New South Wales Court of Criminal Appeal CITATION : Regina v Tillman [1999] NSWCCA 164 FILE NUMBER(S) : CCA 60109/98 HEARING DATE(S) : 15 April 1999 JUDGMENT DATE : 30 June 1999 Regina PARTIES : v Kenneth Davison Tillman JUDGMENT OF : Wood CJatCL at 1; Hidden J at 2; Smart AJ at 4 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/51/0168 97/51/0172 LOWER COURT JUDICIAL OFFICER : Ducker DCJ COUNSEL : A - JC Nicholson SC R - CK Maxwell QC SOLICITORS : A - Many Rivers Aboriginal Legal Service R - R Gray CATCHWORDS : Criminal Law; Sexual intercourse with child; Disclosure and use of medical evidence; Court need not be included in indictment to ground alternative statutory verdict; Judge explained alternative verdict to jury; Warnings given sufficient; Verdicts involved no miscarriage. ACTS CITED : Crimes Act 1900 Evidence Act 1995 DECISION : Appeals against conviction dismissed; leave to appeal against sentence refused. IN THE COURT OF CRIMINAL APPEAL CCA 60109/98 WOOD CJ at CL HIDDEN J SMART AJ Wednesday, 30 June 1999 REGINA v Kenneth Davison TILLMAN HEADNOTE The appellant was convicted to two counts of sexual intercourse with a child and one count of attempted sexual intercourse with her. Held: (1) A medical practitioner is entitled to explain the statements and conclusions contained in his statement served prior to the trial. That evidence resulted in the acquittal of the appellant on a substantive charge of sexual intercourse with a child but was supportive of his conviction on the attempt charge. (2) The Judge was correct in leaving the alternative statutory count of attempt to the jury. (3) The Judge's warnings were extensive. They were given at the correct stage of the trial and did not have to be repeated in the summing up. (4) The verdicts involved no miscarriage of justice. Orders: (1) Appeals against conviction dismissed. (2) Leave to appeal against sentence refused. * * * * * * * * * * IN THE COURT OF CRIMINAL APPEAL CCA 60109/98 WOOD CJ at CL HIDDEN J SMART AJ Wednesday, 30 June 1999 REGINA v Kenneth Davison TILLMAN JUDGMENT 1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Smart AJ. I agree with his reasons and with the orders he proposes. 2 HIDDEN J: I have had the advantage of reading in draft the judgment of Smart AJ. I agree that the appeal should be dismissed and, subject to one matter, with his Honour's reasons. My only reservation relates to the second ground of appeal. 3 The learned trial judge directed the jury that the evidence of the appellant should be "scrutinised carefully". A little earlier in the summing up, speaking of the competing accounts of the complainant and the appellant, his Honour said that the jury "should carefully scrutinise the two versions…". I think it undesirable that a trial judge should suggest that the evidence of the accused should be subject to scrutiny, as it may convey to the jury that the accused is a "suspect witness": cf Robinson v The Queen (1991) 180 CLR 531 at 535-6. That said, the situation here was significantly different from that with which the High Court was dealing in that case. In light of his Honour's directions as a whole, the jury would have been left in no doubt as to the proper approach to their deliberations. 4 SMART AJ: Kenneth Davison Tillman appeals against his conviction on two counts of, in July 1996 at Goonellabah, having sexual intercourse with MAL, she then being under the age of ten years, namely nine years, and one count of attempted sexual intercourse with her in the same month and place. The appellant does not pursue his application for leave to appeal against the severity of the concurrent sentences imposed by the Judge. 5 The jury, in finding the appellant guilty of attempted sexual intercourse with the child, had first acquitted him of the substantive charge of sexual intercourse with that child. By direction, the appellant was acquitted of a further count of sexual intercourse with the child in July 1996 and two charges of indecent assault alleged to have occurred between 14 November 1996 and 18 December 1996 at Barkersvale. 6 The appellant and the child's mother commenced a relationship in late October 1995. They began to live together not long after along with her two children, MAL born in 1987 and a second daughter born in 1992. The mother fell pregnant to the appellant. About 8 July 1996 she entered hospital and remained there until 11 July 1996 undergoing treatment because of complications. On that day, although the baby had not been born and against medical advice, she discharged herself because MAL was visibly distressed and begging her to come home. The mother haemorrhaged and returned to hospital on 13 July 1996, giving birth to her son that day. She remained in hospital until 20 July 1996. Upon her discharge she returned to live at Goonellabah. In November 1997 they moved to a property at Barkersvale. 7 MAL stated that while her mother was in hospital the appellant was looking after her and her sister. The three convictions are based on his conduct during that period. 