

36 There were sound reasons why the jury acquitted on counts 1, 2 and 3 and convicted on the remaining counts. Correctly, it was not argued that the verdicts were inconsistent.

37 The allegations of the complainant first came to the notice of the appellant on 27 February 2001. Thus the period of delay between the earliest offence (count 4) of which the appellant was found guilty and the complaint coming to his notice was 2 years 2 months. For the offences the subject of counts 5, 6 and 7 the delay was in the order of 10 months, 5½ months and 3 months.

38 The delay in the present case was of a different order from that in the reported cases dealing with the directions which should be given when delay exists.

39 It would be unwise to endeavour to formulate in terms of time when a direction as to delay is required. One relevant factor is the precision in terms of the date and place and circumstances of the alleged offence supplied.

40 In the present case no direction as to delay was required in respect of the events the subject of counts 5, 6 and 7. The delay was not significant and the incidents were fairly readily pinpointed when her police interview and her evidence are taken together. The events the subject of count 4 were identified both as to the approximate date and place. As the incidents the subject of counts 5 and 6 allegedly took place in his unit Brownsville when she slept over he is likely to remember whether there was anyone else in his unit on either of those occasions and who it was, subject to any evidence from the appellant or other persons to the contrary. The incident the subject of count 7 was recent and allegedly occurred while he was visiting the home of the appellant’s mother, a relatively short period before the complainant and her mother went to New Zealand.

41 As to count 4, in the absence of evidence to the contrary it is hard to imagine, given the pinpointing of the incident and the detail supplied, that the appellant would be at a disadvantage in meeting the Crown case and cross-examining. While it is possible that the complainant may have forgotten some of the detail of the incident and this may have restricted the scope of cross-examination, it is not a disadvantage which in the present case is significant, given what she was able to recall.

42 The circumstances of the present case did not call for a direction in terms of those stipulated in Longman v The Queen (1989) 168 CLR 79, Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343,

43 Undoubtedly the jury needed to be given specific directions and comments needed to be made because of

(i) the complainant’s age when the events happened, and

(ii) her inability to give sworn evidence

(iii) her not telling her mother (or anyone else) of any of the events until January 2001, and
then only telling her part of what had happened and the appellant not being told of the complaints until 27 February 2001.

(iv) the Crown case depending upon the truth of her evidence.

44 Indeed, some of what the judge said amounted to a warning. When the summing-up is read as a whole the jury was adequately instructed, having regard to the circumstances of the case. While not decisive it is worth noting -

(a) there was no suggestion of the appellant having suffered any specific disadvantage from the delay in complaint and the question of general unidentifiable or presumptive disadvantage arising from delay was not raised.

(b) the judge was not asked to say anything further about such delay even though counsel were invited to make submissions as to the directions which should be given

(c) the appellant was represented by very experienced counsel.

45 Put briefly this was not a case where arguments as to delay and directions as to delay beyond those given by the judge would carry much weight. This explains why counsel for the appellant concentrated his attack on the malice or hate of the mother and the complainant and the aspect of fantasy on the part of the complainant. The judge dealt adequately with those matters. The appeal against conviction should be dismissed.

46 I propose the following orders:

(a) Appeal against conviction dismissed.
(b) Leave to appeal against sentence refused.

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Last Modified: 05/29/2003