Wilson v R

[2006] NSWCCA 217

CITATION:	Peter James Wilson v Regina [2006] NSWCCA 217
HEARING DATE(S):	10 February 2006
JUDGMENT DATE:	2 August 2006
JUDGMENT OF:	Handley JA at 1; Adams J at 2; Latham J at 3
DECISION:	Appeal Dismissed
CATCHWORDS:	Conviction appeal - inconsistent verdicts - Crown address raising motive to lie and lies told by appellant as consciousness of guilt - admission of videotaped interview with complainant as exhibit in trial - refreshing memory from document.
LEGISLATION CITED:	Evidence Act 1995 Criminal Appeal Act 1912 Evidence (Children) Act 1997
CASES CITED:	M v The Queen (1994) 181 CLR 487 R v Mosegaard [2005] NSWCCA 361 R v Cox [1999] NSWCCA 62 R v Hughes [2000] NSWCCA 3 R v VHP NSWCCA (unreported) 17 June 1997 Edwards v R (1993) 178 CLR 193 R v Smith [2000] NSWCCA 468 R v Uhrig NSWCCA (unreported) 24 October 1996 Dyers v The Queen (2002) 210 CLR 285 Zoneff v The Queen (2000) 200 CLR 234 R v Campbell [2005] NSWCCA 132 Bolus v Regina [2006] NSWCCA 182 R v AH (1997) 42 NSWLR 702 Pfennig v The Queen (1995) 182 CLR 461 Qualtieri v Regina [2006 NSWCCA 95 R v NZ (2005) 63 NSWLR 628 ; [2005] NSWCCA 278 R v DBG (2002) 133 A Crim R 227 ; [2002] NSWCCA 328 R v RTGS [2005] NSWCCA 293
PARTIES:	Peter James Wilson - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2005/2412
COUNSEL:	Ms Bashir - Applicant Mr W Dawe QC - Crown Respondent
SOLICITORS:	Mr S O'Connor - Applicant S Kavanagh - Crown Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0269
LOWER COURT JUDICIAL OFFICER:	Coolahan DCJ
LOWER COURT DATE OF DECISION:	15 June 2005

2005/2412

HANDLEY JA
ADAMS J
LATHAM J

2 August 2006

PETER JAMES WILSON v REGINA

Judgment

1 HANDLEY JA: I agree with Latham J

2 ADAMS J: I agree with Latham J

3 LATHAM J: The appellant appeals against his conviction on one count of Sexual Intercourse with a Child (CM) under 10 years (fellatio) and one count of Aggravated Act of Indecency towards CM. Those offences were Counts 1 and 3 on an indictment containing seven counts to which the appellant pleaded not guilty on 24 August 2004. At the conclusion of the trial on 1 September 2004, there was a verdict by direction on Count 2 and acquittals by the jury on Counts 4, 5, 6 and 7. The verdict by direction on Count 2 (Commit an act of indecency towards CM) arose from an absence of evidence capable of establishing that the appellant was aware of CM’s presence.

The Evidence at Trial

4 In 2002, the complainant, CM, a nine-year old boy, lived with his father, GM, in a rented three bedroom house at Tighes Hill in Newcastle. Ms L, GM’s then partner, also lived in the premises. The couple occupied one bedroom, CM occupied another bedroom and a boarder, DB, occupied the third bedroom.

5 In mid to late 2002, GM met the appellant at a local church. Towards the end of 2002 the appellant told GM he was looking for somewhere to live and he was invited to move into the house at Tighes Hill. Between 26 November 2002 and 22 January 2003, the appellant lived in the house as a type of boarder. From the time he moved in, the appellant slept in the same bedroom as CM. The furniture in this room consisted of two single beds, a television and a video player.

6 The appellant occasionally minded CM while GM and Ms L went out. The appellant also took CM on some outings, including to the movies. All seven of the offences on the indictment were alleged to have been committed upon CM in the bedroom he shared with the appellant. In order to deal with the ground of appeal relating to inconsistencies in the jury's verdicts, it will be necessary to outline the evidence in relation to each count on the indictment.

7 The offences came to light following the appellant's sudden departure on 21 January 2003 following an argument with Ms L. On the 22nd of January 2003 Ms L was cleaning the bedroom which the appellant shared with CM. She found a letter (Exhibit J at trial) underneath the appellant's bed addressed to CM. The handwriting in the letter was subsequently analysed by a handwriting expert, who gave evidence at the trial that the appellant had written Ex J. In addition, the appellant's right thumbprint was located on the second page of Ex J. The appellant acknowledged in his interview with police that the letter was in his handwriting but went on to say "it could have been forged, I don't remember writing it but it looks like my writing". Defence counsel at trial did not take issue with the authorship of the letter. The contents of that letter were as follows :-

Dear C.

You know I love you, but you don't know how much, it doesn't matter who you are physically though you need to communicate with me better as the perception I have of your feeling towards me as you send different messages to me like paranoia in that you'll do something like flop your dick out and then cover yourself by acting like it was an accident you probably know why I say you've got a split personality but I’ll tell you anyway because for half an hour you will be all over me and want the same from me and then bam you want me on the other side of the state then after a while you'll want me back and then there's the fact that you talk behind my back a lot if I am right or wrong in saying this I hope you can tell me that what I see is all this is you love me but something scares you about this relationship I can tell you that neither of us want anyone to know why does anyone have to know, if it feels right just do it.
I love you what I want to know is do you love me.

8 Ms L immediately showed the letter to GM and the police were called. GM then called CM into the kitchen and in the presence of two police officers, CM was asked whether he had seen the letter before. CM said he had not. CM was then asked by one of the police officers whether there was anything he wished to tell them about the appellant. CM responded "he got some oil and played with himself, he was watching a sex video". (This conduct was the basis of Count 2 in the indictment.)

9 On 23 January 2003 the matter was referred to the Joint Investigation Response Team at Cardiff. However, a case officer was not appointed until 5 March 2003 and CM was not interviewed until 26, 28 and 31 March 2003. Those interviews were recorded and became exhibits at trial. In addition CM gave sworn evidence. Counts 1 and 3 on the indictment related to two incidents described in the course of the first interview on 26 March 2003 (Exhibit A).

10 In the course of the interviews CM referred to a “list” of sexual offences allegedly committed by the appellant upon him, which CM had compiled after the police left his home on 22 January 2003. CM said that he wrote out the list over about a three-day period and gave it to his father and Ms L. Ms L copied the list on to another piece of paper. CM did not know what happened to the original list. He was shown a document in the course of the trial (MFI 6) and agreed that the document refreshed his memory about the contents of the list. CM said that he was scared or embarrassed to tell the police everything during their first visit to the home.

11 GM gave evidence that, following the departure of the police on 22 January 2003, he said to CM "is there anything you should tell us about this person, did he do anything to you that he shouldn't have?" CM did not immediately respond but later that afternoon, he came out of the bedroom and said "yes Dad, there's some things I want to tell you." GM saw CM write something and after reading the document, GM rang the police who returned to the house and were shown the list. GM accepted that MFI 6 was in Ms L’s handwriting and that his statement referred to Ms L rewriting the list given to her by CM. The police officers who attended the premises on 22 January 2003 gave evidence that they only received one document on that day, namely the letter (Ex J).