8 As to the first conviction, MAL alleged that one night while she was sitting on the lounge watching television, the appellant, who had entered the lounge room, called her to him and she obeyed. She sat on the arm of the lounge. She said that he then made her suck his penis by threatening to kill her mother if she (MAL) did not do so. He ejaculated into her mouth. She told him that she wanted to go to the toilet. She did so and spat out his "white stuff". 9 As to the second conviction, MAL alleged that in the evening a couple of days later, probably in the main bedroom, the appellant made MAL rub his penis with her hand and then suck it. Her made her swallow the "yucky stuff" which he had discharged into her mouth. He threatened to kill her mother if she (MAL) did not comply. 10 As to the third conviction, MAL alleged that about three days later at night, the appellant called her into the main bedroom. She had been in her bed in her nightie. He told her to lie down and pulled down her knickers. He placed his penis in her private part. This hurt. A couple of days later upon being recalled after a paediatrician had given evidence, she said that she did not know how far the appellant's penis was inserted. She said that the appellant was on top of her for a while but he did not move his penis in and out. This evidence explains why the jury found the appellant guilty of an attempt to have sexual intercourse and not the substantive offence. 11 MAL did not say anything to her mother after she came home from hospital. MAL gave evidence of two incidents at Barkersvale in which she alleged that the appellant had made her suck his penis. The evidence did not accord with the Crown opening that she had rubbed the appellant's penis with her hand at his instigation. 12 The first complaint by MAL was to a friend (now her foster brother) who was nineteen years old and had begun to live with the family at Barkersvale. It was night and everyone was in bed except the foster brother. She told him that the appellant "was making me suck his penis and all that stuff". The foster brother told her to tell her mother. MAL did so the next day, telling her mother that the appellant "was making me suck his private part". Earlier in her evidence MAL said that a couple of days after the second incident at Barkersvale, she had spoken to her mother in the kitchen. Her mother called the police. 13 Many discrepancies emerged during the cross-examination of MAL. That revealed variations and discrepancies in the account which she gave Constable J Hamilton and in exactly what the appellant had done. MAL had an imperfect recollection. The jury could well have taken the view that the offending conduct started when MAL was seven years of age and that the appellant engaged in a series of offending acts. The extent and frequency of these acts make it difficult to isolate the specific occasions and the conduct which occurred on those days. 14 MAL asserted that she was scared of the appellant and that she was worried that her mother might not believe her complaints about the appellant. She did not tell her grandmother of the offending acts when she stayed with her. Her mother maintained telephone contact. She said that the appellant also spoke to her in an angry voice. Her mother thought that the appellant had not spoken to MAL by telephone. 15 The day before the complainant told her mother of the appellant's offending conduct, there was an argument between the mother and the appellant which led to MAL calling the police. 16 In his interview by the police, the appellant denied the allegations made by MAL. During his evidence at the trial, he also denied her allegations. He said that MAL had never been alone with him in his bedroom because it was out of bounds. In the house there was one television set which was in the lounge room during the day and which he moved to his bedroom at night. MAL was put to bed when they returned from the hospital. She denied that the television set was in the bedroom shared by the appellant and her mother. 17 Dr CB Ingall, an experienced paediatrician, examined MAL on 20 or 24 March 1997. He was given a history that she had been repeatedly assaulted sexually over one month about seven months previously. There had been oral and vaginal intercourse, the former with ejaculation. He reported that MAL "examined quite normally with no evidence of vaginal or anal penetration. Her anus dilated easily when she relaxed. There was no evidence of hymenal or anal mucosa tear, her "hymen being a crescent posteriorly and posterolaterally. The vaginal vault appeared normal past the hymen, approximately four millimetres in diameter within the normal range for her age". The doctor expressed the view that the physical signs were consistent with the history that was given and continued: "Well young girls when there is pressure applied to their perineal or anal areas by larger objects such as a penis will often perceive that they are being penetrated because of the pressure that's being applied, but the size of the vaginal opening is such that at that age its normal range is less than six millimetres or so in diameter which is quite tiny. Whilst they perceive that they are actually being penetrated when the pressure is applied, in most cases we don't find any evidence of penetration such as a hymenal tear or a healed scar so that it shows that indeed whatever was applying pressure to that area did not actually penetrate past the hymen even though the child perceived it was happening that way." And: "… [MAL's] perception that she had been penetrated is compatible with normal findings on examination." 