New South Wales Court of Criminal Appeal CITATION : Regina v D W H [1999] NSWCCA 255 FILE NUMBER(S) : CCA 60480/98 HEARING DATE(S) : 4 August 1999 JUDGMENT DATE : 24 August 1999 PARTIES : The Crown D W H JUDGMENT OF : Newman J at 1; Sperling J at 2; Greg James J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0043 LOWER COURT JUDICIAL OFFICER : Nader DCJ COUNSEL : R D Ellis (Crown) R Burgess (App) SOLICITORS : S E O'Connor (Crown) T A Murphy (App) CATCHWORDS : Sexual offence; complaint; prior consistent statement; when admissible exception to hearsay rule; when admissible on credibility; when leave necessary; criteria for grant of leave and exercise of discretion; leave not considered; counts of separate events; complaint on some charges not fresh; new trial ordered ACTS CITED : Evidence Act 1995 Criminal Appeal Act 1912 Graham (1998) 157 ALR 404 Gillard [1999] NSWCCA 21 CASES CITED: Whitmore [1999] NSWCCA 247 RNS [1999] NSWCCA 122 Papakosmos [1999] HCA 37 DECISION : Appeal upheld IN THE COURT OF CRIMINAL APPEAL No. 60480 of 1998 CORAM: NEWMAN , J. SPERLING, J. GREG JAMES, J. TUESDAY 24 AUGUST 1999 REGINA v. DWH JUDGMENT 1 NEWMAN, J: I have read the judgment of Greg James, J. and I agree with both the reasons he gives and the orders he proposes. IN THE COURT OF CRIMINAL APPEAL No. 60480 of 1998 CORAM: NEWMAN , J. SPERLING, J. GREG JAMES, J. TUESDAY 24 AUGUST 1999 REGINA v. DWH JUDGMENT 2 SPERLING, J: I agree with the orders proposed by Greg James, J. and with his reasons. IN THE COURT OF CRIMINAL APPEAL No. 60480 of 1998 CORAM: NEWMAN , J. SPERLING, J. GREG JAMES, J. TUESDAY 24 AUGUST 1999 REGINA v. DWH JUDGMENT 3 GREG JAMES, J: The appellant was convicted of five offences following his plea of not guilty and his trial before his Honour Judge Nader, QC. in the District Court on Newcastle on 29 July 1998. 4 The charges were:- "1. Between 1 January 1996 and 30 October 1996 at [ ] in the State of New South Wales did have sexual intercourse with [the complainant] knowing she was not consenting, she being under the age of 16 years, namely 12 years of age. 2. Between 1 June 1996 and 30 October 1996 at [ ] the State of New South Wales did have sexual intercourse with [the complainant] knowing she was not consenting, she being under the age of 16 years, namely 12 years of age. 3. Between 1 August 1996 and 31 August 1996 at [ ] in the State of New South Wales did have sexual intercourse with [the complainant] knowing she was not consenting, she being under the age of 16 years, namely 12 years of age. 4. Between 1 September 1996 and 30 September 1996 at [ ] in the State of New South Wales did assault [the complainant]. 5. On 30 October 1996 at [ ] in the State of New South Wales did assault [the complainant] and that he at the time of such assault did commit an act of indecency on [the complainant], she being under the age of 16 years, namely 12 years of age." 5 On 13 August 1998, the appellant was sentenced as follows:- "Count 1 - fixed term of penal servitude for five years commencing on 23 July 1998 and expiring on 22 July 2003. Count 2 - fixed term of penal servitude for three years commencing on 23 July 1998 and expiring on 22 July 2003. Count 3 - minimum term of penal servitude for one years and six months commencing on 23 July 2003 and expiring on 22 January 2005. Additional term of three years six months commencing on 23 January 2005 and expiring on 22 July 2008. Count 4 - fixed term of imprisonment for six months commencing on 23 July 1998 and expiring on 21 January 1999. Count 5 - fixed term of imprisonment for two years commencing on 23 July 1998 and expiring on 2 July 2000." 6 The Crown case may be summarised as follows. The appellant, who is the natural father of the complainant, separated from his wife, the complainant's mother, in May 1995. Thereafter, the children of that relationship used to come and stay with the appellant at a flat which he shared with his defacto wife. The offences were alleged to have occurred on those occasions. 7 In respect of count one, the Crown case asserted that the appellant invited the complainant into his room and into his bed where he then removed her pants, starting to kiss her on the mouth and to touch her on the vagina and breasts and had vaginal intercourse with her. 8 In respect of count two, it was alleged that he made her perform fellatio upon him in the kitchen after the other members of the household were asleep. 9 In respect of count three, it was alleged that whilst she was sitting on the couch with the appellant after the other members of the household had gone to bed, he removed her clothing and had anal intercourse with her, causing her considerable pain. 10 In respect of count four, it was alleged that during a minor domestic altercation he punched her to the side of the head and kicked her to the leg causing a bump on the head and a bruise on the knee. 11 In respect of count five, it was alleged that he, in the presence of other of the children, requested her to stay up late and placed his hand inside her underpants, feeling her on the vagina. 