New South Wales Court of Criminal Appeal CITATION : R v Greenham [1999] NSWCCA 8 FILE NUMBER(S) : CCA 60561/97 HEARING DATE(S) : 1/12/98 JUDGMENT DATE : 8 March 1999 PARTIES : Gregory Glenn Greenham (Appellant) Regina (Respondent) JUDGMENT OF : Sheller JA at 1; Dowd J at 2; Hidden J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0186 LOWER COURT JUDICIAL OFFICER : Coolahan ADCJ COUNSEL : G P Craddock (Appellant) L M B Lamprati (Respondent) SOLICITORS : Jeffreys & Associates (Appellant) S E O'Connor (Respondent) CATCHWORDS : Criminal Law - aggravated indecent assault - adequacy of directions about evidence of sexual conduct other than that charged - need for warning about complainant's evidence - adequacy of directions about delayed complaint - discretion to decline to order new trial. Crimes Act 1900 ACTS CITED : Evidence Act 1995 Criminal Appeal Act 1912 Evidence Act 1995 M v The Queen (1994) 181 CLR 487 R v AH (1997) 42 NSWLR 702 R v Fraser (CCA unreported 10 August 1998) R v Beserick (1993) 30 NSWLR 510 R v Wickham (CCA unreported 17 December 1991 CASES CITED: R v Beattie (1996) 40 NSWLR 155 R v Stanton (CCA unreported 24 July 1998 Crofts v The Queen (1996) 186 CLR 427 R v Johnston (CCA unreported 31 July 1998) Graham v The Queen (1998) 157 ALR 404 Fleming v The Queen (1998) 158 ALR 379 DECISION : Appeal allowed - on each count conviction quashed, verdict and judgment of acquittal entered IN THE COURT OF CRIMINAL APPEAL 60561/97 SHELLER J A DOWD J HIDDEN J Monday 8 March 1999 REGINA v GREGORY GLENN GREENHAM JUDGMENT 1 SHELLER JA: I agree with Hidden J. 2 DOWD J: I have seen and agree with the reasons and proposed orders in the draft judgment of Hidden J. 3 HIDDEN J: The appellant, Gregory Glenn Greenham, has appealed against his conviction of three counts of aggravated indecent assault after a trial at the Newcastle District Court. He was sentenced effectively to penal servitude for three years, comprising a minimum term of one year and an additional term of two years. An application for leave to appeal against his sentence was not pursued at the hearing. The Evidence 4 The appellant was alleged to have interfered sexually with a girl over a period which began when she was thirteen years old and ended around the time of her fourteenth birthday. She lived at an address in Edgeworth with her parents and her older sister, Leanne. In the house next door lived Ms Laurelle Rankmore and her two children, Erin and Kieran, both of whom are considerably younger than the complainant. The complainant frequently visited Ms Rankmore's home. Ms Rankmore's sister, Tammy Rankmore, was in a relationship with the appellant, and they also visited the home fairly regularly. 5 The first two counts arose from an incident said to have occurred early in 1994, not long after the complainant's thirteenth birthday. She was in Laurelle Rankmore's bedroom, sitting on the bed, watching Erin and Kieran playing a Sega game. Her evidence was that the appellant came into the room, sat on the bed next to her, and squeezed her in the area of her breasts outside her clothing. (She was not then developed in that area.) She pushed him away and told him to stop. He then rubbed her legs and her genital area, also outside her clothing. Again, she pushed his hand away and said, "No." He left the room. She was scared, and feared telling her parents what had happened because she thought that she would get into trouble. 6 The third count arose from an incident said to have occurred in early 1995, about a year later. On this occasion also, the complainant was in Laurelle Rankmore's bedroom, and Erin and Kieran were playing the Sega game. Also in the bedroom were two school friends of the complainant, Tina Nicholas and Danny Evans. Fairly detailed evidence was given about what is then alleged to have ensued, but it is sufficient to summarise it briefly. According to the complainant, she was sitting on the bed when the appellant entered the room. He sat on the floor next to the bed, placed his hand under her T-shirt and squeezed her breasts. From her description of their position in the room, it is unlikely that Tina Nicholas or Danny Evans would have seen this. Indeed, she said that Tina Nicholas turned to look in their direction but the appellant quickly removed his hand, so that she could not see what he was doing. 7 Danny Evans gave evidence. He did not see the appellant do anything to the complainant. Tina Nicholas gave evidence of sexual contact between the appellant and the complainant but her account was significantly at variance with that of the complainant. According to her, the appellant put his hand up the complainant's skirt while she was standing, looking out the window. She pushed his hand away and said, "Don't." She then lay on her stomach on the bed and the appellant sat on the bed next to her. Again, he put his hand under her skirt and she pushed it away. In cross-examination, she was not entirely sure that she had seen the appellant put his hand up the complainant's skirt on the first occasion, but she said that the complainant later told her that he had done so. 8 The complainant said that, immediately after this incident, she asked Tina Nicholas to accompany her outside. There she told Miss Nicholas what the appellant had been doing to her and, according to her, this was the first occasion on which she had complained to anyone about his behaviour. I shall return to the evidence of complaint in a moment. 