18 In cross-examination the doctor agreed that it was a virtual certainty that there had been no penetration of the vagina by the penis. That evidence had the effect of ensuring that the appellant was acquitted of the substantive charge but it left open the charge of attempt. 19 Appeal ground 1: "(a) The Crown should not have been permitted to rely upon evidence of Dr Ingall that was not disclosed to the defence prior to the trial to support a verdict of attempted sexual intercourse (s.66E(3) and s.66B, Crimes Act 1900). (b) His Honour misdirected the jury as to the use that could properly be made of this evidence." 20 Well prior to Dr Ingall giving evidence, his report was made available to the appellant. By letter of 17 February 1998 the appellant's solicitor wrote to the Office of the Director of Public Prosecutions requesting the Crown to supply a further statement from any witness who was going to go beyond what was in his statement as supplied by the Crown. The letter stated that this was particularly important in respect of the evidence of Dr Ingall. 21 The appellant submitted that a statement to the effect of the passage quoted above from Dr Ingall's evidence was not to be found in his report. That passage was in response to a question asking the doctor to explain what he meant by the statement that the physical signs were consistent with the history given. That last mentioned statement was in the doctor's report. It was also clear from the doctor's report that the vagina of MAL was tiny. It would have been impossible for a penis of an adult male to fit. There is no substance in the complaint that the appellant was not sufficiently informed of the evidence to be given by Dr Ingall. It is normal and to be expected that a witness will explain what is in his statement and expand upon it. 22 Dr Ingall's evidence was given without objection and it was not until the following day that objection was taken by the appellant. It was submitted that the count relating to the third conviction was unfair on the ground that the medical evidence of Dr Ingall had not been foreshadowed to the appellant. Having regard to the discussion which took place, it appears that the Crown must have alerted the appellant's legal representative to the alternative charge of attempt. As in this Court, the appellant wanted the benefit of Dr Ingall's evidence to ensure his acquittal on the substantive charge but desired that it be excluded as to the attempt charge. The appellant submitted that the Crown should have charged the attempt by way of an alternative charge in the Indictment and that it not having done so, the attempt charge should not have been left to the jury. 23 The Judge pointed out that the defence was that nothing wrong took place, that there was always an available alternative statutory verdict of attempt in the circumstances and that there was ample opportunity to cross-examine the doctor. The Judge declined to limit the Crown to the substantive charge and was of the opinion that the alternative charge of attempt would always be anticipated. I agree. The Judge requested the Crown to re-open its case and the Crown agreed. MAL was recalled and further cross-examined. She confirmed that the appellant lay on top of her and, as mentioned, stated that she could not tell how far the appellant inserted his penis into her vagina. The course taken by the Judge was correct. The evidence of Dr Ingall should not have been withdrawn in part and the jury was correctly invited to consider the alternative charge of attempt. 24 The appellant complained that the Judge had the evidence of Dr Ingall taken out and told the jury that if they requested the transcript he had the power to give it to them. It was submitted that this gave an importance to this evidence far beyond its true significance. The jury requested a copy of the transcript of the doctor's evidence. The evidence was important. It effectively disposed of the substantive charge but it left open the attempt charge as the real one to be decided. It was evidence that needed to be carefully studied. The Judge told the jury that if they came to the conclusion that the appellant did do something, the doctor's evidence was highly relevant but not if the appellant did nothing. The Judge's treatment of the evidence of Dr Ingall was correct. He explained its use and importance to the jury and that it showed that there was in fact no sexual intercourse. 