Rowney v The Queen - [2007] NSWCCA 49

No judgment structure available for this case.

Reported Decision: 168 A Crim R 579

New South Wales

Court of Criminal Appeal

CITATION: ROWNEY v R [2007] NSWCCA 49

HEARING DATE(S): 8 November 2006

JUDGMENT DATE:
27 February 2007

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 53; Rothman J at 93

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - sexual assault - acquittal directed on 3 counts - 13 year delay in complaint - whether trial judge erred in rejecting relationship evidence between the complainant and appellant whether jury verdicts unreasonable - whether verdicts unsupported by evidence - inconsistencies between complainant’s evidence and Crown opening

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1986
Criminal Appeal Rules 1912

CASES CITED: Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v Markuleski (2001) 52 NSWLR 82
R v Rose (2002) 55 NSWLR 701

PARTIES: Douglas William Rowney (Appl)
The Crown

FILE NUMBER(S): CCA 2006/1736

COUNSEL: P A Beale/G A Newton (Appl)
P Barrett (Crown

SOLICITORS: Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0208

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 8 March 2006

2006/1736

McCLELLAN CJ at CL
SIMPSON J
ROTHMAN J
TUESDAY 27 FEBRUARY 2007

ROWNEY, Douglas Willliam v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant Douglas William Rowney was tried in relation to the following counts:

Six counts of sexual intercourse with a person under ten years and under the age of sixteen years being an offence against s 66C(1) of the Crimes Act (counts 1, 2, 4, 5 6, and 7); and

Crimes Act

2 At the close of the Crown case the trial judge directed a verdict of acquittal in relation to counts 2, 5 and 6. The jury returned verdicts of guilty in relation to counts 1, 3, 4 and 7.

3 The appellant appeals against his conviction and raises two grounds of appeal. I shall return to the precise grounds of appeal later in these reasons.

The course of the trial

4 Each of the counts with which the appellant was charged was concerned with allegations that he had engaged in sexual activity with the complainant who turned thirteen in February 1988. The counts in respect of which guilty verdicts were returned related to incidents which allegedly occurred between 1 September 1987 and 31 January 1988 at locations near Gunnedah. Counts 1, 3 and 4 related to events which allegedly occurred at Kelvin and count 7 to events which allegedly occurred at Manilla. The incidents were alleged to have occurred when both the appellant’s family and the complainant’s family were living, in separate houses, on a property called “Rangari”, near Gunnedah.

5 Counts 1 and 2 allegedly occurred at “Carter’s Bridge”. The Crown Prosecutor in his opening address said in relation to these counts:

“The evidence will establish, I expect, that there was an occasion at that time when the accused had the complainant take down her pants and then he licked her on the vagina, following which he inserted his fingers into the complainant’s vagina.”

6 The complainant gave evidence that on one occasion the appellant drove her in his Suzuki 4WD to a location under the bridge. She said that she was sitting in the passenger seat and the appellant was “licking my vagina.” She said that he was out of the car with her legs over his shoulders. The complainant said that it was “warm … spring, summer” and the incident occurred before 1 January 1988.

7 The complainant described Carter’s Bridge as having “wooden rails and it was tar going over the top of it.” She said it was made of “cement, wood, tar.” There was an issue at the trial as to whether the complainant had correctly identified Carter’s Bridge. At the trial Mr Carter gave evidence in which he said that the bridge had been named after his father and was constructed in the early 1970’s. He said that its appearance had not changed since it was constructed. He said the bridge was a two lane bridge in which the railings were made of rolled hollow steel. He said “a single lane bridge with a tarred surface” would not fit the description of the bridge.”

8 The complainant gave evidence consistent with Count 1 as alleged by the Crown but she did not say that the appellant had inserted his finger into her vagina. Accordingly, the trial judge directed a verdict of acquittal in relation to count 2 where this was an essential element.

9 Counts 3 and 4 were alleged to have occurred after the appellant and the complainant had been to Gunnedah to buy ammunition. The complainant said that they went to a shop named “Dowsett’s” at Gunnedah to buy bullets. On the way back to “Rangari”, the appellant allegedly pulled over to the side of a dirt road after they had passed over a little bridge. There was no one else around. The complainant said that the appellant got “cranky” with her and she “sucked his penis.” The incident allegedly occurred in the car and she had to lean over to do it. She said that his penis was hard and that he ejaculated on himself. She also touched his penis during this incident which she said occurred when there was no one else present.

10 Count 5 was the subject of a directed verdict. The relevant incident was alleged to have occurred before 31 January 1988. However, the evidence tendered at the trial did not support this allegation. The complainant said that she was thirteen at the time of the incident. However, her thirteenth birthday was on 24 February 1988. Although the appellant was acquitted it is necessary to relate the essential elements of the evidence tendered on this count.

11 The complainant said that she went to the appellant’s family house and stayed the night. She said the appellant gave her some stamps and she later had dinner with the appellant and his parents. She said that the appellant took her into his bedroom and when she was lying on her back kissed her and then put his penis into her vagina. She said that it hurt and that she got up. She said that she thought she saw blood and “Doug was yelling at me like I did something wrong.” She said that she spent the night in the appellant’s bed.

12 The complainant said that the incident occurred when she was thirteen and took place more than twelve months after the appellant’s father had left the property. When cross-examined she said there was another occasion when her brother also stayed the night at the appellant’s house and they slept on the lounge. She said that she had permission from her mother to stay overnight. When challenged she insisted that she had stayed the night at the appellant’s place.