12 The charges thus were in respect of particular events. Each of these events were said to have occurred during the period 1 January to 30 October 1996. All but the events alleged in count four were asserted by the Crown to be supported by complaints made on 30 October 1996. The temporal proximity of the particular events to the complaints thus varied from count to count. The events of count one are conceded by the Crown on any version to have occurred within the first three months of 1996. The events in counts two and three appear to have occurred a few months or weeks prior to those in count five, which occurred on 30 October 1996 and about which complaint was made immediately. The Crown relied not only on the fact of the making of complaint but upon the terms. 13 The evidence of complaint came from the complainant, her grandmother and her aunt. The complainant gave evidence that she went to her grandmother on the evening of 30 October 1996 and referred to her father telling her to "stay up late and stuff like that". The grandmother gave evidence that at about 9.15 pm on 30 October 1996 the complainant came to her backdoor wearing a dressing gown and no shoes. She said that, "Dad doesn't want me to go to bed until Mum's gone to bed" and "he's trying it again, trying it again and he hurts me". She took the complainant next door to her son's house and went to the complainant's house where she confronted to the appellant. She said to the appellant that "[the complainant] said that you have been interfering with her again". The appellant denied this. She went back home and spoke to the complainant, asking exactly what happened. The complainant said:- "Mama (sic) he did. He came into my room and told me to wait there until Mum goes to bed." 14 She also said, "and Luke knows too, because he's seen him". That was apparently a reference to the complainant's brother, Luke, and was consistent with his evidence of having seen the complainant in the kitchen on her knees facing the standing appellant at a time when the rest of the family were asleep. Luke referred to the complainant being in this position for some time and having seen the complainant and the appellant kissing. His evidence was clearly corroborative of the complainant's account of the events giving rise to count two. 15 In addition, there was evidence that the complainant's mother had confronted the appellant accusing him of harassing the complainant and further evidence from the complainant's aunt that on 30 October 1996 her mother in law and the complainant came to her house where the complainant was crying and shaking. Whilst at her house, the complainant said to her that the appellant had "kissed her and played with her boobs, fingered her, I can't remember if she said, 'put it in' or 'put his dick in' like that". 16 The terms of the complaints thus relate, but only with a degree of vagueness, to the particular counts. 17 In addition there was medical evidence of the consistency of the condition of the complainant's hymen with the account she had given and evidence of the appellant having immediately after being accused, left his home for a considerable time to wander in the bush. 18 The appellant was interviewed by police on 2 December 1996 and denied the allegations concerning counts one, two, three and five. The appellant admitted the punching and kicking of the complainant. 19 He participated in an ERISP and again denied the allegations of sexual misbehaviour but admitted the punching and that he had been told that he had kicked the complainant. He gave explanations for his whereabouts following 30 October which were capable of being rejected by the jury. 20 In evidence at trial he denied the sexual misconduct allegations and asserted in relation to the assault that he had grabbed the complainant to stop himself from falling and hit her unintentionally. He denied kicking her. 21 The grounds of appeal are as follows:- "1. His Honour erred in failing to consider whether leave should be granted under s.108(3) of the Evidence Act before admitting evidence of complaint in relation to counts one to four and directing the jury this evidence could be used in relation to those counts to bolster the credibility of the complainant. 2. His Honour erred in failing to adequately direct the jury about the significance of delay in complaint. 3. His Honour erred in law in failing to direct the jury as to the use which could be made of evidence that the appellant had, after the complaint by the complainant, wandered around the bush until 15 November 1996." 