9 The incident the subject of the third count was the last episode of sexual impropriety alleged. However, evidence was admitted of sexual contact other than that charged in the indictment. The complainant described an occasion at the Rankmore home, a couple of days before the incident giving rise to the first and second counts, where the appellant told her she was "beautiful", led her to the side of the house, put his arms around her and tried to kiss her on the mouth. She spoke of yet another occasion in Laurelle Rankmore's bedroom when the appellant came in and exposed his penis to her. She said that frequently he would touch her on the breasts or the genital area and would try to kiss her. 10 I have referred to the complainant's evidence that she told Tina Nicholas about the appellant's behaviour immediately after the incident giving rise to the third count. According to her, she said that he "grabbed me on the boobs, down between my legs, and kissing me and that". She said that she had not told anyone before then because she was scared to. Several days later she also complained to Danny Evans, in the presence of two friends of his identified only as Ben and Luke, while walking home from school. Danny Evans had her tell her father, whereupon the matter was promptly reported to police. 11 Broadly speaking, the complainant's evidence on this aspect was supported by the evidence of Danny Evans. However, again, her account was markedly different from that of Tina Nicholas. Miss Nicholas confirmed that the complainant spoke to her about the appellant's sexual impropriety immediately after the incident giving rise to the third count. According to her, however, the complainant had complained to her on an earlier occasion, when they were walking through bushland on their way home from a friend's house. The complainant had said that the appellant was "always touching me on the boobs, on the moot (meaning her vagina) and on the arse and that". 12 It was on 3 April 1995 that the matter was reported to police. The complainant was accompanied by her father to Cardiff police station, where Sergeant Gareth Robinson spoke to her and, later on the same day, to Tina Nicholas. The course of the investigation thereafter, I trust, is rare and will never be repeated. 13 Sergeant Robinson referred the matter promptly to Detective Senior Constable Christine Robertson of the Child Mistreatment Unit at Wallsend. Detective Robertson obtained a statement from the complainant on 9 April 1995 and from Tina Nicholas on 17 May 1995. It seems that little or nothing was then done for the best part of two years. The appellant was not approached about the matter until 31 January 1997. Statements from at least two witnesses, Danny Evans and the complainant's father, were not obtained until later in that year. Danny Evans had then lost touch with his friends, Ben and Luke, as had the complainant, and it is perhaps not surprising that they were unable to be located and were not available to give evidence at the trial. Detective Robertson conceded in evidence that she had not made "a great deal of effort" to find them. She also claimed, somewhat half-heartedly, to have had some difficulty locating the appellant, but she relied primarily upon pressure of other work to explain the delay in pursuing the matter. 14 To what extent Detective Robertson ought be blamed for this tardy investigation is not a matter which this Court could, or should, determine. No doubt, resources are limited and officers in the field have heavy work-loads, particularly in this area of the criminal law. Nevertheless, such delay as occurred here is unacceptable. It is obviously in the interests of justice, from the point of view of the complainant, the suspect and the community, that allegations of this kind be investigated as expeditiously as possible. However, the problems with this investigation do not end there. 15 I have referred earlier to the terms of the complaint to Tina Nicholas as Miss Nicholas recounted it, with the reference to the appellant touching the complainant "on the boobs, on the moot and on the arse…" This was also how she had recounted it in her statement to police of 17 May 1995. As already observed, these were not the terms which the complainant herself used when giving evidence of her complaint. Nor had she when recounting the complaint in her police statement of 9 April 1995. 