13 The complainant’s brother gave evidence but did not say that there was an occasion when he stayed overnight at the appellant’s house with his sister. The complainant’s mother also gave evidence to the effect that the complainant had never spent the night at the appellant’s house and that she would never have given her permission to do so. The appellant’s mother said that there was never any occasion when the complainant came alone or stayed overnight at her house.

14 Count 6 was also the subject of a directed verdict. In his opening address the Crown prosecutor told the jury that the sixth count “relates to an incident when both the complainant and the accused were riding the accused’s motorcycle” on a property owned by another person. The Crown prosecutor when opening in relation to this count said:

“They eventually came to an area near a dry creek bed and on that occasion I expect she will tell you that the accused licked her on the vagina. That is the act of sexual intercourse that we are seeking to rely upon to establish count 6.”

15 Although the Crown Prosecutor had opened to the effect that sexual activity had taken place on this occasion, when asked about the incident on the motorbike the complainant said “Doug wanted to do things, I didn’t want to, we got back on the bike.” She said that “nothing’ happened on that occasion and accordingly a direction of acquittal was inevitable.

16 Count 7 related to an allegation that the appellant penetrated the complainant with his penis, although not completely, during a swimming trip to Manilla weir. The complainant said that she had gone with the appellant and her brother to the weir and she and the appellant were sitting under a waterfall. In her evidence she said that “Doug wanted me to sit on his lap.” She said that she “faced Doug and put my legs around him and sat on his lap.” She said that his penis was hard and went into the lips of her vagina but it would not go in.

17 The complainant’s brother gave evidence in which he said that he remembered a time when he went to the weir with the appellant and his sister. He said that the appellant and his sister were swimming together “under there” a reference to a waterfall. He gave evidence that at no time on this occasion did the complainant tell him that anything was wrong. He said that he could not remember telling the police on two occasions that at the time of this incident he was fourteen and the complainant was thirteen.

18 When cross-examined the complainant said that she could not remember if there was a waterfall but said that “there was a fair bit of water washing over.” She gave evidence that at no time during the incident was she sitting with her back to the appellant. The following passage was then read to her from her police statement:

“Rowney just grabbed me by the left wrist and pulled me towards him. He placed me on his lap with my back towards him.”

19 She said she could not remember saying those words to the police but said that she could clearly remember the incident in the terms she recounted to the jury.

20 Throughout her evidence the complainant stated that sexual activity continued with the appellant from when she was twelve to when she was fifteen years of age. She said that sexual activity occurred in each of those years. She denied that the appellant and his family moved away from the area shortly after her thirteenth birthday. This was inconsistent with the Crown case in which evidence was tendered that the appellant moved away almost immediately after her thirteenth birthday.

21 The evidence of the appellant’s former employer was that the appellant ceased employment with him on or before 27 February 1988. This was confirmed from the employer’s employment records. Although he had previously seen them together the employer did not recall seeing the appellant with the complainant after 26 February 1988. He said that at no time did the appellant and the complainant give an indication that they were sexually involved. The complainant’s brother gave evidence that he did not think his sister and the appellant associated at all after the appellant and his family left the area.

22 The complainant has a history of difficulty with alcohol and drugs. When cross-examined she accepted that she had overdosed on prescription medicine at the age of 16. She had also used marijuana heavily from the age of 16. She accepted that she had used amphetamines “for years.” In the year 2000 she was admitted to the Jordan Centre in Coffs Harbour. She denied that she had ever heard voices or experienced seeing things that were not in fact there. However, medical notes obtained from the Jordan Centre suggest that from time to time she has experienced these difficulties.

23 The appellant did not give evidence but when he was interviewed by the police denied the allegations. A record of his interview was tendered at the trial. The defence emphasised that the complainant had not complained about the actions of the appellant until more than 13 years after the alleged events and her evidence was uncorroborated. The defence also emphasised that in a number of respects the complainant did not “come up to proof.” There were inconsistencies in her version of some events. She was adamant that sexual acts continued until she was fifteen even though, on the Crown case, the appellant left the area within days of her thirteenth birthday.

Ground one: the trial judge erred in rejecting evidence of the finding of a note by the complainant’s mother and the complainant’s explanation of the note to her mother.

24 This ground of appeal is concerned with evidence from the complainant’s mother given on the voir dire and ultimately rejected by the trial judge. She said that when the complainant was about fourteen years old she found a note in her school uniform when she was checking her pockets prior to doing the washing. In her statement she said:

“There was a note in her uniform from her friend called C. I don’t remember the last name. In the note it said, ‘At least I didn’t sleep with a 25 year old when I was 13.’ I called [the complainant’s step father] in and showed him the note and [he] told me that he didn’t want to be present when [I] spoke to the complainant. I spoke to the complainant about this note and wanted her to explain the note. I asked her if the note was true and she said, ‘Yes.’ She had her head down when she said this and said, ‘I’ve been raped.’ [The complainant] wouldn’t tell me who the person was. I told her that I was going to ring the police. She said, ‘I’ve lied I haven’t been raped.’ I told her I wanted to know what the note was about. [The complainant] said ‘C and me were driving around town with two fellows and C was having sex with one of the fellows and [the complainant] said that she then started to have sex with the other fellow who was about 25 years old. [The complainant] said that it hurt and asked him to stop but he wouldn’t. The complainant would not tell me the name of this fellow. The complainant then told me that she had made the story up about [her stepfather] because she thought she was going to get pregnant when she had sex with the 25 year old.”

25 In a later statement made on 15 August 2003 the complainant’s mother referred to the fact that the complainant had been admitted to the Jordan Centre. She said that she rang her there a few times and on one occasion the complainant said:

“It was Doug that broke my virginity.’ In the conversation I spoke to [the complainant] about the note that I had found in her school uniform when she was about 14 years old. [The complainant] said ‘that’s what the note was written about.’"