12 Ms L’s recollection was that CM produced the list a couple of days after the police had first spoken to them. CM gave her the list and Ms L gave it to Constable Taylor although she could not recall when. Ms L said she did not destroy the original list but gave it to Constable Taylor. Later, in cross-examination Ms L said that CM in fact wrote two lists, the first a couple of days after the police visit and the second the following night when his father was not at home. However, Ms L only made a copy of the first note written by CM.

13 Constable Taylor’s evidence was that Ms L gave her MFI 6 on 28 March 2003, the date of CM's second interview. Constable Taylor said that Ms L had told her that she had destroyed the original list made by CM and that she had never been told by Ms L that CM had written two lists.

14 CM described Count 1 in response to a question by the interviewer "So tell me about the first time something happened". The complainant said that one night he and the appellant were in the bedroom watching the program “South Park” on television. CM described the content of the program. That description matched the broadcast of an episode of “South Park” on 13 January 2003 between 8:33 p.m. and 8:55 p.m. CM described another program after the “South Park” episode with a title something like “Wiley”. That description also matched the broadcast of an episode called “The Church of Riley” of a program called "Quads" which followed “South Park” on 13 January 2003. CM went to sleep underneath the bedspread of his bed but awoke some time later to find the appellant's head down below CM’s singlet. CM said he could feel the appellant's hair on his belly and the appellant was sucking his penis. CM asked the appellant what he was doing but the appellant did not stop, so CM turned over and the appellant went back to his bed.

15 Count 1 was expressed as "on or about 13 January 2003 at Tighes Hill did have sexual intercourse with CM a person under the age of 10 years". During cross-examination, CM maintained that this was the first time that anything had happened to him. The cross-examination went on to explore CM's account of the last time, according to the interview (Ex H), when the appellant had sucked CM's penis (Count 7 on the indictment). Count 7 charged an act of sexual intercourse (fellatio) between 30 December 2002 and 7 January 2003. CM's account of this last occasion was fixed by reference to an episode of “South Park” on a Monday night, followed by a viewing of a video "Beautician and the Beast". CM said that the appellant had sucked CM's penis after the video had finished and the television had been turned off. CM stated in the course of the interview that he had gone to school the following day.

16 The evidence at trial established that the video "Beautician and the Beast" had been hired, on one occasion, using the appellant’s card, from Video Ezy at Mayfield on 31 December 2002 for a period of one week. CM agreed in cross-examination that he would not have gone to school the following day (it being school holidays), and that the offence the subject of Count 1 on the indictment could not have occurred after the act of fellatio described by CM as “the last time”, if in fact it was “the first time”. In response to the question "it's not possible is it that the first time that he sucked your penis could have happened on 13 January 2003" CM said "I didn't say that". CM’s evidence generally was that he had difficulty remembering dates and the order in which the sexual activities with the appellant occurred.

17 Count 3 on the indictment charged an act of indecency towards CM between 1 November 2002 and 22 January 2003 (that is, the whole time the appellant occupied the home). CM described this event as occurring during the school holidays when the appellant was babysitting him while his father was at the doctor with Ms L. According to CM at trial, he was wearing his pyjama pants and a singlet. He had gone into the bedroom to ask the appellant about lunch, when the appellant picked up a mirror, pulled his tracksuit pants down, and masturbated in CM’s presence. CM said that the appellant ejaculated and that a portion of the appellant's sperm fell on CM's singlet. CM said that the appellant put the mirror down and chased CM out of the room. However, in the course of his interview (Ex A), CM said that some of the appellant’s sperm went onto his singlet while the appellant was chasing him, holding the mirror. These discrepancies and CM’s account in the interview of the approximate date of this event were thoroughly explored in cross-examination.

18 CM originally said in the interview that the “mirror incident” occurred about three and a half or four months ago, that is, in about December 2002. He also said that he thought it was either at the end of the term 3 holidays at school or in the Christmas holidays. Still later, he said it was not the Christmas holidays but the term 3 holidays, although he “didn’t have a clue” what month that would be. CM associated that holiday with a promised trip to Blackbutt Reserve which placed the incident in August and outside the relevant period. CM agreed that when he was trying to remember the times these events occurred, he was largely guessing but he was not lying.

19 CM found the singlet when the family were about to move house and gave it to his father. GM said that he noticed a stain at the top of the singlet and that the singlet appeared to be unwashed. It was given to police on 28 March 2003. Forensic testing failed to find any trace of semen.

20 Count 4 alleged an act of sexual intercourse constituted by the insertion of the appellant’s finger into CM’s anus on or about 11 January 2003. In the interview (Ex C), CM associated this incident with an occasion when he and the appellant were in the bedroom watching a video they had hired from Video Ezy at Mayfield. The video was about a boy and his mother and their encounter with dragons, leading to the mother’s death. It was a new release for overnight hire only. Other evidence at trial established that this movie, “Rain of Fire”, had been hired on 11 January 2003.

21 CM said in the interview that he and the appellant were sitting on his bed watching the movie, when CM started falling asleep. CM woke up because he could feel the appellant “stick his finger up my bottom [and] it felt like … you were sitting on a big pin or something”. CM told the appellant to go away. The appellant went and lay on his bed facing the wall and went to sleep. CM thought it was a Friday night because his father and Ms L normally went to the club on Friday night. He thought it was "mid last year", halfway through July, and that he had attended school that day. CM also said that on this occasion he and the appellant hired a number of other videos, including “Beautician and the Beast”, “Big Fat Liar” and “Poltergeist”. CM said that he watched “Beautician and the Beast” the next day, being a Saturday, about lunchtime.

22 CM confirmed in the course of cross-examination that he placed this incident in about July and that he had gone to school that day and had played sport. He said that he was not guessing and that his answers in the course of the interview were accurate. He also confirmed that he watched “Beautician and the Beast” the day after this incident.

23 Count 5 charged an indecent assault committed between the 31 December 2002 and 31 January 2003. In the course of his interview (Ex C), CM said that the appellant had come over to his bed in the morning whilst CM was still asleep and had started sucking CM's neck. CM was woken up by the feeling of the appellant's mouth on both sides of his neck. CM got up and saw that there were two red marks on his neck. Evidence from Ms L’s ex-husband and CM's stepbrother confirmed that during the course of a car journey to the chemist with CM the next day, the latter had asked CM how the marks came to be on his neck. CM replied that he had received them from his girlfriend at school.

24 Count 6 charged an indecent assault between 1 November 2002 and 22 January 2003. This incident was described by CM in the interview (Ex C) as an occasion when the appellant was sucking CM's penis. CM described the appellant putting his hand down CM’s pants and fondling CM's penis. He said that it occurred at night-time after dinner and thought that it happened in August "because a couple of days, a week later, [Ms L] said it was Justin's birthday and Justin's birthday is in August". CM also described in the interview a trip to Blackbutt Reserve which also took place in August, with which he associated this incident. In cross-examination, CM was asked whether he thought the incident happened in August or some other month, to which CM replied "no I'm pretty sure it was in August." CM also agreed in cross-examination that it was not correct that the appellant sucked CM's penis on the occasion that the appellant fondled his penis.