16 At the request of a solicitor from the office of the Director of Public Prosecutions, Detective Robertson took a further statement from the complainant on 26 August 1997, not long before the trial. She asked her again to recount her complaint to Tina Nicholas but the complainant said that, while she could remember that there was a conversation, she did not recall the terms of it. Detective Robertson said in evidence that the complainant appeared to be nervous, embarrassed and reluctant to talk about the matter. Apparently for this reason, the Detective read to the complainant the relevant part of the statement of Tina Nicholas. The complainant agreed with Miss Nicholas' account of what had been said, and the Detective transposed the words from Miss Nicholas' statement into the further statement of the complainant. The complainant then read that statement and signed it. 17 The impropriety of such an approach hardly needs to be stated. In evidence, Detective Robertson conceded that it was probably not "the most prudent course to have taken", although she added that it was "the only course I had". However, in answer to a question from the trial judge, she agreed that she had been "in effect putting words" into the complainant's mouth. When the complainant was cross-examined about this matter, she denied that Detective Robertson had read Miss Nicholas' statement to her and disclaimed any knowledge of its contents. 18 The appellant gave evidence, denying all of the complainant's allegations. However, he recounted an incident at his brother's twenty-first birthday party, which was held at Laurelle Rankmore's home at the end of 1993. He was having his photo taken with the complainant's sister, Leanne. The complainant was "being a pest", rubbing her chest against him, and in irritation he "tweaked her on the breast". There is no evidence directly corroborative of this incident. Tammy Rankmore gave evidence that the complainant was at the party, and that the appellant had told her about the incident after he had been charged with the present offences. On the other hand, the complainant denied having been at the party, and this was supported by the evidence of her mother, her father and Laurelle Rankmore. Leanne herself agreed that her photo had been taken with the appellant, but she also said that the complainant was not there. The Appeal 19 Counsel for the appellant, who did not appear at the trial, argued a number of grounds of appeal which were said, individually or in combination, to demonstrate that the trial had miscarried and that the convictions should be set aside. In addition, it was submitted that the verdicts are unsafe in the sense that they are unreasonable, or cannot be supported, having regard to the evidence: s6(1) Criminal Appeal Act 1912; Fleming v The Queen (1998) 158 ALR 379 at 382-3 (paras 7-11). 20 The latter submission can be dealt with briefly. The problems inherent in the Crown case are obvious from my brief summary of the evidence. Nevertheless, typically of cases such as this, the jury's decision was no doubt based upon their assessment of the witnesses, particularly the complainant. Appellate courts are slow to set aside a jury's verdict as unreasonable, not only out of respect for the jury's function as the trier of fact, but also in recognition of the advantage the members of the jury enjoy from seeing and hearing the witnesses: M v The Queen (1994) 181 CLR 487 at 492-3. Although there were a number of respects in which the complainant's credibility was subject to challenge, it was open to the jury, acting reasonably, to accept the substance of her account. Equally, where the evidence of the complainant and Miss Nicholas was in conflict, it was open to the jury to accept the evidence of the complainant and to reject that of Miss Nicholas. While the appellant consistently maintained his innocence, his own evidence was not free from difficulty. 21 That said, I am satisfied that the conviction on each count should be set aside and verdict and judgment of acquittal entered: s6(2) of the Act. In my view, a number of errors in the conduct of the trial have led to a miscarriage of justice. In arriving at that conclusion I have not found it necessary to consider all the grounds of appeal, some of which have more substance than others. Further, for discretionary reasons to which I shall turn later, I have concluded that it would be inappropriate for this Court to order a new trial. Evidence of other sexual conduct (Ground 2) 22 I have referred to the fact that the complainant gave evidence of sexual impropriety other than that charged: touching her on the breasts or genital area, trying to kiss her and, on one occasion, exposing his penis. It was submitted that this evidence was inadmissible and that, in any event, the trial judge's directions about it were inadequate. 