26 The reference to Doug in this later conversation indicates that the complainant told her mother that it was the appellant who “broke” her virginity. The reference to the note also suggests that the note related in some way to the appellant. However, whether the complainant was telling her mother that she lost her virginity in the car or that the happenings in the car were merely an incidence of continuing sexual activity is not clear. Whatever be the correct understanding of this conversation it was not favourable to the appellant. Although not evidence which was relevant to any particular charge, if it had been admitted, it was evidence of sexual activity between the appellant and the complainant when she was no more than fourteen years old.

27 The conversation referred to in the earlier statement is also ambiguous. The statement that the author of the note did not sleep with a twenty-five year old when she was thirteen carries the inference that the complainant did do so. When considered together with the later conversation an available inference would be that the appellant and the complainant engaged in sexual activity when she was thirteen. Again, although not related to any particular charge this is unlikely to have assisted the defence case.

28 The mother’s account of the earlier conversation also shows a propensity in the complainant to lie. The lie is said to be justified out of a concern that she may be embarrassed if she fell pregnant. An allegation that she had been raped would explain that eventuality should it occur. However, when her mother said she would tell the police, the complainant apparently appreciated she could not sustain the lie and withdrew the allegation of rape. There may be other explanations for this part of the exchange. One suggestion is that she was protecting her stepfather. However, this would also indicate a propensity to tell lies.

29 Counsel for the appellant at his trial sought to tender the evidence from the statements and to cross-examine the complainant about these matters. However, after giving consideration to s 293 of the Criminal Procedure Act 1986 the trial judge ruled against the appellant. Section 293 is in the following terms:

“Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

is inadmissible.

(4) Subsection (3) does not apply:

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),

(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

30 From her short reasons it would seem that her Honour understood that the application was founded on the proposition that in the earlier conversation between the complainant and her mother, the complainant was alleging inappropriate sexual conduct by her stepfather. Counsel for the appellant said that he proposed to put to the complainant that the true position was that she had been raped by her stepfather and the activities in the car in truth had nothing to do with the appellant. The submission was apparently to be reinforced by the fact that the complainant had made a complaint in relation to the stepfather to the school counsellor. It was submitted that notwithstanding the exclusion in s 293(2) the evidence was admissible pursuant to s 293(4)(a).

31 The appellant’s counsel also made written application at the trial for leave to adduce the evidence contained in the statements and to cross-examine the complainant. That application was in the following terms:

“1. The accused applies for leave under s 293(4)(a) and 293(4)(c) to adduce evidence of the complainant’s sexual activity or a lack of sexual activity contained in

(a) Statement of Helen Eason dated 6 March 2002 in relation to Dale Collins (the whole statement).

(b) Statement of Hazel Collins dated 21 May 2002 paragraphs 13-19, 22, 24 & 26.

(c) Statement of Hazel Collins dated 15 August 2003 paragraph 6.

2. It is disclosed or implied in the prosecution case the accused is a person (not named) with whom the complainant had sexual activity when she was 13 years of age referred to in a note found in the school uniform of the complainant when she was 14 years of age.

3. The accused applies for leave under s 293(6) the complainant be cross-examined on his behalf in relation to the above disclosures or implications.”

32 When rejecting the evidence the trial judge stated that it was not made admissible by s 293(4)(a). She also determined that in any event “its probative value is not, in my view, one which would outweigh any distress humiliation or embarrassment the complainant might suffer as a result of its admission.” Her Honour did not explain the basis for either finding.

33 The matter was approached differently on the appeal when it was submitted that rather than being understood as evidence of sexual reputation, which s 293 made inadmissible, “it should have been put forward as evidence of complaint, inconsistent with the complainant’s evidence at trial.” In particular it was submitted that because the complainant did not give evidence of having sex with the appellant when driving with her friend and another man, the appellant should have been allowed to tender the evidence and cross-examine the complainant in relation to it. It was further submitted that the rejected evidence indicated that the complainant had told her mother that she had lost her virginity when she was thirteen when she had intercourse in a car. This was said to be inconsistent with the fact that the complainant had reported that she “thought she saw blood” as part of the events comprising count 5, which suggested she lost her virginity on that occasion. Accordingly, it was submitted that the note and the conversation, if admitted, would have “severely undermined” the complainant’s credibility.

34 Although inconsistent with the basis of the tender advanced in the written application, when the basis for the tender was confined to that reflected in her Honour’s reasons it was inevitable that the evidence would be rejected. If the basis of the tender was confined to evidence relating to allegations of sexual assault which the complainant had made against her stepfather, there is no limb of s 293(4) which would allow its admission. In any event there was evidence that this event was alleged to have occurred on 20 March 1988, the complaint in relation to the stepfather being made on 21 March. This was at a time which was beyond the time period identified in the indictment.

35 However, if the admitted portions of the statements, including the reference to the note, were confined to references to sexual activity between the appellant and the complainant, the evidence would have been admissible pursuant to s 293(4)(b), provided its probative value outweighed any distress, humiliation or embarrassment to the complainant. The evidence would relate to a “relationship between the accused person and the complainant.”

36 The admission of this evidence would have carried significant dangers for the appellant. Although the statements suggested sexual activity between the appellant and the complainant when she was thirteen – this is the assertion of the author of the note and not the complainant. The author may well have been mistaken as to the complainant’s age. If the cross-examiner had sought to use the note and the account of the conversation, it would inevitably confirm sexual activity between the complainant and the appellant contrary to the statute, although, perhaps not within the time period included on the indictment.