25 The records of Video Ezy in Mayfield established that a number of weekly movies were hired by the appellant on 31 December 2002. They were “Big Fat Liar”, “Beautician and the Beast”, “Poltergeist”, “Snow Dogs”, “101 Dalmatians”, “Monkey Trouble”, “Mary Poppins”, “Code of Honour” and “It”. “Rain of Fire” was hired on 11 January 2003 for one night only.

26 The appellant did not give evidence at trial. In the course of his interview with police, the appellant denied all of the allegations made against him by CM and said that he never touched him in that way. The appellant acknowledged that he watched a variety of video movies, including pornographic ones and that he would sometimes watch those movies in his room while he was in bed masturbating with oil. He said that CM could have been in the room but was usually asleep. The appellant agreed that there had been occasions when he had ejaculated onto a mirror and that he may have done this while living at Tighes Hill. He also agreed that he had hired a number of videos from Video Ezy at Mayfield. The appellant said that he had left the house because of an argument with Ms L, that Ms L had asked the appellant to sleep with her, that the appellant had rejected her and that "basically this could be the comeback for it." That proposition was put to Ms L in cross-examination and denied by her.

The Grounds of Appeal

The Convictions on Counts 1 and 3 are Unreasonable

27 The appellant's argument on this ground is based upon the proposition that the verdicts are inconsistent and that this Court would not therefore be satisfied upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each of Count 1 and Count 3 : M v The Queen (1994) 181 CLR 487. In addition, the appellant submits that the evidence relating to the broadcast of the SBS programs made time of the essence in respect of Count 1 and that CM’s account of the “mirror incident” was internally inconsistent and inherently unreliable.

28 The principles which guide this Court relating to inconsistent verdicts are helpfully summarised in R v Mosegaard [2005] NSWCCA 361 by McClellan CJ at CL at pars 99 to 105 :-

99 The difficulties raised when a jury returns possibly inconsistent verdicts were authoritatively considered by this Court in R v Markuleski (2001) 52 NSWLR 82. That decision followed problems which had emerged in this Court since the judgment of the High Court in Queen v Jones (1997) 191 CLR 439 and the Court sat as a bench of five to resolve the differences.

100 The fundamental issue addressed by the Court of Appeal in Markuleski was whether in a “word against word” case a mixture of acquittals and convictions cannot be sustained unless the appeal court can detect a relevant difference in the quality of the complainant’s evidence. This had been the approach taken in a number of earlier decisions R v RAT (2000) 111 A Crim R 360; R v Barnett [2000] NSWCCA 283; R v Carbone [2000] NSWCCA 387; R v Dixon [2001] NSWCCA 39 and R v S [2001] NSWCCA 204.

101 Spigelman CJ concluded that the approach taken in these cases was not consistent with the High Court’s decision in Jones . His Honour recognised that there may be many reasons which explain why a jury has returned what on their face appear to be inconsistent verdicts not all of which may be apparent to an appeal court. Importantly they include the fact that the jury may have recognised subtle differences in the way the evidence was given which may not be apparent from the transcript. The task for an appeal court is to examine whether the evidence available on the counts in respect of which a jury brings in a conviction, including the credibility of the complainant, has been undermined by an acquittal on any other count.

102 One of the decisions called up for review in Markuleski was that of Wood CJ at CL in R v Carbone . In Markuleski Wood CJ at CL indicated that with the benefit of a comprehensive review of the decisions he had concluded that the line of cases in which it had been held that the rejection by a jury of a complainant’s evidence in relation to some counts involved a fatal diminution in that witnesses’ overall credit had advanced a principle that was “altogether too rigid” [205].

103 The importance of the role of a jury in the resolution of the relevant issues has been emphasised on many occasions. In Osland v The Queen (1998) 197 CLR 316 McHugh J said at 358, para 120-122:

“When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory.

In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues and the directions which the jury were given. …. An examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues evidence and directions may show that apparent inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury.”

104 Spigelman CJ referred to the Queen v Farrell (1998) 194 CLR 286 as an example of how a closer scrutiny of seemingly inconsistent verdicts can transpire to be consistent, although he cautioned that it does not follow that unless “there is some relevant difference in the quality of the complainant’s evidence” the convictions must be set aside [65]. The critical issue is whether in the circumstances of the case, the complainant, on matters of substance, was other than a witness of truth [94].

105 Wood CJ at CL acknowledged that seemingly inconsistent verdicts are often explicable by the germs of doubt as to a complainant’s “ reliability of their recollection or their full awareness of the facts, without in any way reflecting upon their veracity or honesty ” [216].

29 McClellan CJ at CL’s formulation of “the critical issue” accords with Spigelman CJ’s analysis of Jones in Markuleski, that is, the circumstances of the case are central to a consideration of the jury’s acceptance of the veracity of the complainant on matters of substance. In Markuleski, Spigelman CJ explored a number of features of Jones which reinforce this approach. Spigelman CJ noted that there was nothing in the judgments in Jones that cast any doubt on the capacity or validity of a jury accepting a witness's evidence in one respect, whilst retaining a reasonable doubt about the commission of offences in respect of which that same witness is the only substantive witness.

30 The importance of the facts of the particular case to the resolution of the question whether it was open to the jury to accept the complainant's evidence beyond reasonable doubt in respect of some charges, whilst apparently failing to be satisfied to that standard in respect of other charges, was illustrated by Jones itself. In Jones there was a complete absence of evidence capable of supporting the complainant’s account, there was a four year delay between the offences and complaint, there was a lack of apparent difference in the quality of the complainant's evidence as between the different incidents and contradictory evidence was available with respect to some, but not all, of the offences. In those circumstances, the High Court held that there was nothing to differentiate the complainant’s evidence as between the two counts upon which Jones was convicted and the count upon which he was acquitted.

31 I turn then to an examination of the issues and directions to the jury in the appellant’s case, having regard to the evidence summarised above. It should be noted at the outset that CM was almost 10 years old (born 25 February 1993) at the time of the alleged offences, that the interviews took place 2 months after the matters first came to notice and that he gave evidence 18 months after that. The alleged offences all took place over the two month period that the appellant stayed at Tighes Hill. That two month period largely co-incided with the Christmas school holidays. It was not surprising that he was unable to fix the date of particular offences, particularly where the charges were representative of numerous occasions over that two months when the appellant was said to have engaged in acts of fellatio and acts of indecency towards CM. These other occasions were the subject of contextual evidence directions about which no complaint is now made.

32 The Crown opened to the jury on the basis that CM had “a poor memory for specific dates” and that “where possible, the Crown [would] lead other evidence from other witnesses to help fix the dates upon which the incidents are alleged to have occurred.” It is apparent that the Crown particularised the dates of Counts 4 and 7 by referring to the account given by CM in the interviews of the videos he and the appellant were watching at the time these alleged assaults took place and the records obtained through Video Ezy at Mayfield. Count 1 was particularised by reference to a specific episode of “South Park” and an episode of “Quads” on SBS television which CM described in some detail. Counts 3 and 6 were framed to extend over the period that the appellant occupied CM’s room. Count 5 was framed to cover January 2003. Given the vagaries of CM’s references to months of the year, school days and days of the week, his reliability was always going to loom large in the trial. The interviews provided ample material with which to attack CM’s reliability in that regard and the cross-examination over approximately one and a half days took full advantage of it.