23 It is well established that evidence of this kind may be admissible to place the acts charged in their context and to demonstrate a guilty passion on the part of the accused for the complainant. If the evidence is led for that second purpose, to show guilty passion, it is tendency evidence which must meet the tests set out in s97(1) and s101(2) of the Evidence Act 1995: R v A.H. (1997) 42 NSWLR 702, per Ireland J at 708-9. Whether the evidence is admissible may involve consideration of the restrictions imposed by s409B(3) of the Crimes Act 1900 and the balancing exercise required by s137 of the Evidence Act. If the evidence is admitted, the circumstances may require that its use be limited under s136 of the Evidence Act: R v Fraser (CCA unreported, 10 August 1998) at p18ff. 24 It follows that careful consideration should always be given to whether evidence of this kind is admissible and, if so, upon what basis. Its prejudicial effect is obvious, particularly in a trial by jury, arising from "the circumstance that the ordinary person may well think that someone with an established tendency, desire or passion to behave in a particular way, whenever a suitable opportunity arises, will yield to that personality characteristic or emotion and so behave in the circumstance of the particular case…": Fraser at p26. 25 Here, the complainant gave the evidence without objection. There does not appear to have been any discussion at that stage about the purpose for which it was led. However, in summing up his Honour left it to the jury as evidence of the context in which the offences occurred and of guilty passion on the part of the appellant. What his Honour said was this: …that activity, if you accept that it occurred, and of course that's the crucial issue in this case, whether you accept her evidence or not, the Crown says that that activity is evidence of a guilty passion. It's not the subject of any charge. But it's evidence of a relationship, a guilty passion, on the part of the accused towards the complainant and it's also led on the basis, of course, that the Crown says, well if you just had these two incidents in 1994 and then another incident in 1995, it wouldn't be the true context of what happened and you're entitled to also take into account that there was this conduct going on in determining whether you accept the evidence of the complainant or not. 26 After referring specifically to the evidence that the appellant exposed his penis to the complainant, his Honour continued: Well, of course, members of the jury, that again is not the subject of any charge, but the Crown is entitled to lead that evidence and it's a matter for you as to whether you accept it or not as being helpful in your determination of the facts in this case. 27 The argument that the evidence was inadmissible confronts the difficulty that it was not objected to at the trial. On the face of it, it would appear to be admissible on both the bases upon which it was left to the jury. However, we cannot know what the fate of an objection might have been as there may have been material in support of it of which we are unaware. It is the inadequacy of his Honour's directions about the evidence which has persuaded me that this ground should succeed. 28 In Fraser (at p28) the Court referred to a passage from the judgment of Hunt CJ at CL in R v Beserick (1993) 30 NSWLR 510, in which his Honour emphasised the need for a trial judge to ensure that evidence of this kind is not used improperly by the jury (at 516): …an explanation should invariably be given to the jury as soon as the first of that evidence is given and, if necessary, again in the summing-up as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged. 29 In my view, his Honour's directions in this case were insufficient to guard against the jury's use of the evidence for the impermissible purposes referred to by Hunt CJ at CL in that passage. It is not enough merely to tell the jury that the conduct alleged is not the subject of any charge, and is led as evidence of the relationship between the appellant and the complainant and of his sexual pre-occupation with her. It must be emphasised that the evidence is no substitute for proof to the requisite degree of the elements of each of the offences charged. With respect, one could not go past the passage from the summing up of Wood J (as his Honour then was) quoted at pp3-5 of the judgment of Gleeson CJ in R v Wickham (CCA unreported, 17 December 1991). For present purposes, it is sufficient to set out the last paragraph of that passage: However, I emphasise to you again that you must not substitute evidence of other acts for the specific acts charged and you must not reason on the basis: well, this accused may have done some wrong things on other occasions relating to this girl and therefore, we will convict him on these two particular acts. The Crown must prove those particular acts beyond reasonable doubt. You have the wider history merely to place her evidence into context and, if you think it appropriate, to show the existence of a strong and guilty passion for her by the accused. 30 No redirection was sought by counsel for the appellant at the trial. Nevertheless, the matter is of such significance that leave to argue it ought to be granted. In so far as it relates to his Honour's directions, this ground is made out. Warning about complainant's evidence (Grounds 6 & 9) 31 At the trial counsel for the appellant asked his Honour to warn the jury that the evidence of the complainant might be unreliable, given her age: Evidence Act, s165(1)(d) and (2). His Honour declined, without giving reasons. 