25 Ground 1 fails. 26 Appeal ground 2: "His Honour's directions failed to warn the jury sufficiently that there may be a danger in convicting on the uncorroborated evidence of a child aged 11." 27 Immediately after the evidence of MAL the Judge gave the jury the strongest warning at pp73-75 of the transcript of 25 February 1998. He instructed the jury that they were entitled to take into account with regard to her credibility the delay in making the complaint (July 1996 to February 1997). He explained that the mere fact that a complaint was made does not prove that an assault of a sexual nature did take place. The Judge stated as to MAL: "The credibility of this witness is of absolutely critical importance, because if you do not accept her evidence beyond reasonable doubt, then there is no way upon which you could return a verdict of guilty. And whenever the prosecution is in such a situation, where it must depend upon the evidence of a single witness to prove a case beyond reasonable doubt, then obviously it behoves the jury to examine the credibility of that witness with very great care." 28 The Judge reminded the jury that sometimes children can be untruthful. He reiterated the warning. He concluded (at T75): "when … there is but a single witness you must devote a great deal of careful attention to assessing the credibility of that witness, because it is that witness who is required to prove beyond reasonable doubt in effect that the events which she alleged occurred in fact did occur and did amount to the crime charged. That is really all I wish to say but I thought that now was the appropriate time to raise that issue because it is a matter which you must have in the forefront of your mind throughout the proceedings." 29 The combined effect of all the Judge said (at TT73-75) was to give the jury the strongest of warnings. Counsel's complaint was that warnings along the lines given should also have appeared in the summing up. 30 During the summing up the Judge, after referring the jury to what he had said earlier in the trial, said (at SU7): "… in any case where the credibility of but a single witness is relied upon as an essential part of the prosecution case, it is obvious that the evidence of the witness must be looked at very carefully, must be scrutinised and considered and weighed up by you conscious that it is the evidence of that witness which must prove the case against the accused." 31 Immediately before the jury retired the Judge (at SU40) reminded the jury that the central issue "… is whether or not you are satisfied beyond reasonable doubt that the evidence of the child … is correct and that the accused did the things which are alleged …". 32 He emphasised (at SU41) that it was essential that the jury scrutinise the child's evidence with great care conscious that there was only one witness to prove the case beyond reasonable doubt. 33 This trial was completed in less than three and a half days. The cogent warning that the Judge gave the jury just before lunch on the second day would have been fresh in their minds especially with the Judge's references in his summing up on the third day and immediately before the jury retired to consider their verdict. The summing up complemented but did not water down or supersede what the Judge had earlier said. 34 The appellant also complained that the Judge, after pointing out that the appellant did not have to give evidence and noting his denial to the police, said: "his evidence is to be scrutinised carefully applying your common sense and experience just as with any other witness". This was said but once and it is not objectionable in the context. It is not to be compared with the repeated and strong warnings about the child's evidence and that they had to be satisfied of its truth beyond reasonable doubt. It did not have the effect of shifting the burden of proof. Nor did the Judge's directions have the effect of oversimplifying the issue for the jury. They were apt for the circumstances before him. There was no objection to the Judge telling the jury that they might think that both or either of MAL or the accused had not told the truth and that whether sexual intercourse occurred could hardly be the subject of mistake. Either it happened or it did not. They had to consider whether such intercourse occurred. This stated the position succinctly. The Judge made it clear that it was not a case in which they had to choose between the two versions and accept one or the other. The Judge said (at SU9.5): "You should bear in mind, particularly in a case like this, where there are only two versions, that it is not a case of which version you prefer, it is a question of whether or not you are, on the whole of the evidence, satisfied beyond reasonable doubt that the accused is guilty." 35 The Judge (at SU10) emphasised that the jury to be satisfied beyond reasonable doubt that it was the prosecution's version of what occurred that was correct. 36 Ground 2 fails. 