37 It is important to appreciate that the fundamental assertion which the complainant made is that contained in the second conversation when she says “he (the appellant) broke my virginity.” That allegation is, at the very least, not inconsistent with the allegations of sexual activity at the trial. Although the conversations and the note admit of the inference that she lost her virginity in the events in the car this is not the inevitable inference. It would be unlikely that the alleged events as charged and in respect of which the appellant was convicted of the licking of her vagina, the sucking of the appellant’s penis or, even, the attempt at penetration would be described by the complainant as “breaking her virginity.” Perhaps count 5, which alleged that the appellant put his penis into her vagina when it hurt “and she thought she saw blood”, could have been described by her as the occasion when she lost her virginity, although this may not be the case. If blood was present this could have been due to a vigorous attempt at penetration. She did not give evidence that this was the occasion when her virginity was lost. In any event the allegation in count 5 was of sexual intercourse when the complainant was thirteen and it was for this reason that a verdict of acquittal on this count was directed.

38 In my opinion it was not appropriate to exclude the evidence by reason of the potential distress, humiliation or embarrassment to the complainant. If the contents of the conversation which was admitted was confined to evidence relating to the appellant it would only confirm sexual activity between the complainant and the appellant of which she had already given evidence. In so far as the evidence shows that she lied to her mother, although embarrassing, this is not a matter with which the section is concerned.

39 In these circumstances I am satisfied that provided it was confined to evidence relating to the relationship between the complainant and the appellant the tendered material should have been admitted. However, the ultimate question is whether the exclusion of the evidence has cost the appellant a chance of an acquittal. I do not believe it has. If admitted, the evidence would have suggested that the complainant and the appellant had sexual relations at least when she was thirteen, which was otherwise consistent with her evidence. Although it would also have demonstrated that she was prepared to lie, the reason for the lie, to save her from the embarrassment of having become pregnant after an act of consensual intercourse, was understandable. It would not indicate that she had necessarily lied about other and earlier sexual activity, the subject of the counts on which the appellant was convicted.

40 The submission which the appellant made, which was obviously correct, is that the allegation which the complainant made at the time, of sexual intercourse with the appellant when the complainant was thirteen, was inconsistent with the Crown case that the appellant had moved away from the area within two days of the complainant attaining thirteen years. However, this difficulty in the Crown case is not only apparent in the rejected evidence. The complainant asserted continuing sexual intercourse with the appellant when she was aged thirteen, fourteen and fifteen. Accordingly, the jury had to resolve the issue of the complainant’s credibility having regard to these assertions. The exchange with her mother, which the judge rejected, would have added further evidence of sexual intercourse after the complainant turned thirteen and the jury may have inferred that this was between the complainant and the appellant. If this was the case the evidence may have served to have bolstered the complainant’s credit rather than detract from it. Ultimately, I do not believe that by reason of the failure to admit this evidence the appellant lost a chance of an acquittal.

41 Accordingly, it is necessary to consider the second ground of appeal.

Ground two – the verdicts were unreasonable being incapable of being supported by the evidence

42 In support of this ground the appellant relied upon the following matters:

· The lack of corroboration of the complainant’s evidence

· Delay in complaint – more than 13 years

· The fact that the complainant’s evidence was inconsistent with the Crown prosecutor’s opening address in many respects resulting in directed verdicts on counts 2, 5 and 6.

· In relation to counts 1 and 2, the misdescription by the complainant of “Carter’s Bridge” and her failure to mention count 2 as forming part of the Carter’s Bridge incident.

· In relation to count 5, the inconsistencies between the complainant’s evidence that she was present alone overnight in the appellant’s bedroom and the evidence of the complainant’s mother and Valmai Rowney that she never went to the Rowney house alone or stayed overnight.

· The fact that the complainant said “that nothing happened” in relation to count 6 (the motorbike incident) notwithstanding the Crown’s opening.

· In relation to count 7 (the Manilla weir incident), the inconsistency between the complainant’s evidence that she was facing the appellant during the incident, at no stage with her back to the appellant, and her statement to police that he placed her on his lap with her back to him when the incident occurred.

· The complainant’s drug and alcohol history, her history of reporting hearing voices and seeing things that were not there including telling staff at the Jordan Centre about hearing voices. These matters were submitted to seriously undermine credibility because they indicated that the complainant was delusional or at the very least had lied to staff at the Jordan Centre about being delusional.

· The fact that the complainant was adamant that the sexual activity with the appellant continued when she was thirteen, fourteen and fifteen, being a time after which the Rowney’s had moved away from where the complainant lived. It was submitted that this seriously undermined her credibility.

· If the evidence about the note found in the complainant’s school uniform (which was submitted to be evidence of inconsistent complaint) had been allowed, the complainant’s credibility would have been further significantly undermined.

43 The principles which this Court must apply when it is submitted that a verdict is unreasonable are well known. Section 6(1) of the Criminal Appeal Act 1912 relevantly provides:

“The Court on any appeal under s 5(1) against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court at trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

…”

44 The relevant tests were explained in M v The Queen (1994) 181 CLR 487 at 493:

“… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, …

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence …"

45 In R v Markuleski (2001) 52 NSWLR 82 Spigelman CJ said:

“The test for an unreasonable verdict – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – must be applied to the whole of the facts in the circumstances of a particular case.” [31]

46 Markuleski was subsequently approved in MFA v The Queen (2002) 213 CLR 606 and R v Rose (2002) 55 NSWLR 701.

47 Apart from the complaint in relation to evidence with respect to the conversation between the complainant and her mother, the subject of ground one in this appeal, no other complaint is made about the conduct of the trial and the rulings of the trial judge. The jury was directed that they are the sole judges of the facts and that it was for them to decide whether witnesses were telling the truth. They were told that the evidence of the complainant was crucial and should be scrutinised very carefully. They were also informed that, if they had a reasonable doubt in respect of more than one count, this had to be taken into account when assessing the complainant’s evidence in respect of the other counts. The jury were directed about the difficulties created by delay and given warnings in accordance with the requirements identified in Longman v The Queen (1989) 168 CLR 79.