33 Defence counsel submitted in his closing address that the jury would return verdicts of not guilty on all counts “because [the jury] could not be satisfied beyond a reasonable doubt of what [CM said] …. because he’s just plainly not told .. the truth. He [had not] been consistent, and even if [the jury thought] that he was truthful, he’s not reliable.” Elsewhere in that address, CM was represented as a young boy who could be “moulded” to give false evidence, most likely at the hands of GM and Ms L, both of whom were said to be lying in the course of their evidence. Defence counsel’s address concentrated to a considerable extent on the manifest inaccuracies and inconsistencies in CM’s evidence.

34 Both counsel referred to the need to scrutinise CM’s evidence carefully. The trial judge’s directions to the jury on their approach to CM’s evidence included the following :-

You are free to accept all of a witnesses testimony or you may reject it all or, if you think it is appropriate, you may accept parts and reject other parts. Indeed, in this case the Crown asks you to do that in relation to the evidence of the complainant CM because the Crown concedes that he is unreliable in relation to dates. But the Crown says, and I will deal with the Crown's argument a little later, that you would find him honest and accurate in relation to the actual events that he describes which go to make up these counts in the indictment. (SU 4)

You have to consider each of the counts separately in relation to the evidence that applies to it, but if you entertained a doubt as to CM's credibility in respect of any one of the counts on the indictment you would have to bear that in mind when you came to consider his evidence in relation to the other counts. (SU 11)

CM is the only person who can tell you what happened on these particular occasions. It is therefore very important that you scrutinise his evidence with great care. The reason that that direction is given you might think only accords with common sense. He is the only person who can tell you what happened and it follows that before you could return a verdict of guilty in respect of any of these counts you would have to scrutinise his evidence with great care.

However the Crown says that Exhibit J., the letter allegedly written by the accused, to a significant extent, corroborates CM's evidence. The Crown says that you would have no difficulty in coming to the conclusion that that letter was written by the accused. ………………………………………………………

The Crown says that if you accept that to be the case it is open to you to find that the letter was an expression of sexual interest in CM and that is probative of the nature of the relationship between the accused and CM, at least as the accused perceived it to be; an inappropriate sexual relationship, the Crown would say. To that extent, the Crown says it corroborates the testimony of the complainant.

You would be entitled to treat the letter in that way if you found that it was written by the accused, if you were satisfied of that beyond reasonable doubt and if you were satisfied beyond reasonable doubt that the person referred to there in the letter was the complainant. You are also entitled to regard it as evidence of a sexual interest by the accused in the complainant. (SU 15-17)

Further, when you come to consider the letter, Exhibit J., whilst you are entitled to use it in the way in which the Crown suggests and in the way in which I have told you you could use it, and whether you do or not is a matter for you, it is certainly not an admission of any counts in the indictment and it cannot be used in that way. (SU 21)

35 There was no application for any re-directions by defence counsel. To the extent that the jury were directed that Ex J could be used by them to conclude that the appellant harboured a sexual interest in CM, and the evidence established that the appellant admitted that he may have masturbated onto a mirror whilst living at Tighes Hill, this was not a “word against word” case. The demonstrated contradictions and inconsistencies in CM’s evidence were almost wholly directed to the circumstances surrounding the sexual acts and to chronology. It was open to the jury to accept CM as a witness of truth on matters of substance, that is, that the appellant had engaged in sexual activity with and towards CM. The appellant’s counsel at trial acknowledged as much.

36 The very real problem confronting the jury was that which was openly recognised by the Crown and crystallised by the cross-examination, namely, CM’s reliability in terms of the occurrence of the offences at the times particularised in the indictment. In particular, given the dates specified in Counts 1 and 7, and CM’s contradictory evidence as to which was the first and last time, the Crown was driven to submit to the jury during the closing address that the jury “must be satisfied beyond reasonable doubt that the two acts of fellatio on the indictment actually occurred during the dates on the indictment, but [the jury could] take CM's evidence of other occasions into account when assessing his accuracy on fixing the exact times in the sequence of those two counts of fellatio, that it is a background context that there was a sequence of occasions of fellatio, not all of which [were] charged.”

37 It is convenient at this point to deal with the submission that time was made of the essence in respect of Count 1. The appellant asserts that the evidence of the broadcast of the SBS programs, in and of itself, made time of the essence on Count 1, relying upon R v Cox [1999] NSWCCA 62, R v Hughes [2000] NSWCCA 3 and R v VHP NSWCCA (unreported) 17 June 1997. If that is so, according to the appellant, it would have been “prudent” for the trial judge to have directed the jury that it must be satisfied beyond reasonable doubt that the offence occurred on 13 January 2003. No such direction was given, nor was one requested, no doubt because counsel at trial did not regard the date as anything more than a particular, albeit a particular of some moment for the purposes of his cross-examination on the subject of the “first” and “last” time.

38 In Cox, the allegations against the accused related to events 20 years ago. Integral to the commission of the third count on the indictment was the description by the complainant of the vehicle in which the offence occurred. The accused introduced evidence to establish that the vehicle as described by the complainant was not in his possession at that time. As a result of the evidence, defence counsel sought and received the benefit of a direction that the Crown was required to prove beyond reasonable doubt that the offences occurred within a specified time. The Crown acceded to that request.

39 In VHP, the accused had provided an alibi for the date of the alleged offence. The trial was conducted on the basis that the complainant was specific as to the date of the offence even though the count on indictment was expressed by a range of dates. In Hughes, the conduct of the trial made time of the essence. The allegations against the accused were 20 years old. The accused produced evidence with respect to the purchase of the grocery shop in 1981, in which the complainant alleged the offences had occurred in 1979.

40 The appellant's trial by way of contrast was not conducted on the basis that time was of the essence. The appellant's defence was at all times that the offences did not happen; there was no attempt to establish an alibi, and no evidentiary foundation was laid, such as in Hughes, that might point to the impossibility of Count 1 at a particular time. At no stage did CM specify a date or a month in relation to Count 1. His evidence centred on the nature and content of the TV programmes being broadcast on the night of the alleged offence. The same is not true of Count 7 (see below).

41 The appellant's submission was that the evidence in relation to Count 7 proved Count 1 to be impossible. This proposition was said to follow from CM's acknowledgement that the “last time” could not have in fact occurred before the “first time”. I do not agree that the jury was necessarily forced to this conclusion. The fact that CM may have been wrong as to which of Count 1 and Count 7 occurred first in time does not prove the impossibility of Count 1. It may prove no more than that CM was mistaken as to the order of these events. Count 1 and Count 7 were largely identical insofar as they both referred to fellatio whilst CM was lying in his bed at night wearing pyjamas and both events were alleged to have occurred within two weeks.