37 Appeal ground 3: "The verdicts are unsafe and unsatisfactory." 38 It is now thought that it is better to say that the verdict constituted a miscarriage of justice. 39 The appellant relied on MAL's evidence being uncorroborated and on the alleged failure of the Judge to direct the jury on the dangers of convicting in such circumstances. There was no failure as alleged. The Judge directed strongly on the point. 40 The appellant submitted that the evidence of MAL was inconsistent with earlier accounts given to the police and that the statements given to the police contained inconsistencies among themselves. The terms of the complaint made to the foster brother were alleged to be consistent with only one episode of oral intercourse. The appellant contended that his evidence at the trial was unshaken and that there was nothing more he could have done to defend his innocence. It was submitted that the answers of MAL in cross-examination lacked credibility. Reliance was placed on the delay in making a complaint. She gave an explanation as to the delay which the jury must have accepted. It was credible. The appellant submitted that when MAL was interviewed by the police, initially she asserted that nothing happened in Barkersvale, that later she detailed acts of the appellant at Barkersvale when he had her rub his penis and that when she gave evidence before the jury she deposed to acts of oral intercourse. Rubbing a penis is often a prelude to acts of oral intercourse. She said that there had been many incidents, that when initially asked she became confused and forgot that something had happened at Barkersvale. In any event, the appellant was acquitted of the Barkersvale charges. 41 The appellant pointed out that the jury reached its verdicts in fifty-four minutes and that this suggested that their consideration was rushed. The summing up was virtually complete on the night of the third day. The jury thus had overnight to think about the matter. 42 MAL was aged eleven years when she gave evidence aged nine in July 1996. There were some inconsistencies and discrepancies between her evidence and the statements made to the police but I do not regard them as major. The Judge thought that some of the police questions lacked precision. A girl of MAL's age and education could not be expected to give comprehensive accounts to the police of what happened. Information is likely to trickle out over a period. She did not find giving evidence easy and, at times, the questions of the cross-examiner would not have been easy for an eleven year old girl to follow. She had trouble understanding some of them. In her statements to the police and in her evidence, her core allegations as to the first offence were consistent. An incident took place in the lounge room in which he made her suck his penis and ejaculated in her mouth. She did not swallow it but went to the toilet and spat it out. This occurred while her mother was in hospital. There was a threat to kill her mother if MAL did not do as the appellant required. Similarly, her core allegations as to the second offence were substantially consistent. While her mother was in hospital, the appellant required her to rub his penis with her hand and then suck it. He ejaculated and made her swallow his semen. He made the same threat. She told the police the incident occurred in the lounge room. In her evidence she said that it occurred in the bedroom. The jury were entitled to take the view that this did not matter. 43 As to the third offence there was again a substantial consistency in her statements to the police and her evidence in respect of the core matters. The incident occurred while her mother was in hospital. The offence took place in her mother's bedroom. He pulled her underpants down. He lay on top of her and placed his penis in her vagina. Later evidence dealt with what this meant. 44 MAL spent over a day in the witness box and was cross-examined for at least half that time. The jury had a good opportunity to assess her and her evidence. It was a case where that was very important. The appellant's evidence covered some fifteen pages of transcript and probably lasted about forty-five to sixty minutes. That would have given the jury some opportunity to assess him and his evidence. A study of the transcript and an examination of the evidence lead me to the conclusion that this was a case in which it was well open to the jury to reach the verdicts of guilty. The Judge gave the jury very strong warnings. He also told the jury to be careful not to attach too much weight to the distressed condition of the child when the mother was in hospital. It could be due to the child missing her mother. Again, that was a matter for the jury to assess. 45 The verdicts were not unsafe and unsatisfactory. There was no miscarriage of justice. 46 I propose that the appeal against conviction be dismissed and the application for leave to appeal against sentence be refused. * * * * * * * * * * 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.