48 With respect to the complaint that there was a lack of corroboration of the complainant’s evidence, this is, of course, not unusual in sexual assault cases and was identified by the trial judge as a matter for the jury’s consideration. It could not alone justify a finding that the verdict was unreasonable.

49 With respect to the inconsistencies between the complainant’s evidence and the Crown opening these matters were obvious and were emphasised by defence counsel. The jury were told that this was the reason why verdicts were being directed in relation to counts 2 and 6. With respect to count 5 the evidence disclosed an act of intercourse outside the time provided in the indictment. As a result the verdict was directed in circumstances which again would have been plain to the jury.

50 The various inconsistencies which the appellant identified in the complainant’s evidence were all known to the jury. In particular the inconsistency about her position in the alleged Manilla weir incident was the subject of extensive examination and referred to in address. The jury were also reminded of the inconsistency between the complainant’s evidence and the Crown case with respect to her allegation of sexual activity when she was aged thirteen to fifteen.

51 With respect to more general matters, including the complainant’s drug and alcohol history, these were all prominent issues in the trial from which the jury were able to form an appreciation of her credibility. It will often be the case that when allegations are made of sexual activity with a young person occurring many years ago the recollection of detail will be imprecise. Furthermore, if in the intervening years a complainant has suffered significant psychiatric illness requiring treatment a memory of the sequence and timing of particular events may be difficult. However, these were all matters falling for assessment by the jury. My review of the evidence does not leave me with a concern that there is a significant possibility that an innocent person has been convicted.

52 In my opinion the appeal should be dismissed.

53 SIMPSON J: I have read in draft the judgment of McClellan CJ at CL. I do not propose to prolong these remarks by restating the background or the Crown allegations. I rely upon his Honour’s account of the facts. I wish only to make my own observations in relation to the first ground of appeal. I agree with McClellan CJ at CL, for reasons his Honour gives, that Ground 2 ought to be rejected.

Ground 1

54 Prior to the commencement of the trial that resulted in the appellant’s conviction, an earlier trial began but, for reasons that are not clear to me and do not need to be explored, aborted. It was during that trial that the application was made on behalf of the appellant to adduce the evidence in question. The evidence then in question fell into two categories: firstly, evidence that the complainant had also made accusations of sexual misconduct against her mother’s partner (to whom it is convenient to refer, somewhat inaccurately, as the complainant’s stepfather); and, secondly, evidence of a note apparently written to the complainant by a friend, and found in the complainant’s clothing by her mother, together with evidence of conversations that followed that discovery.

55 It is the latter evidence that is the subject of the first ground of appeal. (Since it is not relevant to the grounds of appeal, it is not necessary to be concerned with the evidence concerning the complainant’s accusations against her stepfather.)

56 It is not at all easy to identify the basis upon which trial counsel sought to have the evidence admitted, and it is no easier to identify the quite different basis upon which appellate counsel now contends that the evidence ought to have been admitted.

57 The evidence is most conveniently to be found in a statement made by the complainant’s mother on 21 May 2002, and in a later statement made by her on 15 August 2003.

58 In the earlier statement the complainant’s mother said that when the complainant was about 14 years of age, she found, in her school uniform, a note from a friend of the complainant, to whom I will refer as “C”. The note read:

“At least I didn’t sleep with a 25 year old when I was 13.”

59 The complainant’s mother stated that, on finding the note, she confronted the complainant, seeking an explanation. The complainant initially responded by saying that she had been raped, but refused to identify to her mother the person she said had raped her. Her mother told her that she intended to inform police, whereupon the complainant withdrew the allegation of rape.

60 Her mother’s statement continued:

“I told her that I wanted to know what the note was about. [The complainant] said, ‘[C] and me were driving around town with two fellows and [C] was having sex with one of the fellows and [the complainant] said that she then started to have sex with the other fellow who was about 25 years old. [The complainant] said that it hurt and asked him to stop but he wouldn’t. [The complainant] wouldn’t tell me the name of this fellow. [The complainant] then told me that she had made the storey (sic) up about [the complainant’s stepfather] because she thought that she was going to get pregnant when she had sex with the 25 year old.”

61 In the later statement (made 15 August 2003) the complainant’s mother spoke of another conversation with the complainant. At the time of this conversation the complainant was a patient in a psychiatric institution. The nearest the complainant’s mother fixed the date of the admission to the psychiatric institution was “about three years” prior to the date she made her statement. That would make the admission, and the conversation, some time in 2000. The complainant’s mother recorded that the complainant said:

“It was Doug that broke my virginity.”

“In the conversation I spoke to [the complainant] about the note that I had found in her school uniform when she was about 14 years old. [The complainant] said, ‘That’s what the note was written about.’”

62 The Crown Prosecutor at trial made it clear that he did not intend to lead any of this evidence. Counsel for the appellant stated his intention of cross-examining the complainant on it.

63 The transcript of the debate that ensued is difficult to follow, in part because the participants do not appear to have differentiated between the proposed evidence concerning the complainant’s accusations against her stepfather and the evidence presently under consideration; and, in part, because counsel for the appellant never identified with any precision (or, indeed, at all) the basis upon which he contended that the evidence was admissible, the basis upon which he sought to have it admitted, or the interpretation he sought to place upon it - that is, what fact in issue, or fact relevant to a fact in issue, he contended, would be illuminated by the evidence.