42 In the course of their deliberations, the jury requested and were given the transcript of the cross-examination on Count 1. All of the matters relied upon by the appellant in this Court, including what were said to be internal inconsistencies in CM’s account of Count 1, were highlighted by that cross-examination and were capable of resolution by the jury in the exercise of their fact-finding function. The jury could not have been under any misapprehension as to the issues before them on Counts 1 and 7. In my view, the jury’s verdict on Count 1 reflects a finding that CM was a witness of truth as to the commission of an act of fellatio, that CM was mistaken as to which of Counts 1 and 7 was the “first” time, and that the uncontroverted evidence of the broadcast of the SBS programmes, which were described in relevant detail by CM, established with sufficient reliability the occurrence of that event on 13 January 2003.

43 The appellant’s acquittal on Count 7 was equally logically explicable by the fact that CM’s account in the interview (Ex H) referred to “South Park”, “Beautician and the Beast”, “Big Fat Liar”, “Mary Poppins”, “Snow Dogs” and “that dragon one” in the context of that act of fellatio occurring on a Monday night, before a school day. CM said that this event occurred before the Christmas holidays in November. The objective evidence of the hire of those videos for one week from 31 December 2002 and for one night in January was clearly reliable. The Crown at trial submitted to the jury that they must be satisfied beyond reasonable doubt that Count 7 occurred during the dates nominated on the indictment. The jury carried that submission into effect.

44 Before turning to a consideration of the verdicts on Counts 3, 4 and 6, the appellant’s acquittal on Count 5 can be readily explained by a failure on the part of the jury to be satisfied beyond reasonable doubt of the indecency of the relevant act, namely, sucking CM’s neck. It is in my view more than arguable that such behaviour might not offend the standards of decency of ordinary men and women in the appellant’s community.

45 CM’s reliability as to dates with respect to Count 3 was also doubtful at best. There was no dispute that, if the assaults occurred, they occurred while the appellant was living at Tighes Hill. CM’s frank concession that he “didn’t have a clue” what month the “mirror incident” occurred, and at one point, that he was largely “guessing” what month it was, might be thought sufficient to call into question the jury’s verdict of guilty on this count.

46 However, the “mirror incident” stood apart from other acts of masturbation by the appellant described by CM. The jury were entitled to conclude that if the appellant had not engaged in that act in CM’s presence, consistent with his denials in the record of interview (Ex L, Q 158), CM’s knowledge of this unusual practice could not be explained, unless CM was telling the truth. The appellant’s admission that he may have masturbated onto a mirror while living at Tighes Hill and that it was “something weird that [he] picked up” (Q 429) confirmed CM’s veracity on that matter of substance.

47 The factual discrepancies as to whether the appellant put down the mirror and then chased CM or chased CM while holding the mirror and masturbating, were not so critical that they render the conviction unsafe. They did not go to the heart of the allegation, that is, whether an event meeting CM’s description occurred. Nor does the absence of forensic evidence from the analysis of CM’s singlet significantly undermine CM’s credibility, in circumstances where the singlet did not come into the possession of police until two months after the appellant left the house and the conditions under which it was stored between those dates was unknown. I do not regard the jury’s verdict on this count as unreasonable.

48 CM’s evidence on Count 4, on the other hand, could not be reconciled with the specific date (11 January 2003) relating to that count on the indictment. CM placed this event on a Friday in July and confirmed that he was being accurate when he described going to school that day, playing sport and watching “Beautician and the Beast” the next day. All of the videos CM referred to, in the context of this count, were either hired for one week from 31 December 2002 or for one night (11 January 2003). Accepting that CM was an honest witness and that the offence could not have been committed by the appellant in July 2002, the jury was nonetheless faced with CM’s general unreliability as to the time of its commission. The jury could not have been satisfied beyond reasonable doubt that this event occurred on 11 January 2003, as the Crown had charged.

49 Count 6 suffered from the same underlying unreliability as to time. CM said that he was “pretty sure” that this event happened in August. There was nothing in the surrounding circumstances of this event as described by CM which provided any objective evidence of when it had taken place. In fact, the only additional detail to CM’s description of this assault, that the appellant was sucking his penis at the time he was fondling him, was conceded by CM under cross-examination to be wrong.

50 In summary, the jury’s verdicts are readily understandable and logical when one has regard to the circumstances of the trial. The jury accepted CM as a witness of truth, whose reliability as to dates, times and the order of events was suspect. The occasion of Count 1 was supported by reliable objective evidence in addition to CM’s evidence. Count 3 was confirmed by the appellant’s responses in his interview with police. The remainder of the counts were either of a relatively trivial nature (Count 5) or their commission on the dates set out in the indictment was dependent solely upon CM’s evidence. I would reject this ground of appeal.

The Crown’s Closing Address Caused a Miscarriage of Justice that was Not Cured by Directions

51 In the course of the Crown prosecutor’s closing address, the following submissions were made :-

It may be argued before you that because he has been demonstrated to be inaccurate as to days, dates and contextual events such as what video he watched the next day, that he is therefore inaccurate as to whether the accused fondled or sucked his penis etc. The Crown says you wouldn't necessarily accept that.
C’s honesty as a witness, however, has never seriously being challenged in this trial before you. It hasn't seriously been pursued in cross-examination that either he was prepared to fabricate these allegations or lie, or that he dreamt them up through a vivid imagination or waking to consciousness that some of these things occurred. Those things really haven't been pursued. It's just his accuracy as a witness.

52 Except for one suggestion to CM (which was denied) in cross-examination that in the course of describing the “mirror incident”, he had made up answers “as it pleased” him, the only attack made upon CM was that each of the events he described did not happen. There is a subtle distinction (recognised by s 108 of the Evidence Act 1995) between putting squarely to a witness that he or she is lying about the substance of his/her evidence and putting a proposition to that witness that certain events did not take place. The defence case at trial was that CM was the unwitting tool of Ms L, that is, that his allegations were the product of suggestion. It was variously put to CM that Ms L and GM offered suggestions about what to put on CM’s “list”, what to say to police and that Ms L wrote out the list and asked CM to learn it. Whilst defence counsel did invite the jury in his closing address to conclude that CM was not telling the truth, the Crown prosecutor was, strictly speaking, correct in making the general observation that there had been no serious challenge to CM’s honesty in cross-examination.

53 The prosecutor then proceeded to outline the evidence in relation to each count on the indictment. Having done so, the prosecutor said :-

What are the factors that you can use to assess whether he is reliable as a witness, that is whether he's honest and accurate? Firstly has he been questioned about any motive that he may have to wish any harm to the accused? Did he appear to elaborate upon any matters that would be harmful towards the accused? The Crown says no, there is no example of that.
A general submission followed pointing to CM's demeanour, the language he used to describe the various incidents and CM's willingness to concede when he was mistaken or wrong. The prosecutor then referred to Exhibit J and the appellant's answers in the record of interview.

[The appellant] also suggested that [Ms L] was sexually interested in him and that she'd delivered two letters propositioning him sexually, asking him to have sex with her, that he'd knocked her back and that C’s allegations may somehow be some sort of comeback by [Ms L], that she'd dictated the list of things to complain about and other things.