32 A trial judge need not give a warning, despite a party's request for one, if he or she considers that "there are good reasons for not doing so": subs165(3). That subsection does not expressly require those reasons to be stated, but in most cases the judge should do so: R v Beattie (1996) 40 NSWLR 155, per James J at 160; R v Stanton (CCA unreported, 24 July 1998) per Mason P at p5. There were a number of reasons why a warning was appropriate. While not of tender years, the complainant was quite young at relevant times: thirteen and fourteen at the time of the events complained of and sixteen when she gave evidence. She made no complaint about the appellant's behaviour until about a year after it was said to have first commenced. Her evidence conflicted with that of Miss Nicholas in significant respects. Her willingness to sign a further statement in the circumstances described above, when part of the statement of Miss Nicholas was incorporated in it, reflects poorly on her credibility, as does the conflict between her evidence and that of Detective Robertson about that matter. 33 The nearest his Honour got to a warning during the summing up was a direction about corroboration. It will be remembered that Tina Nicholas gave evidence about the occasion in Laurelle Rankmore's bedroom giving rise to the third count, but her version of what occurred was markedly different from that of the complainant. Having defined corroboration as evidence "from an independent source", his Honour went on: If you accepted Tina Nicholas' evidence that she did see the accused put his hand up the dress of the complainant…, then that… would be capable of being used by you as corroboration of the fact that they were in the bedroom and that basically something happened. 34 However, his Honour went on to say that the evidence was not corroborative of the third count and that, accordingly, all three counts were uncorroborated. He told the jury that it was open to them to convict on the complainant's uncorroborated evidence, but added: …but you should scrutinise her evidence carefully, because there is no independent evidence, as it were, of those three acts, before you do so. 35 It is difficult to determine what the jury might have made of these directions. On the face of it, his Honour appears to have told the jury that Miss Nicholas' evidence was in some way corroborative of the third count, then later told them that it was not. From a submission made by the Crown prosecutor immediately before the summing up, it seems that his Honour was seeking to convey that the evidence could not corroborate the complainant's evidence about the third count, but might be used in support of the evidence of the appellant's sexual desire for the complainant generally. Whether this is how the jury would have understood the direction is quite another matter. However that may be, I cannot accept that evidence about a specific incident which is in significant conflict with the complainant's evidence about the same incident could be used as corroboration, not of the occurrence of that incident, but of the appellant's guilty passion for the complainant. 36 In the result, his Honour gave a direction about corroboration, although the law does not require it: s164(3) of the Evidence Act. He then referred to certain evidence as capable of amounting to corroboration, in some ill-defined way, when in fact it was not. On the other hand, the direction that the jury should scrutinise the complainant's evidence carefully because of the absence of evidence corroborative of the three counts fell far short of an appropriate warning under s165(2). I am satisfied that such a warning should have been given for the reasons I have outlined above. That subsection requires a judge not only to warn the jury that evidence may be unreliable and that it should be assessed with care, but also to inform the jury of the matters which may cause it to be unreliable. This required reference not only to the lack of corroboration, but also to the complainant's age, the delay in complaint and the evidence about her making the additional statement shortly before the trial. 37 Again, no redirection was sought by counsel for the appellant at the trial, but the matters complained of are significant and leave to argue them should be granted. These grounds also are made out. Delay in complaint (Ground 10) 38 The only direction his Honour gave the jury about complaint was by reference to the evidence of Tina Nicholas. He said that, if they accepted her evidence about the complaint, they would be entitled "to use that as evidence that these acts happened", if they thought that "this is the sort of thing that would be likely to be said by a person who is truthful and who had been sexually assaulted". 