22 The evidence of complaint was admitted without objection and the trial judge directed the jury in the summing up that the evidence of complaint was not to be treated by them as evidence of the truth of the allegations, but as something which supported the credibility of the complainant as showing consistency. It is clear that, except in relation to count four to which count the complaint evidence did not particularly relate, and count five where the complaint evidence was fresh, the evidence was not shown to be fresh in the memory such as to comply with s.66 of the Evidence Act (Graham v. The Queen (1998) 157 ALR 404) so as to be admitted for the truth of its content. There was no exploration of the basis on which the evidence was tendered to explain the purpose for which it was admitted. Nor was there analysis of the relation of the evidence to any particular count. No voir dire was held to examine the issues of the freshness of the complaint nor did the Crown seek leave to have the evidence admitted on credibility. At no stage did his Honour or either counsel expressly refer to the relevant provisions of the Evidence Act 1995 nor in particular did anyone refer to s.108(3)(b) the application of which might, by leave, have allowed complaint into evidence as a prior consistent statement. Leave might have been granted in the event that it was or would be suggested (expressly or by implication) that the evidence of the witness had been fabricated, reconstructed or was the subject of suggestion. There was no concession of such a suggestion nor was it established that such a suggestion was being or would be made. 23 No reference was made to s.190 of the Act which requires the defendant's informed and advised consent before the requirement of leave might be dispensed with. 24 The trial was conducted before the High Court delivered the judgment in Graham (supra) as had been the trial in Regina v. Gillard [1999] NSWCCA 21 and was the trial in Regina v. Whitmore [1999] NSWCCA 247. 25 As in Graham (supra), Gillard (supra) and Regina v. RNS [1999] NSWCCA 122, the point was not taken at trial, indeed the matter was conducted as though the Evidence Act provisions simply did not apply. There was not even the objection on common law principles made in Whitmore (supra). The jury were not directed as to any particular importance of the complaint evidence as it might have related to each individual charge. Nor was there any suggestion at trial that all the charges were part of some continuing and ongoing course of conduct. 26 In respect of the absence of objection by trial counsel, an affidavit was tendered on the hearing of this appeal. That affidavit discloses attempts by the appellant's solicitor to obtain from trial counsel some explanation of what had occurred at trial. It records that no explanation of any kind has been forthcoming. It is of no assistance. 27 The Crown contends that leave is required pursuant to Rule 4 to argue ground one. The line of cases I refer to in my judgment in Whitmore (supra) establish that, if necessary, leave should be granted, in cases coming to trial prior to the decision in Graham (supra), unless there is good reason to the contrary, eg., where the complaint evidence was introduced by counsel for the accused. 28 Insofar as the evidence was admissible solely on the issue of credibility, it is hardly open to the Crown, on whom lay the onus of obtaining leave under s.108(3)(b) to complain of the absence of objection where s.190 of the Act applies and the Crown is not able to show that the requirement of leave was waived in compliance with that section. For these reasons, and since, as will appear, I consider the evidence is not otherwise admissible, I would grant leave. 29 The Crown now contends that the complaint evidence was admissible pursuant to s.72 as a contemporaneous representations about the complainant's health, feelings, sensation, intentions, knowledge or state of mind. It is contended that the case involved a continuous course of conduct and that immediately following the last episode complaint was made and that therefore the complaint evidence was admissible as referring to all incidents in the asserted course of conduct as being, in all cases, fresh, for the purposes of s.66. It is asserted, on this basis, that the complaint was immediate or contemporaneous. 30 The latter argument entirely disregards the individual charges preferred against the appellant at the trial and the fact that at no point in the trial transcript is it disclosed that the trial was conducted on such a basis or that the admissibility was so considered. Indeed, it appears, by implication, that the trial judge either rejected the evidence as admissible as fresh complaint under s.66 or restricted its use to the credibility purpose only, without hearing the defence. 