Those are the sorts of things that the accused was prepared to say about other people in relation to these incidents and how these incidents arose. But there is no evidence to back up any of these assertions that one, [Ms L] had a motive to frame the accused or that the allegations have in fact been concocted or fabricated because that was never really put to C, that they were concocted. The Crown says that CM has no motive to lie, you should accept him as a witness of truth and prefer his evidence to the accused’s version, it's more reliable. The Crown says accept what C says about these events and reject what the accused says where they are not consistent and that means rejecting his denials that any of these events occurred at all and his denial that he had those sorts of feelings towards C.

54 The appellant submits that these aspects of the closing address impermissibly introduced the notion of a "motive to lie”, thereby suggesting that CM was a reliable witness in the absence of evidence of a motive to lie, that CM was reliable because it was never put to CM that the allegations were fabricated or concocted, and that in order to "seriously .. challenge" CM it was necessary to put to CM that he had been fabricating, concocting and fantasising. In addition, the appellant complains of the invitation to "prefer [CM's] evidence to the accused’s version". It is said that, to the extent that directions were given addressing these issues, they were not capable of curing the prejudice caused to the appellant by the prosecutor's address. Before turning to these directions, it should be observed that no redirections were sought and that Rule 4 applies.

55 It is “both imprudent and inadvisable” for the Crown to invite the jury to consider the question of motive to lie, “where the question of motive has not been ventilated in the evidence”, because of the attendant risk that the jury may be diverted from correctly applying the onus of proof : R v Smith [2000] NSWCCA 468. It is arguable that the question of motive was ventilated in the evidence, at least insofar as the defence contention was that CM was "coached" by Ms L to make the allegations against the appellant. The Crown prosecutor correctly foreshadowed a submission made by the appellant's counsel at trial that GM and Ms L had lied in the course of their evidence, particularly in relation to the so-called list of complaint, and that they were manipulating CM for their own purposes.

56 The appellant's counsel said, "when those people [GM and Ms L] came to lie to you, …. they were trying to promote some interest and I don't begin to understand what it might be. Is it … that [Ms L] found this “Dear C” letter and thought that she would give to CM some list for him to learn.” Taken together with the appellant's suggestion in the record of interview that Ms L was seeking revenge for the appellant's asserted lack of sexual interest in her, this submission clearly raised the spectre of a motive to lie on the part of Ms L. It was not a motive that could be directly attributed to CM, however it did amount to an explanation offered by the appellant as to why false allegations had been made.

57 In R v Uhrig NSWCCA (unreported) 24 October 1996, Hunt CJ at CL said:-

What this court said in R v F and in R v E. should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case.

There was abundant evidence in the trial of CM’s friendship with the appellant, to the extent that they exhibited a brotherly relationship. CM agreed in cross-examination that he was close to his “mum” at that time. The validity of the proposition that CM would maintain false allegations at the behest of his “mum” (Ms L) stood to be assessed against this background.

58 The trial judge raised the issue with the prosecutor immediately after she had finished the closing address, suggesting that the submission had gone too far. The judge later gave relevant directions in the summing up. Defence counsel made no comment in the course of his own address or after the summing up, indicating satisfaction on his part that the judge’s directions had dealt with the matter adequately in the circumstances of the trial. The judge gave the standard directions on the onus of proof at an early stage in the summing up when explaining the nature of a criminal trial. These were repeated a number of times in the following terms :-

The accused in this case bears no onus. He does not have to prove anything and he does not have to disprove anything. He, like all of us in this courtroom, is presumed to be innocent and that presumption is only displaced if the Crown succeeds in proving one or more of these counts in the indictment to your satisfaction beyond reasonable doubt. (SU pp 5-6)
…………………………………………………………………………..
An accused person may always, by giving evidence or calling other evidence, make a response to a case presented by the Crown by way of an explanation for the whole or parts of the Crown's case, but there is no obligation on him to do so. As I have already pointed out, the Crown bears the onus of proof in this case. The accused has no onus. He does not bear any onus to prove anything or disprove anything. He is presumed to be innocent unless and until you are satisfied beyond reasonable doubt that the Crown has proved one or more of these counts to your satisfaction beyond reasonable doubt.

Although an accused may give evidence or call evidence in relation to the whole or any part of the Crown's case by way of explanation for it or by way of additional matters which he may wish to raise, he may equally elect to give no such explanation or call any evidence in that regard. He is entitled to say nothing and make the Crown prove his guilt.

I direct you as a matter of law that the accused’s silence in court and his election not to call evidence cannot be used against him in any way whatsoever. In particular, his election not to offer an explanation of the whole or any part of the Crown case by giving or calling evidence constitutes no admission on his part. You must not draw any such inference from the fact of him choosing not to give evidence.

Nor must such election be used by you to fill any gaps which you might think exists in the Crown case or to make up for what you might regard as deficiencies or defects in the Crown case. You must not speculate about what he might have said had he given evidence. (SU pp20-21)
…………………………………………………………………………..
The learned Crown advocate did say in her address to you that no questions had been put to the complainant as to any motive he might have to do harm to the accused and suggested to you that no motive had been demonstrated for him to lie. Members of the jury, the direction I give you about that submission is this. The accused does not have to point to any motive. The accused has no onus to prove anything or disprove anything. It is upon the Crown to satisfy you beyond reasonable doubt that on these crucial issues, that is to say the actual events themselves that C describes, that he was an honest and accurate witness. (SU p22)

59 I am not persuaded that the Crown prosecutor’s invitation to the jury to assess CM’s reliability in the terms outlined above was productive of incurable prejudice, nor do I accept the submission that these directions were insufficient to cure any prejudice to the appellant that may have arisen from the prosecutor’s comments. The directions canvassed the lack of any obligation on the appellant to give or call evidence in accordance with Dyers v The Queen (2002) 210 CLR 285. Trial counsel clearly thought they were sufficient. He was well placed to assess whether the directions had the desired effect in all the circumstances of the trial. This aspect of the trial did not assume particular prominence, in the sense that it became a "central theme or issue" : see Smith at [102]. I would refuse leave to rely upon this aspect of the second ground of appeal.

60 Similarly, the Crown prosecutor’s comment to the effect that the jury should “prefer” CM’s version should be placed in context. Earlier in the course of the address, the Crown prosecutor said :-

It is not a choice between …… the two versions because the Crown bears the onus and has to satisfy you on CM's evidence that these events occurred and to a level beyond reasonable doubt. However, the accused’s denials have to be assessed in fairness to him. Consider do they raise a reasonable doubt about whether the Crown has proved on all the evidence that the acts occurred as alleged?

61 A further reference by the Crown prosecutor to Ex J later in the address and the appellant’s denials in his record of interview of any sexual interest in CM potentially raised the use of the appellant’s lies in that regard as consciousness of guilt. No direction on the use of such lies was sought or given. The submission was :-

If you find that you accept that he did in fact write that letter as the Crown suggests you must, then you would find that his answers in his interviews about whether or not he had these sorts of feelings towards CM were not truthful and that they were consciously untruthful. So ask yourselves members of the jury, does the accused have a clear motive to obscure the truth? Does he suggest and offer matters to discredit other Crown witnesses?