39 On the evidence, the complaint about the appellant's behaviour generally was made promptly after the incident giving rise to the third count but, of course, the first two counts were said to have occurred about a year earlier. His Honour made no reference to the delay in complaint in relation to those counts. Section 405B(2) of the Crimes Act required a direction that that delay did not necessarily mean that the complainant's evidence was false, while fairness and balance called for a direction that it may reflect adversely upon her credit: Crofts v The Queen (1996) 186 CLR 427. On the one hand, her delay in complaining might have been explained by her age and her evidence that she feared the consequences of doing so. On the other hand, it might have borne upon her credibility which, for the reasons I have stated, was vulnerable in other respects. 40 Crofts has been applied in a number of decisions of this Court, including R v Johnston (CCA unreported, 31 July 1998), in which the issue of delay in complaint was considered at length by Spigelman CJ (at p10ff). The Chief Justice examined not only the effect of delay upon a complainant's credibility, but also the prejudice which it may cause an accused in answering allegations which have not been brought to his attention in a timely fashion. That, also, is a matter of concern here. Quite apart from the time which elapsed before the complainant first told anyone about the appellant's alleged behaviour, almost two more years passed before the police got around to confronting him with her allegations. His Honour did comment in the summing up about the delay in the investigation. Having referred to a submission by the Crown prosecutor that, unsatisfactory as that delay was, it did not impact upon the issues in the case, his Honour continued: But the accused would say, look, he should have been told about these allegations when they were made, that is only commonsense and fairness. His ability to recall details would have been compromised perhaps by the delay involved in confronting him with these allegations and you should take that into account when you assess his evidence. 41 In the circumstances of the case, I do not consider that that laconic direction, confined to tardiness on the part of the investigating police, was adequate to convey to the jury the prejudice suffered by the appellant from the delay as a whole. However, I am content to decide this ground on the basis of his Honour's failure to direct the jury about the effect of delay on the complainant's credit. 42 Yet again, no redirection was sought. Nor had it been in Johnston (supra) and other decisions of this Court referred to by the Chief Justice in that case, in which appeals on a similar point were successful. Leave to argue the matter should be granted, and this ground also is made out. Other grounds 43 Grounds of appeal directed to other aspects of the trial were argued, but I consider them to be of less substance and do not consider it necessary to determine them. There was a further ground relating to the directions on complaint, requiring a consideration of various sections of the Evidence Act against the background of the common law. Certainly, the direction quoted above would have conveyed to the jury that the evidence of complaint might be used as evidence of the matters complained of, rather than as material going only to the complainant's credibility. That may well have been so as to the third count, because there was evidence of complaint made immediately after the incident giving rise to it: s66(1) of the Act. On the other hand, the evidence could not have been used in that way in respect of the first and second counts, as they were too remote in time: Graham v The Queen (1998) 157 ALR 404. However, submissions on this ground invited a consideration of the extent to which the Act has changed the common law and whether, under the Act, evidence of complaint could ever be used other than on the question of a complainant's credibility. We were informed from the Bar table that this issue is the subject of an application to the High Court for special leave to appeal in another case, yet to be heard. That being so, it is neither necessary nor desirable that we decide it. Conclusion 44 As I have said, the grounds of appeal which have succeeded require the convictions to be quashed. It would be open to this Court to order a new trial if we were satisfied that the resultant miscarriage of justice could be remedied more adequately by such an order "than by any other order which the court is empowered to make": s8(1) of the Criminal Appeal Act. In my view, this is not such a case. On its face, the Crown case is far from overwhelming. The appellant was admitted to bail pending the appeal, but not until he had served almost eleven months of the twelve month minimum term imposed upon him. Perhaps more importantly, the Crown should not be allowed another opportunity to prosecute charges which have been tainted by a dilatory and, in one respect, improper investigation. 45 I would propose that the appeal be allowed and that, in respect of each count, the conviction be quashed and verdict and judgment of acquittal entered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.