31 The argument that the evidence was admissible pursuant to s.72 as a contemporaneous representation fails to take into account the necessity to show the relevance of the distressed conduct accompanying complaint to the matter in issue. Such representation, by conduct whether by way of actual speech or observed distress, is plainly relevant to supporting the credibility of the statement then made: see Papakosmos v. The Queen [1999] HCA 37. It could not of its own force amount to evidence capable of supporting, either as a matter of fact or by way of credibility, the witness' account of much earlier events unless related to them by the giving in evidence of the content of the complaints. (See the discussion in Graham (supra) of the utility of later statements as proof of facts.) 32 It might well be that on an appropriate enquiry a court might hold that the evidence of both complaint and distress was admissible after proper application of the criteria required by the Act. But it is to my mind inescapable, for the reasons that I have given in Whitmore (supra), that this trial miscarried, at least procedurally, for want of such enquiry. 33 It was argued that the jury would have implied the making of, and the general terms of the complaint from the fact that the police were brought into the matter and the appellant charged, particularly when they had regard to the form of the questions asked in the record of interview when the applicant denied his guilt. 34 This submission cynically disregards the legal requirements of appropriate directions to the jury and the likelihood that they would observe those directions. It should be rejected. 35 It was further argued that the grant of leave under s.108(3)(b) was inevitable since there was, by the plea of not guilty and the putting her account in issue, at least a suggestion, by implication, of fabrication and the complaint evidence was of considerable importance to the case. For the reasons that I gave in Whitmore (supra), the Crown's argument that merely by his taking issue with the assertions of the complainant or denying his guilt, the appellant raised fabrication, reconstruction or suggestion is in my view untenable. 36 Even if the condition precedent was satisfied, I consider that it would have been necessary, in considering the discretion to grant leave, to advert to the considerations I raise in my judgment in Whitmore (supra). I have in those reasons set out at length the views that I hold concerning the steps that might have to be taken before complaint evidence might properly be admitted. I remain persuaded of the correctness of those views. 37 The Crown's argues that, if the evidence could be admissible on any basis other than solely on credibility, then s.102 becomes inapplicable, even if the evidence might be excluded in discretion under s.137, or its use limited under s.136, I am of the view that the policy of the Act requires that before any use, limited to credibility, might be made of the evidence, it would be necessary to consider the requirements of s.108 and those additional matters which go to discretion. 38 The suggestion is that, if the evidence is potentially to be admitted on any other basis, then it is no longer necessary to consider the grant of leave. That would apparently involve the suggested examination of any evidence, tendered for use solely on credibility, to find any such other basis, even if tenuous, thereby avoiding the application of s.102 and the credibility provisions of the Act. Such a suggestion is, to me, inconsistent with the Act (see the discussion of the policies in the Act in Papakosmos (supra)). 39 The Crown submits that, even if there was procedural error, there was no substantial miscarriage of justice and the proviso to s.6(1) of the Criminal Appeal Act 1912 should be applied. It is submitted that the complaint evidence or at least certain of it, was admissible for the truth of its contents on count five and to bolster credibility both particularly and generally, so that there was a very strong case, and conviction on all counts was inevitable. True it was, that in addition to the support the complaint provided on count five, in respect of count two, the evidence of Luke afforded powerful support for the complainant's allegation. But that did not mean that, considering general credibility, the proper utility of the evidence of complaint, if it was admitted, and the appropriate separate consideration of each of the separate counts, the Crown had, on all counts, such a case as would inevitably have produced a guilty verdict. Clearly, the complaint evidence was most significant. Credibility was peculiarly a matter for the jury and this was a case that turned on the credibility of the complainant. I do not think the proviso is applicable. 40 I am of the view that ground one has been made out substantially for the reasons that I gave in Whitmore (supra). In the circumstances, it is not necessary to consider the other grounds. 41 I propose that the appeal should be upheld and a new trial ordered. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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