62 The underlined portion of that submission clearly invites the jury to regard the appellant’s denials in the record of interview as lies told by the appellant because of a realisation that the truth would implicate him in the commission of the offences. The appellant does not, however, contend that an Edwards direction (Edwards v R (1993) 178 CLR 193) was required, rather that a direction in accordance with Zoneff v The Queen (2000) 200 CLR 234 ought to have been given : see R v Campbell [2005] NSWCCA 132. I doubt whether it is correct to assert that the appellant's counsel at trial overlooked the need for such a direction. The contents of Exhibit J represented a considerable hurdle to the appellant's case at trial. It is conceivable that counsel preferred to avoid any direction as to lies in the record of interview that further focused the jury's attention upon Exhibit J : see Bolus v Regina [2006] NSWCCA 182. Accepting for present purposes that a direction should have been given, and that leave to rely upon this ground should be granted, I am not of the view, for the following reasons, that the failure to give that direction gave rise to a miscarriage of justice.

63 Of considerable relevance is the basis upon which Exhibit J was admitted in the trial and left to the jury. The appellant was due to stand trial on 20 April 2004. The appellant was arraigned on that day and pleaded not guilty before a jury. A number of issues concerning the admissibility of evidence were canvassed in the absence of the jury before the Crown had opened its case. Amongst them was the admissibility of Exhibit J on the basis proposed by the Crown, namely as tendency evidence. The transcript of the proceedings on 20th April 2004 confirm that the appellant's trial counsel conceded that Exhibit J fell within the notion of tendency evidence, but that exception was taken to its admission because of a failure to include it in the terms of a tendency notice which had been served. Accordingly the trial was adjourned. The trial judge's ruling on this issue on 27 April 2004 accepted that Exhibit J constituted tendency evidence or evidence of "guilty passion", that its probative value was not outweighed by its prejudicial effect and that its exclusion was not justified under the exercise of the relevant discretions.

64 As evidence of "guilty passion", that is, the sexual desire or feeling of the appellant for CM, Exhibit J was directly relevant to proof of the offences charged and it bolstered CM's credibility because his version was more likely to be true given the appellant's sexual interest in him : R v AH (1997) 42 NSWLR 702 ; Pfennig v The Queen (1995) 182 CLR 461 ; Qualtieri v Regina [2006] NSWCCA 95 per Howie J. The judge's directions to the jury on the use to which Exhibit J might be put (see par 34) fell short in this regard and were unduly favourable to the appellant. In effect, the jury were only told that they were entitled to treat Exhibit J as an expression of sexual interest in CM and as probative of an inappropriate sexual relationship between the appellant and CM. The jury were not specifically told that Exhibit J was capable of being used towards proof of the offences in the indictment, although it is difficult to envisage how the jury would not have arrived at that conclusion.

65 In these circumstances, the absence of a Zoneff direction, warning the jury not to follow a process of reasoning whereby a demonstrated lie by an accused necessarily amounts to evidence of that accused’s guilt, did not deprive the appellant of a chance of acquittal which was fairly open to him.

66 In my view, there has been no substantial miscarriage of justice : s6(1), Criminal Appeal Act 1912. This ground of appeal fails.

Error in the Admission and Use of the Contents of the “Note of Complaint”

67 The Crown sought to lead from Ms L the contents of the list written by CM and copied by Ms L as evidence of complaint, going to CM's credibility. On 24 August 2004, shortly prior to the empanelling of the jury, there was some discussion between counsel and the Bench on this issue, culminating in a decision by the judge that Ms L was permitted to refresh her memory from the document (MFI 6). Defence counsel expressed his agreement with this course. Nothing was said to indicate that it was permissible for the Crown to lead evidence from CM of the terms of his complaint by allowing CM to refresh his memory from MFI 6.

68 However, that was what in fact occurred when CM came to give his evidence-in-chief following the admission of CM's interviews as exhibits in the trial. No objection was taken by defence counsel at this time or at any other time in the course of the trial. Ms L was asked a series of leading questions about the contents of the document which Ms L said she had given to Constable Taylor. The same leading questions were put to GM without objection. It was conceded by the Crown during the hearing of this appeal that this procedure infringed s 32 of the Evidence Act 1995 in that CM had not been granted leave by the judge in accordance with s 32(2).

69 The evidence in relation to the provenance of the list was consistent insofar as CM, GM and Ms L each asserted that CM had written a list within a matter of days following the first visit by the police to the home. There were unsatisfactory features of the evidence in relation to the existence of one or more lists, whether it was the original or a copy list that was handed to Constable Taylor, and the circumstances surrounding the copying of CM's list by Ms L. These contradictions were explored in some detail in the cross-examination of all four witnesses. More importantly, the cross-examination laid the foundation for submissions by defence counsel to the jury that GM and Ms L had lied about the way in which the list had come into existence, and that the list was in fact composed by Ms L with a view to suggesting to CM that the appellant had committed sexual assaults upon him.

70 Integral to this submission was a comparison between the contents of the list and the detail of the allegations ultimately made by CM. The list referred to the appellant pulling down his pants in front of CM, giving CM three love bites (which CM altered in the course of his evidence to two), sucking CM's penis "a lot" and sticking his finger up CM's bottom. The limited nature of the complaints in the list (there being no reference to the “mirror incident”), and the fact that CM had only said to police when they first came to the home that the appellant had “got some oil and played with himself”, was said to constitute further evidence of CM's unreliability and strengthen the proposition that CM was maintaining false allegations against the appellant that had been suggested to CM by Ms L.

71 The directions given in the course of the summing up on this aspect of the trial were :-

Ms L gave evidence of what she said she saw on a note or, in fact, she said two notes which had been written by CM at some stage after the accused left the premises. That is what lawyers call complaint evidence. It was also referred to in part by CM's father.

The Crown is entitled to lead that evidence as evidence which the Crown says is consistent with someone who has been sexually assaulted, that they would tell someone about it soon afterwards. But that is the very limited basis upon which the Crown leads the evidence.

The evidence itself is hearsay evidence, that is to say, it is not direct from CM's mouth. It is evidence by someone who is telling you what they said they saw. The original document is not available. You heard the evidence in cross-examination from both GM and [Ms L] as to what happened to that note on the one hand and the evidence of the police on the other. So, members of the jury, you would have to treat that evidence of what Ms L and GM said that they saw in that note with some caution. Because it is hearsay evidence, it may be unreliable. (SU p 14-15)

Immediately before the jury retired to consider their verdicts, the judge said:-
[If] you were to accept that evidence it does not amount to corroboration. That is because it is not from a source independent to the complainant. Ultimately it comes from the complainant himself and is relayed to you by GM and Ms L. Of course, it does not provide any evidence as to the truth of the allegations. The Crown simply says that you would accept it and you would accept it as being consistent with the actions of someone such as CM who has been sexually interfered with. (SU p 31)

72 No complaint is now made about the adequacy of these directions. The submission amounts to no more than that the evidence of CM as to the terms of the note was inadmissible and therefore gave rise to the risk of a substantial miscarriage of justice. For my part, I do not see how the repetition of the terms of the note by CM and GM could give rise to a risk of a substantial miscarriage of justice where the judge's directions as to the use to which that evidence might legitimately be put by the jury were wholly unexceptional. In any event, as I have noted, the appellant's counsel at trial made no objections at any stage, no doubt because he wished to exploit the considerable forensic advantage inherent in the evidence of complaint. I would refuse leave to rely upon this ground.