64 Since the entire discussion proceeded on the basis that the admissibility of the evidence depended upon the application of s293 of the Criminal Procedure Act 1986, it is convenient here to set out the relevant portions of that section. The whole of s293 is set out in the judgment of McClellan CJ at CL. It is unnecessary to do more than set out those parts of the section which are relevant to the argument, as it proceeded in the District Court.

“293 Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) …

is inadmissible.

(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(c) …

(d) …

(e) …

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5) …

(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

(7) …

65 Counsel who appeared for the appellant at trial said:

Criminal Procedure Act

66 The terms of the written application are set out in paragraph [31] of the judgment of McClellan CJ at CL. It specifies that it is made under s293(4), involving subparagraphs (a) and (c). (Since subparagraph (c) can have no conceivable relevance, I have not reproduced it.) The terms in which the application was made make it clear that counsel accepted that the evidence disclosed or implied that the complainant had had (or may have had) sexual experience, or participated in sexual activity, and was, accordingly (unless made admissible by a subsequent provision of s293) excluded by reason of s293(3). The applications referred to material contained in statements of the complainant (dated 6 March 2002), and her mother (dated 21 May 2002 and 15 August 2003), to which I have already referred.

67 A voir dire was conducted. The statements of the complainant’s mother dated 21 May 2002 and 15 August 2003 were tendered on the voir dire, as was a statement of the complainant dated 6 March 2002. Reference was also made to a statement of the complainant dated 28 April 2000.

68 Paragraph 2 of the application is puzzling. It is, clearly enough, intended to invoke the provisions of subs(6) of s293 of the Criminal Procedure Act 1986. But to say (as is expressly said in paragraph 2) that it would be disclosed or implied in the Crown case that the appellant was a person with whom the complainant engaged in sexual activity at the age of 13 was to misstate the Crown case, as it was then proposed to be led. Each count in the indictment specified that the offence had been committed between 1 September 1987 and 31 January 1988. At all such times the complainant was 12 years of age. She did not turn 13 until 24 February 1988. Thus, it was erroneous to state that it would be disclosed or implied in the prosecution case that such activity had occurred between the appellant and the complainant when she was 13 years of age. The exception to s293(3) provided by subs(6) comes into effect only where it has been disclosed or implied in the Crown case that the complainant has, or has not, had sexual experience or has, or has not, taken part in sexual activity. (It is irrelevant that, at the time the debate took place no evidence had been given: the debate proceeded in anticipation of the evidence that had, no doubt, been fully disclosed to the defence.) It was, of course, fundamental to the Crown case that it would allege that sexual activity had occurred between the complainant and the appellant: that was the very essence of the case. Subs(6) is not, in my opinion, directed to the evidence of sexual activity that is intended to be the foundation of the Crown case: it is directed to evidence of other sexual activity or experience, or lack of sexual activity or experience, that emerges, or may be expected to emerge, incidentally, for some reason other than as the foundation of any charge, but that may, unless the complainant is permitted to be cross examined about that sexual activity or experience (or lack thereof), cause unfair prejudice to the accused person.

69 The transcript records that her Honour said that she would read the statements that had been tendered, and there was some interchange between her Honour and counsel which it is unnecessary here to detail. Her Honour then said:

“Yes, the statement of [the complainant], ‘the accused applies for leave to adduce evidence of the complainant’s sexual activity or lack of sexual activity contained in the statement of [the complainant] dated 6 March.’ Now is that in relation though only to [the stepfather]?”

70 The transcript then records the following exchange:

“HER HONOUR: And you want to cross examine her about that, about what she says happened between her and [the stepfather]?

[COUNSEL]: I do because it will be an inevitable result when I start to cross examine her about the note that that will have to come in.

71 There was then an exchange which, it seems, was intended to clarify which portions of the proposed evidentiary material related to the complainant’s allegations against her stepfather, and which to her allegations against the appellant. Her Honour then asked the Crown Prosecutor:

“Well Mr Crown, what is your case about this note?”

72 The Crown Prosecutor stated that he did not intend to lead evidence about the note; her Honour said:

“No. A little bit confusing, but the note is possibly there are about three explanations of the note, aren’t there?”

73 Counsel for the appellant said that, although the Crown may not be intending to lead the evidence, he did intend to cross-examine. Her Honour then said this:

“Well, that then puts your application on a different basis doesn’t it, because it won’t be disclosed or implied in the prosecution case, the accused is a person with whom the complainant had sexual activity when she was – referred to in the note.”

74 This was a reference to s293(6). As I have noted above, admissibility of evidence (adduced by way of cross examination) under subs(6) is dependent upon relevant disclosure, or implication, in the Crown case. Counsel appeared to accept that subs(6) did not avail him and said that he put his application on a different basis.

75 There was then some discussion, apparently about how the evidence proposed to be led, through cross examination, could otherwise fit within the provisions of s293. Counsel proposed (as recorded in the transcript) that the evidence might be admissible under:

“… sub-section A of 4A…, sub-section 2, line 3”

76 The exchanges that followed also incorporated references both to the allegations made by the complainant against her stepfather, and the allegations made against the appellant.

77 In response to a question from her Honour, counsel for the appellant said:

“Well the mother says [the note was found] when she was about 14, so that would be the subsequent year your Honour, but the note is referring to something that happened when she was 13. So although my client has already gone when she was 13 or gone within two days of when she turned 13, there is some suggestion that the note refers to my client, and that is why it goes to the credibility to cross examine her about that.”