The Conduct of the Trial Contrary to the Requirements of the Evidence (Children) Act 1997

73 This Court's decision in R v NZ (2005) 63 NSWLR 628 ; [2005] NSWCCA 278 was delivered on 17 August 2005, one year after the conclusion of this trial. On the hearing of the appeal, the Crown conceded that the preferred practice in relation to the videotaped evidence of CM as laid down by NZ was not followed, in that the three videotapes recording CM's interviews became exhibits in the trial, were sent to the jury room after it retired to consider its verdicts and the transcripts of the interviews were not withdrawn after their use by the jury as an aide memoir.

74 Prior to CM's evidence in chief, the judge gave the following direction to the jury, which conformed to the requirements of s 14 of the Evidence (Children) Act 1997 :-

The law now provides that when people who are under 16 years of age give evidence, that evidence is to be given in a certain way.

His evidence in chief, that is to say the main part of his evidence, has been recorded on a video recorder, and you will shortly have that played to you.

After that's finished, CM will give evidence from a room in this court through that television monitor, and will answer questions in that way. He won't actually appear in the court room.

Now can I say this about that, that is absolutely standard operating procedure now, and is required by the law in every case where a person under 16 gives evidence.

His evidence is to be given no greater or lesser weight because of the way in which it is given, and you assess his evidence in the same way as you would assess the evidence of any other witness.
When he is in the room in the court, he is entitled to have with him a support person, the law provides for that. Again that’s standard operating procedure. But in particular, no inference adverse to the accused must be drawn from the way in which his evidence will be given.

75 A short time later, as the first transcript was being marked for identification, the judge said :-

Members of the jury, you'll now see the first of the interviews played for you on the screen. I am told as is often the case that the sound quality is not all that good. To that end, you'll be provided with some headphones which will hopefully enhance the quality of the sound. And you've also been given a typewritten transcript of the interview.

But, members of the jury, the transcript is not evidence in the proceedings, and it's not uncommon for there to be differences between what is contained in the transcript and what you perceive on the video. If there are any such differences, it's the evidence that is contained in the video that is the proper evidence in the case. The transcript is only given to you to help to assist you to follow the interview as it goes along.

76 The latter direction in relation to the transcripts was repeated in the course of the summing up at page 13. The former direction was not repeated in the summing up, however it is not necessary that it be repeated. See R v DBG (2002) 133 A Crim R 227 ; [2002] NSWCCA 328.

77 The following direction was also given at page 13 of the summing up :-

You will have with you, of course, those videotapes and transcripts but you do not have with you the cross-examination of CM, and it is important, of course, when you go through the evidence in the case that you not only take into account the examination in chief, that is to say the examination conducted by the learned Crown advocate or, in the case of CM, given to the DOCS officer, but you also take into account the cross-examination.

This direction partly echoes an aspect of the majority judgment in NZ , namely that the preferred procedure, if the tape is to be replayed or the transcript of the tape provided to the jury, is a caution by the judge to the jury about their approach to that evidence when the tape is being replayed to them, to the effect that because they are hearing the evidence in chief of the complainant a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case.

78 As Howie J makes clear in NZ and R v RTGS [2005] NSWCCA 293, the fact that the tape of the complainant’s interview has been sent to the jury room during their deliberations does not necessarily resolve the question whether an irregularity in the conduct of the trial has occurred, such that the verdict of the jury must be set aside. The question that arises, where the preferred procedure has not been adopted, is whether there has been a miscarriage of justice.

79 No objection was taken by trial counsel to the admission of the videotapes or the provision of transcripts. This Court has not been provided with an affidavit by trial counsel explaining why it was that such an objection was not taken. The jury retired to consider its verdicts shortly before 11 a.m. and returned with verdicts at 4:11 p.m. Allowing for the fact that morning tea and lunch may well have interrupted the jury's deliberations, the need to consider the evidence and arrive at verdicts in relation to six counts on the indictment and the fact that the videotapes took a total of approximately 3 hours to replay, I consider it unlikely that the jury in fact replayed all three videotapes.

80 The evidence in relation to Counts 1 and 3 was on the same videotape (Ex A) which takes approximately 54 minutes to play. All of the videotapes suffered from poor sound quality. Whilst the jury had headphones in the courtroom, the evidence is silent as to whether these were available to the jury during its deliberations. It is likely, in my view, that the jury referred to the transcripts of the interviews in the jury room, since it is apparent that both the Crown prosecutor and defence counsel relied upon those transcripts for the purposes of their respective addresses.

81 Neither the Crown prosecutor’s address to the jury nor trial counsel's address dwelt to any extent upon the videos themselves. The only reference in the course of the Crown's address was to CM's demeanour in the interviews, namely "you will recall that he was most uncomfortable when recounting these events at the beginning of the second interview, he said, ‘this is too difficult to talk about’. This didn't improve over the time of his interviews, he started to disappear into his jumper and you could see that he was breaking pencils and fidgeting constantly, and at that stage he was not even aware that those interviews would be used as evidence in court." A viewing of the videos confirms this assessment of CM's general presentation. Had the jury replayed one or more of the videos, I doubt that CM’s somewhat diffident responses were capable of making such an impression upon the jury that his evidence-in-chief was unduly emphasised.

82 Defence counsel once referred to the videos in these terms, "if you need to look at any of CM’s interviews you are most welcome to do so. If you need to hear my cross-examination of CM that can be arranged." Otherwise, the entirety of defence counsel's address concentrated upon CM's cross-examination to the extent that CM’s answers differed to a greater or lesser extent from his answers as recorded in the interviews. The trial judge made no comment and gave no direction to the jury about the videotapes in the summing up.

83 The provision of the transcripts of the interviews to the jury and the jury’s request during their deliberations for the transcript of the cross-examination of CM on Count 1 are further factors relevant to the question whether a miscarriage of justice has arisen. The circumstances of this trial accord with the observations of the majority in NZ :-

218 Because the jury had the transcript of the videotape and because the image on the videotape lacks any obvious power to influence the jury in whether they accepted the complainant or not, we do not believe that the irregularity in providing to the jury the videotape of the complainant’s evidence, if there was an irregularity, could have brought about a miscarriage of justice in the circumstances of this particular case. It should be recalled that there was no defence case, in that the appellant did not give, or call, evidence. This will not necessarily be decisive on the question of whether a miscarriage of justice occurred by the procedure adopted with the videotape but it is a relevant matter to be taken into account.

219 Perhaps most importantly in this case the jury themselves requested that they be provided with a transcript of the cross-examination of the complainant during the course of their deliberations. This suggests to us that, rather than there being a risk that the jury would place too much weight upon the evidence of the complainant because they had been provided with the videotape and the transcript, the jury were considering that material in the light of the attack made upon it by defence counsel and wanted the means to remind themselves of the content of that attack.

84 For these reasons, I am not persuaded that the departure from the procedure endorsed in NZ gave rise to a miscarriage of justice in the circumstances of this trial. This ground of appeal fails.

85 I would dismiss the appeal.

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