78 There was then some further discussion, which is hardly illuminating, and counsel for the appellant said:

“No well she complained about my client to her mother, when her mother rang her at the [psychiatric institution]. And the mother had no inkling prior to that, that she was going to mention [the appellant] at all, when she did mention [the appellant] she also mentioned that that’s what the note was written about, that was some years later.”

79 Not surprisingly, her Honour then asked what was the relevance or probative value of that. The answer given by counsel for the appellant was:

“Well it is the context of the complaint to the mother.”

80 Counsel then referred to what he asserted were contradictions in the statements made by the complainant. Her Honour reminded him that, for the evidence to be admitted, he had to show that it had probative value; she then mentioned the stress and embarrassment that might be occasioned to the complainant if she were to be cross examined on this material. This must have been a reference to the concluding words of subs(4).

81 After the luncheon adjournment the Crown Prosecutor put submissions in relation to whether the evidence could be admitted under s293(4)(a). Her Honour declined to allow the cross examination, giving brief reasons. It is necessary to make reference to those reasons. Her Honour said:

Criminal Procedure Act 1986.

The application [was] brought forward in writing, but [counsel] accepted that after the Crown clarified the evidence the Crown proposed to lead, there would be no reference to a handwritten note which was found in the complainant’s pocket by her mother.

The application as I understand it is for cross examination to be allowed of the complainant concerning allegations she made against her stepfather.

In addition there was the finding of the note, and explanation given to her mother as to the meaning of that note. Despite some lack of clarity on behalf of the complainant what is clear is [the appellant] left the property at the end of February 1988. The complainant confines the behaviour between herself and [the appellant] between 1 September 1987 in the warmer months and when he left.”

82 Dealing then with the note and the subsequent conversations, her Honour referred to the various portions of the statements which I have extracted above, and concluded:

“In my view the evidence is not admissible as nothing [counsel] wishes to rely upon comes within the exception found in [sub]section 4(a). But if I am not correct in that view having considered the evidence, its probative value is not, in my view, one which would outweigh any distress, humiliation or embarrassment the complainant might suffer as the result of its admission.

Accordingly the evidence will not be allowed.”

83 No application, and no ruling, was made under s293(6).

84 It will be seen from the above that, underlying the entire debate and discussion, was a common assumption that the evidence about the note, and of the evidence of the conversations that followed the finding of the note, and was said to cast light upon its content, was rendered inadmissible by reason of s293(3) of the Criminal Procedure Act, unless it was made admissible by one or other of the sub-sections which provides for exceptions to that rule.

85 Of itself the note was probative of nothing. Indeed, it had virtually no factual content. The most that it could be said to assert was a hearsay allegation, by the complainant’s friend, that the complainant had, at the age of 13, engaged in sexual activity with a 25 year old. That could not possibly be admissible. The note was given content by the evidence of the complainant’s subsequent answers to her mother, when she said that the note was about “Doug” (the appellant) having “broken” her virginity. That would imply that that event had occurred when the complainant was 13. That would be inconsistent with a claim that she had had sexual intercourse with the appellant at the age of 12.

86 On appeal, counsel who appeared for the appellant (who was not the same counsel who had appeared at trial) took an entirely different approach. He expressly abandoned any reliance on s293. He sought to abandon the concession, made by clear implication at least, that the evidence was inadmissible by reason of s293(3). In written submissions he contended:

Crimes Act

…

22 It is submitted that had the evidence been allowed to be adduced there would have been evidence of a complaint made in terms completely inconsistent with the evidence in the trial. Such evidence would have severely undermined the credibility of the complainant. It is submitted that the rejection of the evidence by the trial judge resulted in a miscarriage of justice.”

87 This position was maintained during oral argument. Accordingly, this Court heard no argument about any part of s293. It would therefore be inappropriate to make any definitive ruling on the correctness or otherwise of the decision made by the trial judge. I content myself with saying this. Arguably, evidence capable of yielding an inference that a complainant’s virginity has been “broken” (on an occasion other than the occasion or occasions the subject of the charges) is evidence that discloses or implies that the complainant has or may have taken part in sexual activity on some other occasion. If so, then, contrary to the submission extracted in paragraph [86] above (paragraph 20 of the written submission), it would be evidence made inadmissible by s293(3). Also, in the context of a prosecution case that postulates a history of sexual activity between the accused and the complainant over a period ending when the complainant was just a few weeks short of her thirteenth birthday, evidence capable of yielding an inference that, at the age of 13 (not 12) the complainant engaged in sexual activity with the appellant could be said to be evidence of events alleged to form part of “a connected set of circumstances” within the meaning of s293(4)(a)(ii), and therefore rendered admissible by that sub-paragraph, unless the conclusion were reached (as it was) that the probative value of the evidence did not outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

88 Subs(6) calls for a consideration of the probative value of the evidence. Because of the different approach taken by appeal counsel, no challenge was made to the conclusion reached by her Honour in this respect. What follows, then, are tentative views formulated without the benefit of argument and subject to the limitations that are obvious in such circumstances. In my opinion the evidence had potential probative value, but probative value that could only have been detrimental to the appellant’s case. If admitted, the evidence could scarcely be thought to advance the appellant’s defence: it would do no more than add weight to the prosecution case, even to the point of establishing a further offence with which he had not been charged.

89 Evidence that a complainant engaged in consensual sexual activity with an accused person on an occasion or occasions other than those the subject of the charges might well cast light on questions of consent – where consent is an issue. But her it is to be remembered that the charges faced by the appellant were of sexual intercourse with an under-age female – no question of consent arose. The appellant denied that the encounter had taken place. I agree with McClellan CJ at CL that rejection of the evidence, even if it were admissible, did not result in any miscarriage of justice.

90 Appellate counsel sought to show that the evidence disclosed “an inconsistent complaint”. In putting this submission he relied upon the juxtaposition of the finding of the note, the initial conversation between the complainant and her mother, and the subsequent conversation, by telephone, from the psychiatric institution between the complainant and her mother, together with the evidence given in the trial by the complainant. No doubt the later communication went a long way towards giving the content of the note a relevance to the appellant that it otherwise lacked. There was nothing in the note that identified the appellant as the 25 year old; but, in this Court, the argument proceeded on the basis that that was what was intended to be asserted, or what should be read into the note. It was certainly an available inference from all of the circumstances. Put shortly, what was said to emerge from the evidence was an assertion by the complainant to her mother that, when she was 13, the appellant had “broken” her virginity. Counsel then went on to refer to evidence given by the complainant in respect of count 6 (which was the subject of one of the verdicts of acquittal by direction). This count asserted sexual intercourse between the complainant and the appellant at a time when the complainant was 12 years of age. Her evidence in respect of that count included evidence that, after the intercourse, she had observed blood on the sheets. It was this that counsel seized upon. From that scanty evidence he sought to have drawn an inference that the complainant had, on that occasion, “lost her virginity” – i.e. at the age of 12, not 13. This was the alleged inconsistency on which he based his argument. His process of reasoning was, as I understand it, this:

(i) in the trial, the complainant alleged that all the sexual activity between herself and the appellant took place between 1 September 1987 and 21 January 1988, during the whole of which time she was 12 years of age;

(ii) the complainant gave evidence that, after one such encounter that occurred in the appellant’s bed, she observed blood on the sheets;

(iii) it should be inferred that the blood on the sheets was the result of vaginal bleeding by the complainant;

(iv) it should further be inferred that the blood on the sheets signified that, on that occasion, the complainant’s hymen had been ruptured and, therefore, that it was on this occasion that the complainant had “lost her virginity”;

(v) that the complainant’s later assertion to her mother that the appellant had “broken” her virginity on the occasion in the car referred to in her friend’s note (when she was 13) was inconsistent with loss of virginity at the age of 12;

91 The argument is fundamentally flawed. It rests upon factual assumptions which cannot be sustained. There is, for example, no warrant for the assumption that the blood observed on the bed sheets resulted from the rupture of the complainant’s hymen (it may, for example, have been caused by menstruation, or by a vulval tear); there is no warrant for the assumption that in every case of bleeding following a first sexual encounter, the hymen is fully ruptured, with the result that no subsequent sexual event will result in bleeding. The argument presumes that in all cases “loss of virginity” is a single, discrete, once-only event, complete on penetration and rupture of the hymen.

92 I am satisfied that the cross examination of the kind now envisaged would not have advanced the defence case one iota. No miscarriage of justice was occasioned by the ruling. It is therefore unnecessary to embark upon the further question whether, by reason of the diametrically different basis upon which the admissibility of the evidence is now argued, the appellant needs leave under Rule 4 of the Criminal Appeal Rules 1912 to rely upon the argument.

93 ROTHMAN J: I have read in draft the judgment of McClellan CJ at CL. I have also read in draft the reasons for judgment of Simpson J.

94 I agree with the orders proposed by McClellan CJ at CL. I agree with McClellan CJ at CL as to the reasons that Ground 2 ought to be rejected.

95 Ground 1 of the Appeal does not relate to the admissibility of evidence concerning allegations, not pursued, against the stepfather. It is therefore unnecessary to discuss that evidence.

96 The trial judge dealt with the submissions on the basis of the amended applications under s.293(4) of the Criminal Procedure Act 1986 (the “Act”). The appellant on appeal submitted that the material was able to be adduced on another basis. The terms of s.293 were not dealt with in detail. But s.293 assumes the evidence would otherwise be admissible. Evidence that is otherwise admissible is rendered inadmissible by s.293(3).

97 Whether s.293(3)(b) applies in the manner suggested by Simpson J may depend on the effect and meaning of the word “any” in the expression “any sexual activity”. Because it is unnecessary and was not the subject of submissions I will not deal further with that issue.

98 Otherwise, I agree with the reasons of Simpson J.

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Citations

Rowney v The Queen [2007] NSWCCA 49

Most Recent Citation

Smith (a pseudonym) v The King [2025] NSWCCA 145

Cases Citing This Decision

2

R v MAS [2013] SASCFC 122

Smith (a pseudonym) v The King [2025] NSWCCA 145

Cases Cited

7

Statutory Material Cited

3

M v the Queen [1994] HCA 63

R v Markuleski [2001] NSWCCA 290

CITATION:	ROWNEY v R [2007] NSWCCA 49
HEARING DATE(S):	8 November 2006
JUDGMENT DATE:	27 February 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 53; Rothman J at 93
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - sexual assault - acquittal directed on 3 counts - 13 year delay in complaint - whether trial judge erred in rejecting relationship evidence between the complainant and appellant whether jury verdicts unreasonable - whether verdicts unsupported by evidence - inconsistencies between complainant’s evidence and Crown opening
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1986 Criminal Appeal Rules 1912
CASES CITED:	Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Markuleski (2001) 52 NSWLR 82 R v Rose (2002) 55 NSWLR 701
PARTIES:	Douglas William Rowney (Appl) The Crown
FILE NUMBER(S):	CCA 2006/1736
COUNSEL:	P A Beale/G A Newton (Appl) P Barrett (Crown
SOLICITORS:	Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0208
LOWER COURT JUDICIAL OFFICER:	Payne DCJ
LOWER COURT DATE OF DECISION:	8 March 2006